The Southern District of California recently declined to certify a class based on plaintiffs’ failure to offer class wide proof of deception and materiality.  In Gross et al. v. Vilore Foods Company, Inc., plaintiffs alleged that Kern fruit juice products were deceptively labeled as “100% Natural” or made with whole fruit when the drinks in fact contained artificial ingredients.  Plaintiffs brought claims under various California laws, including the UCL, CLRA, and FAL.  To certify a class, plaintiffs were required to offer common proof both that the challenged representations were deceptive or misleading to a reasonable consumer; and that the challenged representations were material, meaning a reasonable person would attach importance to the representations that Kern’s fruit juice is “100% natural” or made with whole fruit.  The court held that plaintiffs satisfied neither burden.

First, as to deception, the only evidence Plaintiffs cited was their expert’s report.  Plaintiffs’ expert purported to assess the importance consumers placed on certain product attributes, and how claims such as “artificially flavored” affected their willingness to pay for a product.  Plaintiffs’ expert concluded that consumers were willing to pay approximately 29% more for a Kern product that did not disclose its use of artificial flavors, and approximately 30% less for a product disclosing that it contained artificial flavors.  The court found this evidence insufficient because consumers’ willingness to pay more or less for a product said nothing about whether the labels at issue would lead consumers to believe that the products did not contain artificial flavors, or contained only natural flavors.  As a result, the court held that Plaintiffs’ expert’s opinion could not constitute common proof of deception.

Second, as purported class wide evidence of materiality, Plaintiffs relied on a survey in which consumers were asked to rate the importance of certain attributes to their purchasing decisions.  On a scale of 1 to 5 (from “not at all” to “extremely” important), participants in California rated “no artificial flavors” as 3.7 and “all natural ingredients” as 4.0.  And in response to a question about how artificial flavoring would affect the price a participant would pay for a can of Kern fruit juice, approximately 15% said they would not purchase Kern’s fruit juice.

The court found both types of evidence insufficient.  With respect to consumer ratings, the court held that “general perception of juice-based beverages’ attributes” did not constitute common evidence of materiality, because the survey did not test whether the products’ failure to disclose artificial flavoring was material to participants’ purchasing decisions.  Likewise, the fact that some consumers indicated they would not purchase Kern fruit juice with artificial flavoring was not evidence of materiality, because the survey did not isolate artificial ingredients as the reason these consumers purportedly would not purchase Kern beverages.  There was no way to determine if other factors, such as price, promotions, retail positioning, taste, or brand recognition motivated their response.  As a result, the court held that the survey did not constitute common proof of materiality. 

Photo of Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.

Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable…

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable terms.

On behalf of a range of clients in the food, beverage, and consumer packaged goods industries, Cort has navigated pre-complaint disputes and defended multiple class actions implicating deceptive and false advertising practices under California’s UCL, FAL, and CLRA, and other states’ false advertising and unfair competition laws. Cort also has a depth of experience with competition matters, having represented clients in civil class action litigation, non-public governmental investigations of both the civil and criminal variety, and internal investigations. He has had a lead role in cases and investigations implicating the high tech industry, alleged “no-poach” agreements, and price-fixing and similar cartel conduct. He is also a leader in the antitrust bar and the recent chair of the Antitrust Section of the Bar Association of San Francisco.

Cort is a co-chair of Covington’s LGBT+ Affinity Group and is deeply involved in the firm’s efforts to recruit, mentor, and promote diverse attorneys, including LGBT+ attorneys.

Prior to joining Covington, Cort was a national political consultant who specialized in polling and focus group research. He leverages this research background in his litigation practice, particularly in defending consumer cases.

Photo of Brittnee Bui Brittnee Bui

Brittnee Bui is an associate in Covington’s Litigation and Investigations Practice Group. Her practice focuses on complex commercial litigation, class action defense, and white collar matters. She maintains an active pro bono practice, with a focus on civil rights and criminal justice reform.…

Brittnee Bui is an associate in Covington’s Litigation and Investigations Practice Group. Her practice focuses on complex commercial litigation, class action defense, and white collar matters. She maintains an active pro bono practice, with a focus on civil rights and criminal justice reform.

Prior to starting at Covington, Brittnee worked as an extern at the U.S. Attorney’s Office in Los Angeles and competed nationally in trial advocacy competitions.