California Bumble Bee|Class Action Remanded

     SAN JOSE (CN) – A federal judge refused to dismiss a class action accusing Bumble Bee Foods of misrepresenting tuna and related products as “rich in natural Omega-3,” but remanded the lawsuit to Superior Court.
     Lead plaintiff Tricia Ogden sued San Diego-based Bumble Bee in 2012.
     She claimed the company’s seafood products, labeled “rich in natural Omega-3” or “excellent source Omega-3,” were misbranded.
     Bumble Bee sells canned and pouched tuna, salmon, shrimp, crabs, clams, oysters, sardines, mackerel, and chicken.
     Several of the products sported a logo or seal with the allegedly bogus claims, Ogden said, which conveyed to consumers “the net impression that a food makes only positive contributions to a diet, or does not contain any nutrients at levels that raise the risk of a diet-related disease or health-related condition.”
     Companies that sold similar products with unauthorized Omega-3 claims were found to be in violation of labeling law by the Food and Drug Administration, Ogden said.
     Bumble Bee specifically, she added, made food label claims that were prohibited by federal and California law.
     Ogden sought class certification in May 2013, and Bumble Bee moved for summary judgment in August 2013.
     In January, the San Jose Federal Court granted in part and denied in part Bumble Bee’s motion.
     The court granted summary judgment on Ogden’s claims for damages, finding that she failed to provide sufficient evidence that she was entitled to restitution under the Unfair Competition Law, Fair Advertising Law and Consumer Legal Remedies Act, or disgorgement under the unfair competition and fair advertising laws.
     The court also granted summary judgment on Ogden’s sole federal claim, holding that it “fail[ed] as a matter of law.”
     But the court ruled that Ogden was entitled to pursue injunctive relief.
     Ogden subsequently withdrew her motion for class certification, and both parties stipulated to a voluntary dismissal with prejudice earlier this year.
     In April, six weeks after the litigation had ended, three plaintiffs filed the instant class action lawsuit in Santa Clara County Superior Court.
     The putative class was limited to California consumers. Bumble Bee sought to remove the case to Federal Court in June.
     Bumble Bee filed a motion to dismiss or stay the case the same month, which the plaintiffs opposed in August.
     U.S. District Judge Lucy on Oct. 16 granted the plaintiff class’s motion to remand the case to Santa Clara County and denied as moot Bumble Bee’s motion to dismiss or stay the lawsuit.
     Koh said Bumble Bee failed to show that the Federal Court had subject matter jurisdiction.
     “Plaintiffs argue in their motion to remand that removal was improper because the court lacks subject matter jurisdiction over their lawsuit,” Koh wrote. “According to plaintiffs, they have ‘pleaded no claims under federal law, and plaintiffs’ proposed class consists of California residents only.'”
     Koh cited the ruling in Merrell Dow Pharmaceuticals Inc. v. Thompson, (1986), in which the U.S. Supreme Court found no federal question jurisdiction in a lawsuit over the drug Bendectin, which allegedly caused birth defects.
     “Bumble Bee offers no reason why the issue of FDCA misbranding is more ‘substantial’ here than it was in Merrell Dow,” Koh wrote.
     “Not only are the federal issues insufficiently substantial under Merrell Dow, but exercising jurisdiction over this California class action would circumvent the FDCA’s [Federal Food, Drug, and Cosmetic Act] lack of a private cause of action. Although the court recognizes that it has already evaluated some of the substantive state law issues involved in this case, the court did so only because it had jurisdiction under CAFA [Class Action Fairness Act].”
     The 9-page ruling adds: “With no federal statutory hook to maintain jurisdiction here, the court finds that the ‘congressionally approved balance of federal and state judicial responsibilities’ tips in favor of remanding.” (Citations omitted.)
     Koh also denied plaintiffs’ request for attorney’s fees or costs, citing 28 U.S.C. § 1447(c).
     “‘(A)n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal,'” Koh wrote. “The Supreme Court has explained that ‘courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.'”
     Bumble Bee, Koh said, “had an objectively reasonable basis for seeking removal.”

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