Case Name: Garrett, et al. v. Bumble Bee Foods, LLC
Case No.: 2014-1-CV-264322

This is a putative class action. Plaintiffs Patrick Garrett, Jeff Mains, and Linda Eustice (collectively, “Plaintiffs”) bring this lawsuit against defendant Bumble Bee Foods, LLC (“Defendant”). Plaintiffs allege Defendant illegally misbranded its products by using labeling that included unauthorized Omega 3 nutrient content claims containing the statement “Excellent Source of Omega 3.” (Complaint, ¶ 22.) Plaintiffs also allege Bumble Bee Albacore Tuna in Water is misbranded because the label contains a “heart-check” mark endorsement from the American Heart Association but does not disclose that this was a paid endorsement. (Complaint, ¶¶ 41-44.)

The Complaint, filed on April 25, 2014, sets forth the following causes of action: [1] Business and Professions Code § 17200, et seq. (Unfair Business Acts and Practices); [2] Business and Professions Code § 17200, et seq. (Unfair Business Acts and Practices); [3] Business and Professions Code § 17200, et seq. (Fraudulent Business Acts and Practices); [4] Business and Professions Code § 17500, et seq. (Misleading and Deceptive Advertising); [5] Business and Professions Code § 17500, et seq. (Untrue Advertising); [6] Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq.; [7] Breach of Implied Warranty of Merchantability; [8] Negligent Misrepresentation; [9] Negligence; [10] Unjust Enrichment; [11] Common Count of Money Had and Received; and [12] Declaratory Judgment.

I. Motion for Class Certification

On May 20, 2016, the Court heard Plaintiffs’ motion for class certification. Plaintiffs seek to certify the following class:

All persons in the state of California who, from April 12, 2008 until July 21, 2014, purchased Bumble Bee Foods, LLC’s Solid White Albacore Tuna in Water labeled or advertised as “Excellent Source Omega 3” and/or bearing an American Heart Association seal without disclosing it as a paid endorsement.

In the Court’s tentative ruling posted prior to the May 20 hearing, the Court stated:

In this case, it is not apparent how a very large group of class members will be able to self-identify as class members and ultimately prove their membership. It is unlikely (and Plaintiff provides no evidence otherwise) that class members will have retained receipts for their canned tuna purchases over the course of approximately six years and it is also unlikely they will be able to accurately remember they purchased the specific items at issue in this lawsuit. Under these circumstances, it is difficult to see how class members will be able to be accurately identified. Therefore, the Court is inclined to deny the motion for class certification.

In other words, the Court found there is a significant problem with ascertainability. Rather than deny the motion outright, the Court gave the parties the opportunity to provide supplemental briefing on this issue, to explain to the Court how class members can be accurately identified. The parties have filed their supplemental briefing and the motion is again before the Court.

Plaintiffs’ supplemental brief does not address the Court’s primary question – how class members can be accurately identified. Instead, Plaintiff argues that because rule 23 of the Federal Rules of Civil Procedure does not mention ascertainability, it should not be a part of the class certification analysis to the extent that courts across the country have made it a factor. Plaintiffs also repeat their assertion from the moving papers that a class is ascertainable if the class definition includes objective criteria by which consumers can determine if they are members of the class. These arguments are unhelpful in that they provide the Court with no guidance on how members of the proposed class can be identified as a practical matter in this case. To the extent Plaintiffs believe the class definition is already sufficiently ascertainable or that the Court should not apply an ascertainability requirement, the Court already reached a different conclusion as explained in the original tentative ruling on Plaintiffs’ motion.

It is true that the proposed class definition uses objective criteria. As argued by Defendant, however, Plaintiffs provide no explanation for how class members could self-identify, years after the representations complained of, where multiple similar products were on the market, and where there are three different label variations at issue, not all of which are allegedly actionable.

In a similar case involving Gerber food products, the court stated:

The number of products at issue in this case, the varieties included and not included in the class definition, the changes in product labeling throughout the class period, the varied and uncertain length of time it takes for products with new labels to appear on store shelves, and the fact that the same products were sold with and without the challenged label statements simultaneously make Plaintiff’s proposed class identification method administratively unfeasible. [Citation.] While it may be reasonable to ask consumers to submit affidavits testifying that they purchased a Gerber 2nd Foods product during the class period, asking consumers to remember whether or not they purchased a qualifying flavor in a package that bore a challenged statement is unlikely to produce reliable results.

(Bruton v. Gerber Products Company (N.D. Cal. 2014) 2014 WL 2860995, at *9.)

The same reasoning applies here. It is unlikely that most class members would have retained receipts of their purchases of canned tuna products and there does not appear to be any reliable method for putative class members to remember whether they made purchases (or how many purchases were made) during the class period of the specific variety of tuna at issue and whether those cans of tuna were labeled or advertised as “Excellent Source Omega 3” and/or bearing an American Heart Association seal without disclosing it as a paid endorsement. Plaintiffs have not suggested any such method in their supplemental brief.

Therefore, the proposed class is not ascertainable and this defect is fatal to the motion for class certification. Accordingly, Plaintiffs’ motion for class certification is DENIED.

II. Motion to Seal

On May 20, 2016, the Court heard Plaintiffs’ motion to seal. Plaintiffs move to seal three documents, submitted as Exhibits A, B, and C to the Declaration of Pierce Gore in Support of Motion to File Under Seal. Exhibit A is a document setting forth internal deliberations of Defendant. Exhibits B and C are redacted and unredacted versions of Plaintiffs’ motion for class certification and accompanying memorandum of points and authorities. The Court stated in its tentative ruling that Plaintiffs provided no basis for sealing in the Gore Declaration and Plaintiffs were ordered to file a supplemental memorandum of points and authorities and a supplemental declaration providing specific facts supporting the overriding interest that would justify sealing these exhibits. Plaintiffs have filed their supplemental briefing and the motion is again before the Court.

In the Declaration of Pierce Gore Concerning Plaintiffs’ Supplemental Brief in Support of Motion to Seal (“Gore Supp. Decl.”), Gore states that Exhibit A is a document produced by Defendant in discovery that contains confidential information about the competitive positioning of numerous Bumble Bee product offerings. (Gore Supp. Decl., ¶ 3.) Gore asserts that if the information in Exhibit A were made public, it could place Bumble Bee at a competitive disadvantage. (Ibid.) Exhibit A is therefore subject to sealing. (See Universal City Studios, Inc. v. Superior Court (2003) 110 Cal. App. 4th 1273, 1286 [financial information involving confidential matters relating to the business operations of a party is subject to sealing when public revelation of these matters would interfere with the parties’ ability to effectively compete in the marketplace].) Exhibits B and C are redacted and unredacted versions of Plaintiffs’ motion for class certification that refer to the information in Exhibit A. Consequently, Exhibits A, B, and C are subject to sealing. Plaintiffs’ motion to seal is GRANTED.