Alexander M. Smith 

Alexander M. Smith seems to be on speed dial for big food and beverage companies seeking to defend federal class action consumer claims of mislabeling.

“Unfortunately, the legal system has created a situation where manufacturers face tremendous exposure in these consumer class actions,” Smith said. “The litigation is much more serious than the ridiculous claims themselves, such as not enough strawberries in a Pop-Tart or expecting chicken tenders to be from the tender part of a breast.”

The brands Smith has defended are a Who’s Who of the grocery business: Kraft Heinz, Nabisco, Kellogg and Arrowhead Mountain Spring Water, to name a few. Many of the cases are created by plaintiff attorneys who cull grocery aisles looking at labels, he said.

Judges often grant him dismissal motions, sometimes calling the cases “implausible.”

In one such instance, Smith and his team won a victory for Kellogg over its Morningstar Veggie Burgers and more than 20 other “Veggie”-labeled products because the leading ingredients are grains and oil rather than vegetables. Upon dismissal, the judge said it was clear that no reasonable consumer would be deceived. Kennard v. Kellogg Sales Company, 3:21-cv-7211 (N.D. Cal., filed Sept. 17, 2021).

A Lorna Doone shortbread cookie case had similar types of claims that the product had vegetable fats instead of dairy fats.

Smith had six motions to dismiss for Kellogg last year, including the Pop-Tarts case, where the plaintiff accused the company of not including other fruits in the labeling and having fewer strawberries than it purports to. In the dismissal, a judge wrote that reasonable consumers would not conclude Pop-Tarts has a certain number of strawberries.

“I think I’m well known because we are one of a relatively small number of firms that handle these cases at a high level,” he said. “We do good work for them and they keep coming back to us.”

Smith’s successes have caused him to branch out into cases of mislabeling in cosmetics, cleaning supplies and supplements. He also takes on pro bono work with prisoners who do not have adequate access to the judicial system.

In one notable case, he won a settlement for a wheelchair-bound man who received second and third-degree burns from another inmate in his cell. The client received superficial treatment for his injuries and was not given any additional pain medication.

–Tori Richards