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Allen v. Conagra Foods, Inc.

United States District Court, N.D. California

July 22, 2019

ERIN ALLEN, et al., Plaintiffs,
v.
CONAGRA FOODS, INC., Defendant.

          CLASS CERTIFICATION ORDER RE: DKT. NOS. 242, 244, 245, 252, 260

          William H. Orrick United States District Judge

         Plaintiffs in this case bring various claims against defendant Conagra Brands, Inc., on the grounds that the Parkay Spray label misrepresents its true fat and calorie contents. They now seek to certify a nationwide class along with various subclasses of consumers who purchased Parkay Spray in states across the country. Their showing succeeds in part and fails in greater part. I will grant their request as to a significantly narrowed set of subclasses.

         BACKGROUND

         The parties are familiar with the lengthy history of this case, which I summarized in part in my Order on Conagra's motion to dismiss. See 2018 Motion to Dismiss Order (“2018 MTD Order”) [Dkt. No. 231]. I will include here only what is necessary for purposes of resolving the present motion. Plaintiffs Erin Allen, Ofelia Frechette, Shelley Harder, Deana Marr, Tammie Shawley, Brian Smith, and Betty Vazquez bring this proposed class action against Conagra (formerly known as ConAgra Foods, Inc.) alleging unjust enrichment, violations of various states' consumer protection laws, and violations of California law.[1] They argue that Conagra incorrectly and misleadingly labels Parkay Spray as “Fat Free • Zero Calories” and “0g Fat • 0 Calories . . . per serving”[2] and charges a premium price based on those misrepresentations. Plaintiffs seek certification of various classes to pursue both damages and injunctive relief.

         On January 8, 2015, the Honorable Vince Chhabria denied without prejudice plaintiff Allen's motion for class certification on four grounds. Order Denying Class Certification (“2015 Cert. Order”) [Dkt. No. 150]. First, Allen had failed to present a plan for identifying class members in order to satisfy the ascertainability requirement recognized by some courts at that time.[3] Id. at 1-2. Second, she was not an adequate class representative because there was no evidence that she had purchased Parkay Spray with both labels. Id. at 2. Third, damages expert Colin Weir did not explain with enough detail how he would apply the damages methodology to the facts of the case. Id. Finally, Allen had not shown that common questions would predominate over the variations in consumer protection laws recognized by the Ninth Circuit in Mazza v. Am. Honda Motor Co., 666 F.3d 581, 590-91 (9th Cir. 2012). Id.

         After that, the case was stayed and then reassigned to me, new individuals joined Allen as named plaintiffs, and Conagra filed a renewed motion to dismiss, which I granted in part and denied in part. See generally 2018 MTD Order. Plaintiffs again seek certification, arguing they can overcome the deficiencies Judge Chhabria previously found. Second Amended Motion for Class Certification (“Mot.”) [Dkt. No. 245-3]. In their reply brief, plaintiffs responded to Conagra's arguments about differences among state consumer protection laws in the proposed subclasses by eliminating the first proposed subclass and altering some others.[4] Reply [Dkt. No. 260-4] 14 n.14; see Modified Subclasses, Reply App'x 3 (“Modified Subclasses”) [Dkt. No. 256-1]. With these modifications, they seek certification of the following classes:

         Nationwide: All natural persons who purchased Parkay Spray in the United States, at any time from January 1, 2008 to the present and subject to the applicable statutes of limitations (the “Class Period”). The Class will pursue common law unjust enrichment claims.[5]

         Subclass #2: All class members who purchased the product in the following states: Alabama, Alaska, Michigan, Minnesota, Mississippi, and Ohio, subject to the applicable statutes of limitations. Subclass #2 will pursue claims arising under the following consumer protection statutes: Ala. Code § 8-19-5(27); Alaska Stat. § 45.50.471(a); Mich. Comp. Laws Ann. § 445.903(c), (e), (g); Minn. Stat. § 325D.44(5), (7), (10); Miss. Code § 75-24-5(2)(e), (g), (i); and Ohio Rev. Code § 4165.02(A)(7), (9), (11).

         Subclass #3: All class members who purchased the product in the following states: District of Columbia, Florida, Missouri, Montana, New Jersey, New York, Rhode Island, Vermont, and Washington, subject to the applicable statutes of limitations. Subclass #3 will pursue claims arising under the following consumer protection statutes: D.C. Code § 28-3904; Fla. Stat. Ann. § 501.204; La. Rev. Stat. Ann. § 51:1405(A); Mo. Rev. Stat. § 407.020(1); Mont. Code § 30-14-103; N.H. Rev. Stat. § 358-A; N.J. Stat. Ann. § 56:8-2; N.Y. Gen. Bus. Law § 349(a); R.I. Gen. Laws § 6-13.1-1(6)(xiii), 6-13.1-2; Vt. Stat. Ann. tit. 9, § 2453(a); and Wash. Rev. Code § 19.86.020.

         Subclass #4: All class members who purchased the product in the following states: California, Georgia, Maryland, Massachusetts, North Carolina, Virginia, and West Virginia, subject to the applicable statutes of limitations. Subclass #4 will pursue claims arising under the following consumer protection statutes: Cal. Bus. & Prof. Code § 17200[6]; Ga. Code. Ann. § 10-1- 393(a), (b); Md. Code Com. Law § 13-301(1); Mass. Gen. L. ch. 93A, § 2(a); N.C. Gen. Stat. § 75-1.1(a)*; Va. Code § 59.1-200(A)(14); and W.Va. Code §§ 46A-6-102(7), 46A-6-104.

         Subclass #5: All class members who purchased the product in the following states: California, Georgia, Maryland, Virginia, and West Virginia, subject to the applicable statutes of limitations. Subclass #5 will pursue claims arising under the under the following consumer protection statutes: Cal. Civil Code § 1770(a)(5), (7), (9); Ga. Code. Ann. § 10-1-393(b)(5), (7), (9); Md. Code Com. Law § 13-301(1); Va. Code § 59.1-200(A)(5), (6), (8); and W.Va. Code § 46A-6-102(7)(E), (G), (I).

         Subclass #6: All class members who purchased the product in the following states: Arkansas, Indiana, and Wyoming, subject to the applicable statutes of limitations. Subclass #6 will pursue claims arising under the following consumer protection statutes: Ark. Code § 4-88-107(a); § 4-88-108(a)(1), (3), (10); Ind. Code § 24-5-0.5-3(a); Ind. Code § 24-5-0.5-3(b)(1), (2), (11); Wyo. Stat. Ann. § 40-12-105(a)(xv); and Wyo. Stat. Ann. § 40-12-105(a)(i), (iii), (x).

         California Subclass: All class members who purchased the product in California at any time from March 21, 2009 to the present. The California Subclass will pursue claims arising under the False Advertising Law (Bus. & Prof. Code § 17500 et seq.), and as well as common law claims of fraud, breach of express warranty, and misrepresentation.

         In the event that I deny any multistate subclass, plaintiffs proposed additional subclasses for those states in which a named plaintiff has purchased the product (i.e., Florida, Georgia, Illinois, Indiana, Michigan, Ohio, and Wisconsin).[7] Each State Subclass shall include all class members who purchased the product in that respective state, subject to the applicable statutes of limitations.

         LEGAL STANDARD

         “Before certifying a class, the trial court must conduct a rigorous analysis to determine whether the party seeking certification has met the prerequisites of Rule 23.” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (internal quotation marks omitted). The party seeking certification has the burden to show, by a preponderance of the evidence, that certain prerequisites have been met. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-50 (2011); Conn. Ret. Plans & Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011).

         Certification under Rule 23 is a two-step process. The party seeking certification must first satisfy the four threshold requirements of Rule 23(a). Specifically, Rule 23(a) requires a showing that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a).

         Next the party seeking certification must establish that one of the three grounds for certification applies. See Fed.R.Civ.P. 23(b). Plaintiffs seek certification under Rule (b)(3), which requires them to establish that “the questions of law or fact common to class members 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.” Fed.R.Civ.P. 23(b)(3). They also seek certification under Rule 23(b)(2) for injunctive relief.

         In the process of class-certification analysis, there “may entail some overlap with the merits of the plaintiff's underlying claim.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 465-66(2013) (internal quotation marks omitted). However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Id. at 466. “Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id.

         DISCUSSION

         As set forth below, Conagra raises numerous challenges to plaintiffs' showing. Plaintiffs have not met their Rule 23 burden with respect to the nationwide unjust enrichment class, but they have met their burden for certification of certain subclasses and individual state classes for purposes of pursuing consumer protection claims.

         I. STANDING

         “The core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). There are three requirements for standing: (1) “the plaintiff must have suffered an injury in fact;” (2) “there must be a causal connection between the injury and the conduct complained of;” and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 560-61 (internal quotation marks, citations, and modifications omitted). “In a class action, standing is satisfied if at least one named plaintiff meets the requirements.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007).

         Conagra argues that the class is defined so broadly that there are putative members who lack Article III standing. Oppo. 21-22. Because “the majority of consumers never used more than the listed 1-5 spray serving size, ” they got the benefit of the bargain-“a cooking spray or topping with zero calories and fat per serving”-and suffered no injury. Id. at 22 (emphasis in original). Conagra's challenge mischaracterizes the injury plaintiffs assert. A “quintessential injury-in-fact” exists when plaintiffs allege that they “spent money that, absent defendants' actions, they would not have spent.” Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011) (citing Gen. Motors Corp. v. Tracy, 519 U.S. 278, 286 (1997)). Plaintiffs make precisely these allegations. The injury they assert is not based on the amount of Parkay Spray they consumed in any particular sitting; instead, it is based having paid a premium price for a product labeled with features it did not have. See Reply 4. These allegations are sufficient to show an economic injury for purposes of standing.

         II. RULE 23(A)

         Conagra challenges plaintiffs' Rule 23(a) showing on the grounds that they cannot meet the numerosity and typicality requirements and that the plaintiffs are not adequate representatives of the various classes.[8]

         A. Numerosity

         Rule 23(a)(1) requires that the “the class [be] so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The party seeking certification “do[es] not need to state the exact No. of potential class members, nor is a specific No. of class members required for numerosity.” In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005). Courts generally find that numerosity is satisfied if the class includes forty or more members. See Villalpando v. Exel Direct Inc., 303 F.R.D. 588, 605-06 (N.D. Cal. 2014); In re Facebook, Inc., PPC Adver. Litig., 282 F.R.D. 446, 452 (N.D. Cal. 2012). Plaintiffs assert that their class is so numerous that joinder is impracticable because Conagra sold millions of units of Parkay Spray during the class period. Mot. 9. ConAgra counters that plaintiffs have failed to present any evidence of the No. of potential class members who in fact have Article III standing based on their use of a serving size of greater than five sprays. Oppo. 22. Because Conagra's argument is based on a mischaracterization of the injury plaintiffs assert, it fails for the same reasons articulated above. See supra Section I - Standing.

         B. Commonality

         Rule 23 requires that there be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). Plaintiffs must show that the class members have suffered “the same injury, ” meaning their claims “depend upon a common contention” that is of such a nature that “determination of its truth or falsity will resolve an issue that is central to the validity of each [claim] in one stroke.” Dukes, 564 U.S. at 350 (internal quotation marks and citation omitted). Plaintiffs must demonstrate not merely the existence of a common question, but rather “the capacity of classwide proceedings to generate common answers apt to drive the resolution of the litigation.” Id. (internal quotation marks and emphasis omitted). For purposes of Rule 23(a)(2), “even a single common question will do.” Id. at 359 (internal quotation marks and modifications omitted). Plaintiffs assert the following common questions: (1) whether the “Fat Free • Zero Calories” and “0g Fat • 0 Calories . . . per serving” representations violate federal and state labeling laws; (2) whether Conagra received a benefit that it would be inequitable for it to retain without compensating plaintiffs; and (3) whether the representations were likely to deceive consumers. Conagra does not oppose plaintiffs' contention that there are at least these questions in common.

         C. Typicality

         “The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (internal quotation marks and citation omitted). Class certification is not appropriate if unique defenses threaten to preoccupy the class representatives and thus cause absent members to suffer. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). But, “the defense of non-reliance is not a basis for denial of class certification.” Id. at 509. Plaintiffs assert that their claims are typical of other class members because they purchased Parkay Spray with both labels, [9] believed it did not contain any fat or calories, paid a price premium based on that belief, and now seek restitution of that price premium. Mot. 12. Conagra counters that the named plaintiffs have in fact had “a variety of unique experiences with Parkay Spray.” Oppo. 22.

         None of Conagra's challenges to typicality overcome plaintiffs' showing. First it asserts that the plaintiffs are subject to non-reliance defenses. Oppo. 23 (asserting that plaintiff Shawley, for example, is subject to a one-off defense because she purchased Parkay Spray after another person recommended it rather than after her own review of the label); Reply 5. The Ninth Circuit has foreclosed Conagra's non-reliance argument as a basis for denying class certification. See Ellis, 657 F.3d at 984; see also Zakaria v. Gerber Prods. Co., No. LA CV15-00200, 2016 U.S. Dist. LEXIS 184861, at *14-15 (C.D. Cal. Mar. 23, 2016) (noting that proposed class representatives are not atypical just because the representations may not have been the only cause, “or even the predominant or decisive factor, ” influencing their decision to buy a product) (internal quotation marks omitted). Second, Conagra argues that the class representatives used Parkay Spray in an atypical way by removing the spray top in order to dispense multiple tablespoons in a single serving rather than complying with the “typical” use of one to five sprays, as determined by its consumer survey. Oppo. 22-23; see Declaration of Sarah Butler (“Butler Decl.”) [Dkt. No. 253-24] ¶¶ 46-48. But the typicality inquiry goes to “the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.” Hanon, 976 F.2d at 508; Simpson v. Fireman's Fund Ins. Co., 231 F.R.D. 391, 396 (N.D. Cal. 2005) (“In determining whether typicality is met, the focus should be on the defendants' conduct and plaintiff's legal theory, not the injury caused to the plaintiff.”) (internal quotation marks and citation omitted).[10] Here, plaintiffs' legal theory centers on mislabeling and premium pricing, which are typical of the class members' claims. Reply 7. Plaintiffs point to their individual testimony that they viewed and relied on the Parkay Spray labeling. Reply 5; Deposition of Erin Allen (“Allen Depo.”), Patek Decl. Ex. 48 [Dkt. No. 259-1] 54:25-55:4, 95:10-19; Deposition of Deana Marr (“Marr Depo.”), Patek Decl. Ex. 51 [Dkt. No. 259-4] 42:13-25, 50:22-51:3; Deposition of Brian Smith (“Smith Depo.”), Patek Decl. Ex. 53 [Dkt. No. 259-6] 16:12-17:13, 33:13-20, 39:21-24; Deposition of Tammie Shawley (“Shawley Depo.”), Patek Decl. Ex. 52 [Dkt. No. 259-5] 58:1-12, 75:21-76:9; Deposition of Shelley Harder (“Harder Depo.”), Patek Decl. Ex. 50 [Dkt. No. 259-3] 25:1-23, 29:1-13; Deposition of Ofelia Frechette (“Frechette Depo.”), Patek Decl. Ex. 49 [Dkt. No. 259-2] 45:1-25, 54:19-25, 55:24-56:15.

         D. Adequacy

         Finally, to establish adequacy under Rule 23(a)(4), named plaintiffs must show that they “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). “To determine whether named plaintiffs will adequately represent a class, courts must resolve two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Ellis, 657 F.3d at 985 (internal quotation marks omitted).

         Conagra argues that the individual state subclasses are not certifiable because the named representatives for each state cannot adequately represent a class in that state.[11] First, named plaintiffs lack standing to pursue injunctive relief because they have no desire to purchase Parkay Spray in the future. Oppo. 20 n.16, 23. But plaintiffs raise deposition testimony that indicates they “continue to seek reduced fat and calorie products while grocery shopping” and would buy Parkay Spray if they could trust its labeling. Reply 6; see Allen Depo. 96:11-13; Harder Depo. 120:9-122:9; Smith Depo 25:17-26:13; see also Marr Depo. 128:24-129:21 (noting that she might buy Parkay Spray if it were correctly labeled with a low amount of fat and calories even if the amount was not zero); Shawley Depo. 125:20-126:3 (noting that if Parkay Spray were correctly labeled, she might buy it but would use it sparingly); Frechette Depo. 84:15-24 (noting that low fat, calorie, and cholesterol products are important because of a family history of heart disease). Conagra next argues that plaintiffs Allen, Shawley, Marr, and Frechette would be inadequate class representatives because they failed to read or rely on the “per serving” language on the Parkay Spray label. Oppo. 19-20. This argument fails for the reasons laid out in the discussion of typicality. Conagra does not challenge Gutride Safier's competence to represent the class, and I find that they are competent.

         Having found that named plaintiffs have met their burden on Rule 23(a)'s requirements, I must also evaluate whether they meet the requirements for certification under Rule 23(b)(3) for damages and Rule 23(b)(2) for injunctive relief.[12]

         III. DAMAGES PURSUANT TO RULE 23(B)(3)

         To proceed under Rule 23(b)(3) for damages, plaintiffs must show that it is superior to proceed as a class action and “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). The predominance inquiry “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 623 (1997). “The focus is on the relationship between the common and individual issues.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1019 (9th Cir. 2011) (internal quotations and citation omitted). Predominance is established if “common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication.” Mazza, 666 F.3d at 589. Commonality and predominance are related issues, and there is often substantial overlap between the two tests, but the test for predominance is “far more demanding.” Amchein Prods., 521 U.S. at 623-24.

         Conagra argues that plaintiffs cannot show that common issues predominate for purposes of their unjust enrichment claims, their consumer protection claims, or their damages calculations. Oppo. 7-12; 13-18. ConAgra also challenges the manageability and superiority of this case proceeding as a class action.

         A. Nationwide Unjust Enrichment Class

         Conagra asserts that plaintiffs fail the predominance requirement on their unjust enrichment claim because they have not met their burden to show that it would be constitutional to apply California law to a nationwide class. Oppo. 7. Because each state's law would have to apply, individualized issues predominate over common ones. Id.

         Under Mazza, “[a] federal court sitting in diversity must look to the forum state's choice of law rules to determine the controlling substantive law.” 666 F.3d at 589. Under California's choice of law rules, it is plaintiffs who “bear[ ] the initial burden to show that California has ‘significant contact or significant aggregation of contacts' to the claims of each class member.” Id. The burden then shifts to defendants “to demonstrate ‘that foreign law, rather than California law, should apply to class claims.” Id. at 590.

         California law may only apply to nationwide class claims where “the interests of other states are not found to outweigh California's interest in having its law applied.” Id. This determination entails a three-step governmental interest test: first, I must determine “whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different”; second, if there is a difference, I must “examine[ ] each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists”; and third, if there is a true conflict, I must “carefully evaluate[ ] and compare[ ] the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state, and then ultimately appl[y] the law of the state whose interest would be more unpaired if its law were not applied.” Id. Plaintiffs cannot meet their initial burden under California's choice of law rules. California does not have constitutionally sufficient contact or aggregation of contacts to the claims of each class member. Plaintiffs do not contend that ConAgra is headquartered in California, that Conagra is incorporated under California's laws, or that the challenged statements originated in California. See Mazza, 666 F.3d at 590 (noting that the defendant's corporate headquarters were in California, as was the advertising agency that produced the allegedly fraudulent misrepresentations). According to the plaintiffs' expert, about 1 percent of Parkay Spray sales since March 2009 have occurred in California.[13] See Declaration of Colin Weir (“Weir Decl.”), Table 1 [Dkt. No. 242-6]. Plaintiffs' reply brief does not address Conagra's arguments on this issue. Because plaintiffs do not make the threshold showing, the burden does not shift to Conagra and there is no need to assess whether other states' interests outweigh California's.

         Given that it would be unconstitutional to apply California unjust enrichment law to the claims of a nationwide class, the laws from all 50 states would have to apply. Accordingly, plaintiffs cannot meet their burden to show that common questions of fact or law predominate over individualized questions as required by Rule 23(b)(3). See Stitt v. Citibank, No. 12-CV-03892-YGR, 2015 WL 9177662, at *4 (N.D. Cal. Dec. 17, 2015) (“No court in this Circuit has certified a nationwide unjust enrichment class since Mazza.”). I will deny plaintiffs' motion for certification of a nationwide unjust enrichment class. Plaintiffs have not sought certification of any other classes to pursue unjust enrichment claims.

         B. Multistate Consumer Protection Subclasses

         Conagra argues plaintiffs have failed to meet their burden for certification of the proposed consumer protection subclasses because: (1) common questions into materiality and reliance do not predominate; (2) plaintiffs have not shown that damages are capable of calculation on a classwide basis; (3) there are material differences between the laws of the states in the various subclasses; and (4) it is neither manageable nor superior to proceed on a classwide basis.

         1. Materiality and Reliance

         Conagra argues that individualized questions into materiality and reliance will predominate over common questions. Oppo. 23-30. Specifically, plaintiffs cannot show that the alleged misrepresentations would be material to a reasonable consumer, and therefore they will not be entitled to a classwide presumption of reliance under the state laws that permit such a presumption.[14]

         Under California law, “[q]uestions of materiality and reliance are determined based upon the reasonable consumer standard, not the subjective understandings of individual plaintiffs.” Kumar v. Salov N. Am. Corp., No. 14-CV-2411-YGR, 2016 WL 3844334, at *7 (N.D. Cal. July 15, 2016); see Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008). “A representation is material . . . if a reasonable consumer would attach importance to it or if the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action.” Hinojos v. Kohl's Corp., 718 F.3d 1098, 1107 (9th Cir. 2013), as amended on denial of reh'g and reh'g en banc (July 8, 2013) (internal quotation marks omitted). A class of plaintiffs can make the required materiality showing without individualized proof by establishing (with, for example, market research) that the statements would be material to a reasonable member of the purchaser class. Kumar, 2016 WL 3844334, at *8. A showing of materiality is sufficient to raise an inference of classwide reliance. Ehret v. Uber Techs., Inc., 148 F.Supp.3d 884, 902 (N.D. Cal. 2015); Mullins v. Premier Nutrition Corp., No. 13-CV-01271-RS, 2016 WL 1535057, at *5 (N.D. Cal. Apr. 15, 2016) (noting that the reasonable belief of an ordinary consumer was amenable to common proof and the defendant's marketing research provided evidence of materiality).

         For the state laws that follow a reasonable person standard for assessing materiality, plaintiffs present sufficient evidence to show that they could be entitled to a presumption of reliance. They put forth their own survey evidence, which shows that “consumers were willing to pay a 34-40% premium based on their understanding that the food topping was ‘fat free' and had ‘0g Fat' and ‘Zero Calories.” Mot. 19; Declaration of Michael Dennis (“Dennis Decl.”) [Dkt. No. 187] ¶ 71. Plaintiffs also raise testimony from Conagra witness Patrick Fitzgerald, who acknowledged that health-conscious consumers are looking for products with “reduced calories, less cholesterol, zero cholesterol, ” and less fat.[15] Declaration of Colin B. Weir (“Weir Decl.”) [Dkt. No. 242-6] ¶¶ 12-14; see also Id. ¶ 15 (citing testimony from Catherine Bartholomew, who acknowledged some consumers' desire for products that are “better for you”). Plaintiffs' exhibits show that Conagra was aware that consumers were interested in healthier products. See Declaration of Anthony Patek (“Patek Decl.”) Ex. 28 [Dkt. No. 185-2]; Declaration of Lee M. Gordon (“Gordon Decl.”) Ex. 7 [Dkt. No. 149-9] (document entitled “How to Position Table Spreads for Future Growth”). Conagra argues that plaintiffs misinterpret its documents[16] and that plaintiffs' own data undermines their claims because it shows that brand, price, and product type are more impactful variables than the disputed representations are. Oppo. 24. But materiality does not require plaintiffs to show that the representations were the “sole or even the decisive cause” of their purchase. See Allen v. Hyland's Inc., 300 F.R.D. 643, 668 (C.D. Cal. 2014) (quoting In re Tobacco II Cases, 46 Cal.4th 298, 328 (2009)) (internal formatting omitted); see also Hinojos v. Kohl's Corp., 718 F.3d 1098, 1107 (9th Cir. 2013), as amended on denial of reh'g and reh'g en banc (July 8, 2013) (“[T]he legislature's decision to prohibit a particular misleading advertising practice is evidence that the legislature has deemed that the practice constitutes a ‘material' misrepresentation, and courts must defer to that determination.”).

         Conagra also argues that plaintiffs are not entitled to a classwide presumption of reliance because the challenged statements were not uniform; instead, in 2009 Conagra approved a new label that added the language “per serving.”[17] As Judge Chhabria previously concluded, a jury could find that the first label was misleading while the second label was not. Class Cert. Order 2. But this does not defeat plaintiffs' showing on materiality and reliance; rather, it requires that each class be divided into two time periods-one before and another after the label change-as plaintiffs suggest in their reply.[18] See Reply 22.

         Conagra next argues that individualized inquiries will be necessary because each person will likely have a different interpretation of the challenged statements. In addition, those who viewed the label as a whole would have realized that the statements were limited to the serving size articulated on the bottle, while understanding that, given the ingredients, the bottle as a whole contained some fat and calories. See Oppo. 25-27. Where individuals are likely to have different understandings for a word with no fixed meaning, this lack of cohesion can prevent plaintiffs from satisfying the predominance requirement. See Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726, at *17 (N.D. Cal. June 13, 2014) (noting that “there is no fixed meaning for the word ‘natural'”). But where the representations have a clearer meaning and the question of an ordinary consumer's reasonable belief is “amenable to common proof, ” the class may be certified. See Mullins v. Premier Nutrition Corp., No. 13-CV-01271-RS, 2016 WL 1535057, at *5 (N.D. Cal. Apr. 15, 2016) (noting the defendant “expressly represent[ed]” that the product would “lubricate and improve the flexibility of joints”). Conagra's arguments are not persuasive. By contrast with the word “natural, ” zero means zero just as per serving means per serving; the interpretation of the challenged statements is susceptible to common proof. At this stage, the plaintiffs have presented sufficient to allow a fact finder to conclude that a reasonable consumer would have considered the challenged statements material.

         Finally, Conagra argues that named plaintiffs' own testimony would make a classwide presumption of reliance impossible because they did not in fact rely on the challenged statements. Oppo. 28-29. It alleges some did not read the “per serving” language, and plaintiff Shawley purchased Parkay Spray after another person recommended it, not because of the label. Id. Conagra can raise these and other arguments later in the litigation, but plaintiffs have made a sufficient showing at the class certification stage. Plaintiffs have put forth evidence to allow a fact finder to conclude they are entitled to a classwide presumption of reliance in the states that permit one.

         Key to my conclusions in this Order is the absence of any arguments by plaintiffs that common issues would predominate even if a state's law requires proof of individual reliance. Instead, they argue that the states in their proposed subclasses “either do not require reliance or use an objective test for establishing it on a classwide basis.” Mot. 20. In response to Conagra's challenges that such individual showings would be required, plaintiffs responded only by quoting, “‘the Ninth Circuit does not treat the need for individual inquiries into reliance and damages as necessarily precluding certification as long as common issues focusing on the defendant's conduct predominate.'” Reply Chart 2, 5, 7, 8 (citing Gold v. Lumber Liquidators, Inc., 323 F.R.D. 280, 292 (N.D. Cal. 2017). That quote-completely without applying the principle to the facts of this case or the requirements of each state's laws-is not sufficient to meet plaintiffs' burden to show that common issues would predominate even in the face of individual determinations regarding reliance.[19] Accordingly, for plaintiffs' subclasses, where they do not successfully show either that (1) reliance is not required under a state's law or (2) the state's law allows them to prove reliance on a classwide basis, plaintiffs have not met their Rule 23 burden. My determination is limited to the arguments made in the plaintiffs' papers and should not be taken as a conclusion that the need for individual proof of reliance would defeat predominance in every case.

         2. Differences in States' Laws

         Conagra argues that there are material differences between the state laws invoked by the plaintiffs in their various subclasses, and these differences predominate. See Oppo. 17-18; see generally Conagra App'x. In response to some of Conagra's critiques, plaintiffs in their reply agreed to eliminate the first subclass and remove certain states that Conagra challenged.[20]

         a. Subclass #2

         Plaintiffs seek to certify a class of individuals who purchased Parkay Spray in the following states: Alabama, Alaska, Michigan, Minnesota, Mississippi, and Ohio, subject to the applicable statutes of limitations. Subclass #2 will pursue claims arising under the following consumer protection statutes: Ala. Code § 8-19-5(27); Alaska Stat. § 45.50.471(a); Mich. Comp. Laws Ann. § 445.903(c), (e), (g); Minn. Stat. § 325D.44(5), (7), (10); Miss. Code § 75-24-5(2)(e), (g), (i); and Ohio Rev. Code § 4165.02(A)(7), (9), (11). Plaintiffs support this grouping as follows: “All states in this class have laws that prohibit specific enumerated acts (misrepresenting characteristics of the product; misrepresenting the quality of the product; advertising goods with the intent not to sell as advertised). For each state in the class, the misrepresentation must have the capacity to deceive consumers. No. state requires reliance; all require proximate causation. No. state requires knowledge; intent is only required for one of the enumerated acts.” See Modified Subclasses. My discussion of each state and Conagra's challenges[21] follows.

         i. Alabama

         Plaintiffs seek to pursue claims under Alabama's Deceptive Trade Practices Act, Ala. Code § 8-19-5(27). But that law provides, “A consumer or other person bringing an action under this chapter may not bring an action on behalf of a class.” Ala. Code § 8-19-10(f). Instead, only the Attorney General or district attorney may bring class actions. Id. § 8-19-10(g). Courts have found differences such as this one material. See Darisse v. Nest Labs, Inc., No. 5:14-CV-01363-BLF, 2016 WL 4385849, at *10 (N.D. Cal. Aug. 15, 2016) (noting that a prohibition on class actions was “plainly material”). Plaintiffs do not address Conagra's arguments that it would be ...


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