A federal court in New Jersey has determined that Pennsylvania and California residents may pursue claims against New Jersey-based Nestlé Healthcare Nutrition, Inc. in consolidated putative class actions alleging that the company’s BOOST Kid Essentials® beverage did not provide its advertised health benefits for children. Scheuerman v. Nestlé Healthcare Nutrition, Inc., No. 10-3684; Johnson v. Nestlé Healthcare Nutrition, Inc., No. 10-5628 (U.S. Dist. Ct., D.N.J., decided August 1, 2011) (unpublished). So ruling, the court granted in part and denied in part Nestlé’s motion to dismiss.
While the court ruled that the California plaintiff may not bring a cause of action under the New Jersey Consumer Fraud Act (NJCFA), because the defendant’s presence in the jurisdiction alone is insufficient under conflictof- law rules to apply the state’s law, the court did give the California plaintiff the opportunity to amend her complaint to allege consumer fraud under California law. Because the Pennsylvania plaintiff alleged that he sometimes purchased the product in New Jersey and because he sufficiently pleaded the elements of his NJCFA claims, the court allowed him to pursue those claims. The court also determined that the plaintiffs sufficiently pleaded breach of warranty to proceed with that claim. Nestlé apparently failed to adequately address the negligent misrepresentation claims in its motion, so the court allowed that claim to proceed as well, subject to “an appropriately timed summary judgment motion.”