Litigation

Norton Rose Fulbright: Certification of Damages Class Denied in ‘All Natural Fruit’ False Labeling Suit

By Joshua Lichtman

Updating our previous post, another federal district court has interpreted Comcast Corp. v. Behrend  [an enhanced version of this opinion is available to lexis.com subscribers] to require plaintiffs to demonstrate a viable “means of showing damages on a classwide basis through common proof,” and denied certification of a damages class based on a challenge to the validity of the regression model offered by the plaintiff’s expert. At least in California courts, the recent trend appears to be strict adherence to the “viable class-wide damages methodology,” which could be good news for consumer class action defendants.

In Brazil v. Dole Packaged Foods [enhanced opinion], plaintiff alleged that Dole packaged fruit products were falsely labeled as “All Natural Fruit,” in violation of various California consumer protection statutes. Plaintiff moved for certification of a damages class seeking restitution of the “price premium” attributable to the mislabeling—i.e., the difference between what Dole charged and what it would have charged for products without the “All Natural Fruit” label statement.

Plaintiff proposed to establish the “price premium” through the use of a regression model to isolate the impact of the “All Natural Fruit” label statement by comparing Dole’s prices to those of comparable products and then “controlling for the other factors that may affect” product prices. Specifically, the model used as its explanatory variables “package size, seasonality, year, brand, and the presence or absence of” an “All Natural Fruit” labeling claim.

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