Two California residents who filed a putative class action in a California federal court against, among others, a company that makes “Horizon,” “Silk,” “International Delight,” and “Land O’Lakes” brand products with labels including as an ingredient “evaporated cane juice” in alleged violation of Food and Drug Administration (FDA) requirements, have filed a complaint in intervention and motions to set aside a nationwide class settlement approved by a federal court in Florida. Singer v. WWF Operating Co., No. 13-21232 (U.S. Dist. Ct., S.D. Fla., filed July 12, 2013).

According to the California plaintiffs, the Florida action was filed on April 8, 2013, as a statewide putative class action and then amended nine days later for purposes of securing preliminary approval of a nationwide class settlement. The California plaintiffs filed their putative statewide class action on April 29 and allege that they had extensive communications with defendant’s counsel who requested from them a 30-day extension to answer the California complaint just four days before the fairness hearing before the Florida court pertaining to the nationwide class settlement. The Florida court apparently gave final approval to the settlement on June 28.

The California plaintiffs also allege that defendant’s counsel never advised them about the proposed nationwide class settlement, which included their claims, yet counsel made certain representations to the Florida court that the defendant had complied with Rule 23 notice requirements. They further allege that the defendant misrepresented to the Florida court that a settlement of $800,000—of which $272,500 would be distributed to the class—was fair and reasonable and that “issues of FDA compliance, preemption and primary jurisdiction minimized the likelihood of Plaintiff’s success,” despite California decisions allowing misbranding cases to proceed under California consumer law.

The complaint in intervention states, “This action resolved over the course of nine days, and only to Defendant’s benefit. The result was far from a settlement that protected the class and absent class members’ rights. Rather, it is merely an agreement Defendant used to rid itself of exorbitant liability for all of its misbranded products.” The California plaintiffs urge the court to set aside the settlement order under Rule 60(b)(4), arguing that it is “void for Defendant’s failure to provide the required Rule 23(c)(2) individual notice and due process rights to Intervenors, as well as for Defendant’s failure to provide timely and proper CAFA [Class Action Fairness Act] notice.”

As to the latter, CAFA requires that “final approval of a proposed settlement not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State official are served with the notice required under subsection (b).” Arkansas was allegedly served on May 16, and 90 days thereafter is August 14, according to the complaint.