Disappointed consumer: Cap’n Crunch “Crunchberries” not real fruit

by Walter Olson on June 3, 2009

A judge has tossed a California woman’s would-be class action lawsuit, however, finding that a reasonable consumer would not expect the brightly colored balls to be or contain actual berries or fruit. Per Kevin Underhill, Lowering the Bar: “Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap’n Crunch with Crunchberries in reliance on defendant’s fraud.” More: California Civil Justice (same law firm sued over Froot Loops); update from Lowering the Bar.

And: Hal Hewell of Hewell Law Firm, which filed the suit, writes in comments that neither the plaintiff

nor her first amended complaint stated that she believed “crunchberries” was a real fruit (check it out on Pacer, along with our motion for reconsideration to get the full story). Your contention that she did is simply false and has exposed her to widespread (and unwarranted) ridicule.

Don’t let the facts get in the way of a good story…. You owe her an apology.

My response: Okay, let’s try to phrase things in a way highly favorable to Hewell and his client. The suit sought recovery against the cereal maker on the grounds a reasonable consumer would understand “Crunchberries” to contain actual fruit, whereas they apparently in fact contain only a little strawberry juice concentrate. (I’ve slightly expanded the first sentence above accordingly). In reaching his conclusion that the only course consistent with “personal responsibility and common sense” was to dismiss the case, the judge found it significant that it is common knowledge that no fruit known as a “crunchberry” grows wild or occurs naturally in any part of the world. Any reasonable consumer would therefore understand that the brightly colored balls must be a composite of ingredients not including that fictional berry, and (the judge found) could not reasonably claim to have been deceived by the monicker “CrunchBerries” into expecting something with more actual fruit content. Perhaps Mr. Hewell’s motion for reconsideration (PDF) will persuade the judge otherwise, and if so, I look forward to reporting that. (Update Jun. 15: judge denies reconsideration).

{ 4 trackbacks }

June 5 roundup
06.05.09 at 12:04 am
On the Road to Serfdom
06.05.09 at 7:42 pm
“Crunchberries” lawsuit, cont’d
06.06.09 at 12:07 am
Judge Declares Cap’n Crunch’s “Crunchberries” Not Real Fruit | Nick Thacker
06.09.09 at 2:03 am

{ 23 comments }

1 KDP 06.03.09 at 2:51 pm

I suppose that someone also pointed out that the cereal does not contain any Cap’n?

2 DEM 06.04.09 at 12:04 am

Wait a minute, you mean they’re NOT real berries???

3 DPW 06.04.09 at 10:00 am

Let’s stave off a few more suits:
GrapeNuts contain neither grapes nor nuts.
Co-co Pebbles do not contain any pebbles, gravel, crushed stone, or lithic content of any appreciable kind. ( and Koo-koo for Cocoa Puffs is not recognized as a mental disorder in DSM-IV)
Popsicles make no distinctive popping sound, nor are they sutible for use as sickles.
Keebler cookies are not made by elves in a hollow tree.
Light rain does not containe 30% fewer calories than the regular kind.
The FTC does not maintain an empirical standard for “Crunchtastic”.
Dunkin Donuts can be safely eaten undunked.

4 PF 06.04.09 at 10:15 am

Ironically, GrapeNuts are very close to the pebbles or crushed stones the Co-co Pebbles aren’t.

5 Doug 06.04.09 at 12:18 pm

Sounds like the plaintiff was willing to admit her ignorance and stupidity in order be certified as a class action and maybe hit the jackpot as the named plaintiff. Really the judge should sanction the attorney and plaintiff to discourage asinine lawsuits like this. Was she that dumb not to understand that there is no such thing as “crunchberries”? Was she a result of public school education?

6 Jason Barney 06.04.09 at 1:28 pm

DPW–even more suggestions:

Golden Grahams have no actual gold

Cheerios don’t treat depression

etc etc.

7 Todd Rogers 06.05.09 at 6:46 am

How do we know Cheerios aren’t an effecive treatment for depression?
…and where’s the actual fruit in Fruit-Loops?

8 Deranfged LunaTech 06.05.09 at 11:49 am

Could I sue Wendy’s because there is not actually “a little bit of Dave in every burger?”

9 Whizzle the Spizzle 06.05.09 at 11:53 am

If you google the plaintiff’s name, you’ll find that she has (had a) career in the movie industry, as a something-or-other. It’s a somewhat unique name…there couldn’t be two of them in California, could there ?

Her mindset, which seems to be broadly shared, lends understanding of the juvenile drivel rolling out of Hollywood…and the mouths of Hollywoodites.

10 Richard A Harrison 06.05.09 at 3:19 pm

Of course, Gatorade is not ade made from alligators either. Please tell me the idiot lawyer who filed this moronic case has been duly sanctioned by the court and his state bar . . . please??

11 Dave Lincoln 06.05.09 at 6:32 pm

Deranfged LunaTech, I’d think you’d have a much better case if, indeed, a little bit of Dave Thomas was in every Wendy’s burger. I would hope you would lose, since they did warn you, but give it a try. You never noticed how much better Wendy’s meat tastes over other fast food burgers?

(sorry, Charlie, Wendy’s doesn’t want late founders who have GOOD TASTE, Wendy’s wants late founders who TASTE GOOD). I am so trademarking that!

Also, before you sue, be warned that the Chef Boyardee products have
long ago ceased being cooked by a real chef, at least from the time that Mr. Boyardee was thought to have disappeared in a bizarre mini-ravioli canning accident back in the 1980′s.

Oh, and people, there are no real fingers in the Chicken Fingers (well, except at Wendy’s, but as the defense has repeatedly stated: we warned you, ya silly goob!)

12 Bob Lipton 06.05.09 at 6:55 pm

So the plaintiff worked in the movie industry? As what? A caterer?

Bob

13 Hal Hewell 06.06.09 at 2:55 am

Neither Janine Sugawara nor her first amended complaint stated that she believed “crunchberries” was a real fruit (check it out on Pacer, along with our motion for reconsideration to get the full story). Your contention that she did is simply false and has exposed her to widespread (and unwarranted) ridicule.
Don’t let the facts get in the way of a good story…. You owe her an apology.

- Hal Hewell

14 Walter Olson 06.06.09 at 6:58 am

Okay, let’s try to phrase things in a way highly favorable to Hewell and his client. The suit sought recovery against the cereal maker on the grounds a reasonable consumer would understand “Crunchberries” to contain actual fruit, whereas they apparently in fact contain only a little strawberry juice concentrate. (I’ve slightly expanded the first sentence above accordingly). In reaching his conclusion that the only course consistent with “personal responsibility and common sense” was to dismiss the case, the judge found it significant that it is common knowledge that no fruit known as a “crunchberry” grows wild or occurs naturally in any part of the world. Any reasonable consumer would therefore understand that the brightly colored balls must be a composite of ingredients not including that fictional berry, and (the judge found) could not reasonably claim to have been deceived by the monicker “CrunchBerries” into expecting something with more actual fruit content. Perhaps Mr. Hewell’s motion for reconsideration will persuade the judge otherwise, and if so, I look forward to reporting that.

15 Amy Alkon 06.06.09 at 8:18 am

The suit sought recovery against the cereal maker on the grounds a reasonable consumer would understand “Crunchberries” to contain actual fruit

Oh. Please.

16 Frank C ostanza 06.06.09 at 9:24 am

So this lawyer is now the laughingstock of the entire internet yet he is continuing his lawsuit?

Oh, I see. She still has some money left for his fee.

Serenity now.

17 Dave Lincoln 06.06.09 at 9:29 am

” … has exposed her to widespread (and unwarranted) ridicule.” Hal, the ridicule is not just for your client. We reserve some ridicule for you too and other greedy lawyers. Can I make a motion for you to go away with extreme prejudice?

18 Richard Nieporent 06.06.09 at 9:57 am

Hal, you think Walter Olson exposed her to ridicule? Did you even read the judge’s opinion?

Under normal circumstances, when this Court grants a Motion to Dismiss, the Plaintiff is given a reasonable period of time, usually twenty (20) days, in which to file an amended complaint. In this case, however, it is simply impossible for Plaintiff to file an amended complaint stating a claim based upon these facts. The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense.
The Court has no intention of allowing that to happen.

By the way, since this was not a pro se lawsuit, the ridicule is not just confined to the plaintiff. And now you want a second opinion? This reminds me of the old joke: A man goes to a psychiatrist. The doctor says, “You’re crazy” The man says, “I want a second opinion!” “Okay, you’re ugly too!”

19 Don Keefhardt 06.06.09 at 9:44 pm

No question…lawyers do the best self-parody !!!

Don’t stop now, Hal…you’re on a roll !!!

20 Ray Sipsa Lake Water 06.06.09 at 10:46 pm

Your contention that she did is simply false and has exposed her to widespread (and unwarranted) ridicule.
Don’t let the facts get in the way of a good story…. You owe her an apology.

Dude. You brought a federal court lawsuit over BREAKFAST CEREAL.

Res ispa loquitor.

21 Deranged LunaTach 06.07.09 at 2:35 pm

If the “average consumer” would think this, then I am very, very thankful that I am not the average idio…er…consumer.

22 Dave Lincoln 06.07.09 at 5:18 pm

OK, LunaTach, if you are not the average consumer, you’re off the class action suit then. You are hereby deposed.

Now, Hal, pssst, how many free boxes of the Capt’n do you think I can score out of this, anyway? I’ll say nice things about you in court, if you can get me 10 cases of the plain crunch and 10 cases of the stuff with the berries in it.

oops, see Luna, I almost made the same mistake myself, and I consider myself an above-average consumer, as is my whole family. I mean, we knew that erectile enhancement stuff was junk after the 2nd case of it! Who do they think we are, morons?

23 Beezee 06.09.09 at 5:18 pm

From the dismissal-

The court, Judge Morrison England, Jr., also pointed out that the plaintiff acknowledged in her opposition to the motion to dismiss that “[c]lose inspection [of the box] reveals that Crunchberries . . . are not really berries.” Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap’n Crunch with Crunchberries in reliance on defendant’s fraud.”

AND

Judge England also noted another federal court had “previously rejected substantially similar claims directed against the packaging of Fruit [sic] Loops cereal, and brought by these same Plaintiff attorneys.”

He found that their attack on “Crunchberries” should fare no better than their prior claims that “Froot Loops” did not contain real froot.

Owe her an apology Hal Hewell ? Really?

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