Tropicana orange juice. Photo: Shutterstock

A federal judge in Newark, New Jersey, has denied class certification in multidistrict litigation claiming that Tropicana orange juice was falsely promoted as all-natural.

Class certification was withheld because individual issues predominated over common ones when it came to proving the plaintiffs' claims for unjust enrichment, breach of express warranty and violations of the New Jersey Consumer Fraud Act, U.S. District Judge William Martini said Monday in the case, In re Tropicana Orange Juice Marketing and Sales Practices Litigation. In addition, the plaintiffs' failure to demonstrate that the class of orange juice buyers could be readily identified was additional cause for denying certification, Martini said.

The ruling was bad news for the plaintiffs, who claimed that Tropicana's use of the term “100 percent pure and natural” misled consumers because the juice contains flavor additives that are not disclosed. The New Jersey suit was first filed in 2011 and the Judicial Panel on Multidistrict Litigation consolidated cases from around the country in 2012.

The litigation against Tropicana originally sought certification of a nationwide class of buyers of Tropicana Pure Premium orange juice from 2005 to the present. Such a class would have numbered in the millions. But the proposed class that was ultimately ruled on was narrower—consumers from California, New York, New Jersey and Wisconsin who bought Tropicana Pure Premium from membership warehouse clubs or supermarkets or drugstores with loyalty cards from Jan. 1, 2008, to June 22, 2017.

Martini ruled that individual issues predominate over common ones because the plaintiffs' claims for unjust enrichment, breach of express warranty and violation of the New Jersey Consumer Fraud Act require individualized proof.

The plaintiffs' claim for unjust enrichment asserted that consumers did not receive what they paid for, but Martini said unjust enrichment is a quasi-contractual claim that is unsuitable for classwide proof because it requires an inquiry into each plaintiff's reasons for buying the product.

“In the instant case, common questions would predominate plaintiffs' unjust enrichment claims if plaintiffs showed, beyond a preponderance of the evidence, that each of the named plaintiffs and the putative class members bought [Tropicana Pure Premium] because they believed it to be pasteurized orange juice. The record does not so reflect. In fact, the named plaintiffs' own testimony shows quite the opposite: they each testified that they purchased TPP for various reasons,” Martini said.

Martini also found that the plaintiffs failed to show that common issues predominate over individual ones as to breach of express warranty claims. Plaintiffs asserted that resolution of claims that Tropicana falsely labeled its product as conforming to the standard of identity for pasteurized orange juice and containing no flavoring would be the same for all members. But an individual must see the misrepresentation for it to become “part of that individual's basis of the bargain,” and two of the named plaintiffs said they did not remember seeing such a statement on the label, Martini said.

“Their testimony sufficiently shows that individuals behave differently when purchasing TPP, including when deciding whether to review or ignore the product's label,” Martini said.

The varying experiences of plaintiffs regarding the alleged misrepresentation on the product label likewise place individual issues over common ones when it comes to claims under the New Jersey Consumer Fraud Act, Martini said. He cited a survey by a plaintiffs' expert, which showed a great variation on how putative members of a New Jersey subclass would react when told to assume that Tropicana contained added flavors, with 20 percent indicating they would still purchase it.

Martini also found that the plaintiffs failed to demonstrate an ascertainable class after expressing doubt about the plans of an expert for the plaintiffs, Arvind Narayanan, to identify class members through data obtained from retailers that would be evaluated by homegrown computer programs.

“The court does not doubt his ability to write computer programs, but even he admits that the performance of his program will only be as good as the consumer data he puts into it,” Martini said.

Tropicana's lawyer, Daniel Nelson of Gibson, Dunn & Crutcher in Washington, said in a statement:

“We are very pleased with the decision and appreciate the court's thorough analysis of the substantial evidentiary record demonstrating that the plaintiffs' case is not suitable for class treatment.”

The legal team for Tropicana, a subsidiary of PepsiCo, was led by Nelson and also included Geoffrey Sigler, Lucas Townsend and Derek Kraft of the same firm. Liza Walsh, Christine Gannon and Joseph Linares of Walsh Pizzi O'Reilly Falanga in Newark also represented Tropicana.

The plaintiffs were represented by James Cecchi of Carella, Byrne, Cecchi, Olstein, Brody & Agnello in Roseland and Stephen Weiss of Seeger Weiss in New York, who did not return calls.