Update – September 27, 2019 – Dismissal Leaves Room for Plaintiffs to File Amended Lawsuit
The first amended complaint filed over the allegations detailed on this page has been dismissed, with U.S. District Court Judge Maxine M. Chesney leaving the door open for the plaintiff to file a second amended complaint. The plaintiff has until October 7, 2019 to do so.
The bulk of the case was tossed due to both the plaintiff’s failure to meet the threshold set by Rule 9(b) of the Federal Rules of Civil Procedure (FRCP) and the preemption of the man’s “use” claims by federal law. Judge Chesney wrote in thedismissal orderthat the plaintiff failed to comply with Rule 9(b) of the FRCP in that he offered no specificity as to exactly when he may have purchased Coffee-mate creamer containing partially hydrogenated oil (PHO), what types or flavors he purchased, and how and why he relied on their advertised claims.
The order notes that the class period proposed in the suit, “on or after January 1, 2010,” lacked an end date despite the plaintiff claiming that he “repeatedly” purchased Coffee-mate during the class period. Judge Chesney felt that the possibility that the plaintiff could have bought the product at any time within a period of roughly nine years was “too general to satisfy the ‘when’ requirement” for allegations of fraud. All told, the court was unable to determine if the plaintiff bought Coffee-mate creamer throughout the entire class period, or during only part of it. Further, the lack of specificity as to when Coffee-mate allegedly included PHO and when the creamer’s label contained the “0g trans fat” statement were found to be “particularly significant” in that the man said he relied on the 0g trans fat claim for only “some” of his purchases.
Lastly, Judge Chesney allowedNestlé USA’s motion to strike from the lawsuit a number of paragraphs in which the plaintiff alleged the company had a history of “oppressive and unlawful conduct.”
The Coffee-mate line of creamer products is at the center of a proposed class action filed in California against Lucky Stores,NestléUSA, Save Mart Super Markets, The Kroger Company, and The Save Mart Companies, Inc. According to the case, which was filed at the end of October and has been removed to district court,Nestlémanufactured Coffee-mate with partially hydrogenated oil (PHO), an additive declared by the FDA in a 2015 final regulation and declaratory order as unsafe for any use in food. Lucky, Save Mart, Kroger, and Save Mart Companies sold PHO-containing Coffee-mate at their stores during the proposed class period, the suit alleges, despite possessing knowledge that the additive was unsafe and that inexpensive, commercially viable alternatives existed.
The lawsuit from there goes on to pick at the claim on Coffee-mate labels that the product contains “0g Trans Fat.”All partially hydrogenated oil contains trans fat, the lawsuit says, adding Coffee-mate thereby contains trans fat in “substantial and dangerous” amounts.