Jacob M. Harper

Partner

Nationwide Co-chair, Food + Beverage and Agriculture Practice

Co-chair, Class Action Defense Group

T 213.633.6863 Los Angeles
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Recent Public Wins and Court Decisions

Caneer v. Quality Food Centers

Served as lead counsel representing Quality Food Centers, Inc. and The Kroger Co. in putative class action alleging grocery stores improperly charged sales tax on coconut water and other beverages. Obtained full dismissal effectively eliminating class claims, after court adopted DWT's argument that sales tax constitutes an "excise tax" not subject to class treatment, and excise tax claims must be resolved by Department of Revenue, not court. No. 22-2-08219 (King Cty Sup. Ct. filed Jan. 6, 2023)

Navarro, et al. v. Park Assist, LLC, et al.

Served as lead counsel representing Park Assist LLC, the main defendant in putative class action alleging parking assistance technology violated state privacy laws, including California Automated License Plate Recognition (ALPR) statute. Plaintiffs sought statutory penalties of $2,500 per putative class members, which comprised every individual who parked at Southern California's largest malls for a four-year period, threatening potential liability of over $1 billion. Following removal by Park Assist and DWT, obtained order denying plaintiff's motion to remand, on grounds the Local Controversy Exception to CAFA does not apply); the grant of an initial motion to dismiss (on no-harm grounds), and ultimately summary judgment resulting in full dismissal (with findings Park Assist not an "operator" subject to the ALPR law, the ALPR law contains a harm requirement, and plaintiffs failed to adduce evidence of harm. No. 2:20-cv-07370, __ F.Supp.3d ___ (C.D. Cal. filed Dec. 12, 2022) (order granting summary judgment); ); __ F.Supp.3d ___ (C.D. Cal. filed Aug. 21, 2021) (order granting motions to dismiss first amended complaint); __ F.Supp.3d ___ (C.D. Cal. filed Apr. 7, 2021) (order denying motion to remand). Featured in Daily Journal Top Verdicts of 2022.

Devey v. Big Lots, Inc.

Served as lead counsel representing BigLots! in putative class action alleging ground coffee containers overstated serving volume. Obtained complete dismissal without leave to amend on plausibility grounds, with court adopting DWT's argument that "[p]laintiff's disjointed allegations of label reading and Product purchases at various times and places do not plausibly give rise to the inference that she actually saw and read the Product's label prior to making a specific purchase decision." No. 21-CV-6688L, __ F.Supp.3d ___, 2022 U.S. Dist. LEXIS 186865, at *12 (W.D.N.Y. Oct. 12, 2022)

Conley v. The Kroger Co.

Served as lead counsel representing The Kroger Co. in putative class action alleging plaintiff, who purchased sparkling water products through an online delivery service, was misled by "naturally flavored" label because beverages allegedly contained artificial malic acid. Obtained dismissal following grant of motion to compel arbitration. 2022 U.S. Dist. LEXIS 237501 (S.D. Ohio June 6, 2022)

Hartwich v. The Kroger Co.

Served as lead counsel representing The Kroger Co. in putative class action alleging children's pain reliever was mispriced and mislabeled because it contained allegedly the same ingredients as adult version. Obtained full dismissal without leave to amend based on rare early finding that plaintiff's mislabeling claims are not plausible and finding no fact issue, and was only case of many copycat lawsuits to obtain complete dismissal on first motion to dismiss. 2021 U.S. Dist. LEXIS 190192 (C.D. Cal. Sep. 20, 2021)
*Denotes an attorney's experience prior to joining Davis Wright Tremaine

Food + Bev Litigation and Counseling

Food mislabeling class actions

Defending and counseling nation's largest supermarket chain—California's largest grocer and among the nation's largest health food distributors—in false advertising, country of origin, "all natural," trans fat, and range of other California and national class actions. Maintained undefeated record of successful motions to dismiss without or leave to amend, based on standing, preemption, and other grounds. (Ongoing) 

Petitioning litigation and counseling

Prosecuting multiple actions against political petitioning groups for trespass on grocery store and retailer properties. Obtained preliminary injunctions; handling various appeals (Ongoing). Jacob has protected his clients from a number of California’s most prolific petitioning organizations, including:

  • A&K Enterprises
  • Access Petitions
  • Burkett Petition Management
  • Canvass for a Cause
  • Direct Democracy Unlimited
  • Elite Campaigns
  • Goldstein Ostic & Assocs.
  • Jerry Mailhot
  • National Petitioners
  • National Voter Outreach
  • PCI Consultants, Inc.
  • Schmitt Consulting, Inc.
  • Star Petition Group
  • Victory Consultants
  • Voter Contact Services
  • Western Political Advisors

Solicitation and trespass cases

Representing grocers and other retailers in trespass and related actions to stop solicitation activity at California brick-and-mortar stores. Succeeded in dozens of TROs and preliminary injunction; multiple summary judgment motions; bench trials; and appeals. (Ongoing) The numerous groups against which Jacob has obtained TROs, injunctions, and other means of protecting store premises include:

  • Altruist Foundation
  • Building a Solid Foundation
  • California Lifeline
  • Childhood Disease Research Foundation
  • Church of Scientology
  • Damone Daniel
  • Developing Awareness, Inc.
  • Direct Marketing
  • Feed LA County
  • Giving Children Hope
  • House of Hope Ministries
  • House of Hope Outreach, Inc.
  • Imperial Valley Ministries
  • “Pastor” James Jacobs
  • Jacobs Deliverance Foundation
  • NuCreations Outreach
  • One Nation Under God
  • Power of Prayer Ministry
  • Ray’s Life Ministries
  • Rest for Your Souls
  • Save the Children
  • Stay Free Ministries Outreach
  • Touch of Love Ministries
  • United Helpers
  • We the People LLC
  • What Can We Do Foundation

Workplace violence and risk mitigation

Serving as outside property protection counsel for retailers in workplace violence, restraining orders, and other actions to keep grocery premises clear of problematic patrons, homeless, and other individuals. (Ongoing)

Other Complex Business Litigation

Business divorce derivative litigation

Defending, as lead counsel, directors/officers in numerous related actions concerning real estate holding entities in defense of direct and derivative actions alleging breach of fiduciary duty, breach of contract, and other causes of action. (2015–2020)

Internet advertising privacy counseling

Advising privacy counsel and general counsel of leading streaming video programming providers and online retailers regarding litigation risks in online privacy and terms of use policies. (Ongoing)

Web accessibility class actions*

Represented largest providers of subscription-based streaming videos, e-books, and others in class and individual actions related to closed captioning and related practices. Provided ongoing pre-litigation counseling; drafted successful motions to dismiss or appeal; negotiated industry-leading captioning guidelines; and, in 2015, replaced prior trial counsel to prepare for summary judgment and trial. (2013–2016)

Tracking and "history sniffing" privacy class actions*

Defended behavioral advertising developers' mobile device, website "tracking", and "zombie cookie" privacy class actions. Actions dismissed, settled, or indemnified. (2010–2014)

Franchise unfair competition and fraud cases*

Defended, as lead associate, national shipping company’s class and mass actions for breach of contract and unfair competition challenges to changes in franchise system and brand. Drafted case-ending in limine motions, major portions of successful summary judgment motions, and appeal briefs. (2012)
*Denotes an attorney's experience prior to joining Davis Wright Tremaine