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May 08, 2017 - Class Certification, FDA, Food Misbranding, Class Action

Ninth Circuit Revives Gerber Baby Food Class Action

Ninth Circuit Revives Gerber Baby Food Class Action

Bruton v. Gerber, No. 15-15174.  The district court had dismissed Plaintiff’s unjust enrichment claim, denied class certification for lack of an “ascertainable class,” and granted summary judgment to Gerber because Plaintiff lacked evidence of deception.  The Ninth Circuit reversed the rulings and remanded the case.

Background of the Case.  Plaintiff alleged that the labels on certain Gerber baby food products included claims about nutrient and sugar content that violated FDA’s regulations as incorporated into California law.  Plaintiff sued over 69 different Gerber products, with 66 labeled both with and without challenged labels during the class period.  Plaintiff brought claims under California’s consumer protection laws, as well as for unjust enrichment/quasi-contract.

Unjust Enrichment/Quasi-Contract.  The Ninth Circuit first found that the district court erred in dismissing Plaintiff’s unjust enrichment/quasi-contract claim at the motion to dismiss stage.  While acknowledging that it was uncertain whether unjust enrichment was a standalone cause of action under California law at the time of the district court’s order, it held that the California Supreme Court had since clarified that an independent claim for unjust enrichment could proceed.  As such, it reversed the dismissal and remanded for the district court’s consideration of whether there are other grounds on which Plaintiff has failed to state a claim for unjust enrichment.

Class Certification.  The Court of Appeals next addressed class certification.  It held that the district court erred in holding that the class could not be certified because it was not “ascertainable.”  It clarified that, again, the district court’s ruling contravened a later Ninth Circuit decision:  Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).  In Briseno, the Ninth Circuit used different terminology for what the district court called “ascertainability” and held that there was no separate “administrative feasibility” requirement for class certification.  Because the district court’s decision ran contrary to Briseno, the Court reversed and remanded for further consideration regarding whether class certification is appropriate.

Summary Judgment.  Finally, the Ninth Circuit reversed the lower court’s ruling on summary judgment.  First, it held that the district court erred in holding that there was no genuine dispute of material fact on Plaintiff’s claims that Gerber’s labels were deceptive under California consumer deception laws.

Second, the Court confirmed that Plaintiff presented a viable theory of deception:  the combination of (a) claims on Gerber’s products in violation of FDA regulations and (b) the lack of such claims on competitors’ products made Gerber’s labels likely to mislead the public into thinking that Gerber’s products were of a higher quality than competitor products.

Third, the Court held that Plaintiff had submitted sufficient evidence to create a genuine issue of material fact:  (a) Gerber’s and competitors’ labels, (b) Plaintiff’s deposition testimony that she was misled, and (c) two FDA warning letters on the claims.  The key evidence, the Court confirmed, is the labels:  “[a] reasonable jury observing Gerber’s labels and comparing them to those of its competitors could rationally conclude that Gerber’s labels were likely to deceive members of the public.”

Finally, the Court held that the district court erred in granted summary judgment to Gerber on Plaintiff’s “unlawful” prong under the UCL.  It found that Plaintiff’s allegations that Gerber “misbranded” its products were sufficient to defeat summary judgment and that the “reasonable consumer test” did not apply to Plaintiffs’ unlawful claims.

Takeaways.  Although an unpublished decision, Bruton v. Gerber answers some open questions in the consumer class action litigation field while leaving others unanswered.

As for ascertainability, Bruton solidifies the Ninth Circuit’s position that there is no “administrative feasibility” requirement for class certification, but it does not address whether a class is ascertainable where consumers cannot reliably determine whether they are eligible to join the class due to label variations on products during the class period.  This issue has also been briefed in the Jones v. ConAgra appeal, which is pending the U.S. Supreme Court’s decision in Baker v. Microsoft.  (Read our prior blog post on Baker here.)  It remains to be seen whether the Ninth Circuit will address this aspect of “ascertainability” as part of its ruling in the Jones case.

As for deception, Bruton arguably lowers the bar for evidence that a plaintiff must submit to get past summary judgment.  Labels, the Court suggests, are enough.  It remains to be seen whether this decision holds and how Bruton will impact consumer class action litigation.