ConAgra Asks for Stay in Wesson Cooking Oil Class Action Lawsuit

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ConAgra seeks to pause a Wesson cooking oil class action lawsuit while the company petitions the U.S. Supreme Court for review.

The Ninth Circuit Court of Appeals issued a mandate in January upholding a lower court’s grant of Class certification in a false advertising class action lawsuit over the labeling on Wesson cooking oil.

Defendant ConAgra Foods Inc. is now asking the appeals court to stay that mandate for 90 days while the company petitions the U.S. Supreme Court to hear the appeal.

Plaintiff Robert Briseño filed this Wesson class action lawsuit back in 2011, claiming ConAgra falsely labels some of its Wesson cooking oil as “100% natural” when in fact they contain products from genetically modified organisms.

The district court eventually certified a plaintiff Class covering persons from 11 states who purchased Wesson cooking oil based on the allegedly deceptive labels.

ConAgra appealed that grant, arguing that Briseño failed to present an “administratively feasible” plan for identifying Class Members. But in a January opinion, the appeals court upheld the district court’s grant of Class certification, holding that applicable court rules do not require Class Members to be ascertainable before certification can be granted.

After the appeals court issued its judgment on Jan. 3, ConAgra asked it to re-hear the appeal with a full panel of judges. The court denied that request on Feb. 14.

ConAgra is now asking the appeals court to stay the mandate it issued, putting the litigation on hold while the company petitions the Supreme Court for review. The company argues that, per applicable court rules, its petition to the Supreme Court raises a “substantial question” and there is good cause for a stay.

The company maintains that ascertainability is indeed a prerequisite to Class certification. Other circuit courts have granted similar stays over the issue of ascertainability, the company says.

However, ConAgra recognizes that the various circuit courts are divided on that particular issue. Such a split makes the issue suitable to bring before the Supreme Court, the company argues.

ConAgra says that, unless a stay is issued, the parties will return to the district court in the meantime and engage in further costly litigation that could be mooted after Supreme Court review.

The stay would also not harm the plaintiffs in this Wesson cooking oil class action lawsuit, since the grant of Class certification allows them to seek only damages, not injunctive relief. Any delay caused by the stay would therefore not prolong any purportedly illegal or harmful conduct by ConAgra.

On the other hand, says ConAgra, both parties would be harmed if a stay is not issued. They would then have to return to the district court and engage in additional discovery and the initial administrative efforts to notify the Class, all of which would be considerably costly.

The plaintiff is represented by attorneys Adam J. Levitt of Grant & Eisenhofer PA and David E. Azar and Andrei V. Rado of Milberg LLP.

The Wesson Cooking Oil Class Action Lawsuit is Robert Briseño v. ConAgra Foods Inc., Case No. 15-55727, in the U.S. Court of Appeals for the Ninth Circuit.

UPDATE: April 2019, the Wesson cooking oil class action settlement is now open. Click here to file a claim.