Judge Lucy Koh of the Northern District of California recently denied a plaintiff's motion to certify a class of consumers who alleged that Gerber's baby food product labels are unlawful, deceptive, and misbranded in violation of federal and California law." In Bruton v. Gerber Products Co., Case No. 12-CV-02412-LHK (N.D. Cal. Feb. 13, 2018), the plaintiff alleged Gerber's products are "misbranded" because (1) FDA does not authorize nutrient food content claims on foods intended for children under the age of two, yet Gerber made claims about the nutrient content of its products; and (2) Gerber failed to disclose that its products have a high caloric value. The plaintiff sought certification of a class seeking injunctive relief under Federal Rule of Civil Procedure 23(b)(2) and a class seeking restitution and damages under Rule 23(b)(3).
The Court declined to certify the Rule 23(b)(2) class, holding that the plaintiff lacked standing to pursue injunctive relief. Because Gerber had ceased using the challenged statements on its food products, the plaintiff "lacked the real and immediate threat of repeated injury necessary for [the plaintiff] to have standing to seek injunctive relief." The Court distinguished this case from Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017), which holds that "a previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may suffer an 'actual and imminent, not conjectural or hypothetical' threat of future harm." In Davidson, the defendant continued to use the challenged statement on its products. Because Gerber's alleged mislabeling had ceased, there was no risk of actual or imminent future harm, and "nothing in Davidson suggests the Ninth Circuit created a freestanding right to seek injunctive relief based on conduct that has ended."
Denial of the Rule 23(b)(3) class was likewise appropriate, because the plaintiff had failed to set forth a viable damages model: the full refund model wrongly assumed consumers received no benefit from the products; the price premium model presumed that the entire price difference between Gerber food products and other brands was attributable to the challenged statements, and not to other factors "such as brand recognition or loyalty, ingredients, and product quality"; and the regression model "fail[ed] to satisfy Comcast [v. Behrend, 569 U.S. 27 (2013)] because . . . [it] did not show how the model 'controls for other variables affecting price.'"
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