SAN FRANCISCO (Legal Newsline) - Class action lawyers who sued AriZona over claims its fruit snacks were made with real fruit have seemingly given up on much of their case.
After San Francisco federal judge Jon Tigar told the firms Good Gustafson Aumais and The Keeton Firm they could re-plead claims he dismissed in a March 31 ruling, they did by filing an amended complaint.
But when AriZona and Hornell Brewing moved to dismiss some claims in the new version of the lawsuit, the plaintiffs firms failed to file an opposition, leading Tigar to ask why he shouldn't toss their case.
"Due to error, Plaintiff failed to file a statement of nonopposition as to certain issues raised in the motion," the firms wrote June 29. "Plaintiff respectfully requests leave of the Court to file a nonopposition to the motion as the motion relates to the issues raised in the motion."
A day later, Tigar tossed claims for punitive damages, injunctive relief and fraudulent representations based on website and social media statements.
His March 31 ruling kept alive claims for breach of warranty, asking the firms to re-work their claims to allege there was a promise that the fruit snacks were made with some of the fruits depicted on the package.
Plaintiff Marcia Campbell says the snacks contain no real fruit, including none of the fruit depicted on the packaging. The first ingredient listed on the back label is pear juice from fruit juice concentrate, while the front label contains pictures of strawberries and other fruits.
Tigar also could not definitively conclude a "reasonable consumer" would not be misled by the packaging, refusing to dismiss the suit on that standard.
"When juxtaposed against a backdrop of lemons, strawberries, peaches and mangoes, the statements 'made with real fruit' and 'fruit is our first ingredient' would communicate to a reasonable consumer that some nonzero amount of the depicted fruits is actually present..." the decision says.
"But it is undisputed that the products contain none of these fruits."