22-2684-cv In re: Kind LLC “Healthy and All Natural” Litigation

United States Court of Appeals For the Second Circuit August Term 2023

Argued: January 10, 2024 Decided: May 2, 2024

No. 22-2684-cv

CHARITY BUSTAMANTE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AMANDA SHORT; SARAH THOMAS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED; and ELIZABETH LIVINGSTON,

Plaintiffs-Appellants,

AMY CAVANAGH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; ROBERT O’BRIEN, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; MAYRA GALVEZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; CHRIS C. GALVEZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; BRANDON KAUFER; DENA KARNEZIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; DANIELLE COOPER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; LEE JACKSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; CHARLIE MCDONALD; BENJAMIN KARTER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED AND THE GENERAL PUBLIC; MELANIE HOUSE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; ERICH ZANDER; BONNIE BURKETT; and BARRY A. COHEN,

Plaintiffs, v.

KIND, LLC, A NEW YORK LIMITED LIABILITY COMPANY,

Defendant-Appellee,

Appeal from the United States District Court for the Southern District of New York No. 1:15MD02645, Naomi Reice Buchwald, Judge.

Before: MENASHI, LEE, AND MERRIAM, Circuit Judges.

KIND, LLC markets, advertises, and distributes various snack foods, including granola bars. In this multidistrict litigation, plaintiffs-appellants assert that the phrase “All Natural” that appeared on the labels of KIND products is deceptive and misleading. Plaintiffs seek damages on behalf of themselves and three classes, based on common law fraud, as well as consumer protection and false advertising laws in New York, California, and Florida. By memorandum and order dated September 9, 2022, the District Court for the Southern District of New York (Buchwald, J.) granted KIND’s motion for summary judgment, concluding, in relevant part, that plaintiffs had failed to establish how a reasonable consumer would understand the term “All Natural.” The District Court held that this was fatal to plaintiffs’ claims because without showing how a reasonable consumer understood the term plaintiffs could not explain how or why they were materially deceived. In reaching this conclusion, the District Court granted KIND’s motion to preclude two of plaintiffs’ expert opinions from the summary judgment record, and granted KIND’s motion to decertify the classes. Plaintiffs timely appealed. For the reasons set forth below, we hold that the District Court did not abuse its discretion in precluding the opinions of plaintiffs’ experts. We also hold that because plaintiffs failed to present admissible evidence of what a reasonable consumer would expect of KIND products labeled “All Natural,” the District Court did not err in concluding that there was no triable issue of fact as to whether reasonable consumers would be misled by the “All Natural” labeling. Because we affirm the District Court’s grant of summary judgment, plaintiffs’

2 arguments regarding class decertification are moot. The judgment of the District Court is therefore AFFIRMED.

TODD S. GARBER, Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White Plains, NY (Bradley K. King, Ahdoot & Wolfson, PC, New York, NY; Daniel L. Warshaw, Pearson Warshaw, LLP, Sherman Oaks, CA, on the brief) for Plaintiffs-Appellants.

KERI ELIZABETH BORDERS (Dale Joseph Giali, Rebecca B. Johns, on the brief), King & Spalding LLP, Los Angeles, CA, for Defendant- Appellee.

SARAH A. L. MERRIAM, Circuit Judge:

Plaintiffs-appellants (“plaintiffs”) appeal from the September 12, 2022,

judgment entered in the District Court for the Southern District of New York

(Buchwald, J.), granting summary judgment in favor of defendant-appellee

KIND, LLC (“KIND”), granting KIND’s motion to disqualify two of plaintiffs’

experts, and decertifying the classes.

KIND markets, advertises, and distributes various snack foods, including

granola bars. Plaintiffs assert that the phrase “All Natural” that appeared on the

labels of 39 KIND products is deceptive and misleading. Plaintiffs seek damages

on behalf of themselves and three classes pursuant to common law and to New

York, California, and Florida consumer protection and false advertising laws.

3 After the parties completed discovery, KIND moved for summary

judgment, to preclude plaintiffs’ experts from offering testimony in opposition to

its motion for summary judgment, and to decertify the classes. By memorandum

and order dated September 9, 2022, the District Court granted KIND’s motion for

summary judgment, concluding, in relevant part, that plaintiffs had failed to

establish a reasonable consumer’s understanding of the term “All Natural,”

which was fatal to plaintiffs’ claims. See generally In re KIND LLC “Healthy and

All Natural” Litig.,

(S.D.N.Y. 2022) (“KIND II”). The District

Court also granted KIND’s motion to preclude two of plaintiffs’ expert opinions

from the summary judgment record, and KIND’s motion to decertify the classes.

See generally

Plaintiffs timely appealed. For the reasons set forth below, we hold that the

District Court did not abuse its discretion in precluding the opinions of plaintiffs’

experts. We also hold that because plaintiffs failed to present admissible

evidence of what a reasonable consumer would expect of KIND products labeled

“All Natural,” the District Court did not err in concluding that there was no

triable issue of fact as to whether reasonable consumers would be misled by the

“All Natural” claim. Because we affirm the District Court’s grant of summary

4 judgment, plaintiffs’ arguments regarding class decertification are moot. The

judgment of the District Court is therefore AFFIRMED.

BACKGROUND

This litigation began in 2015, shortly after the Food and Drug

Administration (“FDA”) issued a “warning letter” challenging a statement on

KIND product labels that the products are “healthy and tasty.” 1 Following the

FDA letter, various plaintiffs filed private lawsuits asserting, inter alia, that

consumers had been deceived by the description of KIND products as “healthy.”

These lawsuits were eventually transferred to the Southern District of New York

and consolidated to a multidistrict litigation docket.

Plaintiffs’ claims have shifted over the course of this litigation. In May

2016, plaintiffs voluntarily dismissed the claims challenging KIND’s use of the

term “healthy.” Thereafter, plaintiffs filed an amended consolidated class action

complaint (“ACC”) alleging that plaintiffs had instead been deceived by the “All

Natural/Non-GMO” claim on the packaging of various KIND products. The

ACC asserts claims for breach of express warranty, unjust enrichment, and

negligent misrepresentation, as well as violations of the New York General

1 In 2016, the FDA withdrew the objections outlined in its 2015 warning letter. 5 Business Law (“GBL”),

; California Consumers

Legal Remedies Act (“CLRA”),

, et seq.; California False

Advertising Law (“FAL”),

, et seq.; California

Unfair Competition Law (“UCL”),

, et seq.; and

Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”),

, et seq.

To support these claims, the ACC alleges that the “All Natural” language

on KIND products constitutes deceptive labeling under five separate definitions

of “All Natural.” It further alleges that the following eleven ingredients

contained in some relevant KIND products are “non-natural”: Soy Lecithin; Soy

Protein Isolate; Citrus Pectin; Glucose Syrup/“Non GMO” Glucose; Vegetable

Glycerine; Palm Kernel Oil; Canola Oil; Ascorbic Acid; Vitamin A Acetate; D-

Alpha Tocopheryl Acetate/Vitamin E; and Annatto. J. App’x at 87; see also id. at

87-95.

On January 17, 2020, plaintiffs filed a motion seeking to certify three

damages classes under Rule 23(b)(3) of the Federal Rules of Civil Procedure: (1)

The “New York Class,” which would include “[a]ll persons who purchased

KIND’s Products in New York for their personal use and not for resale at any

6 time since April 17, 2009”; (2) the “California Class,” which would include “[a]ll

persons who purchased KIND’s Products in California for their personal use and

not for resale at any time since April 17, 2011”; and (3) the “Florida Class,” which

would include “[a]ll persons who purchased KIND’s Products in Florida for their

personal use and not for resale at any time since April 17, 2011.” J. App’x at 163. 2

On March 24, 2021, the District Court granted plaintiffs’ motion to certify the

three damages classes. See In re Kind LLC “Healthy and All Natural” Litig.,

, 610 (S.D.N.Y. 2021) (“KIND I”). In relevant part, the District Court

found that “common questions predominate[d]” because, inter alia,

the differences between “Non-GMO” and “No Genetically Engineered Ingredients” on one hand, and “All Natural” on the other, are minute . . . . If a product contains a GMO, it by definition cannot be natural . . . . [N]one of the labels displayed “All Natural” on its own. Rather, KIND coupled “All Natural” with “Non-GMO.”

Id. at 599-600.

Following class certification and further discovery, plaintiffs dropped any

challenge to the “Non GMO” and “No Genetically Engineered Ingredients”

statements on KIND products. Plaintiffs now pursue their challenge only to the

2 Plaintiffs also sought certification of injunctive classes pursuant to Rule 23(b)(2). The District Court denied that aspect of plaintiffs’ clarification motion and that ruling is not challenged on appeal. 7 “All Natural” claim that previously appeared on certain KIND products. 3

After the close of discovery, KIND filed motions for summary judgment,

to decertify the classes, and to exclude plaintiffs’ expert witnesses, Dr. J. Michael

Dennis and Dr. Anton Toutov. In a memorandum and order issued on

September 9, 2022, the District Court granted KIND’s motions. See generally

KIND II, 627 F. Supp. 3d at 269. Judgment entered in favor of KIND on

September 12, 2022, and this appeal followed.

DISCUSSION

“When a party challenges the district court’s evidentiary rulings

underlying a grant of summary judgment, we undertake a two-step inquiry.

First, we review the trial court’s evidentiary rulings, which define the summary

judgment record.” Picard Tr. for SIPA Liquidation of Bernard L. Madoff Inv. Sec.

LLC v. JABA Assocs. LP,

, 180-81 (2d Cir. 2022) (citation and

quotation marks omitted). The District Court’s determinations as to the

admissibility of evidence are reviewed for abuse of discretion. See id. at 181.

Second, after we have defined the record, we review the summary judgment

3 In 2014, KIND began discontinuing the use of the “All Natural/GMO” label on a rolling basis, and by 2017, KIND had discontinued all labels bearing any form of the “All Natural” claim. 8 decision de novo. See id. Accordingly, we begin by considering whether the

District Court abused its discretion in precluding the expert opinions of Dr. J.

Michael Dennis and Dr. Anton Toutov.

I. Relevant Consumer Protection and False Advertising Law

To frame this analysis, we begin with an overview of the law applicable to

plaintiffs’ claims. As noted, plaintiffs assert claims pursuant to various state law

consumer protection and false advertising statutes. While the required elements

of claims under each statute vary, the parties do not dispute the District Court’s

conclusion that “there is substantial overlap between the elements of the claims,”

and that to prevail on any of their claims, “plaintiffs must demonstrate: (1) a

deceptive act; (2) materiality; and (3) injury.” KIND II, 627 F. Supp. 3d at 280. 4

Only the first element, deception, is at issue in this appeal.

Deception is governed by the reasonable consumer standard. See Maurizio

v. Goldsmith,

(2d Cir. 2000) (per curiam) (GBL); McGinity v.

Procter & Gamble Co.,

(9th Cir. 2023) (UCL, FAL, CLRA);

4 Plaintiffs also assert common-law claims for breach of express warranty, unjust enrichment, and negligent misrepresentation. Plaintiffs do not challenge the District Court’s finding that because the common-law claims “are similarly premised on plaintiffs establishing a deceptive and misleading act,” the common-law claims “fail if plaintiffs cannot meet the statutory standard.” KIND II, 627 F. Supp. 3d at 281. 9 Zlotnick v. Premier Sales Grp., Inc.,

(11th Cir. 2007)

(FDUTPA). Under the reasonable consumer standard, deceptive acts are defined

“objectively” as those “that are likely to mislead a reasonable consumer acting

reasonably under the circumstances.” Maurizio,

(citation and

quotation marks omitted); see also Williams v. Gerber Prods. Co.,

(9th Cir. 2008) (“Under the reasonable consumer standard, Appellants must

show that members of the public are likely to be deceived.” (citation and

quotation marks omitted)); Zlotnick,

(“[D]eception occurs if

there is a representation, omission, or practice that is likely to mislead the

consumer acting reasonably in the circumstances, to the consumer’s detriment.”

(citation and quotation marks omitted)). The Ninth Circuit has helpfully

explained that this standard requires “more than a mere possibility that the label

might conceivably be misunderstood by some few consumers viewing it in an

unreasonable manner. Rather, the reasonable consumer standard requires a

probability that a significant portion of the general consuming public or of

targeted consumers, acting reasonably in the circumstances, could be misled.”

McGinity,

(citations and quotation marks omitted).

To establish deception under the reasonable consumer standard at the

10 summary judgment stage, plaintiffs must present admissible evidence

establishing how the challenged statement – “All Natural” – tends to mislead

reasonable consumers acting reasonably. See, e.g., Johnson & Johnson * Merck

Consumer Pharms. Co. v. Smithkline Beecham Corp.,

(2d

Cir. 1992) (discussing deceptive advertising in the context of the Lanham Act);

Bruton v. Gerber Prod. Co.,

(9th Cir. 2017) (mem.) (The

evidence of record, including plaintiff’s testimony and warning letters from the

FDA, was insufficient “to create a genuine dispute of material fact for trial as to

consumer deception” under the reasonable consumer test.).

II. The District Court did not abuse its discretion in excluding the expert opinions of Dr. Dennis and Dr. Toutov.

A. Applicable Law

“We review a district court’s decision to admit or exclude expert testimony

under a highly deferential abuse of discretion standard.” In re Mirena IUS

Levonorgestrel-Related Prods. Liab. Litig. (No. II),

(2d Cir.

2020) (per curiam) (citation and quotation marks omitted). “A decision to . . .

exclude expert . . . testimony is not an abuse of discretion unless it is manifestly

erroneous.” Amorgianos v. Nat’l R.R. Passenger Corp.,

(2d Cir.

2002) (citation and quotation marks omitted).

11 Rule 702 of the Federal Rules of Evidence governs the admissibility of

expert witness testimony. Under this rule, the District Court acts as a gatekeeper

and “is charged with ‘the task of ensuring that an expert’s testimony both rests

on a reliable foundation and is relevant to the task at hand.’”

(emphasis

added) (quoting Daubert v. Merrell Dow Pharms., Inc.,

(1993)).

“Throughout, a judge assessing a proffer of expert scientific testimony

under Rule 702 should also be mindful of other applicable rules.” Daubert,

. Specifically, “the trial court should look to the standards of Rule 401

in analyzing whether proffered expert testimony is relevant,” Amorgianos,

. In other words, the court should consider whether the evidence has

“any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence,” Daubert,

(citation and quotation marks

omitted); see also Fed. R. Evid. 401.

If the evidence is relevant, a district court “must next determine whether

the proffered testimony has a sufficiently reliable foundation to permit it to be

considered.” Amorgianos,

(citation and quotation marks

12 omitted). 5 The reviewing court must also consider Rule 403: “Expert evidence

can be both powerful and quite misleading because of the difficulty in evaluating

it. Because of this risk, the judge in weighing possible prejudice against probative

force under Rule 403 of the present rules exercises more control over experts than

over lay witnesses.” Daubert,

(citations and quotation marks

omitted).

Daubert instructs a district court to “focus on the principles and

methodology employed by the expert, without regard to the conclusions the

expert has reached or the district court’s belief as to the correctness of those

conclusions.” Amorgianos,

. Although surveys are generally

admissible in cases that “depend on establishing that certain associations have

been drawn in the public mind,” Schering Corp. v. Pfizer Inc.,

(2d Cir.), as amended on reh’g (2d Cir. 1999), “[t]he evidentiary value of a

survey’s results rests upon the underlying objectivity of the survey itself,”

Johnson & Johnson,

.

The objectivity of a survey “depends upon many factors,” including

“whether the questions are leading or suggestive.”

(citation and quotation

5 Of course any “[i]rrelevant evidence,” including irrelevant expert testimony, “is not admissible.” Fed. R. Evid. 402. 13 marks omitted). Errors in survey methodology generally “go only to the weight

of the evidence – subject, of course, to Rule 403’s more general prohibition

against evidence that is less probative than prejudicial or confusing.” Schering

Corp.,

; see also Fed. R. Evid. 403 (“The court may 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, [or]

misleading the jury . . . .”).

B. Dr. Dennis

At summary judgment, plaintiffs attempted to establish how a reasonable

consumer would understand the phrase “All Natural” through the expert

opinion of Dr. J. Michael Dennis. Dr. Dennis conducted a “consumer

perceptions” survey on plaintiffs’ behalf for the purpose of this litigation. J.

App’x at 1503. Based on his survey, Dr. Dennis concluded “that a reasonable

consumer in [California, New York, and Florida] perceives the Products with the

‘All Natural’ descriptor will not contain artificial and synthetic ingredients or

contain [certain] chemicals.” Id. at 1532.

The District Court excluded Dr. Dennis’s expert report, finding that the

consumer perceptions survey on which it relied “does not assist the trier of fact

14 because it is biased, leading, and to the extent it provides any insight, cannot

provide the objective standard necessary to answer the key question in this case.”

KIND II, 627 F. Supp. 3d at 292. Thus, because the survey “cannot assist the trier

of fact,” the District Court held that “the survey and Dr. Dennis’s testimony

regarding the survey are inadmissible.” Id. Plaintiffs contend that the District

Court abused its discretion in excluding Dr. Dennis’s report because any

criticisms of Dr. Dennis’s methodology should affect only the weight of the

evidence and not its admissibility. We disagree.

Plaintiffs retained Dr. Dennis to design and conduct “a consumer survey

to measure the extent to which reasonable consumers’ perceptions of the

Products are consistent with the Plaintiffs’ theory of liability, that is, the

allegation that the Products’ labeling and marketing were deceptive with respect

to the use of the ‘All Natural’ claim.” J. App’x at 1503. Dr. Dennis surveyed

California, Florida, and New York consumers who had purchased KIND

products, or products from a KIND competitor, in the last twelve months. See id.

at 1505-07. After some initial screening questions, Dr. Dennis presented the

consumers with “a mock-up of the front of a brand-neutral product package and

instructed the [consumers] to ‘examine it like you were shopping’” and “to

15 assume that the nutrition snack bar is a ‘popular national brand.’” Id. at 1510.

The mock-up label displayed the words “All Natural,” and in several respects

resembled the packaging of a KIND bar. See id. at 1511.

After instructing consumers to “consider only the product packaging in

answering the survey questions,” the survey “administer[ed] six consumer

perception questions,” only two of which are relevant to this appeal. J. App’x at

1512. The first question asked: “Because of this descriptor [All Natural], what is

your expectation for this product?” Id. at 1512, 1515. The survey then directed

the consumer to select one of the following responses: (a) “Will NOT contain

artificial and synthetic ingredients;” (b) “Will contain artificial and synthetic

ingredients;” or (c) “Not sure/No expectation.” Id. at 1515. In response to this

question, “86.4% of consumers expected the Product with the ‘All Natural’ claim

‘will NOT contain artificial and synthetic ingredients.’” Id. at 1530. The survey

did not define the terms “artificial” or “synthetic.”

The District Court found that this first question was “insufficient to

determine in any meaningful sense how reasonable consumers understand the

‘All Natural’ claim, or to test plaintiffs’ theory.” KIND II, 627 F. Supp. 3d at 288.

In so finding, the District Court properly focused on Dr. Dennis’s survey

16 methodology, finding this first question “biased” and “lead[ing]” because it

“improperly directs survey participants to the ‘correct’ answer” and “is plainly

designed to validate plaintiffs’ theory” of liability. Id. at 287, 288.

There is nothing manifestly erroneous about that characterization,

particularly given Dr. Dennis’s concession both in his report and at his

deposition that he “worded [his] substantive response options on the basis of

[his] understanding of the Plaintiffs’ theory of liability.” J. App’x at 1515; see also

KIND II, 627 F. Supp. 3d at 288. Indeed, we have previously held that a plaintiff

could not rely on a survey based on a question that, like this one, “was an

obvious leading question in that it suggested its own answer.” Universal City

Studios, Inc. v. Nintendo Co.,

(2d Cir. 1984); 6 see also Johnson &

Johnson-Merck Consumer Pharms. Co. v. Rhone-Poulenc Rorer Pharms., Inc.,

(3d Cir. 1994) (“A survey is not credible if it relies on leading

questions which are inherently suggestive . . . .” (citation and quotation marks

omitted)); Scotts Co. v. United Indus. Corp.,

, 277 (4th Cir. 2002)

6 That Dr. Dennis chose “to display the ‘All Natural’ claim in isolation, rather than as part of the ‘All Natural/Non GMO’ statement, as it always appeared on KIND labels” also supports the District Court’s decision to exclude his report because that design choice further “undercuts the relevance of Dr. Dennis’s results.” KIND II, 627 F. Supp. 3d at 288. 17 (Focus group discussions lacked reliability where the “moderators of the groups

channeled the discussions and led the participants into giving responses

favorable to” the plaintiff.).

The second question in Dr. Dennis’s survey again asked: “Because of this

descriptor [All Natural], what is your expectation for this product?” J. App’x at

1516. But in response to that question, the survey directed the consumer to select

one of the following responses: (a) “Is NOT made using these chemicals:

Phosphoric Acid, Hexane, Potassium Hydroxide, Ascorbic Acid”; (b) “Is made

using these chemicals: Phosphoric Acid, Hexane, Potassium Hydroxide, Ascorbic

Acid”; or (c) “Not sure/No expectation.” J. App’x at 1516. In response to this

question, “76.2% of consumers expected the Product with the ‘All Natural’ claim

is ‘NOT made using these chemicals: Phosphoric Acid, Hexane, Potassium

Hydroxide, Ascorbic Acid.’” Id. at 1530-31. The survey did not describe or

otherwise define the listed “chemicals.”

The District Court concluded that the second question, like the first, was

inappropriately leading and manipulative. See KIND II, 627 F. Supp. 3d at 288-

89. Our review of the record reveals nothing manifestly erroneous about that

conclusion. Indeed, by asking participants whether they expected an “All

18 Natural” snack bar to contain certain listed “chemicals,” Dr. Dennis led survey

participants down the path of selecting the answer preferred by plaintiffs. See id.

at 289. Additionally, by listing the “chemicals” without defining them, Dr.

Dennis failed to differentiate, for example, between “ascorbic acid,” a form of

Vitamin C safe for human consumption, and “phosphoric acid,” which is “not

safe for ingestion.” Id. Dr. Dennis admitted that he did not define the listed

chemicals because he ”thought it would not serve the project well” to do so. Id.

Based on these findings, the District Court did not abuse its discretion in

concluding that the design of the second question was also a “clear attempt to

manipulate consumers into selecting the answer that plaintiffs preferred,” and

thus had “no probative value and could not assist a trier of fact.” Id.

Plaintiffs assert that the District Court should have admitted Dr. Dennis’s

report because “[c]hallenges to the design and implementation of consumer

perception surveys go to the weight of the evidence and do not affect

admissibility.” Appellant’s Br. at 42 (citing Schering Corp.,

). But,

as we have previously found, if “surveys were so flawed that they lacked

relevance, they would [be] inadmissible under Rules 401 and 402 of the Federal

Rules of Evidence.” McNeilab, Inc. v. Am. Home Prods. Corp.,

, 38

19 (2d Cir. 1988). And, as noted, the admissibility of survey evidence is subject to

“Rule 403’s more general prohibition against evidence that is less probative than

prejudicial or confusing.” Schering Corp.,

; see also Starter Corp.

v. Converse, Inc.,

(2d Cir. 1999) (holding “that the district court

did not abuse its discretion” in excluding a survey from evidence because “the

probative value of the survey [was] so slight that it was easily outweighed, under

a Rule 403 analysis, by the danger of confusion of the issues”).

The District Court did not expressly cite to Rule 401 or Rule 403. But its

analysis clearly rests on those rules. The District Court concluded: “As it cannot

assist the trier of fact, the survey and Dr. Dennis’s testimony regarding the

survey are inadmissible.” KIND II, 627 F. Supp. 3d at 292. The District Court

further found that Dr. Dennis’s choices “undercut[] the relevance of [his]

results.” Id. at 288. These are findings based on Rule 401. And the District Court’s

finding that Dr. Dennis’s report would leave the “factfinder to guess at the

answers to key questions in this case,” id. at 290, suggests consideration of Rule

403, which allows a court to “exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . confusing the issues, [or] misleading

the jury.” Fed. R. Evid. 403. Indeed, the District Court explicitly relied on Nimely

20 v. City of New York,

(2d Cir. 2005), which addressed the interplay

between Rules 702 and 403 of the Federal Rules of Evidence. See KIND II, 627 F.

Supp. 3d at 291-92. In Nimely, we acknowledged that “[i]n addition to the

requirements of Rule 702, expert testimony is subject to Rule 403, and ‘may be

excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.’”

(emphasis added) (quoting Fed. R. Evid. 403). We also “noted the uniquely

important role that Rule 403 has to play in a district court’s scrutiny of expert

testimony.”

Plaintiffs fail to acknowledge the significance of Rule 401 and

Rule 403 to the admissibility of the expert reports.

In sum, the District Court found that Dr. Dennis’s survey and testimony

were inadmissible because, “even ignoring” the survey’s methodological

failures, they “provide[d] no useful information about how a reasonable

consumer understands ‘All Natural.’” KIND II, 627 F. Supp. 3d at 289. This

rendered the survey and testimony based upon it not “relevant to the task at

hand,” Amorgianos,

(citation and quotation marks omitted), and

thus properly excluded from evidence under Federal Rule of Evidence 402. See

Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”); see also Starter Corp.,

21

(A survey may be precluded where “it is irrelevant to the issues.”

(citation and quotation marks omitted)). We find no basis in the record to

conclude that the District Court abused its discretion.

C. Dr. Toutov

Plaintiffs designated Dr. Anton Toutov “as an expert chemist for the

purpose of determining the veracity of KIND’s ‘All Natural’ labeling

statements.” Appellants’ Br. at 51. The District Court excluded Dr. Toutov’s

report, finding that it had “no relevance to this case” and “cannot assist the trier

of fact.” KIND II, 627 F. Supp. 3d at 294-95. On appeal, plaintiffs contend that the

District Court abused its discretion in excluding Dr. Toutov’s opinion, arguing

that the analysis underlying his report was “meaningful and relevant to a

reasonable consumer’s understanding of” the phrase “All Natural.” Appellants’

Br. at 51. We again disagree.

Dr. Toutov conducted a review of the ingredient lists on KIND’s

challenged products and then compared those ingredients to a framework he

developed. This framework examined each ingredient’s origin, the extent to

which the ingredient had been processed from its natural form, and the final

form of the ingredient. After conducting an analysis based on this framework,

22 Dr. Toutov opined on whether a specific ingredient could be classified as

“natural” under his framework. However, in doing so, Dr. Toutov did not apply

or reference Dr. Dennis’s definition of “All Natural.” He also did not apply any

of the definitions alleged in the operative complaint.

Furthermore, Dr. Toutov did not perform any analysis (chemical or

otherwise) of the ingredients actually contained in the KIND products. Nor, for

the most part, did he consider how KIND actually manufactured those

ingredients. Instead, Dr. Toutov generally considered how the challenged

ingredients were “typically” sourced and concluded that many of the challenged

ingredients are not “natural” as he framed the term. But, without some evidence

to the contrary, there is no reason to assume that Dr. Toutov’s personal

understanding of the term “natural” is relevant to how a reasonable consumer

would understand that same term.

Plaintiffs contend that the District Court erred in finding that “Dr. Toutov

did not ‘focus on’ the actual ingredients used in KIND’s products” because “[f]or

every single one of the ingredients challenged in his report, which apply to all

Products at issue in this litigation, Dr. Toutov . . . cited to specific evidence –

most often from internal KIND documents – demonstrating that his analysis

23 applied to the specific ingredients KIND used in the Products during the class

period.” Reply. Br. at 18. This is an overreaching and incorrect characterization of

Dr. Toutov’s report which, as correctly found by the District Court, heavily relies

on generalities not tied to the challenged ingredients actually contained in the

relevant KIND products.

The District Court did not abuse its discretion in finding that Dr. Toutov’s

report did not assist the trier of fact because his report does not opine on whether

those ingredients meet the definition of the term “All Natural” as understood by

a reasonable consumer. Dr. Toutov did not evaluate whether the KIND products

at issue were “All Natural” as a reasonable consumer would understand that

term, or even as the named plaintiffs claimed to understand it, or as it is defined

in any dictionary. 7

As Dr. Toutov testified, he “was not engaged to opine on consumer

perception,” and consumer perceptions had no “role . . . in the framework that

[he] created” to arrive at his conclusions. J. App’x at 1937. Thus, Dr. Toutov’s

7 While Dr. Toutov’s report explains from a purportedly scientific perspective what it means for a product to be “artificial” or “synthetic,” the record does not reflect a reasonable consumer’s understanding of these terms. Thus, the report adds no useful information that would help the trier of fact determine the answer to the relevant legal question: whether consumers were actually deceived.

24 report is neither meaningful nor relevant to a reasonable consumer’s

understanding of the phrase “All Natural.” Accordingly, the District Court did

not abuse its discretion in precluding Dr. Toutov’s expert report; his report does

not “make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without” it.

Amorgianos,

(citation and quotation marks omitted).

III. The District Court did not err in granting summary judgment for KIND.

Without Dr. Dennis’s report, the District Court concluded that plaintiffs

had “not introduced evidence that could allow a factfinder to determine a

reasonable consumer’s understanding of ‘All Natural,’ and therefore, their claims

cannot survive defendant’s motion for summary judgment.” KIND II, 627 F.

Supp. 3d at 283; see also id. at 292.

On appeal, plaintiffs contend that even without Dr. Dennis’s report, they

have presented sufficient evidence for a trier of fact to conclude that KIND’s

products are not “All Natural” because those products contain artificial and

synthetic ingredients.

“We review the district court’s rulings on summary judgment de novo,

resolving all ambiguities and drawing all permissible inferences in favor of the

25 nonmoving party.” Tiffany & Co. v. Costco Wholesale Corp.,

, 83 (2d

Cir. 2020). “Summary judgment is appropriate only if there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of

law.” Bey v. City of New York,

, 164 (2d Cir. 2021) (citation and

quotation marks omitted).

“The party seeking summary judgment bears the burden of establishing

that no genuine issue of material fact exists,” but “when the burden of proof at

trial would fall on the nonmoving party, it ordinarily is sufficient for the movant

to point to” an absence of evidence “on an essential element of the nonmovant’s

claim.” Souza v. Exotic Island Enters., Inc.,

(2d Cir. 2023) (citation

and quotation marks omitted). Once a movant has made that showing, “the non-

movant must set forth specific facts showing that there is a genuine issue for

trial.”

(citation and quotation marks omitted). “Conclusory allegations,

conjecture, and speculation are insufficient to create a genuine issue of fact.”

Shannon v. N.Y.C. Transit Auth.,

, 99 (2d Cir. 2003) (citation and

quotation marks omitted).

Plaintiffs present four primary theories as to why the evidence of a

reasonable consumer’s perception is sufficient to defeat summary judgment,

26 including the “pled definitions and deposition testimony, along with the

scientific literature and existing consumer surveys in the record.” Appellants’ Br.

at 19. But that purported evidence fails to present any cohesive definition of what

a reasonable consumer would expect from products labeled “All Natural.” 8

First, the definitions of “All Natural” pled in the ACC fail to create a

triable issue of fact because (1) those definitions fail to present a coherent

definition of “All Natural” that could be applied by a trier of fact, and (2) the

ACC is not verified and its allegations therefore are not evidence for summary

judgment purposes. Cf. Brandon v. Kinter,

, 26 n.5 (2d Cir. 2019) (The

“allegations in the complaint can be considered as evidence for summary

judgment purposes” only where the complaint has been “sworn under penalty of

perjury.”). Although the definitions pled in the ACC may have sufficed at the

motion to dismiss or class certification stage of litigation, plaintiffs cannot meet

their burden on summary judgment “through reliance on unsupported

assertions.” Goenaga v. March of Dimes Birth Defects Found.,

(2d

Cir. 1995).

8 This evidence also does not establish how a reasonable consumer understands the terms “artificial” or “synthetic.” Nor does it establish that a reasonable consumer would interpret “All Natural” as meaning “containing no artificial or synthetic ingredients.” 27 Second, plaintiffs’ deposition testimony also fails to create a triable issue of

fact. Plaintiffs’ testimony, even taken collectively, does not establish an objective

definition of how a reasonable consumer acting reasonably understands the term

“All Natural.” To the contrary, it establishes how divergent consumers’

expectations can be. For example, one plaintiff testified that she expected “All

Natural” to mean not synthetic. Another plaintiff testified that she expected “All

Natural” to mean that the product was made from whole grains, nuts, and fruit.

Yet another explained her belief that “All Natural” meant that the ingredients

were literally plucked from the ground. Notably, several plaintiffs testified that

consumers could have different understandings about the implications of the

term “All Natural,” that these understandings could change over time, and that

not everyone would agree with their particular understanding of that term.

Plaintiffs fail to explain how a trier of fact could apply these shifting definitions

to reach a conclusion as to whether the use of the term “All Natural” on KIND

product labels was deceptive.

Third, plaintiffs submit that KIND’s internal documents “evidence its

understanding of what ‘All Natural’ means to a reasonable consumer.”

Appellant’s Br. at 31. But the documents on which plaintiffs rely show only that

28 KIND had its own conception of the term “All Natural.” The documents do not

reveal a reasonable consumer’s understanding of that term. Nor do plaintiffs

offer any theory on which these materials would be admissible in evidence. 9

Fourth, plaintiffs contend that “an ordinary dictionary definition of the

word ‘natural’” would suffice to meet their burden of establishing what a

reasonable consumer acting reasonably expects from a product labeled “All

Natural.” Appellants’ Br. at 2-3. Plaintiffs argue that we should rely on the

dictionary definition of “natural” used at class certification: “existing in or

caused by nature; not made or caused by humankind.”

(citation and

quotation marks omitted); see also

. But this definition is not useful

when applied to a mass-produced snack bar wrapped in plastic. Such a bar is

clearly made by humans. It gets plaintiffs no closer to demonstrating what a

reasonable consumer would expect of a KIND product bearing the “All Natural”

label.

Finally, plaintiffs contend that “[a] precise definition of ‘All Natural’ is not

9 The FDA materials relied upon by plaintiffs are similarly unhelpful. Plaintiffs cite to a 2015 FDA solicitation of comments regarding the term “natural” in food labeling. This cites a citizen petition, which in turn cites a Consumer Reports National Research Center survey on perceptions of “natural.” The survey and citizen petition further confirm that consumers have varied understandings of what “natural” means. 29 required for the claim to be false and misleading.’” Appellants’ Br. at 24. But

plaintiffs’ arguments on this point confuse the standards applicable to summary

judgment with those applicable at earlier stages of litigation. For example,

plaintiffs rely heavily on Mantikas v. Kellogg Co.,

(2d Cir. 2018),

which addressed whether the plaintiffs had alleged a plausible claim of

consumer deception sufficient to defeat a motion to dismiss.

.

Mantikas did not address the evidence required to defeat a motion for summary

judgment.

Similarly, plaintiffs rely on the District Court’s findings at the motion to

dismiss and class certification stages, where the allegations of the pleadings are

accepted as true and the primary question is whether plaintiffs have stated a

cognizable claim. But at summary judgment, where KIND has pointed to a lack

of evidence on an essential element of plaintiffs’ claims, it is plaintiffs’ burden to

present admissible evidence that a reasonable consumer acting reasonably would

be deceived by the “All Natural” claim on KIND products. See Souza,

. Without evidence of a reasonable consumer’s understanding of “All

Natural,” plaintiffs cannot succeed on their claims at summary judgment.

Indeed, a jury could hardly render a unanimous verdict when multiple, shifting,

30 definitions of the key term have been offered by the party with the burden of

proof.

In sum, while the “evidence” to which plaintiffs point may have sufficed

to overcome a motion to dismiss, or to support a motion for class certification, it

fails to raise a triable issue of fact at summary judgment. Because plaintiffs failed

to produce admissible evidence demonstrating what a reasonable consumer,

acting reasonably, would expect of KIND products bearing the “All Natural”

label, we hold that the District Court did not err in granting summary judgment

in favor of KIND.

IV. The issue of class decertification is moot.

Last, plaintiffs assert that the District Court abused its discretion in

decertifying the classes. Because we affirm the District Court’s grant of summary

judgment, the issue of decertification is “no longer live” and plaintiffs “lack a

legally cognizable interest in the outcome” of KIND’s motion to decertify the

classes. Already, LLC v. Nike, Inc.,

(2013) (citation and quotation

marks omitted). Accordingly, because the issue of class decertification is now

moot, we need not reach it.

31 CONCLUSION

For the reasons stated above, we find that the District Court did not abuse

its discretion in precluding the expert reports of Dr. Dennis and Dr. Toutov. We

further hold that the District Court did not err in granting KIND’s motion for

summary judgment because plaintiffs failed to produce admissible evidence

demonstrating what a reasonable consumer, acting reasonably, would expect of

KIND products labeled “All Natural.” Because we affirm the District Court’s

grant of summary judgment, plaintiffs’ arguments regarding class decertification

are moot.

Accordingly, we AFFIRM the judgment of the District Court.

32