Class Member Test Dominates 9th Cir. Food Label Argument

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By Julie A. Steinberg

Sept. 12— What's required to identify class members took a central role at oral argument in the Ninth Circuit Sept. 12 in a food labeling suit involving “natural” Wesson oils that allegedly contain GMO ingredients ( Briseno v. ConAgra Foods Inc., 9th Cir., No. 15-55727, argument 9/12/16 ).

Judges at times appeared skeptical of ConAgra Foods Inc.'s arguments that self-identification wouldn't suffice to show membership in the purchasing class.

In a separate food labeling suit against Dole Packaged Foods LLC, attorneys for both sides told the court it shouldn't put the case on hold while the Food and Drug Administration ponders whether and when “natural” may be used on food and drink labels ( Brazil v. Dole Packaged Foods LLC, 9th Cir., No. 14-17480, argument 9/12/16 ).

The Ninth Circuit had asked the parties in August to address this question. The court noted that in March, a different Ninth Circuit panel stayed a suit challenging “natural” yogurt labels, citing the FDA's November 2015 request for public comment on use of the term.

Class Membership

“Ascertainability” is significant in consumer litigation because people don’t usually keep receipts for low-cost items.

Federal appeals courts differ on what's needed to show proof of purchase.

The Third Circuit, for example, has adopted a strict test, but other circuits haven't embraced that approach.

And some courts have found plaintiffs can't show class membership when a multiple variations of a product label are at issue—it's too hard for people to remember which version they bought.

ConAgra's attorney told the judges the plaintiffs here failed to demonstrate that the proposed class was ascertainable. Plaintiffs proposed to rely on self identification, she said, but they didn't propose a verifiable plan.

Merely saying that self-identification is enough to show class membership doesn't satisfy the company's right to due process, Angela Spivey said.

But she was pressed on the point, with judges asking why affidavits wouldn't be sufficient.

Adam Levitt, representing plaintiff Robert Briseno, said, “You can't get a cleaner class case than this case. Here, there was one misrepresentation throughout the class period. It's the same label, all the way through,” he said.

“The only way to find that self-identification is improper, is to adopt a presumption that class members are predisposed to lie,” Levitt, with Grant & Eisenhofer P.A. in Chicago, said.

Fletcher said one would hope that class members wouldn't put in a claim form if they didn't remember a purchase.

Those kinds of concerns can be addressed later, through an audit process, Levitt said.

The judges also questioned the attorneys about whether the plaintiffs had presented a classwide way to establish their damages—what they suffered by purchasing “natural” oil they thought wouldn't contain GMO ingredients.

Levitt said the plaintiffs offered a combination of two accepted methods to determine how much price premium is attributable to the label claim.

The judges asked Levitt for authority—whether a court has approved this combined method. He said he didn't have an example.

Spivey, however, pointed the panel to a recent decision in an e-cigarette case, where she said the hybrid model was rejected.

An inability to tie classwide damages to a label statement has stymied some would-be class suits over food and drink marketing.

The U.S. District Court for the Central District of California certified 11 state damages classes in 2015.

Don't Wait for FDA

Plaintiffs in the second case allege in part that Dole “natural” fruit products are misbranded because they contain synthetic preservatives.

Representing plaintiff Chad Brazil, attorney Pierce Gore of Pratt & Associates in San Jose, Calif., said that what the FDA might decide regarding “natural” has no bearing on the issues in this case.

The claims stem from regulatory violations that give rise to claims under California's consumer law.

Brazil challenged a district court's summary judgment for Dole.

William Stern, representing Dole, said this case is distinguishable from Kane v. Chobani, Inc., the yogurt case.

Kane had been dismissed, Stern said, and could be relitigated if the agency changes its policy.

But there was a judgment in the Brazil case. Therefore, any change in FDA policy on “natural” wouldn't be retroactive.

Stern, with of Morrison & Foerster LLP in San Francisco, also said that the Ninth Circuit previously ruled that a stay based on “primary jurisdiction,” can't cause needless delay.

Here, he said the FDA is unlikely to make a determination for at least three years.

The court also questioned whether Brazil has standing to bring claims that the label was illegal under California consumer law.

Judges William A. Fletcher, Morgan Christen and Michelle Taryn Friedland were on the panel.

Pierce Gore of Pratt & Associates in San Jose, Calif., argued for plaintiffs in the Brazil case.

William Stern of Morrison & Foerster LLP in San Francisco argued for Dole.

Adam J. Levitt of Grant & Eisenhofer P.A. in Chicago argued for plaintiff Robert Briseno.

Angela Spivey of McGuire Woods in Atlanta argued for ConAgra.

To contact the reporter on this story: Julie A. Steinberg in Washington at

To contact the editors responsible for this story: Steven Patrick at

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