Eggs-cluded: Class Certification Reversed For Lack Of Classwide Proof Of Deception In Egg Labeling Dispute

In Rusoff v. The Happy Group, Inc., No. 24-7706, the Ninth Circuit reversed the district court’s decision to certify a class of consumers alleging that the “free range” and “pasture raised on over 8 acres” labels on the defendant’s egg cartons were deceptive because the defendant allegedly failed to comply with dominant industry standards for pasture-raised eggs. The district court had certified New York and California classes under Rule 23(b)(3), finding that two elements of the states’ respective consumer protection laws—materiality and damages—were common issues that predominated. The district court, however, concluded that deception was not a common issue, and plaintiffs failed to make the required showing to support their theory. On interlocutory appeal under Rule 23(f), the Ninth Circuit held that the district court erred in certifying the classes based on its materiality and damages findings alone: “the lack of a classwide showing on deception cannot be overcome by supposedly