ChobaniLast week’s, In Food Class Actions, Two Courts Conflict On FDA’s “Primary Jurisdiction  discussed the July 12 ruling by Judge Koh in Kane v. Chobani, which dismissed most of the plaintiffs’ claims but allowed Kane to pursue one related to “evaporated cane juice” (ECJ). Judge Koh has now vacated that July 12 ruling and set a schedule for its reconsideration.

On July 22, Chobani filed a motion for leave to seek reconsideration of the July 12 order. They cited two grounds justifying reconsideration.

First, in permitting the ECJ claim to proceed, Judge Koh advanced a theory of that claim which had not, at any point, been advanced by the plaintiffs. On page 11 of her July 12 order, Judge Koh dismissed the plaintiffs’ assertion that they did not know that ECJ was a form of sugar as “simply not plausible.” She then goes on, however, to string together, and specifically cite to, certain allegations from the plaintiffs’ compliant about ECJ. She then concludes, with no supporting citation, that “to the extent ECJ suggests that the product is derived from a juice, it may have plausibly suggested that the product is healthier than refined sugars and syrups.”

Chobani argued in its July 22 motion that Kane never argued that it was misled into believing ECJ is a healthier form of sugar, and thus Chobani had never presented counterarguments on that theory.  The reconsideration motion then explained why, under Judge Koh’s version of the ECJ claim, plaintiffs could not establish standing to sue or prove reasonable reliance under California law. Chobani also argued that the “‘healthy sugar’ via ‘juice’ theory is expressly preempted.”

Chobani’s second justification for reconsidering the July 12 order was Judge Rogers’s contrary July 12 ruling in Hood v. Wholesoy on the issue of FDA’s primary jurisdiction over ECJ. The reconsideration motion noted that Chobani was prepared to file a request for interlocutory appeal of Judge Koh’s July 12 order to the U.S. Court of Appeals for the Ninth Circuit, based in part on the conflict within the Northern District.

With her July 25 order, Judge Koh granted Chobani’s reconsideration motion, and agreed to entertain a similar motion from Kane on claims which the judge’s July 12 order dismissed.