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Ninth Circuit Hears Oral Argument in Two Significant Consumer Class Action Appeals

Pineapple_492x328By Kate T. Spelman

On Monday September 12, the Ninth Circuit heard oral arguments in two consumer class action appeals – Brazil v. Dole and Briseno v. ConAgra – that could significantly impact California consumer protection law.  In Brazil, the plaintiffs challenged (among other things) the “all natural fruit” labels on Dole fruit products.  The district court dismissed certain claims at the pleading stage, including the plaintiffs’ theory that Dole’s products were “unlawful” under California’s unfair competition law because they were misbranded and therefore illegal to possess.  The district court later decertified the class based on the plaintiffs’ failure to present a viable class-wide damages model, then granted summary judgment to Dole based on the plaintiffs’ insufficient evidence of consumer deception.  The plaintiffs challenged all of these decisions on appeal.  During oral argument, the Ninth Circuit panel focused on the viability of the plaintiffs’ illegal product theory, questioning whether any consumer had ever been prosecuted for possessing a misbranded product under the California statute at issue.  The panel also asked the parties to address whether the court should defer to the Food and Drug Administration under the primary jurisdiction doctrine, as they did recently in Kane v. Chobani, due to the agency’s anticipated rulemaking regarding “natural” labels.

In Briseno, the plaintiffs challenged ConAgra’s “100% natural” oil on the basis that the product was allegedly derived from GMO ingredients.  In that case, ConAgra appealed the district court’s certification of the plaintiffs’ proposed class, arguing that (1) the court had found ascertainability without evidence of administrative feasibility; (2) the court had failed to require persuasive evidence of materiality, instead relying on general consumer surveys; and (3) the court had permitted the plaintiffs to proffer an untested “hybrid” damages model combining hedonic regression and conjoint analysis.  During oral argument, the Ninth Circuit panel questioned the parties about each of these issues, but focused primarily on ascertainability, inquiring as to whether consumers’ self-identification could sufficiently ascertain the class while protecting the defendant’s due process rights. 

Two related California consumer class action appeals, Kostas v. Del Monte and Bruton v. Gerber, are still pending before the Ninth Circuit.  No argument date has been set in either case, but the Bruton case is being considered for the December 2016 oral argument calendar.  A third related appeal, Jones v. ConAgra, was recently stayed by the court pending the Supreme Court’s resolution of Microsoft Corp. v. Baker, et al., which deals with whether a federal appeals court has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.

The Ninth Circuit’s decisions in these appeals could have wide-ranging implications for California consumer class actions.