I tend to mock plaintiffs who sue food and beverage makers for false labeling (e.g. There's no fruit in Froot Loops, get over it) but I did feel genuine sympathy for a would-be class action against Diet Pepsi.

As a Diet Coke gal for many years, I totally understand the plaintiffs' sense of betrayal when they realized that drinking diet soda will not magically make you skinny—and may actually do the opposite.

“Because of the product's use of the term 'diet,' and its lack of calories, consumers reasonably believe that drinking Diet Pepsi will assist in weight loss or management,” states the complaint, which was filed in Manhattan federal court last year by The Law Office of Jack Fitzgerald and other plaintiffs firms.

“Scientific evidence demonstrates this is wrong because nonnutritive sweeteners like aspartame acesulfame-potassium and sucralose interfere with the body's ability to properly metabolize calories, leading to weight gain and increased risk of metabolic disease, diabetes, and cardiovascular disease,” the suit continues. “Accordingly, Pepsi's marketing Diet Pepsi as 'diet' is false, misleading, and unlawful.”

They do have a point.

A more accurate name for the drink might be “Fake-Sweet Chemical Pepsi That Will Mess With Your Body.” But I digress.

Last week, a team from Gibson, Dunn & Crutcher made short work of the suit. Firm lawyers Drew Tulumello, Chantale Fiebig, Arianna Scavetti, Jessica Wagner and David Casazza convinced U.S. District Judge Paul A. Engelmayer to dismiss the case.

The complaint is “based on a strained and artificial interpretation of the phrase 'Diet Pepsi' that no reasonable consumer would adopt,” Engelmayer found. “'Diet' immediately precedes 'Pepsi,' and thereby connotes a relative health claim—that Diet Pepsi assists in weight management relative to regular Pepsi.”

The judge continued, “Second, even if the word 'diet' may sometimes identify weight-loss products (as in 'diet pills' or other products available in a pharmaceutical aisle), in the context of soft drinks, the term unambiguously signals reduced calorie content relative to the non-diet version of the drink in question.”

Engelmayer's decision comes on the heels of one by U.S. District Judge William Alsup in San Francisco. On Feb. 27, Alsup tossed a similar suit against Diet Coke, also filed by Fitzgerald—a consumer class action specialist who got his start as an associate at Baker & Hostetler and Mayer Brown.

“[A] reasonable consumer would simply not look at the brand name Diet Coke and assume that consuming it, absent any lifestyle change, would lead to weight loss,” Alsup wrote in a decision that is now on appeal before the U.S. Court of Appeals for the Ninth Circuit.

Alsup also set a high bar for the plaintiff's claims that consuming diet drinks lead to weight gain. While the “studies may show a strong correlation between artificial sweeteners and weight gain, and they may raise legitimate concerns over the health value of replacing sweetened beverages with artificially sweetened ones. But [the plaintiff's] studies do not show that Diet Coke causes weight gain.”

But … but … even President Trump once observed, “I have never seen a thin person drinking Diet Coke.” Isn't that proof enough? No?

The Coca Cola Co. was represented by Steven A. Zalesin and Catherine A. Williams of Patterson Belknap Webb & Tyler and Tammy B. Webb of Shook Hardy & Bacon.

Meanwhile, a team from Baker Botts is defending Diet Dr. Pepper in both New York and San Francisco federal courts. According to docket reports, the defense team includes Douglas Henkin, Stuart C. Plunkett, Ariel D. House, Van H. Beckwith, Monica R. Hughes, Monica Smith and Jessica E. Underwood.

In New York, Judge George B. Daniels on April 18 dismissed the Diet Dr. Pepper complaint and denied leave to refile. That decision is now on appeal before the Second Circuit.

In San Francisco, U.S. District Judge William Orrick in San Francisco is currently reviewing the third amended complaint over the soda.

Orrick rejected the second version on March 30, writing, that it “is not plausible that a reasonable consumer would believe that drinking Diet Dr. Pepper would assist in weight loss, beyond the fact that it has no calories.”

 

That Was Fast

No sooner had the U.S. Supreme Court ruled that employment arbitration agreements with class action waivers are valid than Ogletree Deakins announced the launch of its DIY arbitration agreement—“an automated tool that quickly prepares custom arbitration agreements with class action waivers.”

According to the firm, “Ogletree Deakins DIY Arbitration Agreements walks employers through a series of questions and requests for relevant data and automatically generates an agreement based on the employer's responses.”

I definitely get how that might be appealing to employers eager to insulate themselves against class actions. But it also has the feel of hastening your own obsolescence.

As in, if there are far fewer employment class actions (and who are we kidding, no one is going to arbitrate an individual FLSA claim), there will be less work for employment lawyers. And with a DIY arbitration agreement, lawyers get cut out that much sooner.

 

What I'm Reading

Gorsuch Renounces Ginsburg's 'Apocalyptic' Warnings in Landmark Labor Case

Although the two justices may have little in common ideologically, their approaches to deciding the issue were similar: direct, thorough in engaging each side's arguments, and easily followed.

In Former Engineer's Harassment Suit, Uber's Decision to Scrap Arbitration Gets Its First Test

A former Latina engineer sued the company claiming she faced discrimination based on her gender, ethnicity and disability.

Proposed Class Action Over Exploding Samsung Phones Won't Flame Out in Arbitration

This one is a surprise to me: The judge found the arbitration agreement and opt-out language were too inconspicuously buried in the phone's informational manual to be enforceable.

$30M Accord Reached With AT&T, Others Over Technician's Fall From Cell Tower

He fell 50 feet when a ladder wrung dislodged.

Court OKs Dismissal of Suit Over Viacom Payments to Sumner Redstone

It's OK to pay Sumner Redstone $13 million for doing nothing.

Racist Rant, Other Events Show Social Media's Power Over Lawyers

Be careful out there, people.

Jenner & Block Questions Alleged Monitoring of Guantánamo Defense Lawyers

Two civilian lawyers resigned from representing the alleged bombing mastermind of the USS Cole warship after discovering a hidden microphone in their meeting room. The question now: Can a military judge force them to stay on the case?

Rosenstein Extols DOJ's Embrace of Ethics as Trump Derides Russia 'Witch Hunt'

Sometimes I feel like Rod Rosenstein is the only thing standing between us and chaos.