A new putative consumer class action claiming damages in excess of $5,000,000 was filed earlier this month in the Northern District of California against Goya Foods, Inc. (“Goya”). The plaintiff, a purchaser of Goya octopus products from the website Amazon.com, alleges that Goya tricked consumers into purchasing its products by labeling them as octopus when in reality, the products contained jumbo squid. The plaintiff alleges that independent DNA testing showed that Goya’s products were in fact jumbo squid, which is significantly cheaper and of lower quality than octopus.

The plaintiff alleges that the cost of octopus has increased in recent years due to diminishing octopus populations as a result of over-fishing. Octopus populations had allegedly fallen by 45% in 2014, causing a sharp rise in the price of octopus. While octopus populations have been suffering, jumbo squid populations have been thriving, potentially due to squid’s ability to adapt to the changing ocean conditions caused by global warming. As a result, the cost of octopus has risen dramatically compared to the cost of squid.

There are four Goya products at issue in this litigation: (1) Octopus in Garlic; (2) Octopus in Olive Oil; (3) Octopus in Pickled Sauce (Marinara); and (4) Octopus in Hot Sauce. The word “Octopus” is front and center on each box, and there is no indication that the products contain any form of squid, the plaintiff alleges.

Other than the fact that octopus and squid have similar textures and are both cephalopods (i.e., they have bilateral body symmetry, a prominent head, and a set of tentacles), they are completely different species. As a result of Goya’s actions, the plaintiff alleges that he and other purchaser of Goya octopus products would not have purchased those products on the same terms if they had known that the products really contained squid.

The plaintiff claims that Goya has intentionally replaced the octopus with squid as a cost cutting measure. The plaintiff asserts a host of claims on behalf of himself and a putative nationwide class of potentially millions of purchasers of Goya octopus products. Those claims include breach of express warranty, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, unjust enrichment, violation of California’s Consumer Legal Remedies Act (“CLRA”), violation of California’s Unfair Competition Law (“UCL”), violation of California’s False Advertising Law (“FAL”), negligent misrepresentation, and fraud.

Both the CLRA and UCL are powerful tools for California class action plaintiffs. The UCL forbids “unfair, unlawful and fraudulent” conduct in connection with a broad array of business activities. Cal. Bus. & Prof. Code § 17200.  And the CLRA applies to “consumer” transactions involving the “sale or lease of goods or services,” and prohibits 24 separate business acts or practices.  Cal. Civ. Code §§ 1761, 1770. The sweeping liability standards of the UCL and CLRA may present a challenge for Goya as it decides whether to answer the complaint or move to dismiss in early June.