If you eat, then you are probably a member of a class action. Shook, Hardy & Bacon Partners Cary Silverman (Public Policy) and James P. Muehlberger (Class Actions and Complex Litigation) have published a study with the U.S. Chamber Institute for Legal Reform that closely examines the products, theories, magnet jurisdictions, repeat filers, court rulings, and settlements in food marketing litigation today.
Key findings based on an in-depth review of court records, docket monitoring services, legal publications, and other sources include:
- Food marketing class actions increased from approximately 20 in 2008 to over 170 new food class actions filed in or removed to federal court in 2016. There are over 400 active food class actions in federal courts and many more in state courts.
- Three-quarters of food class actions in federal courts are in just four states: California (36%), New York (22%), Florida (12%), and Illinois (7%). Missouri, New Jersey, and Pennsylvania also host significant litigation.
- A relatively small but growing cadre of lawyers generates most of the food class action lawsuits. Lawyers who have effectively deputized themselves as the food police churn out cut-and-paste complaints, sometimes using the same people repeatedly as class representatives.
- Claims challenging products advertised as “natural” remain most frequent. Class action lawyers are increasingly targeting products marketed as “healthy,” labeling that emphasizes healthy aspects of the product, and products that include trans fat or “evaporated cane juice” among the ingredients.
- “Slack fill” litigation, which challenges extra space in product packaging, is on the rise. These claims consume judicial time by fighting over such issues as how many candies should fit in a box or if an iced latte contains too much ice.
- Key courts have thrown out some of the more tenuous claims, but many cases drag on for years.
- Food class actions are now reaching the appellate level, including recent rulings in the Ninth Circuit, but the mixed results are not likely to slow the litigation machine.
- In certified class actions, about half of the settlement money often goes to the lawyers who bring the case for their fees and costs, and to pay the cost of claims administration. While plaintiffs’ lawyers receive millions in fees, consumers are usually eligible to seek a nominal cash payment, product vouchers, or products in the mail.
In “The Food Court: Trends in Food and Beverage Class Action Litigation,” Silverman and Muehlberger document the big picture of food marketing lawsuits, and make concrete recommendations for reform, outlining the role that the courts, legislatures, and regulatory agencies all have in restoring common sense to food class action litigation.