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San Diego couple want to amend class action against Frito-Lay over chip flavor

Lawsuits

By Karen Kidd | Jul 17, 2018


U.S. District Court Judge Janis Lynn Sammartino

SAN DIEGO (Legal Newsline) – A San Diego couple suing Frito-Lay over the company's allegedly misleading label on a popular flavor of Lay's brand potato chips has asked a federal judge to allow them to amend their would-be class action lawsuit.

Plaintiffs Barry and Mandy Allred want to add "additional factual allegations relating to the function and effect of malic acid in the Lay's Salt & Vinegar Flavored Potato Chip Product," said their five-page motion to amend the case. The motion was filed June 1 in U.S. District Court for California's Southern District.

"The amended complaint also adds additional information about how defendants' competitors label their products lawfully," the motion said. "Because this action was originally filed in state court, the amended complaint also updates the caption page and references the Federal Rules of Civil Procedure rather than the California Code of Civil Procedure."

Later in the month, Frito-Lay filed its opposition to the Allred's request to amend their complaint.

The Allreds, in their lawsuit filed about a year ago, allege that defendant Frito-Lay's Salt and Vinegar Flavored Potato Chips are misleadingly labeled as only containing natural ingredients. The Allreds have argued that Frito-Lay's "misrepresentations and deception" continues to the present day, triggering the continuing violation doctrine and claiming that tolls statute of limitations.

Earlier this year, the case survived a Frito-Lay motion to dismiss when U.S. District Court Judge Janis Lynn Sammartino issued an order saying she could not yet determine if the Allred's claims were implausible and preempted. In that order, Sammartino ruled the couple had adequately pleaded their case for a continuing violation exception for the statute of limitations to be tolled.

In May, the couple also objected to a Frito-lay request for reconsideration or clarification.

In their June motion to amend their lawsuit, the Allreds claim that their request is timely and should be allowed. 

"Because plaintiffs’ proposed amendment does not remedy the fatal defect in their complaint—their inability to plausibly allege that malic acid imparts a vinegar flavor in the product—the court should grant Frito-Lay’s motion for reconsideration, dismiss the operative complaint under Rule 12(b)(6), and deny plaintiffs’ motion for leave to amend as futile," Frito-Lay's motion stated.

The Allreds said they offered their amended complaint in good faith and without undue delay.

"In sum, plaintiffs' amended complaint was filed timely and in good faith, contains claims similar to those originally asserted and does not prejudice defendants," their motion said. "Consequently, none of the factors on which courts base denial of motions for leave to amend are present here. Thus, plaintiffs' motion for leave should be granted."

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