Antitrust Law Daily Wrap Up, ADVERTISING—NDCal: Bumble Bee Ordered to Produce Discovery Regarding Sufficiently Similar Products in Labeling Litigation, (Apr 19, 2013)

By Tobias J. Gillett, J.D., LL.M.

In putative class action litigation under California law against Bumble Bee Foods, LLC over the labeling of certain of its products, the federal district court in San Jose has ordered Bumble Bee to produce in discovery information regarding products with Omega-3 labels or with ingredients identical or nearly identical to those in the sardine and tuna salad products the putative class representative purchased, and has required Bumble Bee to produce documents dating back to 2004, prior to the statute of limitations, for those products (Ogden v. Bumble Bee Foods, LLC, April 16, 2013, Grewal, P.). However, the court denied discovery with respect to products with allegedly false nutrient information that were not similar to the products she purchased.

Tricia Ogden filed suit against Bumble Bee on behalf of a putative class of purchasers who bought Bumble Bee products within the last four years. She asserted claims under California law regarding Bumble Bee products "(1) labeled or advertised as ‘Rich in Natural Omega-3’ or ‘Excellent Source of Omega-3’; (2) labeled or advertised with a nutrient content claim for a nutrient lacking a Daily Value or lacking the minimum Daily Value (‘DV’) specified for the type of claim made; (3) labeled or advertised with a nutrient or health claim despite containing a disqualifying nutrient level precluding the claim; or (4) labeled or advertised with an unauthorized health or drug claim."

Ogden alleged that she herself only purchased King Oscar’s Sardines Mediterranean Style ("Sardines") and Tuna Salad with Crackers ("Tuna Salad"). Bumble Bee distributes King Oscar’s products in the United States, but the companies are purportedly separate entities.

Ogden served Bumble Bee with a series of requests for production, requests for admission, and interrogatories, and eventually filed a motion to compel more complete responses to them.

Discovery of all products. Bumble Bee initially objected to the requests on the grounds that Ogden only purchased the Sardines and Tuna Salad, and hence had no standing to pursue claims regarding any other Bumble Bee products. Ogden countered that she did have standing under the "sufficient similarity" test.

The court observed that this dispute raised the issue of whether it should be evaluated as "one of standing or more properly one of typicality and adequacy of representation in the class certification stage." Under the first approach, the plaintiff must have standing for each claim brought on behalf of the class, while under the second approach the plaintiff’s standing to bring claims for the products the plaintiff purchased would be enough to establish standing as a class representative, with the determination of whether the plaintiff could represent purchasers of products the plaintiff did not buy left to the class certification determination.

The court concluded that, in the food labeling claim setting, "the question the parties raise is more properly analyzed in the context of class certification." The court noted that granting standing to "sufficiently similar" injuries could "undermine the constitutional requirement that plaintiffs suffer an ‘injury-in-fact,’" and could permit a plaintiff to continue an action on "sufficiently similar" claims "even if claims based on their own injuries were mooted." That result would "contradict the doctrine that named plaintiffs must have individual standing to bring a claim, and cannot rely on the standing of the class members," in the court’s view.

Therefore, Ogden would have to show that she had standing to bring her individual claims, and must meet the numerosity, commonality, typicality, and representation requirements to justify the discovery. The court concluded that her allegations that she purchased the Sardines and Tuna Salad and paid more for them than she should have satisfied her obligation to show standing at that stage of the litigation.

Rule 23(a). The court then proceeded to analyze whether Ogden satisfied the requirements of Federal Rule of Civil Procedure 23(a). The court concluded that she met the numerosity requirement because she alleged that purchasers of Bumble Bee products numbered in the thousands. The issue of whether Bumble Bee’s branding and labeling violated California law also established a prima facie showing of commonality. Other than with respect to the typicality of her claims, and the potential conflicts that it could raise, nothing suggested that Ogden would not be an adequate class representative.

However, the court determined that some of her claims failed to meet the typicality requirement. Ogden alleged that her claims were typical of her putative class because she "bought [Bumble Bee’s] Misbranded Food Products during the Class Period." The court explained that Ogden had to show her claims were "reasonably co-extensive with those off absent class members; they need not be substantially identical."

Although Ogden only alleged that she purchased the Tuna Salad and the Sardines, the court observed that under the "sufficiently similar" standard "she may be able to bring claims for class members who purchased food products ‘sufficiently similar’ to the products she in fact bought." The court noted that only those claims for which she made a prima facie showing of typicality should be subject to discovery.

The court concluded that Ogden made a prima facie showing of typicality for "products with similar or identical claims about Omega-3 content, as those labels may have misled class members in the same way that they allegedly misled Ogden even if the products are not the same." She also satisfied the typicality requirements under the sufficient similarity test "for products with essentially the same ingredients as the products she purchased."

However, she had not made a prima facie showing of typicality with respect to "products with allegedly false nutrient information that are not similar to the products she purchased." Typicality did not extend so far as to embrace all "purchasers who relied on any allegedly false nutritional claim on any Bumble Bee product." Although Ogden could still obtain discovery for those other products if she satisfied her burden "to demonstrate that discovery measures are likely to produce persuasive information substantiating class action allegations," she did not satisfy that burden, in the court’s view.

Rule 23(b). The court concluded that Ogden made a prima facie showing for the purposes of discovery of a Rule 23(b)(3) class for the products she bought, the products with a similar Omega-3 claim on their labels, and the products with nearly identical ingredients. The questions whether Bumble Bee mislabeled its products or included misleading representations on its labels were common to the class and predominated over any individualized questions, and discovery would assist Ogden in substantiating her claims.

Time frame. Ogden sought discovery of material from four years before the statute of limitations and the class definition, allegedly to "uncover ‘state of mind’ evidence regarding Bumble Bee’s marketing practices." She supported this request with evidence from a deposition and documents indicating that Bumble Bee made decisions regarding its labeling prior to that period.

The court concluded the limitations period only limited "the time period for consumers to bring claims for their purchases," and that it did not "limit the time to bring claims for Bumble Bee’s marketing decisions." Therefore, the court found that "discovery regarding the marketing and labeling practices from before the statute of limitations for those products" was appropriate. However, the court concluded "that information such as sales numbers, advertising expenditures, profits, costs, or other information not tied to the marketing decisions is not relevant beyond the limitations period."

King Oscar products. The court denied Ogden’s request for certain documents related to King Oscar products. She did not provide any evidence that the documents were actually in Bumble Bee’s control, custody, or possession, rather than that of King Oscar, and she did not allege that the companies were the same legal entity. The court rejected Ogden’s argument that Bumble Bee should have to make admissions regarding representations made on a King Oscar website linked to from Bumble Bee’s website, because the website "appear[ed] to belong exclusively to King Oscar."

Therefore, the court granted Ogden’s motion to compel in relation to products with Omega-3 labels or with nearly identical ingredients—specifically those with tuna or sardines as a main ingredient—and required Bumble Bee to produce documents dating back to 2004 for those products, and denied it in all other respects.

The case is No. C 12-1828 LHK.

Attorneys: Ben F. Pierce Gore (Pratt & Associates) for Tricia Ogden. Forrest Arthur Hainline (Goodwin Procter LLP) for Bumble Bee Foods, LLC.

Companies: Bumble Bee Foods, LLC

Cases: Advertising ConsumerProtection StateUnfairTradePractices CaliforniaNews