Food for Thought: Sethavanish v. ZonePerfect Nutrition Co.

February 23, 2015
Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907, 2014 WL 580696 (N.D. Cal. Feb. 13, 2014)

Plaintiff’s complaint alleged that the packaging of ZonePerfect’s nutrition bars is misleading because the bars are labeled "All-Natural Nutrition Bars" despite containing ingredients defined as "synthetic" by federal regulations. Plaintiff asserted claims for fraud; unlawful, unfair, and fraudulent business practices; false advertising; violation of the California Consumers Legal Remedies Act; and restitution based on quasi contract. Plaintiff moved to certify a nationwide class and argued that the requirements of Rule 23(a) and 23(b)(3) were satisfied. ZonePerfect argued that plaintiff lacked standing and failed to establish that the proposed class was ascertainable.

Regarding standing, ZonePerfect asserted that plaintiff did not satisfy the first element of Article III standing, requiring that a plaintiff establish an injury in fact. Specifically, ZonePerfect argued that the alleged misrepresentations actually saved her money because plaintiff testified that she purchases nutrition bars that cost more than the product at issue and are not all natural. ZonePerfect also urged the court to reject plaintiff’s claim that she valued all natural products because her declaration, pleadings, and deposition testimony contained representations that she purchased, and has always been willing to eat, food with artificial ingredients. The court nonetheless found that plaintiff plead an injury in fact because she asserted that she would not have purchased ZonePerfect bars but for the "all natural" claim on the packaging. The court did not assess the credibility of plaintiff’s statements and explained that making such a determination on a motion for class certification would be inappropriate.

The court, however, agreed that plaintiff failed to define an objectively ascertainable class. ZonePerfect asserted that the records related to purchases of its nutrition bars identified only a small fraction of consumers. As such, ZonePerfect argued that it would be infeasible to determine whether a putative class member actually purchased its products and in what quantity. The argument was based on the Third Circuit’s opinion in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013). There, the court held that the class was not ascertainable because there was insufficient evidence to show that the retailer records could be used to identify class members. The Carrera court also rejected the plaintiff’s contention that class membership could be determined based on affidavits by putative class members, reasoning this process deprived the defendant of the opportunity to challenge class membership.

The court acknowledged that the Ninth Circuit courts are split on whether to follow Carrera’s holding. The Northern District echoed the Carrera decision in Xavier v. Philip Morris USA Inc., 787 F.Supp.2d 1075 (N.D. Cal. 2011). But the Northern District and Southern District reached a different result in Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) and Astiana v. Kashi Co., 291 F.R.D. (S.D. Cal. 2013). The court found the reasoning of Carrera and Xavier more persuasive. It further explained "even though there is no requirement that a named plaintiff identify all class members, that does not mean that a named plaintiff need not present some method of identifying absent class members to prevail on a motion for class certification.

Read more significant court decisions affecting the food industry in Food for Thought: 2014 Litigation Annual Review.

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