MARGARET M. MORROW, District Judge.
On June 28, 2011, Robert Briseno filed a
On January 12, 2012, plaintiffs filed a First Consolidated Amended Complaint.
Plaintiffs did so on September 8, 2014.
Plaintiffs are consumers residing in eleven different states who purchased Wesson Oils between January 2007 and their entry into this case. They allege that from at least June 27, 2007 to the present, ConAgra Foods, Inc. ("ConAgra") deceptively and misleadingly marketed its Wesson brand cooking oils, made from genetically-modified organisms ("GMO"), as "100% Natural." Throughout the proposed class period, every bottle of Wesson Oil carried a front label stating that the product was "100% Natural."
Plaintiffs seek to certify eleven statewide classes as follows:
Plaintiffs allege claims for violation of state consumer protection laws, breach of express warranty, breach of the implied warranty of merchantability, and unjust enrichment. Specifically, they plead the following claims:
ConAgra requests that the court take judicial notice of ten documents and various attached exhibits, each of which has previously been filed in this action, in support of its opposition to plaintiffs' amended motion for class certification.
It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence. "Judicial notice is properly taken of public records, such as transcripts, orders, and decisions made by... courts or administrative agencies." See Wayne v. Leal, No. 07 CV 1605 JM (BLM), 2009 WL 2406299, *4 (S.D.Cal. Aug. 4, 2009); Molus v. Swan, No. 05cv452-MMA (WMc), 2009 WL 160937, *2 (S.D.Cal. Jan. 22, 2009) ("Courts also may take judicial notice of their own records," citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.1986)). The court may thus taken judicial notice of the filings and order referenced in ConAgra's request for judicial notice. See NovelPoster v. Javitch Canfield Group, No. 13-CV-05186-WHO, 2014 WL 5594969, *4, n. 7 (N.D.Cal. Nov. 3, 2014) ("In conjunction with the motion, defendants requested judicial notice of various documents, including NovelPoster's ex parte application for a temporary restraining order in this case and this Court's subsequent order.... Defendants' request for judicial notice of the TRO application and order is GRANTED"); see also In re Linda Vista Cinemas, L.L.C., 442 B.R. 724, 740 n. 7 (Bankr.D.Ariz.2010) (stating that "[t]he court takes judicial notice of its own records," specifically, a declaration attached to the opposition to a preliminary injunction motion, citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980)). Accordingly, the court grants ConAgra's request for judicial notice, "although [ConAgra] [is]
Before addressing the merits of the certification motion, the court must first consider ConAgra's challenges to declarations filed by the named plaintiffs and plaintiffs' experts. ConAgra contends that the expert declarations of Colin B. Weir and Elizabeth Howlett, Ph.D. submitted in support of plaintiffs' amended motion for class certification, as well as the reply declarations of Weir, Howlett, Benjamin M. Benbrook, Ph.D., and Dr. John C. Kozup, should be stricken because they are inadmissible and unreliable.
The court first considers ConAgra's challenges to plaintiffs' experts. While courts in this circuit previously held that expert testimony was admissible in evaluating class certification motions without conducting a rigorous analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court in Dukes expressed "doubt that this [was] so." Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2554, 180 L.Ed.2d 374 (2011). After Dukes, the Ninth Circuit approved analysis under Daubert of the admissibility of expert testimony presented in support of or opposition to a motion for class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) ("In its analysis of Costco's motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert ..."). As a result, the court applies that standard to the proffered testimony of the parties' expert witnesses.
Under Rule 702,
See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) ("[Rule 702] consists of three distinct but related requirements:
Before admitting expert testimony, the trial court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see also Ellis, 657 F.3d at 982 ("Under Daubert, the trial court must act as a `gatekeeper' to exclude junk science that does not meet Federal Rule of Evidence 702's reliability standards by making a preliminary determination that the expert's testimony is reliable"). In conducting this preliminary assessment, the trial court is vested with broad discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Espinosa, 827 F.2d 604, 611 (9th Cir.1987) ("The decision to admit expert testimony is committed to the discretion of the district court and will not be disturbed unless manifestly erroneous").
"The party offering the expert bears the burden of establishing that Rule 702 is satisfied." Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. CV 02-2258 JM (AJB), 2007 WL 935703, *4 (S.D.Cal. Mar. 7, 2007) (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (in turn citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786)); see also Walker v. Contra Costa County, No. C 03-3723 TEH, 2006 WL 3371438, *1 (N.D.Cal. Nov. 21, 2006) (same, citing Bourjaily v. United States, 483 U.S. 171, 172, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), and In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994)).
"In determining whether expert testimony is admissible under Rule 702, the district court must keep in mind [the rule's] broad parameters of reliability, relevancy, and assistance to the trier of fact." Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir.1998) (internal quotation marks omitted); see also Jinro Am. Inc. v. Secure Invests., Inc., 266 F.3d 993, 1004 (9th Cir.2001) ("Rule 702 is applied consistent with the `liberal thrust' of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony" (internal quotation marks omitted)). On a motion for class certification, it is not necessary that expert testimony resolve factual disputes going to the merits of plaintiff's claims; instead, the testimony must be relevant in assessing "whether there was a common pattern and practice that could affect the class as a whole." Ellis, 657 F.3d at 983.
Colin Weir is plaintiffs' economic expert. Weir is Vice President of Economics and Technology, Inc. ("ETI"), a research and consulting firm specializing in economics, statistics, regulation, and public policy. Weir has worked at the
Weir opines that:
He also opines that it is possible to determine damages attributable to ConAgra's labeling of Wesson Oils as "100% Natural" through the use of a "conjoint analysis survey."
In its August 1 order, the court struck Weir's declaration because he failed to provide a reliable damages model for calculating classwide damages. The court stated:
ConAgra argues that Weir's testimony continues to lack a reliable factual foundation and thus should be stricken by the court and not considered in deciding plaintiffs' amended motion for class certification.
As ConAgra notes,
Weir has prepared a preliminary regression model, in which the dependent variable of the proposed methodology being measured is the product's price/price premium.
Weir used data from various spreadsheets and reports reflecting historical price, cost, profit and attribute information for Wesson Oils and competitor brands.
ConAgra contends Weir has failed to show that the data required to perform a hedonic regression analysis exists or is obtainable; it asserts that the data it provided is not useful in performing the analysis, and becomes useful only after he has isolated the appropriate price premium.
The court is not persuaded that any of Ugone's criticisms indicate that Weir's methodology is unreliable or that he cannot offer an opinion in support of plaintiffs' amended motion for class certification. As respects Ugone's criticism that the methodology does not satisfy the requirement articulated in Comcast Corp. v. Behrend, ___ U.S. ___, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) — i.e., that damages be capable of measurement on a classwide basis — this does not affect the admissibility of Weir's opinions. Admissibility turns on whether Weir's methodology is sufficiently reliable; whether it satisfies Comcast and shows that a class should be certified is another question altogether — one which the court will address infra in conducting a Rule 23(b)(3) predominance analysis.
Ugone's remaining criticisms are similarly unavailing. While it is true that a damages model likely will have to calculate the alleged price premium for smaller geographic areas since plaintiffs seek certification of eleven state subclasses, and, as
ConAgra also asserts that Weir expanded the data set so that he could opine — erroneously — that his results are statistically significant when they are not.
ConAgra also moves to strike the expert declaration of Elizabeth Howlett, Ph.D.
ConAgra first seeks to strike the Kozup survey, and Howlett's opinions concerning it, asserting that it is unreliable and inadmissible, and does not provide a sufficient foundation upon which Howlett can base expert opinions.
The Ninth Circuit has held that typically "[c]hallenges to survey methodology go to the weight given the survey, not its admissibility." Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir.1997). See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n. 8 (9th Cir.1997) ("However, `as long as they are conducted according to accepted principles,' survey evidence should ordinarily be found sufficiently reliable under Daubert. Unlike novel scientific theories, a jury should be able to determine whether asserted technical deficiencies undermine a survey's probative value," quoting Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1292 (9th Cir.1992)); id. at 1143 (the fact that a survey that was conducted only in the southern portion of the state and asked leading questions went to the weight of the evidence, not the admissibility of the survey); see also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir.2001) ("Treatment of surveys is a two-step process. First, is the survey admissible? That is, is there a proper foundation for admissibility, and is it relevant and conducted according to accepted principles? This threshold question may be determined by the judge. Once the survey is admitted, however, follow-on issues of methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility. These are issues for a jury or, in a bench trial, the judge"); Alcantar v. Hobart Serv., No. ED CV 11-1600 PSG (SPx), 2013 WL 156530, *4 (C.D.Cal. Jan. 15, 2013) ("[A]ny problems with the response rate affect the weight, and not the admissibility of the study"); Microsoft Corp. v. Motorola Inc., 904 F.Supp.2d 1109, 1120 (W.D.Wash.2012) (criticisms of a conjoint analysis concerned "issues of methodology, survey design, reliability, and critique of conclusions, and therefore [went] to the weight of the survey rather than admissibility"); Harris v. Vector Marketing Corp., 753 F.Supp.2d 996, 1001-02 (N.D.Cal.2010) ("[Plaintiff] criticizes the content of the survey conducted and prepared by [defendant's expert] as well as the response rate to the survey. The problem for [Plaintiff] is that, as she herself admits in her brief, even challenges to defects in methodology normally affect the weight to be accorded the survey and not its admissibility"); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F.Supp. 1283, 1296 (N.D.Cal.1991) (holding that the alleged under-inclusiveness of a survey in a copyright infringement action affected "the weight of the survey, not its admissibility"), aff'd, 964 F.2d 965 (9th Cir.1992), cert. denied, 507 U.S. 985, 113 S.Ct. 1582, 123 L.Ed.2d 149 (1993).
Recognizing that most challenges to a survey such as Kozup's go to its weight rather than its admissibility, ConAgra maintains that Howlett's admissions show that the underlying methodology used to conduct the survey is flawed and unreliable, and that it thus does not satisfy Daubert.
Howlett did not participate in designing or administering the Kozup survey.
ConAgra charges that the language the survey uses to describe GMOs — e.g., "bacteria," "virus," or "toxic to certain insects"
ConAgra also argues that the survey's sample size is too small to provide valid and reliable evidence about the studied population. Courts regularly find that concerns that a survey's sample size is too small or unrepresentative do not preclude its admission, but go to the weight to be accorded the survey results. See Southland Sod Farms, 108 F.3d at 1143 n. 8 ("However, `as long as they are conducted according to accepted principles,' survey evidence should ordinarily be found sufficiently reliable under Daubert. Unlike novel scientific theories, a jury should be able to determine whether asserted technical deficiencies undermine a survey's probative value," quoting Gallo Winery, 967 F.2d at 1292); id. at 1143 (the fact that a survey was conducted only in the southern portion of the state and that it asked leading questions went to the weight of the evidence, not the admissibility of the survey); Lewis Galoob Toys, Inc., 780 F.Supp. at 1296 (holding that the alleged under-inclusiveness of a survey in a copyright infringement action affected "the weight of the survey, not its admissibility"). Courts generally reach this conclusion once they are satisfied that the survey has been "conducted according to accepted principles," however. Fortune Dynamic, Inc., 618 F.3d at 1036. Howlett concedes that she does not know the sampling method used in the Kozup survey, and additionally that the sample does not approximate the relevant characteristics of the population being surveyed.
Howlett further acknowledges that the non-responsive rate on the Kozup survey was 95%, which is even higher than the 92% non-responsive rate that formed the basis for his opinion that the Hanssen survey was unreliable.
Finally, ConAgra notes that 53 of the survey respondents failed an "attention check" question designed to ensure the validity of the results.
In sum, Howlett's testimony demonstrates that she is not sufficiently familiar with the methodology used to design and
ConAgra next seeks to exclude Howlett's opinions on the basis that she is not qualified to offer testimony concerning the conjoint analysis she states can be used to calculate damages.
In the Ninth Circuit, an expert may be qualified to offer a particular opinion either as a result of practical training or academic experience. Thomas v. Newton Int'l Enterprises, 42 F.3d 1266, 1269 (9th Cir.1994) ("[T]he advisory committee notes emphasize that Rule 702 is broadly phrased and intended to embrace more than a narrow definition of qualified expert"); Rogers v. Raymark Industries, Inc., 922 F.2d 1426, 1429 (9th Cir.1991) ("A witness can qualify as an expert through practical experience in a particular field, not just through academic training"). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ("[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience").
"The threshold for qualification is low for purposes of admissibility; minimal foundation of knowledge, skill, and experience suffices." PixArt Imaging, Inc. v. Avago Tech. Gen. IP (Singapore) Pte. Ltd., No. C 10-00544 JW, 2011 WL 5417090, *4 (N.D.Cal. Oct. 27, 2011). Prior experience need not consist of prior expert testimony on the same issue. See Matuez v. Lewis, No. CV 11-7411-JVS (JPR), 2012 WL 3582122, *8 (C.D.Cal. May 9, 2012), report and recommendation adopted, 2012 WL 3582629 (C.D.Cal. Aug. 20, 2012) ("If witnesses could not testify for the first time as experts, we would have no experts").
Howlett's academic training and practical experience qualify her to testify to the calculation of damages using a conjoint analysis. She holds a Ph.D. from Duke University in Marketing, with a focus on Behavioral Decision Research and Theory; her coursework involved conjoint analysis.
ConAgra next argues that Howlett's testimony lacks a reliable factual foundation because she "has [not previously] combined the results of a hedonic regression analysis and a conjoint analysis..., and is unaware" that "anyone else in any peer-reviewed article ... has ever [done so] ... to assign a price premium to a sub-feature."
ConAgra's arguments are unavailing. As an initial matter, the court has rejected ConAgra's challenges to Weir's methodology. More fundamentally, as plaintiffs note, Howlett's conjoint analysis will be used to calculate a percentage of the price premium attributable to the "100% Natural" label that reflects consumers' belief it means the product contains no GMOs.
Plaintiffs submitted reply declarations from their experts Weir, Howlett, Benbrook, and Kozup in response to ConAgra's opposition to plaintiffs' amended certification motion and ConAgra's motion to strike.
ConAgra seeks to strike paragraphs 2-8, 10-11, 13-60, and 64-72 of Weir's reply declaration because "Weir goes far beyond his original opinions, attempting to lend support to Dr. Howlett's methods."
Similarly, paragraphs 10 and 11 of the Weir reply declaration do not offer new evidence or opinion; rather, they reiterate Weir's "opinion that, if Plaintiffs are correct as to their theory of liability — that it was a violation of law for ConAgra to have placed the '100% Natural' claim on the label of each bottle of Wesson Oil — then the total (i.e. Class-wide) economic harm suffered by Plaintiffs and all other members of the proposed Class is the amount of additional money they paid for Wesson Oil because of the presence of the '100% Natural' claim on the label of every bottle
The court also finds unpersuasive ConAgra's assertion that paragraphs 13 through 49 of Weir's reply declaration should be stricken. The information in these paragraphs is directly responsive to Dr. Ugone's criticisms of Weir's hedonic regression analysis — indeed, as can be seen from the headings Weir uses,
The remaining portions of the Weir reply declaration that ConAgra seeks to strike — paragraphs 50-60 and 64-72 — are a closer question. As ConAgra notes, Weir proffers opinions concerning the reliability of Howlett's conjoint analysis, and thus does more than respond to ConAgra's criticism of his methodology and opinions. As the court noted in the first class certification order, however, and as ConAgra is aware, Weir was designated as an expert both with respect to hedonic regression analysis and conjoint analysis.
ConAgra next argues that the court should strike paragraphs 5-70 of Howlett's reply declaration because in those paragraphs, she offers opinions based on her "post-deposition review" of the Kozup survey, as well as new opinions derived from conversations she had with Dr. Kozup about the survey.
ConAgra next argues that Dr. Benbrook should not be permitted to explain his definition of genetically modified food products — which was included in the Kozup survey — because Howlett, who initially presented the survey, was unable to explain why such an "inflammatory description" was used.
Finally, ConAgra contends that Dr. Kozup's reply declaration should be stricken in its entirety because, at no time during the pendency of the litigation have plaintiffs designated Kozup as an expert witness.
The purpose of the disclosure requirements of Rule 26 is to avoid surprise and allow each party to prepare to cross-examine those experts the opponent has indicated will be called at trial. See Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (Fed.Cir.2013) ("The purpose of the expert disclosure rule is to `provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses,'" quoting Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir.2008)). Here, the court issued a modified scheduling order that addressed, inter alia, the filing of an amended motion for class certification and set specific dates by which plaintiffs and defendant had to make expert witnesses on whom they intended to rely in connection with the amended motion available for deposition.
Because ConAgra had no notice that plaintiffs intended to rely on Dr. Kozup as an expert witness and thus no opportunity to depose him or otherwise test the veracity of his statements and opinions, Kozup's expert declaration, filed for the first time with plaintiffs' reply, is untimely. Thus, the court strikes the Kozup declaration in its entirety and will not consider it in deciding the amended certification motion.
In support of their amended motion for class certification, plaintiffs submitted the declarations of: (1) Robert Briseno; (2) Jill Crouch; (3) Julie Palmer; (4) Pauline Michael; (5) Dee Hopper-Kercheval; (6) Kelly McFadden; (7) Maureen Towey; (8) Rona Johnston; and (9) Anita Willman.
As an initial matter, ConAgra contends that the court should strike the declarations because they are "shams" — drafted by someone other than the declarants and signed by the declarants "without any serious thought ... as to the truth of the matter asserted."
ConAgra next asserts that the named plaintiffs' declarations conflict with their theory of the case, and with their prior discovery responses and deposition testimony. In their responses and at their depositions, plaintiffs indicated that they no longer purchased Wesson Oils after learning that they contained GMOs. The declarations they filed in support of the amended certification motion state, however, that they would consider purchasing the products even if they contained GMOs so long as ConAgra were required to remove the "100% Natural" label.
Under the "sham affidavit rule," which is most often invoked in the context of a motion for summary judgment, "a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. International Game Technology, 577 F.3d 989, 998 (9th Cir.2009) (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991)); see Agricola Baja Best, S. De. R.L. de C.V. v. Harris Moran Seed Co., 44 F.Supp.3d 974, 984, 2014 WL 4385450, *6 (S.D.Cal.2014) ("Harris Moran argues that Baja Best's experts' declarations are inadmissible because the declarations contradict prior deposition testimony. Under the sham affidavit rule, `a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony,'" citing Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.2012) (in turn quoting Van Asdale, 577 F.3d at 998)); Pacific Ins. Co. v. Kent, 120 F.Supp.2d 1205, 1213 (C.D.Cal.2000) ("Kent points to his later deposition testimony as proof of a genuine issue of fact concerning his ownership experience. But, the `general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony,'" citing Kennedy, 952 F.2d at 266). Where a declaration appears to contradict an earlier declaration or deposition testimony, the court must make a factual determination
An affidavit is not a sham if: (1) it "merely elaborat[es] upon, explain[s] or clarif[ies] prior testimony," Messick v. Horizon Industries, Inc., 62 F.3d 1227, 1231 (9th Cir.1995); (2) if "the witness was confused at that time of the earlier testimony and provides an explanation for the confusion," Kent, 120 F.Supp.2d at 1213 (citing Kennedy, 952 F.2d at 266); or (3) if the declaration concerns newly discovered evidence, id. See Agricola, 44 F.Supp.3d at 984, 2014 WL 4385450 at *6 ("To ensure appropriate application of the rule, the Ninth Circuit imposes two limitations. First, the Court must `make a factual determination that the contradiction [is] actually a sham.' This limitation is intended to ensure the Court `does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony.' Second, `the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous.' A declaration that `elaborates upon, explains, or clarifies prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy [or] a mistake ... afford no basis for excluding an opposition affidavit'" (citations omitted)).
A court should apply the sham affidavit rule "with caution," Van Asdale, 577 F.3d at 998, and only in situations where "the inconsistency between a party's deposition testimony and subsequent affidavit [is] clear and unambiguous," id. See also Agricola, 44 F.Supp.3d at 984, 2014 WL 4385450 at *6 ("[I]nvoking the rule too aggressively may `ensnare parties who may have simply been confused during their deposition testimony and may encourage gamesmanship by opposing attorneys,'" citing Van Asdale, 577 F.3d at 998).
ConAgra first asserts that the declarations must be stricken because they are "inconsistent with [p]laintiffs' theory of the case and discovery responses."
The court cannot conclude that the declarations are shams on the basis that they conflict with plaintiffs' "theory of the case." While the declarations may negatively affect plaintiffs' ability to prove materiality, causation, and/or reliance, this does not compel the conclusion that they are false or directly contradictory of prior testimony.
ConAgra's assertion that the declarations conflict with plaintiffs' interrogatory responses has more force. Ultimately,
While ConAgra may contend that plaintiffs' possible willingness to purchase Wesson Oils in the future is not sufficiently definite to give them standing to represent an injunctive relief class under Rule 23(b)(2), that is a question that must resolved in deciding whether to certify a class. It is not a basis for striking the declarations. The declarations can only be stricken if they clearly and unambiguously contradict sworn statements made earlier in this litigation. Because plaintiffs' interrogatory responses do not address whether they would purchase Wesson Oils in the future, the court cannot conclude that their declarations are "shams." Rather, they appear to "merely elaborat[e] upon ... prior testimony." Messick, 62 F.3d at 1231.
ConAgra next contends that the declarations of plaintiffs Briseno, Crouch, and Towey contradict their prior deposition testimony. ConAgra cites Briseno's testimony that he tries to avoid ingesting GMOs and tries to ensure that his family does not as well.
Plaintiffs counter that Briseno's declaration does not directly contradict his deposition testimony because he testified that on the day of his deposition he was not interested in purchasing Wesson Oils, but said nothing that foreclosed the possibility he might at some point consider purchasing the products in the future.
Moreover, the fact Briseno states that he would consider purchasing Wesson Oils in the future even if they contained GMOs does not contradict his prior deposition testimony that he "tr[ies] to avoid" products with GMOs when similar products without GMOs are available.
For all of these reasons, the court cannot find that Briseno's declaration is a sham. Van Asdale, 577 F.3d at 998 (stating that the sham affidavit rule can be invoked only if "the inconsistency between a party's deposition testimony and subsequent affidavit ... [is] clear and unambiguous"); see School District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993) (stating that the sham affidavit rule "should be applied with caution"); King v. ADT Sec. Services, Civil No. 06-0519-WS-C, 2007 WL 2713212, *3 (S.D.Ala. Sept. 17, 2007) ("There being nothing more than a possible inconsistency, and certainly much less than an inherent inconsistency, between [a declaration and deposition testimony], the sham affidavit rule has no application"); see also Brown v. Showboat Atlantic City Propco, LLC, No. 08-5145(NLH), 2010 WL 5237855, * 4 (D.N.J. Dec. 16, 2010) ("An inherent requirement of a sham affidavit is that the affiant's statement must contradict deposition testimony.
ConAgra charges that Jill Crouch also submitted a sham affidavit that "directly contradict[s][her] sworn deposition testimony" in an effort to cure the deficiencies noted in the court's first class certification order regarding the standing requirements for a Rule 23(b)(2) injunctive relief class.
ConAgra also cites various statements Crouch made at her deposition suggesting that "she opposed the use of GMOs categorically" because "[she] do[esn't] know what the outcome is going to be for human beings."
Crouch's statement in her declaration that if ConAgra removed the "100% Natural" label, she "might consider buying Wesson Oil in the future depending on the price and the other products conveniently available" does not directly contradict her deposition testimony that she did not know whether she would purchase Wesson Oil "if it changed its label but the contents were the same." Crouch's declaration "elaborates" on prior ambiguous testimony. A statement that she might consider purchasing in the future does not directly conflict with her testimony that she did not know one way or the other whether she would be willing to purchase the products. Rather, it represents an evolution of her thinking on the subject, and cannot reasonably be considered a "sham." Crouch's testimony that she finds GMOs and the genetic modification of food products objectionable similarly does not conflict directly with the statements in her declaration. There is nothing "inherently inconsistent" or irreconcilable about an individual's preference for a certain type of food product, i.e., one that is not genetically modified, and the fact that the individual might purchase that type of product depending
ConAgra argues finally that Maureen Towey's deposition testimony directly conflicts with statements in her declaration.
Whether Towey's declaration directly contradicts her prior deposition testimony is a close question. Her deposition testimony was relatively absolute — "if I know that it's GMO, I don't buy it." Nonetheless, the court concludes that the better view of her declaration is that it clarifies her deposition answers. Towey clarifies that she "realizes that it would be extremely difficult ... to avoid GMO ingredients entirely," and that her purchasing decisions necessarily depend on "price and the products conveniently available."
For the reasons stated, the court denies ConAgra's motion to strike Weir's amended declaration and Howlett's amended declaration. The court also denies ConAgra's motion to strike the supplemental declarations of the named plaintiffs.
A district court may certify a class only if:
In addition, a district court must also find that at least one of the several conditions set forth in Rule 23(b) is met. "Rule 23(b)(1) allows a class to be maintained where `prosecuting separate actions by or against individual class members would create a risk of' either `(A) inconsistent or varying adjudications,' or `(B) adjudications... that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede[] their ability to protect their interests.'" Dukes, 131 S.Ct. at 2549 n. 2.
Rule 23(b)(2) allows class treatment when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED.R.CIV.PROC. 23(b)(2). The Supreme Court has not yet decided whether this rule "applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all." Dukes, 131 S.Ct. at 2557. It has concluded, however, "that, at a minimum, claims for individualized relief ... do not satisfy the Rule." Id. Thus, Rule 23(b)(2) "does not authorize class certification when each class member would be entitled to an individualized award of monetary damages." Id.
"Rule 23(b)(3) states that a class may be maintained where `questions of law or fact common to class members predominate over any questions affecting only individual members,' and a class action would be `superior to other available methods for
"Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Id. at 2551. Thus, "[t]he party seeking certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one requirement of Rule 23(b) have been met." Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir.), amended, 273 F.3d 1266 (9th Cir.2001); see also Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992). A class can be certified only if the court "is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). As the Supreme Court has noted, "[f]requently ... `rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim." Dukes, 131 S.Ct. at 2551.
Plaintiffs seeks to certify twelve statewide classes as follows:
As a threshold matter, ConAgra contends that the named plaintiffs lack standing because they have suffered no injury.
ConAgra made these same arguments in opposition to plaintiffs' original motion for class certification; the court found them unconvincing and continues to do so. As the court noted in its prior order, each plaintiff has testified that he or she purchased Wesson Oils during the class period. Plaintiffs contend they were damaged because ConAgra misleadingly labeled the products "100% Natural," which caused them to pay higher market prices for the products than they would have otherwise have paid. Although plaintiffs' subsequent purchase of products labeled "natural" that contained GMO ingredients may seriously undercut their claim that their purchasing decision was influenced by the "100% Natural" label, the purchases do not deprive plaintiffs of standing to assert the claims they plead in this action. Moreover, although ConAgra argues that plaintiffs' supplemental declarations also indicate
ConAgra also argues that plaintiffs lack standing to represent the putative classes because they "can only speculate as to their damages." Specifically, it asserts that plaintiffs "have not saved receipts, cannot recall what they paid over time, and have no way of finding out."
The fact that plaintiffs cannot recall the specific price they paid for Wesson Oils does not deprive them of standing. Weir states that it is "possible to determine damages, with a reasonable degree of specificity, certainty, and accuracy, attributable to ConAgra's conduct of placing the '100% Natural' claim on the label of every bottle of Wesson Oil" by performing a hedonic regression analysis using "aggregate historical retail price" data.
In short, the data plaintiffs and Weir have identified or proffered provide sufficient "foundational evidence" from which a price premium attributable to ConAgra's use of a "100% Natural" label on Wesson Oils can be calculated. At this stage of the proceedings, the court concludes that plaintiffs have adequately shown that they suffered injury in fact sufficient to confer standing on them to pursue the class claims. Accordingly, the court turns to the merits of plaintiffs' amended motion for class certification.
Although not specifically mentioned in Rule 23, plaintiffs must, in addition to showing numerosity, commonality, typicality and adequacy, demonstrate that the members of the class are ascertainable. See, e.g., Lukovsky v. San Francisco, No. C 05-00389 WHA, 2006 WL 140574, *2 (N.D.Cal. Jan. 17, 2006) ("`Although there is no explicit requirement concerning the class definition in FRCP 23, courts have held that the class must be adequately defined and clearly ascertainable before a class action may proceed,'" quoting Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679-80 (S.D.Cal.1999)); Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D.Cal.2002) ("Prior to class certification, plaintiffs must first define an ascertainable and identifiable class. Once an ascertainable and identifiable class has been defined, plaintiffs must show that they meet the four requirements of Rule 23(a), and the two requirements of Rule 23(b)(3)" (citation and footnote omitted)); O'Connor v. Boeing North American, Inc., 184 F.R.D. 311, 319 (C.D.Cal.1998) (holding that a class definition must be "precise, objective and presently ascertainable"); Bishop v. Saab Automobile A.B., No. CV 95-0721 JGD (JRx), 1996 WL 33150020, *4 (C.D.Cal. Feb. 16, 1996) ("To file an action on behalf of a class, the named plaintiffs must be members of the class that they purport to represent at the time the class action is certified. The named plaintiffs must also demonstrate that the class is ascertainable" (citation omitted)).
A class is sufficiently defined and ascertainable if it is "administratively feasible for the court to determine whether a particular individual is a member." O'Connor, 184 F.R.D. at 319; accord Davoll v. Webb, 160 F.R.D. 142, 143 (D.Colo. 1995); see also Buford v. H & R Block, Inc., 168 F.R.D. 340, 347 (S.D.Ga.1996) ("[T]he `description of the class must be sufficiently definite to enable the court to determine if a particular individual is a member of the proposed class,'" quoting Pottinger v. Miami, 720 F.Supp. 955, 957 (S.D.Fla.1989)).
Plaintiffs argue that the classes they propose are ascertainable because membership in each is governed by a single objective criterion — whether an individual purchased Wesson Oils during the class period.
The court continues to agree with those courts that have found classes, such as those proposed by plaintiffs, ascertainable. As the court previously noted: "ConAgra's argument would effectively prohibit class actions involving low priced consumer goods — the very type of claims that would not be filed individually — thereby upending
ConAgra also argues, as it did in its original opposition, that the inclusion of uninjured class members makes the putative classes unascertainable.
For these reasons, and for the reasons articulated in its August 1 order,
Before a class can be certified under the Federal Rules of Civil Procedure, the court must determine that it is "so numerous that joinder of all members is impracticable." See FED.R.CIV.PROC. 23(a)(1). "Impracticability does not mean impossibility, [however,] ... only ... difficulty or inconvenience in joining all members of the class." Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909,
Commonality requires "questions of law or fact common to the class." See FED.R.CIV.PROC. 23(a)(2). The commonality requirement is construed liberally, and the existence of some common legal and factual issues is sufficient. Jordan v. County of Los Angeles, 669 F.2d 1311, 1320 (9th Cir.1982); accord Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998) ("The commonality preconditions of Rule 23(a)(2) are less rigorous than the companion requirements of Rule 23(b)(3). Indeed, Rule 23(a)(2) has been construed permissively"); see also, e.g., Ventura v. New York City Health & Hosps. Corp., 125 F.R.D. 595, 600 (S.D.N.Y.1989) ("Unlike the `predominance' requirement of Rule 23(b)(3), Rule 23(a)(2) requires only that the class movant show that a common question of law or fact exists; the movant need not show, at this stage, that the common question overwhelms the individual questions of law or fact which may be present within the class"). As the Ninth Circuit has noted: "All questions of fact and law need not be common to satisfy the Rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies "within the class."" Hanlon, 150 F.3d at 1019.
That said, the putative class's "claims must depend upon a common contention — for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Dukes, 131 S.Ct. at 2551. Although for purposes of Rule 23(a)(2) even a single common question will do, id. at 2556, "`[w]hat matters to class certification ... is not the raising of common `questions' — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.'" Id. at 2551 (citing Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.REV. 97, 132 (2009)). As the Ninth Circuit recently articulated by way of example, "it is insufficient to merely allege any common question, for example, `Were Plaintiffs passed over for
As in their original motion for class certification, plaintiffs argue that the commonality requirement is satisfied because all class members were exposed to ConAgra's "100% Natural" label and marketing and their claims thus arise from "a common core of salient facts" and pose a common questions: "whether ConAgra's '100% Natural' marketing and labeling of Wesson Oil products was false, unfair, deceptive, and/or misleading."
Typicality requires a determination as to whether the named plaintiff's claims are typical of those of the class members she seeks to represent. See FED.R.CIV.PROC. 23(a)(3). "[R]epresentative claims are `typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020; see also Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D.Cal.1985) ("A plaintiff's claim meets this requirement if it arises from the same event or course of conduct that gives rise to claims of other class members and the claims are based on the same legal theory").
"The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Hanon, 976 F.2d at 508 (citation and internal quotation marks omitted). Typicality, like commonality, is a "permissive standard[]." Hanlon, 150 F.3d at 1020. Indeed, in practice, "[t]he commonality and typicality requirements
Typicality may be lacking "if `there is a danger that absent class members will suffer [because] their representative is preoccupied with defenses unique to it.'" Hanon, 976 F.2d at 508 (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 903 F.2d 176, 180 (2d Cir.1990)); see also J.H. Cohn & Co. v. Am. Appraisal Assoc., Inc., 628 F.2d 994, 999 (7th Cir.1980) ("[E]ven an arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the class as well as bring into question the adequacy of the named plaintiff's representation"). To be typical, a class representative need not prove that she is immune from any possible defense, or that her claim will fail only if every other class member's claim also fails. Instead, she must establish that she is not subject to a defense that is not "typical of the defenses which may be raised against other members of the proposed class." Id.; see also Ellis, 657 F.3d at 984.
The named plaintiffs argue that the typicality requirement is satisfied because their claims "`arise[] from the same course of events, and each class member makes similar legal arguments to prove [ConAgra's] liability.'"
Because ConAgra sets forth no arguments other than those that the court previously found unpersuasive, and because its contentions concerning "materiality" and the need for individualized proof for reliance and causation are better addressed in assessing whether Rule 23(b)(3)'s predominance requirement is satisfied, the court concludes that named plaintiffs have adequately shown that their claims are typical of the claims of the putative class members they seek to represent.
The adequacy of representation requirement set forth in Rule 23(a)(4) involves a two-part inquiry: "(1) do the named plaintiff[] and [her] counsel have any conflicts of interest with other class members and (2) will the named plaintiff[] and [her] counsel prosecute the action vigorously on behalf of the class?" Hanlon, 150 F.3d at 1020; accord Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir.2003). "Adequate representation depends on, among other factors, an absence of antagonism between representatives and absentees, and a sharing of interest between representatives and absentees." Ellis, 657 F.3d at 985. Individuals are not adequate representatives of a class when "it appears that they have abdicated any role in the case beyond that of furnishing their names as plaintiffs." Helfand v. Cenco, Inc., 80
ConAgra challenges the adequacy of the named plaintiffs on the same grounds that it challenges the typicality of their claims; it challenges the adequacy of class counsel on the same grounds that it raised in its opposition to plaintiffs' original class certification motion.
Having concluded that Rule 23(a)'s requirements are met, the court turns to Rule 23(b). Plaintiffs seek to certify the proposed classes separately for purposes of injunctive relief and damages under Rules 23(b)(2) and 23(b)(3). In its decision in Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir.2010) (en banc), rev'd ___ U.S. ___, 131 S.Ct. 2541, 180
An injunctive relief class can be certified under Rule 23(b)(2) when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED. R. CIV. PROC. 23(b)(2). As a threshold matter, the court must determine whether the named plaintiffs have standing to seek an injunction requiring ConAgra to cease marketing Wesson Oils as "100% Natural." In its August 1 order, the court noted that plaintiffs had failed to proffer any evidence indicating that they intended to purchase Wesson Oil products in the future and thus lacked Article III standing to represent injunctive relief classes:
ConAgra contends there is no "clear, admissible evidence that [the named plaintiffs] w[ill] purchase Wesson Oil in the future."
Plaintiffs contend they have adequately alleged a future intent to purchase Wesson Oil products, citing Judge Breyer's decision in Jones, 2014 WL 2702726. There, plaintiffs sued ConAgra for violation of California's Unfair Competition Law, California Business and Professions Code § 17200; misleading advertising in violation of California Business and Professions Code § 17500; violation of California's Consumers Legal Remedies Act; and unjust enrichment. Id. at *1. Plaintiffs alleged that ConAgra had mislabeled three products — Hunt's® canned tomatoes, PAM® cooking sprays; and Swiss Miss® hot cocoa; the Hunt's and PAM products were labeled "100% Natural," while the Swiss Miss label stated that the product
Plaintiffs assert that because the named representatives seeking to represent injunctive relief classes have proffered supplemental declarations that precisely track the language in Jones — i.e., that state "[they] might purchase [Wesson Oil products] in the future if they were properly labeled," they have adduced evidence that shows they have standing to represent an injunctive relief class. While the quoted portion of Judge Breyer's opinion in Jones uses the word "might," it elsewhere notes that the plaintiff must show a "real and immediate threat of repeated injury":
Given that there is "no way around" the threshold showing required to demonstrate Article III standing to assert injunctive relief claims, the court concludes that a statement that a party "will consider" or "might consider" purchasing a product in the future is not sufficiently "concrete" or "real and immediate" to support constitutional standing under either Article III or Jones.
Plaintiffs contentions to the contrary are unavailing.
Other courts have questioned whether this type of statement demonstrates there is a real and immediate threat of future injury. See, e.g., Marty v. Anheuser-Busch Companies, LLC, 43 F.Supp.3d 1333, 1358 (S.D.Fla.2014) ("plaintiffs ... maintain that `Courts find standing to seek injunctive relief under consumer protection laws where the defendant continues the allegedly deceptive labeling or advertising and the plaintiff may purchase the product in the future.' The permissive word `may' seems at odds with Supreme Court precedent which requires a real and immediate threat of future injury," citing City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that the threat must be "real and immediate" as opposed to "conjectural or hypothetical")); Smith v. Chrysler Financial Co., L.L.C., No. Civ.A.00-CV-6003 DMC, 2004 WL 3201002 (D.N.J. Dec. 30, 2004) ("Plaintiffs have failed to establish a real and immediate threat that they will suffer an injury as the result of any actions or policies of Defendant. The injury which Plaintiffs allege, that they may want to buy another Chrysler in the future and may be discriminated against by Defendant, is simply too speculative" (emphasis added)). See also Miller v. Nissan Motor Acceptance Corp., 362 F.3d 209, 223 (3d Cir.2004) (suggesting, in dicta, that the conclusion that a plaintiff who might default on a lease and might return a leased automobile early and consequently pay an early termination fee had standing was "plainly wrong"); Freydel v. New York Hosp., 242 F.3d 365, 2000 WL 1836755 (2d Cir. Dec. 13, 2000) (Unpub. Disp.) ("While we agree that plaintiff `may' be referred to NYH in the future, such an indefinite speculation is insufficient to maintain standing to seek injunctive relief"). Cf. Clapper v. Amnesty International USA, ___ U.S. ___, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (to have standing to sue for injunctive relief, a plaintiff must show that the "`threatened injury [is] certainly impending,'" quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (emphasis added)).
Plaintiffs cite no authority suggesting that allegations they "might" or "will" consider purchasing ConAgra's products satisfies Article III, and the court concludes that the weight of authority is to the contrary. Compare Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 533 (N.D.Cal.2012) (concluding that named plaintiffs had shown they had Article III standing to seek classwide injunctive relief because they clearly "stated [an] intent to purchase" the challenged product in the future) with Werdebaugh v. Blue Diamond Growers, Case No.: 12-CV-2724-LHK, 2014 WL 2191901, *9 (N.D.Cal. May 23, 2014) ("Here, because Werdebaugh has not alleged, let alone provided evidentiary proof, that he intends or desires to purchase Blue Diamond almond milk products in the future, there is no likelihood of future injury to Plaintiff that is redressable through injunctive relief, and Plaintiff lacks standing to pursue that remedy. As a result, Plaintiff is precluded from seeking injunctive relief on a classwide basis, and the Court declines to certify the proposed class under Rule 23(b)(2)," citing
Consistent with Article III's standing requirements, plaintiffs must proffer evidence that there is "a sufficient likelihood that [they] will be wronged in a similar way." Lyons, 461 U.S. at 111, 103 S.Ct. 1660 (emphasis added). Plaintiffs' equivocal, speculative assertion that they "may consider" or "will consider" purchasing Wesson Oils in the future if they are not mislabeled does not satisfy this standard. See Dabish v. Infinitelabs, LLC, No. 13-CV-2048 BTM (DHB), 2014 WL 4658754, *5 (S.D.Cal. Sept. 17, 2014) ("[t]o establish standing for prospective injunctive relief, [a p]laintiff must demonstrate that `he has suffered or is threatened with a `concrete and particularized' legal harm ... coupled with `a sufficient likelihood that he will again be wronged in a similar way,''" citing Bates v. United Parcel Service, Inc., 511 F.3d 974, 985 (9th Cir.2007) (in turn citing Lyons, 461 U.S. at 111, 103 S.Ct. 1660)); see also Bates, 511 F.3d at 985 (holding that a plaintiff must establish a "real and immediate threat of repeated injury" to demonstrate Article III standing).
Certifying a class under Rule 23(b)(3) requires "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." FED. R. CIV. PROC. 23(b)(3); see Poulos v. Caesars World, Inc., 379 F.3d 654, 664 (9th Cir. 2004). The predominance requirement is "far more demanding" than the commonality requirement of Rule 23(a). Amchem Products, 521 U.S. at 623-24, 117 S.Ct. 2231. If common questions "present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication," then "there is clear justification for handling the dispute on a representative rather than on an individual basis," and the predominance test is satisfied. Hanlon, 150 F.3d at 1022. "`[I]f the main issues in a case require the separate adjudication of each class member's individual claim or defense, [however,] a Rule 23(b)(3) action would be inappropriate.'"
In its order denying plaintiffs' original motion for class certification, the court concluded that it could not determine whether reliance or causation could "be prove[n] on a classwide basis with respect to each of the claims plaintiffs assert, and each of the classes they propose."
Because plaintiffs had not shown that (1) each putative class's claim could be proved by adducing evidence supporting a classwide inference of reliance and/or causation; and (2) the evidence regarding the materiality of the "100% Natural" label was in conflict, the court concluded that plaintiffs had not sufficiently shown that common questions predominated over individualized ones.
In support of their amended motion for class certification, plaintiffs argue that "the predominant question under each of the consumer protection statutes at issue in this case is whether the '100% Natural' label on Wesson Oils is objectively false, deceptive, misleading, and/ or unfair to reasonable consumers."
Plaintiffs seek to certify a California class alleging: (1) violations of California's consumer protection statutes; (2) breach of express warranty; and (3) breach of implied warranty.
Courts generally consider claims under California's Unfair Competition Law ("UCL"), False Advertising Law ("FAL") and Consumers Legal Remedies Act ("CLRA") together. See Forcellati, 2014 WL 1410264 at *9 ("For purposes of class certification, the UCL, FAL, and CLRA are materially indistiguishable," citing Delarosa
Thus, a California class suing under the state's consumer protection statutes need not show individualized reliance if it can establish the materiality of ConAgra's "100% Natural" label to a reasonable consumer. See Forcellati, 2014 WL 1410264 at *9 ("As such, whether or not Defendants' claims are misleading is an objective, classwide inquiry for purposes of the UCL, FAL, and the CLRA. It is simply a matter of common sense that consumers who purchased Defendants' products did so in reliance on Defendants' claims that the products provided effective relief from cold and flu symptoms," citing Delarosa, 275 F.R.D. at 586).
Plaintiffs contend that their California breach of express and implied warranty claims are also susceptible of common proof such that individualized issues do not predominate. The court agrees. California Commercial Code § 2313, which defines express warranty, applies to "transactions in goods." See CAL. COM. CODE § 2102; see also CAL. CIV.CODE § 1791.2(a)(1) (defining an "express warranty" as "[a] written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or to provide compensation if there is a failure in utility or performance"); BLACK'S LAW DICTIONARY at 1582 (7th ed.1999) (defining "express warranty" as "[a] warranty created by the overt words or actions of the seller"); 3 B. Witkin, SUMMARY OF CALIFORNIA LAW, §§ 55-56 (9th ed.1990); Richard A. Lord, WILLISTON ON CONTRACTS 4TH § 52.45 (4th ed.2004) ("Under the [Uniform Commercial] Code, an express warranty is usually associated with a contract for the sale of goods, but may be found in connection with other transactions involving goods.... There is a division of opinion
An express warranty is a term of the parties' contract. See A.A. Baxter Corp. v. Colt Industries, Inc., 10 Cal.App.3d 144, 153, 88 Cal.Rptr. 842 (1970) ("A warranty is as much one of the elements of sale and as much a part of the contract of sale as any other portion of the contract and is not a mere collateral undertaking.... [T]o constitute an express warranty, the statement must be a part of the contract"); WILLISTON, supra, § 52.45 (stating that an express warranty is "a term of the parties' contract"); see Paularena v. Superior Court of San Diego County, 231 Cal.App.2d 906, 915, 42 Cal.Rptr. 366 (1965) ("The damages which each set of plaintiffs seek[s] through their [breach of warranty] cause[] of action are dependent upon their affirmance of the existence of a contract").
To prevail on a breach of express warranty claim under California law, a plaintiff must prove that: "(1) the seller's statements constitute an affirmation of fact or promise or a description of the goods; (2) the statement was part of the basis of the bargain; and (3) the warranty was breached." Allen v. ConAgra Foods, Inc., Case No. 13-cv-01279-JST, 2013 WL 4737421, *11 (N.D.Cal. Sept. 3, 2013) (citing Weinstat v. Dentsply International, Inc., 180 Cal.App.4th 1213, 1227, 103 Cal.Rptr.3d 614 (2010)). Proof of reliance on specific promises or representations is not required.
Accordingly, courts have found that breach of express warranty claims are appropriate for class treatment where whether defendant misrepresented its product and whether such misrepresentation breached warranties are issues common to members of the putative class. See, e.g., Allen v. Hyland's Inc., 300 F.R.D. 643, 669 (C.D.Cal.2014) ("Here, each of the elements is subject to common proof. Plaintiffs allege that Defendants represented that the products would be effective at treating various ailments, and such representations on the product packaging formed part of the basis of the bargain. Plaintiffs allege that for the reasons discussed above, Defendants' warranty about the effectiveness of their products was breached"); Astiana v. Kashi Co., 291 F.R.D. 493, 505 (S.D.Cal.2013) ("Common issues also exist and predominate on Plaintiffs' claims for quasi-contract and breach of express warranty as to the products labeled `Nothing Artificial.' Plaintiff Larsen's claims are based on common contentions of deceptive conduct by Defendant in marketing its products. Specifically, this case concerns whether Defendant's products contained artificial ingredients and whether Defendant made material representations to the contrary. Determinations of whether Defendant misrepresented its products and, as a result, whether warranties were breached, are common issues appropriate for class treatment," citing Keegan v. American Honda Motor Co., Inc., 284 F.R.D. 504, 534-37 (C.D.Cal. 2012)).
As with California's consumer protection statutes, however, class treatment of breach of express warranty claims is only appropriate if plaintiffs can demonstrate that the alleged misrepresentation would have been material to a reasonable consumer. See Astiana, 291 F.R.D. at 509 ("Likewise, Plaintiffs' claims for breach of express warranty and quasi contract due to the `All Natural' representations
The California Commercial Code also "implies a warranty of merchantability that goods `[a]re fit for [the] ordinary purposes for which such goods are used.'" Birdsong v. Apple, Inc., 590 F.3d 955, 958 (9th Cir.2009) (quoting CAL. COM.CODE § 2314(2)(c)). "The implied warranty `provides for a minimum level of quality.'" Id. (quoting Am. Suzuki Motor Corp. v. Superior Court, 37 Cal.App.4th 1291, 1296, 44 Cal.Rptr.2d 526 (1995)). "A breach of the warranty of merchantability occurs if the product lacks `even the most basic degree of fitness for ordinary use.'" Id. (quoting Mocek v. Alfa Leisure, Inc., 114 Cal.App.4th 402, 406, 7 Cal.Rptr.3d 546 (2003)). Contrary to plaintiffs' assertions,
Judge Dolly Gee of this district recently concluded that the predominance requirement was not satisfied with respect to a breach of implied warranty claim that was based on a purported misrepresentation on the product's label because the class members had to show that they were in vertical privity with the defendant. Because they did not purchase the product directly from the defendant, but rather from a retail store, Judge Gee concluded that individual issues predominated over common questions. See Allen, 300 F.R.D. at 670 ("Plaintiffs have not adequately demonstrated that common issues of fact and law predominate with respect to this claim, given that each class member will be
For the reasons stated, the court concludes that plaintiffs' California consumer protection and express warranty claims are susceptible of classwide proof. The court considers infra whether plaintiffs have shown that ConAgra's alleged misrepresentation would have been material to a reasonable consumer so as to support a classwide inference of reliance for purposes of plaintiffs' consumer protection claims and a classwide finding of express warranty for purposes of plaintiffs' breach of express warranty claim. The court concludes that individual issues predominate, however, with respect to plaintiffs' California implied warranty claim, and that class certification of that claim is not appropriate.
Plaintiffs representing the putative Colorado class seek to certify four claims: (1) violation of the Colorado Consumer Protection Act ("CCPA"); (2) breach of express warranty; (3) breach of implied warranty; and (4) common law unjust enrichment.
The CCPA was "enacted to regulate commercial activities and practices, which because of their nature, may prove injurious, offensive, or dangerous to the public." Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146 (Colo.2003). More specifically, the CCPA works to deter and punish businesses for consumer fraud. Id. The CCPA is liberally construed to serve its broad purpose and scope. Hall v. Walter, 969 P.2d 224, 230 (Colo.1998).
"In order to prove a private cause of action under the CCPA, a plaintiff must show: `(1) [that] the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of defendant's business, vocation or occupation; (3) that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered ... injury in fact to a legally protected interest; and (5) that the challenged practice caused the plaintiff's injury.'" HealthONE of Denver, Inc. v. UnitedHealth Group, Inc., 805 F.Supp.2d 1115, 1120 (D.Colo.2011) (quoting Rhino Linings, 62 P.3d at 146-47). The CCPA applies to the type conduct alleged by plaintiffs in this case — i.e., misleading claims or advertising to consumers. See, e.g., Dawson v. Litton Loan Servicing, LP, No. 12-CV-01334-CMA-KMT, 2013 WL 1283848, *4 (D.Colo. Mar. 28, 2013) ("The CCPA prohibits a wide variety of `deceptive trade practices,' including
ConAgra disputes whether the showing of injury, i.e., damages and causation, is susceptible of classwide proof such that the claim satisfies the predominance requirement.
Plaintiffs maintain there is circumstantial evidence supporting a classwide inference of causation for purposes of the CCPA claim because there is evidence that the "100% Natural" label was material to the putative class.
To recover for breach of express warranty under Colorado law, a plaintiff must prove that (1) a warranty existed; (2) the defendant breached the warranty; (3) the breach proximately caused the losses claimed as damages; and (4) timely notice of the breach was given to defendant. Fiberglass Component Production, Inc. v. Reichhold Chemicals, Inc., 983 F.Supp. 948, 953 (D.Colo.1997) (citing Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984); COLO. JURY INSTR. — Civ.3d 14:6 (1990)). "An implied warranty of merchantability exists in all contracts for sales of goods unless disclaimed." Id. at 957-58; see also COLO. JURY INSTR. — Civ. 14:10 (2014). In cases such as this, where plaintiffs allege that the same conduct breached an express and an implied warranty of merchantability, courts analyze the claims together. See Haffner v. Stryker Corporation, No. 14-CV-00186-RBJ, 2014 WL 4821107, *6 (D.Colo. Sept. 29, 2014) ("Under Colorado law, an express warranty
Reliance is not a required element of a Colorado warranty claim, see Lutz Farms v. Asgrow Seed Co., 948 F.2d 638, 645 (10th Cir.1991), nor is a showing of privity required, Hansen v. Mercy Hospital, Denver, 40 Colo.App. 17, 18, 570 P.2d 1309 (1977) ("lack of privity no longer presents an obstacle to recovery for breach of implied warranty," citing COLO. REV.STAT. ANN. § 4-2-318 ("A seller's warranty whether express or implied extends to any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of the warranty")).
Causation, however, is a required element. See Reichhold Chemicals, 983 F.Supp. at 953 ("To recover for breach of express warranty, a plaintiff must prove that: 1) a warranty existed; 2) the defendant breached the warranty; 3) the breach proximately caused the losses claimed as damages; and 4) timely notice of the breach was given to defendant," citing Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo.1984); COLO. JURY INSTR. — Civ. 14:6). Causation is also a required element for a breach of implied warranty claim under Colorado law. See COLO. JURY INSTR. — Civ. 14:10 (2014) (noting that to recover on a claim of breach of implied warranty of merchantability, a plaintiff must establish by a preponderance of the evidence, inter alia, "[t]his breach of warranty caused the plaintiff (injuries) (damages) (losses)"). At the hearing, plaintiffs argued that their Colorado warranty claims are susceptible of classwide proof because they will be able to show through hedonic regression and conjoint analysis that the "100% Natural" label on bottles of Wesson cooking oil proximately caused their damages; specifically, they assert they will be able to show that there was a price premium associated with the label that led class members to pay more for each bottle of Wesson Oils they purchased. Plaintiffs contend that payment of the price premium was proximately caused by ConAgra's purported breach of a warranty that Wesson Oils contained no GMOs. They seek to recover the price premium as damages.
The court is persuaded by plaintiffs' argument and agrees that, under Colorado law, causation is susceptible of classwide proof where, as here, plaintiffs may be able to prove that defendant's warranty caused each class member to pay more than he or she otherwise would have paid for the product. Thus, if plaintiffs are able to propose a methodology to calculate the price premium attributable to use of the "100% Natural" label to suggest that Wesson Oils contain no GMO ingredients, the court concludes they will be able demonstrate causation on a classwide basis. The court considers infra whether plaintiffs have proposed a viable damages methodology.
Unjust enrichment is a judicially-created remedy designed to undo the benefit to one party that comes at the unfair detriment of another. Salzman v. Bachrach, 996 P.2d 1263, 1265 (Colo.2000). Unjust enrichment is based on principles commonly associated with restitution. DCB Constr. Co. v. Central City Dev. Co., 965 P.2d 115, 119 (Colo.1998). "When restitution is the primary basis of a claim, as opposed to a remedy for bargains gone awry, it invokes what has been called a `contract implied in law.'" Id. (citing Joseph M. Perillo, Restitution in a Contractual Context, 73 COL. L.REV. 1208, 1212-13 (1973)). It is thus an equitable remedy and does not depend on the existence of either an oral or written contract. See Cablevision of Breckenridge, Inc. v. Tannhauser Condo. Ass'n, 649 P.2d 1093, 1097 (Colo.1982).
To state an unjust enrichment claim under Colorado law, plaintiff must show that "(1) the defendant received a benefit (2) at the plaintiff's expense (3) under circumstances that would make it unjust for the defendant to retain the benefit without commensurate compensation." Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008) (citing Salzman, 996 P.2d at 1266-67). Colorado courts have recognized that unjust enrichment "does not require a promise or privity between the parties." Salzman, 996 P.2d at 1265.
Plaintiffs argue that a Colorado unjust enrichment claim does not require proof of "causation, materiality, [or] reliance," and thus that a class should be certified.
Given the highly factual nature of this question, the court is concerned that individualized inquiries will be required concerning the motivations and purchasing decisions of each class member, notwithstanding the fact that ConAgra made a uniform representation, i.e., that Wesson Oils were "100% Natural." Plaintiffs cite no authority for the proposition that a Colorado unjust enrichment class should be certified, or that, under Colorado law, the court can draw a common inference that the purchase transactions into which class members entered with ConAgra were unjust, obviating the need for individualized inquiries. The court thus concludes that plaintiffs have failed to demonstrate that common questions predominate over individualized inquiries with respect to their unjust enrichment claim, and that certification of a Colorado unjust enrichment class is appropriate.
For the reasons stated, the court concludes that plaintiffs have demonstrated that their Colorado consumer protection claim is susceptible of classwide proof concerning
Plaintiffs representing the putative Florida class seek to certify two claims: (1) violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"); and (2) unjust enrichment.
The FDUTPA is intended to "protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce." Siever v. BWGaskets, Inc., 669 F.Supp.2d 1286, 1292 (M.D.Fla.2009) (quoting FLA. STAT. § 501.204(1)). A claim under the FDUTPA has three elements: (1) a deceptive or unfair practice; (2) causation; and (3) actual damages. Id. Conduct that is deceptive or unfair for purposes of the FDUTPA is defined, inter alia, by "[a]ny law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive or unconscionable acts or practices." Id. (quoting FLA. STAT. § 501.203(3)(c)); Nationwide Mut. Co. v. Ft. Myers Total Rehab Ctr., Inc., 657 F.Supp.2d 1279, 1290 (M.D.Fla.2009). An unfair practice under the FDUTPA is "one that `offends established public policy' and one that is `immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.'" Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 499 (Fla.App.2001) (quoting Spiegel, Inc. v. Fed. Trade Comm'n, 540 F.2d 287, 293 (7th Cir.1976)).
Claims under the FDUTPA are governed by a "reasonable consumer" standard, obviating the need for proof of individual reliance by putative class members. See, e.g., Office of the Attorney Gen. v. Wyndham Int'l, Inc., 869 So.2d 592, 598 (Fla.App.2004) ("When addressing a deceptive or unfair trade practice claim, the issue is not whether the plaintiff actually relied on the alleged practice, but whether the practice was likely to deceive a consumer acting reasonably in the same circumstances.... [U]nlike fraud, a party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue"); Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla. App.2000) ("A party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue"). If numerous individualized inquiries are required to determine the reaction of a "reasonable consumer" to the challenged conduct, however, the predominance requirement for class certification cannot be satisfied; stated differently, while reliance may be proved on a classwide basis, a classwide inference of reliance is inappropriate if plaintiffs cannot establish that the conduct would be material to a reasonable person. See, e.g., In re Motions to Certify Classes Against Court Reporting Firms for Charges Relating to Word Indices, 715 F.Supp.2d 1265, 1282-83 (S.D.Fla.2010) ("In this case, ... the reasonableness conclusion depends on numerous individualized inquiries that would fly in the face of the requirement that individual issues not predominate over those common to the class"). Thus, plaintiffs must show that ConAgra's allegedly
The essential elements that must be shown to prove unjust enrichment under Florida law are a benefit conferred on the defendant by the plaintiff, the defendant's appreciation of the benefit, and the defendant's acceptance and retention of the benefit under circumstances that make it inequitable for it to retain the benefit without paying the value thereof. Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla. App.1998) (citing Ruck Brothers Brick v. Kellogg & Kimsey, 668 So.2d 205 (Fla.App. 1995); Rite-Way Painting & Plastering v. Tetor, 582 So.2d 15 (Fla.App.1991)); see also Florida Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 n. 4 (Fla.2004); Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla.App.2006). Florida courts have concluded that privity is not a required element of an unjust enrichment claim. See MacMorris v. Wyeth, Inc., No. 2:04-CV-596-FTM-29DNF, 2005 WL 1528626, *4 (M.D.Fla. June 27, 2005) (observing that "indirect purchasers have been allowed to bring an unjust enrichment claim against a manufacturer").
Plaintiffs argue that predominance is satisfied because "[c]ourts have found that common questions predominate for Florida unjust enrichment claims where defendant's conduct was the same as to all class members."
As the BellSouth Telecommunications court recognized, however, Florida courts frequently conclude that unjust enrichment classes cannot be certified because "unjust enrichment claims `typically require individualized inquiries into the equities.'" BellSouth Telecommunications, 275 F.R.D. at 647. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Cir. 2009) ("Due to the necessity of [an] inquiry into the individualized equities attendant to each class member, ... common questions will rarely, if ever, predominate an unjust enrichment claim"). The In re Checking Account Overdraft Litigation court concluded that plaintiffs in that case did not assert a "typical" unjust enrichment claim because, unlike Vega, where employees had varying levels of knowledge and understanding about a commission policy that was uniformly applied, the bank customer plaintiffs were uniformly impacted by a common scheme whose "true nature" they never learned; there was thus no question of the customers having different levels of knowledge or different reactions to the practice. See In re Checking Account Overdraft Litigation, 286 F.R.D. at 658. Similarly, BellSouth Telecommunications was not a "typical" unjust enrichment case because the same billing policy applied to all putative class members, and defendants adduced no evidence that class members knew of the practice. See BellSouth Telecommunications, 275 F.R.D. at 647.
Despite the fact that ConAgra's alleged misconduct was common to all class members, cases in which plaintiffs assert that they were misled by a representation in advertising or on a product label and that they purchased a product they otherwise would not have are the type that require individualized inquiries similar to those discussed by the Vega court. Where individualized inquiries concerning the reasons class members purchased a product are required, Florida courts find that those inquiries predominate over common questions, and that class certification is inappropriate.
In Green, plaintiffs filed a putative class action against McNeil alleging violations of the FDUTPA and unjust enrichment; they asserted that McNeil's use of a "SUGAR" label of Splenda® packets was "unfair, false, and misleading." Id. at *1. Plaintiffs moved to certify an unjust enrichment class under Florida law and the court denied the motion, concluding that individualized inquiries concerning each class member's
The court finds the reasoning of the Green court persuasive, and concludes that individualized inquiries concerning the reasons each class member purchased Wesson Oils will be required in order to determine whether ConAgra's retention of the purported price premium would be "unjust" or otherwise inequitable. In contrast to BellSouth Telecommunications, it is not "difficult to conceive of ... significant equitable differences between class members." BellSouth Telecommunications, 275 F.R.D. at 647. Indeed, as the class is currently defined, it includes all consumers who purchased Wesson Oils during the class period — whether or not they relied on the "100% Natural" label and regardless of the meaning they ascribed to the term. Even if plaintiffs can prove that the "100% Natural" was false, it does not necessarily follow that ConAgra's retention of the full purchase price would be inequitable with respect to a consumer who did not notice or did not rely on the "100% Natural" claim. Plaintiffs cite no authority suggesting that the need for individualized inquiries described in Green can be obviated by submitting classwide proof of the materiality of the representation. Accordingly, the court concludes that even though ConAgra made a common representation, individualized inquiries concerning the equities of individual class members' transactions will be required such that common questions do not predominate with respect to plaintiffs' unjust enrichment claim.
For the reasons stated, the court concludes that the Florida class's FDUTPA claim may be susceptible of class treatment if plaintiffs can establish that ConAgra's "100% Natural" claim was both common to all members of the class and material, i.e., that it led class members to purchase the Wesson Oils believing that they contained no GMOs. As noted, however, the court concludes that the Florida class's unjust enrichment claim will require individualized inquiries concerning
Plaintiffs seek to certify an Illinois class to assert claims for violation of the Illinois Consumer Fraud Deceptive Business Practices Act ("ICFA") and unjust enrichment.
An ICFA claim requires: "(1) a deceptive act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual damage to the plaintiff that is (5) a result of the deception." De Bouse v. Bayer, 235 Ill.2d 544, 550, 337 Ill.Dec. 186, 922 N.E.2d 309 (2009) (citing Zekman v. Direct American Marketers, Inc., 182 Ill.2d 359, 373, 231 Ill.Dec. 80, 695 N.E.2d 853 (1998)). The last two elements of the claim require a showing that the allegedly deceptive act "proximately caused any damages" suffered by the plaintiff. De Bouse, 235 Ill.2d at 550, 337 Ill.Dec. 186, 922 N.E.2d 309 (citing Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151 (2002)). To be actionable under the ICFA, a representation must be "material"; this is established by applying a reasonable person standard. See Connick v. Suzuki Motor Co., 174 Ill.2d 482, 505, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996) (an omission or misrepresentation is material if it "concerned the type of information upon which a buyer would be expected to rely in making a decision whether to purchase"); see also Cirone-Shadow v. Union Nissan of Waukegan, 955 F.Supp. 938, 944 (N.D.Ill.1997) ("The standard for materiality under the ICFA is an objective standard").
Plaintiffs maintain that common issues predominate over individualized inquiries with respect to the ICFA claim because "individual reliance is not an ICFA element," and the materiality of a misrepresentation is judged by whether a reasonable person would have been deceived by the defendant's conduct.
The same is not true of proximate causation, however. As noted, an ICFA plaintiff must show that defendant's deception proximately caused his or her damage. See Clark v. Experian Information Solutions, Inc., 256 Fed.Appx. 818, 821 (7th Cir.2007) (Unpub. Disp.) ("We concluded that `a private cause of action under the ICFA requires a showing of proximate causation,'" citing Oshana v. Coca-Cola Co., 472 F.3d 506, 514-15 (7th Cir.2006) (in turn citing 815 ILL. COMP. STAT. 505/10a); Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151 (2002) ("Unlike an action brought by the Attorney General under [815 Ill. Comp. Stat. 505/2], which does not require that `any person has in fact been misled, deceived or damaged[,]' ... a private cause of action brought under section [505/10a(a)] requires proof of `actual damage' ... [and] proof that the damage occurred `as a result of the deceptive act or practice.' As noted previously, this language imposes a proximate causation requirement [and] proof that the damage occurred `as a result of' the deceptive act or practice")).
"To be sure, individual issues will almost always be present in consumer fraud actions." Langendorf v. Skinnygirl Cocktails, LLC, 306 F.R.D. 574, 583, 2014 WL 5487670, *6 (N.D.Ill. Oct. 30, 2014). As the Seventh Circuit recently noted, however, it is legally erroneous to hold that individual issues necessarily predominate in [all] cases requiring individual subjective inquiries into causality. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 759 (7th Cir. 2014); see also Pella Corp. v. Saltzman, 606 F.3d 391, 393 (7th Cir.2010) ("While consumer fraud class actions present problems that courts must carefully consider before granting certification, there is not and should not be a rule that they never can be certified").
In cases like this one where the representation being challenged was made to all putative class members, Illinois courts have concluded that causation is susceptible of classwide proof and that individualized inquiries concerning causation do not predominate if plaintiffs are able to adduce sufficient evidence that the representation was material. See, e.g., In re Synthroid Marketing Litigation, 188 F.R.D. 287, 292-93 (N.D.Ill.1999) ("The defendants argue that class certification under Rule 23(b)(3) is precluded because individualized issues relating to causation and damages predominate over the common issues in this lawsuit. First, defendants argue that certification is precluded because plaintiffs cannot demonstrate liability and causation with class-wide proof. According to defendants, causation depends upon individualized inquiries into decisions of consumers, physicians, and pharmacists to purchase, prescribe and dispense Synthroid as well as a careful investigation of the individual facts surrounding each [plaintiff's] knowledge and policies with respect to Synthroid. The plaintiffs, however, allege a pattern of standardized conduct by the defendants, consisting mainly of a fraudulent scheme to conceal scientific information regarding the bioequivalency of Synthroid and other levothyroxine drugs. These allegations involve a common course of conduct that leads to injury of all the class members," citing Toney v. Rosewood Care Center, Inc. of Joliet, No. 98 C 0693, 1999 WL 199249, *9 (N.D.Ill. Mar. 31, 1999) (in turn citing McDonald v. Prudential Ins. Co. of America, No. 95 C
To state an unjust enrichment claim under Illinois law, a plaintiff must allege that the defendant unjustly retained a benefit to the plaintiff's detriment, and that defendant's retention of the benefit violated fundamental principles of justice, equity, and good conscience. See Drury v. County of McLean, 89 Ill.2d 417, 425-26, 60 Ill.Dec. 624, 433 N.E.2d 666 (1982); Kenneke v. First National Bank, 65 Ill.App.3d 10, 12, 21 Ill.Dec. 945, 382 N.E.2d 309 (1978). As is true of unjust enrichment claims in other states, privity is not required. Muehlbauer v. General Motors Corp., 431 F.Supp.2d 847, 853 (N.D.Ill. 2006) (noting that the focus of unjust enrichment is not privity, but rather "the defendant's retention of benefits").
In cases where plaintiffs plead ICFA and unjust enrichment claims based on the same deceptive and/or fraudulent conduct, Illinois courts apply the same predominance analysis to both claims. See Oshana v. Coca-Cola Bottling Co., 225 F.R.D. 575, 586 (N.D.Ill.2005) (concluding that "[t]he same analysis applies to Oshana's unjust enrichment claim" as to her ICFA claim because "Oshana allege[d] class members were `tricked' by Coca-Cola's marketing scheme into purchasing fountain diet Coke that they would not have otherwise purchased"); see also Lipton v. Chattem, Inc., 289 F.R.D. 456, 462 (N.D.Ill.2013) (analyzing predominance jointly with respect to plaintiffs' ICFA, intentional representation, and unjust enrichment claims); Clark v. Experian Information, Inc., 233 F.R.D. 508, 511-12 (N.D.Ill.2005) (same).
Indeed, the Seventh Circuit has recognized that where, as here, an unjust enrichment claim is based on the same alleged wrongdoing that forms the basis for an ICFA claim, the "unjust enrichment claim will stand or fall with the related [ICFA] claim." Cleary v. Philip Morris, Inc., 656 F.3d 511, 517 (7th Cir.2011) ("[I]f an unjust enrichment claim rests on the same improper conduct alleged in another claim, then the unjust enrichment claim will be tied to this related claim — and, of course, unjust enrichment will stand or fall with the related claim" (citations omitted)); see Ass'n Benefit Servs. v. Caremark Rx, Inc., 493 F.3d 841, 855 (7th Cir.2007) ("[W]here the plaintiff's claim of unjust enrichment is predicated on the same allegations of fraudulent conduct that support an independent claim of fraud, resolution of the fraud claim against the plaintiff is dispositive of the unjust enrichment claim as well").
As discussed, to prove ConAgra's liability under the ICFA, plaintiffs must show that its allegedly misleading "100% Natural" label proximately caused their damage. To make such a showing on a classwide basis, moreover, plaintiffs must demonstrate that "100% Natural" claim was material to a reasonable consumer. Because the court has concluded that common issues will predominate over individualized inquiries if plaintiffs make a sufficient showing of materiality, and because plaintiffs unjust enrichment claim
For the reasons stated, the court concludes that the putative Illinois class's ICFA and unjust enrichment claims are susceptible of classwide proof if plaintiffs can establish that ConAgra's "100% Natural" claim was material.
Plaintiffs seek to certify a putative Indiana class to assert breach of express warranty, breach of implied warranty, and unjust enrichment claims.
There are three elements of an unjust enrichment claim under Indiana law: (1) a benefit conferred upon another at the express or implied request of the other party; (2) allowing the other party to retain the benefit without restitution would be unjust; and (3) plaintiff expected payment. Kelly v. Levandoski, 825 N.E.2d 850, 861 (Ind.App.2005). Stated differently, "a plaintiff must establish that a measurable benefit has been conferred on the defendant under such circumstances that the defendant's retention of the benefit without payment would be unjust. One who labors without an expectation of payment cannot recover in quasicontract." Bayh v. Sonnenburg, 573 N.E.2d 398, 408 (Ind.1991); see Meridian Financial Advisors, Ltd. v. Pence, 763 F.Supp.2d 1046, 1065 (S.D.Ind.2011) ("To recover under a theory of unjust enrichment, `a party must show that a measurable benefit has been conferred on a party under such circumstances that retention of the benefit without payment would be unjust.'... In other words, unjust enrichment" recovery is possible only where disgorgement of the benefit received by the defendant is possible .... In addition, Indiana law only permits recovery under the equitable principle of unjust enrichment when no adequate remedy at law exists").
The court concludes that the Indiana plaintiffs' unjust enrichment claim satisfies the predominance requirement. Indiana courts considering unjust enrichment claims asserted on behalf of a class have found them appropriate for certification if the defendant's allegedly deceptive or fraudulent conduct is common to all class members. See ConAgra, Inc. v. Farrington, 635 N.E.2d 1137, 1143 (Ind. App.1994) (concluding that the predominance requirement was satisfied where plaintiffs showed that defendant made misleading and/or fraudulent statements to which all class members were exposed); see also Wal-Mart Stores, Inc. v. Bailey, 808 N.E.2d 1198, 1207 (Ind.App.2004) (noting, in remanding to the trial court, that "it may ultimately be necessary that the class action be maintained for certain issues, such as whether Wal-Mart was unjustly enriched or whether certain elements of unjust enrichment were met"). As in Farrington, plaintiffs here assert that ConAgra engaged in deceptive conduct by labeling Wesson Oils "100% Natural." ConAgra's conduct was indisputably uniform with respect to all members of the putative class. The court therefore concludes that plaintiffs have shown that common questions predominate over individualized inquiries with respect to their
"In order to prevail on a cause of action based on breach of [express] warranty [under Indiana law], the plaintiff must provide `evidence showing not only the existence of the warranty but that the warranty was broken and that the breach of warranty was the proximate cause of the loss sustained.'" U.S. Automatic Sprinkler Co. v. Reliable Automatic Sprinkler Co., 719 F.Supp.2d 1020, 1027 (S.D.Ind.2010).
The court concludes that plaintiffs have not made a sufficient showing that common issues predominate over individualized inquiries with respect to their breach of express warranty claim. In Indiana, a plaintiff suing for breach of an express warranty must be in privity with the defendant. See Atkinson v. P & G-Clairol, Inc., 813 F.Supp.2d 1021, 1026 (N.D.Ind.2011) ("[V]ertical privity is required for claims of breach of express warranty.... Pizel v. Monaco Coach Corp., 364 F.Supp.2d 790, 793 (N.D.Ind. 2005) (stating that the holding in [Hyundai Motor America, Inc. v.] Goodin, [822 N.E.2d 947 (Ind.2005),] was limited to abolishing the vertical privity requirement for claims of breach of the implied warranty of merchantability) ..."); Davidson v. John Deere & Co., 644 F.Supp. 707, 713 (N.D.Ind.1986) (finding that plaintiff did not have a claim for breach of express warranty because "[p]rivity has not been abrogated as a requirement in contract actions for breach of warranty"); see also Thunander v. Uponor, Inc., 887 F.Supp.2d 850, 865 (D.Minn.2012) ("In Indiana, vertical privity must be shown in order to sue for breach of an express warranty. Vertical privity exists only between immediate links in the chain of distribution. A buyer in the same chain who did not purchase directly from a seller is `remote' to that seller," citing Atkinson, 813 F.Supp.2d at 1026; IND. CODE ANN. § 26-1-2-318).
The Indiana Court of Appeals, however, has recognized an "exception" to the privity requirement for breach of express warranty claims against a manufacturer that are based on representations in advertisements and/or on a product label. In Prairie Production, Inc. v. Agchem Division-Pennwalt Corp., 514 N.E.2d 1299 (Ind.App.1987), the court held that where a manufacturer has made representations to a buyer in the chain of distribution in advertisements or on product labels, and the buyer relied on those representations, the buyer could assert a breach of express warranty claim notwithstanding the lack of privity between plaintiff and defendant. Id. at 1303-04; see also Ryden v. Tomberlin Auto. Group, No. 1:11-CV-1215-RLY-DML, 2012 WL 4470266, *2 (S.D.Ind. Sept. 27, 2012) ("In Prairie Production, the Indiana Court of Appeals relied on the New York case of Randy Knitwear, Inc. v. Am. Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 (N.Y.1962), and held that where a manufacturer had made representations to a buyer in the chain [of] distribution through advertisements and product labels, and the buyer in fact relied upon those representations, the buyer could maintain a claim for breach of an express warranty"). To invoke this "exception," Ryden, 2012 WL 4470266 at *2 ("[Courts] do not treat the case as a general repudiation of privity, but as an exception to it"), however, the representation must have become part of the basis of the bargain, Prairie Production, 514 N.E.2d at 1304 ("[T]he seller's representation rises to the level of an express warranty only if it becomes part of the basis of
Plaintiffs do not address either the privity requirement for breach of express warranty claims or the Prairie Production privity exception. They neither argue nor cite authority for the proposition that there will be no need for individualized inquiries concerning each class member's purchase of Wesson Oils to determine if the privity requirement has been satisfied if the exception does not apply. They also proffer no evidence suggesting that the proof of reliance that is required to invoke the Prairie Production exception is susceptible of classwide proof. Specifically, they cite no authority indicating that a classwide inference of reliance arises under Indiana law if they prove that the label was material to a reasonable consumer. The court's own survey of Indiana cases does not suggest that privity and reliance can be proved on a classwide, rather than an individual, basis. Thus, the court concludes that individualized inquiries will predominate over common questions respecting the putative Indiana class's breach of express warranty claim, and thus denies plaintiffs' motion to certify a class asserting that claim.
"Under Indiana law, an action based on breach of the implied warranty of merchantability `requires evidence showing not only the existence of the warranty but also that the warranty was broken and that the breach was the proximate cause of the loss.'" Hughes v. Chattem, Inc., 818 F.Supp.2d 1112, 1120 (S.D.Ind.2011) (quoting Irmscher Suppliers, Inc. v. Schuler, 909 N.E.2d 1040, 1048 (Ind.App.2009)). Indiana courts have held that a plaintiff need not prove vertical privity with the defendant to recover for breach of the implied warranty of merchantability. See Hoopes v. Gulf Stream Coach, Inc., No. 1:10-CV-365, 2014 WL 4829623, *10 (N.D.Ind. Sept. 29, 2014) ("The Indiana Supreme Court held that `Indiana law does not require vertical privity between a consumer and a manufacturer as a condition to a claim by the consumer against the manufacturer for breach of [the] implied warranty of merchantability'" (citations omitted)); Lautzenhiser v. Coloplast No. 4:11-CV-86-RLY-WGH, 2012 WL 4530804, *5 (S.D.Ind. Sept. 29, 2012) ("The warranty of merchantability attaches automatically if the seller is a vendor of the goods in question.... Unlike the warranty of fitness for a particular purpose, vertical privity is not required"); Goodin, 822 N.E.2d at 959 ("[W]e conclude that Indiana law does not require vertical privity
A plaintiff asserting a claim for breach of the implied warranty of merchantability must still prove that the breach was a proximate cause of his or her loss, however. See Irmscher Suppliers, Inc., 909 N.E.2d at 1048; Frantz v. Cantrell, 711 N.E.2d 856, 860 (Ind.App.1999) ("`Any action based on breach of warranty requires evidence showing not only the existence of the warranty but that the warranty was broken and that the breach of warranty was the proximate cause of the loss sustained,'" citing Richards v. Goerg Boat and Motors, Inc., 179 Ind.App. 102, 108-09, 384 N.E.2d 1084 (1979)).
Plaintiffs argue that, as with their Colorado warranty claims, their Indiana implied warranty claim is susceptible of classwide proof because they will be able to demonstrate through their damages methodology that the allegedly misleading "100% Natural" label proximately caused their damages, i.e., they will be able to show that a price premium attributable to the label resulted in Indiana class members paying more for each bottle of Wesson Oils than they otherwise would have. Plaintiffs contend that payment of the price premium was proximately caused by ConAgra's purported breach of a warranty that Wesson Oils contained no GMOs. They seek to recover the price premium as damages.
The court is persuaded and agrees that, under Indiana law, causation is susceptible of classwide proof where, as here, plaintiffs may be able to prove that defendant's warranty caused each class member to pay more than he or she otherwise would have paid for the product. Thus, if plaintiffs are able to propose a methodology to calculate the price premium associated with use of the "100% Natural" label to suggest that Wesson Oils contain no GMO ingredients, the court concludes they will be able demonstrate causation on a classwide basis. The court considers infra whether plaintiffs have proposed a viable damages methodology.
For the reasons stated, the court concludes that common questions predominate over individualized issues as respects plaintiffs' Indiana unjust enrichment and implied warranty claims. The same is not true of the Indiana class's breach of express warranty claim, however. The court concludes that these claims are not susceptible of classwide proof and that the predominance requirement is not satisfied with respect to them.
Plaintiffs seek to certify a Nebraska class to assert breach of express and implied warranty claims, as well as a claim for unjust enrichment.
Nebraska recognizes the doctrine of unjust enrichment only when the parties do not have an express contract. See Washa v. Miller, 249 Neb. 941, 950, 546 N.W.2d 813 (1996) (noting that the doctrine cannot "rescue a party from the consequences of a bad bargain"). To recover on an unjust enrichment claim, a plaintiff must prove that defendant "received and retained [benefits] under such circumstances that it would be inequitable and unconscionable to permit the party receiving them to avoid payment therefor."
Plaintiffs argue that they have satisfied the predominance requirement with respect to their Nebraska unjust enrichment claim because the elements of the claim are susceptible of common proof.
Under Nebraska law, "[t]o maintain a warranty action, several factors must be proved: (1) The plaintiff must prove the defendant made a warranty, express or implied, under §§ 2-313, 2-314, or 2-315; (2) the plaintiff must prove the goods did not comply with the warranty, i.e., the goods were defective at the time of the sale; (3) the plaintiff must prove the injury was caused, proximately and in fact, by the defective nature of the goods; and (4) the plaintiff must prove damages." Divis v. Clarklift of Nebraska, Inc., 256 Neb. 384, 393, 590 N.W.2d 696 (1999) (citing Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992); Delgado v. Inryco, Inc., 230 Neb. 662, 433 N.W.2d 179 (1988); England v. Leithoff, 212 Neb. 462, 323 N.W.2d 98 (1982); Geiger v. Sweeney, 201 Neb. 175, 266 N.W.2d 895 (1978)).
Plaintiffs assert in their breach of express warranty claim under Neb.Rev. Stat. U.C.C. § 2-313, arguing that the "100% Natural" label on Wesson Oils was a factual affirmation by ConAgra concerning the quality and characteristics of the products; the court agrees that this type of claim on a label can serve as the basis for an express warranty claim under Nebraska law. See NEB.REV.STAT. U.C.C. § 2-313 ("Express warranties by the seller are created as follows: ... (a) [a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise; (b) [a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description"); see also Peterson v. North, American Plant Breeders, 218 Neb. 258, 262-63, 354 N.W.2d 625 (1984) ("The existence of an express warranty depends upon the particular circumstances in which the language is used and read .... A catalog description or advertisement may create an express warranty in appropriate circumstances . . The trier of fact must determine whether the circumstances necessary to create an express warranty are present in a given case.... The test is
Although plaintiffs have sufficiently alleged an affirmative representation that could constitute an express warranty under Nebraska law, they must also show that they relied on the representation to prevail. See Hillcrest Country Club v. N.D. Judds Co., 236 Neb. 233, 241, 461 N.W.2d 55 (1990) ("[S]ince an express warranty must have been `made part of the basis of the bargain,' it is essential that the plaintiffs prove reliance upon the warranty,` citing Wendt v. Beardmore Suburban Chevrolet, 219 Neb. 775, 780, 366 N.W.2d 424 (1985)). Plaintiffs argue they can satisfy the reliance requirement on a classwide basis by showing the "materiality of the `100% Natural' claim to reasonable consumers."
To prove a breach of the implied warranty of merchantability under Nebraska law, there must be proof that there was a deviation from the standard of merchantability at the time of sale and that the deviation caused plaintiff's injury. Mennonite Deaconess Home and Hospital, Inc. v. Gates Engineering Co., Inc., 219 Neb. 303, 314, 363 N.W.2d 155 (1985) (citing O'Keefe Elevator v. Second Ave. Properties, 216 Neb. 170, 343 N.W.2d 54 (1984)). Under Nebraska law, goods are defective, i.e., not merchantable, if they do
It is nonetheless necessary that a plaintiff show the defective nature of the goods, i.e., the merchant's "deviation from the standard of merchantability at the time of sale," and that such deviation was the proximate cause of his or her injury. See In re Saturn L-Series Timing Chain Products Liability Litigation, MDL No. 1920, 2008 WL 4866604, *10 (D.Neb. Nov. 7, 2008) ("In Nebraska, `to establish a breach of the implied warranty of merchantability, there must be proof that there was a deviation from the standard of merchantability at the time of sale and that such deviation caused the plaintiffs injury both proximately and in fact'"); Sherman v. Sunsong America, Inc., 485 F.Supp.2d 1070, 1086-87 (D.Neb.2007) ("The Plaintiffs' Second Amended Complaint includes a claim for breach of an implied warranty of merchantability. In order to recover damages for breach of an implied warranty of merchantability, the Nebraska Supreme Court has held that `there must be proof that there was a deviation from the standard of merchantability at the time of sale and that such deviation caused the plaintiffs injury both proximately and in fact,'" citing Delgado v. Inryco, Inc., 230 Neb. 662, 666-67, 433 N.W.2d 179 (1988)).
While plaintiffs contend that the implied warranty class can be certified because reliance and privity are not required elements of an implied warranty claim,"
For the reasons stated, the court concludes that common questions predominate over individualized inquiries with respect to the Nebraska class's unjust enrichment and breach of implied warranty claims. The class's breach of express warranty claim, however, will require individualized inquiries concerning each class member's reliance on the warranty such that class treatment of the claim is not appropriate.
Plaintiffs seek to certify a New York class to assert claims for violation of the
New York General Business Law ("GBL") § 349 creates a private cause of action for any person injured by "deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service" in New York. N.Y. GEN. BUS. LAW § 349. To state a claim under § 349, a plaintiff must allege that: (1) the challenged act or practice was consumer-oriented; (2) the act or practice was misleading in a material respect; and (3) plaintiff was injured as a result. Spaynola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir.2009); Bosch v. LaMattina, 901 F.Supp.2d 394, 406 (E.D.N.Y.2012). To be consumer-oriented, conduct must have a "broad impact on consumers at large." U.W. Marx, Inc. v. Bonded Concrete, Inc., 7 A.D.3d 856, 776 N.Y.S.2d 617, 619 (2004).
ConAgra argues that individualized issues concerning reliance predominate over the common issues raised by plaintiffs' GBL claim. The New York Court of Appeals recently clarified, however, that proof of reliance and scienter are not elements of a GBL claim. See Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941-41, 944 N.Y.S.2d 452, 967 N.E.2d 675 (2012). Rather, "each [GBL] claim includes the requirement that a reasonable consumer could have been misled by defendants' conduct." Ackerman v. Coca-Cola Co., No. CV-09-0395 JG (RML), 2010 WL 2925955, *15 (E.D.N.Y. July 21, 2010). As a result, individualized issues concerning reliance and scienter do not preclude classwide proof of plaintiffs' GBL claim. Plaintiffs must, however, show materiality to demonstrate that common questions predominate over individualized issues. The court considers below whether plaintiffs have adduced sufficient evidence that the "100% Natural" claim was material such that it is appropriate to certify the class because plaintiffs may be able to prove that "a reasonable consumer could have been misled" by the label claim. Ackerman, 2010 WL 2925955 at *15; see also Haynes v. Planet Automall, Inc., 276 F.R.D. 65, 78-79 (E.D.N.Y.2011) ("Whether acts or practices are deceptive is determined using an objective test. Representations or omissions are considered deceptive when they are `likely to mislead a reasonable consumer acting reasonably under the circumstances,'" citing Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)).
"Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." Avola v. La.Pa c. Corp., 991 F.Supp.2d 381, 391 (E.D.N.Y.2013) (quoting N.Y. U.C.C. § 2-313(1)(a)); accord Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse Corp., 689 F.Supp.2d 585, 604 (S.D.N.Y. 2010) (describing an express warranty as an affirmation of fact or promise that naturally tends to induce the buyer to purchase and upon which buyer relies to his detriment).
To state a breach of express warranty claim under New York law, a plaintiff must allege (1) the existence of a material statement amounting to a warranty, (2) the buyer's reliance on the warranty as a basis for the contract with the immediate
A buyer may assert an express warranty claim against a manufacturer from which he did not purchase a product directly, since an express warranty can "include specific representations made by a manufacturer in its sales brochures or advertisements regarding a product upon which a purchaser relies." Arthur Glick Leasing, Inc. v. William J. Petzold, Inc., 51 A.D.3d 1114, 1116, 858 N.Y.S.2d 405 (2008) (citing Randy Knitwear, Inc., 11 N.Y.2d at 14, 226 N.Y.S.2d 363, 181 N.E.2d 399 (no privity requirement where a manufacturer makes express representations to induce reliance by remote purchasers)); accord Daniels v. Forest River, Inc., No. 07-4227, 2013 WL 3713464, *3 (N.Y.Sup. Ct. June 28, 2013). A plaintiff alleging breach of express warranty must "set forth the terms of the warranty upon which he relied," however. Parker v. Raymond Corp., 87 A.D.3d 1115, 1117, 930 N.Y.S.2d 27 (App.Div.2011).
New York law requires "no more than reliance on the express warranty as being a part of the bargain between the parties." CBS, Inc., 75 N.Y.2d at 503, 554 N.Y.S.2d 449, 553 N.E.2d 997. Stated differently, "[t]he critical question is not whether the buyer believed in the truth of the warranted information, but `whether [it] believed [it] was purchasing the [seller's] promise [as to its truth].'" Id. (alterations original). While plaintiffs need not prove that they believed the truth of the warranted information, they must establish, via classwide proof, that the representation was "material and actionable" before certification of a New York express warranty class is appropriate. See Weinberg v. Hertz Corp., 116 A.D.2d 1, 7, 499 N.Y.S.2d 693 (N.Y.App.Div.1986) ("[O]nce it has been determined that the representations alleged are material and actionable... the issue of reliance may be presumed, subject to such proof as is required on the trial"). Accordingly, plaintiffs must adduce sufficient evidence that the representation was material on a classwide basis to support certification of an express warranty class. The court examines below whether they have done so.
To state an unjust enrichment claim under New York law, a plaintiff must plead that (1) the defendant was enriched (2) at the plaintiff's expense and (3) the circumstances were such that equity and good conscience require that the defendant make restitution. Hughes v. Ester C Co., 930 F.Supp.2d 439, 471 (E.D.N.Y.2013); accord Corsello v. Verizon N.Y. Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 (2012) ("The basis of a claim for unjust enrichment is that the defendant has obtained a benefit which `in equity and good conscience' should be paid to the plaintiff"). Unjust enrichment is available as a cause of action "only in unusual situations whe[re], though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable
Plaintiffs have not adequately shown that common questions predominate with respect to their New York unjust enrichment claim. New York courts regularly conclude that unjust enrichment classes cannot be certified because individualized inquiries as to whether "equity and good conscience require restitution" are not susceptible of classwide proof. See, e.g., Vaccariello v. XM Satellite Radio, Inc., 295 F.R.D. 62, 75-76 (S.D.N.Y.2013) ("Plaintiff's attempt to certify a class as to his unjust enrichment claim fails, in part, because the elements of the cause of action are not susceptible to classwide proof. Specifically, plaintiff cannot prove through common evidence that equity and good conscience require restitution. An `indispensable ingredient' of the equity and good conscience requirement is the existence of `an injustice as between the two parties involved.' In this case, plaintiff cannot demonstrate through classwide evidence that it was unjust for XM to collect fees from all of the customers whose service was renewed .... Plaintiff's inability to prove the elements of his claim through common evidence, in and of itself, defeats Rule 23(b)(3)'s predominance requirement," citing In re Jetblue Airways Corp. Privacy Litig., 379 F.Supp.2d 299, 330 (E.D.N.Y.2005)); Dungan v. Academy at Ivy Ridge, 249 F.R.D. 413, 427 (N.D.N.Y. 2008) (holding that the predominance requirement was not satisfied where individual inquiries would be necessary to determine whether equity and good conscience required restitution).
As in these cases, individualized inquiries will be required here to determine whether it would be "unjust" for ConAgra to retain the price paid by each class member for Wesson Oils during the class period. As noted in connection with the enrichment claim, a class member's ability to recover for unjust enrichment under New York law will turn on individual questions concerning proximate causation, deception and conferral of a benefit. Accordingly, the court concludes that plaintiffs have not shown that common questions predominate with respect to their New York unjust enrichment claim.
For the reasons stated, the court concludes that the GBL and express warranty claims of the putative New York class may be susceptible of classwide proof. The court cannot determine if certification of such classes is appropriate, however, until it evaluates whether plaintiffs have adduced sufficient evidence indicating that they may be able to prove the materiality of ConAgra's representations on a classwide basis. As respects the putative class's unjust enrichment claim under New York law, the court concludes that individualized issues predominate and that a class cannot be certified.
Plaintiffs seek certification of an Ohio class alleging violation of the Ohio Consumer Sales Practices Act ("OCSPA").
Plaintiffs seek certification of an Oregon class asserting claims for violation of the Oregon Unfair Trade Practices Act ("OUTPA") and unjust enrichment."
"Private plaintiffs may bring OUTPA actions under ORS 646.638(1), which provides, in part:
To prevail in an action for damages under § 646.638(1), a plaintiff must establish that he or she suffered an ascertainable loss as a result of an unlawful trade practice by the defendant. Id. "In other words, the plaintiff must prove an unlawful trade practice, causation, and damages." Id. (citing Feitler v. The Animation Celection, Inc., 170 Or.App. 702, 708, 13 P.3d 1044 (2000)).
The causation/reliance element of an OUTPA claim is susceptible of classwide proof. See Strawn v. Farmers Ins. Co. of Oregon, 350 Or. 336, 358-59, 258 P.3d 1199 (2011) ("To prevail in a class action for fraud, the class plaintiff must prove reliance on the part of all class members. Direct evidence of reliance by each of the individual class members is not
Plaintiffs argue that reliance is susceptible of classwide proof because ConAgra made the same alleged misrepresentation — the "100% Natural" claim — to all class members, and it was material.
"It is well-settled [under Oregon law] that, to establish unjust enrichment, a plaintiff must establish that (1) the plaintiff conferred a benefit on the defendant; (2) the defendant was aware that it had received a benefit; and (3) under the circumstances, it would be unjust for the defendant to retain the benefit without paying for it." Winters v. County of Clatsop, 210 Or.App. 417, 421, 150 P.3d 1104 (2007) (citing Volt Services Group v. Adecco Employment Services, 178 Or.App. 121, 133, 35 P.3d 329 (2001), rev. den. 333 Or. 567, 42 P.3d 1246 (2002)); see Phelps v. 3PD, Inc., 261 F.R.D. 548, 562 (D.Or.2009) ("On the unjust enrichment/quantum meruit claim, plaintiffs have to show (1) a benefit conferred by the plaintiffs; (2) awareness by the recipient that a benefit has been received; and (3) under the circumstances, it would be unjust to allow retention of the benefit without requiring the recipient to pay for it," citing Summer Oaks Ltd. P'ship v. McGinley, 183 Or.App. 645, 654, 55 P.3d 1100 (2002); L.H. Morris Elec., Inc. v. Hyundai Semiconductor Am., Inc., 203 Or.App. 54, 66, 125 P.3d 1 (2005)). To state a claim, plaintiff need not show that he or she was in privity with the defendant. See Rosenblum v. First State Bank of Elgin, 283 Or. 123, 128-29, 581 P.2d 515 (1978) ("[P]rivity of the contractual type need not exist between the parties," citing Smith v. Rubel, 140 Or. 422, 427-28, 13 P.2d 1078 (1932)).
The court concludes that individualized inquiries will not predominate over common issues with respect to the Oregon unjust enrichment claim. Oregon courts have certified unjust enrichment claims where members of a putative class were subjected to "uniform treatment" by the defendant. See, e.g., Phelps, 261 F.R.D. at 563 ("[T]he evidence will be common because of defendant's uniform treatment
For the reasons stated, the court concludes that plaintiffs' Oregon consumer protection claim may be susceptible of classwide proof if plaintiffs can show that class members would logically have understood the "100% Natural" label to mean no use of genetically modified organisms and naturally have relied on it in the same way. If plaintiffs are able to adduce sufficient evidence of this, common questions will likely also predominate with respect to the Oregon class's unjust enrichment claim.
Plaintiffs also seek certification of a South Dakota class to assert claims for violation of the South Dakota Deceptive Trade Practices and Consumer Protection Law ("SDDTPL") and unjust enrichment."
A claim for damages under the SDDTPL requires "proof of an intentional misrepresentation or concealment of a fact on which [the] plaintiff relied and that caused an injury to plaintiff." Northwestern Public Service, a Div. of Northwestern Corp. v. Union Carbide Corp., 236 F.Supp.2d 966, 973-74 (D.S.D.2002).
Plaintiffs argue they will be able to prove reliance by the South Dakota class on a classwide basis by adducing circumstantial evidence of the materiality of ConAgra's "100% Natural" claim and its adverse impact on all class members.
Plaintiffs contend that, as in Thurman, individualized inquiries concerning class members' damages or ConAgra's affirmative defenses will not predominate because they will be able to demonstrate classwide reliance by adducing evidence of the materiality of ConAgra's claim.
Plaintiffs proffer no authority indicating that reliance or causation can be proved on a classwide basis, however. ConAgra, for its part, cites no authority at all. The court itself has surveyed South Dakota law, and can find nothing directly addressing the issue. It nonetheless concludes that reliance and causation can be proved on a classwide basis by showing that the "100% Natural" claim was material. In reaching this conclusion, the court is guided by the broad, remedial purpose of the SDDTPL, which is designed to provide relief to victims of deceptive trade practices, see Moss v. Guttormson, 551 N.W.2d 14, 17 (S.D. 1996) (noting that the SDDTPL "assists consumers seeking relief as victims of deceptive trade practices" and contains "broad statutory language [that] [encompasses] more than only consumers"); see also Rainbow Play Systems, Inc. v. Backyard Adventure, Inc., No. CIV 06-4166, 2009 WL 3150984, *7 (D.S.D. Sept. 28, 2009) (same). It is also guided by the South Dakota Supreme Court's suggestion in Thurman that "class certification `is favored by courts in questionable cases.'" Thurman, 836 N.W.2d at 618 (citing Beck v. City of Rapid City, 650 N.W.2d 520, 525 (S.D.2002)). Accordingly, the court concludes that plaintiffs' SDDTPL claim is susceptible of classwide proof if plaintiffs are able to prove materiality, an issue it considers infra.
Under South Dakota law, "[u]njust enrichment occurs `when one confers a benefit upon another who accepts or acquiesces in that benefit, making it inequitable to retain that benefit without paying.'" Hofeldt v. Mehling, 658 N.W.2d 783, 788 (S.D.2003) (quoting Parker v. Western Dakota Insurors, Inc., 605 N.W.2d 181, 192 (S.D.2000)); accord Miller v. Jacobsen, 714 N.W.2d 69, 81 (S.D.2006); Juttelstad v. Juttelstad, 587 N.W.2d 447, 451 (S.D.1998); see Sporleder v. Van Liere, 569 N.W.2d 8, 12 (S.D.1997); Randall Stanley Architects, Inc. v. All Saints Community Corp., 555 N.W.2d 802, 805 (S.D.1996). When a plaintiff proves unjust enrichment, "the law implies a contract obligating the beneficiary to compensate the benefactor for the value of the benefit conferred." Hofeldt, 658 N.W.2d at 788; accord Mack v. Mack, 613 N.W.2d 64, 69 (S.D.2000).
To prove unjust enrichment, three elements must be shown: (1) a benefit was received; (2) the recipient was cognizant of that benefit; and (3) the retention of the benefit without reimbursement would unjustly enrich the recipient. Hofeldt, 658 N.W.2d at 788; Action Mechanical, Inc. v. Deadwood Historic Preservation Comm'n, 652 N.W.2d 742, 750 (S.D.2002); Mack, 613 N.W.2d at 69; Parker, 605 N.W.2d at 192; Juttelstad, 587 N.W.2d at 451; Bollinger v. Eldredge, 524 N.W.2d 118, 122-23 (S.D.1994). Privity is not required. Anderson v. Dunn, 68 S.D. 479, 4 N.W.2d 810, 812 (1942).
The court finds Schumacher instructive. Like the plaintiffs in Schumacher, ConAgra's conduct toward each member of the plaintiff class was uniform, purportedly "unfair," and allegedly resulted in ConAgra's "unjust enrichment." Schumacher indicates that whether a defendant's actions resulted in unjust enrichment is a question susceptible of classwide proof, and that common questions predominate over individualized inquiries when each plaintiff was exposed to the same allegedly wrongful conduct. Because plaintiffs here were exposed to the same allegedly deceptive representation that Wesson Oils were "100% Natural," the court concludes that common issues predominate over individualized inquiries and that the South Dakota unjust enrichment class satisfies Rule 23(b)'s predominance requirement.
For the reasons stated, the court concludes that plaintiffs may be able to show on a classwide basis that the "100% Natural" label had a common meaning that was material to members of the putative class. The court considers infra whether plaintiffs have made a sufficiently adequate showing that certification of a class is appropriate. The court also concludes that common issues predominate over individualized inquiries with respect to plaintiffs' South Dakota unjust enrichment claim, and that Rule 23(b)'s predominance requirement is therefore satisfied.
Plaintiffs seek certification of a Texas class asserting claims for violation of the Texas Deceptive Trade Practices-Consumer Protection Act ("TDTPA") and unjust enrichment.
To prove a claim under the TDTPA, a plaintiff must establish that defendant violated the specific prohibitions of Texas Business and Commercial Code Annotated §§ 17.46 and 17.50; one of these is using deceptive representations in connection with goods or services. The Texas Supreme Court has held that a plaintiff can prove a "false, misleading, or deceptive act" as defined in the TDTPA by demonstrating "an act or series of acts which has the capacity or tendency to deceive an average or ordinary person, even though that person may have been ignorant, unthinking, or credulous." Spradling v. Williams, 566 S.W.2d 561, 562-64 (Tex. 1978).
While the TDTPA requires a showing that defendant's misrepresentation
Under Texas law, unjust enrichment occurs when a defendant wrongfully secures a benefit or passively receives a benefit that it would be "unconscionable" for it to retain. See Tex. Integrated Conveyor Sys. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 367 (Tex.App. 2009). Privity between plaintiff and defendant is not required. See Miekow v. Faykus, 297 S.W.2d 260, 264 (Tex.Civ.App. 1956) ("For a quasi contract neither promise nor privity, real or imagined, is necessary").
Plaintiffs assert they can use common proof to prevail on their Texas unjust enrichment claim because ConAgra received a benefit, in the form of increased revenue from the higher price it was able to charge as a result of its false "100% Natural" claim.
Here, individualized inquiries will be required to determine whether ConAgra's conduct was "unconscionable" vis-á-vis each individual class member such that it would be unjust for it to retain the benefit it received from that individual. Plaintiffs proffer no authority indicating that it is possible to dispense with such inquiries through the presentation of classwide
For the reasons stated, the court concludes that plaintiffs' Texas consumer protection claim may be susceptible of classwide proof if plaintiffs can show the materiality of ConAgra's representation on a classwide basis. The court considers infra whether they have adduced sufficient evidence of an ability to do so that certification is warranted. As respects plaintiffs' claim for unjust enrichment under Texas law, the court concludes that individualized inquiries will predominate over common issues and declines to certify the class.
Plaintiffs assert they have submitted substantial evidence demonstrating that the materiality of ConAgra's misrepresentation can be established by common survey proof. Plaintiffs proffer various third party surveys to support their contention that the "100% Natural" label is material to Wesson Oil buyers.
Plaintiffs also rely on portions of ConAgra's market research as support for their contention that a classwide inference that the "100% Natural" label on Wesson Oils is material.
Plaintiffs contend the survey data also adequately shows that the "100% Natural" label causes consumers to believe that Wesson Oils do not contain genetically modified organisms. They cite survey findings that consumers believe "natural"
As respects ConAgra products specifically, plaintiffs adduce evidence that the company received consumer complaints about the "100% Natural" label on Wesson Oils after discovering that they contained GMOs.
The court concludes that plaintiffs have made a sufficient showing for purposes of class certification that the "100% Natural" claim is material and that consumers generally understand it, inter alia, as a representation that Wesson Oils do not contain GMOs. Plaintiffs need not prove at this stage that every ConAgra customer would find the "100% Natural" claim material or would believe that it meant the products contained no GMOs. Rather, they need only demonstrate that a reasonable consumer would understand it in that way and find it material. Courts, moreover, have found a representation material when significantly smaller percentages of consumers than those reflected in the surveys here viewed it in that light. See, e.g., Oshana v. Coca-Cola Co., No. 04 C 3596, 2005 WL 1661999, *9 (N.D.Ill. July 13, 2005) ("Coca-Cola provides no authority that a misrepresentation is immaterial if only 24% of consumers would behave differently.... [T]here is sufficient evidence to raise a genuine issue of fact as to whether the alleged misrepresentations are material to a reasonable consumer").
ConAgra counters that plaintiffs have failed to adduce sufficient evidence of the materiality of the "100% Natural" claim to the putative class or reasonable consumers and therefore that individualized inquiries will predominate over common questions.
ConAgra next asserts that plaintiffs cannot establish the materiality of the "100% Natural" claim because the FDA has refused to designate genetically engineered foods and food ingredients non-natural and has concluded that the presence of GMOs is not a "material fact" that must be disclosed under FDA regulations."
ConAgra contends that the named plaintiffs' supplemental declarations significantly undercut their assertion that they considered the "100% Natural" label on Wesson Oils material to their purchasing decision because they believed it meant the products contained no GMOs.
ConAgra also relies on Jones. It contends that as in that case, the "100% Natural" claim is susceptible of numerous interpretations and thus materiality cannot be established on a classwide basis.
Because plaintiffs have adduced sufficient evidence that the "100% Natural" label is material to a reasonable consumer and that the consumer would understand it to mean, inter alia, that a product labeled in this fashion contains no GMOs, the court concludes that materiality can be proved on a classwide basis.
Rule 23(b)(3) is satisfied only if plaintiffs can show that "damages are capable
The court previously rejected plaintiffs' damages methodology, noting that Weir's hedonic regression analysis "calculate[d only] the price premium attributable to ConAgra's use of the term `100% Natural,'" rather than the portion of that premium attributable to plaintiffs' theory of liability-i.e., that ConAgra's "100% Natural" label on Wesson Oils caused putative class members to believe the products contained no genetically modified organisms or GMO ingredients.
Weir again fails to provide an acceptable damages methodology that isolates and quantifies damages associated with plaintiffs' specific theory of liability-that they were misled to believe that Wesson Oils contained no GMOs or GMO ingredients because of the "100% Natural" label. As he did in support of plaintiffs' original motion for class certification, Weir focuses solely on the "price premium" attributable to the "100% Natural" label; he makes no efforts to segregate the price premium attributable to a consumer's understanding that "100% Natural" means the cooking oils contain no genetically modified organisms.
While Weir's proposed hedonic regression alone does not satisfy Comcast, the court concludes that his hedonic regression and Howlett's conjoint analysis in combination meet Comcast's requirements for class certification purposes. Howlett proposes to use consumer surveys to segregate the percentage of the price premium specifically attributable to a customer's belief that "100% Natural" means "no GMOs." She proposes to take the total price premium calculated by Weir and multiply it by the percentage derived from her conjoint analysis. Such a calculation would necessarily produce a damage figure attributable solely to ConAgra's alleged misconduct — i.e., misleading consumers to believe that Wesson Oils contain no GMOs by placing a "100% Natural" label on the products.
At the hearing, ConAgra disputed this, arguing that Howlett's conjoint analysis was not sufficiently reliable to produce a viable damages model capable of satisfying Comcast. ConAgra emphasized the criticisms raised by Ugone in his declaration in opposition to plaintiffs' motion. Ugone contends there are three major "drawbacks that [] render [Howlett's conjoint analysis] inappropriate for use in the two-step hybrid method."
Plaintiffs addressed Ugone's first criticism at the hearing, arguing that Ugone's assertion that the "relative importance" of product features does not correlate with a price premium misapprehends conjoint
Based on the present record, the court cannot find `that Ugone's criticism renders Howlett's proposed conjoint analysis unreliable or demonstrates that the hybrid damages model plaintiffs propose does not satisfy Comcast. Marketers and marketing researchers have used conjoint analysis since the early 1970's to determine the values consumers ascribe to specific attributes of multi-attribute products and to understand the features driving product preferences.
In Guido, Judge Christina A. Snyder granted plaintiffs' motion for class certification, concluding that their proposed damages model, a conjoint analysis that
Similarly, in Khoday, the court found that a damages model that employed conjoint analysis to estimate the "relative value of [] product feature[s] and thus the price premium consumers paid for a particular feature," satisfied Comcast. Khoday, 2014 WL 1281600 at *10-11, 32-33. There too, the conjoint analysis proposed involved comparison of the relative importance (i.e., partworth) of different product features to isolate the price premium attributable to a particular feature. Id.
This case is similar to Guido and Khoday, as plaintiffs propose a damages model that uses conjoint analysis to "predict the `value of the [Wesson Oil products]'" without ConAgra's representation that the oils were "100% Natural" and thus contained no GMOs or GMO-ingredients. As in those cases, Howlett proposes to use the "relative importance," or partworth, of the GMO-free feature to estimate the price premium attributable to this interpretation of "100% Natural." Specifically, the total price premium Weir calculated will be multiplied by the partworth of the GMO-free feature. The court agrees with the Guido and Khoday courts that this methodology is capable of calculating damages attributable to plaintiffs' specific theory of liability on a classwide basis, notwithstanding the fact that it employs the "relative importance" of product attributes to consumers to calculate the relevant price premium. Conjoint analysis is regularly used in litigation to translate the "relative importance" of a product feature into a price premium paid by consumers
The court also finds Ugone's remaining criticisms unavailing. He asserts that Howlett's conjoint analysis is deficient because, although it purports to calculate the importance of a "GMO-Free" interpretation of Wesson Oils' "100% Natural" label in the past, i.e., during the class period, it will be based on yet-to-be-collected survey data.
Ugone's final criticism is that Howlett's "[c]onjoint analysis necessarily draws attention to features used in the survey exercise" and thus "runs the risk of assigning a larger value to the `GMO-Free' aspect than that which would actually
ConAgra also contends that the attributes Howlett has selected will confine a respondent's choices and cause the respondent to select "GMO-Free" or another attribute he or she might not consider in purchasing a Wesson Oil product. Howlett has adequately explained why she limited the attributes to six. She asserts that her proposed analysis has several safeguards that will confirm the validity of a respondent's attribute choices and ensure that each attribute selected reflects a significant meaning the consumer ascribes to "100% Natural." She explains that she will conduct focus groups and a serious of pilot tests to confirm that "the six chosen attributes are the most significant meanings that Wesson purchasers ascribe to the `100% Natural' claim."
To the extent Ugone suggests the number of attributes Howlett proposes to use will "draw [undue] attention" to a few attributes, the court concludes that this, too, does not preclude certification of a Rule 23(b)(3) class. Howlett explains her underlying rationale for only selecting six attributes.
For all of these reasons, Ugone's criticisms of Howlett's proposed conjoint analysis are unavailing and concludes that her proposed conjoint analysis is, at this stage, sufficiently reliable to be used in calculating class-wide damages. Accordingly, the court concludes that this hybrid damages methodology, which takes into account both Weir's hedonic regression and Howlett's conjoint analysis, satisfies Comcast.
ConAgra next argues that, even if a viable damages methodology has been proposed, individualized inquiries will be necessary and will predominate due to variations in the "number, price, size, location, discount or promotion, and time period" of each class member's purchase(s) of Wesson Oils.
In Algarin v. Maybelline, LLC, 300 F.R.D. 444, 459-61 (S.D.Cal.2014), the court rejected the price premium methodology plaintiffs proposed for calculating damages because they proffered nothing more than speculation that a price premium existed. Here, by contrast, Weir has conducted a preliminary hedonic regression that indicates there is a price premium associated with the "100% Natural" label on Wesson Oils. The Algarin court also concluded that it was inappropriate to use a price premium methodology because of variability in the retail price of the class products and competing products; it noted that plaintiffs had failed to suggest a viable means of accounting for such variations. Algarin, 300 F.R.D. at 460-61. Weir, by contrast, proposes a methodology that can be refined to account for variations in retail prices among retailers, and across time periods, and geographic areas. He also asserts he can take into account promotional prices and other attributes. Weir opines that the various attributes
ConAgra also relies on Astiana. There, the court denied certification on predominance grounds because plaintiff had not proffered expert testimony that the market price of Ben & Jerry's ice cream labeled "all natural" was higher than the market price of the ice cream without that label. Nor did she proffer evidence that a consumer would be willing to pay a premium for "all natural" ice cream. Astiana v. Ben & Jerry's Homemade, Inc., No. C 10-4387 PJH, 2014 WL 60097, *12-13 (N.D.Cal. Jan. 7, 2014). The court also noted that "[e]stablishing a higher price for a comparable product would be difficult because prices in the retail market differ and are affected by the nature and location of the outlet in which they are sold." Id. As noted, plaintiffs here have adduced evidence in the form of Weir's preliminary hedonic regression analysis that a price premium exists; they have also proffered a viable damages methodology that can account for the variables the Astiana court found predominated over common questions.
Because plaintiffs have proposed a viable damages model that can isolate a price premium attributable to consumers' understanding that "100% Natural" means that Wesson Oils do not contain GMOs, and that can manipulate historical pricing data to account for variations in retail price, the court concludes that they have shown that individual damages issues do not predominate over common questions.
For the reasons stated, the court concludes that plaintiffs have shown that common questions predominate over individualized inquiries. It therefore finds that certification of the putative classes under Rule 23(b)(3) is appropriate.
The second requirement imposed by Rule 23(b)(3) is that a class action be superior to other methods of resolving class members' claims. "Under Rule 23(b)(3), the court must evaluate whether a class action is superior by examining four factors: (1) the interest of each class member in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the class; (3) the desirability of concentrating the litigation of the claims in a particular forum; and (4) the difficulties likely to be encountered in the management of a class action." Edwards v. City of Long Beach, 467 F.Supp.2d 986, 992 (C.D.Cal.2006) (quoting Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 469 (N.D.Cal.2004)).
"Where damages suffered by each putative class member are not large, th[e first] factor weighs in favor of certifying a class action." Zinser, 253 F.3d at 1190. Given the low average price of a bottle of Wesson Oil,
The second factor likewise favors a finding that class certification is a superior means of litigating these claims. The only litigation raising the claims of which the court is aware are the cases presently pending before it. With respect to the third factor, these cases were either voluntarily transferred to this jurisdiction by the parties or transferred here by the Panel on Multidistrict Litigation. Given the small recovery that any individual plaintiff can expect, moreover, concentrating the litigation in a single forum is appropriate. Thus, the third factor also favors a finding of superiority.
In addressing the fourth factor, ConAgra raises concerns about the manageability of the action given that plaintiffs seek certification of eleven state classes. The claims, ConAgra asserts, "invok[e] a spectrum of common law and statutory principles, [and have] widely varying remedies." As a consequence, it contends, a class action is not "superior" and will fail to "simplify any questions regarding manageability."
The court considered the various state law claims in analyzing predominance, and found that several raise common questions. Under the various consumer protection statutes, plaintiffs must show, for example, that ConAgra's conduct is deceptive and misleads reasonable consumers and/or class members. See, e.g., Elias v. Hewlett-Packard Co., 903 F.Supp.2d 843, 854 (N.D.Cal.2012) ("[T]he standard for [the CLRA, FAC, and UCL] is the `reasonable consumer' test, which requires a plaintiff to show that members of the public are likely to be deceived by the business practice or advertising at issue" (citations omitted)); Ackerman v. Coca-Cola Co., No. CV 09-0395(JG), 2010 WL 2925955, *15 (E.D.N.Y. July 21, 2010) (noting that the applicable standard under the GBL is whether a "reasonable consumer would have been misled by the defendant's conduct"); Alpine Bank v. Hubbell, 506 F.Supp.2d 388, 410 (D.Colo.2007) (noting that the applicable standard under the CCPA is whether the conduct has a "capacity or tendency to deceive a reasonable consumer"); Pearson v. Philip Morris, Inc., 257 Or.App. 106, 155-56, 306 P.3d 665 (2013) ("[W]hether plaintiffs in this action can prove reliance on a class-wide basis depends on whether it is likely that significant numbers of class members did not rely on defendant's representations"); Shumaker v. Hamilton Chevrolet, Inc., 184 Ohio App.3d 326, 920 N.E.2d 1023, 1031 (2009) ("[A] deceptive act has the likelihood of inducing a state of mind in the consumer that is not in accord with the facts'"); Office of the Attorney General v. Wyndham. International, Inc., 869 So.2d 592, 598 (Fla.App.2004) ("When addressing a deceptive or unfair trade practice claim [under the FDUTPA], the issue is ... whether the practice was likely to deceive a consumer acting reasonably hi the same circumstances").
Although the court concluded that individualized inquiries would predominate over common issues with respect to plaintiffs' Colorado, Florida, New York, and Texas unjust enrichment claims, the claims as to which predominance was satisfied, i.e., the Illinois, Indiana, Nebraska, Oregon, and South Dakota unjust enrichment claims, require resolution of substantially the same question — whether ConAgra received some benefit from plaintiffs that it would be inequitable to allow it to keep in light of its conduct. Finally, the breach of warranty claims that satisfy Rule 23(b)'s predominance requirement — i.e., the California. Colorado, and New York express warranty claims and the Colorado, Indiana, and Nebraska implied warranty claims-raise common questions regarding the warranty, i.e., ConAgra's "100% Natural" label, and whether it was breached because Wesson Oils contain GMO-ingredients.
As plaintiffs note, moreover, the MDL Panel consolidated the actions in this court for pretrial purposes, and the court could, in its discretion, sever the classes following certification for separate adjudication of the claims of the state classes. Seiko Epson Corp. v. Abacus 24-7 LLC, No. 09-CV-477-BR, 2009 WL 5064950, *1 (D.Or. Dec. 15, 2009) ("[W]here certain claims in an action are properly severed under Fed. R.Civ.P. 21, two separate actions result [and the] district court may transfer one action while retaining jurisdiction over the other,'" citing Chrysler Cred. Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1519 (10th Cir.1991) (citing Wyndham Assoc. v. Bintliff, 398 F.2d 614, 618 (2d Cir. 1968))). Thus, the court concludes that, at this stage, plaintiffs have carried their burden of showing that class treatment is
For the reasons stated, plaintiffs have established that common questions predominate over individualized inquiries with respect to certain of the class claims they seek to pursue, and that a class action is a superior vehicle for adjudicating the claims. Accordingly, the court grants plaintiffs' motion to certify ten putative state classes to pursue enumerated claims under Rule 23(b)(3).
Plaintiffs argue alternatively that if the court determines that classes cannot be certified under Rule 23(b), it should certify relevant issue classes under Rule 23(c)(4). This rule provides: "When appropriate, an action may be brought or maintained as a class action with respect to particular issues." FED.R.CIV.PROC. 23(c)(4). The Ninth Circuit has endorsed the use of issue classes where individualized questions predominate and make certification under Rule 23(b)(3) inappropriate. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) ("Even if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues"); see also Dukes, 603 F.3d at 620 n. 43 ("Relying on Rule 23(c)(4), our own precedent also generally allows class treatment of common issues even when not all issues may be treated on a class basis"). As Judge Stephen Wilson noted in Amador v. Baca, 299 F.R.D. 618, 636 (C.D.Cal. 2014), the Ninth Circuit "did not explain which cases might be `appropriate cases' for severance of particular issues" because "[i]t was unnecessary to address th[at] question in view of the numerous `deficiencies in th[e district court's] certification [order].'" Id. at 636.
Plaintiffs propose that the court certify an issue class to litigate the falsity of ConAgra's statement — i.e., "whether ConAgra's labeling of Wesson Oils as `100% Natural,' despite making them from GMO ingredients, is false, unfair, deceptive, and/or misleading to a reasonable consumer."
For the reasons stated, the court grants in part and denies in part plaintiffs' amended motion for class certification. The court denies plaintiffs' motion to certify injunctive relief classes under Rule 23(b)(2) of the Federal Rules of Civil Procedure because the named plaintiffs have not shown that they have Article III standing to represent such classes.
As respects plaintiffs' motion to certify damages classes under Rule 23(b)(3), the court grants plaintiffs' motion in part, and certifies classes for California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, and Texas.
The certified classes may pursue the following claims:
Howlett also responds substantively to ConAgra's critique of the survey methodology, which affects its admissibility. (See Reply Howlett Decl. at 7.) Although Howlett defends the survey's attention check question, manipulation check question, and sampling methodology, her statements do not, in the court's view, demonstrate that the survey is valid and admissible. Each of Howlett's statements is based on a post-deposition conversation with Kozup and his opinions concerning the validity of the survey. (See id., ¶ 26 ("Following my deposition, I contacted Dr. Kozup to ask him about the specific issues that ConAgra's counsel raised during my deposition, and he provided me with responses, which he is also submitting to the Court through his own declaration. I have reviewed Kozup's soon to be filed declaration, and based on that review and as explained below, I believe his explanations clarify the issues, and indicate that the attention check, manipulation check, and sampling methodology was appropriate").) As discussed infra, plaintiffs failed to designate Kozup as an expert witness for purposes of the amended motion for class certification. Plaintiffs' failure to advise ConAgra that they would rely on Kozup's testimony gave ConAgra no opportunity to test his opinions or explanations of the survey methodology, with the result that plaintiffs cannot now rely on Kozup's opinions to show that the survey is reliable. Howlett defends the reliability of the survey on the basis that Kozup believes the methodology is sound. (See id., ¶ 26 ("[H]is explanations clarify the issues, and indicate that the attention check, manipulation check, and sampling methodology was appropriate").) She does not offer opinions based on her own review and analysis of the methodology. As a consequence, and because the court concludes infra that plaintiffs cannot rely on Kozup's opinions, Howlett's reply declaration does not change the court's view that the survey must be stricken.
Since a motion for class certification is a preliminary procedure, courts do not require strict adherence to the Federal Rules of Civil Procedure or the Federal Rules of Evidence. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (the class certification procedure "is not accompanied by traditional rules and procedures applicable to civil trials"). At the class certification stage, "the court makes no findings of fact and announces no ultimate conclusions on Plaintiffs' claims." Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D.Cal. 2011) (quoting Mazza v. Am. Honda Motor Co., 254 F.R.D. 610, 616 (C.D.Cal.2008)). Therefore, the court can consider inadmissible evidence in deciding whether it is appropriate to certify a class. Keilholtz v. Lennox Hearth Prods., Inc., 268 F.R.D. 330, 337 n. 3 (N.D.Cal.2010) ("On a motion for class certification, the Court may consider evidence that may not be admissible at trial"); see also Waine-Golston v. Time Warner Entertainment-Advance/New House P'ship, No. 11CV1057-GPB (RBB), 2012 WL 6591610, *9 (S.D.Cal. Dec. 18, 2012) (overruling objections to evidence because "the Court may consider inadmissible evidence at the class certification stage"); Alonzo, 275 F.R.D. at 519 ("The court need not address the ultimate admissibility of the parties' proffered exhibits, documents and testimony at this stage, and may consider them where necessary for resolution of the [Motion for Class Certification]" (alteration original)). Because the court need not adhere strictly to the Federal Rules of Evidence in deciding the class certification question, it overrules plaintiffs' evidentiary objections to Hunter's declaration.
The court is not persuaded that reliance is an element of a breach of express warranty claim. As an initial matter, the decisions so holding invariably cite Williams v. Beechnut Nutrition Corp., a Court of Appeal decision that summarily addressed the elements of an express warranty claim, relying on the California Supreme Court's pre-UCC decision in Burr v. Sherwin Williams Co., 42 Cal.2d 682, 268 P.2d 1041 (1954). Williams, 185 Cal. App.3d at 142, 229 Cal.Rptr. 605. As the Court of Appeal in Weinstat noted:
The court agrees with the well-reasoned analysis of the California Court of Appeal in Weinstat that, under California Commercial Code § 2313, reliance is not a required element of a plaintiff's prima facie case for breach of express warranty.
Similarly inapposite is Francis v. Mead Johnson & Co., No. 1:10-CV-00701-JLK, 2010 WL 3733023, *1 (D.Colo. Sept. 16, 2010). There, the court was not evaluating certification of a class, but a motion to strike class allegations. Francis, 2010 WL 3733023 at *1. The court's observation that it might not be "impossible" for plaintiffs to certify the proposed classes, despite their inability to prove that some class members had been injured, does not assist in determining whether plaintiffs have made an adequate showing justifying certification of their unjust enrichment class. Nor does it suggest that the "unjust" prong of a Colorado unjust enrichment claim can be proved on a classwide basis, nor indicate what must be established for a classwide inference of injustice to arise.
The court notes additionally that it would be inappropriate to certify a Colorado unjust enrichment class for the independent reason that the claim is based on the same wrongful conduct for which the class seeks to recover under the CCPA. The unjust enrichment claim also seeks the same recovery as the CCPA claim, i.e., the price premium paid on each bottle of Wesson Oil purchased. Under Colorado law, if the remedy sought on an unjust enrichment claim is available at law through prosecution of a CCPA claim, the unjust enrichment claim must be dismissed. Harris Group v. Robinson, 209 P.3d 1188, 1205-06 (Colo.App.2009) (holding that unjust enrichment is an equitable remedy that is not available where there is "a plain, speedy, and adequate remedy at law"). In Francis, a case on which plaintiffs rely, the court ultimately dismissed the unjust enrichment claim because it was duplicative of plaintiffs' CCPA claim. See Francis v. Mead Johnson & Co., No. 1:10-CV-00701-JLK, 2010 WL 5313540, *9 (D.Colo. Dec. 17, 2010) ("Although Plaintiff has adequately pled the elements of her unjust enrichment claim, it must be dismissed because the CCPA provides an adequate legal remedy. In her unjust enrichment claim, Plaintiff seeks recovery for the same wrongful conduct as in her CCPA claims. Most importantly, Plaintiff seeks the exact same damages for these two claims. Furthermore, because the success of Plaintiff's unjust enrichment claim depends directly upon the success of her CCPA claims, alternative pleading is superfluous"). Compare Edwards v. ZeniMax Media, Inc., No. 12-CV-00411-WYD-KLM, 2013 WL 5420933, *10 (D.Colo. Sept. 27, 2013) (concluding that an unjust enrichment claim should not be dismissed when "the `equitable remedy' sought by [plaintiff's] unjust enrichment claim appears to be separate from any available remedy at law under the CCPA claim," citing Colorado Foundation, Inc. v. Am. Cyanamid Co., 216 F.Supp.2d 1188, 1200 (D.Colo.2002); Robinson, 209 P.3d at 1205-06). Because plaintiffs seek the same recovery on both their CCPA and unjust enrichment claims and because injunctive relief is not available as noted supra, the court concludes that the Colorado class's unjust enrichment claim would fail because plaintiffs possess an adequate remedy at law. For this reason as well, the court declines to certify an unjust enrichment class.
In Thorogood, the Seventh Circuit directed the district court to decertify an ICFA class challenging Sears's representation that its dryers had a "stainless steel drum." Thorogood, 547 F.3d at 748. Thorogood alleged the representation was misleading because the dryer drum was not 100% stainless steel. The court faulted the district court for presuming that "the other half million buyers, apart from Thorogood, shared his understanding of Sears's representations and paid a premium [based on that understanding]." Id. Specifically, the court questioned whether any other class member understood "stainless steel drum" in the same manner as plaintiff. Id. at 747 ("The plaintiff claims to believe that when a dryer is labeled or advertised as having a stainless steel drum, this implies, without more, that the drum is 100 percent stainless steel because otherwise it might rust and cause rust stains in the clothes dried in the dryer. Do the other 500,000 members of the class believe this? Does anyone believe this besides Mr. Thorogood? It is not as if Sears advertised the dryers as eliminating a problem of rust stains by having a stainless steel drum. There is no suggestion of that. It is not as if rust stains were a common concern of owners of clothes dryers. There is no suggestion of that either, and it certainly is not common knowledge" (emphasis original)). As plaintiffs proffered no evidence concerning consumers' interpretation of Sears's representation, and thus no evidence indicating that the representation was material to a reasonable consumer, the Seventh Circuit concluded that individualized issues were likely to predominate.
Similarly, in Langendorf, a Northern District of Illinois court concluded that individualized issues concerning proximate cause predominated over common questions and precluded certification of an ICFA class. Langendorf, 306 F.R.D. at 583-84, 2014 WL 5487670 at *6-7. Critical to this conclusion was the fact that Langendorf had adduced no evidence concerning the materiality of defendant's purportedly misleading "all natural" claim on its product labels:
As can be seen, Thorogood and Langendorf do not stand for the proposition that causation cannot be proven on a classwide basis. They merely reflect the fact that, under the specific circumstances of those cases, plaintiff did not carry his or her burden of proving that the purported misrepresentation was material to consumers, i.e., that consumers understood the representation in the same way, and purchased the product as a result of that understanding. Here, in contrast to both Thorogood and Langendorf, plaintiffs have proffered evidence concerning the materiality of ConAgra's "100% Natural" claim, which the court considers infra to determine if it is sufficient to demonstrate the materiality of the misrepresentation.
In re Sears, 2007 WL 4287511 at *9, is also distinguishable. There, the court concluded that individualized issues were likely to predominate over common questions with respect to plaintiff's ICFA and unjust enrichment claims, noting, inter alia, that "each plaintiff will have been exposed to a different representation or mix of representations," and that "each class member's motivation for buying Craftsman products would be highly individualized." Id. In contrast here, it is undisputed that each class member was exposed to the same representation, which appeared on each bottle of Wesson Oils sold during the class period. Regarding the In re Sears court's observation that "highly individualized" inquiries concerning class members' motivations for purchasing Craftsman tools would be necessary, plaintiffs here have proffered some evidence demonstrating that class members understood that the "100% Natural" claim meant Wesson Oils contained no GMOs and that they purchased the product as a result. Because under Illinois law, causation can be proved on a classwide basis if a uniform, material misrepresentation has been made, the court considers infra whether the evidence plaintiffs have adduced could suffice to prove materiality and hence causation.
Unlike Allen and Astiana, plaintiffs have adduced evidence in this case of the "impact of the challenged label statements" on consumers, and have proffered sufficient evidence showing that a reasonable consumer would conclude the "100% Natural" label meant Wesson Oil products contained no GMOs.
In Stearns, the Ninth Circuit reviewed a district court's denial of a motion for class certification. Stearns, 655 F.3d at 1016-18. Plaintiffs sought to certify classes asserting claims under California's consumer protection statutes based on defendant's purportedly deceptive website. Id. Ticketmaster and a business partner, Entertainment Publications, LLC ("EPI") operated separate websites; EPI's website offered an online coupon program called Entertainment Rewards. Id. at 1017. Entertainment Rewards allowed members, for a monthly membership fee, to download printable coupons that they could use to obtain discounts at various retail establishments. Id. EPI's website was linked to Ticketmaster's website, such that when a customer made a purchase on Ticketmaster, he or she was shown an ad on the confirmation page offering a "$25 Cash Back Award." Id. If customers clicked on the ad, they were taken to EPI's website, where they were enrolled in the Entertainment Rewards program if they entered their email address or clicked a "Sign Me Up" or "Yes" button. Id. Once enrolled, Ticketmaster transferred the customer's credit card information to EPI and the customer was charged a monthly membership fee for the Entertainment Rewards program. Id. at 1017-18. Plaintiffs sought to certify classes alleging claims under California's consumer protection statutes; the district court declined to certify UCL and CLRA classes, concluding that individualized proof of reliance and causation would be required to prove each claim. Id. at 1020-23.
The Ninth Circuit concluded that the district court had erroneously declined to certify a UCL class because a classwide inference of reliance arises under the UCL unless "there [is] no cohesion among the members [of the class] because they were exposed to quite disparate information from various representations of the defendant." Id. at 1020. It held, by contrast, that the district court had properly declined to certify a CLRA on the basis that reliance would require individualized inquiries. Id. at 1022. The court observed that, unlike the UCL, the CLRA requires that each class member have suffered actual injury as a result of the unlawful practice. Nonetheless, it stated, causation can be established on a classwide basis by showing the materiality of the defendant's representation, because if material misrepresentations were made to an entire class "an inference of reliance arises as to the class." Id. (citing Vioxx, 180 Cal.App.4th at 129, 103 Cal.Rptr.3d 83). The court cautioned that if the representation or omission was "not material as to all class members," then "the issue of reliance `would vary from consumer to consumer, and a class should not be certified. Id. at 1022-23. In the case before it, the court reasoned that, although the websites were "materially deficient," i.e., materially misleading, as to some class members, there was no evidence they were "materially deficient as to the entire class" because there were "myriad reasons that someone who was not misled and intentionally signed up might have chosen not to take advantage of the available product by actually printing a coupon or obtaining a rebate for some period." Id. at 1024. Because the class encompassed anyone enrolled in Entertainment Rewards who did not print a coupon or apply for a cashback award, and because there were multiple reasons other than being deceived that a class member might have signed up for the Entertainment Rewards program, but not have taken advantage of its discounts, the court concluded that the district court had not abused its discretion in denying plaintiffs' certification motion. Id.
ConAgra contends that under Stearns, a classwide inference of reliance cannot arise if there is the possibility that some members of a putative class suffered no injury. The court cannot agree. The California Court of Appeal's opinion in Vioxx — a case on which the Ninth Circuit relied in Stearns — is instructive in this regard. The Vioxx court discussed the CLRA's causation requirement and how causation can be proved on a classwide basis:
"The language of the CLRA allows recovery when a consumer `suffers damage as a result of the unlawful practice. This provision `requires that plaintiffs in a CLRA action show not only that a defendant's conduct was deceptive but that the deception caused them harm.' Causation, on a class-wide basis, may be established by materiality. If the trial court finds that material misrepresentations have been made to the entire class, an inference of reliance arises as to the class. This is so because a representation is considered material if it induced the consumer to alter his position to his detriment." Vioxx, 180 Cal.App.4th at 129, 103 Cal.Rptr.3d 83 (citing Massachusetts Mutual Life Ins. Co. v. Superior Court, 97 Cal.App.4th 1282, 1292, 119 Cal. Rptr.2d l90 (2002); Caro v. Procter & Gamble Co., 18 Cal.App.4th 644, 668, 22 Cal.Rptr.2d 419 (1993)).
Critically, the Vioxx court noted that the fact "[t]hat the defendant can, establish a lack of causation as to a handful of class members does not necessarily render the issue of causation an individual, rather than a common, one." Id. This is because "plaintiffs may satisfy their burden of showing causation as to each by showing materiality as to all." Id.
Under California law, "a misrepresentation or omission is material `if a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question.'" Stearns, 655 F.3d at 1022 (citing In re Steroid Hormone Prod. Cases, 181 Cal.App.4th 145, 157, 104 Cal.Rptr.3d 329 (2010)). In Stearns, the court concluded that the form and content of the Ticketmaster and EPI websites were not materially deficient as to all class members. Id. at 1024. The court, however, did not discuss the evidence adduced by plaintiffs that supported the district court's finding of non-materiality. Here, plaintiffs have adduced substantial evidence that a "100% Natural" claim on a food product is material to consumers; the industry studies and surveys they proffer indicate that a majority of consumers consider the claim material to their purchasing decision, and that consumers of Wesson Oils understand that "100% Natural" means, inter alia, that Wesson Oils do not contain GMOs. Nothing in Stearns suggests that similar evidence proffered in that case would not have sufficed to show materiality for certification purposes. More fundamentally, as the Ninth Circuit was applying the abuse of discretion standard of review, it is far from clear that it would have concluded that the district court had abused its discretion had it certified the class. Id. ("As it is, we cannot say that on the record before it the district court abused its discretion when it failed to certify the proposed CLRA class").
Following Stearns, district courts in this circuit have concluded that an inference of classwide reliance can arise under California law if plaintiffs adduce evidence that a uniform misrepresentation was material. The court's decision in Werdebaugh is particularly instructive. There, plaintiff sought certification of a CLRA class challenging Blue Diamond's "All Natural" claims on its products. Werdebaugh, 2014 WL 2191901 at *1. Werdebaugh argued that the representation was deceptive because of a single ingredient the products contained — potassium citrate. Id. at *2. Blue Diamond asserted that plaintiff had not shown commonality or predominance; specifically, it urged that she was "not entitled to a presumption of reliance because what is material varies from consumer to consumer" and because "All Natural" has no common definition. Id. at *12-13. The court disagreed, concluding that Werdebaugh had satisfied the commonality and predominance requirements with respect to her "All Natural" claim. Id. at *14, *18-20. It noted that "[w]hether Blue Diamond's label statements constitute material misrepresentations [did] not depend on the subject motivations of individual purchasers, and [that] the particular mix of motivations that compelled each class member to purchase the products in the first place [was] irrelevant." Id. at *12. Because the case concerned "misrepresentations common to the class," rather than "individualized representations to class members," the court concluded that there a presumption of could arise with respect to the entire class if Werdebaugh proffered adequate evidence to show that the representations were material to a reasonable person. It thus found that common questions, rather than individualized issues, would predominate if the class were certified. Id. at *12-14, *18-20.
Here, as in Werdebaugh, ConAgra uniformly made a single representation to all class members-that Wesson Oils were "100% Natural." Plaintiffs have adduced evidence that the claim was material to class members and to a reasonable consumer. The evidence in the record is sufficient to support a finding that the "100% Natural" claim was a material misrepresentation. If such a finding were made, an inference of reliance would arise. Consequently, the court finds that plaintiffs have met their burden of showing that individualized issues of reliance will not predominate over common questions. See, e.g., Lilly v. Jamba Juice Company, No. 13-CV-02998-JST, 2014 WL 4652283, *8 (N.D.Cal. Sept. 18, 2014) (concluding that common questions predominated over individualized issues regarding reliance); Werdebaugh, 2014 WL 2191901 at *12-14, *18-20 (same), class decertified on other grounds, 2014 WL 7148923 (N.D.Cal. Dec. 15, 2014); Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK, 2014 WL 2466559, *7-9, *11-12 (N.D.Cal. May 30, 2014), class decertified on other grounds, 2014 WL 5794873, *1 (N.D.Cal. Nov. 6, 2014) (same).
