Although class hurdles of ascertainability and damages modeling at the class certification stage perhaps may be relatively less stringent in the "Food Court" (federal courts in Northern California), on motions for summary judgment and class decertification these same courts very well may scrutinize closely the evidence for the requisite damages modeling and for actual consumer deception.
In Brazil v. Dole Packaged Foods, LLC, the federal district court (Judge Lucy Koh) on May 30, 2014 certified a California state class for damages, and a nationwide class for injunctive relief, as to marketing claims that certain of defendant's fruit cups were "All Natural Fruit." The named plaintiff claimed that three products purchased by him, and seven other "substantially similar" products, were "misbranded" because they contained allegedly synthetic ascorbic acid and citric acid. Explicitly rejecting a more stringent proof of purchase requirement in Carrera v. Bayer Corporation, 727 F.3d 300 (3rd Cir. 2013), the district court found that the class was ascertainable based on "objective criteria" that showed it was "administratively feasible to determine whether a particular individual is a member of the class."
The district court also found that plaintiffs at this stage had fulfilled the requirements set forth in Comcast v. Behrend, 133 S. Ct. 1426 (2013), by proffering "a damages model that is consistent with its liability case." The "regression analysis" proposed (but not yet conducted) by plaintiffs' expert Dr. Capps was sufficient because it isolated "the effect of the alleged misrepresentation by controlling for all other factors that may affect the price of Dole's fruit cups and the volume of Dole's sales." The district court rejected Dole's argument that Dr. Capps had not yet run his regressions, finding that Dole had failed to provide discovery in this regard.
On November 6, 2014, however, the district court decertified the California class as to damages but permitted the nationwide class to proceed for injunctive relief. After an exhaustive analysis of the regression model run by Dr. Capps, the district court concluded that Dr. Capps failed to provide a means of showing damages through common proof. Judge Koh explained that the proffered model could not isolate "the price premium attributable to Dole's 'All Natural Fruit' label only."
Finally, on December 8, 2014, Judge Koh brought the saga to an end by granting Dole's motion for summary judgment. The Court found that plaintiff failed to produce evidence of the requisite consumer deception. Judge Koh found that plaintiff's personal declarations, FDA warning letters, and Dole's alleged failure to comply with FDA regulations were insufficient. Although consumer surveys were not legally required, nevertheless plaintiff was required to produce some evidence that "a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."
The "take aways" here for the plaintiff and defendant alike are that not only must plaintiffs adduce evidence that their damages models work, but as a practical matter it seems that consumer deception surveys are all but required to survive summary judgment in federal court.