May 19, 2019

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Dishing Out the Latest F&B Litigation Updates: Part 1

In the Third and Eleventh Circuits, Ascertainability Continues to be a Major Certification Hurdle

In Re: Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 2:11-cv-07382, 2018 WL 497071 (D.N.J. Jan. 22, 2018)

The Skinny:  This is the latest food and beverage case from within the Third Circuit to solidify Carrera’s heightened ascertainability standard. The standard is particularly difficult to meet where the plaintiffs’ proposed plan for ascertaining the class cannot be credibly tied to information or documentation that is demonstrably (and not just theoretically) available.

The Meat and Potatoes: Plaintiffs brought claims against Tropicana for the alleged mislabeling and misbranding of Tropicana’s orange juice product, Tropicana Pure Premium (“TPP”). Plaintiffs alleged that Tropicana’s marketing of the product as “pure, natural and fresh from the grove” was false and deceptive because flavoring is allegedly added.

In addition to finding a lack of predominance, Judge William J. Martini of the U.S. District Court for the District of New Jersey denied class certification on ascertainability grounds. The Court rejected the plaintiffs’ expert’s proposal to create a computer program to identify class members based on retailer loyalty card numbers and information submitted by consumers.  The Court determined that the vast majority of relevant retailers lacked the ability to compile the very data plaintiffs’ expert claimed would be required.

In Re: Wasser v. All Market, Inc., No. 16-cv-21238, 2018 WL 5629906 (S.D. Fla. Sept. 26, 2018)

The Skinny:  The Eleventh Circuit also continues to apply a rigorous ascertainability standard.  Having retailer data is very important for establishing ascertainability when dealing with small ticket items for which consumers likely have not saved receipts.

The Meat and Potatoes: Judge Robert N. Scola of the U.S. District for the Southern District of Florida denied class certification in a consumer product deceptive advertising case brought against All Market Inc., the parent company of coconut water manufacturer Vita Coco.  Plaintiffs claimed that the slogan “born in brazil” on the Vita Coco container, led consumers to believe that Vita Coco is sourced only from Brazil, when in fact All Market sourced coconut water from Brazil and other Asian countries.

The court rejected the plaintiffs’ injunctive relief claim because they were not forced to continue purchasing the product and could not be deceived in the future. The Court also found the class was not ascertainabile because the Plaintiffs provided no third party sales data to indicate that self-identification would be a “manageable process” that would not result in “mini-trials.”

Read Part 2 and Part 3 and Part 4.

© 2019 Bilzin Sumberg Baena Price & Axelrod LLP

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Jennifer Junger Commercial LItigator Bilzin Sumberg Law Firm
Associate

Jennifer focuses her practice on commercial litigation. At George Washington University Law School, Jennifer was selected to participate in the Family Justice Litigation Clinic, where she was certified by the D.C. Court of Appeals to appear in court on Family Law matters. During law school, Jennifer served as a clerk for the Senate's Permanent Subcommittee on Investigations, as well as for the Child Exploitation and Obscenity Section of the Department of Justice. Jennifer also worked as a law clerk for the U.S. Attorney's Office for the Southern District of Florida.

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Lori Lustrin, Mortgage Attorney, Bilzin Sumberg Law Firm
Associate

Lori Lustrin is an associate in Bilzin Sumberg's Litigation Group. Lori’s practice focuses on antitrust and federal multidistrict class actions. She also has substantial experience in a broad range of complex business litigation matters, including intellectual property disputes, landlord-tenant disputes, land use litigation, bankruptcy litigation, employment disputes, professional malpractice actions, unfair and deceptive trade practices issues, fraud claims, defamation suits, products liability matters, and international arbitrations. Lori’s varied practice has allowed her to represent clients through trial and appeal, both in Florida and in federal courts across the country.

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Melissa Pallet-Vasquez, Litigation Attorney, Bilzen Sumberg Law Firm
Partner

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in...

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