Plaintiffs Fight for Class Certification in Case Alleging Misleading Advertising by Nestle

Responding to opposition to class certification by the chocolate company Nestle USA, a plaintiff said March 22 she never would have purchased Nestle’s products if the company’s packaging hadn’t misrepresented them as sustainably and ethically sourced (Falcone v. Nestle USA, S.D. Cal. # 19-00723).

Nestle shoppers’ 2019 case against the chocolate company alleges that the Nestle cocoa beans are farmed by children and trafficking victims in West Africa. Plaintiff Marie Falcone sought class certification Jan. 19, to which Nestle responded Feb. 23 (see 2402290031).

The chocolate company argued that Falcone couldn't act as a class representative because her individual claim has no standing. Falcone in her deposition “admit[ted] she wasn’t deceived” by Nestle’s products’ packaging because she said that “she ‘never once thought of child slave labor’ when she saw the labels her lawyers are challenging,” Nestle said. Falcone also said that she has “no problems” with Nestle’s morsels labels, calling them “perfect,” and felt that any company following the guidelines put forward by the Rainforest Alliance can accurately claim to source their cocoa beans sustainably, it said.

However, Falcone’s point isn't that Nestle’s labels make specific representations about child labor, but rather that she “never once thought of child slave labor” being a part of Nestle’s supply chain due to the company’s own claims, the brief said.

Falcone’s statement calling the labels of Nestle’s morsels products “perfect,” meanwhile, came during a discussion about potential settlement terms, the brief said, and settlement negotiations cannot be used to disprove the validity of a claim. Finally, it said Falcone’s quote that Nestle is “not misleading anyone” was taken out of context by the company, and actually “perfectly aligns with a bedrock California consumer protection law principle.”

“In arguing Falcone lacks statutory standing, Nestlé’s repeatedly misstates the record and ignores the full context of the cherry-picked testimony it has quoted,” the brief said.

Falcone does have standing -- and typicality -- to serve as a class representative, the brief said. Nestle’s sustainability representations were a factor in her decision to buy its products, it said. During that same deposition, she also said that she was “really upset” when she learned about the allegations against Nestle and that its deceptive practices were the “pivotal” reason she stopped buying its chocolate, it said.

Finally, Nestle is wrong to say that a class action could not collect proper damages, the brief said. The chocolate company argued that a class action would fail the exposure requirement because “many consumers did not even see the small, back-of label-statements Falcone challenges… [a]nd those who did see the statements did not interpret them in the way the motion suggests”; but it doesn’t matter how small a font those statements appeared in, it said. All that matters is that misleading statements were made to the entire class, it said.

Consumers didn't have to have uniform understanding of the statements, either, because the standard is only that “there is a probability that reasonable consumers could be misled,” it said.