Littlejohn v. Ferrara Candy Co.

Docket number: 17-cv-1530 (S.D. Cal.), 19-55805 (Ninth Circuit)

The Hamilton Lincoln Law Institute represents an objector to the settlement of Littlejohn v. Ferrara Candy Co., which pays attorneys $600 to $1170/hour, but provides absolutely nothing to class members in exchange for waiving their monetary claims. The district court approved the settlement over the objection, so HamLink is appealing the case to the Ninth Circuit.

Case history

The underlying lawsuit alleged that SweeTARTs falsely claimed to contain “no artificial flavors” because they contain an artificial form of malic acid: DL-malic acid (synthesized from petrochemicals) rather than L-malic acid (the isomer that naturally occurs in fruits such as apples). The complaint—one of over 15 “malic acid” suits filed by the same attorneys—sought damages on behalf of allegedly misled consumers and an injunction preventing further deception.

The parties settled before defendant Ferrara Candy Co. answered the complaint. Ferrara denied wrongdoing and agreed not to comment on the lawsuit, and the settlement does not say whether or not the plaintiff’s allegation about DL-malic acid in SweeTARTs is true.

Under the settlement, class members waive their claims to damages but receive $0 from the settlement—except for Littlejohn who receives a $3000 “incentive award.”

The settlement only requires Ferrara to cease using “no artificial flavors” on packages of SweeTARTs for two years, but only if Ferrara is indeed using DL-malic acid. If SweeTARTs instead contain L-malic acid, the settlement does not require Ferrara to do anything at all—except pay attorneys’ fees.

Even though the settlement provides absolutely no money to class members and nonetheless forces class members to give up their damages claims, the plaintiff’s attorneys convinced Ferrara not to oppose a fee request for 1.489 times their ordinary billing rates for supposedly “excellent results.” This “clear sailing” agreement effectively pays the attorneys $600 to $1170/hour, and any reduction in fees goes back to the defendant.

Because it’s unfair and unreasonable to require class members to give up their claims while paying only their putative attorneys, HLLI filed its objection on behalf of a client class member on May 1, 2019.

The district court overruled the objection and approved the settlement, so CCAF appealed on behalf of the objector.

The Ninth Circuit denied the appeal without a hearing, and Copland did not appeal further.

Case Documents