A California federal court has dismissed a claim of negligent misrepresentation in a lawsuit alleging that Safeway Inc. underfilled its tuna cans by 10 to 20 percent, according to testing conducted by the U.S. National Oceanic and Atmospheric Administration. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered July 13, 2016). Details about the complaint appear in Issue 584 of this Update.

In a motion to dismiss, Safeway challenged the plaintiffs’ claims of unjust enrichment and negligent misrepresentation. The court dismissed arguments that unjust enrichment is not a cause of action in California, finding that the claim could be construed as a quasi-contract claim. Safeway also argued that the negligent misrepresentation claim was barred by the economic loss rule, which “requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” Because the plaintiffs did not allege any damages beyond economic loss, the court dismissed the claim.