9thCirToday, September 12, the United States Court of Appeals for the Ninth Circuit will hear oral arguments in two class-action food-labeling cases.  The issues before the court are similar and the cases arise from nearly identical facts: the plaintiffs allege that the defendants’ product labels are false or misleading in violation of various state laws because they claim to be “natural.”  The appeals will also be heard by the same panel—Judges Fletcher, Christen, and Friedland.  In considering these two appeals, the Ninth Circuit will have a chance to set a major precedent that could either reduce the flow of food-labeling suits into California-based federal courts or open the spigot even wider.

The similarities between the two cases, Brazil v. Dole Packaged Foods, LLC and Briseno v. ConAgra, Inc., are striking.  The plaintiffs filed putative class actions alleging that the defendants violated various statutory and common-law causes of action by labeling some of their products as “All Natural” or “100% Natural.”  Brazil claims that Dole’s use of “All Natural” on several of its juices’ labels is false or misleading because the company added ascorbic acid (vitamin C) and citric acid.  Both additives occur naturally in the juice products.  Similarly, Briseno claims that ConAgra’s “100% Natural” label is false or misleading because the Wesson Oil in question contains genetically modified organisms (GMOs).

In Brazil, the plaintiff appeals three district court holdings.  First, the court dismissed Brazil’s California common-law fraud claims and several of his state statutory claims because they did not adequately meet the pleading requirements of Federal Rule of Civil Procedure 9.  Further, several of his “causes of action” were in fact duplicative remedies that were unnecessary given his surviving state statutory claims.  Second, after initially certifying Brazil’s claim as a class action, the court decertified the damages class because Brazil’s proposed damages model could not establish damages on a class-wide basis through common proof and therefore individual damage issues predominated in violation of Rule 23.  Third, as outlined by a previous WLF Legal Pulse post, the district court granted Dole’s motion for summary judgment because Brazil could not demonstrate that a reasonable person would be deceived by Dole’s All Natural juice labels.  Since the labels were not misleading, they could not be “unlawful” under the state statutes.

In contrast, the Briseno appeal is much more straightforward.  The district court certified 11 consolidated putative class actions.  The cases involved plaintiffs from 11 states each alleging state-specific statutory violations based on the same Wesson Oil label.  After the district court issued its certification order, ConAgra successfully sought immediate review of that decision.

On appeal, the Ninth Circuit will have to determine the parties’ procedural rights as well as delve into the merits of Brazil’s case.  In so doing, the court will parse federal and state statutory schemes as well as consider larger questions about class-certification rules.  To decide the motion to dismiss and summary judgment issues in Brazil, the Ninth Circuit must determine whether Brazil’s common-law claims are in fact unique causes of action under California law and whether, as Brazil argues, the trial court applied the incorrect legal standard for his state statutory claims.  The parties disagree about the proper method to determine if plaintiffs were misled by Dole’s labels, what a reasonable person would expect, and if the labels are false on their face.

As to class certification, the parties in both Brazil and Briseno contest nearly every element of Rule 23’s class-certification mechanism: typicality, predominance, superiority, and ascertainability.  The parties in both cases hotly contest whose damages model can accurately calculate class-wide injury.  Because the plaintiffs in each case use similar methods to attempt to calculate class-wide damages, and the district courts arrived at opposite conclusions about the models’ accuracy, the Ninth Circuit should address the issue head on and clarify the requirements for a damages-calculation model under Rule 23.  The court also has the opportunity to clarify how district courts should evaluate consumer-fraud claims under Rule 9.

Notably, the Ninth Circuit had originally scheduled consecutive oral arguments in three food-labeling class-action cases.  The third matter was Jones v. ConAgra, a case in which WLF had filed an amicus brief in support of the Respondent and on which we had commented previously in the WLF Legal Pulse.  The court postponed oral argument pending the outcome of a case pending before the US Supreme Court, Microsoft v. Baker.  The issue in that case, in which WLF filed an amicus brief in support of the Petitioner, is whether federal courts have jurisdiction over plaintiffs’ appeal of a denial of class certification when the plaintiffs maneuver themselves into a position to appeal by voluntarily dismissing their claims with prejudice.  The Petitioner in Jones had utilized such a scheme to file its Ninth Circuit appeal too.

Also published by Forbes.com on WLF’s contributor page.