SAN FRANCISCO (Legal Newsline) – The maker of Canada Dry Ginger Ale has faced a bevy of amended complaints from two class action plaintiffs concerning the authenticity of the ginger in their products.
On Sept. 27 in the U.S. District Court of Northern California in San Francisco, Judge Nathanael Cousins will hear arguments on a motion to strike a class action lawsuit against Dr. Pepper Snapple Group and Dr. Pepper/Seven Up Inc., who are listed as defendants.
Listed as plaintiffs are Jackie Fitzhenry-Russell and Robin Dale, who filed on behalf of themselves as well as others who are similarly situated.
Baker Botts LLP of San Francisco, the firm representing the defendants, argued in a memorandum of points and authorities in support to dismiss filed Aug. 18 that "the plaintiffs have now had the benefit of three prior motions to dismiss (one in the now-consolidated Hashemi case, and two in the Fitzhenry case), and have collectively amended the complaint four times, making the consolidated amended complaint (CAC) the fifth pleading."
Defense attorney Jonathan Shapiro wrote in his motion about the various errors in the CAC that would necessitate the dismissal of the case against his clients.
Shapiro cited the plaintiffs’ "failure to plead personal jurisdiction, federal preemption of their state-law challenge to an FDA-regulated label, and their failure to plead their challenge to television and website advertising in accordance with the court’s ruling on the motion to dismiss the original complaint.’’
Shapiro wrote in his motion that crux of the plaintiffs’ suit is they were led to believe the defendants’ products contained ground, powdered, or some other form of ginger or “ginger root,” and as a result, they would gain certain health benefits.
“They claim they reached that belief based on the label on six Canada Dry Ginger Ale beverages, which disclosed that the beverages contained 'natural flavors' and were 'Made From Real Ginger'—but notably said nothing about the products containing ground, powdered, or any other form of ginger root, and nothing about any 'health benefits,'" the motion says.
The defendants also claim plaintiffs failed to prove they viewed any television commercials or they relied on the commercial’s content in their decision to buy the product.