Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—N.D. Cal.: Class certification denied in suit over Del Monte fruit and vegetable labeling, (Aug 3, 2015)

By Linda O’Brien, J.D., LL.M.

Consumers of certain Del Monte vegetable and fruit products were unable to obtain class certification in their false and misleading advertising suit against Del Monte over the alleged mislabeling of the food products. The federal district court in Oakland, California determined that the consumers failed to show that the class was readily ascertainable and failed to set forth questions of law or fact common to the class (Kosta v. Del Monte Foods, Inc., July 30, 2015, Rogers, Y.).

In April 2012, a group of consumers filed suit against Del Monte Foods. Their claims were based on allegations that Del Monte mislabeled its "Fruit Naturals" fruit cups, "FreshCut" canned vegetables, and canned tomato products in violation of California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA). In May 2013, the court, in denying Del Monte’s motion to dismiss, determined that the consumers pleaded their unfair competition and false advertising claims with the particularity required by Federal Rule of Civil Procedure 9(b). Before the court was the plaintiffs’ motion for class certification.

The plaintiffs moved, under Fed. Rule of Civil Procedure 23, to certify a class described as “all persons in the United States who, from April 5, 2008 until the date of notice, purchased a defendant’s brand canned tomato product or a defendant’s Fruit Naturals or Sun Fresh fruit products.

Ascertainability. The court determined that the plaintiffs failed to demonstrate that members of the proposed class were readily identifiable by objective criteria. Del Monte contended that purchasers were unlikely to have retained receipts and Del Monte had no records of such purchases. Del Monte also contended that self-identification of class members would be “fraught with errors,” since only certain products within the challenged product lines had alleged mislabeling and packaging.

The court agreed. The plaintiffs’ class definition covered purchasers of any product within the Del Monte canned tomato, Sun Fresh fruit, and Fruit Naturals fruit product lines, regardless of whether every product in those lines, throughout the entire class period, contained the alleged false labeling and packaging. The products varied in the truthfulness of the packaging and labeling of certain Fruit Naturals products. The extent of that variability was compounded over the course of the class period. The court could not say with any confidence that the purchaser of an item in that category was subject to the alleged violations.

Commonality. Furthermore, the plaintiffs failed to demonstrate common questions of law and fact to support class certification. With respect to the question of whether the challenged labels and packaging were unlawful, unfair, deceptive, or misleading, the variations were so great that at least half the challenged products would not evidence the violations alleged. The purchase of one of the products alone would not equate to membership in a class of persons to whom Del Monte was liable, the court noted.

Finally, the plaintiffs also failed to offer evidence that the materiality of the alleged unlawful, deceptive, or misleading statements could be shown on a classwide basis. While materiality and reliance for purposes of UCL, FAL, and CRLA claims could be subject to common proof on a classwide basis under some circumstances, the plaintiffs offered no valid means by which such classwide proof would be made, the court concluded.

The case is No. 4:12-cv-01722-YGR.

Attorneys: Alex Peet (Lovelace Law Firm, PA) for Michael Kosta. William Lewis Stern (Morrison & Foerster LLP) for Del Monte Foods, Inc.

Companies: Del Monte Foods, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews