5/1/2023 0 Comments Food state class actioThe magistrate judge recommended denying the motion on the ground that proving each customer suffered an economic loss would require highly individualized, trade-by-trade inquiries, and so Rule 23(b)(3) was not met. Plaintiff moved to certify a customer class. § 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. ![]() Plaintiff, a customer, claimed that, by this conduct, TD Ameritrade, its parent, and its CEO violated Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. As a result, it allegedly left orders unfilled, or filled orders at a sub-optimal price or in a manner that adversely affected performance after execution. Securities brokers have a duty of “best execution,” requiring their “reasonable efforts to maximize the economic benefit to the client in each transaction.” Defendant TD Ameritrade, Inc.’s (“TD Ameritrade”) order routing practices allegedly violated this duty by systematically sending customer orders to trading venues that paid TD Ameritrade the most money, rather than to venues that provided the best economic outcome for its customers. The decision is significant because the Eighth Circuit did not view recent technological advances in simplifying the analysis of voluminous, complex data as necessarily altering the nature of what is an inherently individualized analysis for Rule 23(b)(3) purposes. 23, 2021), the United States Court of Appeals for the Eighth Circuit reversed a district court’s order certifying a class of customers who had used the defendant’s brokerage services to trade securities and were allegedly injured by defendant’s undisclosed “order routing practices.” The Eighth Circuit determined that plaintiff’s expert’s proposed algorithm could not overcome the complex, trade-by-trade inquiry needed to adjudicate each class member’s economic loss, and so failed to satisfy Federal Rule of Civil Procedure 23(b)(3)’s requirement that common issues of law or fact predominate of issues affecting individual class members. In Boswell, the court dismissed plaintiff’s claims that she was misled by the packaging on Entenmann’s “All Butter Loaf Cake.” The district court noted that this was “the latest in a long string of putative class actions brought by the same lawyer” and identified six prior cases that had been dismissed.īy John Landry and David Berger on Posted in Securities Pepperidge Farm, Inc., chucked flavor claims on the basis that a reasonable consumer could not be misled by the product labels. Two back-to-back decisions from the Southern District of New York, Boswell v. All of this litigation begs the question – will the gluttonous plaintiff’s class action counsel ever be satiated? It seems that, by and large, the federal courts are not swallowing the case theme. Vanilla, lime, butter, milk, strawberry, smoked, chocolate and fudge flavors have all been dragged into court. ![]() ![]() ![]() Manufacturers of plant and dairy milks, yogurts, ice creams, creamers, cereals, chips, cakes, cookies and brownies have faced such claims. The complaints allege that packaging on food and beverage items is false and misleading because the challenged products do not contain certain ingredients or because the flavor is achieved by using ingredients other than or in addition to what consumers “expect” to be the source of the flavor. While some lawyers appear to have an insatiable appetite for filing these suits, courts appear to find them mostly unpalatable. Since 2019, a staggering number of “flavor” lawsuits have been filed, with dozens of putative class actions filed in a single month and more than 100 in 2021 alone. By Robert Guite and Abby Meyer on NovemPosted in Food/Beverage
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