Morgan et al v. Wallaby Yogurt Company, Inc.

Filing 73

ORDER RE STAY. Signed by Judge James Donato on 08/20/2015. (jdlc2S, COURT STAFF) (Filed on 8/20/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FRANK MORGAN, et al., Case No. 13-cv-00296-JD Plaintiffs, 8 v. ORDER RE STAY 9 10 WALLABY YOGURT COMPANY, INC., Defendant. United States District Court Northern District of California 11 12 13 This is a consumer class action that challenges defendant Wallaby Yogurt Company, Inc.’s 14 use of the term “evaporated cane juice” (ECJ) -- instead of “sugar” or a similar term -- on its labels 15 listing the ingredients of its food products. Dkt. No. 35. 16 The Court previously granted defendant’s motion for reconsideration (Dkt. No. 64) and 17 stayed the case (Dkt. No. 72) because it agreed with the reasoning in cases such as Swearingen v. 18 Amazon Pres. Partners, Inc., No. 13-CV-04402-WHO, 2014 WL 3934000 (N.D. Cal. Aug. 11, 19 2014). See also, e.g., Gitson v. Trader Joe’s Co., 63 F. Supp. 3d 1114 (N.D. Cal. 2014); Figy v. 20 Lifeway Foods, Inc., No. 13-cv-04828-TEH, 2014 WL 1779251 (N.D. Cal. May 5, 2014). 21 Mary Swearingen v. Late July Snacks LLC, Case No. 3:13-cv-04324-EMC (N.D. Cal.), is 22 another case in this district that has been stayed for quite some time “pending the FDA’s decision 23 . . . regarding whether ‘evaporated cane juice’ (ECJ) is a common or usual name for sugar.” See 24 Dkt. No. 78 in Case No. 13-cv-4324. In that case, Judge Chen consequently requested that the 25 Commissioner of the Food and Drug Administration shed some light on “whether a final 26 determination regarding ECJ ‘is feasible within agency priorities and resources,’” and specifically 27 “if the FDA is likely to issue any further guidance regarding ECJ within the next 180 days.” Id. 28 The FDA has recently responded that while it is “actively working on a final guidance” to address 1 this issue, it “cannot commit to issuing a decision within 180 days,” and that it instead “currently 2 anticipates that a final guidance will issue before the end of 2016.” Dkt. No. 80 in Case No. 13- 3 cv-4324. 4 In light of this statement from the FDA, the Court directs plaintiffs and defendant in this 5 case to file by September 9, 2015, a statement of no more than five pages each, addressing 6 whether and why the Court should (or should not) continue to stay this case. Responses to the 7 other side’s submission are not permitted, and no hearing will be held, unless otherwise ordered by 8 the Court. 9 10 IT IS SO ORDERED. Dated: August 20, 2015 United States District Court Northern District of California 11 ________________________ JAMES DONATO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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