In a post last month we referenced the 30+ lawsuits filed in the U.S. District Court for the Northern District of California by the same consortium of plaintiffs’ lawyers against processed food and beverage makers alleging very similar violations of state and federal laws. We’ve been doing our best to keep up with developments in those cases, a task that can be daunting to say the least. Thanks to an attentive Legal Pulse reader, we learned recently of a decision in Bishop v. 7-Eleven, Inc.
7-Eleven asked Judge Edward Davila to dismiss the plaintiff’s amended complaint for failure to plead his fraud claims with specificity as Rule 9 of the Federal Rules of Civil Procedure requires. Mr. Bishop alleged he was misled into filling his overflowing 7-Eleven cornucopia with house brand potato chips, ice cream, cheese jalapenos, a parfait, and what he termed other “Misbranded Food Products.”
Judge Davila did not take well to the plaintiff’s throw a bunch of food against the wall and see what sticks approach to pleading. He wrote:
The Amended Complaint fails to unambiguously specify the particular products that have violated particular labeling requirements, the allegedly unlawful representations that were on the products, and the particular statements Plaintiff allegedly relied on when making his purchase.
This heightened pleading standard—under which the plaintiff must clearly state the “who, what, when, where, and how” of the alleged fraudulent conduct—not only protects defendants’ rights, but also helps to preserve dwindling judicial resources by deterring frivolous claims. While Judge Davila honored the purpose of Rule 9 in dismissing Bishop’s mislabeling claims, he regretfully allowed Bishop and his consortium of lawyers to amend the complaint a second time.
So unfortunately for the defendant, which will have to divert more valuable time and financial resources, and for the taxpayer-funded Northern District of California, Mr. Bishop will likely be back in court again soon with his 7-Eleven cornucopia complaint.