United States District Court, N.D. California
CLASS CERTIFICATION ORDER RE: DKT. NOS. 242, 244,
245, 252, 260
William H. Orrick United States District Judge
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.
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
argue that Conagra incorrectly and misleadingly labels Parkay
Spray as “Fat Free • Zero Calories” and
“0g Fat • 0 Calories . . . per
serving” and charges a premium price based on those
misrepresentations. Plaintiffs seek certification of various
classes to pursue both damages and injunctive relief.
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
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.
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
[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:
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.
#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).
#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 §
#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 §
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.
#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).
#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).
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.
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
Each State Subclass shall include all class members who
purchased the product in that respective state, subject to
the applicable statutes of limitations.
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).
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).
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.
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.
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.
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).
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.
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.
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 -
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.
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, 
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.
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). 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,
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).
argues that the individual state subclasses are not
certifiable because the named representatives for each state
cannot adequately represent a class in that
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.
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
DAMAGES PURSUANT TO RULE 23(B)(3)
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.
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
Nationwide Unjust Enrichment Class
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.
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.
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. 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.
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.
Multistate Consumer Protection Subclasses
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.
Materiality and Reliance
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.
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
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
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 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.”).
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.” 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. See Reply 22.
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
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.
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. 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.
Differences in States' Laws
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
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
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 ...