9th Cir. Food Label Suits Set for September Argument

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By Julie A. Steinberg

July 6 — The U.S. Court of Appeals for the Ninth Circuit has scheduled oral argument for Sept. 12 in three closely watched food labeling cases that raise significant issues in consumer class actions over low-cost items.

The cases could let the Ninth Circuit add its voice to those of other federal appeals courts in deciding the proper test for identification of class members.

It may also address whether the plaintiffs offered sufficient proof of classwide damages (17 CLASS 401, 4/22/16).

The plaintiffs contend they were misled by “natural” wording on the labels of cooking oils, tomatoes and packaged fruit.

At issue is whether their method for estimating damages can isolate how much of a plaintiff's purchasing decision is attributable to the allegedly deceitful labeling statement.

An inability to ascertain who bought the product and an inability to tie classwide damages to a label statement have stymied some would-be class suits over food and drink marketing.

Federal judges have ruled differently on the ascertainability requisite for class status, creating a district court split within the Ninth Circuit.

A larger split among some of the federal circuits also exists over the proper test for class membership.

The U.S. Supreme Court declined this term to hear two dietary supplement cases that addressed the class membership test (17 CLASS 362, 4/8/16).

The Ninth Circuit cases are: Briseno v. ConAgra Foods, Inc., 9th Cir., No. 15-55727 ; Jones v. ConAgra Foods, Inc., 9th Cir., No. 14-16327 ; and Brazil v. Dole Packaged Foods, LLC, 9th Cir., No. 14-17480 .

The court said in January it would hear argument on the three cases together. Each case will be argued separately but before the same panel of judges.

Milberg LLP and Grant & Eisenhofer P.A. represent the Briseno plaintiffs.

Pratt & Associates and Shelton Davis PLLC represent Levi Jones.

Charles Barrett P.C. and Pratt & Associates represent Chad Brazil.

Morrison & Foerster LLP represents Dole.

McGuire Woods represents ConAgra Foods in Briseno and Jones.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bna.com

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Nicholas Datlowe at ndatlowe@bna.com

For More Information

The oral argument calendar is available at http://www.ca9.uscourts.gov/calendar/view.php?caseno=14-16327

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