Batsheva Ackerman et al. v. The Coca-Cola Company and Energy Brands Inc.
In the class action matter Batsheva Ackerman et al. v. The Coca-Cola Company and Energy Brands Inc., the named plaintiffs alleged that the defendants had misled consumers and caused economic injury through deceptive labeling associated with "vitaminwater." The named plaintiffs sought to certify a New York class and a California class.
A team from Analysis Group was retained by Shook, Hardy & Bacon LLP, counsel for the defendants, to evaluate the named plaintiffs' position that standard economic analyses could be used to quantify, on a classwide (or common proof) basis, the economic injury allegedly suffered by the putative class members. The team, led by Senior Advisor Keith R. Ugone and Vice President Na L. Dawson, examined Nielsen retail sales data associated with vitaminwater and reached the opinion that the putative class members' economic injury (if any) could not be determined on a classwide basis using common proof.
As demonstrated by the Analysis Group case team, wide variations existed in the retail price of vitaminwater across distribution outlets, retail store locations, geographic areas, bottle size and package type, time periods, and use of coupons or promotional discounts. Additionally, a comparison of the average retail prices of vitaminwater to an identified benchmark product did not provide economic evidence that vitaminwater possessed a systematic price premium as a result of the alleged deceptive labeling and marketing. Dr. Ugone issued an expert report and provided deposition testimony in the matter.
New York District Court Judge John Gleeson certified the proposed classes as injunctive classes -- to litigate the named plaintiffs' claims for declaratory and injunctive relief -- but he denied class certification for all other aspects of the named plaintiffs' claims, which included seeking monetary damages. The judge concluded that "[p]roof that each class member paid a premium for vitaminwater over another beverage would not be susceptible to generalized proof."