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Brazil v. Dole Packaged Foods, LLC

United States District Court, Northern District of California, San Jose Division

November 6, 2014

CHAD BRAZIL, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff,
v.
DOLE PACKAGED FOODS, LLC, Defendant

For Chad Brazil, individually and on behalf of all others similarly situated, Plaintiff: Alex Peet, LEAD ATTORNEY, Dewitt Marshall Lovelace, Sr., Lovelace Law Firm, P.A., Miramar Beach, FL; Ben F. Pierce Gore, LEAD ATTORNEY, Pratt & Associates, San Jose, CA; David Shelton, LEAD ATTORNEY, David Shelton, PLLC, Oxford, MS; Frank Karam, LEAD ATTORNEY, Ananda N. Chaudhuri, Fleischman Law Firm, New York, NY; Brian K Herrington, PRO HAC VICE, Don Barrett, P.A., Lexington, MS; Carol Nelkin, Nelkin, Nelkin & Krock, PC, Houston, TX; Charles F. Barrett, Charles Barrett, P.C., Nashville, TN; Colin Harvey Dunn, PRO HAC VICE, Clifford Law Offices, P.C., Chicago, IL; David Malcolm McMullan, Jr., Don Barrett, P.A., Lexington, MS; J. Price Coleman, Coleman Law Firm, Oxford, MS; Jay P. Nelkin, Nelkin & Nelkin, P.C., Houston, TX; John W. (Don) Barrett, Katherine B. Riley, Don Barrett, P.A., Lexington, MS; Keith M. Fleischman, The Fleischman Law Firm, New York, NY; Kristofer Scott Riddle, PRO HAC VICE, Clifford Law Offices, Chicago, IL; Richard Barrett, Law Offices of Richard R. Barrett, PLLC, Oxford, MS; Robert Anthony Clifford, PRO HAC VICE, Clifford Law Offices, P.C., Chicago, IL; Stuart M Nelkin, Nelkin, Nelkin & Krock, PC, Houston, TX.

For Dole Packaged Food, LLC, Defendant: William Lewis Stern, LEAD ATTORNEY, Claudia Maria Vetesi, Morrison & Foerster LLP, San Francisco, CA; Lisa Ann Wongchenko, Morrison Foerster LLP, San Francisco, CA; William Francis Tarantino, Morrison & Foerster, San Francisco, CA.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DECERTIFY [REDACTED VERSION]

LUCY H. KOH, United States District Judge.

Before the Court is a Motion to Decertify brought by Defendant Dole Packaged Foods, LLC (" Dole"), a subsidiary of Dole Food Company, Inc. ECF No. 171 (" Mot."). Plaintiff Chad Brazil (" Brazil") opposes the motion, ECF No. 177 (" Opp'n"), and Dole has replied, ECF No. 202 (" Reply"). Having considered the submissions of the parties, the relevant law, and the record in this case, the Court hereby GRANTS in part and DENIES in part Dole's Motion to Decertify.

I. BACKGROUND

A. Factual Background

Dole, a limited liability corporation with principal place of business in Westlake Village, California, " is a leading producer of retail food products" that sells " to consumers through grocery and other retail stores throughout the United States." ECF No. 148, Third Amended Complaint (" TAC") ¶ ¶ 16-17.

Brazil is a California consumer who " cares about the nutritional content of food and seeks to maintain a healthy diet." TAC ¶ ¶ 15, 76. " All of the misconduct alleged [in the TAC], " Brazil claims, " was contrived in, implemented in, and has a shared nexus with California." Id. ¶ 18. From April 11, 2008, to the present, Brazil has spent over $25.00 on Dole's food products, which he contends are " misbranded" in violation of federal and state law. Id. ¶ ¶ 1, 5, 76. In particular, Brazil alleges that he purchased the following three food products:

(1) Dole Frozen Wildly Nutritious Signature Blends--Mixed Fruit (12 oz. bag);
(2) Dole Mixed Fruit in 100% Fruit Juice (4 oz. cups); and
(3) Dole Tropical Fruit in Light Syrup & Passion Fruit Juice (15.25 oz. can).

Id. ¶ 2. Brazil refers to these products collectively as the " Purchased Products." Id.

The TAC also alleges claims based on seven additional products that Brazil did not purchase, but which are, according to Brazil, substantially similar to those that he did in that they " (i) make the same label representations . . . as the Purchased Products and (ii) violate the same regulations." They include:

(4) Diced Peaches in 100% Fruit Juice (4 oz. plastic cups);
(5) Diced Apples in 100% Fruit Juice (4 oz. plastic cups);
(6) Diced Pears in 100% Fruit Juice (4 oz. plastic cups);
(7) Mandarin Oranges in 100% Fruit Juice (4 oz. plastic cups);
(8) Pineapple Tidbits in 100% Pineapple Juice (4 oz. plastic cups);
(9) Tropical Fruit in 100% Juice (4 oz. plastic cups); and
(10) Red Grapefruit Sunrise in 100% Juice (4 oz. plastic cups).

Id. ¶ 4. Brazil refers to this second group of products as the " Substantially Similar Products." Id. ¶ 3.

Brazil alleges that Dole makes numerous representations on the labels of these ten products that are unlawful, as well as false and misleading, under federal and California law. TAC ¶ ¶ 8-14. According to Brazil, regulations issued by the Food and Drug Administration (" FDA") dictate that Dole may not claim that a product is " all natural" if it contains " unnatural ingredients such as added color, [or] synthetic and artificial substances." Id. ¶ 30; see also 21 C.F.R. § 101.22 (setting forth the circumstances under which added colors and artificial flavors must be disclosed on a package's label). Dole's products are mislabeled, Brazil alleges, because they " contain artificial ingredients and flavorings, artificial coloring and chemical preservatives, " precluding Dole's use of the term " natural." TAC ¶ ¶ 36-39. Specifically, Brazil contends that all ten of the products listed above contain the label statement " All Natural Fruit, " which Brazil alleges is misleading because all ten products contain ascorbic acid (commonly known as Vitamin C) and citric acid, both allegedly synthetic ingredients. ECF No. 142, Order Granting in Part and Denying in Part Brazil's Motion for Class Certification (" Class Cert Order") at 3.

B. Procedural History

Brazil filed his original Complaint on April 11, 2012, naming both Dole Packaged Foods, LLC, and Dole Food Company, Inc., as Defendants. ECF No. 1. Brazil brought claims under, inter alia, California's Unfair Competition Law (" UCL"), Cal. Bus. & Prof. Code § 17200 et seq .; Fair Advertising Law (" FAL"), id . § 17500 et seq .; and Consumers Legal Remedies Act (" CLRA"), Cal. Civ. Code § 1750 et seq . Defendants filed a Motion to Dismiss on July 2, 2012. ECF No. 16. Rather than responding to the motion, Brazil filed a First Amended Complaint (" FAC") on July 23, 2012. ECF No. 25. The Court then denied Defendants' Motion to Dismiss as moot. ECF No. 28.

On August 13, 2012, Defendants filed a Motion to Dismiss the FAC. ECF No. 29. Brazil opposed the motion on August 31, 2012, ECF No. 35, and Defendants replied on September 14, 2012, ECF No. 37. After holding a motion hearing on January 24, 2013, ECF No. 53, the Court granted in part and denied in part the Motion to Dismiss on March 25, 2013, ECF No. 59. The Court granted leave to amend, and Brazil filed a Second Amended Complaint (" SAC") on April 12, 2013. ECF No. 60. In response to the SAC, Defendants again filed a Motion to Dismiss on April 29, 2013. ECF No. 62. Brazil opposed the motion on May 20, 2013, ECF No. 68, and Defendants replied on June 3, 2013, ECF No. 71. The Court granted in part and denied in part the Motion to Dismiss on September 23, 2013. ECF No. 76. The parties then stipulated to the dismissal of several products that Brazil testified he had never purchased. ECF No. 88 at 2. In addition, the stipulation dismissed Defendant Dole Food Company, Inc., from the case. Id.

Brazil filed a Motion for Class Certification on January 31, 2014. ECF No. 96. Dole opposed the motion on March 6, 2014, ECF No. 105, and Brazil replied on March 27, 2014, ECF No. 117. The Court granted in part and denied in part the Motion for Class Certification on May 30, 2014. Class Cert Order at 1. In its May 30 order, the Court certified two classes. Id. at 35. The first, certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure (the " Injunction Class"), includes:

All persons in the United States who, from April 11, 2008, until the date of notice, purchased a Dole fruit product bearing the front panel label statement " All Natural Fruit" but which contained citric acid and ascorbic acid. Excluded from the class are (1) Dole and its subsidiaries and affiliates, (2) governmental entities, and (3) the Court to which this case is assigned and its staff.

Id. The second, certified under Rule 23(b)(3) (the " Damages Class"), includes:

All persons in California who, from April 11, 2008, until the date of notice, purchased a Dole fruit product bearing the front panel label statement " All Natural Fruit" but which contained citric acid and ascorbic acid. Excluded from the class are (1) Dole and its subsidiaries and affiliates, (2) governmental entities, (3) the Court to which this case is assigned and its staff, and (4) All persons who make a timely election to be excluded from the Class.

Id.

With respect to the Damages Class, Brazil's damages expert, Dr. Oral Capps, advanced three models for measuring " the price premium attributable to Dole's use of the 'All Natural Fruit' label statements." Class Cert Order at 26. Of those three, the Court accepted only the model based on " econometric or regression analysis" (the " Regression Model"). Id. at 29. The Court concluded that the Regression Model, as presented to the Court then, " provide[d] a means of showing damages on a classwide basis through common proof, " thus " satisf[ying] the Rule 23(b)(3) requirement that common issues predominate over individual ones." Id. at 34. In reaching this conclusion, the Court rejected Dole's argument that class certification should be denied " because Dr. Capps ha[d] not yet run his regressions." Id. at 31. The Court did so because Dole's failure to provide the necessary discovery was the reason Dr. Capps had been unable to run his regressions. See id . at 31-32. Declining to allow Dole to ...


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