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Sethavanish v. Zoneperfect Nutrition Co.

United States District Court, N.D. California

February 13, 2014

KIMBERLY S. SETHAVANISH, on behalf of themselves and all others similarly situated, Plaintiff,


SAMUEL CONTI, District Judge.


Plaintiff Kimberly S. Sethavanish ("Plaintiff") brings this putative class action against Defendant ZonePerfect Nutrition Company ("Defendant"), a maker of nutritional snack bars ("nutrition bars"). The thrust of Plaintiff's Complaint is that Defendant's nutrition bars, which bear on their labels the statement "All-Natural Nutrition Bars, " are not all-natural and hence misleadingly labeled. Now pending before the Court is Plaintiff's fully-briefed motion for class certification. ECF Nos. 65 ("Mot."), 73 ("Pl.'s Supp. Br."), 77 (Opp'n), 82 ("Reply"), 85 ("Def.'s Sur-Reply"). Also pending before the Court is Defendant's fully briefed motion for an evidentiary hearing on class certification issues, ECF Nos. 86 ("Evid. Mot."), 88 ("Opp'n to Evid. Mot.").[1] The motions are suitable for decision without oral argument. Civ. L.R. 7-1(b). For the reasons set forth below, both motions are DENIED.


Defendant manufactures, distributes, and sells nutrition bars (the "ZonePerfect bars") through walk-in and online retailers. ECF No. 1 ("Compl.") ¶ 9. There are twenty varieties of ZonePerfect bars, and they are sold and distributed nationwide in grocery stores, health food stores, and other venues. Id . ¶ 10. The packaging of all twenty varieties is similar. See id. ¶ 42. The front of the packaging is emblazoned with the ZonePerfect logo and the legend "All-Natural Nutrition Bars." Id.

Plaintiff claims that this "all-natural" representation is false and misleading because all varieties of the ZonePerfect bars contain one or more of the following ten allegedly non-natural ingredients: ascorbic acid; calcium pantothenate; calcium phosphates; glycerine; potassium carbonate a/k/a "Cocoa [Processed with Alkali]" or "Cocoa Powder [Processed with Alkali]"; pyridoxine hydrochloride; disodium phosphate; sorbitan monostearate; tocopherols; and xanthan gum. Id . ¶¶ 21-30. Plaintiff contends that these ingredients are not natural because federal regulations define them as "synthetic." See ECF No. 66 ("Kravec Decl.") Ex. 8 (list of applicable regulations).

Beginning on or around September 14, 2007, Plaintiff purchased the ZonePerfect bars for her then-fiance James Collucci (the two are now married). Compl. ¶ 8. At the time, Mr. Colluci was an active-duty member of the United States Marine Corps. Id . He was stationed at Camp Pendleton in San Diego County, California and then deployed overseas. Id . During this time, Plaintiff sent Mr. Colucci a monthly care package. Id . At Mr. Colucci's request, Plaintiff would include in these care packages "two multi-bar packs of ZonePerfect Nutrition Bars per month, including its Classic ZonePerfect All-Natural' Nutrition Bars Chocolate Peanut Butter flavor." Id . Plaintiff alleges that, beginning on September 14, 2007, Ms. Sethavanish would purchase packs of ZonePerfect Chocolate Peanut Butter Bars every four to six weeks from retail stores near her home. See id.

Plaintiff alleges that Mr. Colucci believed and relied upon the "all-natural" representation on the label of the ZonePerfect bars when he asked Plaintiff to purchase them for him. Id . ¶ 7. Plaintiff alleges that, based on the "all-natural" representation, she believed that the nutrition bars were made entirely of natural ingredients. Id . ¶ 8. Plaintiff alleges that she paid more for the ZonePerfect bars than she would have had to pay for other nutrition bars that were not all natural, and that, had she known the truth, she would have purchased another brand of nutrition bar that was truly all natural or, lacking that, other non-natural nutrition bars that were less expensive. Id.

Plaintiff asserts claims for (1) common law fraud; (2)-(4) unlawful, unfair, and fraudulent business practices in violation of the California Unfair Competition Law ("UCL"), Cal. Bus & Prof. Code § 17200, et seq.; (5) false advertising in violation of the California False Advertising Law ("FAL"), id. § 17500, et seq.; (6) violation of the California Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, et seq.; and (7) restitution based on quasi contract.[2] Plaintiff now moves this Court to certify a nationwide class of all persons who purchased ZonePerfect bars in the United States on or after September 14, 2007. The class is limited to purchases of ZonePerfect bars that were labeled "All-Natural, " but which contain one or more of the allegedly non-natural ingredients listed above.


"The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2550 (2011) (internal quotations and citations omitted). "In order to justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Id . (internal quotations and citations omitted).

Under Rule 23(a), four prerequisites must be satisfied for class certification:

(1) the class is so numerous that joinder of all members ...

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