United States District Court, N.D. California
ORDER GRANTING IN PART MOTIONS TO STRIKE EXPERTS;
GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT;
GRANTING IN PART PLAINTIFFS' MOTION FOR CLASS
CERTIFICATION RE: DKT. NO. 61, 75, 76, AND 77
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
Jeanne Stathakos and Nicolas Stathakos bring this putative
class action against defendants Columbia Sportswear Company
and Columbia Sportswear USA Corporation (collectively,
“Columbia”) for alleged use of deceptive and
misleading labeling and marketing of merchandise in its
company-owned Columbia outlet stores. Plaintiffs bring five
causes of action: three under each prong of the Unfair
Competition Law, California Business & Professions Code
§§ 17200, et seq. (“UCL”) for
(i) unlawful, (ii) unfair, and (iii) fraudulent business
practices; the fourth for violation of the False Advertising
Law, California Business & Professions Code §§
17500, et seq., (the “FAL”); and the
fifth for violation of the Consumers Legal Remedies Act,
California Civil Code §§ 1750, et seq.
before the Court are the following motions: defendants'
motions to exclude plaintiffs' experts, namely Ms.
Gabriele Goldaper and Dr. Larry Compeau; defendants'
motion for summary judgment; and plaintiffs' motion to
certify a class under Federal Rule of Civil Procedure
23(b)(2) or 23(b)(3). Specifically, plaintiffs seek to
certify the following class under Rule 23(b)(2) or Rule
23(b)(3): “All consumers who have purchased an Outlet
SMU Build at a Columbia Outlet store in the State of
California since July 1, 2014, through the conclusion of this
carefully reviewed the papers and evidence submitted on the
above motions and oral arguments at the hearing held on April
25, 2017, and for the reasons set forth more fully below, the
Court Orders as follows: The Court Denies defendants'
motion to exclude Ms. Goldaper. The Court Grants in Part
defendants' motion to exclude certain paragraphs of Dr.
Compeau's report as set forth herein. The Court Grants in
Part defendants' motion for summary judgment with regard
to plaintiffs' proposed models for monetary relief, but
Denies such motion in all other respects. The Court Grants in
Part plaintiffs' motion for class certification and
conditionally certifies a Rule 23(b)(2) class as set forth
bring this UCL, FAL, and CLRA putative class action generally
alleging that defendants utilize deceptive practices with
regard to their use of price tags for certain products at
their outlets. Specifically, plaintiffs allege that
defendants' use of “reference prices” on
merchandise tags at their outlet stores is deceptive because
it leads consumers to believe that such merchandise was
formerly sold at that price when the truth was to the
contrary. Relevant to this action, defendants sold two
general categories of garments: (i) “Inline Styles,
” which were regular products produced for sale at any
of defendants' stores, wholesale partners, or online; and
(ii) “Outlet Special Makeup (“SMU”) Builds,
” which were designed specifically for, and sold only
at, defendants' outlet stores. This case relates only to
the sales of defendants' Outlet SMU Builds.
following background is relevant to the instant motions:
sell their products primarily through four channels:
Columbia's Inline retail stores, website, wholesale
partners, and outlet stores. Prior to 2014, Columbia used the
outlet stores to sell styles that were previously sold at
Inline retail stores, and the price tags reflected both the
higher price at which it previously sold Inline and the lower
price at which it could be purchased at the outlet. (Dkt. No.
61-22 at 7, Defendants' Interrogatory #3.)
beginning of the class period in July 2014, defendants
started selling Outlet SMU Builds, which it describes as
“styles based off an in-line style, with slight
aesthetic modifications.” (Id.) Importantly,
Outlet SMU Builds are sold only at the outlet stores.
(Id.) Like the Inline Styles sold at the outlet
stores, the Outlet SMU Builds also bore a price tag
presenting two prices. The higher price tag represented the
price at which the “corresponding inline style sold
for” whereas the lower price was the “price at
which the item could be purchased at the outlet (absent a
special sale at the outlet).” (Id.) The Outlet
SMU Builds, however, were never sold anywhere other than
outlet stores, and never sold for the higher reference price.
(See Bui Dep. Tr. 103:18-20, 123:8-124:12.) The
following figures represent the different price tags for
inline styles, Outlet SMU Builds, and Inline styles sold at
to this litigation, plaintiffs purchased eight Outlet SMU
Builds in seven different styles. Specifically, the following
chart summarizes such purchases:
SMU Style No.
Mr. Village Jacket (Gray)
Wildflower Woodlands Dress (Fuschia)
Sunset Hill Shorts (Beige)
Hopewell Bay Long Sleeve Shirt (Gray)
Cascade Trail Jacket (Green)
Moring Light Hooded Jacket fWiite)
Cool Camper II Polo (Purple)
assert that since the beginning of the class period, they
have produced approximately 580 Outlet SMU Builds. Defendants
continue to utilize the same price tag practices with regard
to the same.
Motions to Exclude Expert Reports
702 permits opinion testimony by an expert as long as the
witness is qualified and their opinion is relevant and
reliable. Fed.R.Evid. 702. An expert witness may be qualified
by “knowledge, skill, experience, training, or
education.” Fed.R.Evid. 702. The admissibility of an
expert opinion requires a three-step analysis:
The admissibility of expert testimony, Rule 702, requires
that the trial court make several preliminary determinations,
Rule 104(a). The trial court must decide whether the witness
called is properly qualified to give the testimony sought. A
witness may be qualified as an expert on the basis of either
knowledge, skill, experience, training, or education or a
combination thereof, Rule 702. The trial court must further
determine that the testimony of the expert witness, in the
form of an opinion or otherwise, will assist the trier of
fact, i.e., be helpful, to understand the evidence or to
determine a fact in issue, Rule 702(a). Finally the trial
court must determine that as actually applied in the matter
at hand, Rule 702(d), to facts, data, or opinions
sufficiently established to exist, Rule 702(b), including
facts, data, or opinions reasonably relied upon under Rule
703, sufficient assurances of trustworthiness are present
that the expert witness' explanative theory produced a
correct result to warrant jury acceptance, i.e., a product of
reliable principles and methods, Rule 702(c).
H. Graham, 5 Handbook of Fed. Evid. § 702:1 (7th ed.)
Rule 703, expert opinion may be based on three possible
sources: firsthand knowledge; admitted evidence; and facts or
data not otherwise admitted, if they are the kind of
information on which experts in the particular field
reasonably would rely in forming opinions on the subject.
See Victor J. Gold, 29 Fed. Prac. & Proc. Evid.
§ 6274 (2d ed.) At the class certification stage, courts
analyze challenges to expert testimony under the standards
set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). See Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011).
“[A]t this early stage, robust gatekeeping of expert
evidence is not required; rather, the court should ask only
if expert evidence is useful in evaluating whether class
certification requirements have been met.” Culley
v. Lincare Inc., No. 15-CV-00081-MCE-CMK, 2016 WL
4208567, at *1 (E.D. Cal. Aug. 10, 2016) (quoting Tait v.
BSH Home Appliances Corp., 289 F.R.D. 466, 492-93 (C.D.
Cal. 2012). The trial judge has discretion to determine
reasonable measures of reliability. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 153 (1999).
the proponent of expert testimony has the burden of proving
admissibility in accordance with Rule 702. Fed.R.Evid. 702,
Advisory Committee Notes (2000 amendments). An expert should
be permitted to testify if the proponent demonstrates that:
(i) the expert is qualified; (ii) the evidence is relevant to
the suit; and (iii) the evidence is reliable. See
Thompson v. Whirlpool Corp., No. C06-1804-JCC, 2008 WL
2063549, at *3 (W.D. Wash. May 13, 2008) (citing
Daubert, 509 U.S. at 589-90).
Motion to Exclude Ms. Goldaper
have proffered Ms. Goldaper to opine on the similarities
between the Outlet SMU Builds and their purported Inline
counterparts. Ms. Goldaper reviewed thirty-five distinct
garments, and reached the following four conclusions: (i)
seven Outlet SMU Builds had major material differences from
their Inline counterparts; (ii) nine Outlet SMU Builds had
modest differences from their Inline counterparts; (iii) two
Outlet SMU Builds were counterparts of each other; and (iv)
one of the Outlet SMU Builds had no counterpart whatsoever.
raise two grounds upon which they argue Ms. Goldaper's
expert declaration should be excluded. First, defendants
argue that Ms. Goldaper's opinions and methodology are
unreliable. Second, defendants argue that, in the
alternative, her opinions are irrelevant. Defendants do not
argue that Ms. Goldaper did not employ any particular set
standard or methodology in reaching her conclusions about the
similarities between different garments at issue in this
litigation. (See Goldaper Dep. Tr. 56:90-60:14.)
Additionally, Goldaper herself stated that she could not
identify anyone else in the industry who could have conducted
the same analysis. (Id. Tr. 56:9-60:14, 68:7-22.)
Thus, defendants contend, Goldaper's conclusions are only
her personal opinions, and her method results in a high rate
of error. Defendants' arguments ignore the actual
analysis conducted by Ms. Goldaper, and the expertise that
she brings to bear on such analysis.
Goldaper has been in the fashion industry for forty-five
years, taught as a part-time faculty member at the Fashion
Institute of Design & Merchandising for approximately
thirty years, served as an apparel expert for the United
States Agency for International Development, and offered
expert opinions comparing garments for purposes of copyright
disputes. (Goldaper Rpt. ¶¶ 3-8.) Given her
expertise, Ms. Goldaper compared the functional and aesthetic
components of the Outlet SMU Builds and their purported
Inline counterparts, and on the basis of this comparison,
identified whether the differences were “major”
or “modest” or whether there were no Inline
counterparts. Ms. Goldaper testified that, although the
descriptions she ultimately employed-“major” or
“modest”-may not be standard throughout the
industry, the method she used to compare garments was an
“accepted practice.” (Id. at 58:2-9.)
Based on her extensive experience in the fashion industry,
the Court finds Ms. Goldaper has sufficient expertise to
opine on the degree of similarity between the different
standard for relevance is not high. Federal Rule of Evidence
40 defines as relevant evidence which has any tendency to
make the existence of a fact that is of consequence to the
determination of the action more probable or less probable
than it would be without such evidence. This rule simply
requires that the evidence “logically advance a
material aspect of the party's case.” Estate of
Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th
Cir. 2014) (internal quotations and citation omitted).
contend the case centers only on two issues, and that Ms.
Goldaper did not opine on either, namely: (i) whether each
Outlet SMU Build is similar to an Inline counterpart style
and (ii) what the difference is between the value of the
garments plaintiffs' purchased and the prices they paid.
The Court disagrees. Although Ms. Goldaper admits that she
did not opine on the value of any particular Outlet SMU Build
relative to its purported Inline counterparts, she did not,
as defendants argue, concede that she does not opine on the
similarities between Outlet SMU Builds and the Inline styles.
The following is the exact colloquy cited by defendants:
“Q: Were you asked to render an opinion one way or the
other about whether a pair of items were similar? A:
Specifically if they were similar or not? I was asked to do
exactly what it says in No. 13, and I was limited to
answering that.” (Goldaper Dep. Tr. 96:7-11.) Paragraph
13 of her opinion reads thus:
As an apparel expert with over 45 years of experience in the
fashion industry, I am of the opinion(s) that: None of the
outlet-exclusive styles I reviewed were identical to an
inline style. Of the 18 total Outlet SMU Builds I examined, 7
have major material differences from their inline
counterparts in design, structure, and/or stylistic detail; 9
have modest stylistic differences compared to their inline
counterparts; 1 has no inline counterpart but has modest
stylistic differences from another Outlet SMU Build that it
is based on; and 1 has no counterpart design at all.
(Dkt. No. 61-4 at 6.) Thus, Ms. Goldaper has performed a
comparison describing the degree of differences that exist
between the Outlet SMU Builds and their Inline counterparts.
Defendants themselves have placed such comparison at issue by
arguing that all they need show to escape liability is that
the Outline SMU Builds were similar enough to their Inline
counterparts such that the reference prices used were
accurate and valid. Ms. Goldaper's opinion directly
addresses such issue, and is therefore relevant.
the Court Denies defendants' motion to exclude Ms.
Goldaper's expert declaration.
Motion to Exclude Dr. Compeau
proffer Dr. Compeau as an expert on consumer behavior.
Specifically, Dr. Compeau provides the following four
opinions: (i) a review of the extant literature demonstrates
that consumers are affected and influenced by reference
prices; (ii) defendants utilize reference prices extensively;
(iii) because the Outlet SMU Builds are never sold anywhere
but the outlet stores and never at the reference price, such
reference prices are false and suggest to the consumer that
they are saving money; and (iv) the reference prices are
deceptive and induce consumers to purchase Outlet SMU Builds
that they otherwise would not have bought.
raise three categories of arguments explaining why the Court
should exclude in whole or in part Dr. Compeau's expert
report: first, Dr. Compeau's use of meta-analyses is
inadmissible; second, in any event, the scientific literature
cited by Dr. Compeau does not support his conclusions; and
third, certain paragraphs improperly opine on corporate
intent or the ultimate questions regarding causation and
seek to exclude Dr. Compeau's report because it reflects
no actual expert analysis but instead merely a summary of
prior studies. Defendants fail to provide support for such
proposition. Courts routinely allow experts to utilize their
expertise in analyzing and compiling research in their field
developed by others. See, e.g., In re Bextra
& Celebrex Mktg. Sales Practices & Prod. Liab.
Litig., 524 F.Supp.2d 1166, 1184 (N.D. Cal. 2007). Here,
Dr. Compeau analyzes the findings developed over thirty years
of peer-reviewed research on reference pricing, and explains
how the evidence in this case is consistent with that
research. Given Dr. Compeau's experience and
qualifications, he is certainly qualified to perform such
analysis. The Court thus rejects defendants' argument on
of Support for Opinions.
next argue that Dr. Compeau's own sources do not support
his opinions. First, they contend that many of Dr.
Compeau's sources are more than fifteen years old.
Second, some of the findings in the articles conflict with
Dr. Compeau's opinions. Neither of these arguments,
however, addresses the admissibility of Dr. Compeau's
opinions, but rather, are pertinent to the weight a fact
finder may give to Dr. Compeau's conclusions. That some
articles may be outdated or may contradict his opinions does
not necessarily render Dr. Compeau's report so unreliable
as to militate toward exclusion of his report.