November 11, 2014
Authored by: James Smith
The latest development in the long-running case of Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK (N.D. Cal. Nov. 6, 2014), came when Judge Lucy Koh largely granted the defendant’s motion to decertify a class that she had just certified months earlier. In a blog posting on June 26, 2014, I discussed that earlier certification decision and noted several weaknesses in the plaintiff’s expert’s analysis. The defendant used those weaknesses (and others) to decertify the Rule 23(b)(3) class. And Brazil points to a problem with these class actions that many in the defense bar have been raising for quite some time—how can plaintiffs “prove” an injury from purchasing a low-cost product in a dynamic and competitive marketplace for food?
As with many food labeling cases, this plaintiff alleges that “all natural” statements on 10 Dole products are misleading. Those products contain ascorbic acid (i.e., vitamin C)