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Gerber Prods. With respect to each contested element of the certification standard, Gerber argued that the variation in what consumers probably saw precluded a finding that plaintiffs satisfied that element e. That was enough to go forward. Ultimately, [t]he fact that the same label did not appear on every single product of GSG that a consumer may have purchased, does not mean that the deceptive act would not still have likely deceived a consumer, given that the labels were both abundant, accompanied by advertising campaigns, and appeared prominently on shelves where consumers shopped.

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To find otherwise could encourage a defendant to avoid liability under the FDUTPA, a broad statute, by for example, creating multiple labels for a product line. The legal theory is that the misrepresentations misled consumers into paying a price premium and all of that theory is still in the case, unlike in Comcast. And while conjoint analysis or other mechanisms for assessing the price premium might ultimately fail, a conjoint analysis can lead to a proper damages calculation if it takes relevant factors into account, such as the price of other comparable products.

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Hasemann v. Gerber Products Co. Here, the court certified Florida and New York subclasses and denied certification of the North Carolina and multistate subclasses. Regardless, GSG went ahead with claims that, e.

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