Gordon Rees Scully Mansukhani Livingston Partner Daniel J. DiMuro and Senior Counsel Cara A. Fialkoff obtained a complete dismissal of a putative class action lawsuit involving claims of deceptive marketing of a consumer food product, filed by a prolific consumer class action attorney, in the Supreme Court of the State of New York, New York County.
GRSM’s client is a fourth-generation, family-owned company based in California that sells premium dried fruit products nationwide. The plaintiff sued the client, claiming that the packaging of one of its products misrepresented the product’s volume in violation of New York General Business Law §§ 349 and 350. Even though the complaint included several photographs of the product’s packaging, which clearly and unambiguously stated on both the front and the back that the bag contains seven ounces of yogurt-covered raisins, the plaintiff alleged that consumers are improperly misled about the amount of raisins due to the existence and location of a transparent window on the packaging.
In the motion to dismiss, GRSM argued that the plaintiff’s allegations were both legally and factually unsupported. GRSM further argued that the packaging of the product clearly states the net weight in two separate locations; therefore, there is no false or misleading statement or advertisement by the client. Ultimately, GRSM claimed that no reasonable consumer could have been misled, and, for this reason, the plaintiff cannot establish a violation of §§ 349 or 350 due to the display of the weight of the product, the pliable nature of the packaging, and the location of the transparent window contained on the packaging.
In the July 24, 2025 decision, the court agreed with GRSM finding that: “plaintiffs fail to allege that the product’s packaging—a flexible plastic, re-sealable bag with non-functional slack fill, a transparent “window” through which consumers can see the yogurt-covered raisins within, and disclosure of the product weight on the front and back—is ‘likely to mislead a reasonable consumer acting reasonably under the circumstances.’”
The GRSM team was able to leverage this dismissal to exert pressure on the plaintiff’s attorney to resolve two other related putative class action lawsuits that he brought on behalf of four of his other clients against GRSM’s client. These lawsuits contained claims of violations of New York General Business Law §§ 349 and 350 related to the representations on the packaging of another dried fruit product, dried blueberries, as well as representations concerning the source of vanilla and yogurt utilized in the client’s vanilla yogurt-covered raisins product.
The GRSM attorneys were able to reach a very favorable global resolution on behalf of GRSM’s client. This outcome underscores the strength of our Class Action Defense practice and its proven ability to successfully navigate complex litigation matters on behalf of our clients.