Nestlé USA, Inc. v. Marie Falcone, Individually and on Behalf of All Others Similarly Situated

Marie Falcone sued Nestlé USA over statements on product labels that cocoa was “sustainably” or “responsibly” sourced. She claimed the statements were misleading because Nestlé USA could not guarantee a supply chain free of all risks of child labor. Falcone sought certification of injunctive-relief and damages classes. Undisputed evidence showed that many consumers did not see the statements, understand them as promises about labor practices, or rely on the statements in deciding to buy the chocolate. It was also undisputed that most consumers would not have considered the chocolate worthless without the statements. Falcone herself testified that she now has a full understanding of Nestlé USA’s labels and sourcing practices. Yet the district court certified both classes, approving the injunctiverelief class based on Falcone’s testimony and the damages class based on a model that would award all class members a full refund of every cent they paid for the chocolate. A divided Ninth Circuit panel affirmed. The questions presented are:

1. Whether a consumer who is aware of alleged deception has Article III standing to seek injunctive relief requiring removal of the allegedly deceptive statements.

2. Whether a damages class may be certified when some members lack Article III standing.

3. Whether, under Comcast Corp. v. Behrend, 569 U.S. 27 (2013), a damages class may be certified based on a model that would award class members damages they could not recover in individual litigation.