Tropicana Juice Buyers Say 3rd Circ. Opinion Can’t Block Class Action

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Tropicana buyers who say the juice maker falsely advertises its products as “pure and natural” are urging a federal judge to reject a bid for dismissal, asserting that a recent Third Court precedential opinion has no bearing on this case.

Last week, Tropicana told a New Jersey federal court that the Aug. 16 Third Circuit Appeals Court decision in Harnish v. Widener University School of Law – where the court ruled that students could not prove in class-wide fashion that all Class Members suffered damages –  supports their motion to deny class certification since Tropicana consumers failed to show classwide damages.

However, the consumers say the two cases couldn’t be more different.

According to the juice drinkers, “Harnish involved a putative class of former students who alleges that they were entitled to damages for paying excessive tuition.”

The group further stated that “Unlike this case, Harnish did not involve allegations of a uniformly misbranded and mislabeled product that failed to meet a mandatory standard of identity, nor did it involve omissions of mandated regulatory disclosures.”

In a three-page letter to U.S. District Judge William J. Martini, the plaintiffs argue that Harnish actually undermines Tropicana’s position.

Specifically, certain legal facts and theories in Harnish are not applicable to the Tropicana proposed class action lawsuit, since Harnish’s fraud on the market theory has been mainly limited to securities fraud cases and not consumer price premium theory, the plaintiffs contend.

A price premium theory is often accepted as an appropriate measure of damages for consumer goods across the country.

“Neither plaintiffs nor their experts have ever suggested a fraud on the market theory of damages. Accordingly, any argument that Harnish precludes certification here is illogical, not supported by the case itself and inconsistent with black letter law approving price premium theory as a measure of damages,” the consumers state.

In May, Tropicana drinkers asked the court to certify a Class of US consumers who purchased Tropicana Pure Premium in the past eight years, claiming that Tropicana falsely advertises and labels the orange juice when in actuality it is “pasteurized, de-aerated, stripped of flavor and aroma, stored for long periods of time before available to the public, and colored and flavored before being packaged.”

The consumers are also seeking certification for claims against Tropicana for unjust enrichment, breach of express warranty, numerous violations of New York, New Jersey and California consumer protection as well as consumer fraud laws, according to the proposed order.

In 2013, U.S. District Judge Dennis M. Cavanaugh rejected Tropicana’s dismissal bid, ruling that FDA rules preempted class claims because both state and federal regulations require “accurate and complete labeling of a product’s ingredients,” including the disclosure of added flavoring.

The consumers are represented by Carella Byrne Cecchi Olstein Brody & Agnello PC, Seeger Weiss LLP, Complex Litigation Group LLC, Bursor & Fisher PA, Faruqi & Faruqi LLP, Reese LLP and Ademi & O’Reilly LLP.

The Tropicana Orange Juice False Advertising Class Action Lawsuit is Dennis Lynch v. Tropicana Products Inc., Case No. 2:11-cv-07382, in the U.S. District Court for the District of New Jersey.