StarKist Inc., has filed a new amended motion to dismiss a lawsuit filed at the federal court in Oakland, Calif., against the Pittsburgh based company over allegations of fraud and negligent misrepresentation over the company’s canned tuna products.

The latest action by the tuna cannery giant followed a decision in late March this year by U.S. District Court Judge Yvonne Gonzalez Rogers, presiding over the class action suit, which was filed by California resident Patrick Hendricks seeking monetary damages and injunctive relief on the grounds that four of StarKist’s canned tuna products are under-filled and, thus, substantially underweight.

The four products at issue are 5-ounce cans of StarKist: Chunk Light Tuna in Water; Chunk Light Tuna in Vegetable Oil; Solid White Albacore Tuna in Water; and Solid White Albacore Tuna in Vegetable Oil.

Originally filed early last year, Hendricks accused StarKist in a nine-count complaint, which included breach of express warranty; breach of Implied warranty of merchantability; breach of implied warranty of fitness for a particular purpose; unjust enrichment; negligent misrepresentation; and fraud.

StarKist responded last summer asking the court to dismiss the case on several grounds including Hendricks’ failure to sufficiently plead claims; failure to plead fraud with particularity; and lack of standing. It also says that the claim of unjust enrichment does not constitute a claim for relief.

In her order/decision in March, Rogers granted in part and denied in part StarKist motion to dismiss. She also requested StarKist to file a new amended motion to dismiss the remaining standing counts that were not dismissed.

FRAUD CLAIM NOT DISMISSED

Perhaps the biggest issue faced by StarKist is the allegation of fraud, which was not dismissed by the court. (An industry official, who asked not be identified, told Samoa News early this week that the ‘fraud’ allegation is a “very serious one because it affects the cannery’s canned tuna products, cited in the complaint)

In his complaint, Hendricks alleges — under the fraud claim — that among other things, StarKist “misrepresented that its products contained an adequate amount of tuna for a 5-ounce can and were legal for sale in the United States.”

Additionally, the defendant’s conduct was false and misleading because “StarKist Tuna is under-filled and thus substantially underweight, does not contain an adequate amount of tuna for a 5-ounce can, and is illegal for sale in the United States.”

Further, plaintiff “relied on StarKist’s false representations in purchasing the product” and plaintiff “was induced to pay substantially more for StarKist Tuna based on these false representations.”

StarKist sought to dismiss the fraud claim, arguing that all of the fraud-based claims, fail to plead the elements of fraud insufficiently, as required by provision of the Federal Rules of Civil Procedure.

Rogers disagrees with StarKist’s argument, saying that these “allegations are sufficient to meet the fraud pleading standard.”

PREEMPTIONS

Another major argument for dismissal by StarKist targets the accusation (under counts: five to seven) dealing with violation of California’s “Consumer Legal Remedies Act”, “Unfair Competition Law”, and “False Advertising Law”.

StarKist argued that “under the primary jurisdiction doctrine, the court should defer to the Food and Drug Administration, which has unique expertise and resources suited to resolving the issues presented by Plaintiff’s claims, and which is currently in the process of considering a Citizens Petition addressing the same issues raised by Plaintiff’s claims.”

According to StarKist, the “complex [federal] regulation” that provides the sole basis of the plaintiff’s complaint was developed in 1957, at a time when tuna was customarily packed in three-piece cans rather than in the two-piece cans used today.

StarKist contends that federal law preempts state statute; but Rogers disagrees, saying that whether the FDA might eventually change those standards is of no consequence to a decision on whether the claims here are preempted or otherwise properly stated.

The Court therefore concludes that StarKist has not established that Plaintiff’s claims should be dismissed based upon preemption, she said, and noted that “unless and until there is some indication beyond mere speculation that the FDA may change the regulation, the Court sees no need to defer under the primary jurisdiction doctrine."

Rogers denied StarKist’s request to dismiss counts five to seven.

OTHER COUNTS

Rogers granted StarKist’s motion to dismiss “breach of implied warranty of fitness for a particular purpose” count, but denied to dismiss the counts on breach of express warranty and breach of implied warrant of merchantability.

On the plaintiff’s claim of ‘unjust enrichment’, Rogers said she agrees with StarKist that this claim and relief sought is duplicative of plaintiff’s statutory claim under California’s Legal Remedies Act and California’s Unfair Competition Law (which is part of the complaint)

As to the claim of negligent misrepresentation and lack of standing, Rogers denied a dismissal of these counts.

NEW AMENDED MOTION

Late last month, StarKist filed a new 16-page amended motion to dismiss the charges that were left in the initial complaint and not dismissed by the court. StarKist denied the allegations and “demanded” a jury trial.

“StarKist denies each and every allegation alleged in the Complaint and further denies that Plaintiff has suffered any damages by reason of any act, omission, or conduct on the part of StarKist and further denies that Plaintiff is entitled to the relief sought in the Complaint, or to any relief at all, from StarKist,” according to the motion.

StarKist Inc., and its local subsidiary StarKist Samoa, are owned by South Korean based Dongwon industries.