Beverage Company Prevails in Consumer-Fraud Class Action Targeting Use of Artificial Sweetener in Fountain Drinks


Shook, Hardy & Bacon represented The Coca-Cola Company in the appeal of a certified consumer-­fraud class action targeting the sale of fountain Diet Coke® made with saccharin. The plaintiff alleged that the beverage manufacturer affirmatively misrepresented and omitted material information about the types of artificial sweeteners used in Diet Coke® and thus violated state consumer-fraud laws, including the Missouri Merchandising Practices Act.

After the trial court certified the class, Shook became involved and assisted with the appeal of the case up to the Missouri Supreme Court. Ruling that the trial court abused its discretion in certifying an over-broad class, the court issued a permanent writ prohibiting a statewide consumer-fraud class of all purchasers of fountain Diet Coke® in Missouri. The ruling clarified the interplay between the interlocutory appeal statute and the Supreme Court’s writ jurisdiction, and set out the proper procedure for an aggrieved party to challenge certification of a class. State ex rel. Coca­Cola Co. v. Nixon, 249 S.W.3d 855 (Mo. 2008) (en banc).