In the Tropicana Orange Juice multidistrict litigation (MDL), plaintiffs’ bid for class certification has been rejected due to the need for individualized proofs and inability to ascertain class members. On January 22, 2018, U.S. District Judge William J. Martini (DNJ) denied class certification in the multidistrict litigation, In re Tropicana Orange Juice Marketing and Sales Practices Litigation. The lawsuit claimed that “Tropicana Pure Premium” (TPP) orange juice was mislabeled and misbranded as “100% pure and natural” because the juice contains undisclosed natural flavoring in violation of FDA standards of identity for pasteurized orange juice. Plaintiffs also attacked the marketing of TPP as “pure, natural and fresh from the grove” as demonstrably false given the added flavoring. The MDL judge, however, concluded that plaintiffs’ common law and N.J. Consumer Fraud Act (“CFA”) claims were “plainly unsuitable for class certification” because each claim “requires individualized proof.”
Plaintiffs argued that their unjust enrichment claim was uniform because it focused on the TPP label and consumers uniformly paid for pasteurized orange juice that they did not receive. But the court held that defendant would be unjustly enriched only if a consumer did not receive the benefit of the bargain for which she paid, thus “compel[ling] an inquiry as to what exactly was the benefit of the bargain” in each transaction. Because the evidence showed that plaintiffs purchased TPP for various reasons, they could not prove that putative class members bought TPP because they believed it to be pasteurized orange juice.” Certification was denied with respect to common law unjust enrichment claims asserted under New Jersey, New York, California, and Wisconsin laws.
Certification was denied on the breach of warranty claims because the laws of New Jersey, New York, and California required that the statement in question must have been part of the basis of the bargain and the evidence showed that not all class members would have actually seen the statement about pasteurization. Because “reason commands that an individual must actually see or hear a representation for it to become part of that individual’s basis of the bargain,” individualized proof would be necessary to determine whether putative class members actually saw the statement when purchasing TPP.
Relying on the Third Circuit’s decision in Marcus v. BMW, Judge Martini also denied certification of the NJ CFA claims because individualized proofs would be required on the issue of causation. The court rejected the notion of applying a presumption of causation such that all consumers suffered an ascertainable loss because they paid for TPP but did not receive pasteurized orange juice. In this regard, the court explained that the evidence failed to demonstrate that class members all reacted to the pasteurization statements in a sufficiently similar manner, and survey evidence suggested that over 20% of consumers would purchase TPP even with the knowledge that it did not conform to the FDA’s standard of identity.
Because New York and California apply an objective, “reasonable consumer” standard, individual issues would not necessarily predominate as they did with the NJ and common law claims. However, the court denied class certification of consumer protection claims under New York (GBL 349 and 350) and California (UCL, CLRA) laws, for failure to meet the Third Circuit’s ascertainability standard. Plaintiffs could not show by a preponderance of the evidence that all or even a majority of class members could be identified. Data from potentially hundreds of retailers was the critical component in determining ascertainability. That data was not in the record and the court was skeptical that it could be obtained and would be reliable. In so holding, the court distinguished the Third Circuit’s most recent ascertainability decision in City Select Auto Sales Inc. v. BMW Bank of N.A., finding the circumstances more akin to Carrera v. Bayer Corp., where defendant distributed all of its product through retailers.
Finally, the court denied plaintiffs’ request to certify a Rule 23(b)(2) class for injunctive relief because none of the named plaintiffs expressed any certainty that they intend to purchase TPP in the future. Thus, they lacked standing to pursue injunctive relief because they could not show they were likely to suffer future injury from defendant’s conduct, citing McNair v. Synapse Grp. Inc.