Joshua Wasser, et al. v. All Market, Inc.

Analysis Group was retained by Bilzin Sumberg on behalf of All Market, Inc. (AMI), the defendant in a false advertising matter. The plaintiffs alleged that AMI’s use of the phrase “born in brazil” on containers of Vita Coco coconut water misled them into purchasing the product by implying that Vita Coco was manufactured in or sourced from Brazil. They sought certification of damages classes and injunctive relief classes in California, Florida, and New York. 

Analysis Group Senior Advisor Keith R. Ugone evaluated the plaintiffs’ position that standard economic analysis could be used to determine economic injury and quantify the claimed damages on a class-wide basis (using common proof). Supported by a team that included Vice President Thomas McGahee, Dr. Ugone filed two expert reports and testified at deposition. His analysis demonstrated that multiple hurdles existed that would prevent a reliable determination of economic injury or calculation of damages on a class-wide basis. Dr. Ugone showed, among other things, that there were significant variations in the prices paid by the putative class members, and that there was no systematic price premium relative to benchmark products. A separate Analysis Group team led by Managing Principal Rebecca Kirk Fair and Principal Laura O’Laughlin supported our affiliate, Professor Joel H. Steckel, who conducted a survey related to materiality issues and rebutted a report submitted by the plaintiffs’ marketing expert.

In his order denying the plaintiffs’ motion for class certification and dismissing the case, Judge Robert N. Scola, Jr. of the US District Court for the Southern District of Florida concluded that the proposed damages classes were not ascertainable, and rejected the plaintiffs’ argument that the requested injunctive relief would lower the price of Vita Coco. Judge Scola cited Dr. Ugone’s rebuttal report, which concluded that “Vita Coco was sold at the same price with and without the ‘born in brazil’ slogan.”