Consumers Permitted to File Third Amended Complaint in Post Foods’ High-Sugar Cereal Class Action

A Sept. 29 order by Judge William H. Orrick of the Northern District of California keeps cereal buyers’ claims afloat in a class action lodged against Post Foods, LLC accusing the company of misrepresenting the health qualities of breakfast cereals it makes. The consumer case dates back to August 2016, when the lead plaintiff and then-putative class claimed that Post violated various California consumer protection and business laws.

According to the plaintiffs’ second amended complaint, filed in September 2017, Post “leverages a policy and practice of marketing high-sugar cereals with health and wellness claims,” in order to boost its profits, in spite of scientific evidence demonstrating that its products’ added sugar “greatly increases the risk of heart disease, diabetes, liver disease, and a wide variety of other chronic morbidity.” The plaintiffs sought restitution and an order enjoining Post from engaging its allegedly unlawful practices.

Since the filing of the second amended complaint, the parties have engaged in multiple rounds of dismissal briefing and are proceeding with discovery. In June, the defendant sought review of the court’s grant of class certification before the Ninth Circuit. The appellate court denied the petition for permission to appeal the following month. 

Most recently, the court ruled on the defendant’s motion for judgment on the pleadings, granting the defendant’s motion, but due to a recent Ninth Circuit decision, allowing the plaintiffs to amend. The court explained that the “[p]laintiffs raise a number of significant arguments demonstrating that their remedies at law would be inadequate with respect to at least some of the products/statements at issue, considering both the broad scope of the [California Unfair Competition Law’s] unfair prong and the four-year statute of limitations under the UCL as compared to the three-year statute of limitations under the [California Consumers Legal Remedies Act] and [False Advertising Law] (and as the warranty claims do not cover all of the products/statements remaining at issue in this case).”

In turn, the court held that it was acting within its discretion in granting the plaintiffs’ leave to amend “as they are able to plausibly allege that their entitlement to damages at law is inadequate to preserve their right to seek equitable restitution.”

The class is represented by the Law Office of Jack Fitzgerald, PC and Jackson & Foster, LLC and the defendant by Faegre Drinker Biddle & Reath LLP.