Health Law Daily Wrap Up, ADVERTISING (FOOD, DRUG & MEDICAL DEVICES)—N.D. Cal.: Class certification denied in consumer protection case over ghee food labels, (May 30, 2025)

By Kenneth H. Ryesky, M.B.A., J.D.

First-listed attorney on plaintiff's class certification brief featured two asterisks indicating "pro hac vice forthcoming" but had yet to file pro hac vice paperwork eight months later.

A federal district court judge in San Francisco, California has denied class certification in a putative class action case alleging deceptive labeling of ghee butter food products. Certification was sought for (1) a nationwide class; and (2) a California class of consumers. The judge ruled that the plaintiffs showed neither the numerosity, commonality, nor adequacy requisites for class certification under Rule 23. Having ruled that none of these elements were demonstrated, the court found it unnecessary to address the Rule 23 typicality issue, nor any Rule 23 issues (Effinger v. Ancient Organics LLC, No. 3:22-cv-03596-AMO (N.D. Cal. May. 23, 2025)).

Background. Ghee is a type of clarified butter that has long been used in South Asian cuisine. California-based Ancient Organics, LLC (Ancient Organics) manufactures and purveys ghee. A putative class action lawsuit was filed against Ancient Organics by some purchasers of the product, alleging deceptive labeling claims regarding the purported healthful attributes of the food. Following a partial grant of Ancient Organics's dismissal motion and subsequent amendment of the complaint, one of the individual consumers (Effinger) moved for certification of a Nationwide class and a California class. Ancient Organics opposed the motion.

Class certification-numerosity. The judge ruled that the individual consumer did not establish the numerosity requirement for class certification [Fed. R. Civ. P. 23(a)(1)]. The substantiation proffered by would-be class representative Effinger was a ledger sheet of "unauthenticated sales data" devoid of dates and prices, from which Effinger contended could be inferred that tens of thousands of units were sold by Ancient Organics during the class period. The court could not make such an inference using the "sales data, Defendant’s distribution network of the Product, and common sense." There was no "factual support" from which the numerosity requirement could be inferred, thereby leaving the court with nothing more than conjecture.

Class certification-commonality. The court found that Effinger did not adequately prove the existence of legal or factual questions common to the putative class [Fed. R. Civ. P. 23(a)(2)]. The "threshold step" in a consumer fraud class action is showing the falsity of the seller's advertising and/or labeling. For this, Effinger cited the court's previous order denying portions of Ancient Organics's dismissal motion [Effinger v. Ancient Organics LLC, 657 F. Supp. 3d 1290, 1299 (N.D. Cal. 2023)]. Survival of a dismissal motion does not in and of itself prove that there are common questions of law or fact that pertain to the class sought to be certified. The earlier dismissal motion denial addressed Effinger's pleadings, and did not constitute the requisite proof of commonality for a class action certification.

What was presented to the court was "a formulaic account of Effinger’s individualized assessment of the Product label." This did not show that any other putative class member was so deceived or misled by the product labels. Even the representations Effinger presented to the court from the Ancient Organics website that suggested healthful attributes of the ghee product were not alleged to have been seen or relied upon by Effinger. There were no expert reports presented to substantiate the falsity of the Ancient Organics's labels or advertising.

Class certification-adequacy. The court found that Effinger failed to demonstrate that she and her counsel could "fairly and adequately protect the interests of the class" [Fed. R. Civ. P. 23(a)(4)]. Here, there were serious questions as to whether Effinger's counsel would be likely to vigorously prosecute the action. Effinger's counsel's conduct throughout the litigation exhibited neglect, procrastination, and other laxities. These included a request to extend a discovery deadline that had been set to expire four days later; the extension was granted but additional extensions were requested and eventually denied. Counsel's default of deadlines resulted in waiving their objections to interrogatories. The last-minute request for a class certification briefing, occasioned by the emergence of one attorney's medical issues, was "irreconcilable with the presence of three law firms on the papers who should have been able to timely file briefing."

The Case is No. 3:22-cv-03596-AMO.

Judge: Olguín, A.

Attorneys: John Ryan Gustafson (Good Gustafson Aumais LLP) for Kelly Effinger. James Hyeoun Ju Moon (Davis Wright Tremaine LLP) for Ancient Organics LLC.

Companies: Ancient Organics LLC

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