Sugar In Lollipops? Of Course, Says Candy Maker Fighting ‘Nonsensical’ Lawsuit
By: John O’Brien and John Breslin
A woman who says she was tricked into thinking lollipops are healthy will be able to continue her lawsuit in a California court, as the defendant that has labeled the case as “nonsensical” attacks the class action lawyers who filed it.
Connecticut-based YummyEarth Inc., as part of its November motion to dismiss, argued that the complaint is part of a “larger misuse of the court system by the plaintiff’s lawyer.” Plaintiff Summer Sandoval is represented by Ryan M. Ferrell of Apex Trial Law.
Ferrell was named in a 2015 racketeering lawsuit that accused him and his firm at the time, Newport Trial Group, of using for-hire plaintiffs in class action lawsuits. That case continues, with Newport Trial Group having filed a motion to dismiss in January.
“Plaintiff’s lawyer is currently the subject of a RICO suit for, among other things, paying college students to serve as plaintiffs,” attorneys for YummyEarth argue.
“Plaintiff’s lawyer filed this case after YummyEarth refused to make a $25,000 payment to his law firm.”
The main allegation is that YummyEarth, which sells bags of lollipops for $8.99, did not use the term “sugar” on its list of ingredients, instead using “evaporated cane juice,” which the Food and Drug Administration has determined is sugar.
The lawsuit and YummyEarth’s defense is reminiscent of a case against jelly bean-maker Jelly Belly, which was sued over its Sport Beans. Apex Trial Law also filed that case in San Bernardino Superior Court, and it was recently settled in federal court.
Sandoval claims in her suit that she was misled into believing the candy did not contain sugar. YummyEarth says she saw the term “evaporated cane juice” on an outdated label.
“The allegation is frivolous and nonsensical in itself, but plaintiff then goes further to admit in her complaint that she only purchased the candy after defendant refused to pay her lawyer’s extortionate pre-suit demand,” the defendant argues.
“Plaintiff contends that she bought YummyEarth’s fantastic lollipops because she read the term ‘evaporated cane juice’ in the ingredients, that this tricked her into believing that the lollipops somehow did not contain sugar and that, had she known that the candy contained sugar, she would not have purchased it or would have somehow paid less for it. Of course, the product listed the correct amount of ‘sugars’ on its label.”
U.S. District Judge Terry Hatter on April 9 sent the case back to San Bernardino Superior Court because YummyEarth can’t show the amount in controversy is more than a $75,000 threshold for federal jurisdiction. The company did not utilize the Class Action Fairness Act of 2005 when it removed the case to federal court.
“YummyEarth has not substantiated that Sandoval, or any other individual putative class members, purchased over 8,000 bags of lollipops,” Hatter wrote.
“YummyEarth cannot aggregate the putative monetary relief claims to meet the threshold because it did not remove this action pursuant to (CAFA), and none of the exceptions to aggregating putative class claims are applicable, here.”
Sandoval and Ferrell moved for class certification, but a ruling never came before the case was remanded.
Ferrell defended his reputation in his opposition to YummyEarth’s motion to dismiss, writing that the plaintiff in the RICO suit against him amended its complaint after discovery to remove allegations he paid any client to serve as a class action plaintiff.
He also says the plaintiff has been sanctioned several times in that case.
“(T)he lawsuit, like any other lawsuit, is just allegations at this time, and cannot nor should it be considered factually correct,” Ferrell and Thomas Kohler wrote.
“Similar to the argument that (YummyEarth) makes about the timing of (Sandoval’s) purchase, Defendant’s inclusion of unproven allegations is also simply sharp practice not becoming of a California attorney.”