Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Fla.: Class action does not stick in Crisco labeling case, (Dec 30, 2014)

By Jody Coultas, J.D.

The federal district court in Ft. Lauderdale declined to certify a proposed class of Crisco products for failure to show that the class was ascertainable or that issues common to the class were predominant (Randolph v. The J.M. Smucker Co., December 22, 2014, Bloom, B.).

A consumer sought to certify a class of Florida consumers who, from May 2009 to the present, purchased Crisco Pure Vegetable Oil, Crisco Pure Canola Oil, Crisco Pure Corn Oil, and Crisco Natural Blend Oil based on allegedly deceptive advertising that the products were “all natural,” despite containing genetically-modified organism (GMOs).

Ascertainability. To obtain certification, a class must be adequately defined and clearly ascertainable. An identifiable class exists if its members can be ascertained though a manageable process that does not require much, if any, individual inquiries.

The class could not be certified because the class was not ascertainable, according to the court. The fact that class members were highly unlikely to retain proof of purchase for low price items like Crisco was insufficient to defeat certification. However, the variety of Crisco products and inconsistent labeling complicated the viability of self-identification via affidavit. It was unlikely that potential class members could accurately identify themselves as purchasers. Purchasers would need to recall buying Crisco, the specific variety purchased, and the specific date on which it was purchased. Because of its use as an additive product, it was unlikely that consumers would remember such purchases. The named plaintiff’s proposed alternative method for ascertaining the class—issuing subpoenas on the retailers to determine members of the proposed class—was not administratively feasible.

The court noted that the fact that some class members may not have actually relied on the alleged misrepresentation did not render the class unascertainable. A plaintiff asserting a claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) must establish a deceptive act or unfair practice, causation, and damages. A plaintiff does not have to demonstrate actual reliance in order to prove causation. Rather, a plaintiff must simply prove that “the alleged practice was likely to deceive a consumer acting reasonably in the same circumstances.”

Certification requirements. Although the consumer met the certification requirements of Federal Rule of Civil Procedure 23(a), the court declined certification based on a lack of predominance as required by Rule 23(b)(3). Rule 23(b)(3) requires questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods of adjudication. The consumer was required to show that the injury suffered by class members could be proven through evidence common to the class, and that the alleged damages could be measured on a class-wide basis through a common methodology. Under FDUTPA, the labels at issue must have been “likely to mislead the consumer acting reasonably in the circumstances,” that is, a probability, not simply a mere possibility, of deception.

The consumer could not show that an objectively reasonable consumer would agree with her interpretation of “all natural” based on the dispute over the use of GMOs and the fact that there is a lack of consensus on the use of such products. Also, the majority of the products did not bear the “all natural” labelling and did not contain the alleged misrepresentation during the entire class period. The consumer could not show that Crisco oils “explicitly and continually” presented the deceptive message to the public in a manner that would support finding that any purchaser of Crisco products was subject to the alleged misrepresentation, regardless of which product was purchased or when it was purchased. Based on the facts presented, individualized hearings would be required to determine whether each class member believed a product labelled as “All Natural” but derived from GMOs is indeed not “all natural,” and whether the class member actually purchased a product containing the challenged label.

Injunctive class. An injunctive class certification is appropriate when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

Smuckers argued that the injunctive class claim was moot because it removed or would remove the “All Natural” label from Crisco Oils and would not resume using the label. However, simply stating that it had no intention to resume the disputed practice was insufficient for the court to conclude that the matter was moot. In order to maintain an injunctive class where the relief sought is both monetary and injunctive or declaratory relief, “declaratory or injunctive relief must be the predominant remedy requested for the class.” The consumer made no effort to demonstrate that the money damages were merely incidental to the injunctive relief. Therefore, the consumer failed to assert an injunctive class.

The case is No. 13-CIV-80581-BLOOM/Valle.

Attorneys: Robert Cartwright Glass (McCabe Rabin, PA) for Melissa Leigh Randolph. Dean N. Panos (Jenner & Block LLP), and Edward M. Waller, Jr. (Fowler White Boggs PA) for J.M. Smucker Co.

Companies: The J.M. Smucker Co.

Cases: Advertising StateUnfairTradePractices FloridaNews