United States: The Ninth Circuit's Food Court Menu: A Status Update

A few years back, the Northern District of California was dubbed the "food court" based on the influx of food misbranding class actions claiming that alleged FDA regulatory infractions constituted violations of California consumer deception statutes.  The first cases in the misbranding pack were appealed to the Ninth Circuit, with plaintiffs challenging district courts' denials of class certification and grants of summary judgment in favor of defendants, while the matters filed later were stayed pending the Ninth Circuit's guidance on these class certification and summary judgment issues.  Now, the Ninth Circuit has weighed in on a few of the pending misbranding appeals.  But its decisions thus far raise more questions rather than provide clear answers.  Below, we review the status of key Ninth Circuit misbranding appeals as well as the impact of these decisions on class certification and summary judgment standards going forward.

Summary of Status of Food Misbranding Appeals

1. Brazil v. Dole (No. 14-17480). On September 30, 2016, in an unpublished decision, the Ninth Circuit reversed the district court's grant of summary judgment in favor of Dole, but upheld the court's decision to decertify the class.  See Brazil v. Dole Packaged Foods, LLC, 660 F. App'x 531 (9th Cir. 2016).

  • Class Certification.  The Ninth Circuit confirmed that the court did not err in finding that the plaintiff's damages model failed to correctly isolate a price premium. The court further confirmed that price premium was the correct measure of damages for claims that a product was misleading.
  • Summary Judgment. The court held that plaintiff's deposition testimony stating that he was misled by Dole's "all natural fruit" labels—along with letters from the FDA to other companies regarding "natural" label statements and conflicting testimony on the subject—were sufficient to create a material issue of fact to survive summary judgment.  The court, however, rejected the plaintiff's "illegal product theory"—i.e., that possession of a "misbranded" product was "illegal," and accordingly found that any alleged misrepresentations or deception did not amount to unlawful conduct under California's Unfair Competition Law (UCL).

2. Briseno v. ConAgra (No. 15-55727). On January 3, 2017, in a published decision, the Ninth Circuit affirmed the district court's certification of 11 statewide classes and addressed the circuit split regarding standards of ascertainability. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).  ConAgra filed a petition for certiorari with the U.S. Supreme Court, which drew amici support on both sides and is now fully briefed and awaiting a decision on whether it will be heard in the 2018 Term.

  • Class Certification. In Briseno, the Ninth Circuit found that there was no ascertainability requirement for class certification, i.e., there is no requirement that a plaintiff demonstrate that there is an administratively feasible means of identifying absent class members.  The court's conclusion runs contrary to the Third Circuit's decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and its progeny.  The Ninth Circuit stated, however, that it will continue to address ascertainability-related issues, including overbroad class definitions or uninjured class members, through other Rule 23 requirements, such as superiority, commonality, or predominance.  Notably, Briseno did not present a factual situation, such as in Bruton v. Gerber, Jones v. ConAgra, or Kosta v. Del Monte (discussed below), where companies argued that label changes throughout the class period rendered it impossible to identify which consumers were exposed to challenged statements and, accordingly, who was included in the class.

3. Bruton v. Gerber (No. 15-15174). As we previously reported, on April 19, 2017, in an unpublished memorandum, the Ninth Circuit reversed the district court's class certification and summary judgment orders.  Bruton v. Gerber Prod. Co., No. 15-15174, 2017 WL 1396221 (9th Cir. Apr. 19, 2017).  After Gerber petitioned for rehearing, challenging the court's summary judgment decision, the Ninth Circuit issued an updated memorandum on July 17, 2017, in which it modified the summary judgment portion of its order.  Bruton v. Gerber Prod. Co., No. 15-15174, 2017 WL 3016740 (9th Cir. July 17, 2017).

  • April 2017 Order ("Bruton I").

    • Class Certification.  The court found that the district court's denial of class certification on grounds that the class was unascertainable contravened the Ninth Circuit's later decision in Briseno that ascertainability was not a perquisite to certification. Unlike Briseno, however, Bruton involved significant label variations during the class period.  The Ninth Circuit did not address these facts, however.  Instead, it reversed and remanded the case to the district court to determine if class certification was appropriate.1
    • Summary Judgment. The court held that the following evidence was sufficient to raise a material issue of fact as to whether Gerber's labels were deceptive:  (1) the labels themselves, especially when compared to competitor labels that allegedly omitted challenged statements; (2) plaintiff's deposition testimony that she was deceived; and (3) FDA warning letters to Gerber regarding alleged noncompliance with applicable nutrient content regulations.  The court also found that plaintiff did not need to offer proof of deception to support her unlawful UCL claim, as the particular FDA nutrient content regulations that plaintiff alleged Gerber violated did not require evidence of consumer deception.  In this case, "misbranding" was sufficient.
  • July 2017 Order ("Bruton II").

    • Class Certification. The court did not make changes to its class certification ruling, so its reliance on Briseno
    • Summary Judgment. On rehearing, the court reversed its prior ruling that the plaintiff had provided sufficient evidence of deception, instead finding that: (1) Gerber's competitors used the same challenged statements, so the record contravened plaintiffs' theory that Gerber's labels were comparatively misleading; (2) plaintiff's testimony about being misled was "uncorroborated" and "self-serving"; and (3) FDA warning letters to Gerber, "in addition to being informal and nonbinding," did not indicate that Gerber's competitors complied with the law, and therefore did not support plaintiff's theory that Gerber's labels were misleading in comparison to competitors' labels.

Despite reversing course on its deception ruling, the court upheld its prior ruling, however, on the UCL's unlawful prong, finding that the alleged FDA regulatory violations on which plaintiff's unlawful claim was predicated do not require a showing of consumer deception.  The court therefore still reversed the district court's grant of summary judgment on this ground.

4. Jones v. ConAgra (No. 14-16327).  Jones, one of the first misbranding appeals filed, concerns ascertainability and predominance issues arising from label variations as well as class certification damages.  The Ninth Circuit stayed plaintiffs' appeal of the district court's class certification denial, however, pending the Supreme Court's decision in Microsoft v. Baker as to whether plaintiffs could—as they did in Jones—voluntarily dismiss their claims to immediately appeal the district court's class certification order.  As we recently reported, the Supreme Court has confirmed that this tactic violates the spirit and process of Rule 23(f) and is therefore an improper vehicle for appeal.  The plaintiffs in Jones recently agreed to voluntarily dismiss their appeal, likely in light of Baker.  The Ninth Circuit accordingly will not review the important class certification raised by the Jones appeal.

5. Kosta v. Del Monte (No. 15-16974). The Kosta appeal also concerns ascertainability and commonality issues based on variations in challenged label statements throughout the class period.  Kosta, however, was also appealed based on a Baker voluntary dismissal, and the plaintiffs also recently agreed to voluntarily dismiss the case.

Takeaways and Remaining Questions

  • Class Certification Damages. The argument that plaintiffs cannot present a viable damages model that is consistent with the Supreme Court's requirements in Comcast v. Behrend appears to be the strongest blow to class certification.  The Ninth Circuit has confirmed that price premium is the proper measure of damages in a misbranding claim, as plaintiffs' "full refund" model overcompensates the class and is inconsistent with plaintiffs' theory of liability that companies can charge more for a product because of misleading claims.  But plaintiffs have been hard-pressed to provide a damages model (such as regression or conjoint analysis) that isolates the price premium associated with a challenged label statement while controlling for other factors that impact price.  This is a battle of the experts that plaintiffs are thus far losing.  But it is unclear what model would pass muster.
  • Ascertainability. With Briseno and Bruton, the Ninth Circuit has essentially rejected ascertainability as a separate requirement to class certification, but has indicated that ascertainability issues—such as overbreadth or uninjured class members—can be addressed through other Rule 23 requirements.  The Ninth Circuit has also dodged the issue of how label changes throughout the class period impact certification, as the remaining appeals that addressed the issue—Jones and Kosta—were dismissedproceed in light of Baker.  Thus, as of now, the issue of whether changes in label statements over the class period can defeat class certification is unresolved.
  • Summary Judgment. The Ninth Circuit's unpublished decisions in Brazil and Bruton II similarly lead to more questions than answers.  Regarding deception, the court in Brazil found that plaintiff raised a material issue of fact based on the plaintiff's testimony that he was misled, FDA warning letters to other companies, and conflicting testimony on the meaning of "natural."  But in Bruton II, the court found that the plaintiff's testimony that she was misled, FDA warning letters to Gerber, and the labels themselves were insufficient to raise a material issue as to deception.  The Ninth Circuit's position in these two decisions is accordingly inconsistent, and the fault line on what constitutes sufficient or insufficient evidence of deception remains unclear.

Similarly, while Brazil confirms that allegations of deception will not give rise to an unlawful claim in the context of alleged "all natural" violations, Bruton finds that alleged violations of FDA nutrient content regulations are sufficient to state an unlawful claim, as such violations do not require a finding of consumer deception.  Whether a plaintiff can state an unlawful claim separate and apart from alleging deception therefore appears to turn on the nature of the alleged regulatory violations at issue.

We will continue to provide updates on changes to the Ninth Circuit's "food court" menu and the impact on class certification and summary judgment issues based on the court's decisions.


1 The Ninth Circuit also reversed the district court's dismissal of the plaintiff's unjust enrichment/quasi-contract claim, finding that the California Supreme Court had confirmed that unjust enrichment is a standalone claim under California law after the district court issued its order.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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Alexandra E.S. Laks
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