Venable partner Angel Garganta was interviewed in a January 4, 2017, FoodNavigator article on the Ninth Circuit's decision to uphold a lower court's class certification in a false advertising case against ConAgra. Claims in multiple states allege that ConAgra falsely advertised Wesson cooking oils as "100% natural" when they were made with genetically modified crops. The court's published opinion only addressed how to identify class members while an unpublished memorandum focused on other issues including how to calculate damages.
Reacting to the court's ruling, Garganta said, "The published opinion is definitely not helpful to defendants opposing class certification, but it is not a surprising result in the Ninth Circuit…"
"The unpublished decision is obviously also not helpful, but gives short shrift to most of the issues. The two points in the unpublished opinion that are likely to get the most play from plaintiffs' lawyers are the discussion of damages…and the eleven statewide classes."
"Coming up with an adequate class wide damages model in ‘all natural’ and other food labeling cases continues to be a challenge for plaintiffs, so they'll take comfort in the Circuit's affirmation on this point. And courts are generally reluctant to certify either nationwide or multiple statewide classes given the material differences in state laws, so plaintiffs will jump on that point as well. But keep in mind that the standard of review was merely abuse of discretion, so all the Circuit is saying is that the district judge did not abuse her discretion, not that her approach was the required one under the law."