Gerber Gets ‘Good Start’ Formula Suit Tossed

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By Julie A. Steinberg

Nestle SA unit Gerber Products Co. scored a big win when a court threw out a class suit by parents alleging it deceptively marketed “Good Start Gentle” formula as protective against allergies ( Zakaria v. Gerber Prods. Co. , C.D. Cal., No. 15-00200, 8/9/17 ).

The parents can’t prove, as a group, how much extra they say they paid because of the allegedly misleading labels, the U.S. District Court for the Central District of California said Aug. 9.

The court withdrew the class status it had earlier granted.

The inability to show a reliable way to figure out classwide damages often stymies consumer class suits.

Here, plaintiffs’ expert Elizabeth Howlett, a marketing professor at the University of Arkansas business school, used a method that measured consumers’ willingness to pay a premium for the allergy benefits.

Evidence Reliability

But Howlett’s method didn’t measure the price premium actually paid, the court said.

Therefore, it said, her method doesn’t reflect the actual difference, if any, between the amount paid for “Good Start Gentle” and its value in the market.

The court also said the parents couldn’t show classwide liability. Plaintiff Oula Zakaria failed to provide reliable evidence of damages suffered by herself or the class members.

So even if the class were to prevail on liability, there would be no means to calculate damages for anyone, individually or as a class, it said.

The court also tossed Zakaria’s individual claims.

Keller Fishback & Jackson LLP and others represented the plaintiffs.

Kelley Drye & Warren LLP represented Gerber.

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

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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