[co-author: Ethan Schwab]
On May 28, 2024, Chief Magistrate Judge Donna M. Ryu, of the United States District Court for the Northern District of California, certified a class of consumers in an action against Barilla Foods.1 The putative class action alleged that Barilla’s packaging and labeling misled consumers to believe that Barilla pasta products are produced in Italy and are sourced from Italian ingredients, when many of Barilla’s pasta products are produced in either New York or Iowa. The labeling statement at issue is “ITALY’S #1 BRAND OF PASTA”—which was prominently displayed on the front side of the packaging alongside colors of green, white, and red—the colors of the Italian flag.2
Plaintiffs filed the action on June 11, 2022, asserting claims on behalf of a California class under the California Unfair Competition Law and False Advertising Law, the Consumers Legal Remedies Act, as well as claims for breach of warranty, and unjust enrichment/restitution.3
Barilla opposed certification on ascertainability grounds, arguing that because Barilla had since changed the packaging on 34 of 54 products at issue to remove the labeling statement, it would be impossible to determine which class members were in fact injured by the alleged misrepresentations.4 The court rejected this argument, noting that under the Ninth Circuit’s decision in Briseno v. ConAgra Foods, Inc.5, it is not required that a class be ascertainable to be certified. The court also noted that the inclusion of some individuals who have suffered no harm as a result of the defendant’s conduct is not an impediment to certification.6
Barilla is the latest in a long line of cases creating a circuit split on the issue of whether ascertainability is a prerequisite to Rule 23 certification. The First, Third, and Fourth circuits require that a class be ascertainable to be certified. By contrast, the Second, Sixth, Seventh, Eighth, and Eleventh Circuits have aligned with the Ninth in holding that ascertainability is not an additional requirement. Notably, the Eleventh Circuit recently reversed course in Cherry after years of requiring that ascertainability be satisfied.7
The Barilla court also rejected Barilla’s attempt to challenge the conjoint survey methodology offered by plaintiffs’ experts to demonstrate class-wide damages. Barilla did not dispute that conjoint analysis is a well-accepted technique to determine a price premium attributable to a labeling statement. Rather, Barilla’s expert argued issues pertaining to the weight to be given to the plaintiffs’ experts’ findings and not its admissibility.8 The court emphasized that at the certification stage, plaintiffs need only demonstrate that their proposed methodology is capable of meeting the class-based damages requirements under Rule 23 and Comcast. As the court observed, Barilla will have the opportunity to challenge the merits of the plaintiff’s conjoint analysis and survey results and seek exclusion once the analysis is performed.10
Plaintiffs continue to face significant headwind in product labeling litigation, particularly in cases involving alleged misrepresentations that run afoul of the “reasonable consumer” standard. However, as Barilla demonstrates, district courts appear to be more inclined to certify classes based on deceptive marketing related to the product’s and its ingredients’ country of origin. And, where survey work and price premium analysis confirm that pricing and consumers’ buying decisions may have been influenced by the labeling statement, courts are increasingly inclined to allow the case to proceed to the fact-finding stage.
We will provide updates as the Barilla case proceeds.
1 Sinatro et al. v. Barilla America, Inc., No. 4:22-cv-03460, Docket No. 78 at 1 (N.D. Cal. Jun 11, 2022) (Order on Motion for Class Certification and Motion to Exclude Defendant’s Expert).
2 See id. at 2.
3 Id. at 3.
4 Id.
5 844 F.3d 1121, 1123, 1133 (9th Cir. 2017).
6 See Sinatro et al., No. 4:22-cv-03460, Dkt. No. 78 at 9 (citing Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th Cir. 2016)).
7 Cherry v. Dometic Corp., 986 F.3d 1296 (11th Cir. 2021).
8 See Sinatro et al., No. 4:22-cv-03460, Dkt. No. 78 at 19.
9 Comcast Corp. v. Behrend, 569 U.S. 27 (2013).
10 See Sinatro et al., No. 4:22-cv-03460, Dkt. No. 78 at 19.
