Second Circuit: Past Purchasers Have No Standing to Seek Injunctive Relief

Bryan Cave Leighton Paisner

In a case regarding slack fill claims by a class of purchasers of Barilla branded pasta, the Second Circuit has issued a decision with implications for class-action cases going forward. The Court held that the District Court below erred in approving a proposed settlement which provided injunctive relief, and in certifying a Rule 23(b)(2) class, because the proposed relief – requiring that Barilla put a “fill line” on its pasta boxes – did not benefit all class members. Berni v. Barilla S.p.A., 2020 WL 3815523 (2d Cir. 2020). Importantly, the decision marks a split between the Second and Ninth Circuits. 

In the case below, Plaintiffs-Appellees (“Plaintiffs”) were purchasers of pasta sold by Defendant-Appellee Barilla America, Inc. (“Barilla”). They commenced a putative class action, and alleged that the boxes of pasta they purchased in new packaging from Barilla were under-filled as compared with boxes of the same size that were previously sold by the company, thus deceiving Barilla’s customers. 

After years of litigation, the parties reached a settlement wherein Barilla would pay damages to the named Plaintiffs, and going forward, would include a minimum “fill-line” on its boxes to indicate how much pasta was inside, in addition to adding certain other disclaimer language to its packaging. The injunctive relief, including the “fill-line” and added language, were the sole relief for the class as a whole in the proposed settlement. 

Objector- Appellant (“Appellant”) is a class member who had purchased Barilla branded pasta in the past.  On appeal he argued that the District Court erred when it certified a Rule 23(b)(2) injunctive class in conjunction with approval of the settlement, because a group of past purchasers is not eligible for injunctive relief.  

The Second Circuit ultimately agreed with Appellant, finding that “the District Court did, in fact, err in approving the settlement and certifying Plaintiffs-Appellees as a Rule 23(b)(2) class because not all class members stand to benefit from injunctive relief” that was proposed in the settlement. The Court declared a bright line rule and held that “past purchasers of a product—like the purchasers of Barilla pasta in this case—are not eligible for class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure.”

The Second Circuit reasoned that injunctive relief is only appropriate where a remedy at law would not suffice, and the court must step in to prevent imminent future harm, and that a 23(b)(2) class was not certifiable if any single class member’s injury would not be remedied by the proposed relief sought. The Second Circuit therefore concluded that “past purchasers of a product, like the Barilla purchasers, are not likely to encounter future harm” because there is no demonstrated likelihood that they will purchase the deceptive product in the future, or that if they did purchase future boxes of Barilla pasta, they would be deceived again, given the knowledge they possess about the amount of pasta in the box.  

Because there is no likelihood of future harm, the Second Circuit found that “courts cannot permit injunctive relief through class settlement when plaintiffs would otherwise lack standing to seek such relief under Article III.” Indeed, the Court explicitly acknowledged and declined to follow various district courts that had “created an exception to the Federal Rules of Civil Procedure to let a Rule 23(b)(2) class action move forward even when injunctive relief is not proper for every class member” contrary to the requirements of Article III standing.

The Second Circuit’s decision to strictly interpret standing requirements for past purchasers seeking injunctive relief creates a split with the Ninth Circuit. In Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018), the Ninth Circuit encountered a plaintiff who purchased wipes marketed by the Kimberly-Clark as “flushable” and subsequently discovered they were not. In the case, she sought, on behalf of herself and a proposed class, relief that included an order requiring Kimberly-Clark to stop marketing their wipes as "flushable." The Ninth Circuit held that “a previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may suffer an ‘actual and imminent, not conjectural or hypothetical’ threat of future harm.” The Ninth Circuit’s holding is in direct contradiction to the hold of the Second Circuit in Berni

The Berni decision could have wide reaching implications for consumer product class actions seeking equitable relief going forward, and could create a problem for class certification under 23(b)(2) – a mechanism that has a lower bar than other sections of Rule 23 – where the relief sought is anything forward looking. If a repeat buyer cannot be fooled again, would a class need to consist only of first time buyers? Would there be an inquiry into each purchaser’s purchase history with respect to the product at issue, such that individual issues predominate and prevent class certification? Furthermore, Berni may mean that, specifically in slack fill class actions, plaintiffs seeking class certification may need to steer clear of seeking remedies that require manufacturers to change their packaging. With these open questions about its application to future cases, Berni will have an impact in the Second Circuit and beyond.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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