December 10, 2018

December 10, 2018

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Class Certification Denied in Juice Dispute

Recently, a New Jersey federal district court judge refused to certify a class of consumers claiming an orange juice product was mislabeled as “pasteurized.”  In re: Tropicana Orange Juice Marketing and Sales Practices Litigation, 2018 WL 497071 (D.N.J. Jan. 22, 2018).  According to plaintiffs, Tropicana’s “Pure Premium” orange juice contained added natural flavoring in violation of FDA pasteurization standards.  The court denied the class certification motion because plaintiffs failed to prove that common issues predominated under Rule 23(b)(3) of the Federal Rules of Civil Procedure.  Since multiple named plaintiffs testified that they did not even see the word “pasteurized” on the product label, much less rely on it, class certification was put out to pasture.

At the certification stage, the evidence showed that plaintiffs considered various factors when buying orange juice, including price, vitamin content, taste, reduced sugar content and name recognition.  However, only one of seven named plaintiffs cited the product being pasteurized as a factor in her purchasing decision.  One plaintiff did not recall seeing the word “pasteurized” on the label, and another admitted she did not even look at the label.  Additionally, plaintiffs’ own survey showed that over twenty percent of respondents would purchase the product even with knowledge it did not conform to the FDA’s pasteurization standard, which “suggest[ed] a great variation in how putative subclass members would react to the knowledge that [Tropicana’s Pure Premium] did conform to the standard.”  Id. at *8.  On this evidence, the court held that questions of fact predominated over common issues with respect to all of plaintiffs’ remaining claims for relief.

© 2018 Proskauer Rose LLP.

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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Daniel Werb, Proskauer Rose, litigation attorney
Associate

Daniel Werb is an associate in the Litigation Department.

Prior to joining Proskauer, Dan was a judicial intern for the Honorable Eric N. Vitaliano of the U.S. District Court for the Eastern District of New York. At Columbia Law School, he served as an Articles Editor of the Columbia Journal of Law & the Arts and was an extern at Volunteer Lawyers for the Arts.

212-969-3273