VENTURA, Calif. (Legal Newsline) – Though the maker of Ken’s salad dressings fixed the misleading claims on its bottles before it was sued over them, they must still pay class action lawyers nearly $400,000.
The threat of the class action lawsuit made before it was filed was enough to require the fees, the California Court of Appeal ruled on Aug. 21. The court decided since the Code of Civil Procedure permits such an award to the “successful party… in any action (that) has resulted in the enforcement of an important right affecting the public interest,” that Erikka Skinner’s lawyers should be paid by Ken’s Foods.
Ken’s bottles made claims that some dressings were made with “imported olive oil,” “olive oil” and “extra virgin olive oil,” though the actual dressings contained much more vegetable oil than olive.
Skinner’s lawyers at Clarkson Law Firm and Robins Kaplan threatened the company with a lawsuit in June 2017, asking that the company remove those olive oil claims, establish a fund to refund its ill-gotten gains and pay $250,000 in lawyer fees.
Ken’s rejected the demands and went to a neutral case evaluation, where a retired judge found Ken’s conduct was deceptive and that the plaintiffs stood a good chance of winning their case.
Afterward, company executives decided to remove the olive oil claims – a decision the plaintiffs weren’t aware of when they filed a class action in April 2018.
Months later, Ken’s again rejected a settlement offer and plaintiffs lawyers moved for a catalyst fee award. The trial court in Santa Barbara County dismissed the lawsuit but found plaintiffs lawyers were entitled to $387,593 in fees because their threat of lawsuit instigated the change on the dressings.
“Ken’s counters that it implemented its label changes not because of Respondents’ lawsuit but because it wanted to avoid the experience of its competitors,” Justice Martin Tangeman wrote.
“But Ken’s executives admitted that Respondents’ lawsuit was a factor motivating it to implement the label changes. The trial court credited those admissions, and we cannot substitute a contrary view for that of the court below.”
Ken’s claimed the fee award would encourage frivolous litigation, but the appeals court noted that Ken’s rejected several settlement offers, meaning the plaintiffs lawyers did not litigate the case without justification.