Multiple Gerber Labels Concern 9th Circuit Judges

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By Julie A. Steinberg

Dec. 13 — Multiple Gerber baby food labels and their role in class certification in a false advertising suit was the focal point of oral argument at the Ninth Circuit Dec. 13 ( Bruton v. Gerber Prod. Co., 9th Cir., No. 15-15174, oral argument 12/13/16 ).

Natalia Bruton alleged deceptive statements about the nutritional benefits of Gerber products made them seem healthier than competitors’ baby foods.

But the Ninth Circuit judges were concerned about a piece of the ascertainability puzzle to certify a class: What plaintiffs must offer to show membership in the purchasing class.

The appeals panel questioned whether prospective class members could accurately recall what they had bought, given the 69 products and multiple labels involved.

The U.S. District Court for the Northern District of California previously declined to certify a class, finding it would be asking too much of a consumer’s memory.

Federal courts diverge on the legal standard for class membership.

The U.S. Court of Appeals for the Third Circuit has imposed a tough burden on plaintiffs. It has disallowed self-identifiation and asked for objective evidence such as a purchase receipt.

The Seventh Circuit has held that ascertainability is met as long as the class definition is spelled out clearly and objectively.

The court also endorsed class members’ ability to self-identify through affidavits when other means of identification aren’t available.

The Ninth Circuit hasn’t yet weighed in on the issue.

Not Total Recall for Everyone

Attorney Pierce Gore, representing the plaintiffs, said Natalia Bruton kept packaging of the specific products she bought, and remembered her baby food purchases.

Gore, with Pratt & Associates in San Jose, also said the plaintiffs “would be fine” with the standard set by the Seventh Circuit.

But Judge Milan D. Smith, Jr. asked Gore, “How would you litigate?” the case regardless of what legal standard were to apply.

Smith said he has children and knowledge of baby food products and “can’t imagine” other class members being as meticulous as Bruton.

Gore said class members self-identify in small-dollar consumer suits, and a claims administrator would weed out improper claims later.

Do We Wait?

Judge Diarmuid F. O’Scannlain noted that a different Ninth Circuit panel is considering Briseno v. ConAgra Foods Inc., No. 15-55727, which also raises the ascertainability question, and brought up Ninth Circuit policy of deferring to the first panel that has a particular issue.

Gore said the plaintiffs “would be fine with that.”

During argument in the Briseno case, which involves Wesson oil, judges were skeptical of ConAgra Foods Inc.'s arguments against self-identification as a means to show membership in the purchasing class.

But that case, argued in September, involved a consistent label statement and few product varieties.

Attorney Bryan Merryman, who argued for Gerber, urged the panel to decide the Bruton case without waiting for Briseno.

The Ninth Circuit could affirm the denial of class status on the same facts the district court did, and for reasons other than ascertainability, he said: The myriad label variations mean there’s no predominance of common issues, and a class wouldn’t be manageable.

Merryman is with White & Case LLP in Los Angeles.

Deception Questioned

The court also homed in on whether Bruton showed a reasonable consumer would be deceived by the labeling, which included statements that the baby food was an “excellent source” or a “good source” of various vitamins and minerals.

The district court granted summary judgment to Gerber, ruling that the plaintiff didn’t show the statements were deceptive.

Bruton testified she was deceived by the label, but “she can’t speak for the class,” Judge O’Scannlain said.

Merryman told the panel Bruton offered no evidence to show that a significant portion of the consuming public would likely be deceived by the baby food label statements.

Judges Diarmuid F. O’Scannlain, Ronald M. Gould and Milan D. Smith, Jr. heard argument.

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

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

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