Article Type: Lawsuit

Gatorade Fit Drinks “Healthy” Claims and Fortification California Class Action

PepsiCo, Inc. offers consumers a line of Gatorade Fit drinks that it claims represent “Real Healthy Hydration” that are an “Excellent Source of Vitamin[s] A & C.” But the complaint for this class action alleges that the drinks are misbranded, because they do not fulfill certain conditions that are necessary in order for them to make these kinds of claims.

The class for this action is all persons in California who, at any time between February 24, 2019 and the date the class is notified in this case, bought, for personal or household use and not for resale or distribution, any of the Gatorade Fit products.

Page 3 of the complaint shows five bottles of the product, in the flavors Tropical Mango, Citrus Berry, Watermelon Strawberry, Cherry Lime, and Tangerine Orange.

As to the drinks’ nutritional content, the complaint alleges, “Gatorade Fit is essentially water that is flavored with a small amount of watermelon juice concentrate and citric acid and sweetened with stevia leaf extract” to which electrolytes are added. The drinks are fortified with various substances that provide vitamin C, vitamin B3, vitamin A, vitamin B5, and vitamin B6, the complaint alleges, to the extent that 500 milliliters of any of the drinks provides 100% of the Food and Drug Administration’s (FDA’s) daily recommended value of these vitamins.

“Absent fortification,” the complaint alleges, “no Gatorade Fit variety would provide 10% or more vitamin A or C, and none are a significant source of calcium, iron, protein or fiber either.”

The claims made for the drinks are nutrient content claims, the complaint alleges, which in general are not allowed on the labels of food; they are, the complaint claims, “only permitted when a claim is defined by regulation and the requirements for making the claim are met.”

As to the claim “Real Healthy Hydration,” the complaint alleges that, because it uses the term “healthy,” it must meet certain requirements in the Code of Federal Regulations. The complaint alleges that, in order to use the term, the food or drink must contain at least 10% of certain set or recommended amounts “of one or more of vitamin A, vitamin C, calcium, iron, protein or fiber.” Because the drinks do not contain 10% of any of these substances without the fortification, they do not meet this requirement.

Fortification is also regulated. The complaint claims that fortification is permitted under only four circumstances, which it lists with quotations from the regulations: (1) “to correct a dietary insufficiency recognized by the scientific community,” (2) “to restore such nutrient(s) to a level(s) representative of the food prior to storage, handling and processing,” (3) “to avoid nutritional inferiority” when replacing a traditional food, and (4) “in proportion to the total caloric content … to balance the vitamin, mineral, and protein content[.]”

According to the complaint, none of them apply to the fortification of the Gatorade Fit drinks with vitamins A and C.

Entenmann’s “All Butter” Loaf Artificial Vanillin Content Missouri Class Action

The Entenmann’s website tells visitors, “Indulge yourself with the rich taste of pure butter in our All Butter loaf.” But the complaint for this Missouri class action alleges that this “All Butter” loaf cake contains artificial flavor that adds to the butter taste and should be admitting this on its front label. It brings suit against Bimbo Bakeries USA, Inc., the company behind the Entenmann’s brand.

The Missouri Class for this action is all persons in Missouri who bought the product during the applicable statutes of limitations.

Consumers these days prefer natural ingredients in their foods. The complaint presents a variety of information on this, alleging, “A recent survey reported that over 82% of US respondents believe that foods with artificial flavors are less healthy than those promoted as containing natural flavors and/or not containing artificial flavors, which are highly processed with chemical additives and synthetic solvents in laboratories.”

“According to Forbes,” the complaint also claims, “88% of consumers consider foods without artificial flavors to be more natural and healthier than foods with artificial flavors.”

This preference involves more than flavor and health concerns, the complaint alleges, quoting a “scholar” who suggested that “the preference for natural products appeals to a moral ideology and offers a moral satisfaction.”

According to the complaint, the words “All Butter” on the front of the loaf cake product “tells purchasers the cake will contain butter as its main shortening ingredient and that its butter taste will only be from butter.” Butter, which has a fatty, creamy taste, the complaint claims, is therefore the product’s characterizing flavor.

Page 4 of the complaint, however, reproduces the ingredient list for the product, which does list “Butter” but also lists “Artificial Flavors.” The complaint alleges that the artificial flavors listing “refers to and includes artificial vanillin, determined through laboratory analysis in accordance with accepted standards.”

The complaint alleges that artificial vanillin is created from petroleum products and used to provide a creamy and fatty taste in food. According to the complaint, the loaf cake product “adds vanillin to butter to enhance the fattiness in the end-product, so it has a more ‘buttery top note,’ which refers to its most significant flavor component.”

However, federal regulations exist about the labeling of food that contains an artificial ingredient that “simulates, resembles or reinforces” the food’s characterizing flavor. The complaint alleges that, in this case, the loaf cake’s “front label is required to state, ‘Artificially Flavored’ next to ‘All Butter.’”

The Food and Drug Administration (FDA) has issued guidance on this topic, the complaint alleges. This guidance, it says, “requires that where a food is labeled ‘Butter ____’ or uses the word ‘butter’ in conjunction with its name, like ‘All Butter’ but ‘contains any artificial butter flavor,’ this fact must be disclosed to consumers on the front label.”

The complaint asserts, “The value of the Product that [the plaintiff in this case] purchased was materially less than its value as represented by” the company.

TGIN “Natural” Wild Growth Vitamins Contain Synthetics Class Action

Tginesis, LLC makes vitamin products, including TGIN Wild Growth Vitamins Hair, Skin, + Nails Gummies. The complaint for this class action alleges that the company markets the product as “Natural” when it contains at least two artificial ingredients: Red No. 40, a synthetic food coloring, and citric acid, an artificial preservative.

Three classes have been defined for this action:

The Nationwide Class is all persons who bought the Tginesis products in the US within the applicable statute of limitations.
The Multi-State Consumer Class is all persons in California, Florida, Illinois, Maryland, Massachusetts, Minnesota, Missouri, New Jersey, New York, Pennsylvania, Oregon, and Washington who bought the Tginesis products.
The Maryland Class is all persons who bought the Tginesis products in Maryland within the applicable statute of limitations period.

At the time of filing, the product at issue is TGIN Wild Growth Vitamins Hair, Skin, + Nails Gummies, although more may be added eventually.

Consumers at this time have become concerned about synthetic and chemical ingredients in products they ingest, the complaint alleges, believing they are healthier and safer. According to the complaint, they are willing to pay more for products that are “natural” and do not contain such ingredients.

Page 2 of the complaint shows an enlargement of the brand name, “TGIN,” and the line underneath it saying, “Thank God it’s NATURAL” (for which the TGIN name is likely an acronym).

The complaint alleges, “Reasonable consumers … interpret ‘natural’ to mean that the product does not include synthetic ingredients.”

Although there is no fixed definition of “natural,” the US Department of Agriculture has published a Draft Guidance Decision Tree for Classification of Materials as Synthetic or Nonsynthetic (Natural). The complaint also quotes a Federal Trade Commission (FTC) warning about the use of the term, saying, “If reasonable consumers could interpret a natural claim as representing that a product contains no artificial ingredients, then the marketer must be able to substantiate that fact.”

However, page 11 of the complaint reproduces the ingredient list for the product, which lists citric acid and Red No. 40 among the ingredients.

The complaint defines Red No. 40 as “a synthetic food coloring that is associated with carcinogenic effects and hyperactivity in children.”

As to citric acid, the complaint claims that it is not made from citrus fruit. “Rather, it is industrially manufactured by fermenting genetically modified strains of the black mold fungus Aspergillus niger.” The complaint alleges that it is used “as a synthetic preservative, flavorant, and acidity regulator” and that the Food and Drug Administration (FDA) recognizes it as artificial.

According to the complaint, the fact that the company has claimed that the product is “Natural” in a prominent location on the packaging shows that it knows that the claim is important to consumers.

Endocrine Disrupting Chemicals in Hair Straighteners Class Action

The plaintiff in this case, Shmeka Gethers, was diagnosed with uterine fibroids in 2003, had a related hysterectomy, and was never able to have children. This class action alleges that the cause of these issues was her use of chemical hair straighteners or relaxers. The complaint alleges that products from L’Oréal USA, Inc., Soft Sheen-Carson, LLC, Strength of Nature Global, LLC, Beauty Bell Enterprises, LLC (and related companies) are harmful to users because they contain endocrine disrupting chemicals that may pose health risks.

The Nationwide Class for this action is all persons in the US who bought and used the products at issue within the applicable statutes of limitations and who were diagnosed with uterine cancer, endometriosis, or uterine fibroids. A South Carolina Subclass has also been defined for all persons in the above class in South Carolina.

The products at issue include Dark and Lovely, Optimum, Soft & Beautiful, Motions, Just for Me, and Africa’s Best hair straighteners or relaxers.

“In an analysis of ingredients in 1,177 beauty and personal care products marketed to Black women,” alleges the complaint to this class action, “about one in twelve (12) were ranked highly hazardous on the scoring system of EWG’s Skin Deep Cosmetics Database…. The worst-scoring products marketed to African American women were hair relaxers.”

According to the complaint, these products “are applied to the base of the hair shaft and left in place for a ‘cooking’ interval, during which the relaxer alters the hair’s texture by purposefully damaging the hair’s natural protein structure.” The smoothing effect lasts for an average of four to eight weeks, the complaint says, after which new growth appears and the treatment needs to be done again.

At times, the products may inflict burns or lesions on the scalp, and these injuries can allow the chemicals further entry into the body.

Endocrine disrupting chemicals (EDCs) can cause harm, the complaint alleges, especially when they are used over a long period of time. Particularly associated with exposure to EDCs, the complaint alleges, are uterine cancer, uterine fibroids, and endometriosis.

The complaint alleges that, while the Food and Drug Administration (FDA) does not require the makers of cosmetics, such as the hair straighteners, to perform specific safety tests on their products, “it is against the law to put an ingredient in a cosmetic that makes the cosmetic harmful when used as intended.”

Under current US laws, the complaint alleges, the makers of cosmetics are responsible for determining that their products are safe and for warning consumers if any of them are associated with a health hazard. The complaint claims that plenty of information has been available about EDCs in hair straighteners or relaxers and that that information “should have alerted manufacturers of these products to the specific and dangerous harms associated with their products when used as intended[.]”

Blue Otter Polarized Biometrics for Virtual Try-On Illinois BIPA Class Action

Blue Otter, LLC, which does business as Blue Otter Polarized, sells its sunglasses at its website, permitting customers to use a Virtual Try-On feature. But the complaint for this class action alleges that website visitors who use this feature are sometimes residents of Illinois, and that Blue Otter does not fulfill the requirements of an Illinois law, the Biometric Information Privacy Act (BIPA) before collecting the biometrics of Illinois residents so that they can use this feature.

The class for this action is all natural persons whose biometrics were captured by Blue Otter via its Virtual Try-On feature at the www.blueotterpolarized.com website, while they were living in Illinois.

Biometrics are not like other forms of identification, the complaint alleges, because if they are stolen, they are not replaceable. For example, if a credit card or credit card number is stolen, the person can get a new credit card with a different number. But if the person’s fingerprints are stolen, they cannot get new fingers with a different set of prints.

Because of this unique problem with biometrics, the Illinois General Assembly passed BIPA, which sets forth basic requirements for businesses that want to collect, store, or use biometrics. Included in the law’s list of such biometrics is a scan of facial geometry.

Before collecting a subject’s biometrics, a private business must do the following:

Tell the subject in writing that the biometrics are being collected or stored.
Tell the subject in writing of the specific purpose and length of time for which the biometrics will be collected, stored, and used.
Get a written release from the subject.

Businesses who collect, store, and use biometrics must also have a publicly-available written policy about the retention of biometrics, including a retention schedule and guidelines for permanently destroying the biometrics when the original purpose has passed or three years after the subject’s last interaction with the company.

Blue Otter’s Virtual Try-On feature asks customers to have their computer or other device take a picture of their face or upload a picture of their face to the website. “But, unbeknownst to the website user…,” the complaint alleges, Blue Otter “collects detailed and sensitive biometric identifiers and information, including complete face geometry scans, of its users through the Virtual Try-On feature, and it does this without first obtaining their consent, or informing them that this data is being collected.”

It also does not have a publicly-available policy on the retention and destruction of biometrics, the complaint alleges. According to the complaint, then, Blue Otter does not fulfill the requirements of BIPA for businesses that wish to collect, store, and use biometrics.

Titleist, FootJoy Websites Visitor Wiretapping Class Action

Businesses nowadays believe they need detailed information on their potential customers in order to succeed. But in trying to gather this data, the complaint alleges, some companies are violating the privacy rights of visitors to their websites. It brings suit against Acushnet Company and Acushnet Holdings Corp., alleging that the companies gather too much information from website visitors without their consent and violate the Federal Wiretap Act and the California Invasion of Privacy Act (CIPA).

The class for this action is all natural persons in California whose website communications were captured in California via Session Replay Code embedded in the websites www.titleist.com or www.footjoy.com.

Because businesses are dependent on consumers for their success, the complaint alleges that they believe that “the ability to capture and use customer data to shape products, solutions, and the buying experience is critically important to a business’s success.” The complaint quotes a report as saying that those who “leverage customer behavior insights outperform peers by 85 percent in sales growth and more than 25 percent in gross margin.”

In the case of Acushnet, how is this information gathering done? The complaint alleges that the company has gotten a third-party vendor such as FullStory to put bits of JavaScript code into its website. This code is known as Session Replay Code, the complaint alleges, and it can intercept and record website visitors’ electronic communications with the websites, including their mouse moves, clicks, keystrokes, and so on.

This information isn’t just retained at Acushnet, the complaint alleges, but sent on to a particular other server, usually owned by the third party that provided the Session Replay Code.

Later, the complaint alleges, Acushnet can replay every moment of the website visit, including any entries made into fields at the website, even if the visitor does not ultimately click the Submit button to register the information. The company can replay the session, the complaint claims, as if it is “looking over the shoulder” of the website visitor for the whole length of their visit. So can the third party that stores this information, the complaint says.

The complaint also alleges that the sessions are not always anonymous, because they record whatever information visitors enter, including if they log into an existing account. Session Replay Providers can also create “fingerprints” from certain information, and the complaint alleges, “The resulting fingerprint, which is often unique to a user and rarely changes, are collected across all sites that the Session Replay Provider monitors.” Visitors who provide identifying information to any one of the sites are thus identified for all of the sites.

Visitor are not asked to consent to this interception of their electronic communications and may not even be aware that it is occurring.

Matco Tools Corporation Data Breach Class Action

Matco Tools Corporation is a franchise that distributes professional tools to the auto and other industries. The complaint for this class action alleges that Matco bears responsibility for a data breach of its systems and the theft from them of personally identifying information (PII) as well as financial information.

The class for this action is all individuals in the US whose personal information was exposed in the data breach of Matco Tools Corporation, which took place on or around March 1, 2022.

According to the complaint, an unauthorized party accessed Matco’s systems on March 1, 2022 and stole PII and financial information. The complaint alleges this would not have occurred if Matco had put into practice “reasonable data security measures.” When Matco discovered the breach, it began an investigation with the help of an unidentified cybersecurity company.

The information stolen in the data breach, the complaint alleges, includes names, Social Security numbers, driver’s license numbers, and/or financial information.

“Because this data breach targeted financial and personally identifying information,” the complaint alleges, “it is reasonable to infer that the hackers will use victims’ data for fraudulent purposes, including identity theft.” The Notice Letter warns the individual victims that they should get credit monitoring and identity theft protection services because of the possible misuse of their information, the complaint says, but there is no sign in the complaint that Matco has offered to pay for this protection.

Also, the complaint alleges, “Nothing in the breach letter describes the cause of the breach, who might have been responsible, or any matters taken by Matco to prevent further breaches in the future.”

Because Matco makes a practice of taking and storing PII and financial information, the complaint alleges that “the burden (if any) of implementing reasonable data security practices is minimal in comparison to the substantial and highly foreseeable risk of harm” to the victims if that information is stolen.

The complaint faults Matco for the data breach, suggesting that “Matco failed to adequately train its employees on even the basic cybersecurity protocols” and provides a list of these.

“On information and belief,” it also says, “Matco’s use of outdated and insecure computer systems and software that are easy to hack, and its failure to maintain adequate security measures and an up-to-date technology security strategy, demonstrates a willful and conscious disregard for privacy, and has exposed the PII” in its systems “to unscrupulous operators, con artists, and outright criminals.”

According to the complaint, Matco has violated Section 5 of the Federal Trade Commission Act because it did not take reasonable precautions to protect the PII it held in its systems.

Lakeview Loan Servicing Data Breach South Carolina, Arkansas, and Illinois Class Action

Lakeview Loan Servicing, LLC is a large mortgage loan servicer that services mortgages for customers in three states, South Carolina, Arkansas, and Illinois. As such, Lakeview maintains a great deal of personally identifiable information (PII) on its more than 1.4 million customers. But the complaint for this class action charges that Lakeview did not take adequate measures to safeguard this PII, resulting in a data breach that exposed its customers’ information.

Three classes have been proposed for this class action:

The South Carolina, Arkansas, and Illinois Classes are all residents of South Carolina, Arkansas, and Illinois, respectively, that Lakeview Loan Servicing named as being among the individuals who were affected by the data breach, including all who were sent a notice of the data breach.

The complaint quotes Lakeview’s Privacy Policy as saying that it uses “the latest technology to insure [customers’] personal information is secure[.]” “By obtaining, collecting, using, and deriving a benefit from the PII” in its system, the complaint alleges, “Lakeview assumed legal and equitable duties to those individuals and represented that it would protect [the] PII.”

However, the complaint alleges that an unauthorized party was able to intrude into Lakeview’s systems between October 27 and December 7, 2021 and accessed or compromised the information of around 2.5 million people, including names, addresses, loan numbers, and Social Security numbers.

According to the complaint Lakeview did not inform any of the individual victims until the middle of March 2022. The complaint quotes the Notice as saying, “For some, the accessed files may also have included information provided in connection with a loan application, loan modification, or other items regarding loan servicing.”

The complaint claims the Notice also said that “steps are being taken to further enhance [Lakeview’s] existing security measures” but did not detail those measures or the vulnerabilities that had been exploited to enable the data breach.

The complaint claims, “The data breach occurred because Lakeview did not implement adequate and reasonable cyber-security procedures and protocols to protect the PII…. Lakeview’s negligence, carelessness, and its intentional acts and omissions resulted in the failure to protect the PII and led directly to the Data Breach.”

Lakeview did not take common security measures, the complaint alleges, pointing to those recommended by the US Government and the US Cybersecurity & Infrastructure Security Agency. It lists a number of these recommendations. The complaint also claims that Lakeview did not comply with Federal Trade Commission (FTC) guidelines or industry standards for keeping PII safe.

Syngenta, Corteva “Loyalty Programs” Restrain Competition Class Action

Syngenta Crop Protection AG, Syngenta Corporation, Syngenta Crop Protection, LLC, and Corteva, Inc. are “basic” manufacturers of pesticides, meaning they invent, develop, and patent pesticides. When the patents expire, other manufacturers can make generic versions. But the complaint for this class action alleges that the companies use anticompetitive “loyalty programs” to curtail the amount of generic pesticides that can make it onto the market.

The class for this action is all persons or entities who, between January 1, 2017 and the present, bought pesticides in the US and its territories containing the active ingredients azoxystrobin, mesotrione, metolachlor, rimsulfuron, oxamyl, or acetochlor.

The loyalty programs are related to these key ingredients that are used in the pesticides to keep crops from being damaged by weeds, insects, and funghi. When the companies invent or develop new products using certain ingredients and formulas, they can patent them and be granted a period of exclusivity for that formula.

“Once the exclusivity period expires,” the complaint alleges, generic manufacturers may enter the market with equivalent products containing the same active ingredients and relying upon the same toxicology and environmental impact data.” The entry of generics to the market usually causes prices to fall.

The loyalty programs, the complaint alleges, “provide payments to distributors in exchange for selling certain amounts of [the companies’] pesticides and restricting sales of generic pesticides made by competing manufacturers.” The distributors agree to keep generics to only a certain percentage of their pesticide purchases and in return receive “rebate” payments from the companies.

The complaint claims the companies “implement and enforce these loyalty programs to ensure that manufacturers of generic pesticides are unable to effectively distribute their products, which preserves [the companies’] control of the market and prevents price competition.”

The programs are effective, the complaint alleges, because there are only a limited number of distributors in the market. The companies “both reward participation in their loyalty programs and punish non-compliance.” They design the loyalty programs so that the distributors make more money by taking the companies’ “rebate” payments than they would if they distributed more of the generic products.

According to the complaint, these loyalty programs have allowed the basic manufacturers to restrain competition, keep their monopolies going, and force farmers to pay more than they would have in an open and competitive market.

The complaint alleges that the Federal Trade Commission (FTC) and ten attorneys general have now filed a complaint against the companies for this anticompetitive scheme, which it says gives farmers “decreased innovation, fewer choices, and increased prices totaling many millions of dollars in overcharges” for the more expensive original products.

Google’s Reserve Price Optimization Plan Raises Advertising Prices Class Action

Google, LLC and its parent company, Alphabet, Inc., are in the advertising business, acting as brokers between publishers with ad space or impressions and advertisers with display advertising on the advertising exchange AdX. But the complaint for this class action alleges that Google manipulates the ad-space auctions with a program called Reserve Price Optimization that raises the price advertisers must pay to display their ads.

The class for this action is all persons and entities in the US who, between January 1, 2015 and September 5, 2019, used Google’s display advertising services to place an ad on a website operated by another entity.

Those who have ad space or “impressions” to sell (publishers) and those who want to buy impressions (advertisers) engage in real-time bidding (RTB), the complaint alleges: “When an internet user clicks to visit a web page, in the milliseconds that it takes for that page to load, real-time auctions are occurring in the background to determine which ads will display on the web page that a particular user will see.” The publisher may set a floor, or reserve amount, below which it will not sell its space.

In general, auctions are first-price auctions in which the highest bidder wins and pays its bid price. So if Bidder A bids $3, Bidder B bids $5, and Bidder C bids $4, Bidder B wins and pays $5. But this can lead to higher prices, and bidders may not want to reveal their actual highest price.

For this reason, the complaint alleges, Google pretended to run second-price auctions, in which the highest bidder wins, but at only a slight increase over the second-highest bidder. Thus, with the above bids, Bidder B at $5 would still win but would pay just a little more than second-highest Bidder C’s $4 price, for example, $4.01.

However, the complaint alleges Google took advantage of its confidential knowledge of bidders’ highest prices on subsequent auctions through its Reserve Price Optimization (RPO) program. With this plan, the complaint alleges, Google looks back at former bids and overrides the publisher’s reserve price.

For example, if a publisher set a reserve price of $10, and if Bidder A had previously bid $15 for the impression, Google might raise the reserve price for Bidder A to $14.90. According to the complaint, it set a different reserve price for each bidder. Then, if Bidder A bid $15, Bidder B bid $12, and Bidder C bid $11, Bidder A would still win, but instead of paying the second price of just over $12, Bidder A would have to pay $14.90, Google’s inflated reserve price.

The complaint claims, “To guess how much each advertiser would pay for a specific impression, RPO relied on inside information: advertisers’ historic bids into Google’s supposedly second-price exchange auction…” “Google employees privately acknowledged that RPO should be based on ‘smarts and tech’ rather than ‘insider information,’” the complaint asserts, but Google still used the insider information in its possession to charge bidders more.