In re Conagra Foods, Inc.
In re Conagra Foods, Inc.
Opinion of the Court
On June 28, 2011, Robert Briseno filed a complaint against ConAgra.
I. BACKGROUND
Plaintiffs are consumers residing in twelve different states who purchased Wesson Oils between January 2007 and their entry into this case.
“All persons who reside in the States of California, Colorado, Florida, Illinois, Indiana, Nebraska, New Jersey, New York, Ohio, Oregon, South Dakota, or Texas who have purchased Wesson Oils within the applicable statute of limitations period established by the laws of their state of residence (the ‘Class Period’) through the final disposition of this and any and all related actions.”15
Plaintiffs allege claims for violation of state consumer protection laws, breach of express warranty, breach of the implied warranty of merchantability, and unjust enrichment. Specifically, they plead the following claims:
• California: (1) California Consumer Legal Remedies Act, Cal. Civ.Code §§ 1750, et seq. and California Unfair Competition Law, Cal. Bus. & Prof.Code §§ 17200, et seq. and §§ 17500, et seq.; (2) Cal. Com. Code § 2313; Cal. Com.Code § 2314.
• Colorado: (1) Colorado Consumer Protection Act, Colo.Rev.Stat. §§ 6-1-101, et seq.; (2) Colo.Rev.Stat. § 4-2-313; (2) Colo.Rev.Stat. § 4-2-314; (4) Unjust Enrichment.
■Florida: (1) Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. §§ 501.201, et seq.; (2) Unjust Enrichment.
• Illinois: (1) Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS §§ 505/1, et seq.; (2) Unjust Enrichment.
• Indiana: (1) Ind.Code § 26-1-2-313; (2) Ind.Code § 26-1-2-314; (3) Unjust Enrichment.
■Nebraska: (1) Nebraska Consumer Protection Act, Neb.Rev.Stat. §§ 59-1601, et seq.; (2) Neb.Rev.Stat. § 2-313; (3) Neb. Rev.Stat. § 2-314; (4) Unjust Enrichment.
■New Jersey: (1) New Jersey Consumer Fraud Act, N.J. Stat. Ann. §§ 56:8-1, et seq.; (2) N.J. Stat. Ann. § 12A:2-313; (3) N.J. Stat. Ann. § 12A:2-314;
• New York: (1) New York Consumer Protection Act, N.Y. Gen. Bus. Law §§ 349, et seq.; (2) N.Y. U.C.C. Law § 2-313; (3) Unjust Enrichment.
*548 • Ohio: (1) Ohio Consumer Sales Practices Act, Ohio Rev.Code §§ 1345.01, et seq.; (2) Unjust Enrichment.
• Oregon: (1) Oregon Unfair Trade Practices Act, Or.Rev.Stat. §§ 646.605, et seq.; (2) Or.Rev.Stat. § 72-3130; (3) Unjust Enrichment.
■ South Dakota: (1) South Dakota Deceptive Trade Practices and Consumer Protection Law, S.D. Cod. Laws §§ 37-24-1, et seq.; (2) S.D. Cod. Laws § 57A-2-313; (3) S.D. Cod. Laws § 57A-2-314; (4) Unjust Enrichment.
• Texas: (1) Texas Deceptive Trade Prae-tices-Consumer Protection Act, Tex. Bus. & Com.Code §§ 17.41, et seq.; (2) Unjust Enrichment.16
II. DISCUSSION
A. Evidentiary Objections to the Testimony of the Parties’ Respective Experts
Before addressing the merits of the certification motion, the court must consider the parties’ challenges to their opponent’s experts. While courts in this circuit had previously concluded that expert testimony was admissible in evaluating class certification motions without conducting a rigorous analysis under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court in Dukes expressed “doubt that this [was] so.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2554, 180 L.Ed.2d 374 (2011). After Dukes, the Ninth Circuit approved the application of Daubert to expert testimony presented in support of or opposition to a motion for class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (“In its analysis of Costco’s motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert ...”). As a result, the court applies that standard to the parties’ expert witnesses.
“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed. R.Evid. 702.
See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002) (“[Rule 702] consists of three distinct but related requirements; (1) the subject matter at issue must be beyond the common knowledge of the
Before admitting expert testimony, the trial court must make “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.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see also Ellis, 657 F.3d at 982 (“Under Daubert, the trial court must act as a ‘gatekeeper’ to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards by making a preliminary determination that the expert’s testimony is reliable”). In conducting this preliminary assessment, the trial court is vested with broad discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512,139 L.Ed.2d 508 (1997); United States v. Espinosa, 827 F.2d 604, 611 (9th Cir. 1987) (“The decision to admit expert testimony is committed to the discretion of the district court and will not be disturbed unless manifestly erroneous”).
“The party offering the expert bears the burden of establishing that Rule 702 is satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. CV 02-2258 JM (AJB), 2007 WL 935703, at *4 (S.D.Cal. Mar. 7, 2007) (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir. 1999) (in turn citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786)); see also Walker v. Contra Costa County, No. C 03-3723 THE, 2006 WL 3371438, at *1 (N.D.Cal. Nov. 21, 2006) (same, citing Bourjaily v. United States, 483 U.S. 171, 172, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), and In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)).
“In determining whether expert testimony is admissible under Rule 702, the district court must keep in mind [the rule’s] broad parameters of reliability, relevancy, and assistance to the trier of fact.” Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir. 1998) (internal quotation marks omitted); see also Jinro Am. Inc. v. Secure Invests., Inc., 266 F.3d 993, 1004 (9th Cir. 2001) (“Rule 702 is applied consistent with the ‘liberal thrust’ of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony” (internal quotation marks omitted)). On a motion for class certification, it is not necessary that expert testimony resolve factual disputes going to the merits of plaintiffs claims; instead, the testimony must be relevant in assessing “whether there was a common pattern and practice that could affect the class as a whole.” Ellis, 657 F.3d at 983.
1. Plaintiffs’ Expert: Colin B. Weir
Colin Weir is plaintiffs’ economic expert. Weir is Vice President of Economics and Technology, Inc. (ETI), a research and consulting firm specializing in economics, statistics, regulation, and public policy, where he has worked for eleven years.
Weir opines that it is possible to determine damages attributable to plaintiffs’ claims on a classwide basis by determining whether class members paid a “price premium” — i.e., an additional amount paid for Wesson Oils as a result of the 100% Natural Claim — using ConAgra’s available business records, market research data concerning retail prices for the products at issue and a series of benchmark products, and consumer survey data.
ConAgra first moves to exclude Weir’s testimony on the basis that he lacks relevant training and experience, and is therefore not qualified to opine on methodologies of conducting a damages analysis.
In the Ninth Circuit, an expert may be qualified to offer a particular opinion either as a result of practical training or academic experience. Thomas v. Newton Int’l Enterprises, 42 F.3d 1266, 1269 (9th Cir. 1994) (“[T]he advisory committee notes emphasize that Rule 702 is broadly phrased and intended to embrace more than a narrow definition of qualified expert”); Rogers v. Raymark Industries. Inc., 922 F.2d 1426, 1429 (9th Cir. 1991) (“A witness can qualify as an expert through practical experience in a particular field, not just through academic training”). See also Kumho Tire Co. v. Car-michael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (“[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience”).
“The threshold for qualification is low for purposes of admissibility; minimal foundation of knowledge, skill, and experience suffices.” PixArt Imaging, Inc. v. Avago Tech. Gen. IP (Singapore) Pte. Ltd., No.
The court concludes that Weir’s academic training and practical experience qualify him to testify to the calculation of damages using hedonic regression and conjoint analysis. First, Weir’s academic training is directly relevant to his testimony. He holds an MBA; his undergraduate course work specifically included hedonic regression and conjoint analysis, the two models he wishes to utilize here. Weir also has many years of practical experience with economic modeling and regression analysis. In addition, he has served as an expert witness in numerous cases, including Ebin v. Kangadis Food, Inc., 297 F.R.D. 561, 571 (S.D.N.Y. 2014), a class action in which the court cited with approval his expert report that “detailed] several models for calculating damages for [defendant’s] alleged misrepresentation.” This combination of educational training and professional experience suffices to qualify him under Rule 702. Kingsbury v. U.S. Greenfi-ber, LLC, No. CV 08-00151 DSF (AGRx), 2013 WL 7018657 (C.D.Cal. Nov. 5, 2013), a ease cited by ConAgra, is not to the contrary.
ConAgra next argues that Weir’s testimony lacks a reliable factual foundation because he provides an incomplete description of hedonic regression.
ConAgra contends that Weir’s alternate model of calculating damages, conjoint analysis, is likewise unreliable because Weir has not determined the characteristics of the survey sample he would use in the analysis, the list of relevant product attributes, the sample size of the survey, or whether he would conduct separate surveys in each proposed class state or one large multi-state survey.
The court finds plaintiffs’ argument unavailing, and the authorities they cite distinguishable. In Ralston v. Mortg. Investors Grp., Inc., No. 08-536-JF (PSG), 2011 WL 6002640, at *9 (N.D.Cal. Nov. 30, 2011), defendant Countrywide moved to exclude testimony by Ralston’s damages expert, Lyons, on the grounds that his report “offers nothing more than a simplistic spreadsheet amortization table that lacks justification for its assumptions, and furthermore offers only conclusory assurances that missing functionality can be added with ease.” The court disagreed, noting that Lyons had provided “two tables showing hypothetical loan amortization schedules based on whether the additional payment amounts during years 2 through 5 of the loans (due to the annual payment increase included in the loan terms) are applied either to interest only or to principal only.” Id. at *3, *9. It concluded that Lyons’ report “present[ed] a structure or framework [that could be used] to analyze the actual loan data eventually provided to plaintiffs.” Id. at *9.
In Hemmings v. Tidyman’s Inc., 285 F.3d 1174 (9th Cir. 2002), the court affirmed the admission of a damages expert’s testimony over the opposing party’s objection. The expert’s regression analysis focused on criteria including employee experience, but did not include criteria such as the employee’s qualifications, education level, and preferences. Id. at 1188. The defendant argued that the analysis should have been excluded because, inter alia, it did not “eliminate all of the possible legitimate nondiseriminatory factors” leading to lower wages and less frequent promotions for the female plaintiffs as compared to their male counterparts. Id. The circuit court noted that plaintiffs expert offered a regression analysis that used the “best available data, which [came] from the [defendant] itself.” Id. at 1189. It also observed that the defendant had not proved at trial that any of the factors it contended on appeal should have been included in the model were actually important in the promotion or compensation process. Id. at 1188. The court explained that “[n]ormally, failure to include variables will affect the analysis’ pro-bativeness, not its admissibility,” id. at 1188 (quoting Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986)), but that in some cases, “the analysis may be ‘so incomplete as to be inadmissible as irrelevant.’ ” Id. (quoting Bazemore, 478 U.S. at 400 n. 10,106 S.Ct. 3000).
Here, unlike the experts in Ralston or Hemmings, Weir does not provide a damages model that lacks certain variables or functionality. Rather, he provides no damages model at all. Although the methodologies he describes may very well be capable of calculating damages in this action, Weir has made no showing that this is the case. He does not identify any variables he intends to build into the models, nor does he identify any data presently in his possession to which the models can be applied. The court is thus left with only Weir’s assurance that he can build a model to calculate damages. Stated differently, his declaration is “ ‘so incomplete as to be inadmissible as irrelevant.’ ” Hem-mings, 285 F.3d at 1188 (quoting Bazemore, 478 U.S. at 400 n. 10, 106 S.Ct. 3000). See Building Indus. Ass’n of Wash. v. Wash. State Bldg.Code Council, 683 F.3d 1144,1154 (9th Cir. 2012) (district court did not abuse its discretion in rejecting the declaration of an expert who “offered unsupported assertions” with “no data forming the basis for [the expert’s] assumptions or conclusions”); see id. (“The party offering expert testimony has the burden of establishing its admissibility”). Accordingly, the court finds that
2. Plaintiff’s Expert: Charles M. Benbrook, Ph.D
ConAgra next moves to strike the declaration of Dr. Charles M. Benbrook.
Dr. Benbrook opines that GMOs and the food manufactured from them, such as Wesson Oil products, cannot be considered and represented as “natural,” based on the definitions, usage, and meaning ascribed to “natural” in various food- and agriculture-related contexts, including consumer surveys.
ConAgra argues that Dr. Benbrook’s testimony is unreliable because it is not based on scientific methods or data, but is merely rhetorical, and therefore incapable of being tested.
The mere fact that Dr. Benbrook does not rely on a testable methodology does not render his testimony inadmissible under Daubert, The Supreme Court has repeatedly clarified that the “factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue____” Kumho Tire, 526 U.S. at 150,119 S.Ct. 1167. The Daubert factors are
Given the wide variety of expert testimony that is offered in cases pending in federal court, a district court has broad discretion in determining the relevant factors to employ in assessing the reliability of expert testimony. United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (“Indeed, not only must the trial court be given broad discretion to decide whether to admit expert testimony, it ‘must have the same kind of latitude in deciding how to test an expert’s reliability’ ”). Here, the bulk of Dr. Ben-brook’s declaration focuses on the process of genetic engineering, the impacts of that process on GE crops and the products derived therefrom, and whether those impacts occur — or could occur — absent the application of GE techniques. These opinions are testable because they can be independently verified or objectively challenged. See Fed. R.Evid. 702 Advisory Committee Notes (Daubert’s testability factor means capable of being “challenged in some objective sense”). Consequently, the court finds these opinions sufficiently reliable.
The court also concludes that Dr. Benbrook’s testimony regarding the processes used to create GE foods, and whether the crops created through genetic engineering could develop in nature and absent genetic engineering, will assist the trier of fact. “Encompassed in the determination of whether expert testimony is relevant is whether it is helpful to the jury, which is the ‘central concern’ of Rule 702.” Mukhtar v. California State Univ., 299 F.3d 1053, 1063 n. 7 (9th Cir. 2002). Rule 702 states that “[i]f scientific, technical, or other specialized knowledge will assist .the trier of fact to understand the evidence or to determine a fact in issue,” an expert “may testify thereto.” Fed.R.Evid. 702. “Expert testimony assists the trier of fact when it provides information beyond the common knowledge of the trier of fact.” United States v. Finley, 301 F.3d 1000, 1008 (9th Cir. 2002). Here, the genetic engineering process described by Dr. Benbrook is highly technical and certainly cannot be considered common knowledge. The same can be said of Dr. Benbrook’s testimony regarding the increase in the production of GE crops.
ConAgra moves specifically to strike Dr. Benbrook’s opinions concerning consumers understanding of “natural” based on consumer surveys he has read.
So long as the surveys are relevant and reliable, Dr. Benbrook need not be an expert in survey methodology to incorporate the results of surveys into his work. See Cook v. Rockwell Intern. Corp., 580 F.Supp.2d 1071, 1138 n. 72 (D.Colo. 2006) (“Defendants contend Mr. Hunsperger is not qualified to use the survey results in any fashion because he is not an expert in designing, administering or interpreting raw data from public opinion surveys. Mr. Hunsperger, however, need not be qualified as an expert in these matters in order to incorporate the Flynn/Slovic survey results in his own work, particularly when I have already found that the survey is relevant, reliable and admissible in its own right”). As the court has already concluded, however, the general meaning of “natural” is not a subject as to which jurors need assis-
ConAgra asserts that Dr. Ben-brook’s testimony regarding survey data consists merely of repeating figures generated by studies conducted by other experts. An expert’s sole or primary reliance on the opinions of other experts raises serious reliability questions. See Fosmire v. Progressive Max Ins. Co., 277 F.R.D. 625, 629 (W.D.Wash. 2011) (“Dr. Polissar’s expert report is deficient in several ways. First, although his opinions are based on Dr. Siskin’s data and methodology, there is nothing in the record to indicate that Dr. Polissar has tested Dr. Siskin’s underlying data to ensure its reliability or that Dr. Polissar even has access to Dr. Siskin’s underlying data”); In re Imperial Credit Indus., Inc. Securities Litig., 252 F.Supp.2d 1005, 1012 (C.D.Cal. 2003) (“The rules do not permit an expert to rely upon excerpts from opinions developed by another expert for the purposes of litigation”); see also Tokio Marine & Fire Ins. Co., Ltd. v. Norfolk & Western Ry. Co., No. 98-1050, 98-1077, 1999 WL 12931, at *4 (4th Cir. Jan. 14, 1999) (Unpub. Disp.) (“[0]ne expert may not give the opinion of another expert who does not testify”); American Key Corp. v. Cole National Corp., 762 F.2d 1569, 1580 (11th Cir. 1985) (“Expert opinions ordinarily cannot be based upon the opinions of others whether those opinions are in evidence or not”).
By contrast, an expert can appropriately rely on the opinions of others if other evidence supports his opinion and the record demonstrates that the expert conducted an independent evaluation of that evidence. See Jerpe v. Aerospatiale, No. CIV. S-03-555 LKK/DAD, 2007 WL 1394969, at *6 (E.D.Cal. May 10, 2007) (crediting an expert’s declaration that he “independently arrived” at his opinions despite “deposition testimony [that] was somewhat ambiguous on the issue of whether [expert] was merely relying on the same underlying data set produced at the direction of [another expert]”); Gray v. United States, No. 05cv1893 J(BLM), 2007 WL 4644736, at *8 (S.D.Cal. Mar. 17, 2007) (“Ms. Hyland[ ] ... states that she considered all of the input and also considered information from the San Diego County Medical Society and from a compendium of physician compensation studies. In light of Ms. Hyland’s indication that she has interviewed Dr. Gray, reviewed medical records, as well as consulted with search firms, the Court declines to, at this time, take the drastic measure of excluding her report and testimony”).
As proof that Dr. Benbrook is merely “parroting” the opinions of other experts and presenting them as his own, ConAgra cites a sentence Benbrook copied verbatim from the Leatherhead article, Do “natural” claims cut the mustard? It states that “Leatherhead Food Research delivers integrated scientific expertise, international regulatory advice and independent market insights to the global food, drink and related industries.”
ConAgra argues finally that Dr. Ben-brook’s declaration includes opinions on the ultimate issue in this case: whether the “100% Natural” label on Wesson Oil products is fraudulent and misleads consumers. It asserts that as a result, his opinion constitutes an improper legal conclusion.
1. “It is my opinion, based on my preliminary examination of the facts in this case, that, since 1997, an increasing share of Wesson Oils were extracted from GE corn, soybeans, or canola, thus rendering it impossible for ConAgra to honestly represent that the Wesson Oil products at issue in this litigation are ‘natural[.]’ ”
2. “[F]ood ingredients and products derived from such GE crops are not natural[.]”;
3. “[T]he attributes in a food product that consumers seek when they choose a product, like Wesson Oil, that is labeled ‘100% Natural’ are inherently inconsistent with that product’s derivation from GE crops.”
4. “Regardless of the specific methods used to create a given GE event within an existing, commercial corn, soybean, or canola variety, the process relied upon is inherently artificial and unnatural.”
5. “Biotechnology industry leaders have issued formal statements and definitions discussing the nature of food produced from GE crops that confirm the unnatural nature thereof.”
6. “Accordingly, based on my expert understanding of the genetic engineering process and my experience in this field, it is my opinion that the evidence summarized above demonstrates that the Wesson Oils that ConAgra, during the Class Period, represented and sold as being ‘100% Natural’ were falsely and deceptively labeled, in that they unquestionably contained oils derived from unnatural GE corn, soybeans, and canola.”
While an expert witness may not testify to a legal conclusion, he may testify to an ultimate issue of fact. Mukhtar, 299 F.3d at 1066 n. 10 (“[A]n expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law”); Wiles v. Dep’t of Educ., Nos. 04-00442 ACK-BMK, 05-00247 ACK-BMK, 2008 WL 4225846, at *1 (D.Haw. Sept. 11, 2008) (“[W]hile an expert witness generally may give opinion testimony that embraces an ultimate issue to be decided by the trier of fact, that expert may not express a legal opinion as to the ultimate legal issue”); see Fed. R.Evid. 704(a) (“An opinion is not objectionable just because it embraces an ultimate issue”); see also id., 1972 Advisory Commit
“Courts have held that expert witnesses’ use of ‘judicially defined terms,’ ‘terms that derived their definitions from judicial interpretations,’ and ‘legally specialized terms’ ... constitute^] [an] expression of opinion as to the ultimate legal conclusion.” Wiles, 2008 WL 4225846, at *1. Dr. Benbrook’s opinions that Wesson Oil products are not natural go only to the ultimate issue of fact, and are therefore admissible. The same can not be said, however, regarding his opinion that ConAgra “falsely and deceptively labeled” its products. “False” and “deceptive” are judicially defined terms. Accordingly, his use of these terms constitutes the offering of an improper legal opinion that usurps the role of the court. See S.E.C. v. Leslie, No. C 07-3444, 2010 WL 2991038, at *9 (N.D.Cal. July 29, 2010) (excluding expert’s opinion because “it is for the jury to determine whether Defendants’ statements in fact were misleading”); F.T.C. v. Stefanchik, No. C04-1852RSM, 2007 WL 4570879, at *1 (W.D.Wash. Feb. 15, 2007) (expert’s opinion that defendant’s materials are not unfair, false, misleading or deceptive was an impermissible legal conclusion).
For all of these reasons, the court grants ConAgra’s motion to strike Dr. Benbrook’s testimony regarding definitions of the word “natural” on the grounds that it will not assist the trier of fact. The court also strikes Dr. Benbrook’s testimony concerning consumer surveys regarding the meaning on the word “natural” and whether it encompasses genetically modified organisms or GMO ingredients. Finally, the court strikes Dr. Benbrook’s opinion that ConAgra “falsely and deceptively labeled” its products. The court declines to strike Dr. Benbrook’s testimony regarding GE processes, their impact on crops and food products, and whether those impacts occur in nature without the application of GE techniques. It also declines to strike his opinion, based on his understanding of the process used to make genetically engineered foods, that foods that contain genetically engineered ingredients are not natural.
3. ConAgra’s Expert Dominique M. Hanssens, Ph.D
Dr. Dominique M. Hanssens is a professor of marketing at the UCLA Anderson School of Management, where he has served on the
Dr. Hanssens opines that there is a high degree of heterogeneity in the consumer purchase process, and that consumer purchase decisions are influenced by a variety of factors upon which consumers place different weights.
Plaintiffs argue that Dr. Hans-sens failed to use an acceptable survey design, and that his findings are rebutted by surveys conducted by other organizations as well as by ConAgra’s own market research.
While plaintiffs are correct that Daubert governs the admissibility of survey data, the Ninth Circuit has held that “[e]hallenges to survey methodology go to the weight given the survey, not its admissibility.” Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir. 1997). See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n. 8 (9th Cir. 1997) (“However, ‘as long as they are conducted according to accepted principles,’ survey evidence should ordinarily be found sufficiently reliable under Daubert. Unlike novel scientific theories, a jury should be able to determine whether asserted teehnical deficiencies undermine a survey’s probative value,” quoting Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1292 (9th Cir. 1992)); id. at 1143 (the fact that a survey that was conducted only in the southern portion of the state and asked leading questions went to the weight of the evidence, not the admissibility of the survey); see also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir. 2001) (“Treatment of surveys is a two-step process. First, is the survey admissible? That is, is there a proper foundation for admissibility, and is it relevant and conducted according to accepted principles? This threshold question may be determined by the judge. Once the survey is admitted, however, follow-on issues of methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility. These are issues for a jury or, in a bench trial, the judge”); Alcantar v. Hobart Serv., No. ED CV 11-1600 PSG (SPx), 2013 WL 156530, at *4 (C.D.Cal. Jan. 15, 2013) (“[A]ny problems with the response rate affect the weight, and not the admissibility of the study”); Microsoft Corp. v. Motorola Inc., 904 F.Supp.2d 1109, 1120 (W.D.Wash. 2012) (criticisms of a conjoint analysis concerned “issues of methodology, survey design, relia
Plaintiffs do not challenge Dr. Hans-sens’ expertise, nor does it appear they could, given his extensive experience. As for the relevance of the survey results, Dr. Hanssens’ findings regarding the impact the “100% Natural” label has on consumer purchasing decisions, and whether consumers associate “100% Natural” with products free of GMO ingredients, are probative as to whether the label misleads consumers and causes them to believe Wesson Oil products do not contain GMO ingredients. The court has some concerns regarding the survey design, particularly Dr. Hanssens’ decision to utilize a sample consisting of unequal proportions of females in the Test Group and Control Group — 62.9% and 52.9% respectively. Both of these percentages fall below the 80% ConAgra requires in the marketing studies it commissions, suggesting that it believes women make up approximately 80% of its consumers.
Plaintiffs also urge the court to exclude the survey as unduly prejudicial under Rule 403 of the Federal Rules of Evidence. Rule 403 requires the court to exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Although the survey is prejudicial to plaintiffs’ position, the prejudice is not “unfair.” See Hankey, 203 F.3d at 1172 (evidence is unfairly prejudicial only if it has “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one,” citing Fed.R.Evid. 403, Advisory Committee Notes); see also Old Chief v. United States, 519 U.S. 172, 179, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,” as to a criminal defendant, speaks to the capacity of some coneededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged” (citation omitted)). Nor does any prejudice substantially outweigh the probative value of the evidence. The court therefore declines to strike Dr. Hanssens’ testimony.
B. Legal Standard Governing Class Certification
A district court may certify a class only if: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”*562 Fed.R. Civ.Proc. 23(a).
In addition, a district court must also find either that at least one of the several conditions set forth in Rule 23(b) is met. “Rule 23(b)(1) allows a class to be maintained where ‘prosecuting separate actions by or against individual class members would create a risk of either ‘(A) inconsistent or varying adjudications,’ or ‘(B) adjudications ... that, as a practical matter, would be disposi-tive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede[ ] their ability to protect their interests.’ ” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2549 n. 2, 180 L.Ed.2d 374 (2011).
Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.Civ.Proc. 23(b)(2). The Supreme Court has not yet decided whether this rule “applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all.” Dukes, 131 S.Ct. at 2557. It has concluded, however, “that, at a minimum, claims for individualized relief ... do not satisfy the Rule.” Id. Thus, “it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” Id.
“Rule 23(b)(3) states that a class may be maintained where ‘questions of law or fact common to class members predominate over any questions affecting only individual members,’ and a class action would be ‘superior to other available methods for fairly and efficiently adjudicating the controversy.’” Id. at 2549 n. 2.
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. at 2551. Thus, “[t]he party seeking certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one requirement of Rule 23(b) have been met.” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180,1186 (9th Cir.), amended, 273 F.3d 1266 (9th Cir. 2001); see also Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). A class can be certified only if the court “is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). As the Supreme Court has noted, “[frequently ... ‘rigorous analysis’ will entail some overlap with the merits of the plaintiffs underlying claim.” Dukes, 131 S.Ct. at 2551.
'Plaintiffs seeks to certify the following twelve separate statewide classes:
All persons who reside in the States of California, Colorado, Florida, Illinois, Indiana, Nebraska, New Jersey, New York, Ohio, Oregon, South Dakota, or Texas who have purchased Wesson Oils within the applicable statute of limitations periods established by the laws of their state of residence (the “Class Period”) through the final disposition of this and any and all related actions.91
C. Whether the Proposed Class Should Be Certified
1. Standing
As a threshold matter, ConAgra contends that the named plaintiffs lack standing because they have suffered no injury.
2. Rule 23(a) Requirements
a. Whether Plaintiffs Have Identified an Ascertainable Class
Although not specifically mentioned in Rule 23, plaintiffs must, in addition to showing numerosity, commonality, typicality and adequacy, demonstrate that the members of the class are ascertainable. See, e.g., Lukovsky v. San Francisco, No. C 05-00389 WHA, 2006 WL 140574, at *2 (N.D.Cal. Jan. 17, 2006) (“ ‘Although there is no explicit requirement concerning the class definition in FRCP 23, courts have held that the class must be adequately defined and clearly ascertainable before a class action may proceed,’ ” quoting Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679-80 (S.D.Cal. 1999)); Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D.Cal. 2002) (“Prior to class certification, plaintiffs must first define an ascertainable and identifiable class. Once an ascertainable and identifiable class has been defined, plaintiffs must show that they meet the four requirements of Rule 23(a), and the two requirements of Rule 23(b)(3)” (citation and footnote omitted)); O’Connor v. Boeing North American, Inc., 184 F.R.D. 311, 319 (C.D.Cal. 1998) (holding that a class definition must be “precise, objective and
A class is sufficiently defined and ascertainable if it is “administratively feasible for the court to determine whether a particular individual is a member.” O’Con-nor, 184 F.R.D. at 319; accord Davoll v. Webb, 160 F.R.D. 142, 143 (D.Colo. 1995); see also Buford v. H & R Block, Inc., 168 F.R.D. 340, 347 (S.D.Ga. 1996) (“[T]he ‘description of the class must be sufficiently definite to enable the court to determine if a particular individual is a member of the proposed class,’” quoting Pottinger v. Miami, 720 F.Supp. 955, 957 (S.D.Fla. 1989)).
Plaintiffs argue that the classes they propose are ascertainable because membership in each is governed by a single objective criterion — whether the individual purchased Wesson Oils during the class period.
District courts in this circuit are split as to whether the inability to identify the specific members of a putative class of consumers of low priced products makes the class unascer-tainable. Some courts have concluded that it does. See Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC, 2014 WL 580696, at *5-6 (N.D.Cal. Feb. 13, 2014) (“Plaintiff has yet to present any method for determining class membership, let alone an administratively feasible method. It is unclear how Plaintiff intends to determine who purchased ZonePerfect bars during the proposed class period, or how many ZonePerfect bars each of these putative class members purchased. It is also unclear how Plaintiff intends to weed out inaccurate or fraudulent claims. Without more, the Court cannot find that the proposed class is ascertainable”); see also Carrera v. Bayer Corp., 727 F.3d 300, 308-11 (3d Cir. 2013) (holding a putative class of consumers who purchased a diet supplement was not ascertainable because (1) there was insufficient evidence to show that retailer records could be used to identify class members, (2) the use of affidavits to identify class members would deprive defendant of the opportunity to challenge class membership, (3) a proposed screening model to ensure the affidavits are reliable was not shown to be reliable for certification purposes, and (4) the inclusion of fraudulent or inaccurate claims could dilute the recovery of absent class members, who could then argue they were not adequately represented and thus not bound by the judgment); In re POM Wonderful LLC, No. ML 10-02199 DDP (RZx), 2014 WL 1225184, at *6 (C.D.Cal. Mar. 25, 2014) (observing that “[i]n situations where purported class members purchase an inexpensive product for a variety of reasons, and are unlikely to retain receipts or other transaction records, class actions may present such daunting administrative challenges that class treatment is not feasible,” and holding that a class of consumers of a juice product was not ascertainable, particularly where “[n]o bottle, label, or package included any of the alleged misrepresentations”).
Other courts have rejected the reasoning underlying such decisions as effectively foreclosing class actions involving low priced consumer goods. See Forcellati v. Hyland’s, Inc., No. CV 12-1983-GHK (MRWx), 2014 WL 1410264, at *5 (C.D.Cal. Apr. 9, 2014) (rejecting an argument that a putative class of consumers of children’s cold/flu products was not ascertainable, and stating that “[g]iv-en that facilitating small claims is ‘[t]he policy at the very core of the class action meeha-
The court agrees with those courts that have found such classes ascertainable and follows their reasoning. ConAgra’s argument would effectively prohibit class actions involving low priced consumer goods — the very type of claims that would not be filed individually — thereby upending “[t]he policy at the very core of the class action mechanism.” Amchem Prods., 521 U.S. at 617,117 S.Ct. 2231; see Ebin v. Kangadis Food, Inc., 297 F.R.D. 561, 567 (S.D.N.Y. 2014) (“Yet the class action device, at its very core, is designed for eases like this where a large number of consumers have been defrauded but no one consumer has suffered an injury sufficiently large as to justify bringing an individual lawsuit. Against this background; the aseertainability difficulties, while formidable, should not be made into a device for defeating the action”).
Here, the class definition identifies putative class members by objective characteristics; this is the mark of an ascertainable class. See Forcellati, 2014 WL 1410264, at *5 (“‘The requirement of an ascertainable class is met as long as the class can be defined through objective criteria,’” quoting Guido v. L’Oreal, USA, Inc., Nos. CV CV 11-1067 CAS (JCx), CV 11-5465 CAS (JCx), 2013 WL 3353857, at *18 (C.D.Cal. July 1, 2013)); id. (“A class is sufficiently ascertainable if ‘the proposed class definition allows prospective plaintiffs to determine whether they are class members with a potential right to recover,’ ” quoting Parkinson v. Hyundai Motor America, 258 F.R.D. 580, 593-94 (C.D.Cal. 2008)). While it is true that identifying class members may well require the creation of a claim form or declaration that those asserting membership in the class must submit (likely under penalty of perjury), courts have concluded that such a procedure makes the class ascertainable, at least where the alleged mislabeling occurred throughout the class period, and on a single product or narrow group of products. See, e.g., Werdebaugh, 2014 WL 2191901, at *11; Brazil v. Dole Packaged Foods, LLC, Case No.: 12-CV-01831-LHK, 2014 WL 2466559, at *4-6 (N.D.Cal. May 30, 2014) (certifying a class of consumers who purchased Dole fruit products allegedly mislabeled “All Natural” during the class period and finding that the submission of consumer affidavits as a means of identifying class members was likely to produce reliable affidavits because all products included in the class definition contained
ConAgra next argues that the classes are not ascertainable for the additional reason that they include individuals who were not injured, i.e., consumers who did not read or notice the “100% Natural” claim and thus could not have been deceived by it.
Plaintiffs counter that the inclusion of uninjured class members does not necessarily render a class unaseertainable, citing Rodman v. Safeway, Inc., No. 11-cv-03003-JST, 2014 WL 988992, (N.D.Cal. Mar. 10, 2014). There, plaintiff moved to certify a nationwide class of all persons who registered to purchase groceries through Safeway.com, and who purchased groceries that were subject to a price markup. Id. at *15. Safeway argued that the class was not ascertainable because it included individuals who, for various reasons, did not have viable claims or who could not prove damages. Id. The court rejected this argument, noting that such a rule would effectively require a plaintiff to plead a “fail-safe” class. Id. See 7A Wright & Miller, Federal Practice & Procedure Civil § 1760 (3d ed.) (“Some courts also have considered whether the class definition must exclude anyone who does not have a viable claim. In effect, this interpretation means that plaintiffs must plead what effectively is a ‘fail-safe’ class”).
Other courts in this circuit have reached similar conclusions, see Rodman, 2014 WL 988992, at *15 (collecting cases), and the Seventh and Tenth Circuits are in accord. See Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009) (the fact that a proposed class “will often include persons who have not been injured by the defendant’s conduct ... does not preclude class certification,” but it is also the ease that “a class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant”); DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1201 (10th Cir. 2010) (“That a class possibly or even likely includes persons unharmed by a defendant’s conduct should not preclude certification”). The Rodman court concluded that while “[tjhere is a place in the Rule 23 analysis for considering whether a class definition is sufficiently ‘overbroad’ as to preclude certification,” the issue was better analyzed as part of the
Moreover, “[e]onsumer action classes that have been found to be overbroad generally include members who were never exposed to the alleged misrepresentations at all.” Alga-rin v. Maybelline LLC, 300 F.R.D. 444, 455, 2014 WL 1883772, *7 (S.D.Cal. 2014). See id. (“In the instant case, Plaintiffs have alleged a widespread advertising campaign promoting the alleged misrepresentations as well as uniform labeling for each of the Class Products. That the proposed class may include purchasers who did not rely on the misrepresentations and/or were satisfied with the products does not render the class ‘overbroad’ where Maybelline has failed to demonstrate a lack of exposure as to some class members”); compare Red v. Kraft Foods, Inc., No. CV 10-1028-GW (AGRx), 2012 WL 8019257, at *5 (C.D.Cal. Apr. 12, 2012) (finding a class that included consumers who were not exposed to the misleading statements over-broad); Sevidal v. Target Corp., 189 Cal. App.4th 905, 926-28, 117 Cal.Rptr.3d 66 (2010) (finding a class overbroad where a majority of class members were never exposed to the alleged misrepresentations and there was absolutely no likelihood they were deceived by the allegedly false advertising).
Here, every putative class member has been exposed to the alleged misrepresentation, because every bottle of Wesson Oil sold during the class period was labeled “100% Natural.” The court therefore finds the class ascertainable, and agrees with the Steams and Rodman courts that the inclusion of uninjured class members is more properly analyzed under Rule 23(a)(2) or 23(b)(3).
b. Numerosity
Before a class can be certified under the Federal Rules of Civil Procedure, the court must determine that it is “so numerous that joinder of all members is impracticable.” See FED.R.CIV.PROC. 23(a)(1). “Impracticability does not mean impossibility, [however,] ... only ... difficulty or inconvenience in joining all members of the class.” Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964) (internal quotations omitted). There is no set numerical cutoff used to determine whether a class is sufficiently numerous; courts must examine the specific facts of each case to evaluate whether the requirement has been satisfied. See General Tel. Co. v. EEOC, 446 U.S. 318, 329-30, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). “As a general rule, [however,] classes of 20 are too small, classes of 20-40 may or may not be big enough depending on the circumstances of each case, and classes of 40 or more are numerous enough.” Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D.Cal. 1988) (citing 3B J. Moore & J. Kennedy, MOORE’S FEDERAL PRACTICE ¶ 23-05[l] (2d ed. 1987)). Here, ConAgra admits that millions of consumers purchased Wesson Oil products during the class period.
c. Commonality
Commonality requires “questions of law or fact common to the class.” See Fed.R.Civ.Proc. 23(a)(2). The commonality requirement is construed liberally, and the existence of some common legal and factual issues is sufficient. Jordan v. County of Los Angeles, 669 F.2d 1311, 1320 (9th Cir. 1982); accord Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (“The commonality preconditions of Rule 23(a)(2) are less rigorous than the companion requirements of Rule 23(b)(3). Indeed, Rule 23(a)(2) has been construed permissively”); see also, e.g., Ventura
That said, the putative class’s “claims must depend upon a common contention — for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of elasswide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551. Although for purposes of Rule 23(a)(2) even a single common question will do, id. at 2556, “ ‘[w]hat matters to class certification ... is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.’ ” Id. at 2551 (citing Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 132 (2009)). As the Ninth Circuit recently articulated by way of example, “it is insufficient to merely allege any common question, for example, ‘Were Plaintiffs passed over for promotion?’ Instead, they must pose a question that ‘will produce a common answer to the crucial question why was I disfavored.’ ” Ellis, 657 F.3d at 981 (quoting Dukes, 131 S.Ct. at 2552).
Plaintiffs argue the commonality element is satisfied for all classes because their claims pose a common question — whether ConAgra’s “100% Natural” marketing and labeling of Wesson Oil products was false, unfair, deceptive, and/or misleading.
d. Typicality
Typicality requires a determination as to whether the named plaintiffs claims are typical of those of the class members she seeks to represent. See Fed.R.Civ. Proc. 23(a)(3). “[Representative claims are ‘typical’ if they are reasonably eo-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020; see also Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D.Cal. 1985) (“A plaintiffs claim meets this requirement if it arises from the same event or course of
“The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Hanon, 976 F.2d at 508 (citation and internal quotations omitted). Typicality, like commonality, is a “permissive standard[ ].” Hanlon, 150 F.3d at 1020. Indeed, in practice, “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457 U.S. at 157-58 n. 13,102 S.Ct. 2364. See also Dukes, 131 S.Ct. at 2551 n. 5 (“We have previously stated in this context that ‘[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest,’ ” citing Falcon, 457 U.S. at 158 n. 13,102 S.Ct. 2364).
Typicality may be lacking “if ‘there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.’” Hanon, 976 F.2d at 508 (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)); see also J.H. Cohn & Co. v. Am. Appraisal Assoc., Inc., 628 F.2d 994, 999 (7th Cir. 1980) (“[E]ven an arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the class as well as bring into question the adequacy of the named plaintiffs representation”). To be typical, a class representative need not prove that she is immune from any possible defense, or that her claim will fail only if every other class member’s claim also fails. Instead, she must establish that she is not subject to a defense that is not “typical of the defenses which may be raised against other members of the proposed class.” Id.; see also Ellis, 657 F.3d at 984.
The named plaintiffs argue that the typicality requirement is satisfied because they allege a common pattern of wrongdoing — i.e., ConAgra’s labeling of all Wesson Oils as “100% Natural.” As a consequence, they contend, each class member was exposed to the same allegedly false advertising on the Wesson Oils labels. Plaintiffs also assert that they have alleged the “100% Natural” label was a factor in their decision to purchase the products, and that the same evidence supports their claims as supports other class members’ claims.
Plaintiffs assert that Dr. Hanssens’ findings are contradicted by ConAgra’s own documents, which show the materiality of the “100% Natural” claim.
While the evidence concerning the materiality of the “100% Natural” label is in dispute, the question is whether under the applicable law, the fact that the “100% Natural” label may not have been a significant factor in the purchasing decision of all class members makes plaintiffs’ claims atypical. Plaintiffs argue that the court need not address materiality in determining whether to certify the proposed classes, because materiality is determined according to a “reasonable consumer” standard and should be resolved at the merits stage. It is true that for claims brought under California’s CLRA and UCL, causation can be proved on a classwide basis by showing that the manufacturer’s representation was material. This is true because the CLRA employs a “reasonable consumer” standard to determine materiality. See, e.g., Folk v. Gen. Motors Corp., 496 F.Supp.2d 1088, 1095 (N.D.Cal. 2007) (“Materiality, for CLRA claims, is judged by the effect on a ‘reasonable consumer,”’ citing Consumer Advocates v. EchoStar Satellite Corp., 113 Cal.App.4th 1351, 1360, 8 Cal. Rptr.3d 22 (2003)). Under the UCL, the court asks whether “ ‘members of the public are likely to [have] be[en] deceived.’ ” Shein v. Canon U.S.A., Inc., No. CV 08-7323 CAS (Ex), 2010 WL 3170788, at *7 (C.D.Cal. Aug. 10, 2010) (quoting In re Tobacco II, 46 Cal.4th 298, 312, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009)). Thus, plaintiffs are entitled to a classwide inference of reliance if they can show (1) that uniform misrepresentations were made to the class, and (2) that those misrepresentations were material. Id. (stating that “relief under [the] UCL is available without individualized proof’ if plaintiff can show that defendant employed “‘uniform conduct to mislead the entire class’ ” and “the alleged misrepresentation was material,” citing Kaldenbach v. Mut. of Omaha Life Ins. Co., 178 Cal.App.4th 830, 850, 100 Cal. Rptr.3d 637 (2009), and Kingsbury v. U.S. Greenfiber, LLC, No. CV 08-00151 AHM (JTLx), 2009 WL 2997389, at *10 (C.D.Cal. Sept. 14, 2009)). See also Wiener v. Dannon Co., Inc., 255 F.R.D. 658, 669 (C.D.Cal. 2009) (“Courts have found that an inference of reliance may be appropriate for claims for violations of the UCL and the CLRA____ For a class action, an inference of reliance arises as to the entire class only if the material misrepresentations were made to all class members,” citing Vasquez v. Superior Court, 4 Cal.3d 800, 805, 94 Cal.Rptr. 796, 484 P.2d 964 (1971) (“It is sufficient for our present purposes to hold that if the trial court finds material misrepresentations were made to the class members, at least an inference of reliance would arise as to the entire class”)). There is no suggestion here that the “100% Natural” claim was not uniformly made to members of the class. Thus, as respects plaintiffs’ CLRA and UCL claims, the fact that the “100% Natural” label may not have been a significant factor in the purchasing decision of all class members, as it purportedly was in plaintiffs’ purchasing decision, does not make plaintiffs’ claims atypical of the class.
Plaintiffs, however, fail to address whether individualized reliance and an individualized showing of causation are elements of the balance of their claims. They do not demonstrate, for example, that the reasonable consumer standard applies to their California express warranty claim.
Because the typicality requirement focuses on whether the named plaintiffs’ claims arise from the same course of conduct as the class members’ claims, and whether the named plaintiffs are subject to unique defenses, however, and because it is not an onerous requirement, the court concludes that the fact that some class members may not have relied on the “100% Natural” label in purchasing Wesson Oils does not render the named plaintiffs’ claims atypical. Stated differently, if the named plaintiffs’ claims were subject to the unique defense that they did not rely on the “100% Natural” label in purchasing Wesson Oils, then as to any claims that require proof of individualized reliance, there might be a concern about typicality. The situation posited by ConAgra is the converse of that, however. The concerns it raises concerning the need for individualized proof of reliance or causation, moreover, are better addressed in assessing whether Rule 23(b)(3)’s predominance requirement is met. Consequently, the court finds the typicality requirement satisfied.
e. Adequacy
The adequacy of repi’esentation requirement set forth in Rule 23(a)(4) involves a two-part inquiry: “(1) do the named plaintiff[] and [her] counsel have any conflicts of interest with other class members and (2) will the named plaintiffl] and [her] counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020; accord Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). “Adequate representation depends on, among other factors, an absence of antagonism between representatives and absentees, and a sharing of interest between representatives and absentees.” Ellis, 657 F.3d at 985. Individuals are not adequate representatives of a class when “it appears that they have abdicated any role in the ease beyond that of furnishing their names as plaintiffs.” Helfand v. Cenco, Inc., 80 F.R.D. 1, 7 (N.D.Ill. 1977). ConAgra challenges the adequacy of the named plaintiffs on the same grounds that it challenges the typicality of their claims. Because the court was not persuaded by those arguments, it cannot conclude that plaintiffs are not adequate class representatives.
ConAgra also asserts that class counsel cannot adequately represent the interests of the class. The adequacy of representation turns on the competence of class counsel and the absence of conflicts of interest. Falcon, 457 U.S. at 157, 102 S.Ct. 2364. ConAgra argues that counsel “have proven unequal to the task of representing a class.”
3. Rule 23(b) Requirements
Having concluded that the Rule 23(a) requirements are met, the court turns to Rule 23(b). Plaintiffs seek to certify the proposed classes separately for purposes of injunctive relief and damages under Rule 23(b)(2) and 23(b)(3). In its decision in Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010), rev’d,- U.S. -, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (en banc), the Ninth Circuit noted that the district court had the option of certifying a Rule 23(b)(2) equitable relief class and a separate Rule 23(b)(3) class for damages if it concluded that it could not certify a single Rule 23(b)(2) class because monetary relief predominated over the equitable relief sought. Id. at 620. The Supreme Court later “rejected the ‘predominance’ test for determining whether monetary damages may be included in a 23(b)(2) certification.” Ellis, 657 F.3d at 986. Subsequent to the Supreme Court’s decision in Dukes, however, the Ninth Circuit has suggested on multiple occasions that district courts consider certifying separate Rule 23(b)(2) and 23(b)(3) classes. See id. at 988 (“[T]he district court must consider how best to define the elass(es) to ensure that all class members have standing to seek the requested relief. See, e.g., Dukes, 603 F.2d at 620 (suggesting the court certify a ‘Rule 23(b)(2) class for equitable relief and a separate Rule 23(b)(3) class for damages’)”); see also Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013) (“Plaintiffs concede that class certification for their monetary claims under Rule 23(b)(2) cannot stand in light of Wal-Mart. However, the possibility of a Rule 23(b)(2) class seeking injunctive relief remains. Rule 23(b)(2) applies ‘when a single injunction or declaratory judgment would provide relief to each member of the class.’ ... [S]ee ... Ellis, 657 F.3d at 987 (indicating that the court could certify a Rule 23(b)(2) class for injunctive relief and a separate Rule 23(b)(3) class for damages)”). Consequently, and contrary to ConAgra’s argument,
a. Rule 23(b)(2)
An injunctive relief class can be certified under Rule 23(b)(2) when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.Proc. 23(b)(2). As a threshold matter, the court must determine whether the named plaintiffs have standing to seek an injunction requiring ConAgra to cease marketing Wesson Oils as “100% Natural.” ConAgra asserts there is no evidence that any named plaintiff would purchase Wesson Oils in the future, and that this is fatal to their ability to secure injunc-tive relief. Several courts have reached this conclusion. See, e.g., Werdebaugh, 2014 WL
There are a number of cases that reach the opposite result, however. See, e.g., Rasmussen v. Apple Inc., 27 F.Supp.3d 1027, 2014 WL 1047091 (N.D.Cal. Mar. 14, 2014) (declining to reach the issue, but noting that “[s]ome courts have disagreed with th[e] reasoning [of the cases cited above], correctly recognizing the limitation this places on federal courts to enforce California’s consumer laws”); Lanovaz v. Twinings N. Am., Inc., C-12-02646, 2014 WL 46822, at *10 (N.D.Cal. Jan. 6, 2014) (“The court finds the reasoning of Henderson v. Gruma and the eases following it more convincing and accordingly finds that [plaintiff] has standing to seek injunctive relief’); Koehler v. Litehouse, Inc., No. CV 12-04055 SI, 2012 WL 6217635, at *6 (N.D.Cal. Dec. 13, 2012) (“If the Court were to construe Article III standing as narrowly as Defendant advocates, federal courts would be precluded from enjoining false advertising under California consumer laws because a plaintiff who had been injured would always be deemed to avoid the cause of the injury thereafter ... and would never have Article III standing____While Plaintiffs may not purchase the same Grama products as they purchased during the class period, because they are now aware of the true content of the products, to prevent them from bringing suit would surely thwart the objective of California’s consumer protection laws,” quoting Henderson v. Gruma Corp., 2011 WL 1362188, at *7-8 (C.D.Cal. Apr. 11, 2011)); Ries, 287 F.R.D. at 533 (“were the Court to accept the suggestion that plaintiffs’ mere
The court agrees with Judge Moskowitz that Article Ill’s standing requirements take precedence over enforcement of state consumer protection laws. See Mason, 2013 WL 1969957, at *4 (“Guided by the Ninth Circuit’s interpretation of Article Ill’s standing requirements, this Court agrees with the courts that hold that a plaintiff does not have standing to seek prospective injunctive relief against a manufacturer or seller engaging in false or misleading advertising unless there is a likelihood that the plaintiff would suffer future harm from the defendant’s conduct — i.e., the plaintiff is still interested in purchasing the product in question.... If an ADA plaintiff must demonstrate likely injury in the future, consumer plaintiffs such as the one in this case must as well. There is no likelihood of injury in the future if a plaintiff has no interest in purchasing the product at issue again because it does not work or does not perform as advertised”); see also Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-5222, 2014 WL 2451290, at *5 (N.D.Cal. June 2, 2014) (“It may very well be that the legislative intent behind California’s consumer protection statutes would be best served by enjoining deceptive labeling____But the power of federal courts is limited, and that power does not expand to accommodate the policy objectives underlying state law”). It does not agree, moreover, with those courts that have concluded that applying Article Ill’s standing requirements will preclude all enforcement of state consumer protection laws. First, plaintiffs can sue in state court for injunctive relief. Second, as this very case demonstrates, it is not impossible that a plaintiff or plaintiffs will express a desire to purchase the product at issue in the future. See Werdebaugh, 2014 WL 2191901, at *9.
Applying Article Ill’s requirements, the court agrees with Judge Breyer that a plaintiff does not lack standing simply because “he has learned that a label is misleading and therefore will not be fooled by it again.” Rather, a plaintiff lacks standing if he has not “expressed] an intent to purchase the products in the future.” Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726, at *12 (N.D.Cal. June 13, 2014). Plaintiffs argue that two of the named plaintiffs — Pauline Michael and Maureen Towey— have expressed an intent to purchase Wesson Oils in the future.
With respect to plaintiff Maureen Towey, plaintiffs cite page 132 of her deposition. That page, however, does not contain a statement by Towey that she wishes to purchase Wesson Oils in the future.
b. Rule 23(b)(3)
i. Whether Common Issues Predominate
(a) Reliance and Causation
Certifying a class under Rule 23(b)(3) requires “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.Proc. 23(b)(3); see Poulos v. Caesars World, Inc., 379 F.3d 654, 664 (9th Cir. 2004). The predominance requirement is “far more demanding” than the commonality requirement of Rule 23(a). Amchem Products, 521 U.S. at 623-24, 117 S.Ct. 2231. If common questions “present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication,” then “there is clear justification for handling the' dispute on a representative rather than on an individual basis,” and the predominance test is satisfied. Hanlon, 150 F.3d at 1022. “ ‘[I]f the main issues in a case require the separate adjudication of each class member’s individual claim or defense, [however,] a Rule 23(b)(3) action would be inappropriate.’ ” Zinser, 253 F.3d at 1190 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1778, at 535-39 (1986)). This is because, inter alia, “the economy and efficiency of class action treatment are lost and the need for judicial supervision and the risk of confusion are magnified.” Id.
Plaintiffs’ motion asserts that predominance is easily satisfied because there is a single common question that will have a single answer — whether labeling Wesson Oils— which are made from or contain genetically modified organisms — is false, unfair, deceptive and/or misleading.
Although plaintiff submitted a document they denominate Appendix 1, which purports to address the laws of the various states for which they seek to certify classes,
Even had plaintiffs adequately shown that a classwide inference of reliance and causation is available for all claims and all classes, the court would not be able to find on the present record that they had demonstrated an entitlement to such an inference. Citing California law, the Ninth Circuit has held that if a misrepresentation is not material as to all class members, the issue of reliance “var[ies] from consumer to consumer,” and no classwide inference arises. Stearns v.
(b) Damages
Putting aside issues of reliance and causation, Rule 23(b)(3) is satisfied only if plaintiffs establish that “damages are capable of measurement on a classwide basis.” Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1433, 185 L.Ed.2d 515 (2013). While plaintiffs have submitted Colin Weir’s declaration in which he states that it is possible to determine damages on a elasswide basis, Weir has made no attempt to do so. Although Weir describes the methods he would use to make the calculation — hedonic regression and conjoint analysis — he does not report that he has actually employed them to identify the price premium he believes will provide the classwide measure of relief.
More fundamentally, Comcast stands for the proposition that plaintiffs’ method of proving damages must be tied to their theory of liability. Comcast, 133 S.Ct. at 1433 (“If respondents prevail on their claims, they would be entitled only to damages resulting from reduced overbuilder competition, since that is the only theory of antitrust impact accepted for class-action treatment by the Distinct Court. It follows that a model purporting to serve as evidence of damages in this class action must measure only those damages attributable to that theory. If the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3)”). Weir proposes to calculate the price premium attributable to ConAgra’s use of the term “100% Natural.”
(c) Conclusion Regarding Predominance
For all of the reasons stated, the court concludes that plaintiffs have not shown that common questions predominate over individualized questions.
ii. Superiority
The second requirement imposed by Rule 23(b)(3) is that a class action be superi- or to other methods of resolving class members’ claims. “Under Rule 23(b)(3), the court must evaluate whether a class action is superior by examining four factors: (1) the interest of each class member in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the class; (3) the desirability of concentrating the litigation of the claims in a particular forum; and (4) the difficulties likely to be encountered in the management of a class action.” Edwards v. City of Long Beach, 467 F.Supp.2d 986, 992 (C.D.Cal. 2006) (quoting Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 469 (N.D.Cal. 2004)).
“Where damages suffered by each putative class member are not large, th[e first] factor weighs in favor of certifying a class action.” Zinsef, 253 F.3d at 1190. Given the low average price of a bottle of Wesson Oil,
The second factor likewise favors a finding that a class action is a superior means of litigating these claims. The only litigation of which the court is aware raising the claims asserted here are the eases that are presently pending before the court. These cases were either voluntarily transferred to this jurisdiction by the parties or transferred here by the Panel on Multidistrict Litigation. Given the small recovery that any individual
ConAgra does not address the first three factors. Rather, it focuses on the fourth — the difficulties likely to be encountered in the management of a class action. ConAgra asserts that the case will be unmanageable if the court certifies twelve different state classes, each of which alleges multiple claims.
iii. Conclusion Regarding Rule 23(b)(3)
Because plaintiffs have not demonstrated that common questions predominate over individual issues, and because they have proffered insufficient information concerning variations in the law of the twelve states in which they seek to certify classes to permit the court to determine finally whether a class action is superior, they have not satisfied Rule 23(b)(3).
4. Rule 23(c)(4)
Plaintiffs argue alternatively that if the court determines that classes cannot be certified under Rule 23(b), it should certify relevant issue classes under Rule 23(c)(4). This rule provides: “When appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed.R.Civ.Proc. 23(c)(4). The Ninth Circuit has endorsed the use of issue classes where individualized questions predominate and make certification under Rule 23(b)(3) inappropriate. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227,1234 (9th Cir. 1996) (“Even if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate eases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues”); see also Dukes, 603 F.3d at 620 n. 43 (“Relying
Plaintiffs propose that the court certify an issue class to litigate “whether ConAgra has misled consumers by labeling Wesson Oils as being ‘100% Natural’ when, in fact, they are made from GMOs.”
III. CONCLUSION
For the reasons stated, the court denies plaintiffs’ motion for class certification without prejudice. If plaintiffs can address the deficiencies noted in this order, they can file an amended motion for class certification within thirty (30) days of the date of this order.
. Complaint, Docket No. 1 (June 28, 2011).
. Minutes (In Chambers): Order Taking Off Calendar and Denying as Moot Motion of Plaintiffs Briseno and Toomer to Consolidate Related Actions and Designate Interim Class Counsel, Docket No. 33 (Oct. 6, 2011); Order Consolidating Cases, Docket No. 56 (Nov. 28, 2011); Order Re Stipulation to Consolidate Related Actions, Docket No. 59 (Dec. 9, 2011); Amended Order Granting Stipulation Re Amended Consolidated Complaint, Response to Amended Consolidated Complaint, and Consolidation of Additional Action, Docket No. 61 (Dec. 9, 2011). The consolidated cases are Robert Briseno v. Conagra Foods, Inc., CV 11-05379 MMM(AGRx); Christi Toomer v. Conagra Foods, Inc., CV 11-06127 MMM(AGRx); Kelly McFadden v. Conagra Foods, Inc., CV 11-06402 MMM(AGRx); Janeth Ruiz v. Conagra Foods, Inc., CV 11-06480 MMM(AGRx); Brenda Krein v. Conagra Foods, Inc., CV 11-07097 MMM(AGRx); Phyllis Scarpelli, et al. v. Conagra Foods, Inc., Case No. CV 11-05813 MMM (AGRx); Michele Andrade v. ConAgra Foods Inc., CV 11-09208 MMM (AGRx); and Lil Marie Virr v. Conagra Foods, Inc., CV 11-08421 MMM (AGRx).
. Consolidated Amended Class Action Complaint, Docket No. 80 (Jan. 12, 2012).
. Motion to Dismiss, Docket No. 84 (Feb. 24, 2012).
. Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss, Docket No. 138 (Nov. 15, 2012).
. Second Amended Class Action Complaint ("SAC”), Docket No. 143 (Dec. 19, 2012).
. Motion for Order for Allowing Withdrawal and Voluntary Dismissal, Docket No. 190 (Feb. 20, 2014). See also Corrected Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Order Allowing Withdrawal and Voluntary Dismissal ("Motion”), Docket No. 191 (Feb. 20, 2014) at 4, 5, 6.
. Order Granting Plaintiffs' Motion for Withdrawal and Voluntary Dismissal of Individual Claims, Docket No. 238 (May 2, 2014). Following the court’s order, no named plaintiffs remain who reside in Washington or Wyoming; this
. Motion to Certify Class, Docket No. 241 (May 5, 2014). See also Memorandum of Points and Authorities in Support (“Cert. Motion”), Docket No. 241-1 (May 5, 2014).
. Opposition to Plaintiffs’ Motion for Class Certification ("Opp. Cert.”), Docket No. 265 (June 2, 2014).
. Motion to Strike, Docket No. 262 (June 2, 2014).
. Opposition to Motion to Strike ("Opp. Motion to Strike”), Docket No. 280 (June 26, 2014).
. Although Bonnie McDonald of Massachusetts is presently a named plaintiff, plaintiffs do not ask that the court appoint her as a class representative, and they have filed a motion to permit her to withdraw as a plaintiff. Plaintiffs also seek an order permitting Phyllis Scarpelli of New Jersey to withdraw as a plaintiff. Her withdrawal will not affect the putative New Jersey class, however, because another plaintiff from New Jersey, Brenda Krein, remains a named plaintiff. (Cert. Motion at 11 n. 35; Motion to Withdraw Individual Claims of Plaintiffs McDonald and Scarpelli, Docket No. 273 (June 3, 2014).)
. Answer to Amended Complaint, Docket No. 145 (Jan. 16, 2013), ¶¶2, 11-31.
. Cert. Motion at 11-12.
. SAC, ¶¶ 64-103.
. Citing Tait v. BSH Home Appliances Corp., 289 F.R.D. 466 (C.D.Cal. 2012), plaintiffs argue that the court need not conduct a full Daubert analysis at the class certification stage. (Opp. Motion to Strike at 4-5.) In Tait, the court reviewed Ninth Circuit cases concerning consideration of expert testimony at the class certification stage, both prior to and following the Supreme Court's decision in Dukes. It held that "district courts must conduct an analysis tailored to whether an expert's opinion was sufficiently reliable to admit for the purpose of proving or disproving Rule 23 criteria, such as commonality and predominance.” Id. at 495. See id. (" 'At this early stage, robust gatekeeping of expert evidence is not required; rather, the court should ask only if expert evidence is 'useful in evaluating whether class certification requirements have been met.' This means that a district court need only conduct a 'tailored Daubert analysis’ which 'scrutinize^ the reliability of the expert testimony in light of the criteria for class certification and the current state of the evldence,' ” quoting Ellis, 657 F.3d at 982, and In re Zurn Pex Plumbing Products Liab. Litig., 644 F.3d 604, 614 (8th Cir. 2011)); id. at 496 ("Plaintiff responds that the Court’s analysis of Expert Clark's opinion at the class certification stage must be limited to the purpose for which it is presented, namely, to establish the Rule 23(a) requirement of commonality by showing that the issue of whether the class members' Washers had a propensity to develop BMFO is susceptible to common proof.... [T]he Court agrees”). The court does not interpret the motions to strike the parties have filed as motions to exclude expert testimony at trial. Consequently, the court evaluates the admissibility of the expert testimony under Daubert in light of the purpose for which it is offered — i.e., to demonstrate that it is appropriate to certify a class under Rule 23. "Any determination the court makes regarding the admissibility of expert testimony (other than a finding that an expert is not qualified), is not a final conclusion that will control the admissibility of the expert's testimony at trial.” Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D. 534, 542 n. 53 (C.D.Cal. 2012).
. This showing must be by a preponderance of the evidence. See Daubert, 509 U.S. at 594 n. 10, 113 S.Ct. 2786 (citing Bourjaily, 483 U.S. at 175-76, 107 S.Ct. 2775).
. Expert Declaration of Colin B. Weir ("Weir Decl.”), Docket No. 243 (July 14, 2014) at 3; Opp. Motion to Strike, Exh. C ("Weir Depo.”) at 47:8-12.
. Id.
. Id. at 9:20-10:21; 13:13-14:7.
. Id., Exh. 1 at 1.
. Weir Decl. at 3.
. Id.
. Id., ¶ 9 & nn. 5-6.
. Id., ¶11.
. Id., ¶ i2.
. Id., ¶ 33.
. Id., ¶ 13.
. Id., ¶ 46.
. Id.
. Motion to Strike at 3.
. Id.
. Id. at 4 n. 1.
. Reply to Motion to Strike, Docket No. 296 (July 3, 2014) at 6.
. Motion at Strike at 5.
. Id. at 5, 7-8.
. Id. at 5-6.
. Id. at 8.
. Id.
. Opp. Motion to Strike at 12.
. Id. at 13.
. Id. at 15.
. Motion to Strike at 8.
. Declaration of Charles M. Benbrook, Ph.D. ("Benbrook Deck”), Docket No. 242 (May 5, 2014), ¶ 14.
. Benbrook Deck, ¶ 15.
. Id., ¶ 17.
. Id., ¶ 19.
. Id., ¶ 20.
. Id., ¶ 27.
. Id., ¶23.
. Id., ¶¶ 1-2, 4.
. Id., ¶ 5.
. Motion to Strike at 9.
. Id. at 10.
. Id. at 11.
. Id. at 14. See Benbrook Deck, ¶¶ 35-45.
. Motion to Strike at 14; Benbrook Decl., ¶ 36.
. Motion to Strike at 14.
. Id.; Benbrook Deck, ¶ 36.
. Motion to Strike at 15.
. Id.
. Id. at 16.
. Benbrook Deck, ¶ 36.
. Compare Benbrook Deck, ¶ 39, with Declaration of Henry J. Kelston ("Kelston Deck”), Docket No. 244 (May 5, 2014), Exh. 23 at 3.
. ConAgra also contends that Dr. Benbrook did not review full versions of the studies he cites. Plaintiffs acknowledge that Dr. Benbrook did not have access to the full 2010 Hartman report, Beyond Natural and Organic, at the time he prepared his declaration, but state that he has access to it now, has reviewed it, and is prepared to testify regarding its contents. Plaintiffs proffer no declaration by Dr. Benbrook to this effect, however. Thus, this statement is merely attorney argument, and is not evidence the court can consider in determining the reliability of Dr. Benbrook’s testimony. Plaintiffs further state, however, that the data set forth in paragraphs 43 and 44 of Dr. Benbrook’s declaration, which discusses the Hartman Report, are extracted from another study referenced in Appendix D, Consumer confusion about the difference: “Natural" and "Organic” product claims, a White Paper by the Canada Organic Trade Organization. Even had Dr. Benbrook reviewed full copies of both surveys, the court would exclude his opinion concerning consumer interpretation of the term "natural” for the reasons stated in text.
Because the court reaches this conclusion, it need not consider ConAgra’s argument that other surveys contradict the findings of the Leather-head and Hartman surveys.
. Motion to Strike at 12.
. Benbrook Deck, ¶ 7.
. Id., ¶ 8(c).
. Id., ¶ 8(e).
. Id., ¶ 141.
. Id., ¶ 196.
. Id., ¶320.
. ConAgra also argues more broadly that because plaintiffs argued in their opposition to its motion to dismiss that no expert testimony would be necessary to determine whether the "100% Natural” claim is misleading, they are now judicially estopped from offering expert testimony on the subject. "Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position.” Hamilton v. State Farm Fire & Cos. Co., 270 F.3d 778, 782 (9th Cir. 2001). "Th[e] court invokes judicial estoppel not only to prevent a party from gaining an advantage by taking inconsistent positions, but also because of 'general consideration^] of the orderly administration of justice and regard for the dignity of judicial proceedings,’ and to ‘protect against a litigant playing fast and loose with the courts.’ ” Id. (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)).
In determining whether to find that a party is judicially estopped, courts consider (1) whether the party’s later position is "clearly inconsistent” with its earlier position; (2) whether the party succeeded in persuading the court to accept the earlier position, such that judicial acceptance of a later inconsistent position would create "the perception that either the first or second [time the] court was misled"; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 782-83 (citing New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). See also Ceja-Corona v. CVS Pharm., Inc., No. l:12-cv-01703-AWI-SAB, 2014 WL 1679410, at *9 (E.D.Cal. Apr. 28, 2014) (listing factors).
In opposing ConAgra’s motion to dismiss, plaintiffs argued that the action should not be stayed or dismissed under the "primary jurisdiction” doctrine because FDA agency expertise was not required to determine whether the "100% Natural” claim is misleading. Here, plaintiffs proffer Dr. Benbrook’s testimony under Rule 702, which requires only that expert testimony "assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R.Evid. 702. The two positions are not "clearly inconsistent”; rather, they are compatible. Accordingly, the court concludes that judicial estop-pel does not apply to bar Dr. Benbrook’s testimony.
. Hanssens Deck, ¶ 1.
. Id., ¶1.
. Id., ¶ 2.
. Id., ¶ 3.
. Id., ¶ 4.
. Id., ¶ 12.
. /d„ ¶¶ 15-16.
. /it, ¶ 42.
. Id.,n 51-52.
. Id., ¶ 58.
. /it, ¶¶ 13-14.
. Objections to Declaration of Dominique M. Hanssens (“Obj. to Hanssens Deck”), Docket No. 282 (June 30, 2014) at 2.
. Declaration of Dr. Elizabeth Howlett ("How-lett Deck”), Docket No. 288 (June 30, 2014), ¶ 17. Dr. Howlett also opines on the level of importance consumers attach to "natural” claims on food products in general and to the "100% Natural” label on Wesson Oils in particular. She also discusses a survey conducted for plaintiffs by Dr. John C. Kozup that was designed to measure consumer perceptions as to whether a “100% Natural” claim is consistent with the use of GMO ingredients. (Id., ¶ 1; Declaration of Adam J. Levitt ("Levitt Deck”), Docket No. 287 (June 30, 2014), Exh. J (Kozup Survey).) ConAgra objects that Dr. Howlett’s declaration is untimely and that the court should not consider evidence offered for the first time in reply. (Reply to Motion to Strike at 13-14.) In general, a court will not consider evidence submitted for the first time in reply without giving the opposing party an opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (district court should not consider new evidence presented in a reply without giving the non-movant an opportunity to respond); see Green v. Baca, 219 F.R.D. 485, 487 n. 1 (C.D.Cal. 2003) (exercising discretion to consider evidence presented in reply but affording plaintiff an opportunity to depose a key declarant). Evidence submitted in direct response to evidence raised in the opposition, however, is not “new." Edwards v. Toys 'R' US, 527 F.Supp.2d 1197, 1205 n. 31 (C.D.Cal. 2007) ("Evidence is not 'new,' however, if it is submitted in direct response to proof adduced in opposition to a motion”); see Terrell v. Contra Costa County, 232 Fed.Appx. 626, 629 n. 2 (9th Cir. 2007) (Unpub. Disp.) (evidence adduced in reply was not new where "[t]he Reply Brief addressed the same set of facts supplied in Terrell’s opposition to the motion but provides
On July 11, 2014 — -the Friday before the Monday hearing on plaintiffs’ motion — plaintiffs filed a response to ConAgra’s evidentiary objections to Howlett's declaration and the Kozup survey, as well as to a rebuttal declaration filed by Weir (see infra n. 133). (Plaintiffs’ Response to Defendant ConAgra Foods, Inc.’s Evidentiary Objections to New Evidence Submitted for the First Time on Reply in Support of Plaintiffs’ Motion for Class Certification (“Reply Evidence Response”), Docket No. 299 (July 11, 2014).) Plaintiffs argued that Kozup’s survey was rebuttal evidence because it was proffered in response to Hanssens’ survey. (Id. at 10.) For the reasons already stated, the court does not agree with this characterization of plaintiffs’ evidence. Citing Smith v. Microsoft Corp., No. ll-CV-1958 JLS (BGS), 2013 WL 6497073 (S.D.Cal. Dec. 10, 2013) and All Star Seed v. Nationwide Agribusiness Ins. Co., No. 12cvl46 L(BLM), 2014 WL 1286561 (S.D.Cal. Mar. 31, 2014), plaintiffs contended that even if the filings do not qualify as rebuttal evidence, the court should still consider them, afford ConAgra an opportunity "orally [to] rebut the new evidence during [the] hearing,” or construe ConAgra’s objections as a legally sufficient response. (Id. at 8.) The court finds the cases cited distinguishable, as the Smith and All Star courts each determined that evidence or argument submitted for the first time in reply was not "new.” Moreover, given the technical nature of the new evidence plaintiffs have adduced, affording ConAgra an opportunity to rebut it orally or considering ConAgra’s evidentiary objections a sufficient response would prejudice ConAgra.
. Howlett Deck, ¶¶ 48-63.
. Hanssens Decl., Exh. 5.1 at 107; Howlett Decl. at 15; Levitt Decl., Exh. F at 3706.
. Dr. Howlett's other criticisms likewise go to the weight of the survey data, but do not render it inadmissible. He asserts, for example, that the survey fails to ensure respondents actually viewed the "100% Natural” label, because the survey did not obtain data concerning the length of time respondents viewed the label, did not ask whether the label said "100% Natural,” and did not include attention checks to ensure respondents were paying attention. She also states that the survey failed to consider respondents' prior knowledge and beliefs. While these purported deficiencies may affect the weight to be given to the survey’s conclusions about consumer attitudes toward the "100% Natural” label, they are proper subjects for cross-examination, not a basis for excluding Dr. Hanssens’ testimony regarding the survey. See Wendt, 125 F.3d at 814; Southland Sod Farms, 108 F.3d at 1143 n. 8.
. Motion at 11-12.
. Opp. Cert. at 15.
. Id.
. Id.
. ConAgra argues that plaintiff Pauline Michael testified she did not purchase Wesson Oil products during the three-year limitations period for consumer protection claims in Illinois, 815 ILCS § 505/1 et seq., and that she accordingly lacks standing to represent an Illinois class on this claim. ("Q. Have you bought any Wesson Oil since June 27, 2007? A. No, I don’t believe so.” (Declaration of Robert B. Hawk ("Hawk Deck”), Docket No. 269 (June 2, 2014), Exh. D at 80:1-4.)) With their reply, plaintiffs submitted Michael’s declaration, in which she states that she incorrectly recalled the date of her last purchase of Wesson Oil during her deposition, and that she in fact has in fact purchased the product since June 27, 2007. (Reply Declaration of Plaintiff Pauline Michael ("Michael Deck”), Docket No. 286 (June 30, 2014), ¶¶ 6-8.) Although submitted in reply, this evidence responds directly to the deposition testimony Con-Agra adduced in support of its opposition. Accordingly, Michael’s reply declaration is not “new” and the court will not decline to consider it on this basis. Ordinarily, however, when a declaration directly contradicts prior deposition testimony, the deposition testimony controls and the declaration must be disregarded. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) ("The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony”). To determine whether such a declaration can be considered, the court must make a factual determination as to whether the declaration is a "sham." Id. at 266-67 (limiting the rule first articulated in Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543-44 (9th Cir. 1975)). An affidavit is not a sham if: (1) it "merely elaborates] upon, explain[s] or clarities] prior testimony,” Messick v. Horizon Industries, Inc., 62 F.3d 1227, 1231 (9th Cir. 1995); (2) if "the witness was confused at that time of the earlier testimony and provides an explanation for the confusion,” Pacific Ins. Co. v. Kent, 120 F.Supp.2d 1205, 1213 (C.D.Cal. 2000) (citing Kennedy, 952 F.2d at 266); or (3) if the declaration concerns newly discovered evidence, id. See also Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009) ("the inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit”); id. at 999 ("minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit”); Kennedy, 952 F.2d at 267 (before testimony is designated "sham,” it must "flatly contradict[] earlier testimony”). Michaels states that she was asked repeatedly during her deposition when she last purchased Wesson, and had trouble recalling the date. (Michael Deck, ¶ 5.) She states that she stopped purchasing Wesson Oils after making changes to her diet, and that she estimated the year of her last purchase by estimating the year when she altered her diet; she based her estimate on her probable age at the time of the dietary changes. (Id., ¶¶ 6-7.) She explains she later realized that because the dietary changes were prompted by a car accident that occurred in September 2008, her last purchase of Wesson Oils must have occurred after June 27, 2007. (Id., ¶ 8.) The court is satisfied by Michaels' explanation and concludes that the contradictory testimony was the result of an honest discrepancy or mistake. See Van Asdale, 577 F.3d at 999; Calloway v. Contra Costa County Jail Correctional Officers, No. C 01-2689 SBA, 2007 WL 134581, at *17 (N.D.Cal. Jan. 16, 2007) ("Defendants offer many instances from Plaintiff’s deposition testimony where he was unable to remember dates, but the Kennedy court was clear that discrepancies due to honest mistake do not constitute ‘sham’ testimony. The Court declines to exclude the declaration as a sham”). Accordingly, the court declines to strike the declaration, and finds that Michaels has standing to represent the Illinois class on the consumer protection claim.
. Reply in Support of Motion to Certify Class ("Reply”), Docket No. 284 (June 30, 2014) at 12-13.
. The court is cognizant that due to market factors, prices for the same product may vary widely. See, e.g., Werdebaugh v. Blue Diamond Growers, Case No.: 12-CV-2724-LHK, 2014 WL 2191901, at *23 (N.D.Cal. May 23, 2014) ("Werdebaugh testified that consumers typically pay a premium simply by purchasing from
. Cert. Motion at 19.
. Opp. Cert. at 12.
. Id. at 12-13.
. Opp. Cert. at 13-14.
. "Fail-safe classes are defined by the merits of their legal claims, and are therefore unascertainable prior to a finding of liability in the plaintiffs’ favor.” Velasquez v. HSBC Finance Corp., No. 08-4592 SC, 2009 WL 112919, at *4 (N.D.Cal. Jan. 16, 2009); see also Boucher v. First American Title Ins. Co., No. C10-199RAJ, 2011 WL 1655598, at *5 (W.D.Wash. May 2, 2011) ("Second, the definition conditions a customer’s class membership on a finding that First American is liable to him or her.... So, for example, if the court certified the class and later determined on summary judgment that First American correctly discounted all class members’ premiums, then the class would have no members. A ‘fail-safe class’ like this ensures that a defendant cannot prevail against the class, because if the defendant prevails, the class will not exist”); Lewis v. First American Title Ins. Co., 265 F.R.D. 536, 551 (D.Idaho 2010) (defining a fail-safe class as one that "impermissibly determines membership based upon a determination of liability”).
. Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011), a case cited by ConAgra, is not to the contrary. In Stearns, plaintiffs alleged a website induced people to purchase inadvertently services they neither expected, wanted, or used. The court held that the proposed class was over-broad under Rule 23(b)(3), because it included members who were not misled and who intentionally signed up for the services. Id. at 1022, 1024. Thus, while finding the presence of uninjured class members defeated predominance, the court did not conclude that this fact rendered the class unascertainable.
. ConAgra raises this argument with respect to Rule 23(b)(3), but not Rule 23(a)(2).
. Answer to Amended Complaint, ¶ 57.
. ConAgra does not dispute plaintiffs' showing as to this requirement.
. Cert. Motion at 15.
. Once again, ConAgra does not dispute that this requirement is satisfied. Plaintiffs assert that additional common questions include: (a) whether ConAgra acted knowingly or recklessly; (b) whether ConAgra's practices violate applicable law; (c) whether Plaintiffs and the other members of the Classes are entitled to actual, statutory, or other forms of damages, and other monetary relief; and (d) whether Plaintiffs and the other members of the Classes are entitled to equitable relief, including but not limited to in-junctive relief and restitution. (Cert. Motion at 15.) Because whether ConAgra’s "100% Natural” assertion in the marketing and sale of its Wesson Oils is false, unfair, deceptive, and/or misleading satisfies the commonality requirement, the court need not address plaintiffs’ other asserted bases for establishing commonality.
. Cert. Motion at 16.
. Opp. Cert. at 16.
. Opp. Cert. at 16. ConAgra further contends that the named plaintiffs’ lack standing renders them atypical. (Id. at 17 n. 14.) The court has already rejected ConAgra’s standing argument, however, and need not address it again here.
. Reply at 32-33. Plaintiffs also cite the Koz-up survey and a Consumer Reports survey as additional evidence supporting their contention that the "100% Natural” claim is material. (Id. at 33.) Because plaintiffs submitted the Kozup survey for the first time in reply, the court will not consider it because ConAgra has had no opportunity to respond. See Provenz, 102 F.3d at 1483; Green, 219 F.R.D. at 487 n. 1. Nor will
. While the reports suggest that “pure and natural” claims are significant factors motivating consumer purchasing decisions regarding cooking oils, (Declaration of Henry J. Kelston ("Kel-ston Deck”), Docket No. 244 (May 5, 2014), Exh. 3 at 1944, Exh. 10 at 2546; Levitt Deck, Exh. M), none of the studies directly addresses whether consumers equate "natural” or "100% Natural” with the absence of genetically modified organisms or GMO ingredients.
. In this regard, there is some authority for the proposition that a breach of express warranty claim under the California Commercial Code does not require proof of reliance on specific promises made by the seller. See Weinstat v. Dentsply International, Inc., 180 Cal.App.4th 1213, 1226-28, 103 Cal.Rptr.3d 614 (2010) (noting, however, that the California Supreme Court has declined to resolve the issue). Several courts, however, have held that to the extent
. Opp. Cert. at 17.
. Id.
. Id. at 18.
. Id.
. Id. at 9.
. Opp. Cert. at 38.
. Reply at 38.
. Levitt Deck, Exh. P at 2.
. Declaration of Robert B. Hawk in Opposition to Motion for Class Certification ("Hawk Decl.”), Docket No. 269 (June 2, 2014), Exh. D at 36-37.
. Levitt Deck, Exh. P at 3.
. Hawk Deck, Exh. F at 41, 45.
. Cert. Motion at 21.
. Id. at 22.
. Opp. Cert. at 19.
. This document violates the Local Rules and expanded page limitations that the court authorized in this case, as it is, effectively, legal argument and citations that should have been included in plaintiff's memorandum of points and authorities.
. Although plaintiffs submitted the survey conducted by Dr. Kozup in reply, the court has declined to consider it for the reasons stated in note 88 supra.
. Plaintiffs request that, in the event the court grants ConAgra’s motion to strike Dr. Ben-brook’s declaration, it take judicial notice of various of the documents he discusses, including the Leatherhead and Hartman Group surveys. (Request for Judicial Notice, Docket No. 292 (July 1, 2014), Exhs. 8, 28.) Under Rule 201, the court can judicially notice ”[o]fficial acts of the legislative, executive, and judicial departments of the United States,” and ”[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” The contents of the Leatherhead and Hartman Group surveys are not capable of immediate and accurate determination. Moreover, plaintiffs ask only that the court take judicial notice "of the fact that the respective agencies, industry groups, and scientific journals published these reports to consumers.” (Id. at 2.) Granting plaintiffs' request thus would not provide a basis on which to accept, or •even evaluate, the contents of the surveys.
. The court also notes that the Leatherhead survey involved respondents from Italy, France, Germany and the United Kingdom in addition to the United States. (Benbrook Decl., ¶ 38; Hans-sens Deck, ¶ 75.) As Dr. Hanssens notes, the survey authors commented on the fact that the term natural was less important to U.S. consumers than to European consumers. (Hanssens Deck, 11 75.) Thus, results based on both U.S. and European consumers may have skewed the outcome of the survey. Hanssens also asserts that the survey data do not specifically address genetically modified organisms, and that 61% of respondents did not equate "natural” with "coming from nature.” (Id., ¶ 76.)
. Weir Deck, ¶ 9; Hawk Deck, Exh. G at 113-14. Weir submitted a rebuttal declaration with plaintiffs’ reply, which states that he conducted a preliminary hedonic regression analysis. (Rebuttal Declaration of Colin B. Weir, Docket No. 285 (June 30, 2014), ¶¶ 10, 87-93.) Because Weir's preliminary analysis is new evidence submitted for the first time in reply, the court declines to consider it. Provenz, 102 F.3d at 1483. Plaintiffs contend that Weir was unable to complete his preliminary analysis by the class certification deadline because ConAgra did not produce Nielsen data until April 28, 2014, four weeks after the March 31, 2014 deadline for production set by Judge Rosenberg, and one week prior to the class certification deadline. (Reply Evidence Response at 14.) Plaintiffs assert they should not be held responsible for failing to request a continuance because they had previously filed an ex pane application seeking an extension of the class certification deadline, which ConAgra opposed. (Id. at 15.) The application to which plaintiffs refer was filed on March 16, 2014. (Ex Parte Application to Modify Scheduling Order or, in the Alternative, for Expedited Scheduling Conference, Docket No. 220 (Mar. 16, 2014).) The court issued an order on March 28, 2014, inter alia, continuing the class
. At the hearing, plaintiffs cited Werdebaugh, 2014 WL 2191901, at *25, for the proposition that they were not required to produce a regression analysis and provide final results at the class certification stage. The case is distinguishable. There, plaintiffs’ damages expert, Dr. Capps, proposed a regression model to isolate damages arising from defendant's allegedly misleading label claims. The court determined that the proposed model satisfied Rule 23(b)(3), noting that it identified various factors Dr. Capps sought to isolate in order to calculate the price differential resulting from the mislabeling; these included "regional price variance, price changes that result from increasing or decreasing demand for complementary products, and inflation.” Id. at *26. Here, by contrast, Weir has identified no factors he seeks to isolate in the models he proposes to create for this litigation. Moreover, in contrast to the expert in Werdebaugh, the court has stricken Weir's declaration under Rule 702 of the Federal Rules of Evidence, and thus is unable to consider even his proposed methodology in deciding plaintiffs’ motion.
. Weir Deck, ¶¶ 4, 9.
. Hawk Deck, Exh. G at 66.
. Benbrook Decl., ¶ 41.
. See, e.g., Ugone Decl., Exh. 11 at 309 (showing average retail cooking oil prices generally in the $3-5 range).
. Opp. Cert. at 36.
. Id. at 37.
. Reply at 28.
. Opp. Cert. at 37 (citing Zinser, 253 F.3d at 1189)
. In their reply, plaintiffs offer some suggestions — (1) severing the claims of each of the state classes, and having a "bellwether” trial as to the claims of one or more of the classes; (2) having a single trial of the common elements of all twelve state classes’ claims; or (3) severing the claims of each of the state classes and returning them to their respective jurisdictions for trial. Plaintiffs do not clearly indicate which, if any, of these approaches they favor, although certain of their comments suggest they believe a single trial would be workable. Because plaintiffs’ failure to satisfy other requirements of Rule 23 preclude certification, the court need not evaluate at this time which, if any, of plaintiffs’ proposed methods of trying their claims would be workable.
. Cert. Motion at 33.
Reference
- Full Case Name
- In re CONAGRA FOODS, INC.
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- Published