Fukaya v. Daiso California LLC

Background

Makiko Fukaya brought a proposed class action against Daiso California LLC. She alleged that Daiso failed to properly identify tree nuts in the English ingredient lists for pre-packaged food products, violating California’s Unfair Competition Law, Consumer Legal Remedies Act, False Advertising Law, and the law governing express warranties.

Fukaya alleged that she is allergic to tree nuts and suffered a severe allergic reaction after eating a Tiramisu Twist Cookie purchased from a Daiso store on July 15, 2022. The English ingredient list did not identify tree nuts, while the covered Japanese list identified almonds and hazelnuts. After her attorney contacted Daiso, Daiso recalled the product. Fukaya later purchased Caramel Corn, whose English list also omitted a tree nut identified on the Japanese list; Daiso later recalled that product as well.

Fukaya sought certification of two types of classes. The proposed restitutionary-relief classes covered people in California, Arizona, Washington, Nevada, Texas, New Jersey, or New York who purchased either product during specified periods. The proposed injunctive-relief class covered people in those states who purchased either product during a broader period. The proposed classes were not limited to people with tree-nut allergies or people buying for someone with such an allergy.

Legal standard

Under Federal Rule of Civil Procedure 23, a plaintiff seeking class certification must prove the requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy. The plaintiff must also satisfy at least one part of Rule 23(b). Fukaya relied on Rule 23(b)(3), which requires common questions to predominate over individual questions and requires a class action to be the superior method of resolving the dispute, and Rule 23(b)(2), which applies when the opposing party acted or refused to act on grounds generally applicable to the class and classwide injunctive or declaratory relief is appropriate.

Restitutionary-relief classes

The court held that the proposed restitutionary classes could not be certified because individualized questions about reliance, causation, and damages were likely to predominate. Fukaya had not provided evidence showing why the omission of tree nuts would be important to a general reasonable consumer. Her evidence could likely show materiality for a reasonable consumer with a tree-nut allergy, but the proposed classes included purchasers without that characteristic and purchasers who were not buying for someone with such an allergy.

The court also rejected Fukaya’s argument that reliance was unnecessary for her Unfair Competition Law claim to the extent it was based on the Federal Food, Drug, and Cosmetic Act and its regulations. The court stated that a plaintiff alleging a misrepresentation still must prove reliance to establish causation and harm. It also stated that the federal statute did not provide a basis for presuming that the omitted information was material. The court noted an additional preemption issue concerning a claim based purely on an alleged violation of the federal statute but did not need to resolve that issue to deny certification.

The court separately found that Fukaya had not shown a classwide method for calculating damages. She did not provide a damages model or theory of classwide recovery, instead stating that the calculation would be simple or could be generated by Daiso. The court therefore held that Fukaya had not shown that individualized damages questions would not predominate.

Possible narrowing of the classes

The court considered whether the classes could be narrowed to purchasers with tree-nut allergies or purchasers buying for people with those allergies. Fukaya’s counsel stated at the hearing that Fukaya was not asking the court to modify the class definition. The court further held that a narrowed class would still fail because individualized damages questions would likely predominate and Fukaya had provided no evidence establishing that the narrowed class was numerous enough that joining all members would be impracticable.

The court also stated that Daiso had presented unrebutted evidence that it had received no other reports of allergic reactions to the products besides Fukaya’s report. The court declined to redefine the class.

Injunctive-relief class

The court held that the proposed injunctive-relief class also could not be certified. Fukaya sought an injunction requiring Daiso to stop deceptive and misleading labeling and to have a Japanese-to-English translator audit packaged food products sold in the United States with translated ingredient labels.

The court found that Fukaya had identified two mislabeled products, both of which had been recalled, but had not shown a widespread pattern or practice of mislabeling that applied to the entire proposed class. The record showed that Daiso used a third-party vendor to prepare translations, but Fukaya did not identify a generally applicable policy or practice regarding mislabeling.

The court also noted that the proposed injunctive-relief class did not require members to intend to purchase translated, pre-packaged Daiso products in the future. The court declined to modify the class definition because certification failed for other reasons. The court distinguished the earlier stage of the case, when Fukaya’s purchase of two similarly mislabeled products supported a possible inference that other products were also mislabeled. At the class-certification stage, the court required affirmative evidence rather than allegations that supported a plausible inference.

Disposition

Judge Rita F. Lin denied Fukaya’s motion for class certification. The court did not reach Daiso’s other arguments for denying class certification.