In his dissenting opinion in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 683 (2016), U.S. Supreme Court Chief Justice Roberts pondered what it would take to moot the claim of a would-be class action plaintiff who refused to take “yes” for an answer. We now know that an unaccepted Rule 68 offer of judgment does not end an Article III case or controversy, and will not moot a plaintiff’s claim. See id., at 672. What remains uncertain is whether there are any steps a party can take to terminate a putative class action nonconsensually before class certification is litigated.
A defendant in Massachusetts may have discovered a secret sauce; literally, in barbecue sauce. In Demmler v. ACH Food Companies Inc., C.A. No. 15-13556-LTS (D. Mass. June 9, 2016), the plaintiff sued on behalf of himself and a putative class of similarly situated Massachusetts consumers who had purchased barbecue sauces made by ACH Food Companies Inc. and sold under the brand name Weber’s “Real Molasses BBQ Sauces.”
The sauces were labeled “all natural.” And that, for Demmler, was the kick: He alleged the sauces were misbranded because they contained artificial “caramel color.” He alleged that “reasonable consumers” believe that barbeque sauces labeled “all natural” are substantially healthier and safer and that the “all natural” labeling created a “price premium” for the Real Molasses sauces. Demmler based his claim on the Massachusetts Consumer Protection Act, G.L. c. 93A (“93A”), and sought actual or statutory damages, trebled due to the failure of ACH to resolve the matter without litigation, attorneys' fees and costs.