A federal court in California has again denied class certification in a lawsuit alleging that Gerber Products Inc. misbranded baby food, finding that the plaintiff is not entitled to injunctive relief and that the proposed damages models will not provide the correct measure of restitution. Bruton v. Gerber Prods. Co., No. 12-2412 (N.D. Cal., entered February 13, 2018). The complaint alleged that certain “Nature Select” and “Organic” lines of Gerber baby foods made unlawful and deceptive nutrient claims and that the labels did not contain federally required warnings of the high calorie content of the products. After initial rulings on summary judgment were appealed to the Ninth Circuit, the remaining allegations included a claim that the labels violated California’s Unfair Competition Law (UCL) and a claim for unjust enrichment.

The court found that although the plaintiff had standing under the UCL, a class seeking injunctive relief can be certified only if a named plaintiff is subject to a likelihood of future injury. Gerber stopped using the challenged labeling in 2012, so without a likelihood of future injury, the plaintiff had no standing to pursue her unjust enrichment claim and could not represent a potential class, the court held.

In addition, the court found that none of the three proposed damages models could correctly measure Gerber’s alleged misconduct so the plaintiff could not satisfy the predominance requirement for a class action.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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