SAN FRANCISCO (Legal Newsline) – Rulings to be made by the U.S. Court of Appeals for the Ninth Circuit on cases related to class certification could have a significant impact on a split between federal court stances on how strict the criteria for certification should be, especially for suppliers of dietary supplements faced with lawsuits in California courts.


“If class members must have some kind of proof of purchase, such as a receipt, to show they belong in the class, plaintiffs may be largely unable to bring class actions for inexpensive consumer goods,” attorneys Kathleen Harrison and Micheline Johnson of Baker, Donelson, Bearman, Caldwell & Berkowitz PC told Legal Newsline.

“On the other hand, if no proof of purchase is required, there are fewer barriers to class certification, and defendants may have to defend more class actions.”


The district courts split the center on the definition of an appropriate class of plaintiffs, known as ascertainability, and the awarding class-wide damages in class action lawsuits. Specifically, the courts have been at odds on the issue of what proof a class of consumers needs to provide in cases involving small, often undocumented purchases.


“The Ninth Circuit’s decision on the ascertainability issue could be the difference between defendants being able to cut off liability early on or having to litigate a class action lawsuit, which, due to the time commitment and expense, can put pressure on defendants to settle,” Harrison and Johnson said.


In the false advertising case Briseno v. ConAgra Foods, Inc., the U.S. District Court for the Central District of California granted certification of a class arguing against ConAgra’s allegations that their product was 100 percent natural, The court based the class definition on whether a consumer bought Wesson oils during the class period.


In comparison, the U.S. District Court for the Northern District of California denied a request for certification of a class in Jones v. ConAgra Foods, Inc.. The court found there was no way to determine who had purchased products with labels making the claims in question about ingredients since the allegedly misleading labels were changed during the class period.


In addition, damages were awarded to a class in Brazil v. Dole Packaged Foods, LLC, but the District Court for the Northern District of California eventually decertified the damages class because the class could not “isolate the price premium” related to a claim that a product was improperly labeled as all-natural fruit.


Oral arguments in the Brazil and Briseno appeals will be heard in September. Jones has been stayed to await the outcome of a Supreme Court ruling on a jurisdictional matter in Microsoft Corp. v. Baker.


In Microsoft, Harrison and Johnson said the U.S. Supreme Court will decide whether a federal appellate court has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.

They said the lower court denied class certification in Jones, and Jones then voluntarily dismissed the case with prejudice. Later, Jones appealed the district court’s denial of class certification. If the Microsoft ruling confirms the appellate court’s jurisdiction, then the Ninth Circuit can hear the pending appeal.

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