Dole Fruit False Ad Class Action Lawsuit Partially Decertified

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The damages Class in the Dole fruit false advertising class action lawsuit was decertified by a federal judge on Thursday of last week.

Lead plaintiff Chad Brazil had accused Dole Packaged Foods LLC of falsely labeling its products as “all natural fruit” in a proposed class action lawsuit filed on April 11, 2012 in California federal court. The plaintiff argued that various Dole products, including Dole Frozen Blueberries, Dole Mixed Fruit in 100% Fruit Juice, Dole Fruit Smoothie Shakers, Dole Mixed Fruit in Cherry Gel, Dole Tropical Fruit in Light Syrup & Passion Fruit Juice, and two types of Dole Frozen Wildly Nutritious Signature Blends, were mislabeled as “all natural” and/or “low calorie” in violation of state and federal law.

In an order issued on Thursday, U.S. District Court Judge Lucy Koh decertified the damages Class in the Dole fruit lass action lawsuit because the plaintiff’s damages model was wrong. Judge Koh explained in her order that the model the plaintiff’s expert put forth to measure damage caused by the alleged mislabeling could not be used to measure only the damages attributable to Dole’s alleged mislabeling.

As a result, continued Judge Koh, the model “fails to provide a means of showing damages on a classwide basis through common proof.” According to Judge Koh’s order, Brazil could not establish that common issues predominate over individual ones, resulting in decertification of the damages Class. “[T]he court finds that Dr. Capps’ regression model does not sufficiently isolate the price impact of Dole’s use of the ‘all natural fruit’ labeling statements,” pointed out Judge Koh in her order.

According to the order, the plaintiff’s expert used a “regression analysis” to determine potential damages. The regression analysis works by comparing differences in sales of Dole fruit products before and after the labels included the words “all natural fruit.” Judge Koh explained that the expert’s analysis must be able to show the difference in price consumers paid for Dole products containing the “all natural fruit” label and those that did not. In this case, the plaintiff’s expert failed to account other variables that could have affected the price of Dole’s products.

The judge also pointed out that the expert’s analysis did not address the possibility that some products may include multiple labeling claims, and overlooked the differences in how various products are packaged. “[I]f the model is unsure whether the non-Dole products actually made an ‘all natural’ labeling claim, then how can the court know whether the price premium the model generates is based on Dole’s labeling claim rather than on some other factor?” said Judge Koh in her order. “Put simply, it cannot,” she continued. “For if another brand’s label makes the claim, and Dole indicates that some of them do, then whatever price difference exists between that brand’s product and Dole’s cannot be attributed to the ‘all natural fruit’ claim.”

Judge Koh did determine that the injunction Class could proceed, however. Judge Koh found that the plaintiff had established a class who purchased Dole fruit products within the class period. In her order, the judge amended the class period to begin Jan. 1, 2009, rather than 2008.

The Dole fruit false advertising class action lawsuit survived a motion to dismiss in September of last year. The judge has yet to issue an order on a motion for summary judgment filed by Dole in September of this year.

Brazil is represented by Ben F. Pierce Gore of Pratt & Associates and Charles Barrett of Charles Barrett PC.

The Dole Fruit False Advertising Class Action Lawsuit is Chad Brazil v. Dole Food Co. Inc., et al., Case No. 5:12-cv-01831, in the U.S. District Court for the Northern District of California.

UPDATE: On Dec. 8, 2014, a federal judge granted Dole’s motion for summary judgment and dismissed the company as a defendant from the class action lawsuit. 

UPDATE 2: On Sept. 12, 2016, Consumers who purchased Dole fruit products that were allegedly misleadingly labeled “all natural” asked the 9th U.S. Circuit Court of Appeals to revive their class action lawsuit, which had been previously dismissed in 2014.

UPDATE 3: On Sept. 30, 2016, plaintiffs in a class action lawsuit alleging Dole misleads consumers by labeling its frozen berry products as “all natural” when they contain synthetic ingredients won in the Ninth Circuit. However, the buyers have more work to do.