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Venable partner Angel Garganta was quoted in an April 3, 2014 Law360 article on a trend of California federal courts' hesitation to certify classes of consumers claiming they were misled by food labels or advertisements. The courts have been relying on two Supreme Court cases in their decisions, Wal-Mart Stores Inc. v. Dukes and Comcast Corp. v. Behrend. Dukes held issues of common facts and law must be analyzed with a “rigorous analysis” with the burden on the movant to show Rule 23 compliance. In Comcast, the Court ruled plaintiffs must show a connection between liability and damages in the class certification stage.

“Courts are looking more closely at the merits at the class cert stage, which is something that the Dukes and Comcast decisions teach,” said Garganta. “Class cert used to be taken for granted by a lot of plaintiffs who would come up with a list of common questions that they wanted to try to answer. But now they can’t just come up with a list; they need to come forward with evidence that shows the questions are capable of resolution on a classwide basis, and that’s not possible in many cases.”

The article cited a January suit in the U.S. District Court for the Northern District of California against Ben & Jerry's Homemade Inc. alleging false advertising by marketing products a synthetic agent as “all natural.” A statewide class was rejected by the court citing by Dukes and Comcast. “Based on Dukes, the court found that the common contention in the ‘all natural’ case was not capable of classwide resolution based in part on the consumer survey evidence and the differences in ingredients from one batch of ice cream to another batch,” said Garganta. “Some batches didn’t include the challenged ingredient, so how could plaintiffs claim they were misled? These are the kinds of issues that I think are making courts look more carefully at these cases.”