People, I’ve just received terrible news: the appeal in the Crunch Berries case has been dismissed.
As you may recall (I’ve brought it up often enough), this was the California consumer-fraud case in which the plaintiff alleged she had purchased “Cap’n Crunch with Crunch Berries” because she believed it contained real fruit. Federal judge Morrison England, Jr. of California’s Central District tossed that case out in May of last year. See “Reasonable Consumer Would Know ‘Crunch Berries’ Are Not Real, Judge Rules,” Lowering the Bar (June 2, 2009); see also “UPDATE and Comment on the Crunch Berry Litigation,” Lowering the Bar (June 12, 2009). He also noted that the same attorneys had previously filed and lost a similar claim against the makers of “Froot Loops,” and that he was not giving them another try in his courtroom. “The survival of the instant case,” he wrote, “would require this Court to ignore all concepts of personal responsibility and common sense. The Court has no intention of allowing that to happen.”
So, what do you do when not one, but two of your deceptive-nonexistent-fruit cases have been dismissed, other similar cases have failed and you have just been mocked by a federal judge for the utter dumbness of the whole concept? That’s right—you appeal.
While that appeal was pending, Roy Werbel bravely appeared in the Northern District to file lawsuits also attacking Crunch Berries and Froot Loops. See “Another Consumer Says He Was Duped by Froot Loops,” Lowering the Bar (Oct. 24, 2009). His Froot Loops case was dismissed because Werbel could not figure out how to serve Kellogg USA with the complaint, although to my knowledge Kellogg USA is not especially hard to find. Undismayed, he refiled that case in April. See “Yet Another Lawsuit About the Lack of Fruit in ‘Froot Loops,'” Lowering the Bar (Apr. 29, 2010). This time, though, he had bolstered his legal team by adding the lawyers who had successfully “ignore[d] all concepts of personal responsibility and common sense” in the other case. And that may make all the difference.
Or not, because it turns out that (possibly because they were so busy helping Roy Werbel) they forgot to file a brief with the Ninth Circuit:
A review of the file in this case reveals that counsel for appellant has failed to perfect the appeal as prescribed by the Federal Rules of Appellate Procedure. Pursuant to Ninth Circuit Rule 42-1, this appeal is dismissed for failure to file the opening brief on appeal in this case.
The order was actually filed last month, but I did not become aware of it until just now. I would guess that it flew under the radar (until now, anyway) because dismissals on procedural grounds without opinions do not get much attention. It is sad news, though, for those of us who were looking forward to an appellate opinion on this — although now that I think about it, you never know what the Ninth Circuit will do. Still, it cheers me up some to know that Roy Werbel exists and is still bravely pursuing the Cap’n and the purveyors of froot in the Northern District of California. I will let you know how those cases come out.