Friday, September 24, 2010

Esoteric statement can't found class action

Fine v. ConAgra Foods, Inc., 2010 WL 3632469 (C.D. Cal.)

The court denied Fine’s motion for class certification on her UCL, FAL, and CLRA claims.  ConAgra makes microwave popcorn.  In 2007, it announced that it was no longer adding diacetyl, which has been shown to be hazardous to health when heated and inhaled, to its butter-flavored microwave popcorn products. It redesigned packaging for its microwave popcorn to display the words “No Added Diacetyl.”  Fine alleged that she relied on these claims, but asserted that she was deceived because diacetyl is still present in the products.

The court found that Fine established standing by alleging injury—spending money on the popcorn in reliance on the statement on the packaging.  But she wanted a class of all purchasers, not all who relied on the statement.  Class definitions should be tailored to excluded putative class members who lack standing, so this was improper.

Regardless, the class was inappropriate for certification.  Fine properly alleged numerosity and commonality, but got hung up on typicality.  ConAgra argued that she failed to adduce facts that other class members have been injured by the same conduct, because the vast majority never read, let alone considered, the statement at issue, don’t know what diacetyl is, and don’t make purchase decisions based on its presence.  The court agreed.  Fine was seeking to certify a class that would likely include people with varying purchase rationales, so she didn’t establish that she was a typical representative of the class, which also made her an inadequate representative.

Even if consumers don't know what diacetyl is, isn't a message "no added diacetyl" necessarily an implication that diacetyl would be a bad thing to have in your microwave popcorn?  That might not be enough, but I wonder how we know that class members didn't read the statement, and why ConAgra put it on the package then.

1 comment:

  1. I would take "no added diacetyl" as a statement of "no diacetyl" unless it clearly said in a place a thoughtful consumer would look that there in fact is diacetyl.

    If you are saying that the court got burden of proof wrong, that there should be a rebuttable presumption of injury to all purchasers, then I agree. Use of the claim on the label suggests that ConAgra thinks consumers attach importance to the absence of diacetyl.