Category Archives: Supplements & Herbals

Do a google search for “Four Loko” and this is the first image that pops up. Crazy right? What is not crazy and not surprising is that Phusion Projects (the maker of Four Loko) is being sued for personal injuries across the country and is now facing identical class action lawsuits on both coasts.
According to the lawsuits, the drink originally contained the equivalent of 2 cups of coffee and 4-5 cans of beer. That’s a ton of caffeine and alcohol in one little bottle. At some point the caffeine was removed by the company. The drink is banned in many states and on many college campuses. The FDA issued a warning letter.
Personal injuries are also common because the drink is uber-popular among underage drinkers and because the drivers usually have no idea just how drunk they are when they get behind the wheel. (Like a “Red Bull & Vodka,” the energy drink is a stimulant while the alcohol is a depressant — they don’t work well together). Nationally renowned personal injury lawyer John Leighton has taken the lead on the personal injury lawsuits against Four Loko.
Here’s the Florida class action, pending before Judge Marcia Cooke:
Four Loko Class Action Florida
Here’s the California class action:
Four Loko Class Action California
My thoughts? Consolidate the class actions and the personal injury actions into an MDL for discovery purposes, then the drinkmaker will probably file a bankruptcy petition, because as far as I can tell, this company is not owned by one of the major players (i.e. deep pockets) like Coke or Pepsi. If Phusion Projects can weather this perfect storm of personal injury lawsuits, class action lawsuits and Congressional/FDA oversight, then I’ll be impressed and I’ll want in on the IPO.

A major issue facing class action attorneys is whether you can certified fraud actions because each individual plaintiff would have slightly different evidence of reliance. I.e., if a company fraudulently sells 500 lots of Florida swampland based upon a false, misleading and fraudulent marketing prospectus, must all 500 potential plaintiffs have relied on the same misleading statements? This question has vexed lawyers and judges for some time.
In what is certainly to become a landmark case, the extremely conservative Eleventh Circuit Court of Appeals affirmed class certification in a deceptive and unfair trade practices act class action against General Mills, the maker of Yoplait yogurt (the yogurt that supposedly improves digestive health). According to the suit, Yoplait’s marketing misleads consumers into thinking that eating the yogurt will improve “regularity.” District Judge Paul Huck (one of our best judges here in the S.D. Fla.) granted class certification and approved the following class definition:
“All persons who purchased Yo-Plus in the State of Florida to obtain its claimed digestive health benefit.”
The Eleventh Circuit approved certification, but noted that under FDUPTA, individual class members do not have to prove individual reliance — “but rather a plaintiff must simply prove that an objective reasonable person would have been deceived.”
The Court remanded the case so that definition of the class could be changed to:
“All persons who purchased Yo-Plus in the State of Florida.”
This is a major decision because it will make it easier for fraud-based class actions to be certified. (Whether the case has any merit is a completely different and unrelated question that was not addressed by the district or circuit court).
The full opinion is here:

Fitzpatrick v General Mills Class Certification Affirmed