We’re thinking again about Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Iqbal v. Ashcroft, 129 S. Ct. 1937 (2009).

Today’s thought was prompted by the recent decision granting without prejudice a motion to dismiss in Wright v. General Mills, No. 08cv1532 L(NLS), 2009 U.S. Dist. LEXIS 90576 (S.D.Cal. Sept. 30, 2009). Russell Jackson already described this case over at his blog, so we’ll describe the case only in a nutshell before getting to our perspective.

Here’s the nutshell: Plaintiff filed a putative class action complaint accusing General Mills of falsely advertising “Nature Valley” granola bars and trail mix as “100% Natural” even though the products contained high fructose corn syrup.

(We were curious, and so did our usual two-bit research to find out precisely what the heck “high fructose corn syrup” is. Wikipedia tells us that the stuff “is produced by milling corn to produce corn starch, then processing that corn starch to yield corn syrup, which is almost entirely glucose, and then adding enzymes that change the glucose into fructose.” Wikipedia also give a little insight into the litigation: “Some allege that HFCS is in itself more detrimental to health than table sugar (sucrose); others claim that the low cost of HFCS encourages over consumption of sugars. The Corn Refiners Association has launched an aggressive advertising campaign to counter these criticisms, claiming that high-fructose corn syrup ‘is natural’ and ‘has the same natural sweeteners as table sugar’. Both sides point to studies in peer reviewed journals that allegedly support their point of view.”)

Anyway, General Mills asserted, and lost, arguments that the Nutrition Labeling and Education Act preempted plaintiff’s claims — either by occupying the field of food labeling or through implied conflict preemption. Id. at *4-*8. GM also lost on a primary jurisdiction defense. Id. at *8-*9.

But then Twombly and Iqbal came to the rescue. Plaintiff pleaded her economic injury in one sentence: “As a direct result of its misleading . . . advertising . . . , Defendant caused Plaintiff and other members of the Class to purchase, purchase more of, or pay more for, these Nature Valley products.” Id. at *14. The Court was not impressed: “This sparse allegation of injury-in-fact does not meet the Twombly and Iqbal pleading standard. . . . ‘[A] formulaic recitation of the elements of a cause of action will not do’ in order to ‘raise a right to relief above the speculative level.'” Id. at *15, quoting Twombly.

What do you think? Is this a fair way to weed out bogus claims, or is this unfairly slamming the courthouse doors on worthy plaintiffs?

You know what we think: Long live Twombly!

The evidence supporting plaintiff’s claims, if it exists, is available to plaintiffs: If people are really buying “Nature Valley” products because the ads call them “100% Natural,” rather than because, say, people like the taste of the products, then that’s easy enough to determine. Do a survey; ask people why they bought the stuff. If a big percentage of the public is saying, “I understand the difference between high fructose corn syrup, cane sugar, beet sugar, and honey, and I never would have bought (or paid as much for) Nature Valley granola if I’d only known the actual sweetener,” plaintiff might have a point.

But we doubt it.

We’ve just spent too much of our lives deposing class representatives who claim to have been misled into overpaying for products but, when asked, didn’t know squat.

For example:

Plaintiff: “I never would have paid full price for those tires if I only knew they were prone to fail!”


“Let’s talk about non-defective tires. How many miles do they last on average? Out of every 100,000 manufactured, how many have flats?

No clue, huh?

Okay, let’s talk about the supposedly defective tires: How many miles do they last on average? Out of every 100,000 manufactured, how many have flats?

No clue about that, either, huh?

If you have no clue what you expected when you were buying the tires, or what you received when you paid for them, how do you know you would have paid less if you’d only ‘known they were prone to fail’?”

We suspect that a little probing would yield the same result for General Mills:

“What is it you don’t want to eat? Fructose? Or is it glucose? Or maybe sucrose? Do the percentages matter?

Is corn okay? Suppose it’s turned into syrup? Suppose naturally-occurring enzymes are added to the syrup?

Do you eat other products that contain high fructose corn syrup? Do you pay less for them because of the way they’re sweetened?”

If the claims asserted in Wright have any potential merit, the plaintiffs should do a little homework and then plead something that makes the claim plausible.

But if the claims could be pled with some meaningful detail, but have not been, then future courts should do the Wright thing.