Fitzpatrick v. General Mills, Inc.

263 F.R.D. 687, 2010 U.S. Dist. LEXIS 6917, 2010 WL 146846
CourtDistrict Court, S.D. Florida
DecidedJanuary 11, 2010
DocketNo. 09-CV-60412
StatusPublished
Cited by21 cases

This text of 263 F.R.D. 687 (Fitzpatrick v. General Mills, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzpatrick v. General Mills, Inc., 263 F.R.D. 687, 2010 U.S. Dist. LEXIS 6917, 2010 WL 146846 (S.D. Fla. 2010).

Opinion

ORDER ON MOTION FOR CLASS CERTIFICATION

PAUL C. HUCK, District Judge.

This matter is before the Court on Plaintiff’s Motion for Class Certification (D.E.# 29), filed August 3, 2009. The Court has carefully considered the parties’ briefs, supporting affidavits and pertinent exhibits, the oral argument on December 14, 2009, and is otherwise fully advised. For the reasons stated below, certification is granted for Plaintiffs FDUTPA claim.

I. BACKGROUND

General Mills began advertising and selling Yo-Plus in July 2007. (Decl. of Benjamin D. Mand in Supp. of Opp’n to Pl.’s Mot. for Class Cert. (“Mand Deck”) ¶5.) Yo-Plus is ordinary yogurt1 supplemented with the “probiotic”2 bacterium Bifidobacterium animalis ssp. lactis (“Bb-12”), inulin,3 and vita[691]*691mins A and D. (Id.; Menon Decl. ¶ 5.) The mixture of Bb-12 and inulin in Yo-Plus— what General Mills has trademarked as “Optibalance” — allegedly provides habitual consumers with digestive health benefits, by aiding in the promotion of digestive health.4 (Menon Decl. ¶ 4 (“These additional ingredients ... aid in promoting digestive health.”).) General Mills does not add Bb-12 or inulin to its normal Yoplait brand yogurt. Thus, the digestive health benefits conferred by eating regular Yoplait yogurt are limited to those associated with traditional yogurt, which, according to General Mills, has only been shown to “[alleviate] the symptoms of lactose insensitivity in lactose-sensitive individuals.” (Id.) Yo-Plus, on the other hand, contains two ingredients not found in normal Yoplait yogurt; ingredients that, according to General Mills, “aid in promoting digestive health.” (Id. ¶¶ 5-6 (“these added ingredients ... promote digestive health when included in a yogurt product such as YoPlus”).) In short, General Mills contends that regularly eating Yo-Plus aids in the promotion of digestive health in ways that eating normal Yoplait yogurt does not. See Mand. Decl., Ex. 1 at 3 (“Yoplait recently launched Yo-Plus, which is a yogurt with digestive benefits.”). Yo-Plus competes with Dannon’s Aetivia brand of probiotic yogurt (“Aetivia”), which also allegedly provides special digestive health benefits, and is the leader in the probiotic yogurt market. (Mand Decl. ¶ 7.)

General Mills commenced a nationwide marketing campaign to introduce Yo-Plus to the United States market in July 2007. (Id. ¶ 5.) The campaign, which endeavored to promote Yo-Plus’ “key benefit of digestive health,” (Id., Ex. 1 at 20), consisted of television commercials, print promotional materials with coupons, in-store advertising, promotions to health professionals, internet advertising, as well as the claims made on Yo-Plus packaging. (See Mand. Decl. ¶¶ 8, 35-89.) Between July 2007 and March 2009, when this ease was filed, General Mills aired a series of eight different television commercials for Yo-Plus. (Id. ¶ 37.) One commercial introduces Yo-Plus as “a delicious new yogurt with special added cultures and fiber that naturally help regulate your digestion, which makes every day more positive.” (Blood Decl., Ex. 2, Plus Scale; Mand Deck, Ex. 14.) Another declares that “Yo-Plus’ unique blend of probiotic cultures plus fiber help your body regulate digestive health naturally.” (Blood Deck, Ex. 2, Direct Response Version One; Mand Deck, Ex. 19.) In addition to commercials, General Mills circulated print advertisements for Yo-Plus containing coupons. (Mand Deck ¶49.) Some of these print advertisements make challenges like “[t]ry it for ten days and see how different you feel” and “[l]ove it or it’s free.” (See, e.g., Mand Deck, Exs. 38, 42.) Many of the print advertisements prominently display the word “probiotics” and “digestive” and emphasize the unique flavors, functional aspects, and good taste of Yo-Plus, and the fact that Yo-Plus contains fiber. (See, e.g. id., Ex. 39.) Additionally, the YoPlus.com website states, inter alia, that “Yo-Plus has a probiotic culture called [Bb-12] ... clinically shown to support digestive health.” (Id., Ex. 59.) Further, Yo-Plus’ current packaging materials claim, for example, that “Yo-Plus contains special probiotic cultures and fiber to help naturally regulate your digestive health.” (Id., Ex. 6.) The inside of the original Yo-Plus packaging, which was revised in September 2008, states that one should “[e]at Yo-Plus every day to help maintain a balance of good-for-you bacteria in your digestive system and regulate digestive health.” (Id., Ex. 7; Id. ¶¶ 30-31.) The same packaging also explains that Optibalance is “a unique blend of beneficial bacteria (Bifidobacterium lactis BB-12) and a natural fiber (chicory root extract) that together help regulate digestive health” and “crowd out the unfriendly bacteria in your system and promote digestive health.” (Id., Ex. 7.)

In early 2008, Plaintiff was exposed to General Mills’ representations about Yo-Plus’ purported digestive health benefits via [692]*692television commercials, coupons, and seeing the product packaging in various stores. (Fitzpatrick Dep. 27-29.) At that time, Plaintiff was a semi-regular consumer of Activia, and had been since late November 2007. (Id. 28.) However, Plaintiff decided to try Yo-Plus because she thought its taste and other characteristics would surpass those of Activia, but still promote her digestive health in ways that normal yogurt would not. (Id. 27-28.) Over the next twelve months, Plaintiff bought and consumed approximately 24 four-pack cartons of Yo-Plus (two cartons per month), meaning that she ate an average of approximately two servings of Yo-Plus per week. (Id. 33:2-12.) Plaintiff does not remember if she consumed Yo-Plus daily for ten days. (Id. 208:3-8.) She claims that her digestive health was “the same before, during and after” eating Yo-Plus. (Id. 30:20-24.) She contends that General Mills’ digestive health benefit claim has allowed General Mills to sell Yo-Plus “for an average of 44% more than Yoplait Original brand yogurt.” (Pl.’s Mot. for Class Cert. (“PL’s Mot.”) at 9 n. 12.) Plaintiff alleges that eating Yo-Plus does not provide any digestive health benefits that cannot be obtained from eating normal yogurt and that General Mills’ claim to the contrary is unsubstantiated, false, misleading, and reasonably likely to deceive the public. (Comply 3.) Plaintiff seeks class certification under Rule 23 for her Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Fla. Stat. § 501.201 et seq.) claim and Florida common law breach of express warranty claim. The proposed class is “[a]ll persons who purchased YoPlus in the State of Florida.” (Comply 48.) Plaintiff also seeks appointment as class representative and her counsel as class counsel. (PL’s Mot. at 2.)

II. LEGAL STANDARD

To certify a class action, “the putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir.2004).

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Bluebook (online)
263 F.R.D. 687, 2010 U.S. Dist. LEXIS 6917, 2010 WL 146846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzpatrick-v-general-mills-inc-flsd-2010.