Wesson Oil False-Ad Deal Gets Nod, Closing 12-Year-Old Lawsuit

At long last, a lawsuit alleging that ConAgra Foods Inc. deceptively called Wesson Oil “100% natural” despite genetically modified ingredients can come to a close.

A reworked class settlement that creates a $3 million fund for claims and expenses but no provides no fee for the plaintiffs’ lawyers got the final nod from a federal judge. Unlike the parties’ first attempted deal, which was thrown out because of concerns that attorneys had colluded to the detriment of the class, this one is fair, Judge Cormac J. Carney of the US District Court for the Central District of California said in an order docketed Wednesday.

Robert Briseño and others sued ConAgra Foods, now known as Conagra Brands Inc., in 2011. Eleven statewide classes were certified. Conagra contested the class certification and then sought US Supreme Court review after the US Court of Appeals for the Ninth Circuit upheld certification.

The parties started to negotiate after the high court denied the company’s certiorari petition in 2017.

Conagra agreed in 2018 to an uncapped settlement that ended up paying less than $1 million in claims while the plaintiffs’ attorneys stood to gain nearly $7 million. Conagra agreed not to contest the fee, and a “kicker” clause meant the company would get back any funds if the court cut the lawyers’ request.

The company, which had stopped using the “natural” label in 2017 and later sold the product line, also agreed not to resume using “100% natural” should it reacquire the Wesson brand.

Law professor M. Todd Henderson objected to the deal and later appealed the district court’s approval.

‘Reeks of Collusion’

In June 2021, the US Court of Appeals for the Ninth Circuit said the deal “reeks of collusion” and directed the district court to take another look. Carney nixed the settlement six months after that.

A plea from the plaintiffs’ attorneys to save the deal by cutting their fees got no traction, as Carney cited other indications of attorney self-interest and said the injunction provided no benefit to the class.

Carney preliminarily approved the new version of the settlement last November.

In granting final approval, he said the new proposal has none of has the traditional hallmarks of collusion, such as a reverter of unpaid money to the company, or disproportionate class recovery and fee awards.

Recovery ‘Modest’ but Reasonable

Consumers are entitled to 15 cents for each bottle of oil purchased. Although the recovery may appear “modest,” it’s reasonable, the judge said.

Carney also granted Henderson’s motion for a total of $250,000 in fees and expenses for his lawyer and an incentive payment to him, for their work on increasing the amount of money available for the class.

The money will come from the common fund, the judge said. It would be inequitable for the payment to come from class counsel’s expense reimbursement, since they spent more than a decade on the case and aren’t seeking any fee.

Carney also allowed a total of $25,000 in service payments to the class representatives.

Milberg Coleman Bryson Phillips Grossman PLLC, Tadler Law LLP, and DiCello Levitt are class counsel. Alston & Bird LLP represented Conagra Brands, formerly known as ConAgra Foods. The Hamilton Lincoln Law Institute’s Center for Class Action Fairness represented Henderson.

The case is Briseno v. ConAgra Foods, Inc., C.D. Cal., No. 2:11-cv-05379, entered 9/20/23.