ORDER DENYING MOTION FOR CLASS CERTIFICATION (Re: Docket No. 50)

PAUL S. GREWAL, Magistrate Judge.

Beginning in 2009, Plaintiffs Karisa Nguyen, Andre Vandenberg and Pearline Blackwood all bought triangular "Popcorners" chips made and sold by Defendant Medora Holdings, LLC. The chip packaging bore labels touting the chips as "all natural."1 In 2013, lawyers for Plaintiffs sent Medora letters questioning the truth of the labeling and threatening a lawsuit. Soon thereafter, Medora decided to implement new packaging that omitted the offending "all natural" language.

Plaintiffs filed suit anyway, alleging that because the products contain genetically-modified organisms the labels were false and misleading. Like the majority of consumers, allege Plaintiffs, they expect "natural" foods to be free of GMOs.2 They now move for certification of a class and various subclasses pursuant to Fed. R. Civ. P. 23(b)(2) and 23(c)(4).

Before considering the usual issues of ascertainability, typicality and predominance of damages necessary for the class certification Plaintiffs seek, the court must consider Plaintiffs' Article III standing. Because Plaintiffs offer no evidence to support their alleged injury-in-fact, they lack standing under Article III to pursue any relief. They additionally lack standing to pursue injunctive relief because Plaintiffs offer no evidence of a likelihood of injury in the future, and even if they did, the Popcorners label no longer includes the offending "all natural" language.

The court DENIES Plaintiffs' motion.

I.

"In a class action, standing is satisfied if at least one named plaintiff meets the requirements."3 Not only must at least one named plaintiff satisfy constitutional standing requirements, but the plaintiff "bears the burden of showing that he has standing for each type of relief sought."4 Article III standing to sue requires a plaintiff show "(1) an injury-in-fact that is concrete and particularized, as well as actual or imminent; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that the injury is redressable by a favorable ruling."5 A plaintiff seeking equitable relief such as an injunction must further demonstrate a likelihood of future injury.6 This requires a showing that the plaintiff is "realistically threatened by a repetition of the violation."7 Allegations that a defendant's continuing conduct subjects unnamed class members to the alleged harm are insufficient if the named plaintiffs are themselves unable to demonstrate a likelihood of future injury.8

Medora developed and first marketed a domestic corn-based triangular snack chip named Popcorners in April 2010.9 Apart from limited direct sales online, Medora has sold Popcorners for resale through wholesalers and distributors.10 Medora's annual net sales for Popcorners increased from less than $450,000 in 201011 to less than $6 million in 2011, $15 million in 2012, and $26 million in 2013.12 In late July, 2013, a lawyer for Plaintiffs sent Medora a letter quoting the California Consumers Legal Remedies Act,13 demanding that Medora cease using the words "all natural" on its packaging and website, and threatening to file a class action suit.14 In late October, 2013, another lawyer for Plaintiffs sent a draft complaint along with a settlement demand, similarly demanding that Medora cease using the words "all natural" on its Popcorners packaging.15 While Medora denies there is anything misleading about its old labeling, in October and November 2013, Medora decided to implement a new label that did not include the words "all natural."16 The new label went into effect in December 2013.17 In 2014, annual net sales for Popcorners increased again, to approximately $34 million.18

In February 2014, Nguyen filed an initial complaint in this district. Vandenberg followed later that year with a complaint in the Southern District of Florida. Vandenberg's action was transferred here, and ultimately related and consolidated with Nguyen's.19 Blackwood joined the case earlier this year by way of the operative amended class action complaint.20 The operative complaint includes a variety of claims, including: violation of the California Consumers Legal Remedies Act, Civ. Code § 1750 et seq.; violation of the California Unfair Competition Law, Bus. & Prof. Code § 17200 et seq.—Unlawful Business Acts and Practices; violation of the California Unfair Competition Law, Bus. & Prof. Code § 17200 et seq.—Fraudulent Business Acts and Practices; violation of the California False Advertising Law, Bus. & Prof. Code § 17500 et seq.; breach of express warranty; breach of the implied warranty of merchantability; violation of the New York General Business Law Section 349; violations of the Florida Deceptive and Unfair Trade Practices Act, negligent misrepresentation and violation of the California Magnusson-Moss Warranty Act.21

Discovery commenced. Nguyen testified in deposition that she bought a few bags of Popcorners in California in 2013.22 In making her purchase, Nguyen says she relied upon the statement that the product was "all natural." Put another way, Nguyen says that had she known at the time that the product was not, in fact, "all natural" but was, instead, made with GMOs, she would not have purchased the product. Nguyen also says that if she knew that the product labels were truthful and not misleading, she would continue to purchase the products in the future. But Nguyen did not know the price she paid for the Popcorners she bought, and has no record of her purchases.23 Nguyen also testified that she suffered no financial harm as a result of her purchases.24

Vandenberg bought one bag of Popcorners in 2013, and has no record of that purchase.25 He says he bought the bag from a Whole Foods Market in Florida for approximately $2.99. The bag he purchased was labeled "all natural" on the front packaging, which he says he perceived, read and relied on in making his purchase. Vandenberg interpreted the "all natural" claim to mean that the White Cheddar Popcorners All Natural Corn Chips did not contain unnatural, synthetic, and/or artificial ingredients. He testified that he is now aware that most corn is genetically modified, but that he continues to eat corn-based foods that are probably genetically modified, regardless of whether they contain genetically modified ingredients.26

Blackwood testified that the first time she tried Popcorners, she was on a flight and selected a free snack from an attendant without reading the label.27 She testified that she continued to purchase Popcorners during most of 2014, well after the label change removed the words "all natural" from Popcorners packaging.28

In the operative complaint, Plaintiffs request declaratory relief, injunctive relief and damages generally.29 But they seek to certify a class only as to declaratory and injunctive relief under Rules 23(b)(2) and 23(c)(4) for liability purposes specifically, leaving damages for later.30 Plaintiffs also seek alternative state subclasses consisting of California, Florida and New York residents.31

II.

This court has original subject-matter jurisdiction over this proposed class action pursuant to the Class Action Fairness Act of 2005 and under 28 U.S.C. § 1332(d), which explicitly provides for the original jurisdiction of the federal courts in any class action in which at least 100 members are in the proposed plaintiff class, any member of the plaintiff class is a citizen of a state different from the state of citizenship of any defendant, and the matter in controversy exceeds the sum of $5,000,000, exclusive of interest and costs. Plaintiffs alleges there are at least 100 members in the proposed class, the total claims of the proposed class members are well in excess of $5,000,000 in the aggregate, exclusive of interest and costs and a member of the proposed class is a citizen of a state different from the state of citizenship of Medora. The parties further consented to the jurisdiction of the undersigned under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).32

Ordinarily, questions of standing are raised by way of a motion to dismiss for lack of subject matter jurisdiction.33 Here, rather than filing any Rule 12 motion, Medora simply answered. But a court is always obligated to consider whether any plaintiff has standing to pursue the relief sought. "Standing is a threshold matter central to our subject matter jurisdiction. We must assure ourselves that the constitutional standing requirements are satisfied before proceeding to the merits."34 Although presented as part of Medora's opposition to class certification, the court must therefore consider Plaintiffs' standing to pursue their proposed class-wide injunctive relief before anything else.35 Upon such consideration, the court finds that not only has no named Plaintiff offered any proof of any injury-in-fact, no named Plaintiff is realistically threatened by a repetition of the violation.

III.

"[P]rior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim."36 "The standing formulation for a plaintiff seeking prospective injunctive relief is simply one implementation of Lujan's requirements. The plaintiff 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.' As to the second inquiry, he must establish a `real and immediate threat of repeated injury.'"37 Between their failure to show any past injury, Plaintiffs' failure to express any intent to buy Popcorners in the future, and Medora's change to the label in late 2013, no named Plaintiff meets these basic requirements.

First, no named Plaintiff offers any proof of any past injury. In food-labeling cases such as this one, a plaintiff can satisfy the Article III injury-in-fact requirement by showing that she either: (1) paid a price premium for a mislabeled product; or (2) would not have purchased the product had he or she known about the misbranding.38 Critically, at this stage, allegations alone are not enough. "[A]t the class certification stage, . . . unlike on a motion to dismiss, the would-be class representative must show standing, rather than merely allege it."39 Because the elements of Article III standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation."40 On a motion for class certification, this means a plaintiff must show standing "through evidentiary proof."41

Here, Plaintiffs allege both they paid Medora a price premium42 and that they were misled into buying Popcorners.43 But Plaintiffs make no such showing for either theory anywhere in their motion, reply or supplemental brief. In fact, they cite no evidence on this issue whatsoever.44 Nor do Plaintiffs dispute evidence and deposition testimony that sales of Popcorners actually increased when the "all natural" label was removed45 and that Plaintiffs specifically admitted that they have not avoided foods that they know contain GMOs.46 Because Plaintiffs have made no showing that they paid a price premium or that they would not have purchased the product had they known about the alleged misbranding, Plaintiffs do not have Article III standing to pursue any relief.

Second, even if Plaintiffs could show they suffered an injury-in-fact, they fail to show that any injury is "redressable by a favorable ruling" that would permit a class under Rule 23(b)(2).47 To establish standing for prospective injunctive relief, a plaintiff 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.'"48 The alleged threat cannot be "conjectural" or "hypothetical."49 "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects."50 Each plaintiff must show that she herself is subject to a likelihood of future injury.51

While a few courts in this circuit have held, on public policy grounds, that standing does not require a plaintiff even to allege an intent to purchase the mislabeled product in the future,52 many others, particularly in this district, have held the opposite: "to establish standing, [a plaintiff] must allege that he intends to purchase the products at issue in the future."53 Still others have gone further, holding that a plaintiff's knowledge of the allegedly misleading label renders any expressed intent to purchase the challenged product in the future "implausible."54 The reasoning of these latter courts is the more persuasive. The court gives Plaintiffs more credit than to understand that they are at risk of being duped again by a label they now understand does not indicate a lack of GMO ingredients.55 And no matter their wisdom or fairness, courts and legislatures don't get to create exceptions to Article III.56

Third, even if Plaintiffs did offer evidence of injury-in-fact and redressability, they still lack standing to pursue injunctive relief because Medora changed the packaging back in December 2013, before this suit was even filed. In support of their claims of an ongoing risk despite the change, Plaintiffs point to a web archive screen shot showing an image of the old packaging on the Medora website in March 2014.57 But Plaintiffs present no evidence that they ever visited the Medora website or made any direct purchases. And beginning in May 2014, after Nguyen filed her complaint but before Vandenberg or Blackwood became plaintiffs, Medora changed the online Popcorners images to reflect the new packaging without the "all natural" label.58 There is no precedent for a case going forward with a Rule 23(b)(2) under such circumstances.59

To be sure, past wrongs can be "evidence bearing on whether there is a real and immediate threat of repeated injury,' even if they `do not in themselves amount to real and immediate threat of injury necessary to make out a case or controversy.'"60 But in seeking to enjoin allegedly illegal conduct that defendant has voluntarily discontinued, the moving party must satisfy the court that relief is needed because "there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive."61 Plaintiffs show no evidence and point to nothing to suggest there is any "threat" that Medora will change its label back to include an "all natural" statement, or that an injunction issued by the court would have any impact on any consumers, let alone Plaintiffs personally. While Medora may have marketed and sold some units of Popcorners with the "all natural" label after Nguyen filed her complaint,62 Medora's Chief Financial Officer testified that though the "all natural" label was removed "because of this lawsuit,"63 the "all natural" claim had no discernable impact on sales, which increased after the label change.64 With such evidence in the record unrebutted, Plaintiffs fail to show any need for an injunction to preserve the status quo.

Plaintiffs finally urge that "corrective advertising is appropriate . . . [and] should be oriented toward eliminating the false nature of the offending ad as well as the confusion it engenders in the minds of consumers."65 Corrective advertising is only appropriate if plaintiffs have lost a significant market share or experienced a competitive disadvantage.66 Because Plaintiffs here are consumers, not competitors vying for market share, the corrective advertising theory is inapplicable.67

IV.

Plaintiffs' motion for class certification is DENIED. Because named Plaintiffs lack Article III standing, the parties shall address this court's overarching subject matter jurisdiction at the status hearing set for August 25, 2015.68

SO ORDERED.