Wednesday 24 May 2017

Nutella Label Lawsuit (Hohenberg v. Ferrero USA (’11CV0205H CAB)

Doubters and naysayers of the growth of label lawsuits need only take a scan of Google. These suits are popping up with increasing regulatiry.

The most recent is a suit in CA against Nutella. A mother of a 4year old child claims she was falsely lead to believe Nutella was a health food. She seeks certification of a class of plaintiffs who purchased at least one jar of Nutella during 2009.

Under Kwikset she clings to the mantra that “labels matter” and cites to several claims that Nutella was “nutritious” and a “healthy breakfast” item.

Under Weiner she pleads that Nutella cost more than “similar products.” Exactly how much? Is that amount trivial? The plaintiff sticks to the bear bones pleading model and only states for diversity purposes that the amount in controversy exceeds$5,000,000. Presumably counsel is ready to substantiate the amount in controversy.

In a new twist outside of Weiner and Kwikset the plaintiffs asks for equitable remedies. Namely an order compelling Nutella to stop making the false claims and to run corrective advertisements. This falls outside the road-map seen in Weiner and Kwikset.

This will be an interesting lawsuit to watch – both to see if the plaintiff can substantiate economic injury and also to see how the court handles the request for equitable remedies.

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