Bruton v. Gerber Products Co., No. 12-CV-02412, 2014 WL
2860995 (N.D. Cal. June 23, 2014)
Bruton brought the usual California claims against Gerber
for mislabeling certain food products intended for children under 2. She
challenged Gerber’s nutrient content claims and failure to label certain
products labeled with a “No Added Sugar” or “No Added Refined Sugar” with a
disclosure statement warning of the high caloric value of the products. The court denied class certification on
ascertainability grounds.
A class is ascertainable if it is defined by “objective
criteria” and if it is “administratively feasible” to determine whether a
particular individual is a member of the class. Bruton proposed to certify a class of buyers
of foods within Gerber’s “2nd Foods” category. There were seven product sub-categories and
multiple flavors within each sub-category.
In total, of the 93 varieties of baby food available in the 2nd Foods
product category, 69 products were part of the proposed class.
The court first rejected Gerber’s argument that the class
was unascertainable because Gerber doesn’t track who buys its products. That may be the law of the Third Circuit, but
not the Ninth. See Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013)
(rejecting affidavits from class members as means of identification where
defendant kept no purchase records). “In this Circuit, it is enough that the
class definition describes a set of common characteristics sufficient to allow
a prospective plaintiff to identify himself or herself as having a right to
recover based on the description.”
However, labeling variation proved a fatal flaw. Gerber sold
multiple versions of the same products during the class period. Most, if not
all, consumers likely discarded the product packaging, forcing them to rely on
memory alone, and it was too much to ask them to remember not just whether they
bought 2nd Foods products within the class period, but what the
flavors and labels were.
Of the 69 products at issue, 66 were labeled both with and
without challenged labels during the class period. Because of production and distribution
realities, “a new label produced by Gerber may appear for sale on a store shelf
anywhere between three and thirteen months after the new label is approved.”
Gerber submitted evidence that at some times during the class period, there
were two different labels simultaneously for sale in one store ,”such that on a
given day one consumer may have purchased a product with a challenged label
statement while another purchaser of the same product did not.” The court—Judge
Koh—had recently certified other consumer classes, where all products in the
class definition contained the allegedly problematic statements throughout the
class period, but this was different.
While self-identification with affidavits can be enough for
ascertainability, sometimes it isn’t. In
a case seeking certification of a class of consumers who had smoked twenty
“Pack–Years,” or at least 146,000, Marlboro cigarettes over the class period,
which spanned several decades, the court reasoned that this asked too much of
class members’ prospective members’ memories. “Swearing ‘I smoked 146,000
Marlboro cigarettes’ is categorically different from swearing ‘I have been to
Paris, France,’ or ‘I am Jewish,’ or even ‘I was within ten miles of the toxic
explosion on the day it happened.’” Likewise, another food case involving multiple
products and labels was found unascertainable because the defendant “produced
and sold multiple versions of each of the contested product labels during the
class period, some bearing the allegedly misleading statements and others not.” Consumers would have difficulty remembering
whether or not they bought a product with an allegedly misleading label
statement.
So too here.
Identifying class membership required consumers to remember whether they
purchased a 2nd Foods product in a qualifying flavor; whether the product was
in the appropriate packaging; and whether the product was labeled with a
challenged label statement. But because Gerber sold more flavors of 2nd
foods than included in the class definition, and because Gerber’s flavors were
very similar in name, it was likely that consumers would have difficulty
remembering whether or not they purchased a qualifying product. (For example, Apples
and Bananas with Mixed Cereal or Apples and Cherries flavors were included, but
Apple Peach Squash, Apple Berry with Mixed Cereal, and Apples and Chicken
flavors were not.)
The multiple different labels further complicated the
issue. “Nearly all of the Gerber 2nd
Foods products included in the class definition did not contain any challenged
label statements during a portion of the class period.” Some of the labels were
changed to remove challenged statements; some statements were moved from the
front of the package to less prominent places.
The Apples and Cherries flavor, for example, had six different labels
during the class period, one with a challenged statement on the top, five with
challenged statements on the top and front, and one with no challenged
statements. That made accurate recall
even less likely.
In sum: “[t]he number of products at issue in this case, the
varieties included and not included in the class definition, the changes in
product labeling throughout the class period, the varied and uncertain length
of time it takes for products with new labels to appear on store shelves, and
the fact that the same products were sold with and without the challenged label
statements simultaneously make Plaintiff’s proposed class identification method
administratively unfeasible.” Under these circumstances, affidavits would be
unreliable, especially since Bruton sought money damages and the availability
thereof might “encourage consumers to submit affidavits even though they cannot
remember which products they purchased.”
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