The day after a California court apparently refused to approve the settlement of class claims against the company that makes “All Natural Ben & Jerry’s Ice Cream,” an Illinois resident filed a putative class action against the company in a New Jersey federal court, alleging that the product contains many unnatural ingredients including those that are genetically modified. Tobin v. Conopco, Inc., No. 1:33-av-00001 (U.S. Dist. Ct., D.N.J., Newark Div., filed September 13, 2012).
The named plaintiff seeks to represent a nationwide class of individuals who purchased the products since 2006 relying on the allegedly false “all natural” label. According to the complaint, the Center for Science in the Public Interest (CSPI) tested the company’s products in 2010 and found that they contain “alkalized cocoa, corn syrup, partially hydrogenated soybean oil, or other ingredients that either don’t exist in nature or that have been chemically modified.”
CSPI’s letter to the manufacturer, claiming that the products were misbranded under the Federal Food, Drug, and Cosmetic Act, apparently compelled the companies to announce that the products would no longer be labeled “All Natural.” The complaint alleges that no voluntary refund program was offered to consumers who had purchased the mislabeled products. The plaintiff contends that she did not learn about the false labeling until she heard about a proposed class action lawsuit in California. She claims to have objected to the proposed settlement of that action, alleging that it was “collusive” and would have limited “consumers [sic] damages to $2 to $20 on a claims made basis, coupled with a non-aggressive notice campaign, such that the total claims were less than $100,000.” She further alleges that the settlement would have provided $7 million to the Unilever Foundation, “Defendant’s ‘charitable’ arm used to leverage the type ‘value-driven’ marketing discussed above,” and that counsel would have received $1.25 million.
Alleging an ascertainable monetary loss in excess of $5 million, the plaintiff brings two counts for violations of the New Jersey Consumer Fraud Act and breach of express written warranty under the Magnuson-Moss Warranty Act. She seeks disgorgement, restitution, costs, expenses, attorney’s fees, damages, and equitable relief.