Yoplait lawsuit may proceed

by Jeff Gelski
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SAN DIEGO – A federal judge in Miami appropriately granted class certification in a class action lawsuit involving YoPlus digestive health yogurt, according to an order issued March 25 by the 11th Circuit Court of Appeals, but the appeals court sought additional definition of the class to be certified by the district court. Minneapolis-based General Mills, Inc., which manufactures and sells YoPlus, had appealed the district court’s ruling, but on March 29 said it has a standing practice of not commenting on pending litigation.

The class action complaint alleges General Mills has no scientific support for YoPlus digestive health advertising claims and that alleged misleading advertising messages allow General Mills to charge up to a 44% price premium for YoPlus over Yoplait Original brand yogurt.

Timothy Blood, managing partner of San Diego-based Blood Hurst & O’Reardon, LLP, is co-lead counsel for the class in the YoPlus lawsuit. Blood Hurst & O’Reardon LLP previously prosecuted a class action lawsuit involving Dannon’s digestive health yogurt products Activia and DanActive. Dannon agreed to a $45 million settlement in 2010

The YoPlus lawsuit is titled Fitzpatrick v. General Mills, Inc. (S.D. Fla.). Julie Fitzpatrick, the appellee, alleges General Mills violated the Florida Deceptive and Unfair Trade Practices Act. She saw General Mills’ advertising about the digestive health benefits of YoPlus in 2008 and bought and consumed about 24 four-pack cartons of YoPlus. She claims her digestive health was the same before, during and after eating YoPlus.

On March 17, 2009, Ms. Fitzpatrick filed suit on behalf of herself and proposed class members against General Mills. She moved to certify a class composed of all persons who purchased YoPlus in the state of Florida. General Mills opposed class certification. On Jan. 11, 2010, a district court issued its order on motion for class certification.

On March 25, 2011, the 11th Circuit Court of Appeals said, “In its analysis, the district court repeatedly stated that a plaintiff need not prove reliance on the allegedly false statement to recover damages under the FDUTPA, but rather a plaintiff must simply prove that an objective reasonable person would have been deceived. And this is correct. Notwithstanding this analysis, the district court went on to define the class as ‘all persons who purchased Yo-Plus in the state of Florida to obtain its claimed digestive health benefit.’

“The class definition limits the class to those who purchased YoPlus ‘to obtain its claimed digestive health benefit,’ which takes into account individual reliance on the digestive health claims. Had the district court defined the class in a manner which did not take individual reliance into account, such would be consistent with the district court’s earlier analysis. Thus, we vacate the order certifying the class and remand to the district court for further consideration.”

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