White v. The Kroger Co.

Background

Phillip White brought a proposed class action alleging that sunscreen products sold by The Kroger Co. under its house brand were misleadingly labeled “reef friendly” even though they contained ingredients with the potential to damage reefs. White alleged that he purchased Kroger Sport Sunscreen, Spray, SPF 50, in a 5.5-ounce package. He also sought relief involving more than a dozen other products that he had not purchased but described as substantially similar to the product he bought.

Fruit of the Earth, Inc. (FOTE) was alleged to be one of the owners, manufacturers, or distributors of the challenged products. The undisputed evidence showed, however, that FOTE did not manufacture, distribute, sell, or otherwise have a connection to White’s purchased product. FOTE apparently did manufacture and distribute some other products listed in the complaint.

Motion and analysis

FOTE moved for summary judgment, arguing that White lacked standing to pursue claims against it. Summary judgment is a decision entered when the evidence shows there is no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment under the law.

White did not dispute FOTE’s lack of connection to the product he purchased. Instead, he argued that the court had already postponed until class certification the question whether he could represent people who purchased products he did not buy. The court distinguished FOTE from Kroger. At the pleading stage, Kroger was undisputedly alleged to sell all of the listed products, so Kroger could potentially be liable for statements made in connection with those sales. FOTE, by contrast, had no potential liability to White or to any proposed class member for sales of White’s purchased product.

The court also rejected White’s argument that the issue should be addressed later at class certification. It explained that there were no proposed class members with claims against FOTE arising from sales of the specific Kroger sunscreen White purchased. Therefore, whether the other products were substantially similar was irrelevant to FOTE’s motion. The court further stated that White’s discovery concerns involved class certification or the merits and did not undermine the undisputed evidence that FOTE had no connection to the purchased product.

Ruling

Judge Richard Seeborg granted FOTE’s motion for summary judgment. The opinion did not state that the entire action was dismissed. It stated that the order and any final judgment resulting from it would not have a preclusive effect if people who purchased the other products later sought to name FOTE concerning those products, either by joining this action or in a separate action. The parties were permitted to propose a separate judgment under Federal Rule of Civil Procedure 54(b).