United States District Court, S.D. California
TATIANA KOROLSHTEYN, on behalf of herself and all others similarly situated, Plaintiff,
COSTCO WHOLESALE CORPORATION and NBTY, INC., Defendants.
ORDER GRANTING MOTION FOR CLASS CERTIFICATION [Doc.
Cathy Ann Bencivengo United States District Judge.
matter is before the Court on Plaintiff's motion for
class certification. The motion has been fully briefed, and
the Court deems it suitable for submission without oral
argument. As discussed below, the motion is granted.
case arises out of Defendants' alleged false statements
about the health benefits of TruNature Gingko Biloba with
Vinpocetine (“TruNature Gingko”), which is
manufactured by Defendant NBTY, Inc. (“NBTY”) and
sold at the stores of Defendant Costco Wholesale Corporation
(“Costco”). The labels of TruNature Gingko
represent that the product “supports alertness &
memory, ” that “Gingko biloba can help with
mental clarity and memory, ” and that “[i]t also
helps maintain healthy blood flow to the brain to assist
mental clarity and memory, especially occasional mild memory
problems associated with aging.” [Doc. No. 100 at
¶ 1.] According to the TAC, these representations are
false because studies show that gingko biloba and vinpocetine
do not provide any mental clarity, memory or mental alertness
benefits. [Id. at ¶ 2.] Plaintiff Tatiana
Korolshteyn alleges she bought a bottle of TruNature Gingko
based on the allegedly false representations on the product
label and filed this lawsuit on behalf of herself and a
putative class of consumers who purchased TruNature Gingko in
California. The TAC asserts two claims: (1) violation of
California's unfair competition law (the
“UCL”), California Business & Professions
Code § 17200 et seq.; and (2) violation of
California's Consumer Legal Remedies Act
(“CLRA”), California Civil Code § 1750
et seq. The prayer for relief asks for restitution
and disgorgement of Defendants' revenues, actual,
statutory and punitive damages, and attorneys' fees and
costs. [Id. at p. 15.] She now moves to certify a
Legal Standard for Class Certification
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 v. Dukes, 564
U.S. 338, 348 (2011) (internal quotation marks omitted).
“Parties seeking class certification must satisfy each
of the four requirements of [Federal Rule of Civil Procedure]
23(a) . . . and at least one of the requirements of Rule
23(b).” Briseno v. ConAgra Foods, Inc., 844
F.3d 1121, 1124 (9th Cir. 2017). “Rule 23(a) states
four threshold requirements applicable to all class actions:
(1) numerosity (a class so large that joinder of all members
is impracticable); (2) commonality (questions of law or fact
common to the class); (3) typicality (named parties'
claims or defenses are typical of the class); and (4)
adequacy of representation (representatives will fairly and
adequately protect the interests of the class). Amchem
Prods, Inc. v. Windsor, 521 U.S. 591, 613 (1997)
(internal quotation marks, brackets, and ellipses omitted).
here contends that in addition to satisfying these four Rule
23(a) requirements, class certification is warranted under
Rule 23(b)(3). Rule 23(b)(3) “requires that common
questions of law or fact found under Rule 23(a)(2)
‘predominate over any questions affecting only
individual members, and that a class action is superior to
other available methods for fairly and efficiently
adjudicating the controversy.'” Torres v.
Mercer Canyons Inc., 835 F.3d 1125, 1132 (9th Cir.
considering class certification, district courts must engage
in “a rigorous analysis” to determine whether
“the prerequisites of Rule 23(a) have been
satisfied.” Dukes, 564 U.S. at 350-51 (citing
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,
161 (1982)). “[T]he merits of the class members'
substantive claims are often highly relevant when determining
whether to certify a class.” Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011).
Thus, “a district court must consider the
merits if they overlap with the Rule 23(a)
requirements.” Id. (emphasis in
original). At the same time, courts “consider merits
questions at the class certification stage only to
the extent they are relevant to whether Rule 23 requirements
have been met.” Torres, 835 F.3d at 1133
(emphasis added). “While some evaluation of
the merits frequently cannot be helped in evaluating
commonality, that likelihood of overlap with the merits is no
license to engage in free-ranging merits inquiries at the
certification stage.” Stockwell v. City & Cty.
of San Francisco, 749 F.3d 1107, 1111 (9th Cir. 2014)
(internal quotation marks and citation omitted). “A
court, when asked to certify a class, is merely to decide a
suitable method of adjudicating the case and should not turn
class certification into a mini-trial on the merits.”
Edwards v. First Am. Corp., 798 F.3d 1172, 1178 (9th
Motions to Exclude or Strike Declarations and Expert
a motion for class certification, the Court makes no findings
of fact and announces no ultimate conclusions on
Plaintiffs' claims.” Keilholtz v. Lennox Hearth
Prod. Inc., 268 F.R.D. 330, 337 (N.D. Cal. 2010). Thus,
at the class certification stage, “the Court may
consider evidence that may not be admissible at trial.”
Aguirre v. Genesis Logistics, No. SACV1200687JVSANX,
2016 WL 6573986, at *2 (C.D. Cal. July 20, 2016). One court
even noted that a “district court may certify a class
without supporting evidence.” Dominguez v.
Schwarzenegger, 270 F.R.D. 477, 483 n.5 (N.D. Cal. 2010)
(citing Hanon v. Dataproducts Corp., 976 F.2d 497,
509 (9th Cir. 1992)). “Accordingly, 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.” Aguirre, 2016
WL 6573986, at *2 (internal quotation marks and brackets
in conjunction with the motion, the parties have combined to
submit numerous declarations and expert reports and dozens of
exhibits that they claim support their arguments for or
against class certification. Perhaps unsurprisingly, these
voluminous evidentiary submissions have yielded three
separate motions to exclude the reports or declarations of
four different experts or witnesses purportedly offering
expert testimony. That the evidence does or does not support
the putative class' claims is a separate question from
whether a plaintiff may assert those claims on behalf of a
class. The parties may disagree about the admissibility
various expert reports and other declarations, but the
admissibility of this testimony is largely inconsequential to
the Court's current task of determining whether
Plaintiff's claims are appropriate for determination on a
classwide basis. Accordingly, the motions to exclude or
strike the declarations, testimony or reports of Richard
Bazinet, Beth Snitz, Susan Mitmesser, and Edward Rosick are
all denied without prejudice. The parties are welcome to
re-file these motions in connection with summary judgment
motions or as motions in limine consistent with the deadlines
set by the applicable case management orders and local rules.
The Proposed Class(es)
seeks certification of a California-only UCL Class and a
California-only CLRA Class, but the classes are identical:
“All California consumers who, within the applicable
statute of limitations, purchased TruNature Gingko Biloba
with Vinpocetine until the date notice is
disseminated.” [Doc. No. 107 at 20.] “For
purposes of class certification, the UCL . . . and CLRA are
materially indistinguishable.” Forcellati v.
Hyland's, Inc., No. CV 12-1983-GHK (MRWx), 2014 WL
1410264, at *9 (C.D. Cal. Apr. 9, 2014). “[C]lass
certification of UCL claims is available only to those class
members who were actually exposed to the business practices
at issue.” Berger v. Home Depot USA,
Inc., 741 F.3d 1061, 1068 (9th Cir. 2014).
state a claim under the UCL . . . ‘based on false
advertising or promotional practices, it is necessary only to
show that members of the public are likely to be
deceived.'” Pulaski & Middleman, LLC v.
Google, Inc., 802 F.3d 979, 985 (9th Cir. 2015) (quoting
In re Tobacco II Cases, 46 Cal.4th 298, 312 (2009)).
“This inquiry does not require ‘individualized
proof of deception, reliance and injury.'”
Id. (quoting In re Tobacco II Cases, 46
Cal.4th at 320). “Thus, a court need not make
individual determinations regarding entitlement to
restitution. Instead, restitution is available on a classwide
basis once the class representative makes the threshold
showing of liability under the UCL.” Id. at
“[u]nlike the UCL, the CLRA demands that each potential
class member have both an actual injury and show that the
injury was caused by the challenged practice. However, if a
material misrepresentation has been made to the entire class,
an inference of reliance arises as to the class.”
Berger, 741 F.3d at 1069-70 (internal citation and
quotation marks omitted). “As a general rule,
materiality may be established by common proof
‘[b]ecause materiality is judged according to an
objective standard, ' and so ‘[t]he alleged
misrepresentations and omissions, whether material or
immaterial, would be so equally for all [consumers] composing
the class.'” Mullins v. Premier Nutrition
Corp., No. 13-cv-1271-RS, 2016 WL 1535057, at *5 (N.D.
Cal. Apr. 15, 2016) (quoting Amgen Inc. v. Conn. Ret.
Plans and Trust Funds, 133 S.Ct. 1184, 1191 (2013));
see also McCrary v. Elations Co., LLC, No. EDCV
13-00242 JGB OP, 2014 WL 1779243, at *14 (C.D. Cal. Jan. 13,
2014) (“[T]he determination of materiality, and thus
reliance, is determined using objective criteria that apply
to the entire class and do not require individualized
determination.”); In re Steroid Hormone Prod.
Cases, 181 Cal.App.4th 145, 157 (Cal.Ct.App. 2010)
(“Materiality of the alleged misrepresentation
generally is judged by a ‘reasonable man'
the only alleged misrepresentations in question appeared on
the labels of the products purchased by class members.
Whether these representations were material to a reasonable
person can be determined on a classwide basis. Therefore, the
different requirements for UCL and CLRA claims do not warrant
different outcomes in the class certification analysis. For
this reason, and because neither party makes arguments unique
to either proposed ...