Froot Loops Not Made of Real Fruit: The Cereal Lawsuits

There are days every now and then when my actual legal work directly intersects with my blog work.  This was one of those days.

On May 21, a judge of the U.S. District Court for the Eastern District of California dismissed a complaint filed by a woman who said she had purchased “Cap’n Crunch with Crunch Berries” because she believed it contained real fruit. The plaintiff, Janine Sugawara, alleged that she had only recently learned to her dismay that said “berries” were in fact simply brightly-colored cereal balls, and that although the product did contain some strawberry fruit concentrate, it was not otherwise redeemed by fruit.  She sued, on behalf of herself and all similarly situated consumers, some of whom may believe that there are fields somewhere in our land thronged by crunchberry bushes.

According to the complaint, Sugawara and other consumers were misled not only by the use of the word “berries” in the name, but also by the front of the box, which features the product’s namesake, Cap’n Crunch, aggressively “thrusting a spoonful of ‘Crunchberries’ at the prospective buyer.” Plaintiff claimed that this message was reinforced by other marketing representing the product as a “combination of Crunch biscuits and colorful red, purple, teal and green berries.” Yet in actuality, the product contained “no berries of any kind.” Plaintiff brought claims for fraud, breach of warranty, and our notorious and ever-popular California Unfair Competition Law and Consumer Legal Remedies Act.

Under the UCL, courts have held that a plaintiff must show that a representation was “likely to deceive a reasonable consumer.”  [As a disclaimer, I should tell you that my firm represents defendants in UCL cases (among others).]  Actual fraud claims, and warranty claims, are harder to prove, so if Sugawara didn’t win on the UCL claims, she would probably not win anything at all.  And she did not:

In this case . . . while the challenged packaging contains the word “berries” it does so only in conjunction with the descriptive term “crunch.” This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a “crunchberry.” Furthermore, the “Crunchberries” depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains “sweetened corn & oat cereal” and that the cereal is “enlarged to show texture.” Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist. . . . So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.

The court, Judge Morrison England, Jr., also pointed out that the plaintiff acknowledged in her opposition to the motion to dismiss that “[c]lose inspection [of the box] reveals that Crunchberries . . . are not really berries.” Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap’n Crunch with Crunchberries in reliance on defendant’s fraud.

Finally, the court held that while a first-time loser on a motion to dismiss would typically get a chance to amend the complaint, this one wouldn’t:

In this case, . . . it is simply impossible for Plaintiff to file an amended complaint stating a claim based upon these facts. The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense.  The Court has no intention of allowing that to happen.

Case dismissed.

Judge England also noted another federal court had “previously rejected substantially similar claims directed against the packaging of Fruit [sic] Loops cereal, and brought by these same Plaintiff attorneys.”  He found that their attack on “Crunchberries” should fare no better than their prior claims that “Froot Loops” did not contain real froot.

UPDATE 1: Janine Sugawara’s Lawyer Chimes In

The tale of Janine Sugawara, the woman who sued the manufacturer of “Cap’n Crunch with Crunch Berries” for allegedly misleading her about the “berries,” has turned out to be extremely popular, bringing literally tens of thousands of people to this site over the past few days.

Unfortunately, one of them was her lawyer.

He thought I had been unfair to his client and asked me to clarify that she had not alleged that she personally believed “crunchberries” to be an actual kind of fruit.  This was a little puzzling to me, especially since the judge who dismissed her case seemed to have interpreted her claims the way I had (and I had quoted his opinion at length in my post).  The lawyer ultimately seemed to accept that this was understandable, but asked me to look at the pleadings and the motion for reconsideration they have filed (that’s the “update” – they are asking the judge to reconsider), in order to get a better sense of what the plaintiff was really arguing.  So I did that.

If you read her complaint(s) very closely, Ms. Sugawara may not have clearly said that she thought crunchberries were an actual fruit that exist in nature. But she did claim (and still does) that she was misled by the Crunchberries packaging, specifically (1) the word “berry” in the name of the product, (2) the picture of “pieces of cereal in bright fruit colors, shaped to resemble berries,” and (3) “the product’s namesake, ‘Cap’n Crunch,’ thrusting a spoonful of ‘Crunchberries’ at the prospective buyer.” See Motion for Reconsideration at p. 2. In the motion, she then says this: “There can be no other reason for the emphasis on berries than to lead consumers to believe the Product is made with real fruit content.” Id.

So if I understand correctly, she wasn’t saying she thought the cereal was actually made with a fruit called “crunchberries,” but rather that the word “berries” and the colorful berry-like objects on the box led her to believe that the “crunchberries” being thrust at her by the Cap’n contained some kind of real berries or real berry parts, when in fact they did not. (Actually, they did – at least “a touch of strawberry fruit concentrate” – though not very much. But let’s set that aside for now.)

There is a distinction there, but I’m not sure it’s one that makes much of a difference. Here’s where I think the problem is: how can a reasonable consumer claim to be misled by the word “berries” immediately following the word “crunch,” if that person does in fact know whether or not “crunchberries” really exist? Shouldn’t the use of a term that the person supposedly knows is not real be considered a reasonable signal that what’s inside the box might not be real, either?

I mean, if you read “The Hobbit,” I’m not sure you can complain later that you thought it was going to be a true story.

What is really through the looking glass here is that the woman’s lawyer does have a point. The allegations in this case were not too different from those in some other cases that have survived a motion to dismiss under California consumer protection laws. But it is fair to say that this may be because those laws encourage weak lawsuits, not because Janine Sugawara had a compelling case. I can understand that she probably didn’t like the implication that she isn’t bright enough to know there are no “crunchberries.” But the risk of that implication is probably inherent in putting your name on this kind of a complaint.

Remember, though, that a low-IQ plaintiff is not necessarily the inference that should be drawn.  Another possibility is that she is an entirely normal person who knew perfectly well that there are no “crunchberries,” and probably knew that “Cap’n Crunch” is not a fruit-laden cereal. Certainly, based on the Internet reaction, it does seem like most conscious human beings know both these things.  But if there is a law out there like California’s UCL, which is so broad that it has permitted lawsuits to go forward on even dumber facts than these (and trust me, it has), then it might be a rational and intelligent decision to try to get some money out of it.  But obviously, the more rational and intelligent a plaintiff is portrayed to be, the less plausible it is that he or she was really deceived by, let’s say, an aggressive spoon-wielding cartoon sailor. So there is an inherent tension here, of which UCL plaintiffs in borderline cases should be aware.

As for the motion for reconsideration, the argument there is basically that a judge should never, or almost never, grant a motion to dismiss by just looking at the case and deciding that no reasonable consumer would bring it. Plaintiff argues that whether a practice is “deceptive” is “largely a question of fact that should be determined only after the parties have had the opportunity to complete discovery and present evidence.” Id. at p. 8.  But the reality is that most cases settle if they get that far, because discovery and presentation of evidence are expensive. If a judge can’t toss a weak case early on, then plaintiffs in some really lame cases will get paid, and more lame cases will be filed.

That’s okay with me, because it gives me (and others) plenty to write about. But it does have costs. Anyway, I hope I’ve now clarified matters in the Crunchberry case, and also provided fair warning that those who file lawsuits with comedy potential should not be surprised if they end up on the Internet.

UPDATE 2: Roy Werbel Files Case Against Crunch Berries & Froot Loops

As I wrote, a number of lawsuits have been filed in California over the past couple of years by people who say they were deceived by certain representations on cereal boxes. Specifically, plaintiffs including Janine Sugawara, Mark McKinniss and Keith Videtto have alleged they were led to believe that “Crunch Berries” and/or “Froot Loops” are made with real fruit even though the “froot” mentioned in the products’ names is obviously fictional.

I still think this is like claiming emotional distress because you just learned “The Hobbit” isn’t a true story.

When Sugawara and Videtto were dismissed in May 2009, I thought the Cap’n might have gotten away with his heinous crimes (which according to Ms. Sugawara included lurking on grocery-store shelves and aggressively thrusting his Crunch Berries at unsuspecting consumers) but recently yet another person has surfaced, this time in San Francisco, who is willing to swear under oath that he was outsmarted by a cereal box. Or boxes, actually, because Roy Werbel filed cases against the makers of Crunch Berries and Froot Loops, apparently having been baffled by both.

Although he is represented by a different attorney, Werbel’s complaints are nearly identical to those in the earlier cases. For example: “[Plaintiff] was misled by the packaging and marketing, which by design and intent convey the message that the Product contains real, nutritious fruit,” alleges Werbel about a product named “Froot Loops.” The complaint continues, “[h]ad he known that ‘Froot Loops’ contained no fruit, he would not have purchased it.” This, of course, is pleaded as a class action, and Werbel alleges that the manufacturer’s practices with regard to Froot Loops “present a threat to members of the general public . . . .” Oh, the humanity.

By my count, these are the sixth and seventh lawsuits in California against the manufacturers of these two fictitiously named cereals. But hey – just because you are 0-5 and your arguments have been openly mocked by judges as well as a large percentage of the nation’s bloggers does not mean you shouldn’t give it one or two more tries. It does mean that, presumably, PepsiCo and Kellogg’s are highly unlikely to settle, and that in two or three months plaintiffs should be 0-7.

Attention, San Diego — these guys have now tried the Northern, Eastern and Central Districts of California, so I would expect cereal suits eight and nine to be filed in your neck of the woods sometime early next year.

UPDATE 3: Roy Werbel Sues Kellogg USA Again

Roy Werbel and his counsel are back with yet another attempt to call out Kellogg USA for its dastardly marketing of “Froot Loops” cereal. As you may recall, Werbel sued Kellogg in state court in San Francisco last October, alleging that the “Froot Loops” name had misled him by causing him to believe that “the product contains real, nutritious fruit.” That case was dismissed without prejudice in February, on the grounds that Werbel had not successfully served Kellogg. But Werbel sued Kellogg again on April 19, despite the fact that he faces much bigger problems with this lawsuit than just trying to get the defendant served correctly.

As at least two federal judges have previously held, use of the word “Froot” cannot reasonably be interpreted as suggesting the presence of real “fruit,” not least because “froot” is not real, and real fruit does not come in “loops.” See, e.g., Videtto v. Kellogg USA, 2009 WL 1439086 (E.D. Cal. 2009) (noting that the ring-shaped cereal “does not resemble any known fruit”); McKinnis v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. 2007) (making a similar observation).

Yes, you are reading correctly — there has been more than one similar “Froot Loops” case, and in fact there have been at least four such filings (counting Werbel’s twice). And for what may be obvious reasons, if this claim is being made there is quite likely to be a similar claim about “Crunch Berries” (emphasis added) somewhere nearby, as there was last summer (Sugawara v. PepsiCo) and again in the fall when Roy Werbel showed up in San Francisco alleging that both cereals had confused him. This new lawsuit would therefore be the eighth (to my knowledge) alleging some sort of deception stemming from fictional fruit.

[thanks to kevin underhill and zanastardust via cc]

Markus Prostidude: Male Prostitution at the Shady Lady Ranch

A brothel club in Nevada has broken the ground for males who want to work as prostitutes. The Shady Lady Ranch hired Nevada’s first-ever legal male prostate in the person of “Markus,” a fit and trim college dropout who briefly worked for porn movies in Los Angeles. He now holds the distinction of being the US’ first legal gigolo.

This is a result of the successful lobbying of the Shady Lady Ranch with the state and the entire US to legalize “prostidudes,” the term for Nevada’s breakthrough sex workers. Markus had a slow first week in his new job. But his first weekend is looking busy already as he rose to become the star of Nevada’s brothel industry.

Markus has also received criticism from female prostitutes for his unwillingness to service male customers. He also caused a ruckus when, in an interview with Details Magazine, he compared his role as the first prostidude to the role of civil rights activist Rosa Parks. Parks made history when she obstinately refused to give up her seat in the bus and move to a seat at the back. Markus has since been advised not to give interviews following this.

In addition to this, competitors of the Shady Lady Ranch have also expressed their disapproval of the hiring, arguing that this will open the industry to unwanted attention and scrutiny from state agencies and officials, and could potentially influence them into making prostitution illegal. There are also concerns about spreading sexually transmitted diseases, and the fact that it may not be possible to inspect female customers as thoroughly as males prior to sex.

At 25, Markus claims he is well-read college dropout from Alabama. He also said he had a stint with the U.S. Marines, before he drove to Los Angeles to make a career out of porn acting but ended up leaving after only two scenes. He failed to find another job, and found himself in a homeless shelter in Santa Monica, California.

Markus was handpicked by Shady Lady madam Bobbi Davis from 10 applicants shortlisted from hundreds of wannabes. Part of the reason why Markus was picked was because he was comfortable with heavy publicity.

In his Details interview, Markus added, “Whichever woman may walk through that door, she’s appreciated. A surrogate lover will love that woman for a whole hour, or however much we charge here, and she’ll leave feeling much more empowered and much more confident in herself.”

Jim Davis, wife of Bobbi Davis, related to The Associated Press that he and his wife realized that granting interviews with Markus could hurt the business. Bobbi himself had to beg off for an interview with the AP. The couple also declined to disclose Markus’ real name, which is typical protection for Nevada’s sex workers.

According to Davis, the Shady Lady Ranch has been getting favorable e-mails from female customers. He is positive that the male prostitute business will pick up after at least a month, considering that it took years for the 17-year-old brothel to stabilize its market for truckers, salesmen and other travelers.

He said, “This is a business—if Bobby didn’t thing she could make money she wouldn’t have done it. Why else would she start something like this? And if she knew what she was getting into, she probably wouldn’t have.”

The Shady Lady Ranch is housed in a compound painted in yellow in a 40-acre land that the Davises originally purchased for $11,000. It lies over 30 miles north of Beatty, a township along the road from Las Vegas to Reno, with a population of less than 1,200. The small brothel features a foyer that attempts to look French, with a pricing menu obviously displayed. The brothel charges $200 for 40 minutes and $300 for an hour.

Inside, there are three connected bedrooms, each decorated differently. One of the bedrooms features a heart-shaped bathtub while the other is Asian-inspired. A new addition in the compound is the detached cottage. It is more like a spacious studio, complete with a small kitchen, a bedroom with a wooden bathtub. The Davises spent $50,000 on the cottage.

This is the same cottage that Markus intends to use.

Competition can’t help but be pessimistic. Arie Mack Moore, owner of the Angel’s Ladies Brothel, located two miles north of Beatty, has augured that the move will not be successful, noting that it is impossible to have both male and female prostitutes housed in one building, or near each other.

Moore hastened to add that his business rose after Markus was hired. Feedback from customers has it that they are deliberately avoiding the Shady Lady Ranch because of Markus.

“Cuddles,” a 22-year-old female prostitute who works for Angel’s Ladies even remarked that Markus’ rejection of gay males has given the Shady Lady Ranch a sexist and discriminatory image. Angel’s Ladies’ female prostitutes also service women.

Cuddles said, “How can you just turn down services because of someone’s preferences? It comes with the territory. It comes with the business.”

To this reaction, the Davises response is that they are not looking at building a strong market among gay males. Markus has previously told Davis that he would not perform for gay males, but they are leaving him to decide if he wants to accept gay males as his customers later.

Davis also expressed his concern about gay homophobic sentiments that seem to run across the country. He calls it “horrible” that everybody is concerned about the possibility of two men having sex. “It’s happening every day in Las Vegas. Not going to happen here, but that’s all the big fear, is gay people.”

George Flint, a pioneer lobbyist working for the Nevada Brothel Owners Association, stated that legalizing male prostitution could give rise to real health concerns. In Nevada’s brothels, male clients are subjected to rigorous inspections and sanitation requirements before sexual intercourse. He can’t see how female customers can be subjected to the same standards.

In addition, there have also been concerns about the impact of the Shady Lady Range to the 24 other brothels in Nevada, six of which are in Nye County.

According to Flint, the brothel industry in Nevada currently amounts to $50 million to $75 million in terms of investment. The Davises’ move, procedures, demands and goals could potentially harm the multimillion dollar industry.

Flint added that the non-member Shady Lady Ranch could enjoy an initial influx of curious female customers, but he doesn’t see this succeeding for the long term.

Flint said Bobby Davis probably had a genuine belief that the idea could fly. “I’m wondering after four or five days and there haven’t been any takers, if she’s beginning to wonder if maybe she was wrong.” He added the move is always open to debate, but if it doesn’t bring any customers to the front door, the Davises would still not have proved anything at the end of the day.

The FBI Database: How the Government is Spying on You

The FBI is watching you.

Well, maybe not you in particular, but there’s a new technique they’re using that may have you concerned.

A brief description of the FBI

The FBI (Federal Bureau of Investigation (FBI) is the primary investigative arm of the United States Department of Justice (DOJ).  In basic terms, they are the lead agency in charge of law enforcement in the United States. Their motto is “Fidelity, Bravery, Integrity”.

The controversial government spying technique

There is a new Internet surveillance technique that the FBI is using to collect data on Americans. You might think they’re using this data collection in order to find out what a particular criminal suspect is doing and they are recording this for investigative and evidence purposes. The problem here is that FBI agents are collected data on the activities of thousands of users on the internet at one time. They are then placing these web histories of unsuspecting innocent people in huge government databases. These allegations have been collaborated by current and former government officials.

Types of data collected on citizens

The information they may have on you may include your name, email address and keywords you are searching for.

The FBI used to use the Carnivore surveillance system (renamed to DCS1000) but this new method of internet data collection is broader and more controversial than even that system.

This approach by the FBI is called the vacuum-cleaner approach by some. It is used when there’s a court order given to police to gather information on a suspect. However, if an ISP (Internet Service Provider, like AOL) can’t isolate that person due to technical issues, they use this type of shotgun-scanning system.

The FBI can then record this information, which will include all Internet traffic, at the ISP side. They can then set it up to collect data on web browsing habits, emails, or instant messaging.

The law school symposium that started the scandal

Stanford University law school had a symposium called “Beyond a Physical Conception of the 4th Amendment: Search & Seizure in the Digital Age”. Paul Ohm, a University of Colorado law professor who was a commenter at the symposium said that federal agents use this kind of “full-pipe recording” as a default method for surveillance.  “You collect wherever you can on the (network) segment,” Ohm said. “If it happens to be the segment that has a lot of IP addresses (Internet Protocol addresses; a computer’s unique numerical address), you don’t throw away the other IP addresses. You do that after the fact. You intercept first and you use whatever filtering, data mining to get at the information about the person you’re trying to monitor. The question that’s interesting…is whether this is illegal, whether it’s constitutional. Is Congress even aware they’re doing this?”

“What they’re doing is even worse than Carnivore,” said Kevin Bankston, a Electronic Frontier Foundation staff attorney. “What they’re doing is intercepting everyone and then choosing their targets.”

Carnivore version two

The federal bureau dropped the Carnivore project two years ago. The bureau then basically outsourced this by having the Internet Service Providers do the surveillance and then reimburse the companies for the costs of such an operation.

Federal law versus the FBI

Federal law states that the FBI must perform “minimization”. Minimization decrees that federal agents must “minimize the interception of communications not otherwise subject to interception” and keep the supervising judge informed. This gives some privacy by intending to limit eavesdropping on innocent conversations. The current rules allow FBI agents to listen to a phone call up to two minutes, with one minute in between the sessions. An interesting observation with this federal law is that it mentions real-time interception – meaning agents actively listening to calls at the moment they occur. The law does not authorize the collection of huge information databases on thousands of innocent people. The closest the law comes to mentioning such a practice is: “In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.”

Some government officials feel the language authorizes the database collection. “Take a look at the legislative history from the mid ’90s,” says DOJ assistant deputy chief Richard Downing. “It’s pretty clear from that that Congress very much intended it to apply to electronic types of wiretapping.”

The Electronic Frontier Foundation staff attorney disagrees with that assessment. Kevin Bankston feels the FBI is “collecting and apparently storing indefinitely the communications of thousands–if not hundreds of thousands – of innocent Americans in violation of the Wiretap Act and the 4th Amendment to the Constitution.”

There might be a middle ground in this debate. The director of the Electronic Privacy Information Center in Washington, D.C., Marc Rotenberg,  feels that a balanced way of conducting this is to require FBI agents to only come in contact with the information that is permitted by court order. “The obligation should be on both the (Internet provider) and the government to make sure that only the information responsive to the warrant is disclosed to the government,” says Rotenberg.

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