A New Jersey district court denied certification to a putative class of Tropicana orange juice purchasers from “Members Only” or “Loyalty Card” stores in California, New York, New Jersey, and Wisconsin. Plaintiffs alleged various common law and statutory consumer protection causes of action based on Tropicana’s alleged false marketing of its orange juice as “all natural.” The court found that plaintiffs satisfied the four certification requirements of Rule 23(a) but failed to satisfy Rule 23(b)(3) for their damages class or (b)(2) for their fallback injunctive relief class.
In denying certification, the court first addressed plaintiffs’ failure to satisfy Rule 23(b)(3) predominance and superiority requirements with respect to their unjust enrichment claims because each required individualized proof of the benefit of the bargain for which plaintiffs and putative class members purchased Tropicana’s orange juice. Similarly, the court dispensed with plaintiffs’ breach of express warranty and New Jersey consumer fraud act claims because each required individualized proof that plaintiffs and putative class members actually saw and relied on allegedly false statements by Tropicana. Plaintiffs’ remaining claims under California and New York consumer protection laws were different, however, because both applied an objective “reasonable consumer” standard that members of the public were likely to be deceived by the advertising. As a result, the court found that individual issues in these claims would not predominate over common issues as they did for the others.
Nevertheless, the court denied certification of the remaining consumer fraud claims because plaintiffs failed to demonstrate the proposed class was ascertainable. Third Circuit precedent, about which we have blogged in the past (here and here) mandates a “rigorous analysis” of whether the class is currently and readily ascertainable by employing a reliable, objective, and administratively feasible mechanism. Here, as in many consumer fraud cases, the named defendant did not directly sell the product to the putative class members but instead distributed through retailers. Thus, Tropicana did not have the records from which consumers could be identified, and the ascertainability analysis focused primarily on the content and quality of the retailers’ data.
Plaintiffs’ expert proposed to create a computer program that would identify the putative class members based on comparing Member Club or Loyalty Card numbers identified on consumer-submitted electronic claim forms and retailer-supplied customer records. The court identified numerous flaws in the expert’s proposed methodology, however. For example, the evidence in the record showed that other than Costco, hundreds of other retailers involved lacked the capability to easily and accurately retrieve the data that plaintiffs’ expert would need to compare to the consumer-submitted claim forms. Additionally, plaintiffs’ expert had never conducted a project like the one being proposed and knew of no one in the field who had attempted to complete a similar project. The court held that plaintiffs failed to show by a preponderance of the evidence that their expert’s methodology would be successful and, therefore, failed to satisfy the ascertainability requirement.
Finally, the court denied plaintiffs’ request for class-wide injunctive relief under Rule 23(b)(2) because none of the named plaintiffs expressed with certainty that they intended to purchase the same orange juice products in the future, and thus they failed to show a sufficiently real and immediate threat of future injury.
In Re: Tropicana Orange Juice Marketing and Sales Practice Litigation, No. 2:11-07382 (D.N.J. Jan. 22, 2018)