Digest

Bryan Cave Digest

ARCHIVE

Main Content

Problems Mount for Food Labeling Class Actions

December 17, 2014

Categories

Problems Mount for Food Labeling Class Actions

December 17, 2014

Authored by: James Smith

The Ninth Circuit is poised to address the implicit “ascertainability” requirement for class actions in Jones v. ConAgra Foods, Inc., No 14-16327 (9th Cir.). Briefing is underway in that matter in which the district court denied class certification when it concluded that the class wasn’t ascertainable and that the plaintiffs’ proposed damages model wasn’t methodologically sound. I wrote about that district court ruling in a post on June 24, 2014.

The Jones appeal may provide some benefit to other defendants as a basis to stay other food labeling class actions. In Gustavson v. Mars, Inc., No. 13-cv-04537-LHK (N.D. Cal. Dec. 10, 2014), Judge Lucy Koh stayed proceedings pending a decision in Jones: “The appellant in Jones has briefed issues concerning ascertainability and damages that could be material to the Court’s disposition of any class certification motion in the instant action.” Judge Koh concluded that any decision

A significant summary judgment in food labeling class actions

December 11, 2014

Categories

A significant summary judgment in food labeling class actions

December 11, 2014

Authored by: James Smith

In what seems likely to become a defining case on appeal, the Northern District of California (Judge Lucy Koh) granted summary judgment in a long-running food labeling class action. I’ve written several times about Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK (N. D. Cal.). That plaintiff alleges that many Dole products are misbranded because their labels say the products contain “All Natural Fruit.” Mr. Brazil contends this is false because the products contain ascorbic acid (commonly known as Vitamin C) and citric acid. Both of those ingredients, of course, are naturally occurring compounds found in citrus; many food manufacturers add them because of their natural preservative effects.

On December 8, 2014, Judge Koh granted summary judgment for the defendant, concluding “there is insufficient evidence that the ‘All Natural Fruit’ label statement on the challenged Dole products was likely to mislead reasonable consumers and that the

Why Rule 23(c)(4) doesn’t save food labeling class actions.

December 10, 2014

Categories

Why Rule 23(c)(4) doesn’t save food labeling class actions.

December 10, 2014

Authored by: James Smith

In prior posts, I’ve written about the difficulties of establishing a feasible method of proving class-wide injury in food labeling class actions. Restitution is the only available remedy under the commonly-used California Unfair Competition Law, but plaintiffs can’t feasibly argue they’re entitled to a refund of the full purchase price. After all, the food they bought had some value—it satisfied hunger, provided nutrition, and presumably tasted good enough to eat. Instead, plaintiffs argue that they overpaid for the product because of the “false” labeling (e.g., “all natural”) and that they can calculate this overpayment, typically through a regression analysis. But a valid regression analysis is time-consuming, costly, and very difficult to construct—there simply are too many variables that may affect a product’s price other than whether its label said “all natural.” As a result, many courts are denying motions for class certification, finding that plaintiffs can’t establish the necessary elements

The attorneys of Bryan Cave LLP make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.