Dippin’ Chips Company Asks Court Not to Certify Class Action

Snack good company That’s How We Roll LLC told a Florida federal judge that he doesn’t think a class action lawsuit filed against the company alleging that it used the word “natural” even though it products contained artificial ingredients should be certified.

The snack company argues that the attorney that is representing plaintiff David Scarola is from a law firm “of a disbarred and repeatedly suspended Texas lawyer, Howard Rubinstein, who has papered California (and now Florida) with over 60 labeling lawsuits against food companies.”

In addition, the Dippin’ Chips company says in response that the class action lawsuit was “cut-and-pasted from other similar Rubinstein cases.”

The class action lawsuit filed by Scarola “alleges that the word ‘natural’ on a discontinued label misled him and a class of consumers into believing Dippin’ Chips contained no corn grown from ‘genetically modified’ seeds.”

However, That’s How We Roll, says that he “offers no definition of what he (or anyone else) believed ‘natural’ or genetically modified’ to mean, or how this reconciles with the Food and Drug Administration (FDA) findings that virtually all food is ‘genetically modified’ and that term is a misnomer.”

The snack company says that the class certification motion was filed the day after the Dippin’ Chips class action lawsuit was filed. But that the motion was filed “without submitting any evidence.”

According to the Dippin’ Chips maker, Scarola also doesn’t offer a way for “how alleged class members could be identified” nor does he present a “method for how damages could be proven,” and he doesn’t explain how the court is supposed to order “an injunction over products whose labels were long ago changed and which plaintiff admits he would never purchase again.”

In addition, Scarola is asking “the court not to rule on their own motion, and to allow them to use the in terrorem threat of expensive class discovery to coerce a large settlement payment.”

That’s How We Roll argues that the class should not be certified because it is not possible to determine who the class members are.

“Courts have repeatedly refused to certify nearly identical ‘natural’ consumer classes where, as here, there are no records of who brought the products,” the company explains.

Class certification should also be denied, it argues, because the “plaintiff and his lawyers are not adequate.”

As explained previously, they mention that the attorney representing Scarola is from a law firm of an attorney who was disbarred in Texas, and Scarola, the company claims, has not shown how he will be an adequate representative of the class, not has he “offered any evidence showing that his definition of ‘natural’ is the same as the definition shared by any of the alleged class.”

In addition, an injunction would be irrelevant, since the product labels have already been changed to remove the word “natural.”

The plaintiff is represented by Michael Thomas Fraser of The Law Offices of Howard W. Rubinstein PA.

Dippin’ Chips is represented by Edward Mullins and Regan Kruse of Astigarraga Davis Mullin & Grossman PA.

The Dippin’ Chips Natural Class Action Lawsuit is Scarola v. That’s How We Roll LLC, Case No. 9:14-cv-80983, in the U.S. District Court for the Southern District of Florida.