ALVIN K. HELLERSTEIN, U.S.D.J.:
Plaintiff Matthew Marotto, a chef with training in molecular gastronomy, filed this action against Defendants Kellogg Company, Kellogg USA Inc., Kellogg Sales Company, Pringles, LLC, and Pringles Manufacturing Co., alleging that Defendants, makers and marketers of Pringles Salt and Vinegar crisps (or, "Pringles"), label Pringles packaging in a way that misled Marotto and other New York consumers into wrongly believing
Defendants make and market Pringles, the familiar potato crisp snack that comes in a tubular container featuring a mustachioed mascot. See Compl., ECF No. 1, at ¶¶ 1, 17-19.
Between April 2012 and the present— the class period proposed by Marotto, see ECF No. 39, at ¶ 1—Pringles were sold under twenty different labels. See ECF No. 49, at ¶ 2. Of these twenty label iterations, four include the text: "No Artificial Flavors":
See id. at ¶¶ 3-5 (square around the language added); ECF No. 49-1; ECF No. 49-2. The parties agree that every version of Pringles labeling lists all of the product's ingredients.
Plaintiff Marotto attended the French Culinary Institute ("FCI") in Manhattan. Marotto Dep., ECF No. 49-3, at 16:14-15. As he stated at his deposition, FCI is the "number one culinary institute in the United States." Id. at 16:15-16. Marotto graduated from FCI with a focus in "classic pastry arts," and in furtherance of his studies completed courses in "molecular gastronomy," a subject which involves understanding, inter alia, the role of chemical
Since graduating from FCI, Marotto has competed on televised cooking shows, id. at 18:18-20; worked as an executive pastry chef, id. at 18:15-17; been employed in research and development for a number of culinary businesses, id. at 19:23-20:2; and started a "cryogenic ice cream" company that specializes in using liquid nitrogen to rapidly freeze ice cream, id. at 32:19; see https://www.cryocreamcorp.com (last visited Nov. 27, 2019) ("A true avant-garde chef, Matt [Marotto] is renowned for his mastery of molecular gastronomy."). Marotto explained in his testimony that he "wouldn't have been able to be employed unless [he] had an extreme amount of knowledge" in nutrition and molecular gastronomy. Id. at 20:7-9.
Marotto testified to having eaten Pringles of various varieties "more or less continuously" since childhood. Id. at 53:17-18. During most of the ten years preceding this action, Marotto stated that he became partial to the "Salt & Vinegar" flavor, buying Pringles of this type every two-to-three weeks, see id. at 55:4-15. Marotto testified at some length about the importance to him—particularly in the couple of years immediately predating this action— of purchasing only natural, high-quality ingredients. He stated that "[p]rice isn't really a concern" to him, and that he does not "really care about money," so long as he has "something that's decent or it's good quality." Id. 44:24-45:3, 51:12-13. In the interest of eating "exclusively organic food," Marotto testified that he never buys packaged food of any kind, and "even make[s] [his] own pasta." Id. at 46:11-13, 51:19-52:3.
Unfortunately, for Marotto, once he popped, the fun did, ultimately, stop. In early March 2018, Marotto was told by his wife—who, as discussed infra, is an attorney at one of the law firms seeking to represent the instant putative class, see id. at 31:22-32:5; ECF No. 39—that Pringles contain artificial flavors despite the label saying "No Artificial Flavors." Compl. at ¶ 66; Marotto Dep. at 60:4-24. The Complaint identifies the two offending artificial flavors as "sodium diacetate" and "malic acid." Compl. at ¶ 21. As is disclosed on all versions of its labeling, Pringles are made up of "2% or less" of these two flavorings. ECF No. 49, at ¶ 6; see ECF Nos 49-1, 49-2. Marotto filed suit shortly thereafter.
In April 2018, Marotto filed a class action on behalf of Pringles consumers, alleging that Defendants falsely indicated through Pringles' labeling that the chips contain no artificial flavors, when in fact the chips do contain such flavors. See Compl. at ¶ 4. Marotto brought claims for deceptive trade practices, N.Y. Gen. Bus. L. § 349; false advertising, N.Y. Gen. Bus. L. § 350; negligent misrepresentation; intentional misrepresentation; breach of express warranty; and breach of the implied warranty of merchantability. In November 2018, I denied Defendants' motions to transfer or stay the case, but granted their motion to dismiss Marotto's claim for breach of implied warranty, and held separately that Marotto lacks standing to pursue injunctive relief. See generally ECF No. 29.
In June 2019, Marotto moved to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(3). See ECF No. 39. Marotto's proposed class is defined in relevant part as follows: "All persons who purchased Pringles Salt and Vinegar chips ... in the state of New York, for personal or household use, and not for resale, on or
Under Federal Rule of Civil Procedure 23(a), "the prerequisites for maintaining a class action are numerosity, commonality, typicality, and adequacy of representation." Ruffo v. Adidas America Inc., No. 15-cv-5989, 2016 WL 4581344, at *1 (S.D.N.Y. Sept. 2, 2016). If an action "satisfies those prerequisites, it may be certified if it also satisfies one of the three parts of Rule 23(b)." Id. Rule 23(b)(3), under which Plaintiff here seeks certification, provides that a
Fed R. Civ. P. 23(b)(3). As a "`general matter, the Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'" Weiner v. Snapple Beverage Corp., No. 07-cv-8742, 2010 WL 3119452, at *5 (S.D.N.Y. Aug. 5, 2010) (quoting Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010)). This entails asking whether the issues raised are "subject to generalized proof" or "only to individualized proof." Brown, 609 F.3d at 483 (quotation marks omitted).
Contrary to Marotto's assertion that evaluation of class certification motions is restricted to the contents of the complaint,
Ruffo, 2016 WL 4581344, at *2; see Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010) ("In evaluating a motion for class certification, the district court ... must resolve material factual disputes relevant to each Rule 23 requirement."); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 204 (2d Cir. 2008) (recognizing that district courts may consider "affidavits, documents, or testimony") (quotation marks omitted).
Marotto's arguments for typicality and adequacy are, at best, dubious. For instance, common sense alone makes clear that a professional pastry chef, with years of training in molecular gastronomy at an elite culinary school, for whom (in his own words) price is of no concern when grocery shopping, and is so averse to the purchase of packaged food that he makes his own
However, I need not address those arguments, because Marotto has plainly failed to satisfy the predominance requirement of Rule 23(b)(3). See, e.g., Ruffo, 2016 WL 4581344, at *2; Weiner, 2010 WL 3119452, at *5. First, while common issues may predominate if a product and its labeling "remain[] constant and [are] uniform between customers," this is not so when "it is not demonstrated that all members of the class saw the same advertisements ... and not all the advertisements contained the alleged misrepresentations." Goldemberg v. Johnson & Johnson, 317 F.R.D. 374, 389 (S.D.N.Y. 2016) (quotation marks omitted); see Ault v. J.M. Smucker Co., 310 F.R.D. 59, 65 (S.D.N.Y. 2015) ("Courts across the country have expressed doubt that a class is ascertainable in cases ... where only certain products on the market during the class period contain the allegedly misleading labels."). Marotto's extant claims are predicated upon class members having been misled by, or at least having seen, the "No Artificial Flavors" label. See Wurtzburger v. Kentucky Fried Chicken, No. 16-cv-08186, 2017 WL 6416296, at *3 (S.D.N.Y. Dec. 13, 2017) ("If Plaintiff did not see the advertisement ... she could not have been injured by [it]."). But the multiplicity of labels produced by Defendants shows that only four of the twenty different versions of Pringles labels contained that language during the class period.
Second, the individualized inquiry into the extent to which—if at all—individual consumers were motivated by the "No Artificial Flavors" label to purchase Pringles, and/or to pay a premium price for Pringles, precludes a finding of predominance. This is not a matter of damages implicating individual determinations—as noted already, Marotto's surviving claims require either that a plaintiff is induced to make a purchase or injured as a result of having been induced to make said purchase, due to a merchant's false or misleading statement. Common sense dictates that a purchaser who does not care whether Pringles contain artificial flavors and instead is only interested in, e.g., taste, cannot make out a claim for fraud, misrepresentation, or breach of express warranty. See, e.g., Weiner, 2010 WL 3119452, at *6 ("[P]laintiffs have not shown that they could prove... that putative class members in fact paid a premium for Snapple beverages as a result of the `All Natural' labeling."); id. at *11 (it may be that consumers bought Snapple for its "taste, glass bottles, quirky advertising," etc.); Marshall v. Hyundai Motor America, ___ F.R.D. ___, ___, 2019 WL 2678023, at *16 (S.D.N.Y. June 14, 2019) ("[T]he court will be required to conduct individualized inquiries to determine whether class members suffered any injuries at all—a proposition that is much different than determining the quantum of damages for each class member."); Oscar v. BMW of North America, LLC, 2012 WL 2359964, at *4 (S.D.N.Y. June 19, 2012) ("It is impossible to determine, on a global basis, whether the presence of [a particular feature], as opposed to other standard equipment differentiating the [first car type] from the [second car type] `caused' consumers to pay a higher sum for the [first car type].").
If the proposed class were certified, the Court would need to engage in fact-finding as to the inner workings of (at least) tens of thousands (and likely more) of consumers' minds. And ultimately, the Court would need some meaningful way of determining the interplay between the weight a class member placed on the "No Artificial Flavors" label and harm to that class member. Such a process would be as individualized as it is nonsensical. All the more so because Plaintiff has of yet "offer[ed] no evidence that a price premium actually existed." Ault, 310 F.R.D. at 67. In short, predominance is wholly lacking here.
For the foregoing reasons, Plaintiff's motion for class certification is denied. The parties are ordered to appear for a status conference on January 3, 2020, at 10:00 a.m., to chart further progress in this case. The Clerk is directed to close the open motion (ECF No. 39).
SO ORDERED.