Relying on the first-to-file rule, a federal court in New Jersey has transferred a putative class action alleging false advertising for a Breyers ice cream product to a federal court in California that is considering similar litigation. Catanese v. Unilever d/b/a/ Breyers, No. 10-5755 (U.S. Dist. Ct., D.N.J., decided March 28, 2011). The plaintiffs in a number of cases have alleged that ice cream containing alkalized cocoa cannot be advertised as “all natural” because alkalized cocoa powder is chemically altered. The first such case was filed in a California federal court against Ben & Jerry’s, a Unilever company, in September 2010. A nearly identical action involving Breyers products was also filed in a California federal court three days before the Catanese plaintiffs filed their complaint. According to the court, “Conducting this class action in one forum will benefit both the public and private interests by avoiding duplicative litigation.”
Information about a similar case filed in California in October 2010 appears in Issue 370 of this Update. According to the district court that transferred the Catanese claims, the October 2010 lawsuit was voluntarily dismissed and refiled with a different plaintiff in a different California federal court shortly thereafter.