Zero Impact Class Action to Stay in Federal Court

(CN) - A class action accusing the maker of Zero Impact protein bars of grossly understating the product's impact on blood sugar belongs in federal court, the 9th Circuit ruled Tuesday.

A three-judge panel in Pasadena, Calif., overturned a federal judge's decision to send the case back to Los Angeles Superior Court.

In its notice of removal to federal court, bar maker Vital Pharmaceuticals submitted two declarations supporting its claim that the amount in controversy exceeds $5 million, a requirement for federal jurisdiction under the Class Action Fairness Act (CAFA).

The first declaration was from its lawyer, asserting "legal certainty" that the amount in controversy exceeds $5 million, and the second from its controller, claiming nationwide sales of the bars for the last four years topped $5 million.

The district court, unconvinced by what it viewed as vague assertions, sent the case back to state court.

But the 9th Circuit said the controller's declaration alone "was sufficient to establish that CAFA's $5 million amount in controversy requirement is met in this case."

In an unsigned opinion, it reversed and remanded with instructions for the district court to exercise jurisdiction.

Judge Raymond Fisher dissented in part, saying it wasn't clear that the district court had considered the controller's declaration.

"I do not believe that the declaration is sufficient as a matter of law to establish that Vital met its burden of proving the amount in controversy by a preponderance of the evidence," Fisher added.

The underlying class action claimed that the Zero Impact bars were mislabeled as having little to no impact on blood sugar when they "actually contained large amounts of undisclosed sugars and carbohydrates, making them have a substantial impact on blood sugar and insulin."

The "aggregate damages ... are likely in the millions of dollars," according to the lawsuit, and there are likely "tens of thousands" of class members.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit