Florida and New York Classes Recommended for Certification in Gerber False Advertising Action

On February 20, 2019, Magistrate Judge Ramon E. Reyes, Jr., of the United States District Court for the Eastern District of New York, found that the proposed classes of New York and Florida consumers of Gerber Products Co.’s (“Gerber”) Good Start Gentle baby-formula satisfied their state law requirements, while proposed North Carolina and multistate classes did not.

The class action alleges Gerber falsely advertises that its Good Start Gentle line of baby formula could decrease the risk of children developing allergies, claiming it was the “1st and Only” formula approved by the Food and Drug Administration (“FDA”) to do so. However, the suit alleges that the FDA rejected Gerber’s application to approve the allergy claim.

Gerber received a warning letter from the FDA in 2014, and was sued by the Federal Trade Commission in an enforcement action around the same time.

The proposed classes are comprised of consumers who purchased the Gerber baby formula between May 2011 and May 2016 in Florida, New York, North Carolina, and other states.

Gerber argued that proposed class members saw different marketing for the product and thus did not have claims typical among the proposed class, but Judge Reyes noted that exposure to particular marketing misrepresentation is not an element of the Florida and New York claims.

Under both Florida and New York state law, there is no requirement that a proposed class show that all members relied on the same misrepresentation. The jurisdictions require only that a proposed class establish that the representation in question would deceive a reasonable consumer.

Judge Reyes agreed that proposed Florida and New York class members can claim that their harm resulted from paying a premium for the falsely-advertised product, and noted tha t any inconsistencies or omissions in named plaintiffs’ claims were plausibly innocent.

As Judge Reyes explained, “Defendant’s arguments against adequacy rest on plaintiffs’ imperfect performance in a memory game. Yet the plaintiffs’ inability to match their memories of advertisements – which they purport to have seen as long ago as 2012 – to the exact marketing campaigns running at the time hardly indicates a lack of truthfulness.”

Judge Reyes also ruled that the plaintiffs’ theory of damage calculation, based on the actual cost of the formula compared to what it would have cost without the false allergy claim, acceptably satisfies the predominance test.

The legal team at Shepherd, Finkelman, Miller & Shah, LLP (“SFMS”) has significant experience litigating consumer protection and product liability matters. Please contact Nick Lussier or Chiharu Sekino if you have a similar matter to discuss. We can also be reached toll-free at (866) 540-5505.

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