Jackie Fitzhenry-Russell et al v. Keurig Dr Pepper Inc., et al, No. 5:2017cv00564 - Document 261 (N.D. Cal. 2018)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL. Re: Dkt. Nos. 224 , 226 , 228 , 234 , 236 , 242 , 243 , 246 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 11/2/2018)
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Jackie Fitzhenry-Russell et al v. Keurig Dr Pepper Inc., et al Doc. 261 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 JACKIE FITZHENRY-RUSSELL and GEGHAM MARGARYAN, United States District Court Northern District of California 11 Plaintiffs, 12 v. 13 14 KEURIG DR. PEPPER INC. and CANADA DRY MOTT’S INC., 15 Defendants. 16 Case No.17-cv-00564-NC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL Re: Dkt. Nos. 224, 226, 228, 234, 236, 242, 243, 246 In this class action, plaintiffs Jackie Fitzhenry-Russell and Gegham Margaryan 17 18 allege defendants Keurig Dr. Pepper Inc. and Canada Dry Mott’s Inc.1 defrauded 19 California consumers by marketing their Canada Dry Ginger Ale (“Canada Dry”) as 20 “Made from Real Ginger.” According to Plaintiffs, Dr. Pepper defrauds consumers 21 because Canada Dry is made with a ginger derivative, ginger oleoresin, not ginger root. 22 Plaintiffs also allege that Canada Dry contains less ginger than consumers are led to 23 expect. Finally, Plaintiffs allege that Canada Dry’s labeling deceives consumers about its 24 health benefits. Dr. Pepper moves for summary judgment on all three of Plaintiffs’ theories, arguing 25 26 that no reasonable consumer would be misled by Canada Dry’s labeling. 27 28 1 Though the Court recognizes that there are two related defendants in this action, the Court will refer to defendants collectively as “Dr. Pepper” in the singular. Dockets.Justia.com Because the Court finds that there are genuine disputes of material fact, the Court 1 2 GRANTS IN PART Dr. Pepper’s motion for summary judgment with regards to Plaintiffs’ 3 claim that Dr. Pepper’s “Made from Real Ginger” label is misleading as to the amount of 4 ginger in Canada Dry. The Court DENIES IN PART Dr. Pepper’s motion with regards to 5 Plaintiffs’ claim that Dr. Pepper’s label is misleading as to the form of ginger in and health 6 benefits of Canada Dry. The Court also GRANTS IN PART and DENIES IN PART the 7 parties’ motions to seal. 8 I. 9 United States District Court Northern District of California 10 Background A. Procedural Background The operative complaint alleges claims under (1) the Consumer Legal Remedies 11 Act, Cal. Civ. Code § 1750; (2) the false advertising law, Cal. Bus. & Prof. Code § 17500; 12 (3) common law fraud; and (4) unlawful, unfair, and fraudulent business practices, Cal. 13 Bus. & Prof. Code § 17200. Dkt. No. 97. On June 26, 2018, the Court certified a class of 14 “[a]ll persons who, between December 28, 2012 and the present, purchased any Canada 15 Dry Ginger Ale products in the state of California.” Dkt. No. 199 at 37. 16 17 B. Undisputed Facts Canada Dry is a ginger ale made and sold by Dr. Pepper. Dr. Pepper makes Canada 18 Dry using ginger extract and a few other ingredients to capture the traditional blend of 19 “citrus and ginger” flavors. See Dkt. No. 227-5 (“Kramer Depo.”) at 56:7–18. The ginger 20 extract used by Dr. Pepper is “ginger oleoresin,” which is made by Dr. Pepper’s flavor 21 manufacturer, Givaudan. See Dkt. No. 227-11 (“Hassel Depo.”) at 12:4–15; 33:6–16; 22 38:16–17. Givaudan imports dry ginger root, grinds it, and mixes it with other compounds 23 to “pull[] flavor out of” the ginger and create ginger oleoresin. Id. at 14:19–22; 23:18; 24 24:22–25:15. According to Mr. Hassel, a scientist working for Givaudan, the process for 25 making ginger oleoresin is similar to creating vanilla extract or coffee. Id. at 24:22–24; 26 27:7–16. From 2012 to 2018, Givaudan processed around 1.5 million pounds of dry 27 ginger root to create ginger oleoresin for Dr. Pepper. Id. at 50:13–21. 28 2 1 II. Legal Standard United States District Court Northern District of California 2 The parties agree on the legal standard that applies to this motion. Under Federal 3 Rules of Civil Procedure 56(a), a court “shall grant summary judgment if the movant 4 shows that there is no genuine dispute as to any material fact and the movant is entitled to 5 judgment as a matter of law.” Under Rule 56, the moving party bears the initial burden to 6 demonstrate the absence of a genuine issue of material fact. Once the moving party meets 7 its burden, then the non-moving party must cite “particular parts of materials in the record” 8 showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp. v. 9 Catrett, 477 U.S. 317, 324 (1986). A “genuine issue” exists if a reasonable jury could find 10 for the non-moving party. E.g., Open Text v. Box, Inc., No. 13-cv-04910-JD, 2015 WL 11 428365, at *1 (N.D. Cal. Jan. 30, 2015). On summary judgment, the Court does not make 12 credibility determinations or weigh conflicting evidence, as these determinations are left to 13 the trier of fact at trial. Bator v. State of Hawaii, 39 F.3d 1021, 1026 (9th Cir. 1994). A 14 party may move for summary judgment on an entire “claim or defense—or the part of each 15 claim or defense.” Fed. R. Civ. P. 56(a). 16 III. Discussion 17 18 A. Motion for Summary Judgment “Courts generally consider claims under California's Unfair Competition Law 19 (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) 20 together.” In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 982 (C.D. Cal. 2015). 21 California law makes it unlawful for a business to “disseminate any statement ‘which is 22 untrue or misleading, and which is known, or which by the exercise of reasonable care 23 should be known, to be untrue or misleading . . . .’” Cal. Bus. & Prof. Code § 17500; see 24 also Cal. Civ. Code § 1750; Cal. Bus. & Prof. Code § 17200. 25 False advertising claims are governed by the “reasonable consumer” test. Williams 26 v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Under that standard, plaintiffs 27 must “show that members of the public are likely to be deceived.” Id. (internal citations 28 and quotations omitted). California law prohibits “not only advertising which is false, but 3 1 also advertising which[,] although true, is either actually misleading or which has a 2 capacity, likelihood or tendency to deceive or confuse the public.” Kasky v. Nike, 27 Cal. 3 4th 939, 951 (2002) (quoting Leoni v. State Bar, 39 Cal. 609, 626 (1985)). 4 The only representation at issue here is Dr. Pepper’s claim that Canada Dry is 5 “Made from Real Ginger.” Plaintiffs allege that this statement is deceiving for three 6 reasons: (1) it implies that Canada Dry is made from ginger root; (2) it implies that Canada 7 Dry contains a significant amount of ginger; and (3) it misleads consumers about Canada 8 Dry’s health benefits. 9 1. Canada Dry is literally made in part “from” real ginger—it is made using ginger 10 United States District Court Northern District of California Whether Dr. Pepper Implies Canada Dry is Made from Ginger Root 11 oleoresin, which is made from ginger root.2 Ginger root is the part of ginger that is 12 normally consumed. See Ginger Definition, MERRIAM-WEBSTER., https://www.merriam- 13 webster.com/dictionary/ginger (“a thickened pungent aromatic [root] that is used as a spice 14 and sometimes medicinally”). Plaintiffs, however, argue that Dr. Pepper’s label, “Made 15 from Real Ginger,” implies that Canada Dry is made using ginger root, not ginger 16 oleoresin. See Dkt. No. 97 (“SAC”) ¶ 29. Under California law, statements that are 17 literally true may still be unlawful if they are likely to mislead the public. See Kasky, 27 18 Cal. 4th at 951. However, “[l]ikely to deceive implies more than a mere possibility that a 19 [statement] might conceivably be misunderstood by some few consumers viewing it in an 20 unreasonable manner.” Lavie v. Proctor & Gamble Co., 105 Cal. App. 4th 496, 508 21 (2003). In Colgan v. Leatherman Tools Group, Inc., 135 Cal. App. 4th 663, 683 (2006), the 22 23 California Court of Appeal held that a tool manufacturer’s representation that its products 24 were “Made in U.S.A.” was deceptive as a matter of law. Although the manufacturer’s 25 representations were literally true because parts of their products were made or assembled 26 27 28 Plaintiffs argue that Dr. Pepper’s “Made from Real Ginger” label is literally false. See Dkt. No. 237 at 27. The evidence before the Court does not support Plaintiffs’ argument. It is undisputed that Dr. Pepper makes Canada Dry from ginger oleoresin, which is made from real ginger. See, e.g., Kramer Depo. at 56:7–18. 4 2 1 in the United States, “[s]ignificant working parts of the tools were [made] in foreign 2 countries.” Id. at 673. Because “[a] reasonable consumer of Leatherman’s products with 3 the ‘Made in U.S.A.’ representation would not expect such foreign manufacturing[,]” the 4 court concluded that the manufacturer’s representations were deceptive. Id. at 682. The 5 court also affirmed summary judgment against the manufacturer because the manufacturer 6 “presented no evidence suggesting a lack of deception . . . [and] the evidence not in dispute 7 establishes that a significant portion of the various parts of the products were manufactured 8 abroad.” Id. United States District Court Northern District of California 9 Similarly, in Consumer Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 10 1351, 1353 (2003), a satellite television provider was sued over its representation that its 11 system allowed consumers to view schedules “up to 7 days in advance” and that 50 12 channels would be provided. Plaintiffs in Echostar argued that the representations were 13 misleading because the system could only view schedules up to 3 days in advance and that 14 less than 50 channels were available at all hours of the day. Id. at 1357. The television 15 provider argued that the statement only meant that its system had the capacity to show 16 schedules 7 days in advance. Id. at 1362. It also argued that its statement did not imply 17 that 50 channels would be available at all times. Id. The California Court of Appeal 18 conceded that the provider’s arguments were “possible, if technical, interpretations of the 19 statements,” but reiterated that “[a] perfectly true statement couched in such a manner that 20 it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant 21 information, is actionable.” Id. (quoting Day v. AT&T Corp., 63 Cal. App. 4th 325, 332– 22 33 (1998)). 23 Here, Dr. Pepper’s statement that Canada Dry is “Made from Real Ginger” is 24 misleading under Plaintiffs’ first theory if it is likely that reasonable consumers would 25 understand that statement to imply that Canada Dry is made using ginger root, not ginger 26 extract made from ginger root. The Court concludes that Plaintiffs have presented 27 sufficient evidence creating a genuine dispute of material fact on this issue. 28 Plaintiffs presented survey results conducted by Dr. Michael Dennis. In his survey, 5 1 Dr. Dennis asked respondents “what is your understanding of the statement “Made from 2 Real Ginger” on the Canada Dry Ginger Ale?” See Dkt. No. 237-25 (“Dennis Report”) at 3 34. Respondents were given four choices: 4 1. Ginger root, which is part of the ginger plant, not an extract; 5 2. Ginger oil, which is extracted from the ginger root using steam; 6 3. Ginger oleoresin, which is extracted from the ginger root using solvent; and 7 4. None of these. 8 Id. Over 78% of respondents chose ginger root, while less than 5% of respondents chose 9 ginger oleoresin. Id. Based on these responses, a reasonable jury could find that “Made 10 United States District Court Northern District of California 11 from Real Ginger” means it is made directly from ginger root, not ginger extract. Dr. Pepper’s expert, Dr. Rene Befurt, also conducted a survey. In his report, Dr. 12 Befurt replicated Dr. Dennis’s survey using less biased answer choices and found that 13 simply changing the language of the answer choices resulted in a 38-percentage-point 14 swing away from the “ginger root” response. See Dkt. No. 237-39 (“Befurt Report”) at 15 21–22. Specifically, Dr. Befurt asked the same question as Dr. Dennis, but gave 16 respondents the following choices: 17 1. Ginger oil, which is a free-flowing liquid steamed from the ginger root; 18 2. Ginger extractive, which is a syrupy liquid obtained from the ginger root; 19 3. Ginger root, which is a coarse powder processed from the ginger plant; and 20 4. All of these/None of these/Don’t know/Unsure. 21 Id. at 20. In Dr. Befurt’s survey, only 40.59% of respondents chose “ginger root,” while 22 21.34% of respondents choice “ginger extractive.” Id. at 21. Dr. Befurt also ran the 23 survey using hyper-technical language. Id. at 20. In that survey, the results favored a 24 “don’t know” response. Id. at 21. 25 Although Dr. Befurt’s survey sheds much doubt on the validity of Dr. Dennis’s 26 survey results, it is not so overwhelming as to require summary judgment. Dr. Befurt’s 27 own survey suggests that anywhere from 11.54% to 40.59% of consumers may believe that 28 “Made from Real Ginger” implies that Canada Dry is made using ginger root. Dr. Pepper 6 1 insists that Dr. Befurt’s survey results simply shows that the survey methodology used by 2 Dr. Dennis is too unreliable to sustain Plaintiffs’ claim. However, as explained by the 3 Court in is previous Order on class certification, this is a credibility and weight 4 determination that must go before the trier of fact at trial. See Dkt. No. 199 at 10. 5 6 summary judgment is appropriate because the “Made from Real Ginger” claim is not 7 misleading. All of those cases, however, are distinguishable. 8 United States District Court Northern District of California Defendants rely on several federal district court cases to support their argument that For example, in Ries v. Arizona Beverages USA LLC, No. 10-cv-01139-RS, 2013 9 WL 1287416, at *1 (N.D. Cal. Mar. 28, 2013) plaintiffs challenged an iced tea company’s 10 “All Natural” labeling on their beverages because the drinks contained high fructose corn 11 syrup and citric acid. There, the court granted summary judgment in favor of the iced tea 12 company because the plaintiffs provided “neither intrinsic evidence that the labels are false 13 (because HFCS and citric acid are not natural) or extrinsic evidence that a significant 14 portion of the consuming public would be confused by them.” Id. at *7. In contrast, 15 Plaintiffs in this case have provided extrinsic evidence in the form of consumer surveys. 16 Similarly, in Townsend v. Monster Beverage Corporation, 303 F. Supp. 3d 1010, 17 1023 (C.D. Cal. 2018), the district court rejected a claim that a “Consume Responsibly— 18 Max 1 can per four hours, with limit 3 cans per day” label on an energy drink was 19 misleading. In that case, the plaintiffs argued that the label was misleading because 20 consuming three cans per day could be unsafe and the label implied that three cans per day 21 was a “safe level of consumption.” Id. Instead of conducting a survey that tested the 22 “Consume Responsibly” label, however, the plaintiffs conducted a survey testing a “safe 23 consumption” label. Id. The district court rejected the survey because “the term ‘safe 24 consumption’ is materially different from ‘consume responsibly’” and “the exact words 25 matter in false advertising claims.” Id. at 1023–24. Here, Plaintiffs’ survey tested the 26 precise label at issue and specifically tested whether consumers read the “Made from Real 27 Ginger” label to mean “ginger oleoresin, which is extracted from the ginger root using a 28 solvent.” See Dennis Report at 34. 7 1 In short, Plaintiffs have shown there is a genuine issue of material fact as to whether 2 the “Made from Real Ginger” label misleadingly implies that Canada Dry is made with 3 ginger root. Accordingly, the Court DENIES summary judgment on this claim. 4 5 6 7 8 9 10 11 2. Whether Dr. Pepper Implies Canada Dry Has More Than a Trace Amount of Ginger Oleoresin Plaintiffs allege that the “Made from Real Ginger” label implies that Canada Dry contains more than a “trace amount” of ginger compounds. In support of their allegation, Plaintiffs rely on Dr. Manoj Hastak’s opinion, where he discussed the concepts of “interattribute misleadingness” and concludes that consumers would believe that Canada Dry contains “an appreciable amount” of ginger. See Dkt. No. 227-4 (“Hastak Report”) ¶¶ 23, 25. Plaintiffs also rely on Dr. Dana Krueger’s expert report, where he found that Canada United States District Court Northern District of California Dry contained between 0.19 mg/L and 1.44 mg/L of various ginger compounds (see Dkt. 12 13 No. 227-3 (“Krueger Report”) at 4–5) and Ms. Annette Hottenstein’s expert opinion, where she concluded that the ginger content of Canada Dry is too low to be tasted. See 14 15 16 Dkt. No. 228-6 (“Hottenstein Report”) at 21–22. Dr. Pepper only discusses this theory in the context of Plaintiffs’ health benefits claim and counters that Canada Dry’s labeling contains no language regarding the quantity of ginger in the beverage. 17 18 19 As a stand-alone claim, the Court concludes that Plaintiffs’ have not raised a triable issue of fact as to whether the “Made from Real Ginger” label is misleading as to the amount of ginger in Canada Dry. The label makes no claims as to the amount of ginger in 20 Canada Dry. And Plaintiffs presented no admissible evidence showing how much ginger 21 reasonable consumers would expect Canada Dry to contain or even if reasonable 22 consumers are even likely to expect a certain amount of ginger in the beverage. See 23 Chuang v. Dr. Pepper Snapple Group, Inc., No. cv-17-01875-MWF, 2017 WL 4286577, at 24 *15 (C.D. Cal. Sept. 20, 2017) (dismissing claim that a fruit snack did not contain 25 26 sufficient fruit when the “made with Real Fruit” label and packaging makes no claims as to the amount of fruit in the snack). Indeed, it is not even clear how much ginger Canada Dry 27 28 must contain to pass muster under Plaintiffs’ theory. Plaintiffs’ opposition suggests that 8 United States District Court Northern District of California 1 consumers expect Canada Dry to contain more than a “trace amount” (see Dkt. No. 237 at 2 25–26), while Ms. Hottenstein’s opinion suggests it must contain enough ginger such that 3 consumers can taste the ginger (see Hottenstein Report at 21–22), and Dr. Hastak’s 4 opinion argues for “an appreciable amount.” However, nowhere did Plaintiffs point to any 5 evidence that consumers would expect a certain amount of ginger. 6 The only evidence Plaintiffs provide to support their allegation that consumers 7 would likely expect a certain amount of ginger is Dr. Hastak’s opinion. However, Dr. 8 Hastak’s opinion does not engage with the facts of this case. He simply concludes that 9 consumers “do not believe that a marketer would make such a claim that a product is 10 ‘made from’ or ‘contains’ and ingredient . . . if the product contained only trace amounts 11 of the promoted ingredient” without any evidence. See Hastak Report ¶ 24. This high- 12 level theory of consumer behavior is nothing more than ipse dixit. Without Dr. Hastak’s 13 opinion, Plaintiffs offer no evidence to link Dr. Pepper’s label to consumer expectation. 14 The evidence that is available refutes Plaintiffs’ stand-alone theory. For example, 15 in Dr. Pepper’s internal studies regarding the label, respondents expressed skepticism 16 about the amount of ginger in Canada Dry after being exposed to Dr. Pepper’s advertising. 17 See, e.g., Dkt. No. 237-12 at 12, 16. This suggests that reasonable consumers are not 18 misled about the amount of ginger in the beverage. 19 20 21 Accordingly, the Court GRANTS summary judgment on this stand-alone claim. 3. Whether Dr. Pepper Implies Canada Dry Has Health Benefits Plaintiffs allege that the “Made from Real Ginger” label implies that Canada Dry 22 has health benefits or is “better for you” than other sodas. The parties do not dispute that 23 Canada Dry does not provide any measurable health benefit. The Court concludes that 24 Plaintiffs have raised a dispute of material fact for trial. 25 Plaintiffs produced internal documents by Dr. Pepper’s marketing team showing 26 that Dr. Pepper intended to take advantage of the health benefits associated with ginger. 27 See, e.g., Dkt. No. 237-22 at 15. These documents strongly suggest that Dr. Pepper not 28 only intended to take advantage of the health halo of ginger, but also relied on a perceived 9 1 link between “awareness that [Canada Dry] is from real ginger” and health. See, e.g., Dkt. 2 No. 237-12 at 16 (consumer responded that “[i]t is very important (to know that Canada 3 Dry has real ginger in it) because you know there are health benefits so that when you 4 make you’re [sic] choices when it comes to soft drink [sic], you might as well enjoy 5 something that has some benefits.”). Indeed, at least one document, an internal 6 memorandum by Dr. Pepper’s advertising team, concluded that conveying to consumers 7 that Canada Dry was made from real ginger “implied that Canada Dry Ginger Ale was 8 healthier because it contained real ginger.” See Dkt. No. 237-13 at 3. United States District Court Northern District of California 9 The evidence listed above distinguishes this case from cases cited by Dr. Pepper in 10 support of their argument. In Chuang, for example, the court dismissed a false advertising 11 claim alleging that packaging misled consumers into thinking a fruit snack was healthy by 12 claiming it was “made with Real Fruit.” 2017 WL 4286577, at *1. The packaging, 13 however, also stated that the snacks were “not intended to replace fruit in the diet.” Id. at 14 *15. By contrast, in this case, Plaintiffs are not simply alleging that the “Made from Real 15 Ginger” label leads consumers to believe that Canada Dry is “healthy,” but that the “Made 16 from Real Ginger” claim implies that Canada Dry is healthier than other sodas. Plaintiffs 17 are not relying solely on the label, but also rely on Dr. Pepper’s own documents suggesting 18 that “Made from Real Ginger” implies that Canada Dry is healthier than other sodas. 19 Furthermore, Dr. Pepper’s internal marketing documents strongly suggest that Dr. 20 Pepper’s push to get consumers to associate Canada Dry with ginger-related health 21 benefits may have been successful. See, e.g., Dkt. No. 237-24. In a 2014 study, Dr. 22 Pepper’s third-party consultant concluded that over 30% of consumers who increased their 23 ginger ale consumption did so because of the perceived health benefits. Id. at 32. That 24 study, as well as Dr. Pepper’s other internal marketing documents, did not specifically look 25 at the “Made from Real Ginger” label to draw its conclusions and it is possible that broader 26 advertising efforts by Dr. Pepper, not the label, is responsible for consumer perceptions 27 about the health benefits of Canada Dry. That possibility, however, is a factual 28 consideration that must be resolved by the trier of fact at trial. Simply put, it would be odd 10 1 for the Court to conclude that Dr. Pepper’s advertisements do not affect consumer 2 expectations regarding Canada Dry, when Dr. Pepper itself believes that it had. 3 Accordingly, the Court DENIES summary judgment on this claim. 4 Administrative Motions to Seal 5 Both parties move to seal portions of various exhibits or portions of their briefing 6 on this motion and the related motion to strike expert testimony. See Dkt. No. 224, 228, 7 234, 236, 242, 243, 246. The proposed redactions are based on information relating to the 8 formulation of Canada Dry. 9 United States District Court Northern District of California B. There is a presumption of public access to judicial records and documents. Nixon v. 10 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Access to motions and their 11 attachments that are “more than tangentially related to the merits of a case” may be sealed 12 only upon a showing of “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler 13 Grp., LLC, 809 F.3d 1092, 1101–02 (9th Cir. 2016). Conversely, filings that are only 14 tangentially related to the merits may be sealed upon a lesser showing of “good cause.” Id. 15 at 1097. “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 16 disclosure and justify sealing court records exist when such ‘court files might have become 17 a vehicle for improper purposes,’ such as the use of records to gratify private spite, 18 promote public scandal, circulate libelous statements, or release trade secrets.” Kamakana 19 v. City & Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (quoting Nixon, 435 U.S. 20 at 598). 21 Under Rule 26(c), a trial court has broad discretion to permit sealing of court 22 documents for, among other things, the protection of “a trade secret or other confidential 23 research, development, or commercial information.” Fed. R. Civ. P. 26(c)(l)(G). The 24 Ninth Circuit adopted the definition of “trade secrets” set forth in the Restatement of Torts, 25 finding that “[a] trade secret may consist of any formula, pattern, device or compilation of 26 information which is used in one’s business, and which gives him an opportunity to obtain 27 an advantage over competitors who do not know or use it.” Clark v. Bunker, 453 F.2d 28 1006, 1009 (9th Cir. 1972) (quoting Restatement (First) of Torts § 757 cmt. b). 11 Here, the Court addresses a motion to seal exhibits to Dr. Pepper’s motion to strike 1 2 expert testimony and motion for summary judgment. The sealed portions are more than 3 tangentially related to the merits of the case. Therefore, the compelling reasons standard 4 applies to this sealing motion. Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 5 1136 (9th Cir. 2003) (applying the compelling reasons standard at summary judgment). Moreover, sealing motions must be “narrowly tailored to seek sealing only of 6 7 sealable material.” Civil L.R. 79-5(b). A party moving to seal a document in whole or in 8 part must file a declaration establishing that the identified material is “sealable.” Civil 9 L.R. 79-5(d)(1)(A). Merely stating that a party designated material as confidential under a United States District Court Northern District of California 10 protective order is insufficient by itself to seal a document. Id. 11 Based on the Court’s review of Dr. Pepper and Plaintiffs’ representations, the Court 12 finds compelling reasons sufficient to outweigh the public interest in disclosure to seal the 13 highlighted portions of the following:3 14 Document 15 Declaration of Monica Smith in 16 support of Dr. Pepper’s motion o Page 7 17 to strike expert testimony o Page 8 Location of Sealable Material • Exhibit 5 – Hottenstein Report 18 o Page 9 19 o Page 10 20 o Page 16 21 o Page 17 22 o Page 18 23 o Page 19 24 o Page 23 • Exhibit 6 – Hottenstein Deposition Transcript 25 26 o Page 348, line 19–21 27 28 3 Except for deposition transcripts, all page numbers refer to the automatically generated CM/ECF page numbers. 12 1 o Page 349, line 1, 7–8 2 o Page 350, line 19 3 o Page 351, 14–16, 20–21 Declaration of Monica Smith in 5 support of Dr. Pepper’s motion o Page 10, line 3, 6, 9–10, 14, 26 – 27 6 for summary judgment o Page 11, line 1, 7–9 7 United States District Court Northern District of California • Motion for Summary Judgment 4 • Exhibit 2 – Hottenstein Report 8 o Page 7 9 o Page 8 10 o Page 9 11 o Page 10 12 o Page 16 13 o Page 17 14 o Page 18 15 o Page 19 16 o Page 23 17 • Exhibit 5 – Kramer Deposition Transcript 18 o Page 47, line 1, 3, 5–8 19 o Page 48, line 4, 12–15, 20, 22 20 o Page 49, line 1–8, 11, 13–14, 21–22 21 o Page 55, line 2–4 22 o Page 98, line 4–5 23 o Page 99, line 12 24 o Page 100, line 3–4, 8, 12, 19, 23–24 25 o Page 155, line 4, 6 26 o Page 156, line 3, 8 27 o Page 157, line 1, 2, 19 28 • Exhibit 6 13 • Exhibit 7 1 • Exhibit 11 – Hassel Deposition Transcript 2 3 o Page 13, line 6–10 4 o Page 14, line 15–18 5 o Page 15, line 3–4, 6–7, 9, 12, 14 6 o Page 17, line 11 7 o Page 18, line 10–11 8 o Page 24, line 20–21, 23–25 9 o Page 25, line 21, 23, 25 10 o Page 26, line 1–2, 5–6, 10–11, 13, 15– United States District Court Northern District of California 11 18, 20 12 o Page 27, line 1–2, 25 13 o Page 32, line 12, 14, 17–20 14 o Page 34, line 24–25 15 o Page 35, line 1, 13 16 o Page 36, 11–13, 16–20 17 o Page 37, 16, 21–25 18 o Page 38, line 1–4, 18–23 19 o Page 39, line 2, 12, 16–18 20 o Page 40, line 13–14, 20 21 o Page 50, line 23 22 o Page 58, 1–2 23 o Page 59, line 24 24 o Page 60, line 13, 15 • Exhibit 14 25 26 Plaintiffs’ Opposition to Dr. 27 Pepper’s motion to strike expert 28 testimony • Page 9, line 19, 21, fn. 2 • Page 10, line 8–10, 12, fn. 3 • Page 20, line 21–22, 24–26 14 Declaration of Matthew 2 McCray in support of Plaintiffs’ o Page 5, line 11–12 3 opposition to Dr. Pepper’s o Page 6, line 4–8 4 motion for summary judgment o Page 11, line 25–26 5 o Page 12, line 2–3, 5, 13–15, fn. 4 6 o Page 17, 8–10 7 o Page 21, line 26–27 8 o Page 22, 1–3 9 o Page 26, line 23 10 o Page 27, line 19 11 United States District Court Northern District of California • Opposition to Motion for Summary Judgment 1 • Exhibit 1 – Norris Declaration 12 o Page 7, fn. 7 13 o Page 8, line 21–22, 24–25 14 o Page 9, line 2, 8 15 o Page 13, line 19–22, fn. 18, 19, 20, 21 16 o Page 14, line 1, 3–12, 14–16, 21, fn. 22– 17 27 18 o Page 15, line 2–6 19 o Page 18, line 7–9, 12–13 20 o Page 22, line 3–4, 13–14, 22 21 o Page 23, line 1–2 22 o Page 24, line 6–7, 14–15, 17, fn. 60 23 o Page 26, line 14 24 • Exhibit 7 – Email and “BMC Presentation 25 Deck” PowerPoint 26 o Page 17 27 o Page 20 28 • Exhibit 22 15 1 • Exhibit 24 – Dennis Report 2 o Page 6, ¶ 12 3 o Page 7, ¶ 12 4 o Page 11, fn. 7 5 o Page 17, fn. 12 6 7 8 United States District Court Northern District of California 9 • Exhibit 25 • Exhibit 26 • Exhibit 27 • Exhibit 28 – Kramer Deposition Transcript 10 o Page 47, line 1–8 11 o Page 48, line 20 12 o Page 49, line 10–25 13 o Page 50 14 o Page 51 15 o Page 57, line 2 16 o Page 58 17 o Page 163, line 6–12, 22–25 18 19 20 21 • Exhibit 29 – Hassel Deposition Transcript o Page 56, line 5, 16, 20 • Exhibit 33 – Email Chain Between Dr. Pepper Employees 22 o Page 2, email by Steve Kramer 23 o Page 4, line 8–9 24 25 • Exhibit 43 • Exhibit 44 26 27 28 16 United States District Court Northern District of California • Dkt. No. 180-18 (Exhibit 15)4 1 Declaration of Monica Smith 2 regarding Exhibit 15 to 3 Plaintiffs’ motion for class 4 certification 5 Declaration of Monica Smith in 6 support of Dr. Pepper’s reply to opposition to Dr. Pepper’s motion to strike 7 Plaintiffs’ opposition to Dr. expert testimony 8 Pepper’s motion to strike expert 9 testimony • Dr. Pepper’s reply brief to Plaintiffs’ o Page 15, fn. 13 • Exhibit 7 – Hottenstein Deposition Transcript 10 o Page 298, line 19–20 11 o Page 299, line 10–11, 14 • Hottenstein Deposition Transcript 12 Declaration of Matthew 13 McCray in support of Plaintiffs’ o Page 182, line 9–20 14 Objection to Dr. Pepper’s Reply o Page 350, line 18–21 15 Evidence 16 Except for the excerpts cited in the table above, the motion to seal is DENIED as 17 being not sufficiently narrowly tailored, and as not satisfying the compelling reasons 18 standard. For the most part, the Court denied requests to seal portions of deposition 19 transcripts that did not discuss trade secrets or other confidential information. The Court 20 also denied the parties’ request to seal Ms. Leslie Norris’s declaration (see Dkt. No. 236-1) 21 in its entirety as significant portions of her declaration discusses non-confidential matters, 22 such as generally applicable principles of flavor science (see, e.g., id. ¶¶ 33–40). 23 24 The parties must file revised redacted versions of the deposition transcripts and Ms. Norris’s declaration within seven days of this order. See N.D. Cal. Local Rule 79-5(f)(3). 25 26 27 28 This exhibit was submitted in support of Plaintiffs’ motion for class certification. It is the same exhibit as Exhibit 7 of McCray’s Declaration submitted in support of Plaintiffs’ opposition to Dr. Pepper’s motion for summary judgment. See Dkt. No. 237-8. Accordingly, the Court seals Dkt. No. 180-18 in the same manner. 17 4 1 2 The Court GRANTS Dr. Pepper’s motion for summary judgment with respect to 3 Plaintiffs’ claim that the “Made from Real Ginger” label misleads consumers as to the 4 amount of ginger in Canada Dry. The Court DENIES summary judgment on all other 5 claims presented in Dr. Pepper’s motion. The claims to be tried are Plaintiffs’ remaining 6 claims under the CLRA, FAL, UCL, and common law against Dr. Pepper: 7 8 9 10 11 United States District Court Northern District of California IV. Conclusion 1. Whether the “Made from Real Ginger” label misleads consumers as to the form of ginger in Canada Dry; and 2. Whether the “Made from Real Ginger” label misleads consumers as to the health benefits of Canada Dry. Additionally, the Court GRANTS IN PART and DENIES IN PART Dr. Pepper and 12 Plaintiffs’ motions to seal. The parties must file revised redacted versions of the 13 deposition transcripts and Ms. Norris’s declaration within seven days. 14 IT IS SO ORDERED. 15 16 17 Dated: November 2, 2018 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 18
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