FORT LAUDERDALE, Fla. (Legal Newsline) - Armed with a ruling from more than two years ago, the maker of Mexican-style frozen treats is asking a judge to toss a class action that complains they were made in California.
Tropicale Foods filed its motion to dismiss Jan. 9 in Florida federal court, arguing plaintiff Hyron Figueredo, like others before him, failed to state a claim for damages. Figueredo's case claims customers are misled into paying more for ice cream and frozen fruit treats because the packaging on them suggests they were made in Mexico.
Tropicale makes frozen desserts under the Helados Mexico brand. The suit claims on the labeling, the defendant makes representations such as an iconic blue pushcart with bells and Spanish words such as "con crema" and "fresa" in larger font.
Figueredo claims consumers are falsely led to believe the product is made in Mexico when in fine print on the back and lower portion of the label, it states the product is made in Ontario, California. He further claims labeling of the product as "Helados Mexico" is not a "truthful representation of geographical origin."
Tropicale earned dismissal of a similar case in 2021 in Los Angeles federal court, when Judge Jesus Bernal wrote that reasonable consumers would not be misled.
Plaintiffs in that case referred to a cartoon woman and a cartoon cart they claimed was a "traditional Mexican ice cream cart" being pushed by a woman wearing a "traditional Mexican garment."
"Neither image evokes 'Mexico' in such a way that would deceive a reasonable consumer into the belief that the products are manufactured there," Bernal wrote.
"Neither the cartoon woman nor the cartoon cart includes colors that hint at an association with Mexico (such as the Mexican flag colors). But even if they did, they would remain simple embellishments that do not communicate to any reasonable consumer that the product is, in fact, made in Mexico."
Bernal let attorneys at Faruqi & Faruqi and lawyer Spencer Sheehan amend their complaint, but it was voluntarily dismissed weeks later.
Spencer Sheehan is the attorney in the Florida case. He has a history of angering judges and defendants with his theories of consumer deception.
"Plaintiff and his counsel should not be afforded a second bite at the apple in this case," the motion to dismiss says.