Upon final approval of the agreement, four cases in California, Florida, Ohio and New Jersey will be dismissed with prejudice, including the lead class action suit that was filed in the U.S. District Court for the Central District of California by the named plaintiff Jeremiah Johnson on behalf of consumers.
The settlement was reached "on the eve of trial" after more than three years of litigation, according to court documents that were filed in Santa Ana, Calif.
“We stand behind our products and the accuracy of our label – and we disagreed with plaintiffs on the merit of this case," General Mills said in an emailed statement. "But we agreed to resolve the matter to avoid further litigation."
U.S. District Court Judge Cormac J. Carney must approve the settlement, which grants consumers the option to recover $4 for each unit of Yo-Plus yogurt they purchased over a five-year period. A hearing is scheduled on March 11 for preliminary approval of the agreement.
"As this Court is aware, this is a case about the alleged false marketing of a yogurt product, not about personal injuries. The issue for all Yo-Plus purchasers around the United States is whether they paid more than they should have for Yo-Plus," Cullin A. O'Brien of Robbins Geller Rudman & Dowd LLP, Co-Counsel for plaintiff in the primary lawsuit, wrote in court documents. "This damages question, assessed by whether the digestive health claim is true or not, is objectively reflected in the $4 per year Yo-Plus unit relief Plaintiff has achieved in this Settlement."
In the lead case, General Mills produced hundreds of thousands of documents that plaintiff reviewed; lawyers also took dozens of depositions and conducted extensive pre-trial preparation, O'Brien stated. Subject to the judge's approval, the attorneys can recover up to 30 percent, or $2.55 million, from the settlement fund plus out-of-pocket expenses.
Consumers are eligible to recover funds if they purchased Yo-Plus yogurt from July 26, 2007 to July 5, 2012, and claims can be submitted for up to 13 units without providing proof of purchase. Notice of the settlement will be provided through two national publications, People and USA Weekend, which have respective circulations of 3.5 million and 22 million, according to court papers.
"The issues in this case were complex and related to … the scientific relationship between the components contained in Yo-Plus and the human digestive system, whether 'digestive health' has meaning from an objective scientific standpoint, the extent and meaning of Yo-Plus' marketing efforts, and the measure of damages available to You-Plus purchasers," O'Brien wrote.
The lead case was filed more than three years ago against General Mills, seeking injunctive relief and damages under California's Unfair Competition Law, the Consumer Legal Remedies Act and for breach of express warranty. It alleged General Mills lacked support for its marketing claims that its yogurt contained bacteria cultures that naturally regulated digestive health.
Consumers were "led to believe that General Mills' blend of 'probiotic' bacterial strains and small amounts of fiber will, in fact, improve the digestive system of healthy people. In fact, healthy people's bodies already maintain the proper balance of intestinal bacteria," the lawsuit alleged.
In 2010, General Mills and its subsidiary Yoplait USA, Inc. unsuccessfully moved to consolidate the various Yo-Plus lawsuits filed against it to the Southern District of Florida. The cases in Florida, Ohio and New Jersey were ultimately put on hold pending the resolution of the California suit.
Jerry Blackwell and Benjamin Hulse of Blackwell Burke, P.A., a Minneapolis-based law firm with a national practice, represented General Mills in the litigation.