Ault v. J.M. Smucker Co.

310 F.R.D. 59, 2015 U.S. Dist. LEXIS 103328, 2015 WL 4692454
CourtDistrict Court, S.D. New York
DecidedAugust 6, 2015
DocketNo. 13 Civ. 3409(PAC)
StatusPublished
Cited by10 cases

This text of 310 F.R.D. 59 (Ault v. J.M. Smucker Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ault v. J.M. Smucker Co., 310 F.R.D. 59, 2015 U.S. Dist. LEXIS 103328, 2015 WL 4692454 (S.D.N.Y. 2015).

Opinion

OPINION & ORDER

PAUL A. CROTTY, District Judge:

On May 21, 2013, Plaintiff Adrianna Ault filed her complaint that Defendant J.M. Smucker Co., owner of the Crisco brand, violated N.Y. Gen. Bus. Law (“GBL”) §§ 349 and 350, and breached an express warranty by labelling certain Crisco cooking oils as “All Natural.” This is claimed to be misleading, because the oils are made using genetically modified organism (“GMO”) crops, and are so heavily processed that they are man-made.

On May 15, 2014, this Court denied Defendant’s motion to dismiss the complaint. Plaintiff now seeks class certification, pursuant to Fed.R.Civ.P. 23(a), 23(b)(2), and 23(b)(3), for her N.Y. GBL § 349 claim. Plaintiffs proposed class includes:

Mtn. at 2.

Plaintiff has not demonstrated that the proposed class is ascertainable, or that class-wide issues predominate. Plaintiff has also failed to show that she is entitled to injunc-tive relief. Her motion is DENIED.

BACKGROUND

Defendant acquired the Crisco brand in 2002. Blood Deck, Ex. 3 at 5. Crisco currently sells nine varieties of cooking oil: Vegetable Oil, Com Oil, Natural Blend Oil, Canola Oil, Frying Oil Blend, Canola Oil with Omega-3 DHA, 100% Extra Virgin Olive Oil, Pure Olive Oil, and Light Olive Oil. Lee Deck, Exs. 2-10. At various times between 2002 and the present, certain — but not all— of these oils bore a label stating that the product was “All Natural.” Crisco’s Vegetable and Com Oils bore an “All Natural” label from the time Defendant acquired the brand in 2002. Blood Deck, Ex. 3 at 4-5. The “All Natural” label was added to the Canola and Natural Blend Oils in late 2009; bottles bearing the new labels began shipping to retailers and distributors in 2010. Id.1 The labels of the five remaining varieties (Frying Oil Blend, Canola Oil with Omega3 DHA, 100% Extra Virgin Olive Oil, Pure Olive Oil, and Light Olive Oil) never contained the phrase “All Natural.” Lee Deck, Ex. 22 ¶ 3.

Defendants decided to remove the “All Natural” label from the Natural Label Oils sometime “[pjrior to February 2013.” Id. ¶ 4. In early 2014, Defendant began shipping to retailers and distributors bottles of Vegetable Oil, Com Oil, and Canola Oil that did not contain the “All Natural” labels. Defendant is “currently finalizing ... label artwork” without the “All Natural” label for [63]*63Crisco Natural Blend Oil Id. ¶ 7. Tina Floyd, Defendant’s Vice President of Marketing for Consumer Foods, submitted a sworn declaration stating that Defendant “has no plans to re-introduce the ‘all natural’ claim on the Crisco Oil labels at any point in the future,” and that she “can foresee no scenario under which [Defendant] would consider re-intro-dueing the ‘all natural’ claim on Crisco Oil labels.” Ml8.

According to Plaintiff, the “All Natural” label was deceptive for two reasons. First, Defendant purchases from third parties the crude soy, canola, and corn oils from which it manufactures its cooking oils. Many such crude oils are derived from GMO crops, and Defendant does not differentiate between GMO and non-GMO crops when purchasing crude oils. Blood Deel., Ex. 3 at 8-9. Plaintiff therefore asserts that the Natural Label Oils contain GMO crops, which she claims are not “natural” because they “have had their genetic makeup altered to exhibit traits that are not naturally theirs.” Mtn. at 6.

Second, Plaintiff argues that the “All Natural” label was misleading because the Natural Label Oils are heavily processed using chemicals: after Defendant purchases source oils from its suppliers, it refines the oils using a multi-step process, which includes exposing the oils to high temperatures, treating them with phosphoric acid, running them through centrifuges, bleaching them with dia-tomaeeous earth, and deodorizing them. Id., Ex. 16. Plaintiff argues that, as a result, the Natural Label Oils are “chemically altered” and “highly processed,” and cannot be considered “natural.” Mtn. at 8.

Defendant responds that class certification is improper because the term “natural” is not susceptible to a uniform meaning. The Food and Drug Administration (“FDA”) has declined to adopt a definition of “natural,” Lee Deck, Ex. 23, and Defendant asserts that consumers define “natural” in diverse ways. Defendant points to a survey conducted by its expert, Dr. Itamar Simonson (the “Simon-son Survey”), which determined that 55% of respondents could not define or did not know “what ‘All [N]atural’ cooking oil meant.” Id., Ex. 29 at ¶44. The respondents who attempted to define the term “natural” in the context of cooking oils “provided a wide range of answers.” Id.

Defendant argues that class certification must also fail because consumers bought the Natural Label Oils for many reasons unrelated to whether the products were “natural.” According to the Simonson Survey, respondents’ most common considerations in deciding whether to purchase cooking oil were price and brand awareness. Id., Ex. 29 at ¶ 33. Only 1.6% of respondents indicated that whether an oil was “natural” factored into their purchasing decision. Id.

LEGAL STANDARDS

I. New York General Business Law § 349

N.Y. GBL § 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce.” A claim under § 349 “has three elements: (1) the defendant’s challenged acts or practices must have been directed at consumers, (2) the acts or practices must have been misleading in a material way, and (3) the plaintiff must have sustained injury as a result.” Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir.2007). An act is “misleading” if it is “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Id. (citation omitted). A plaintiff need not prove a defendant’s intent to deceive, Chiste v. Hotels.com L.P., 756 F.Supp.2d 382, 403-04 (S.D.N.Y.2010), nor must a plaintiff show reliance on the misleading act or practice. See Boule v. Hutton, 328 F.3d 84, 94 (2d Cir.2003). In demonstrating that she “sustained injury as a result” of defendant’s action, the plaintiff must merely show that she suffered a loss “because of’ the defendant’s “deceptive act.” Rodriguez v. It’s Just Lunch, Int’l, 300 F.R.D. 125, 147 (S.D.N.Y.2014) (citation omitted).

II. Class Certification

When considering “whether class certification is appropriate,” courts “first ascertain whether [plaintiffs’] claims meet the preconditions of Rule 23(a).” Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201 (2d Cir.2008). [64]*64Rule 23(a) requires plaintiffs to demonstrate that:

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Cite This Page — Counsel Stack

Bluebook (online)
310 F.R.D. 59, 2015 U.S. Dist. LEXIS 103328, 2015 WL 4692454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ault-v-jm-smucker-co-nysd-2015.