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Consumer Survey Did Not Constitute Common Proof of Deception or Materiality

By Ashley Simonsen & Cort Lannin on May 18, 2022
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The Southern District of California recently declined to certify a class based on plaintiffs’ failure to offer class wide proof of deception and materiality.  In Gross et al. v. Vilore Foods Company, Inc., plaintiffs alleged that Kern fruit juice products were deceptively labeled as “100% Natural” or made with whole fruit when the drinks in fact contained artificial ingredients.  Plaintiffs brought claims under various California laws, including the UCL, CLRA, and FAL.  To certify a class, plaintiffs were required to offer common proof both that the challenged representations were deceptive or misleading to a reasonable consumer; and that the challenged representations were material, meaning a reasonable person would attach importance to the representations that Kern’s fruit juice is “100% natural” or made with whole fruit.  The court held that plaintiffs satisfied neither burden.

First, as to deception, the only evidence Plaintiffs cited was their expert’s report.  Plaintiffs’ expert purported to assess the importance consumers placed on certain product attributes, and how claims such as “artificially flavored” affected their willingness to pay for a product.  Plaintiffs’ expert concluded that consumers were willing to pay approximately 29% more for a Kern product that did not disclose its use of artificial flavors, and approximately 30% less for a product disclosing that it contained artificial flavors.  The court found this evidence insufficient because consumers’ willingness to pay more or less for a product said nothing about whether the labels at issue would lead consumers to believe that the products did not contain artificial flavors, or contained only natural flavors.  As a result, the court held that Plaintiffs’ expert’s opinion could not constitute common proof of deception.

Second, as purported class wide evidence of materiality, Plaintiffs relied on a survey in which consumers were asked to rate the importance of certain attributes to their purchasing decisions.  On a scale of 1 to 5 (from “not at all” to “extremely” important), participants in California rated “no artificial flavors” as 3.7 and “all natural ingredients” as 4.0.  And in response to a question about how artificial flavoring would affect the price a participant would pay for a can of Kern fruit juice, approximately 15% said they would not purchase Kern’s fruit juice.

The court found both types of evidence insufficient.  With respect to consumer ratings, the court held that “general perception of juice-based beverages’ attributes” did not constitute common evidence of materiality, because the survey did not test whether the products’ failure to disclose artificial flavoring was material to participants’ purchasing decisions.  Likewise, the fact that some consumers indicated they would not purchase Kern fruit juice with artificial flavoring was not evidence of materiality, because the survey did not isolate artificial ingredients as the reason these consumers purportedly would not purchase Kern beverages.  There was no way to determine if other factors, such as price, promotions, retail positioning, taste, or brand recognition motivated their response.  As a result, the court held that the survey did not constitute common proof of materiality. 

Photo of Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.

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Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes consumer and antitrust class action matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has an extensive track record of defeating false advertising, privacy, and competition-related claims.

Cort has defended many…

Cortlin Lannin is a litigator who defends clients in high-stakes consumer and antitrust class action matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has an extensive track record of defeating false advertising, privacy, and competition-related claims.

Cort has defended many of the world’s largest consumer companies from class action litigation. This includes cases alleging false advertising, deceptive trade practices, and privacy violations under California’s UCL and CLRA, New York’s GBL, and other states’ laws. He is experienced at heading off cases before any complaint is filed, successfully dismissing complaints at the pleading stage, and defeating class certification. The Daily Journal has recognized Cort as achieving a “Top Verdict” and as one of California’s Top 100 lawyers, noting that “he has developed a track record of securing dismissals in consumer class action cases before discovery begins—a feat that remains uncommon in a practice area where courts typically allow plaintiffs broad latitude to develop their theories.” He is also an editor of the firm’s Inside Class Actions blog and regularly contributes analyses of new class action decisions and developments.

Cort is also a co-chair of the firm’s Cartel Defense Practice Group and represents companies and individuals facing criminal and civil antitrust investigations, including before the DOJ Antitrust Division and FTC. He has defended his clients in cases implicating the high-tech industry, alleged “no-poach” and wage-fixing agreements, price-fixing, and similar conduct. For his accomplishments, he has twice been recognized as a Top Antitrust Lawyer by the Daily Journal.

Cort maintains an active pro bono practice and is a co-chair of Covington’s CovPride Resource Group.

Watch: Cort provides insights on class action litigation, as part of our Navigating Class Actions video series.

 

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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Inside Class Actions
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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