SAN FRANCISCO (Legal Newsline) - A lawsuit over protein in Killer Bread cleared a major hurdle, with a federal judge certifying it as a class action.
California judge Yvonne Gonzalez Rogers on Sept. 20 granted the motion for class certification of lawyers at Gutride Safier who sued Dave's Killer Bread in December 2021. The ruling takes the case toward a settlement or trial.
The lawsuit says the disclosed protein content on packages is accurate but companies are failing to account for the digestibility of the types of protein. This leads to inaccurate daily value percentages, they say.
Rogers last year denied Dave's Killer Bread's motion to dismiss the case. She was asked to certify a class of California consumers suing under state consumer protection laws, while Killer Bread wanted the declaration of the plaintiff's expert struck.
It also said plaintiff David Swartz's testimony showed he lacked standing to bring the case. Though his theory is that he wouldn't have paid as much for the bread had he known of the protein problems, he actually did buy it after filing suit.
"Plaintiff's claim is based on the allegation that he paid a price premium for a product with an unlawful label to meet his child's nutritional protein needs," Rogers wrote.
"A claim that defendants 'created demand that would not otherwise have existed,' 'causing plaintiffs to overpay' is sufficient to establish Article III standing."
Swartz said his kid had become accustomed to the taste of the bread, so he had to buy it again. He will be the lead plaintiff for a class of customers who bought the bread in California between Dec. 29, 2017, and now.
A survey will determine the price premium Dave's charged, Rogers wrote. Plaintiff expert Colin Weir has proposed a conjoint analysis and damages model to calculate damages.
Dave's tried to have his declaration struck but did not succeed. It argued Weir's survey will focus participants on protein statements and relies on undocumented interviews.
"The survey design interviews at issue are merely a tool used in a survey design, and failure to take notes does not warrant exclusion," Rogers wrote.
"Defendants may still cross-examine Weir 'about the questions in his survey,' regarding its questions, methodology and the lack of development drafts."
After the survey, Weir plans to use a market simulation tool to estimate the price premium paid as a result of front-of-package protein claims.