Certification Denied in Parkay Spray Class Action Lawsuit

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

UPDATE 3: October 2020, the Parkay “0 calorie” spray class action website is now live. Click here to learn more about your rights.

UPDATE 2: On June 5, 2019, a federal judge said he is likely to certify state subclasses in a class action lawsuit claiming ConAgra Foods Inc. falsely advertises its Parkay Spray as being fat and calorie free.

UPDATE: On Dec. 10, 2018, claims in a ConAgra cooking spray class action have remained mostly intact, with a federal judge only dismissing some allegations in the suit.

Last week, the plaintiff’s motion for class certification in the Parkay Spray class action lawsuit was denied by a California federal judge who said the plaintiff had not established how to identify Class Members and how purchasers from different states with different laws could join the Class.

Lead plaintiff Erin Allen filed the class action lawsuit last March alleging that the labeling of Parkay Spray misleads consumers about calorie and fat content and that its maker, ConAgra Foods Inc., designed it to be confusing. The plaintiff alleged that this violated the Food, Drug and Cosmetic Act and consumer laws. Allen proposed a Class including consumers from different states and as well as subclasses for claims including breach of express warranty and for violation of various state consumer protection laws.

Last Friday, U.S. District Judge Vince Chhabria issued an order rejecting the plaintiff’s motion for Class certification, but allowed her to seek certification again after discovery ends. Judge Chhabria found that the plaintiff had not established a method to identify Class Members.

“At the beginning of the class period, the front label of the Parkay Spray bottle stated that the product contained zero grams of fat and zero calories,” Judge Chhabria wrote. “Later in the period, the label stated that the product contained zero grams of fat and zero calories ‘per serving.’ Allen only purchased the product with the revised label,” continued the judge. “And it’s conceivable that a jury could find the original label misleading while finding that the revised label is not. If so, Allen’s claim would fail, leaving no one to represent the absent class members who did have a claim based on their purchase of Parkay Spray with the earlier label.”

Judge Chhabria also found that the plaintiff had not explained how the subclasses for claims from consumers from different states would work because states have different consumer protection laws. “[The plaintiff] may well be correct that, among each of the states in the proposed consumer protection subclass, a plaintiff need not provide individualized proof of reliance where the plaintiff can show that an alleged misrepresentation is material under a ‘reasonable consumer’ standard,” began the judge.

“But” he continued, “it appears that differences remain in areas such as scienter requirements and damages, and [the plaintiff] offers only conclusory statements that these differences are immaterial. Moreover, while the various consumer protection statutes appear largely uniform in their prohibition of ‘unfair or deceptive acts or practices,’ [the plaintiff] has not adequately shown that these terms are applied in a uniform manner by courts of the respective states.”

In September, Judge Chhabria allowed the Parkay Spray class action lawsuit to proceed, finding that the claims are not preempted by federal law.

Allen is represented by Steve W. Berman and Shana E. Scarlett of Hagens Berman Sobol Shapiro LLP and Ureka E. Idstrom of The Eureka Law Firm.

The Parkay Spray Class Action Lawsuit is Allen v. ConAgra Foods Inc., Case No. 3:13-cv-01279, in the U.S. District Court for the Northern District of California.