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“Ascertainability” and food labeling class actions in the 9th Cir.

July 30, 2014


Defendants often raise ascertainability when opposing class certification in food, beverage, and personal care products labeling litigation. District courts in the Ninth Circuit, however, sometimes reach different conclusions regarding a putative class representative’s burden when it comes to establishing ascertainability. Indeed, the subject has led to divergent decisions in the Northern District of California (often called “the food court”), with judges in that district commenting on the intra-district split. Two recent decisions, however, bolster defendants’ arguments that ascertainability in contested class certification proceedings (as opposed to settlement classes) is a significant hurdle for such plaintiffs to overcome.

Martin v. Pacific Parking Systems Inc., 2014 U.S. App. LEXIS 14200 (9th Cir. July 25, 2014), didn’t address consumer product labeling, but it addressed ascertainability. The Ninth Circuit affirmed the denial of class certification of claims under the Fair and Accurate Credit Reporting Act. While this is an unpublished decision and short on

“All Natural” Litigation and Settlements on the Rise

“All Natural” Litigation and Settlements on the Rise

February 11, 2014

Authored by: Sara Ahmed

Litigation surrounding “all natural” claims has been ramping up, and settlements are on the rise.

Naked Juice paid $9 million dollars to settle claims about the “all natural” branding of its juices in 2013.  As of February 6th, Trader Joe’s is following suit and plans to pay out $3.38 million dollars in addition to discontinuing the use of “all natural” and “100% natural” on products that include ascorbic acid, cocoa processed with alkali, sodium acid pyrophosphate, vegetable mono- and diglycerides, and xanthan gum.

The FDA’s failure to define “natural” is contributing to the flurry of “all natural” consumer class actions, and there is no sign that the FDA plans to provide a definition anytime soon.  On January 6, 2014 the FDA declined a request from three federal judges for clarification of the meaning “natural.”

With little guidance from the FDA, companies are trying to find their own ways of avoiding costly lawsuits.  For some, re-branding is the

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