Diet Coke Class Certification Tossed

     JEFFERSON CITY, Mo. – An appeals court abused its authority by granting class certification in a lawsuit that claims Coca-Cola Co. tricked people into believing that fountain Diet Coke was the same as bottled Diet Coke, the Missouri Supreme Court ruled unanimously on Tuesday.




     Lead plaintiff Diana Pennington sued in March 2004. She claimed Coca-Cola intentionally misled consumers into believing that fountain Diet Coke was the same as bottled Diet Coke, and that consumers would not have bought fountain Diet Coke had they known it contained saccharin. Pennington sought certification of a class of all people who bought Diet Coke in Missouri after March 1999.
     The circuit court certified the class and an appeals court denied Coca-Cola’s request for permission to appeal the certification. But the state supreme court ruled the lawsuit was too broad and indefinite to warrant certification.
     “Pennington contends that, if Coca-Cola divulged its use of saccharin, she and many other consumers would not have purchased fountain Diet Coke,” Judge William Ray Price wrote. “However, Pennington’s proposed class undoubtedly includes an extremely large number of uninjured class members, that is, those who did not care if the Diet Coke they purchased contained saccharin. Many consumers had no choice of the brand of fountain diet cola they purchased at any given location, let alone the particular type of sweetener used in one brand, Diet Coke. Pennington’s own expert witness indicated that only 20 percent of those who currently consume fountain Diet Coke would not continue to do so if they knew it contained saccharin. In other words, eighty percent of the putative class suffered no injury.” (Italics in original.)

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