Testone et al v. Barleans Organic Oils, LLC, No. 3:2019cv00169 - Document 98 (S.D. Cal. 2021)

Court Description: ORDER Granting Plaintiffs' Motion for Class Certification, (2) Granting in Part and Denying in Part Plaintiffs' Motion to Strike the Testimony of Sarah Butler, and (3) Overruling Defendant's Evidentiary Objections to the Reply Declarations of Colin B. Weir and J. Michael Dennis, Ph.D. (ECF Nos. 70, 86, 88, 89). Signed by Judge Janis L. Sammartino on 9/28/2021. (tcf)

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Testone et al v. Barleans Organic Oils, LLC Doc. 98 Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6872 Page 1 of 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 MICHAEL TESTONE, COLLIN SHANKS, and LAMARTINE PIERRE, on behalf of themselves, all others similarly situated, and the general public, ORDER (1) GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, (2) GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO STRIKE THE TESTIMONY OF SARAH BUTLER, AND (3) OVERRULING DEFENDANT’S EVIDENTIARY OBJECTIONS TO THE REPLY DECLARATIONS OF COLIN B. WEIR AND J. MICHAEL DENNIS, PH.D Plaintiffs, 14 15 v. 16 BARLEAN’S ORGANIC OILS, LLC, 17 Case No.: 19-CV-169 JLS (BGS) Defendant. 18 19 20 21 (ECF Nos. 70, 86, 88, 89) 22 23 Presently before the Court are Plaintiffs Michael Testone, Collin Shanks, and 24 Lamartine Pierre’s (collectively, “Plaintiffs”) Motion for Class Certification (“Mot.,” ECF 25 No. 70) and Motion to Strike the Testimony of Sarah Butler (“MTS,” ECF No. 86). Also 26 before the Court are Defendant Barlean’s Organic Oils, LLC’s (“Defendant”) Opposition 27 to Plaintiffs’ Motion (“Opp’n,” ECF No. 81), Plaintiffs’ Reply in Support of the Motion 28 (“Reply,” ECF No. 85), Defendant’s Evidentiary Objections to the Reply Declarations of 1 19-CV-169 JLS (BGS) Dockets.Justia.com Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6873 Page 2 of 35 1 Colin B. Weir (“Weir Objs.,” ECF No. 88) and J. Michael Dennis, Ph.D. (“Dennis Objs.,” 2 ECF No. 89), Defendant’s Opposition to the MTS (“MTS Opp’n,” ECF No. 87), Plaintiffs’ 3 Reply in Support of the MTS (“MTS Reply,” ECF No. 93), and Plaintiffs’ Response to 4 Defendant’s Evidentiary Objections (“Evid. Resp.,” ECF No. 92). The Court heard oral 5 argument on June 28, 2021. See ECF No. 94. 6 After considering the Parties’ arguments and the law, the Court GRANTS IN PART 7 AND DENIES IN PART Plaintiffs’ Motion to Strike, as set forth below; OVERRULES 8 Defendant’s evidentiary objections; and GRANTS Plaintiffs’ Motion. 9 BACKGROUND 10 Plaintiffs allege that “Defendant has manufactured, distributed, marketed, and sold 11 various Barlean’s brand coconut oil Products beginning in or around May 2008.” First 12 Amended Complaint (“FAC,” ECF No. 35) ¶ 48. Defendant sells its coconut oil products 13 nationally at major retailers. Id. ¶ 49. Plaintiffs contend that Defendant “misleadingly 14 markets its coconut oil Products as inherently healthy, and a healthy alternative to butter 15 and various cooking oils, despite that coconut oil is actually inherently unhealthy, and a 16 less healthy option to these alternatives.” Id. ¶ 1 (emphasis in original). 17 Specifically, Plaintiffs contend that coconut oil is high in saturated fat, which 18 increases the risk of cardiovascular disease and other morbidities. Id. ¶ 37. In fact, one 19 serving of Defendant’s coconut oil contains twelve grams of saturated fat, which is over 20 half of the daily recommended value of saturated fat. Id. ¶¶ 54–57. Three of Defendant’s 21 products are challenged in this putative class action: its “Organic Virgin Coconut Oil,” 22 “Organic Culinary Coconut Oil,” and “Organic Butter Flavored Coconut Oil” (collectively, 23 the “Products” or the “Coconut Oils”). Id. ¶ 50. Plaintiffs contend that Defendant “has 24 employed[] a strategic marketing campaign intended to convince consumers that the 25 Barlean’s Coconut Oil products are healthy.” Id. ¶ 59. Plaintiffs claim this is done both 26 through statements on Defendant’s website as well as statements made directly on the 27 labels of the Coconut Oils. Id. ¶¶ 60–61. 28 /// 2 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6874 Page 3 of 35 1 Plaintiffs take exception to several of the statements on the labels of Defendant’s 2 Products. See generally id. As to Defendant’s Organic Virgin Coconut Oil, Plaintiffs 3 question, among others, the following statements: “Nature’s Most Versatile Superfood”; 4 “RAW WHOLE FOOD”; “Harvested at the Peak of Flavor and Nutrition/nutritional 5 value”; “COCONUT OIL: A SMART FAT”; “NON-HYDROGENATED”; and various 6 statements concerning the presence of medium chain triglycerides. Id. ¶¶ 62–70. As to 7 Defendant’s Organic Culinary Coconut Oil, Plaintiffs identify as misleading the following 8 label statements: “The ultimate cooking oil for health-conscious gourmets. As versatile as 9 it is delicious, Barlean’s Organic Culinary Coconut Oil is ideal for sauteing, stir-frying and 10 baking, or as a dairy-free butter substitute”; and “NO TRANS FAT.” Id. ¶¶ 72–73. Finally, 11 as to Defendant’s Organic Butter Flavored Coconut Oil, Plaintiffs suggest that the 12 following statements, among others, are misleading: “THE HEALTH BENEFITS OF 13 COCONUT OIL, THE RICH TASTE OF BUTTER”; “SUB 1:1 FOR BUTTER”; 14 “HEALTHY ALTERNATIVE TO BUTTER”; and “All the health benefits of coconut oil, 15 now with the rich flavor of butter.” Id. ¶ 74. Plaintiffs further contend that Defendant 16 intentionally omits from its Products’ labeling and marketing the negative health effects of 17 its coconut oils. Id. ¶ 76. In addition, Plaintiffs argue that the Products are misbranded. 18 See id. ¶ 84. 19 Plaintiff Testone alleges he would purchase Defendant’s Organic Virgin Coconut 20 Oil on a regular basis, relying on some of the challenged label claims in believing the 21 product was healthy. 22 purchasing both Defendant’s Organic Virgin Coconut Oil and its Butter Flavored Coconut 23 Oil. Id. ¶¶ 128–31. Lastly, Plaintiff Pierre claims he was injured in a similar manner by 24 purchasing Defendant’s Organic Virgin Coconut Oil. Id. ¶¶ 133–35. 25 /// 26 /// 27 /// 28 /// Id. ¶¶ 124–26. Plaintiff Shanks alleges similar injury from 3 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6875 Page 4 of 35 1 Plaintiffs propose a class of California consumers and a class of New York 2 consumers.1 See id. ¶ 154. As to the California class, Plaintiffs allege violations of 3 California Business & Professions Code §§ 17200 et seq. (the “UCL”), California Business 4 & Professions Code §§ 17500 et seq. (the “FAL”), and California Civil Code §§ 1750 et 5 seq. (the “CLRA”);2 breach of express warranty pursuant to California Commercial Code 6 § 2313(1); and breach of the implied warranty of merchantability pursuant to California 7 Commercial Code § 2314. See Compl. ¶¶ 164, 178, 187, 197, 205. As to the New York 8 class, Plaintiffs allege violations of New York General Business Law §§ 349 (the “UDBP”) 9 and 350 (the “NY FAL”), as well as breach of express warranty pursuant to New York 10 Uniform Commercial Code § 2-313. See Compl. ¶¶ 210, 219, 224. 11 On September 4, 2019, Plaintiffs filed the operative FAC. See ECF No. 35. 12 Defendant answered on September 10, 2019. See ECF No. 36. Defendant subsequently 13 filed its Motion to Disqualify Counsel and Named Plaintiffs as Class Representatives on 14 May 18, 2020. See ECF No. 50. Shortly thereafter, Defendant also filed an ex parte motion 15 to stay, see ECF No. 52, which, following briefing, the Court granted, see ECF No. 55. On 16 January 4, 2021, this Court denied Defendant’s motion to disqualify as premature. See 17 ECF No. 64; see also Testone v. Barlean’s Organic Oils, LLC, No. 19-cv-169 JLS (BGS), 18 2021 WL 22611 (S.D. Cal. Jan. 4, 2021). The present Motion, MTS, and evidentiary 19 objections followed. 20 MOTION TO STRIKE AND EVIDENTIARY OBJECTIONS 21 Plaintiffs move to strike the testimony of Defendant’s expert, Sarah Butler (Expert 22 Report of Sarah Butler (“Butler Report”), Opp’n Ex. D). See generally MTS. Defendant, 23 meanwhile, submitted evidentiary objections to portions of two declarations submitted by 24 25 1 26 Plaintiffs Testone and Shanks allege they are citizens of the State of California, and Plaintiff Pierre alleges he is a citizen of the State of New York. See FAC ¶¶ 5–7. 27 2 28 For purposes of the UCL, FAL, and CLRA, courts repeatedly have held they are materially the same. See, e.g., Townsend v. Monster Beverage Corp., 303 F. Supp. 3d 1010, 1043 (C.D. Cal. 2018). Each statute prohibits the use of untrue or misleading statements to sell a product. 4 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6876 Page 5 of 35 1 Plaintiffs to support their Reply, one by Mr. Colin B. Weir and one by Dr. J. Michael 2 Dennis (Reply Declaration of J. Michael Dennis, Ph.D. (“Reply Dennis Report,” ECF No. 3 85-1), Reply Declaration of Colin B. Weir (“Reply Weir Report,” ECF No. 85-2)). See 4 generally ECF Nos. 88, 89. 5 I. Legal Standards 6 A. 7 The Ninth Circuit has held that expert evidence offered at the class certification stage 8 must meet the standard of relevance and reliability articulated in Daubert v. Merrell Dow 9 Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Ellis v. Costco Wholesale Corp., 657 F.3d 10 970, 982 (9th Cir. 2011) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354 (2011)). 11 Pursuant to that standard: 12 13 14 15 16 17 Daubert Motion Faced with a proffer of expert scientific testimony . . . the trial judge must determine . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. 18 Id. at 592–93; see also Fed. R. Evid. 702 (permitting expert to testify only if “(1) the 19 testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable 20 principles and methods and (3) the witness has applied the principles and methods reliably 21 to the facts of the case.”); Fed. R. Evid. 703 (requiring the facts or data upon which the 22 expert relies to be “of a type reasonably relied upon by experts in the particular field”). 23 The Court has a gatekeeping responsibility to determine whether expert testimony 24 complies with Rules 702 and 703. Daubert, 509 U.S. at 592; see also Kumho Tire Co., 25 Ltd. v. Carmichael, 526 U.S. 137, 148–49 (1999). The burden of establishing satisfaction 26 of Rule 702’s requirements lies with the offering party. Sundance Image Tech., Inc. v. 27 Cone Editions Press, Ltd., No. 02 CV 2258 JM (AJB), 2007 WL 935703, at *4 (S.D. Cal. 28 Mar. 7, 2007) (citations omitted). Ultimately, “[a] trial court has broad latitude not only in 5 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6877 Page 6 of 35 1 determining whether an expert’s testimony is reliable, but also in deciding how to 2 determine the testimony’s reliability.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 3 (9th Cir. 2011) (citing Kumho Tire, 526 U.S. at 152). 4 Courts consider Daubert’s non-exhaustive list of factors when determining the 5 admissibility of scientific experts’ testimony. 6 Hayward, 299 F.3d 1053, 1064 (9th Cir. 2002) (citing Daubert, 509 U.S. at 593–94; Kumho 7 Tire, 526 U.S. at 141). However, “the Daubert factors . . . simply are not applicable to 8 [non-scientific] testimony, whose reliability depends heavily on the knowledge and 9 experience of the expert, rather than the methodology behind it.” Hangarter v. Provident 10 Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (emphasis in original) (internal 11 quotation marks and citations omitted). In such situations, Rule 702 should be “construed 12 liberally.” United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (citation omitted). 13 Appropriate considerations include: 14 15 16 17 18 19 20 21 22 Elsayed Mukhtar v. Cal. State Univ., • Whether the opinion is based on scientific, technical, or other specialized knowledge; • Whether the expert’s opinion would assist the trier of fact in understanding the evidence or determining a fact in issue; • Whether the expert has appropriate qualifications—i.e., some special knowledge, skill, experience, training or education on that subject matter[;] • Whether the testimony is relevant and reliable[;] • Whether the methodology or technique the expert uses “fits” the conclusions (the expert’s credibility is for the jury)[; and] • Whether its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, or undue consumption of time. 23 24 Id. (citations omitted). 25 This inquiry is designed to be a flexible one, and “[s]haky but admissible evidence 26 is to be attacked by cross examination, contrary evidence, and attention to the burden of 27 proof, not exclusion.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th 28 Cir. 2014). “[R]ejection of expert testimony is the exception rather than the rule.” Frye v. 6 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6878 Page 7 of 35 1 Ayers, No. CIVS990628LKKKJM, 2009 WL 1312924, at *4 (E.D. Cal. May 12, 2009) 2 (quoting Advisory Committee Notes to 2000 Amendments to Fed. R. Evid. 702). 3 B. 4 Since a motion to certify a class is a preliminary procedure, courts do not require 5 strict adherence to the Federal Rules of Civil Procedure or the Federal Rules of Evidence. 6 See Eisen, 417 U.S. at 178 (stating the class certification procedure “is not accompanied 7 by the traditional rules and procedures applicable to civil trials”). Therefore, the Court 8 may consider inadmissible evidence. Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1005 9 (9th Cir. 2018) (“[A] district court is not limited to considering only admissible evidence 10 in evaluating whether Rule 23’s requirements are met.”) (citation omitted); see also 11 Keilholtz v. Lennox Hearth Prods., Inc., 268 F.R.D. 330, 337 n.3 (N.D. Cal. 2010). “The 12 court need not address the ultimate admissibility of the parties’ proffered exhibits, 13 documents and testimony at this stage, and may consider them where necessary for 14 resolution of the [Motion for Class Certification].” Alonzo v. Maximus, Inc., 275 F.R.D. 15 513, 519 (C.D. Cal. 2011); Waine–Golston v. Time Warner Entm’t–Advance/New House 16 P’ship, No. 11cv1057-GPB (RBB), 2012 WL 6591610, at *9 (S.D. Cal. Dec. 18, 2012). 17 Post-Wal-Mart, the Ninth Circuit has affirmed that, while the Daubert standard applies to 18 expert testimony, “[i]nadmissibility alone is not a proper basis to reject evidence submitted 19 in support of class certification.” Sali, 909 F.3d at 1004 (footnote omitted). 20 II. Evidentiary Objections Analysis Plaintiffs’ Motion to Strike 21 A. 22 Plaintiffs challenge the admissibility of the testimony of Defendant’s expert, Ms. 23 Butler, on the grounds that (1) her testimony is irrelevant because Plaintiffs’ claims do not 24 require absent class members to have seen, relied on, or found material the at-issue claims 25 on the Products’ labels, see MTS at 3–5; (2) her testimony is irrelevant because the germane 26 question at this stage is whether common questions predominate, not whether Plaintiffs 27 have proven materiality, which is a merits issue, see id. at 5–6; (3) her questions and 28 testimony concerning how consumers first learned about coconut oil are unreliable and 7 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6879 Page 8 of 35 1 irrelevant, see id. at 6–8; (4) her criticisms of Dr. Dennis’s survey population are based on 2 a mistake of fact, see id. at 8–10; and (5) she is not qualified to offer testimony about 3 supply-side issues, see id. at 10–11. The Court will address each of these issues in turn. 4 5 1. Relevancy and Reliability a. General Relevance to Plaintiffs’ Claims and Class Certification 6 Plaintiffs claim that Ms. Butler’s entire report is irrelevant and should be stricken 7 because her opinions concern issues that are irrelevant as a matter of law. MTS at 5. 8 Specifically, Plaintiffs claim that Defendant relies on the Butler Report to show that the 9 challenged claims are not material and that consumers do not rely on them, but that these 10 issues are irrelevant under the reasonable consumer test that applies to their claims. Id. at 11 3–4. Plaintiffs further argue that the Butler Report goes to the merits of whether the 12 reasonable consumer would find the Products’ labels material and/or deceptive, issues 13 irrelevant at the class certification stage. Id. at 6. 14 Defendant argues that, if the alleged misrepresentations are not material to all class 15 members, then the reliance of individual class members is at issue and the class should not 16 be certified. MTS Opp’n at 3–4 (citing, inter alia, Stearns v. Ticketmaster Corp., 655 F.3d 17 1013, 1022 (9th Cir. 2011), abrogated on other grounds by Comcast Corp. v. Behrend, 569 18 U.S. 27 (2013)). Thus, “numerous courts have found survey evidence of the type offered 19 by Butler highly probative of materiality across the putative class and admissible – and in 20 some cases essential – at the class certification stage.” Id. at 4 (citations omitted). 21 Defendant argues that the court in Shanks v. Jarrow Formulas, Inc., Case No. CV 18-09437 22 PA (AFMx), 2019 WL 4398506 (C.D. Cal. Aug. 27, 2019), not only found a nearly 23 identical survey conducted by Ms. Butler relevant, but also relied on that survey in denying 24 certification to a similar proposed class. Id. (citations omitted). 25 In reply, Plaintiffs cite Bradach v. Pharmavite, LLC, 735 F. App’x 251 (9th Cir. 26 2018), and In re McCormick & Co., 422 F. Supp. 3d 194 (D.D.C. 2019) (applying 27 California law), MTS Reply at 1, and reassert that Ms. Butler’s survey is irrelevant given 28 that “‘materiality is necessarily a common question.’” Id. at 2 (citation omitted). 8 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6880 Page 9 of 35 1 Ms. Butler’s survey effectively amounts to an argument that consumers purchase 2 Defendant’s Products for a variety of reasons. However, this “is a merits dispute as to 3 materiality, and is therefore a dispute that can be resolved classwide.” Hadley v. Kellogg 4 Sales Co., 324 F. Supp. 3d 1084, 1117 (N.D. Cal. 2018) (internal quotation marks omitted). 5 Indeed, it is an error of law for a court to inquire into the motives of each individual class 6 member at the class certification stage. See Bradach, 735 F. App’x at 255. And, in any 7 event, “it is clear under California law that . . . materiality to a reasonable consumer does 8 not mean it has to be material to every consumer.” In re McCormick, 422 F. Supp. 3d at 9 255. However, Ms. Butler’s survey may be probative of materiality at later stages in this 10 litigation, as it may show the alleged misstatements would not be material to a reasonable 11 consumer. Accordingly, the Court DENIES Plaintiffs’ Motion to Strike on this ground. 12 b. How Consumers First Learned About Coconut Oil 13 Relying on the same arguments made supra, Plaintiffs also claim that how 14 consumers first learned about coconut oil has no bearing on whether the Products’ labels 15 are objectively material or misleading. MTS at 6–7 (citing Mullins v. Premier Nutrition 16 Corp., Case No. 13-cv-01271-RS, 2016 WL 1535057, at *3 (N.D. Cal. Apr. 15, 2016)). 17 Plaintiffs challenge these survey questions’ apparent premise “that if consumers first 18 learned about coconut oil from a source other than the Barlean’s label, the Barlean’s label 19 could not possibly have influenced their purchasing decision.” Id. at 7 (citing Reply Dennis 20 Report ¶¶ 45–49, 81, 83). Further, Plaintiffs argue that these questions are fundamentally 21 unreliable, as consumers are unlikely to accurately recall how they first learned of a product 22 they likely first purchased years ago. Id. at 7 n.1 (citing Reply Dennis Report ¶¶ 66–71). 23 Defendant responds that these survey questions and their responses are probative to 24 the issue of materiality, because, when viewed in conjunction with the other survey 25 responses, they show that consumers do not rely on the claims on coconut oil labels in 26 deciding whether to make a purchase. MTS Opp’n at 5 (citing Butler Report ¶ 55). 27 Defendant argues that the cases cited by Plaintiffs are inapt, id. at 5–6 (citations omitted); 28 claims that Dr. Dennis’s opinions about “recall bias” lack foundation; and contends that 9 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6881 Page 10 of 35 1 criticisms of recall over the survey’s period of five years are “disingenuous” given that the 2 class period is approximately the same and the Plaintiffs Testone claim to recall their 3 reasons for purchasing the Products even longer ago. Id. at 6 (citations omitted). 4 In reply, Plaintiffs claim that there is no logical connection between how a person 5 first learned about coconut oil and the materiality of the Products’ labels and that Defendant 6 fails to explain how the other survey responses bridge this gap. MTS Reply at 3. Plaintiffs 7 also argue that analogizing between the survey questions and Plaintiffs’ testimony about 8 why they purchased Defendant’s Products is inapt, as Plaintiffs’ testimony establishes their 9 reliance, which is required for standing. Id. at 4. 10 For the reasons provided supra at 9, this again effectively amounts to “a merits 11 dispute as to materiality, and is therefore a dispute that can be resolved classwide.” Hadley, 12 324 F. Supp. 3d at 1117. And, again, portions of Ms. Butler’s survey may be probative of 13 materiality at later stages in this litigation. Finally, while the Court appreciates the “recall 14 bias” issue raised by Defendant, the Court is not prepared to say that this issue renders the 15 questions at issue so fundamentally flawed that they are completely unreliable and must be 16 stricken. Accordingly, the Court DENIES the Motion to Strike on this ground as well. 17 c. Criticisms of Dr. Dennis’s Survey Population 18 Plaintiffs also contend that the portions of the Butler Report opining that Dr. 19 Dennis’s survey improperly restricts the relevant population to consumers who purchased 20 coconut oil at health food stores should be stricken, as Dr. Dennis’s proposed survey is not 21 limited to such a sub-population of purchasers. MTS at 8–9 (citing Butler Report ¶¶ 66– 22 67; Reply Dennis Report ¶ 27 n.11). During her deposition, Ms. Butler clarified that her 23 concerns would be alleviated should the survey population not be so limited. Id. at 9 (citing 24 Butler Dep. Tr. 163:1–11). In its Opposition, “[Defendant] disagrees that Butler misread 25 Dennis’ declaration . . . but does not dispute that Dennis has clarified the scope of his 26 survey universe in his reply declaration.” MTS Opp’n at 7 (citation omitted). Nonetheless, 27 Defendant contends that Dr. Dennis’s subsequent clarification does not mean that Ms. 28 Butler’s criticism of the original declaration should be stricken. Id. at 7–8. 10 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6882 Page 11 of 35 1 A reading of the paragraph at issue in Dr. Dennis’s report supports Plaintiffs’ 2 position that Dr. Dennis’s survey population was never limited to consumers who 3 purchased coconut oil from health food stores. Instead, he is clear that “[his] survey will 4 target a population of non-institutionalized adults age 18 and over, who have purchased 5 coconut oils in the last 12 months . . .” Declaration and Expert Report of J. Michael Dennis, 6 Ph.D. (“Dennis Report,” ECF No. 70-14) ¶ 51. Dr. Dennis goes on to clarify that his survey 7 population will “include[e] those residing in either the state of California or New York,” 8 as well as “coconut oil purchasers who purchased coconut oil in health food stores.” Id. 9 However, nowhere does he say that he will limit the survey population to such purchasers. 10 Accordingly, the Court finds that Ms. Butler’s critiques of Dr. Dennis’s survey population 11 were based on a mistake of fact; they are therefore irrelevant and unlikely to assist the trier 12 of fact. See Viasat, Inc. v. Space Sys./Loral, Inc., No. 312CV00260HWVG, 2014 WL 13 11889468, at *1 (S.D. Cal. Feb. 4, 2014) (noting that expert opinion predicated on mistake 14 is irrelevant). Thus, the Court STRIKES the portions of the Butler Report pertaining to 15 Dr. Dennis’s survey population. 16 2. Ms. Butler’s Qualifications 17 Finally, Plaintiffs argue that Ms. Butler is not an economist and is therefore 18 unqualified to opine on whether Dr. Dennis’s survey addresses supply-side issues. See 19 MTS at 11 (citing Butler Report ¶¶ 11, 69). Plaintiffs rely heavily on the striking of similar 20 opinions offered by Ms. Butler in Maldonado v. Apple, Inc., Case No. 3:16-cv-04067- 21 WHO, 2021 WL 1947512 (N.D. Cal. May 14, 2021). See id.; see also Maldonado, 2021 22 WL 1947512, at *26 (“Butler is not qualified to render the challenged opinion. While she 23 may offer opinions about flaws in the survey design, and though Apple tries to couch the 24 opinion as pointing out flaws in the survey, it is not. Boiled down, it is that a method for 25 measuring consumer willingness to pay is an inadequate measure of market price because 26 it fails to account for changes in supply. That opinion may be right, wrong, or debatable 27 as a matter of economic theory, but it is a matter of economic theory. Butler is not an 28 economist nor does she purport to be. She has no training, education, skill, or experience 11 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6883 Page 12 of 35 1 in economics, nor does she purport to. Apple cannot slide in opinions within the ken of an 2 economist under the guise of faulting the survey design.”) (emphasis in original). 3 Defendant counters that, “as a survey expert, [Ms. Butler] is indisputably qualified to 4 testify as to survey design, including what components are included or excluded from a 5 particular survey design, which is precisely the nature of the challenged testimony.” MTS 6 Opp’n at 7. 7 specifically was offering opinions in rebuttal to Mr. Weir’s economics testimony. Id. 8 (citing Maldonado, 2021 WL 1947512, at *26). While the Butler Report is not a rebuttal 9 report, it does, in fact, critique and respond to the Dennis Report and ultimately contends 10 that his model cannot accurately account for market share and prices. The Court agrees 11 that, as in Maldonado, these are economic issues as to which Ms. Butler is not qualified to 12 testify. Accordingly, the Court STRIKES those portions of the Butler Report opining as 13 to the adequacy of Dr. Dennis’s conjoint survey to account for changes in supply. Defendant argues that Maldonado is inapposite, as there Ms. Butler Defendant’s Evidentiary Objections 14 B. 15 Defendant’s evidentiary objections to portions of the Reply Dennis Report and 16 Reply Weir Report mostly argue that the paragraphs in question are irrelevant, lack 17 foundation, and/or are improper legal opinions. See generally ECF Nos. 88, 89. Thus, 18 Defendant does not object to these portions of Plaintiffs’ reply reports on the basis of 19 Daubert concerns, but rather on the basis of general admissibility issues. At this stage, the 20 Court can, and should, afford such testimony the proper weight rather than exclude it 21 outright. See Smith v. Microsoft Corp., 297 F.R.D. 464, 474 (S.D. Cal. 2014) (overruling 22 objections at class certification stage that did not concern Daubert issues); Sarmiento v. 23 Sealy, Inc., No. 18-CV-01990-JST, 2020 WL 4458915, at *2 (N.D. Cal. May 27, 2020). 24 Accordingly, the Court OVERRULES Defendant’s evidentiary objections. 25 26 MOTION FOR CLASS CERTIFICATION I. Legal Standard 27 Motions for class certification proceed under Rule 23(a) of the Federal Rules of Civil 28 Procedure. Rule 23(a) provides four prerequisites to a class action: (1) the class is so 12 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6884 Page 13 of 35 1 numerous that joinder of all members is impracticable (“numerosity”); (2) there are 2 questions of law or fact common to the class (“commonality”); (3) the claims or defenses 3 of the representative parties are typical of the claims or defenses of the class (“typicality”); 4 and (4) the representative parties will fairly and adequately protect the interests of the class 5 (“adequate representation”). Fed. R. Civ. P. 23(a). 6 A proposed class must also satisfy one of the subdivisions of Rule 23(b). Here, 7 Plaintiffs seek to proceed under Rule 23(b)(3), which requires that “the court find[ ] that 8 the [common questions] predominate over any questions affecting only individual 9 members [‘predominance’], and that a class action is superior to other available methods 10 for fairly and efficiently adjudicating the controversy [‘superiority’].” Factors relevant to 11 this inquiry include the class members’ interest in individually controlling the litigation, 12 other litigation already commenced, the desirability (or not) of consolidating the litigation 13 in this forum, and manageability. Id. 23(b)(3)(A)–(D). 14 “In determining the propriety of a class action, the question is not whether the 15 plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather 16 whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 17 156, 178 (1974) (internal quotations omitted). “Rule 23 does not set forth a mere pleading 18 standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rather, “[a] party 19 seeking class certification must affirmatively demonstrate his compliance with the Rule— 20 that is, he must be prepared to prove that there are in fact sufficiently numerous parties, 21 common questions of law or fact, etc.” Id. The court is “at liberty to consider evidence 22 which goes to the requirements of Rule 23 even though the evidence may also relate to the 23 underlying merits of the case.” Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 24 1992). However, a weighing of competing evidence is inappropriate at this stage of the 25 litigation. Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003); Wang v. Chinese Daily 26 News, Inc., 231 F.R.D. 602, 605 (C.D. Cal. 2005). 27 /// 28 /// 13 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6885 Page 14 of 35 1 II. Analysis 2 A. 3 As noted previously, Plaintiffs seek certification of two classes, the California Class 4 and the New York Class (collectively, the “Classes”). The proposed California Class 5 comprises “[a]ll persons in California who, between January 24, 2015 and the date the 6 Class is notified of certification, purchased any of the Barlean’s Coconut Oils for 7 household use and not for resale.” Mot. Mem. at 1. The proposed New York Class 8 comprises “[a]ll persons in New York who, between January 24, 2016 and the date the 9 Class is notified of certification, purchased any of the Barlean’s Coconut Oils for 10 Rule 23(a) Requirements household use and not for resale.” Id. 11 Plaintiffs must establish that the Classes satisfy the four requirements of Rule 23(a). 12 Defendant does not contest that Plaintiffs’ Classes meet the Rule 23(a) requirements of 13 numerosity and commonality. Thus, the Court analyzes these requirements briefly and 14 focuses its analysis on the contested elements of typicality and adequacy. 15 1. Numerosity 16 “[A] proposed class must be ‘so numerous that joinder of all members is 17 impracticable.’” Rannis v. Recchia, 380 F. App’x 646, 650 (9th Cir. 2010) (quoting Fed. 18 R. Civ. P. 23(a)(1)). While “[t]he numerosity requirement is not tied to any fixed numerical 19 threshold[,] . . . [i]n general, courts find the numerosity requirement satisfied when a class 20 includes at least 40 members.” Id. at 651; see also Nunez v. BAE Sys. San Diego Ship 21 Repair Inc., 292 F. Supp. 3d 1018, 1032 (S.D. Cal. 2017). Defendant admits that it has 22 sold thousands of units of the Coconut Oils in California and New York. Mot. Mem. at 10 23 (citing id. Ex. 2; Nunez, 292 F. Supp. 3d at 1032). Based on this admission and the fact 24 that Defendant does not contest the numerosity element, the Court finds that it can infer 25 that the likely class members are sufficiently numerous that joinder is impracticable, thus 26 fulfilling this requirement for each of the Classes. See Astiana v. Kashi Co., 291 F.R.D. 27 493, 501 (S.D. Cal. 2013) (“In ruling on a class action a judge may consider reasonable 28 inferences drawn from facts before [her] at that stage of the proceedings.”). 14 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6886 Page 15 of 35 1 2. Commonality 2 Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” 3 Fed. R. Civ. P. 23(a)(2). “All questions of fact and law need not be common to satisfy the 4 rule. The existence of shared legal issues with divergent factual predicates is sufficient, as 5 is a common core of salient facts coupled with disparate legal remedies within the class.” 6 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). However, the common 7 contention “must be of such a nature that it is capable of classwide resolution—which 8 means that determination of its truth or falsity will resolve an issue that is central to the 9 validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. 10 Plaintiffs assert that there are common questions here, such as what the at-issue label 11 statements would mean to a reasonable consumer and whether they would be deceptive to 12 a reasonable consumer. Mot. Mem. at 11. In prior mislabeling cases such as this, courts 13 have found the commonality requirement satisfied “because [the litigation] raises the 14 common question of whether the packaging would mislead a reasonable consumer.” See, 15 e.g., Broomfield v. Craft Brew Alliance, Inc., No. 17-cv-01027-BLF, 2018 WL 4952519, 16 at *5 (N.D. Cal. Sept. 25, 2018); In re NJOY, Inc. Consumer Class Action Litig., 120 F. 17 Supp. 3d, 1050, 1096–97 (C.D. Cal. 2015); In re ConAgra Foods, Inc., 302 F.R.D. 537, 18 569 (C.D. Cal. 2014). Similarly, a reasonable consumer standard is used in New York for 19 UDBP and FAL claims. See, e.g., In re 5-Hour Energy Mktg. & Sales Practices Litig., No. 20 ML 13-2438 PSG (PLAx), 2017 WL 2559615, at *6 (C.D. Cal. June 7, 2017) (collecting 21 cases from New York). 22 generally Opp’n. Thus, the Court finds the commonality requirement satisfied here. 23 3. Moreover, Defendant does not dispute commonality. See Typicality 24 The Ninth Circuit has explained that “representative claims are ‘typical’ if they are 25 reasonably co-extensive with those of absent class members; they need not be substantially 26 identical.” Staton, 327 F.3d at 957; Hanlon, 150 F.3d at 1019. The test of typicality “is 27 whether other members have the same or similar injury, whether the action is based on 28 conduct which is not unique to the named plaintiffs, and whether other class members have 15 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6887 Page 16 of 35 1 been injured by the same course of conduct.” Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. 2 Cal. 1985). 3 Plaintiffs claim typicality is satisfied because Defendant “labeled all Coconut Oils 4 with claims it intended to convey that they are healthy, which constitutes a common 5 scheme.” Mot. Mem. at 12. Plaintiffs further argue that all class members were exposed 6 to the same messaging and were “injured in the same manner when they purchased the oils 7 at a price higher than what they would have paid had the labeling not been misleading or 8 unlawful.” Id. Defendant, meanwhile, contends that Plaintiffs’ claims are atypical of the 9 Classes’ claims for several reasons. Opp’n at 21. First, Defendant argues that Ms. Butler’s 10 survey demonstrates that most purchasers of coconut oil are not motivated by the label; 11 second, Defendant asserts that Plaintiffs have not shown that they or the class members 12 paid a higher price than they would have but for the challenged claims. Id. Third, 13 Defendant contends that Plaintiffs cannot credibly claim reliance on any of the challenged 14 statements appearing on Defendant’s labels. Id. at 22.3 15 As to Defendant’s first argument that Ms. Butler’s survey demonstrates that most 16 purchasers of coconut oil are not motivated by statements appearing on the label, this 17 contention is off base. As far as Plaintiffs’ CLRA and UCL claims are concerned, there is 18 an inference of reliance where the allegedly material misrepresentations were made to all 19 class members. See In re ConAgra, 302 F.R.D. at 571. Nothing in the record would 20 suggest that all class members did not receive the same messaging from Defendant, nor 21 does Defendant contest that its messaging was uniform across the Classes. See Reply at 3. 22 Moreover, “the fact that the . . . label[s] may not have been a significant purchasing decision 23 of all class members, as it purportedly was in [Plaintiffs’] purchasing decision, does not 24 make [P]laintiffs’ claims atypical of the class.” In re ConAgra, 302 F.R.D. at 571. In any 25 26 3 27 28 Defendant does not cite any authority specifically in support of its argument that Plaintiffs cannot satisfy the requirements of Rule 23(a)(3). Throughout its Opposition, Defendant principally relies on Shanks, 2019 WL 4398506; however, that decision did not address the requirements of Rule 23(a)(3) because the court found the dispute could be resolved based on Rule 23(b)(3) concerns. See id. at *3. 16 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6888 Page 17 of 35 1 event, it is immaterial what motivated the class members to purchase Defendant’s Coconut 2 Oils. “[C]lass members in CLRA and UCL actions are not required to prove their 3 individual reliance on the allegedly misleading statements.” Bradach, 735 F. App’x at 254. 4 Rather, “the standard in actions under both the CLRA and the UCL is whether ‘members 5 of the public are likely to be deceived.’” Id. (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 6 951 (2002), as modified (May 22, 2002). And, as noted supra at 15, the standard for the 7 New York claims is the same. See In re 5-Hour Energy, 2017 WL 2559615, at *6. 8 Defendant’s second argument, that Plaintiffs have not shown that they or the class 9 members paid a higher price than they would have but for the challenged claim, is similarly 10 meritless. It does not matter what Plaintiffs’ reasons for purchasing Defendant’s Products 11 were, as “all potential class members were exposed to the same alleged misrepresentation.” 12 Alvarez v. NBTY, Inc., 331 F.R.D. 416, 422 (S.D. Cal. 2019). “Plaintiff[s] therefore 13 allege[] the same injury as the class members: monetary loss from purchasing a product 14 based on alleged misrepresentations.” Id. Additionally, even if the challenged labels were 15 not a reason for Plaintiffs to pay more money for the product, “a plaintiffs’ individual 16 experience with the product is irrelevant where . . . the injury under the UCL, FAL, and 17 CLRA is established by an objective test.” Bruno v. Quten Research Inst., LLC, 280 F.R.D. 18 524, 534 (C.D. Cal. 2011). Thus, the only relevant question, both for Plaintiffs and the 19 members of the Classes, is whether “members of the public are likely to be deceived,” id., 20 not their reasons for purchasing the product. Typicality does not turn on the “specific facts 21 from which [the claim] arose.” Hanon, 976 F.2d at 508. 22 Defendant’s third and final argument—that Plaintiffs cannot claim reliance on any 23 of Defendant’s statements—likewise lacks merit. “[T]he defense of non-reliance is not a 24 basis for denial of class certification,” id. at 509; rather, it goes to the merits of the case 25 and is inappropriate for a court to consider during class certification. See In re Pizza Time 26 Theatre Sec. Litig., 112 F.R.D. 15, 22 (N.D. Cal. 1986). Moreover, reliance is not an 27 element of the New York claims. See Hasemann v. Gerber Prods. Co., 331 F.R.D. 239, 28 257 (E.D.N.Y. 2019). 17 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6889 Page 18 of 35 1 “At bottom, plaintiffs are typical if they possess the same injury as the class they 2 seek to represent and were injured by the same course of conduct.” Longest v. Green Tree 3 Servicing LLC, 308 F.R.D. 310 (C.D. Cal. 2015). Here, Plaintiffs allege the same injury 4 as the members of the Classes they seek to represent and allege they were injured by the 5 same course of conduct—Defendant’s alleged mislabeling. See generally Mot. Mem. It 6 is true that Plaintiffs did not purchase every size and type of the Coconut Oils. Id. at 12. 7 However, Rule 23(a)(3) only requires that the unnamed plaintiffs have injuries like those 8 of the class representatives and that those injuries resulted from the same course of conduct. 9 See Des Roches v. Cal. Physicians’ Serv., 320 F.R.D. 486, 504 (N.D. Cal. 2017); see also 10 In re TFT–LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 593 (N.D. Cal. Mar. 28, 11 2010) (“The typicality requirement does not mandate that the products purchased . . . be 12 the same as those of absent class members.”). Such is the case here. 13 Additionally, several courts have recognized that when a defendant engages in a 14 “common scheme” towards all class members—as Plaintiffs allege, see Mot. Mem. at 12, 15 and Defendant does not rebut, see generally Reply—there is a strong presumption of 16 typicality. See, e.g., Willis v. Big Lots, Inc., 242 F. Supp. 3d 634, 645 (S.D. Ohio 2017); 17 In re Catfish Antitrust Litig., 826 F. Supp. 1019, 1035 (N.D. Miss. 1993); In re Linerboard 18 Antitrust Litig., 203 F.R.D. 197, 207 (E.D. Pa. 2001); In re Commercial Tissue Products, 19 183 F.R.D. 589, 593 (N.D. Fla. 1998); Weisfeld v. Sun Chem. Corp., 210 F.R.D. 136, 140 20 (D.N.J. 2002). In sum, the Court finds that Plaintiffs have established typicality. See 21 generally Martin v. Monsanto Co., No. ED CV 16-2168-JFW (SPx), 2017 WL 1115167, 22 at *4 (C.D. Cal. Mar. 24, 2017) (finding typicality satisfied on similar mislabeling claims). 23 4. 24 Finally, Rule 23(a)(4) requires that “the representative parties will fairly and 25 adequately protect the interests of the class.” In making this determination, “[courts] ask 26 two questions: (1) Do the representative plaintiffs and their counsel have any conflicts of 27 interest with other class members, and (2) will the representative plaintiffs and their 28 counsel prosecute the action vigorously on behalf of the class?” Staton, 327 F.3d at 957. Adequacy 18 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6890 Page 19 of 35 1 Plaintiffs contend that they are adequate class representatives “because they are bona 2 fide purchasers with standing who relied on the challenged claims in purchasing the 3 Coconut Oils, have no conflicts, are aware of their obligations, and will continue to 4 vigorously prosecute the case for the Class.” Mot. Mem. at 14. However, Defendant 5 maintains that the Plaintiffs are not credible and therefore inadequate representatives. 6 Opp’n at 23. Specifically, Defendant contends that (1) each Plaintiff participated in a class 7 settlement for BetterBody coconut oil; (2) the deposition testimony of two Plaintiffs failed 8 to disclose that they had purchased BetterBody coconut oil; (3) one Plaintiff falsely 9 testified about where he purchased Defendant’s product; and (4) one Plaintiff falsely 10 testified that he was not a participant in any other coconut oil litigation. Opp’n at 23–25. 11 In reply, Plaintiffs argue that these allegations do not render them inadequate class 12 representatives, and, at any rate, Defendant mischaracterizes their testimony. Reply at 5. 13 “[T]he honesty and credibility of a class representative is a relevant consideration 14 when performing the adequacy inquiry ‘because an untrustworthy plaintiff could reduce 15 the likelihood of prevailing on the class claims.’” Harris v. Vector Mktg. Corp., 753 F. 16 Supp. 2d 996, 1015 (N.D. Cal. 2010) (citation omitted). “[A] plaintiff with credibility 17 problems may be considered to have interests antagonistic to the class.” Id. (citation 18 omitted). However, “credibility problems do not automatically render a proposed class 19 representative inadequate.” Del Valle v. Global Exch. Vacation Club, 320 F.R.D. 50, 59 20 (C.D. Cal. 2017) (quoting Harris, 753 F. Supp. 2d at 1015). “Only when attacks on the 21 credibility of the representative party are so sharp as to jeopardize the interests of absent 22 class members should such attacks render a putative class representative inadequate.” 23 Nunez, 292 F. Supp. 3d at 1035 (quoting Harris, 753 F. Supp. 2d at 1015). Further, “a 24 finding of inadequacy based on the representative[’s] . . . credibility problems is only 25 appropriate where the representative’s credibility is seriously questioned on issues directly 26 relevant to the litigation or there are confirmed examples of dishonesty, such as a criminal 27 conviction for fraud.” Del Valle, 320 F.R.D. at 59 (quoting Harris, 753 F. Supp. 2d at 28 1015). 19 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6891 Page 20 of 35 1 The question, then, is whether the alleged inconsistent statements render Plaintiffs 2 not credible to such an extent that they are inadequate class representatives. It is possible, 3 as Plaintiffs argue, that Plaintiffs’ alleged misrepresentations were due to faulty memory. 4 See, e.g., Reply at 5. But even assuming arguendo that Plaintiffs’ testimony contains 5 intentional falsehoods, the purported misrepresentations are not sufficient to render 6 Plaintiffs incredible to such an extent that they are inadequate representatives. Defendant 7 points to one alleged inconsistency in each Plaintiff’s testimony (and, in the case of 8 Plaintiff Pierre, two). See Opp’n at 23–25. However, this Court has previously recognized 9 that a single inconsistency in testimony is not sufficient to render a putative class 10 representative inadequate due to a lack of credibility. See Nunez, 292 F. Supp. 3d at 1035.4 11 Moreover, as in Nunez, Plaintiffs are “at some level engaged with the litigation,” id., as 12 they have given depositions and—in the case of Plaintiff Pierre—explained the 13 misstatements. Reply at 5. Furthermore, that Plaintiff Shanks previously served as a Class 14 Representative in a different coconut oil class action lawsuit, see Shanks, 2019 WL 15 4398506, at *1, may in fact boost his adequacy as a class representative. “[R]epeat litigants 16 may be better able to monitor the conduct of counsel, who as a practical matter are the 17 class’s real champions.” Bruno, 280 F.R.D. at 534 (quoting Holloway v. Full Spectrum 18 Lending, No. CV 06–5975 DOC (RNBx), 2007 WL 7698843 (C.D. Cal. June 26, 2007)). 19 In any event, none of Plaintiffs’ alleged misstatements are “directly relevant to the 20 litigation.” Del Valle, 320 F.R.D. at 59 (quoting Harris, 753 F. Supp. 2d. at 1015). As to 21 the California claims, “[f]or purposes of class certification, the UCL, FAL, and CLRA are 22 materially indistinguishable.” Townsend, 303 F. Supp. 3d at 1043. To prove their claims 23 under the UCL, FAL, and CLRA, Plaintiffs must demonstrate that “that the challenged 24 statements are material and likely to mislead or deceive consumers on a classwide basis.” 25 26 4 27 28 The specific issue in Nunez was that the putative class representative claimed not to have been told when the date of mediation was, despite prior testimony that he had been told the date. Nunez, 292 F. Supp. 3d at 1034–35. The Court finds that the alleged inconsistent testimony of Plaintiffs here to be similar to that of the plaintiff in Nunez. 20 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6892 Page 21 of 35 1 Id. (citing In re 5-Hour Energy, 2017 WL 2559615, at *6). Similarly, for the New York 2 UDBP and FAL claims, “a plaintiff must allege that a defendant has engaged in (1) 3 consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered 4 injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 5 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 6 940, 944 (2012)). Based on what is directly relevant to this litigation—i.e., the elements 7 that Plaintiffs must prove—it is immaterial that Plaintiffs claim they did not buy 8 BetterBody coconut oil, or that Plaintiff Pierre claims he bought Defendant’s Products from 9 Walmart. In other words, what matters is whether Plaintiffs’ credibility undermines their 10 California and New York claims, not whether they lied about purchasing a brand of coconut 11 oil not at issue here. See Harris, 753 F. Supp. 2d at 1015 (“[A]ny issues of the Plaintiff’s 12 credibility should be tied to his claims in this action.” (citation omitted); see also Del 13 Campo v. Am. Corr. Counseling Servs., Inc., No. C 01-21151 JW (PVT), 2008 WL 14 2038047, at *4 (N.D. Cal. May 12, 2008) (“[G]enerally, unsavory character or credibility 15 problems will not justify a finding of inadequacy unless related to the issues in the 16 litigation.”) (citation omitted). 17 The only two authorities Defendant cites in support of its argument are Del Valle v. 18 Global Exchange Vacation Club and Harris v. Vector Marketing Corporation. See Opp’n 19 at 23–25. However, these cases do not help Defendant. In Del Valle, as here, the putative 20 class representative gave inconsistent testimony, but the court found that this “[did] not 21 rise to the requisite level of dishonesty” to render her an inadequate class representative. 22 320 F.R.D. at 59. 23 representative’s statements were not relevant to the claims in the litigation. 753 F. Supp. 24 2d at 1015–16. Consequently, relying on the very authorities cited by Defendant, the Court 25 finds that Plaintiffs can adequately represent the members of the proposed Classes. Meanwhile, in Harris, the court found that the putative class 26 Finally, Defendant does not argue that Plaintiffs’ counsel are inadequate. See 27 generally Opp’n. Plaintiffs, meanwhile, assert that their counsel are adequate, having no 28 conflicts and extensive experience prosecuting consumer fraud class actions. See Mot. 21 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6893 Page 22 of 35 1 Mem. at 14. Where counsel have vigorously represented the class, have experience with 2 class action litigation, and “are knowledgeable about the applicable law,” they are 3 generally adequate. Nunez, 292 F. Supp. 3d at 1035. Plaintiff’s counsel have experience 4 litigating consumer class actions, including “several similar actions involving deceptive 5 healthy labeling practices on coconut oils.” Mot. Mem. at 14. Consequently, the Court 6 finds that Plaintiffs’ counsel are able to represent the Classes adequately. 7 In sum, the Court finds that Plaintiffs are adequate class representatives and that 8 class counsel are also adequate. Thus, the adequacy requirement is satisfied. Plaintiffs 9 therefore have satisfied the four requirements of Rule 23(a), and the Court proceeds to 10 analyze the requirements of Rule 23(b)(3). 11 B. 12 Rule 23(b)(3) states that a class may be maintained if the requirements of Rule 23(a) 13 are fulfilled and if “the court finds that the questions of law or fact common to the class 14 members predominate over any questions affecting only individual members, and that a 15 class action is superior to other available methods for fairly and efficiently adjudicating the 16 controversy.” Fed. R. Civ. P. 23(b)(3). The Court will address each of these requirements 17 in turn. 18 Rule 23(b)(3) Requirements 1. Predominance of Common Issues 19 The predominance analysis focuses on “the legal or factual questions that qualify 20 each class member’s case as a genuine controversy” to determine “whether proposed 21 classes are sufficiently cohesive to warrant adjudication by representation.” Amchem 22 Prods. Inc. v. Windsor, 521 U.S. 591, 623 (1997); see also Fed. R. Civ. P. 23(b)(3) (stating 23 that, to certify a class, the court must find that “questions of law or fact common to class 24 members predominate over any questions affecting only individual members”). 25 “Considering whether questions of law or fact common to class members predominate 26 begins . . . with the elements of the underlying cause of action.” Erica P. John Fund, Inc. 27 v. Halliburton Co., 563 U.S. 804, 809 (2011) (quotation marks omitted). A court must 28 analyze these elements to “determine which are subject to common proof and which are 22 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6894 Page 23 of 35 1 subject to individualized proof.” In re TFT–LCD I, 267 F.R.D. at 310–11. At least one 2 district court within the Ninth Circuit has applied a preponderance of the evidence standard 3 to the Rule 23 requirements, including the requirement of predominance of common 4 questions. See Shanks, 2019 WL 4398506, at *3 (“Although neither the Ninth Circuit nor 5 the Supreme Court has decisively attached a standard of proof to Rule 23’s requirements, 6 many courts apply the preponderance of the evidence standard. The Court finds that this 7 is the appropriate burden of proof.”) (citations omitted). 8 9 Defendant contends that Plaintiffs cannot satisfy the requirements of Rule 23(b)(3) for several reasons, see generally Opp’n, which the Court addresses below. 10 a. The Applicability of Plaintiffs’ Case Law 11 Defendant first takes aim at Plaintiffs’ claim that a violation under the UCL and the 12 FAL can be shown without proof of deception, reliance, and damage. Opp’n at 12. 13 Defendant cites to the California Supreme Court case In re Tobacco II Cases, 46 Cal. 4th 14 298 (2009), in support of its argument. Id.5 In In re Tobacco II, the plaintiff sued various 15 tobacco companies alleging, among other claims, violations of the UCL, FAL, and CLRA. 16 46 Cal. 4th at 299. Defendant cites to the statement that “a class representative proceeding 17 on a claim of misrepresentation as the basis of his or her UCL action must demonstrate 18 actual reliance on the allegedly deceptive or misleading statements.” Opp’n at 12 (citing 19 In re Tobacco II, 46 Cal. 4th at 306). However, Defendant omits what the California 20 Supreme Court says later in the very same opinion: “a presumption, or at least an inference, 21 of reliance arises wherever there is a showing that a misrepresentation was material.” In 22 re Tobacco II, 46 Cal. 4th at 327 (citations omitted). 23 Here, Plaintiffs contend, and the Court agrees, that the deposition testimony of 24 Defendant’s Rule 30(b)(6) representative and the existence of Food and Drug 25 Administration regulations prohibiting certain of the challenged statements on the 26 27 28 Defendant further claims that “the applicability of the case law cited by Plaintiffs is questionable, at best,” Opp’n at 12; however, Plaintiffs cite to Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145, 154 (2010), which was decided after In re Tobacco II, see Mot. Mem. at 16. 5 23 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6895 Page 24 of 35 1 Products’ labels evidence materiality. 2 Accordingly, an inference of reliance on the contested statements arises, and thus 3 Defendant’s contention that Plaintiffs misstate the case law is without merit. 4 b. See Mot. Mem. at 17 (citations omitted). Evidence of Materiality and Likelihood of Deception 5 Defendant next contends that Plaintiffs must put forth evidence of materiality and 6 likelihood of deception for the Court to certify the Classes. Opp’n at 12. Defendant relies 7 on Shanks, supra, to support its argument. Opp’n at 12. In Shanks, the court denied a 8 motion for class certification on the ground that the plaintiff had not put forth evidence that 9 the challenged statements were material. 2019 WL 4398506, at *5. Shanks is like the 10 present litigation—right down to the putative class representative (Plaintiff Shanks) and 11 the product at issue (coconut oil). Id. at *1. Determinative to the court’s analysis in Shanks 12 was the fact that the “[p]laintiff . . . demonstrated no evidence to show that a reasonable 13 consumer would look at the challenged statements and determine that these statements 14 meant Defendant’s coconut oil products are healthy, or otherwise rely in any way on those 15 statements in deciding whether to purchase Defendant’s coconut oil.” Id. at *7. 16 The Court notes that there is a split of authority among district courts within the 17 Ninth Circuit as to what evidence of materiality and deception under the UCL, FAL, and 18 CLRA is sufficient to satisfy Rule 23(b)(3). Compare id. at *5 (finding Rule 23(b)(3) not 19 satisfied where the plaintiff did not conduct any type of survey to determine whether the 20 challenged statements were material), Townsend, 303 F. Supp. 3d at 1044 (finding Rule 21 23(b)(3) not satisfied because plaintiff’s expert’s report “[did] not provide insight into 22 consumers’ purchasing decisions”), In re 5-Hour Energy, 2017 WL 2559615, at *8 (finding 23 Rule 23(b)(3) not satisfied because the plaintiffs had not conducted any type of consumer 24 survey or market research), and In re ConAgra, 302 F.R.D. at 577 (finding Rule 23(b)(3) 25 not satisfied because expert reports had not been submitted to the court, so “the court ha[d] 26 difficulty according them great weight”), with Krommenhock v. Post Foods, LLC, 334 27 F.R.D. 552, 563 (N.D. Cal. 2020) (finding Rule 23(b)(3) satisfied when plaintiffs relied on 28 /// 24 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6896 Page 25 of 35 1 similar evidence as Plaintiffs here), and Hadley, 324 F. Supp. 3d at 1115 (finding Rule 2 23(b)(3) satisfied even though plaintiff had not presented any survey evidence to the court). 3 Notwithstanding, in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 4 568 U.S. 455 (2013)—which admittedly involved securities fraud rather than consumer 5 misrepresentations—the U.S. Supreme Court specifically addressed Rule 23(b)(3)’s 6 predominance requirement. Id. at 458–59. As relevant here, the Supreme Court noted that 7 “Rule 23(b)(3) requires a showing that questions common to the class predominate, not 8 that those questions will be answered, on the merits, in favor of the class.” Id. at 459 9 (emphasis removed). According to the Supreme Court, materiality, when judged by an 10 objective standard, is a common question for purposes of Rule 23(b)(3). Id. The Supreme 11 Court further added that “[a] failure of proof on the common question of materiality ends 12 the litigation and thus will never cause individual questions of reliance or anything else to 13 overwhelm questions common to the class.” Id. at 468. As with the securities fraud claims 14 at issue in Amgen, materiality and deception under the CLRA, FAL, and UCL is governed 15 by an objective standard, see Bruno, 280 F.R.D. at 534, and the standard for the New York 16 claims is the same, see Hasemann, 331 F.R.D. at 257. 17 Thus, in light of Amgen, the Court finds more persuasive those cases requiring proof 18 only of a common question of materiality and reliance rather than proof of those issues on 19 the merits at the class certification stage. This conclusion is further reinforced by the Ninth 20 Circuit’s unpublished opinion in Bradach, 735 F. App’x 251, where the Ninth Circuit held 21 that a district court’s conclusion that a proposed class failed the ascertainability, 22 commonality, predominance, and superiority requirements in a putative class action 23 asserting false and misleading labeling claims under the UCL and CLRA because “it would 24 need to inquire into the motives of each individual class member” was an error of law and 25 abuse of discretion. Id. at 254–55. 26 The Court finds Plaintiffs have satisfied that burden here. But even assuming 27 Defendant’s position were correct, the Court finds that Plaintiffs have provided sufficient 28 evidence of materiality and likelihood of deception. Plaintiffs have put forth the testimony 25 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6897 Page 26 of 35 1 of Dr. Greger, opining on the health effects of Defendant’s Products. See Mot. Mem. at 2 18; see also Report of Dr. Michael Greger, M.D. FACLM (ECF No. 70-13). Courts have 3 recognized that testimony such as this can be sufficient to establish a likelihood of 4 deception for purposes of Rule 23(b)(3). See, e.g., Hadley, 324 F. Supp. 3d at 1115; 5 Krommenhock, 334 F.R.D. at 569. Plaintiffs also have produced materials that show that 6 the materiality standard purportedly is met, including Defendant’s own Rule 30(b)(6) 7 testimony and internal documents. See Mot. Mem. at 9, 17 (citations omitted). Again, 8 such evidence can be sufficient to establish materiality. See Hadley, 324 F. Supp. 3d at 9 1115 (recognizing, in part, that materiality can be established via internal documents that 10 show the defendant “deliberately crafted and displayed . . . challenged health statements” 11 to boost sales); see also Hinojos v. Kohls Corp., 718 F.3d 1089, 1107 (9th Cir. 2013) 12 (holding a misrepresentation can be material where its maker “knows or has reason to know 13 that its recipient regards or is likely to regard the matter as important in determining his 14 course of action”) (emphasis removed). Thus, Plaintiffs have put forth sufficient evidence 15 of materiality and likelihood of deception to satisfy the predominance requirement. 16 Shanks, the case Defendant principally relies on in its Opposition, is distinguishable. 17 The at-issue statements in Shanks were, according to the court, “scientific terms . . . 18 unlikely to be understood by an average consumer.” 2019 WL 4398506, at *5. However, 19 the court noted that “a label that says ‘Helps Maintain a Healthy Heart’ could be considered 20 material and likely to lead a significant portion of the public to believe that the product 21 does in fact maintain a healthy heart.” Id. (citing Bradach, 735 F. App’x at 252). Unlike 22 Shanks, the challenged statements here include phrases such as “HEALTHY 23 ALTERNATIVE TO BUTTER” and “Nature’s Most Versatile Superfood.” See generally 24 Compl. The Court finds that these statements would be likely to lead a significant portion 25 of consumers to believe that Defendant’s Coconut Oils are healthy. 26 Defendant further contends that Ms. Butler’s survey “rebuts any presumption that 27 the challenged statements were material and that a significant portion of consumers relied 28 on, and were likely to be deceived by, the challenged statements.” Opp’n at 20 (quoting 26 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6898 Page 27 of 35 1 Shanks, 2019 WL 4398506, at *6). Again, the Court disagrees. According to Defendant, 2 Ms. Butler’s survey demonstrates that most consumers do not buy Defendant’s Coconut 3 Oils because of the claims on their labels. Id. at 19. However, “[t]o establish materiality, 4 a plaintiff is not required to show that the challenged statement is the ‘sole or even the 5 decisive cause’ influencing the class members’ decisions to buy the challenged product.” 6 Bailey, 2021 WL 1668003, at *8 (quoting Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 327 7 (2010)). Similarly, Defendant’s claim that Ms. Butler’s survey shows that consumers 8 purchase its Coconut Oils for a variety of reasons has no bearing on whether common 9 issues predominate. The question of whether Defendant’s statements were material 10 “focuses on [Defendant’s] representations about the product and applies a single, objective, 11 ‘reasonable consumer’ standard—not, as Defendant[] urge[s], a subjective test that inquires 12 into each class members’ experience with the product.” Bruno, 280 F.R.D. at 537; see also 13 Bradach, 735 F. App’x at 254 (holding it is an error of law for a district court to “inquire 14 into the motives of each individual class member” at the class certification stage). 15 Defendant further contends that Plaintiffs must show materiality for their express 16 warranty claims, and materiality and likelihood of deception for their UDBP and NY FAL 17 claims. See Mot. Mem. at 12, 14. However, for the reasons already stated, the Court finds 18 that Plaintiffs have shown these issues can be resolved through common proof. Defendant 19 further argues that for Plaintiffs’ misbranding claims under the UCL, there must be proof 20 of reliance. Mot. Mem. at 13. Yet Plaintiffs need not prove reliance for UCL claims. See 21 Martin, 2017 WL 1115167, at *7. 22 As a final note, the Court recognizes that, even though the question of likelihood of 23 deception uses a reasonable consumer standard, the Ninth Circuit has held that common 24 evidence cannot show the likelihood of deception where every consumer was not exposed 25 to the product. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 596 (9th Cir. 26 2012). However, where there is a high likelihood that the consumer would have been 27 exposed to the misleading statements in buying the product, courts may infer the consumer 28 had been exposed to the misleading statements. See Bailey, 2021 WL 1668003, at *6 27 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6899 Page 28 of 35 1 (citing Ehret v. Uber Techs., Inc., 148 F. Supp. 3d 884, 895 (N.D. Cal. 2015)). The 2 statements at issue in this litigation appear on the containers in which Defendant’s Coconut 3 Oils are sold. See FAC ¶¶ 54–57. Thus, the Court can, and does, infer class-wide exposure 4 to the allegedly misleading statements here, particularly given that Defendant “does not 5 contest that its coconut oils were consistently labeled with the challenged claims.” Reply 6 at 3 (emphasis added). 7 c. Damages 8 To satisfy Rule 23(b)(3), Plaintiffs must also provide the Court with a model of 9 damages that measures “only those damages attributable to [Plaintiffs’] theory.” Comcast, 10 569 U.S. at 35. “Calculations need not be exact, but at the class-certification stage . . . any 11 model supporting a ‘plaintiff’s damages case must be consistent with its liability case.’” 12 Id. (citations omitted). “[F]or purposes of Rule 23, courts must conduct a ‘rigorous 13 analysis’ to determine whether that is so.” Id. (quoting Dukes, 564 U.S. at 350). 14 The Ninth Circuit has recognized that, “[u]nder California consumer protection laws, 15 plaintiffs can measure class-wide damages using methods that evaluate what a consumer 16 would have been willing to pay for the product had it been labeled accurately.” Zakaria v. 17 Gerber Prods. Co., 755 F. App’x 623, 624 (9th Cir. 2018) (citing Pulaski & Middleman, 18 LLC v. Google, Inc., 802 F.3d 979, 989 (9th Cir. 2015)). This “conjoint analysis” is 19 generally accepted as a means of measuring damages under Comcast. See Odyssey 20 Wireless, Inc. v. Apple, Inc., No. 15-cv001735-H-RBB, 2016 WL 7644790, at *9 (S.D. 21 Cal. Sept. 14, 2016). However, this analysis “must . . . reflect supply-side considerations 22 and marketplace realities that would affect product pricing.” Zakaria, 755 F. App’x at 624. 23 “Where . . . the proposed damages model seeks to measure the price premium, class 24 certification can be denied under Comcast ‘when the proposed price premium (i.e., 25 overpayment) methodology fails to isolate the premium attributable only to the alleged 26 misleading marketing statement.’” McMorrow v. Mondelez Int’l, Inc., No. 17-cv-2327- 27 BAS-JLB, 2021 WL 859137, at *11 (S.D. Cal. Mar. 8, 2021) (citation omitted). 28 /// 28 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6900 Page 29 of 35 1 Here, Defendant does not seem to challenge Plaintiffs’ proposed calculation of 2 damages for the breach of warranty claims and the UDBP and NY FAL claims.6 See 3 generally Opp’n. Instead, Defendant takes aim at Plaintiffs’ proposed CLRA, UCL, and 4 FAL damages methodology.7 5 “The damages and restitution owed to a plaintiff pursuant to the CLRA, and UCL 6 and FAL, respectively, is based on the difference between the price the consumer paid and 7 the price a consumer would have been willing to pay for the product had it been labeled 8 accurately.” Bailey, 2021 WL 1668003, at *14 (citing Pulaski & Middleman, 802 F.3d at 9 988–89). Plaintiffs contend that Dr. Dennis’s survey will “isolate and quantify the market 10 price premium associated with the Challenged Claims.” Mot. Mem. at 23. Plaintiffs 11 further contend that Dr. Dennis will account for supply-side considerations, as the survey 12 will reflect real-world prices and “‘the quantity used’ in the market simulator will ‘reflect 13 the actual quantity of products supplied during the Class Period.’” Id. at 23–24. 14 Defendant, however, argues that Dr. Dennis’s survey is flawed because it is not 15 designed to determine whether a significant portion of the public would read Defendant’s 16 labels, conclude the Products are healthy, and purchase the Products on that basis. Opp’n 17 at 16. Defendant further argues that its expert, Ms. Butler, proves Dr. Dennis’s survey is 18 flawed in two ways: (1) it “assumes that consumers’ awareness and perceptions of the at 19 issue health claims would be the result of their exposure to [Defendant’s] product label,” 20 and (2) the survey “is likely to only measure consumers’ preferences for actual attributes 21 of coconut oil, not perceptions about coconut oil based on the label’s claims.” Id. 22 23 24 25 26 6 The calculation of damages under the UDBP and NY FAL is provided by statute, thus providing an easy way for conjoint analysis to measure damages, see Famular v. Whirlpool Corp., 16 CV 944 (VB), 2019 WL 1254882, at *11 (S.D.N.Y. Mar. 19, 2019); further, Plaintiffs contend that Dr. Weir’s analysis will accurately measure these damages, see Mot. Mem. at 25, thus satisfying Comcast. Specifically, Defendant contends that the proposed damages methodology is “substantially the same as, and in most cases identical to, the report submitted in [Shanks].” Opp’n at 16. However, the Shanks court rested its decision not to certify the class at issue on Rule 23(b)(3)’s predominance requirement and did not reach the issue of whether the damages methodology was sound. See generally 2019 WL 4398506. 7 27 28 29 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6901 Page 30 of 35 1 Defendant also argues that Dr. Weir’s proposed conjoint analysis is flawed because it 2 considers neither demand-side factors nor the fact that purchasers of Defendant’s Products 3 have other uses for the Products besides ingestion. Id. at 18. Finally, Defendant points out 4 that Dr. Dennis has not actually conducted the survey, which it claims to be “fatal” to 5 Plaintiff’s Motion. Id. at 16. The Court addresses each of these arguments in turn. 6 Plaintiffs seek restitution for their claims under the UCL, FAL, and CLRA. Mot. 7 Mem. at 22. “The proper measure of restitution in a mislabeling case is the amount 8 necessary to compensate the purchaser for the difference between the product as labeled 9 and the product as received.” In re 5-Hour Energy, 2017 WL 2559615, at *10 (quoting 10 Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 700 (2006)). 11 Defendant’s first argument is that Dr. Dennis’s survey is flawed because it will not 12 determine whether a significant portion of the public would read Defendant’s labels, 13 conclude the Products are healthy, and purchase the Products based on the labels. Opp’n 14 at 16. Plaintiffs contend that it is not their burden to establish this. Reply at 10 (citing 15 Hadley, 324 F. Supp. 3d at 1116; Krommenhock, 334 F.R.D. at 375). However, Plaintiffs 16 still must show that Dr. Dennis’s model is consistent with their theory of liability in this 17 case to satisfy Comcast. Thus, Dr. Dennis’s model must be able to determine the price 18 premium that is attributable to Defendant’s alleged misleading statements. See Townsend, 19 303 F. Supp. 3d at 1048 (citing In re 5-Hour Energy, 2017 WL 2559615, at *10). 20 Dr. Dennis’s survey seeks to measure what consumers paid based on the allegedly 21 misleading statements. Mot. Mem. at 23. Dr. Dennis’s survey will also consider 22 consumers’ purchasing habits, such as whether they read the label and what they 23 understand label claims to mean. Reply Dennis Decl. ¶¶ 27–28. Thus, the survey is 24 “directly tied to the theory of liability in the case.” Bailey, 2021 WL 1668003, at *15. 25 Indeed, “[i]n mislabeling cases where the injury suffered by consumers was in the form of 26 an overpayment resulting from the alleged misrepresentation . . . courts routinely hold that 27 choice-based conjoint models that are designed to measure the amount of overpayment 28 satisfy Comcast.” Id. (citing Zakaria v. Gerber Products, No. LACV1500200JAKEX, 30 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6902 Page 31 of 35 1 2017 WL 9512587, at *17 (C.D. Cal. Aug. 9, 2017), aff’d, 755 F. App’x 623 (9th Cir. 2 2018); Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013)). 3 Defendant nonetheless argues that Ms. Butler proves that Dr. Dennis’s survey is 4 flawed in two ways. First, although Defendant argues that Dr. Dennis’s survey “assumes 5 that consumers’ awareness and perceptions of the at issue health claims would be the result 6 of their exposure to the Barlean’s product label,” Opp’n at 16, Dr. Dennis not only includes 7 the contested phrases in his conjoint analysis, see Dennis Decl. ¶ 31, but also includes non- 8 health-related “distractor” claims such as “Ideal for Cooking” and “Rich & Full Coconut 9 Flavor,” id. ¶ 85. Moreover, Dr. Dennis includes other attributes, such as nutrition facts, 10 to analyze and control for consumers’ buying preferences. Id. ¶ 83. Most crucially, 11 however, Dr. Dennis provides survey respondents with four brand names other than 12 Defendant’s—Nature’s Way, Nutiva, Spectrum, and Jarrow Formulas. Id. Thus, it cannot 13 be said that Dr. Dennis assumes consumers’ awareness of the at-issue claims would be the 14 result of exposure to Defendant’s Products, as survey respondents are provided with other 15 brands from which to choose in measuring and analyzing their purchasing preferences. 16 Second, Defendant contends that the survey “is likely to only measure consumers’ 17 preferences for actual attributes of coconut oil, not perceptions about coconut oil based on 18 the label’s claims” and cites Townsend v. Monster Beverage Corp., supra, in support of 19 this argument. Opp’n at 16. But the main issue with the conjoint analysis in Townsend 20 was that the analysis suffered from “focalism bias.” See 303 F. Supp. 3d at 1049–50. 21 Focalism bias occurs where “attributes are displayed in a way that draws undue attention 22 or omits information that would have been potentially salient in the marketplace, [which] 23 can lead to inflated or unrealistic results.” Id. at 1050 (citations omitted). In Townsend, 24 the survey gave respondents the option to select attributes that were not highly visible on 25 the challenged product. See id. Here, however, the challenged labels are readily visible 26 on Defendant’s Products. See, e.g., FAC ¶ 52. 27 Even assuming, arguendo, that Plaintiffs’ survey fails to consider the individual 28 perceptions of consumers, an argument about consumers’ perceptions of Defendant’s 31 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6903 Page 32 of 35 1 labels reflects a dispute about materiality—whether “members of the public are likely to 2 be deceived.” Hadley, 324 F. Supp. 3d at 1095 (quoting In re Tobacco II, 46 Cal. 4th at 3 312). A dispute about the scope of Defendant’s liability “is not appropriate for resolution 4 at the class certification stage of this proceeding.” Bailey, 2021 WL 1668003, at *16 (citing 5 Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. 2016)). Rather, “[t]he 6 Court’s task at the class certification stage is to ensure that the class is not defined so 7 broadly as to include a great number of members who for some reason could not have been 8 harmed by the defendant’s allegedly unlawful conduct.” Id. (quoting Ruiz Torres, 835 9 F.3d at 1138) (internal quotation marks omitted). Because Defendant’s alleged 10 misrepresentations were made consistently on its labels, all members of the proposed 11 Classes necessarily would be harmed if the alleged misrepresentations were material. 12 Defendant also argues that the conjoint analysis that will be conducted by Dr. Weir 13 is flawed because it does not consider demand-side factors or the fact that purchasers of 14 Defendant’s Products have other uses for the Products besides ingestion. However, 15 Plaintiffs’ model controls for demand-side factors like whether the products are used for 16 ingestion. See Reply Dennis Report ¶ 29. Thus, the value (or lack thereof) placed on 17 Defendant’s Products by consumers who do not ingest them will be reflected in the ultimate 18 results of the survey. See id. In sum, the Court finds Defendant’s arguments unpersuasive. 19 Dr. Dennis’s and Dr. Weir’s proposed analyses effectively capture both supply-side and 20 demand-side factors. 21 Plaintiffs’ theory of liability. See Comcast, 569 U.S. at 35. The proposed damages methodology is thus consistent with 22 Finally, Defendant claims that it is “fatal” to certification that Plaintiffs’ experts have 23 not actually conducted their proposed survey and conjoint analysis. Opp’n at 16. There is 24 a divide among district courts within the Ninth Circuit as to whether a proposed conjoint 25 analysis must be performed at the class certification stage to satisfy the requirements of 26 Comcast. Compare Bailey, 2021 WL 159208, at *14 n.14 (“A plaintiff is not required to 27 actually execute a proposed conjoint analysis to show that damages are capable of 28 determination on a class-wide basis with common proof.”), and Hadley, 324 F. Supp. 3d 32 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6904 Page 33 of 35 1 at 1103 (holding a proposed damage model sufficient to satisfy Comcast), with In re 2 ConAgra, 302 F.R.D. at 577–78 (“[The expert] does not report that he has actually 3 employed [conjoint analysis] to identify the price premium he believes will provide the 4 classwide measure of relief. This alone suffices to support a finding that plaintiffs have 5 not shown that damages can be calculated on a classwide basis.”). However, in resolving 6 this divide, the Court finds determinative the U.S. Supreme Court’s statement in Comcast 7 that a plaintiff need only show that “damages are capable of measurement.” Comcast, 569 8 U.S. at 34 (emphasis added). There is nothing in the opinion to suggest that the damages 9 calculation must be performed at the class certification stage. See generally id. 10 Accordingly, the Court concludes that the fact that Plaintiffs have not conducted the 11 conjoint analysis is not “fatal” to their ability to satisfy Rule 23(b)(3). 12 The Court therefore concludes that common questions of law or fact predominate 13 over individual issues and that Plaintiffs’ proposed damages model satisfies the 14 requirements of Comcast. Accordingly, the Court finds that Plaintiffs have satisfied the 15 predominance requirement of Rule 23(b)(3). 16 2. Superiority 17 The final requirement for class certification is “that a class action [be] superior to 18 other available methods for fairly and efficiently adjudicating the controversy.” Fed R. 19 Civ. P. 23(b)(3). “In determining superiority, courts must consider the four factors of Rule 20 23(b)(3).” Zinser v. Accufix Research Inst., 253 F.3d 1180, 1190 (9th Cir. 2001). Those 21 factors are: 22 23 24 25 (A) [T]he class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. 26 27 Fed. R. Civ. P. 23(b)(3). The superiority inquiry focuses “on the efficiency and economy 28 elements of the class action so that cases allowed under [Rule 23(b)(3)] are those that can 33 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6905 Page 34 of 35 1 be adjudicated most profitably on a representative basis.” Zinser, 253 F.3d at 1190 2 (internal quotation marks omitted). A district court has “broad discretion” in determining 3 whether class treatment is superior. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th 4 Cir. 1975). 5 Plaintiffs devote only one-half of a page of their Motion to the issue of superiority, 6 see Mot. Mem. at 25, and Defendant does not address the issue at all in its Opposition, see 7 generally Opp’n. Thus, the Court only briefly addresses each of the four factors. 8 First, Plaintiffs argue that the proposed class members have no interest in controlling 9 individual actions, as the Products are inexpensive. Mot. Mem. at 25. “Where damages 10 suffered by each putative class member are not large, th[e first] factor weighs in favor of 11 certifying a class action.” In re ConAgra, 302 F.R.D. at 579 (quoting Zinser, 253 F.3d at 12 1190). None of the proposed class members would likely have any interest in litigating 13 these claims by themselves, “because the cost of litigating a single case would undoubtedly 14 exceed the potential return.” Martin, 2017 WL 1115167, at *9; see also Astiana, 291 15 F.R.D. at 507 (citation omitted); cf. Hawkins v. Kroger Co., 337 F.R.D. 518, 543 (S.D. Cal. 16 2020) (“[G]iven the relative inexpensiveness of . . . breadcrumbs, the monetary damages 17 suffered by each putative class member are not large.”). Thus, this factor weighs in favor 18 of certification. 19 Second, Plaintiffs state they are not aware of any related litigation. Mot. Mem. at 20 25. Neither is the Court. While Defendant points out that Plaintiffs were involved in a 21 class settlement for BetterBody coconut oil, and that Plaintiff Shanks was a putative class 22 representative in Shanks, see Mot. Mem. at 12, 23, Defendant does not contest that there is 23 no litigation regarding its own Coconut Oils, see generally Opp’n. Accordingly, this factor, 24 too, favors certification. Third, Plaintiffs argue that the Southern District of California is 25 a desirable forum in part because Plaintiff Testone is a resident of the forum. Mot. Mem. 26 at 25. The Court further notes that, “[g]iven the small recovery any individual plaintiff 27 might expect, . . . concentrating the litigation in a single forum is appropriate.” In re NJOY, 28 120 F. Supp. 3d at 1123. Thus, this factor also favors certification. 34 19-CV-169 JLS (BGS) Case 3:19-cv-00169-JLS-BGS Document 98 Filed 09/28/21 PageID.6906 Page 35 of 35 1 Lastly, Plaintiffs argue that this case is about Defendant’s labeling practices, thus 2 making this class action manageable. Mot. Mem. at 25. The Ninth Circuit has indicated 3 that, where the complexities associated with a class action outweigh the benefits of a 4 regular trial, “class action treatment is not the ‘superior’ method of adjudication.” Zinser, 5 253 F.3d at 1192 (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234–35 (9th 6 Cir. 1996)). However, there is no indication, nor does Defendant contend, that there is any 7 characteristic of this litigation that would make it more difficult to manage than other class 8 action litigations routinely decided by district courts. See Hawkins, 337 F.R.D. at 544 9 (“[T]he likely difficulties in managing this class appear no greater than in multiple other 10 cases in which the class consisted of persons who purchased a product years prior to 11 litigation.”). Accordingly, the final factor also weighs in favor of certification. 12 13 Thus, all the factors favor certification, and the Court finds that the superiority requirement of Rule 23(b)(3) has been met. 14 CONCLUSION 15 In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART 16 Plaintiffs’ Motion to Strike (ECF No. 86), OVERRULES Defendant’s evidentiary 17 objections (ECF Nos. 88, 89), GRANTS Plaintiffs’ Motion for Class Certification (ECF 18 No. 70), CERTIFIES the two proposed Classes, and APPOINTS Plaintiffs Michael 19 Testone, Collin Shanks, and Lamartine Pierre as class representatives and The Law Office 20 of Paul K. Joseph, PC, and The Law Office of Jack Fitzgerald, PC, as class counsel. 21 22 IT IS SO ORDERED. Dated: September 28, 2021 23 24 25 26 27 28 35 19-CV-169 JLS (BGS)

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