1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Nicole KRAUSE-PETTAI, et al., Case No.: 20-cv-1672-AGS-BLM individually and on behalf of 4 ORDER GRANTING DEFENDANT’S all others similarly situated, MOTIONS FOR SUMMARY 5 Plaintiffs, JUDGMENT (ECF 70) AND TO 6 v. EXCLUDE EXPERT TESTIMONY (ECF 71 & 72), AND DENYING 7 UNILEVER UNITED STATES, INC., PLAINTIFF’S CLASS- et al., 8 CERTIFICATION MOTION (ECF 57) Defendants. 9
10 This case is about useless empty space, known as “nonfunctional slack fill,” inside 11 underarm-deodorant sticks. Defendant argues, among other defenses, that federal law 12 preempts slack-fill suits regarding drugs and cosmetics, a matter of first impression in this 13 Circuit. 14 BACKGROUND 15 In this putative class action, four plaintiffs claim they were duped into buying 16 defendant Unilever’s deodorant and antiperspirant. They say the oversized containers 17 create the illusion of holding more than competitors’ same-weight items. (ECF 52, at 3, 18 10–12.) According to plaintiffs, much of Unilever’s products’ volume is nonfunctional 19 slack fill. (Id. at 11–12.) They seek class certification, alleging various unfair and deceptive 20 trade practices under state law. Unilever opposes certification and insists the case should 21 be thrown out on summary-judgment and federal-preemption grounds. 22 DISCUSSION 23 A. Preemption 24 As a threshold matter, Unilever contends that federal regulations preempt plaintiffs’ 25 state-law claims. “[S]tate laws that conflict with federal law are without effect.” Altria 26 Group, Inc. v. Good, 555 U.S. 70, 76 (2008) (cleaned up); see also U.S. Const., art. VI, 27 cl. 2 (Supremacy Clause). “Federal preemption can be either express or implied.” Chicanos 28 1 Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 863 (9th Cir. 2009). Unilever relies only 2 on the express variety. 3 1. Express Preemption: The FDCA 4 To assure national uniformity, the Food, Drug, and Cosmetic Act expressly preempts 5 any state “requirement” for labeling or packaging cosmetics and nonprescription drugs— 6 including deodorants and antiperspirants—that is “different from or in addition to, or that 7 is otherwise not identical with,” federal rules. See 21 U.S.C. § 379r(a)(2) (nonprescription 8 drugs); id. § 379s(a) (cosmetics). The question is: Do the challenged state laws mandate 9 “requirements” that are (a) “identical with” federal standards or (b) “different from or in 10 addition to” them? 11 As relevant here, both the FDCA and California’s Sherman Food, Drug, and 12 Cosmetic Law set the same baseline requirements for drugs and cosmetics. They deem 13 such an item “misbranded” if “its labeling is false or misleading in any particular” or if its 14 “container” is “filled as to be misleading.” See 21 U.S.C. § 352(a)(1) (drugs; label); id. 15 § 352(i)(1) (drugs; container); id. § 362(a) (cosmetics; label); id. § 362(d) (cosmetics; 16 container); Cal. Health & Safety Code § 111330 (drugs; label); id. § 111390 (drugs; 17 container); id. § 111730 (cosmetics; label); id. § 111750 (cosmetics; container). Because 18 the Sherman Law’s standard “is identical to” the FDCA’s, it is not preempted. See Ebner 19 v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016). 20 But California did not stop at that baseline. It added to it. The FDCA and Sherman 21 Law both generally forbid “misleading” labeling and packaging, but neither addresses 22 slack-fill limits on drugs or cosmetics. Yet the California Fair Packaging and Labeling Act 23 (CFPLA) goes one step farther, condemning any opaque container as “misleading” if “it 24 contains nonfunctional slack fill,” with some exceptions. See Cal. Bus. & Prof. Code 25 § 12606(b). The Ninth Circuit concluded that this exact regulatory scenario mandated 26 preemption in Del Real, LLC v. Harris, 636 F. App’x 956 (9th Cir. 2016). In the context 27 of “meat and poultry products,” it held that the CFPLA’s “nonfunctional slack fill 28 1 provisions” were “in addition to, or different than” the relevant federal statutes’ “general 2 prohibitions against containers ‘filled as to be misleading.’” Id. at 957. 3 Plaintiffs protest that slack-fill regulations may only be preempted by “an overt 4 decision,” not federal “silence” on the issue. (See ECF 77, at 15.) But Congress was not 5 silent here; it spoke clearly about what is preempted. In the FDCA, Congress meant to 6 preclude all state requirements that are “different from or in addition to,” or “otherwise not 7 identical with,” the federal regulatory regime for labeling and packaging drugs and 8 cosmetics. In National Meat Association v. Harris, 565 U.S. 452 (2012), the Supreme 9 Court held that a nearly identical preemption provision “sweeps widely” and blocks states 10 from imposing on the federal plan “any additional or different—even if non-conflicting— 11 requirements.” Id. at 459. Even assuming California’s slack-fill regulation doesn’t conflict 12 with the federal design, it “plainly adds to the regulatory burden faced by a manufacturer” 13 subject to the FDCA’s packaging and labeling constraints. See Del Real, LLC v. Harris, 14 966 F. Supp. 2d 1047, 1064 (E.D. Cal. 2013), aff’d, 636 F. App’x 956 (9th Cir. 2016). 15 Thus, the CPFLA’s slack-fill ban for drugs and cosmetics is preempted. 16 2. Preemptive Scope 17 The foregoing robs plaintiffs of a powerful arrow in their quiver: a per se rule that 18 nonfunctional slack fill is misleading. But it does not necessarily foreclose their claims 19 entirely, as Unilever urges. The FDCA “does not preempt state laws that allow consumers 20 to sue . . . manufacturers that label or package their products in violation of federal 21 standards.” See Ebner, 838 F.3d at 964 (discussing cosmetics). Plaintiffs argue that their 22 state-law claims enforce federal prohibitions on “misleading” packaging. But Unilever 23 insists that, according to the relevant federal agency, slack fill in drugs and cosmetics is 24 never misleading. 25 For support, Unilever points to two cases that held the Food and Drug 26 Administration’s failure to set explicit restrictions on slack fill in drugs and cosmetics is 27 “tantamount to a conscious decision by the agency to permit” it. See O’Connor v. Henkel 28 Corp., No. 14-CV-5547 (ARR)(MDG), 2015 WL 5922183, at *6 (E.D.N.Y. Sept. 22, 1 2015); Bimont v. Unilever U.S., Inc., No. 14-CV-7749 (JPO), 2015 WL 5256988, at *6 2 (S.D.N.Y. Sept. 9, 2015). Both opinions quote Astiana v. Hain Celestial Group, Inc., 3 783 F.3d 753 (9th Cir. 2015). But Astiana made the opposite point. The defense there 4 supposed that “the FDA’s failure to issue specific regulations” about the word “‘natural’ 5 on cosmetics labels” was “tantamount to a conscious decision by the agency to permit any 6 use of this term a manufacturer sees fit.” Id. at 758. The Ninth Circuit disagreed. It noted 7 that this “argument proves too much,” as it would allow a manufacturer to “make any 8 claim—wild, untruthful, or otherwise—about a product whose contents are not addressed 9 by a specific regulation.” Id. Even without precise federal guidelines, Astiana allowed 10 plaintiffs’ state-law suit alleging deceptive use of the word “natural” to proceed, as it 11 promoted the general federal prohibition on “false or misleading” labeling. Id. at 758–59. 12 Like Astiana, the FDA’s failure “to issue specific regulations” about nonfunctional 13 slack fill does not mean manufacturers may make cosmetics with “any” amount of it, even 14 refrigerator-sized deodorant sticks that are 99% empty. Federal statutes, after all, proscribe 15 labeling and container-filling that is “misleading.” See 21 U.S.C. § 352(a)(1), (i)(1); id. 16 § 362(a), (d). So, litigants may bring state claims to vindicate that federal standard on the 17 ground that the degree of slack fill for a drug or cosmetic product renders it misleading. 18 They simply may not rely on California’s slack-fill ban to do so. 19 At any rate, this Court is reluctant to divine broader federal preemption from an 20 agency’s choice to forego more detailed regulations. “[M]ere deliberate agency inaction— 21 an agency decision not to regulate an issue—will not alone preempt state law.” Fellner v. 22 Tri-Union Seafoods, L.L.C., 539 F.3d 237, 247 (3d Cir. 2008) (analyzing Sprietsma v. 23 Mercury Marine, 537 U.S. 51, 67 (2002), and Puerto Rico Dep’t of Consumer Affs. v. Isla 24 Petroleum Corp., 485 U.S. 495 (1988)). 25 Regardless, the FDA’s refusal to set slack-fill limits in these markets is not akin to 26 blessing limitless slack fill. Congress authorized the FDA to “promulgate regulations” to 27 “prevent the nonfunctional-slack-fill of packages containing,” among other things, food, 28 drugs, and cosmetics. 15 U.S.C. § 1454(a) & (c)(4). Yet the FDA chose to set such 1 standards only for food. See 21 C.F.R. § 100.100 (defining misbranded food containers). 2 Does this mean it concluded that slack fill was always acceptable in drug and cosmetic 3 products? No. The FDA later explained that “determining maximum allowable levels for 4 functional slack-fill” in these items “would require considerable agency resources” and 5 “would, in many cases . . . serve no useful purpose.” Misleading Containers; Nonfunctional 6 Slack-Fill, 58 Fed. Reg. 2957, 2960 (Jan. 6, 1993) (emphasis added). In short, the FDA 7 tacitly acknowledged at least some slack-fill problem in the drug and cosmetic 8 marketplace, but it chose to focus its limited resources on food instead. That is a reasonable 9 cost/benefit call, but no basis to preempt all slack-fill lawsuits.1 10 B. Expert Testimony 11 Before turning to summary judgment, the Court must see if plaintiffs’ expert 12 testimony is admissible in that analysis. Unilever moves to exclude the opinions of both 13 experts—Dr. Sher Paul Singh and Dr. Forrest Morgeson III. 14 The “proponent of the expert” shoulders “the burden of proving admissibility.” 15 United States v. Williams, 850 F. App’x 566, 567 (9th Cir. 2021). A qualified expert’s 16 opinion is admissible when: 17 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 18
19 (b) the testimony is based on sufficient facts or data;
20 (c) the testimony is the product of reliable principles and methods; and 21 (d) the expert has reliably applied the principles and methods to the facts of 22 the case. 23 24
25 1 To the extent this Circuit still applies the “presumption against preemption” to 26 express-preemption provisions, that principle offers additional support for confining this 27 Court’s preemption ruling to its current bounds. See California Rest. Ass’n v. City of Berkeley, 65 F.4th 1045, 1056–62 (9th Cir. 2023) (O’Scannlain, J., concurring) (discussing 28 1 Fed. R. Evid. 702. 2 The trial court’s task is to “ensure that all admitted expert testimony is both relevant 3 and reliable.” Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1232 (9th Cir. 2017) 4 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Rule 702’s first 5 condition—helpfulness to the factfinder—“goes primarily to relevance.” Daubert, 6 509 U.S. at 591. As for reliability, scientific evidence passes muster if the expert’s 7 “principles and methodology” are “grounded in the methods of science.” Wendell, 858 F.3d 8 at 1232. The court’s inquiry is “flexible,” with a “liberal thrust favoring admission.” Id. 9 (cleaned up). Among other things, courts may look at whether the expert’s “theory or 10 technique”: (1) “is generally accepted in the scientific community,” (2) has “been subjected 11 to peer review and publication, (3) “can be and has been tested,” and (4) produces an 12 acceptable “known or potential rate of error.” Id. Finally, courts consider whether experts’ 13 testimony concerns “matters growing naturally out of their own independent research,” or 14 if they “developed their opinions expressly for” trial. Id. 15 1. Dr. Singh 16 Dr. Singh’s expert opinion is that “the accused products have approximately 17 20%-25% less product than the available capacity,” which is “purely nonfunctional.” 18 (ECF 57-3, at 104.) He also concludes that plaintiffs’ allegations against Unilever “are 19 correct and the accused products are deceptive.” (Id.) With decades of teaching, working, 20 and researching in the packaging industry, Dr. Singh is eminently qualified to offer expert 21 opinions in that field. (See ECF 57-3, at 80–84.) Because Unilever does not dispute his 22 qualifications—nor that his knowledge is addressed to relevant topics that may be helpful 23 to a factfinder—the Court will confine its analysis to the remaining contested Rule 702 24 prerequisites. 25 a. Facts or Data 26 There are several grave problems with the facts and data upon which Dr. Singh 27 relies. First, his opinions about the “accused products” seem to be based on testing only 28 two of the three designs. Plaintiffs concede that “only measurements from the Syzygy and 1 Morpheus designs ended up in the tables” of Dr. Singh’s report, but claim that the 2 photographs show he “evaluated all three stick designs.” (See ECF 79, at 5; ECF 57-3, 3 at 103 fig.17; id. at 164.) They say data for the third design—Meteor—was omitted due to 4 a “minor copying error,” but have yet to come forward with those numbers. (ECF 79, at 5.) 5 Second, even among the designs he examined, Dr. Singh “looked at only two 6 different samples” for each kind of deodorant or antiperspirant stick. (ECF 69-10, at 10.) 7 Plaintiffs argue that no more was needed because “each product leaves the manufacturing 8 line with precise weighted measurements.” (ECF 79, at 6.) Even so, a sample size of two 9 is a slim statistical reed to support such broad conclusions. Cf. Pascal v. Nissan N. Am., 10 Inc., No. 8:20-cv-00492-JLS-JDE, 2022 WL 19076763, at *10 (C.D. Cal. Dec. 21, 2022) 11 (finding “testing on only four vehicles” was “problematic,” but excluding expert on other 12 grounds). Courts nonetheless often admit expert evidence despite “concerns that a survey’s 13 sample size is too small or unrepresentative,” as this may merely “go to the weight to be 14 accorded the survey results.” Araujo v. Coachella Valley Water Dist., No. 20-CV-01800- 15 AJB-RBM, 2022 WL 4181004, at *9 (S.D. Cal. Sept. 12, 2022) (cleaned up). So this 16 concern is not necessarily fatal. But the problems don’t end there. 17 Perhaps the most worrisome blind spot is that the precise number and types of 18 products Dr. Singh tested and examined remains a mystery. He variously testified that he 19 sampled “ten sticks total” (ECF 69-11, at 8); “conducted the tests at two different times,” 20 with “ten sticks” one time and “eight sticks” another (id. at 15); or “analyzed” about “20, 21 25” sticks, although that data is “not captured anywhere” in his report (id. at 14). The tables 22 in which he summarized his “weight” and “volume” computations don’t shed much light 23 on the underlying data. (See ECF 57-3, at 103 fig.17; id. at 164.) The five brand names he 24 lists could indicate many products of varying formulation, size, and scent. (Id. at 103 25 fig.17.) It is also unclear why there are nine total data rows in his two tables, whether his 26 findings are based only on the five sticks identified in the first table, or if those two tables 27 share overlapping data. (Compare ECF 57-3, at 103 fig.17 with id. at 164.) 28 1 His testimony about the number of product containers “examined” is similarly 2 scattershot, ranging from 30 to 60. (See ECF 57-3, at 95 (“over approximately 30 stick 3 deodorant containers”); ECF 69-11, at 12 (“probably . . . 50 to 60 sticks”); id. at 13 4 (“approximately 50 sticks” or “somewhere around 35, 37. I don’t know”).) Granted, he 5 allowed that his estimate of “50” included “sticks that are not at issue in this case.” 6 (ECF 69-11, at 13.) 7 The fundamental flaw is that there is no written record of Dr. Singh’s entire 8 procedure. Rather than writing down each result, he meant for his snapshots of unidentified 9 products next to tape measures to constitute “visible data.” (ECF 69-11, at 16; see also id. 10 at 16 (“The data is the photograph.”); id. at 5 (“I don’t have the detail.”).) But during his 11 deposition he could not recreate the complete dataset, even with photographic aids. 12 In sum, plaintiffs have not carried their burden of showing that Dr. Singh’s opinion 13 is based upon sufficient facts or data. 14 b. Methodology and Application 15 Dr. Singh’s methodology suffers from the same inscrutability and poor 16 documentation as his data. Because he did not transcribe his results—and the photographic 17 record is ambiguous—there is no way to retrace his steps exactly. His methods also fail all 18 the standard reliability considerations. For example, plaintiffs have not shown that they are 19 “generally accepted in the scientific community,” have “been subjected to peer review and 20 publication,” “can be and [have] been tested,” or yield an acceptable error rate. See 21 Wendell, 858 F.3d at 1232. And Dr. Singh’s opinions were expressly developed for this 22 litigation, at plaintiffs’ request. See id.; (ECF 57-3, at 80). 23 The details of Dr. Singh’s testing system are somewhat ill-defined. His report 24 describes how he measured the relative heights of each container and its enclosed product 25 to come to a “percentage of slack fill.” (ECF 57-3, at 103.) That document also explains 26 that he used an “electronic balance” to weigh the deodorant he “extracted . . . from the 27 container.” (ECF 57-3, at 99.) But only his deposition sheds light on how he extricated the 28 product from the casings, with somewhat unpredictable results. Before extraction, he 1 placed the deodorant “in the freezer for about ten minutes,” followed by a “refrigerator” 2 set to about “35 to 45 degree[s]” for an unspecified time. (ECF 69-10, at 5–6.) Some 3 samples “did not come out right”; some “broke.” (ECF 69-11, at 13.) Even worse, at times 4 the product got “left in the bottom,” and he “could not extract it.” (Id. at 15.) It is unknown 5 how many deodorant sticks succumbed to these ministrations. And Dr. Singh never 6 clarified how he overcame these practical obstacles nor how he ensured a complete 7 specimen for measurement. 8 Unilever particularly cries foul over the volume test. Before calculating a deodorant 9 container’s space, Unilever says, Dr. Singh inexplicably removed the twist-bottom 10 dispensing “platform and internal components,” thereby inflating his “maximum capacity 11 measurements . . . as they fail to account for the volume or space occupied by the 12 components removed.” (ECF 71-1, at 12.) Plaintiffs do not respond to this accusation. (See 13 generally ECF 79.) Rather, they point out that both sides’ “experts found roughly the same 14 amount of total empty space in their analyses.” (Id. at 6.) But this case is not about “empty 15 space”; it’s about nonfunctional slack fill. And the calculations of nonfunctional space are 16 wildly at odds: Unilever’s expert concludes it’s 0%; Dr. Singh says 100%. (See id. at 5; 17 ECF 57-3, at 104 (Singh: “purely nonfunctional”).) 18 In any event, it is unclear which brands and stick designs Dr. Singh subjected to this 19 debatable measurement program. But it is plain that no one else could use “the same data 20 and methods” to “replicate the results.” See City of Pomona v. SQM N. Am. Corp., 750 F.3d 21 1036, 1047 (9th Cir. 2014) (cleaned up). Plaintiffs have therefore not carried their burden 22 of showing that Dr. Singh’s testimony is based on reliable methods or that those methods 23 were reliably applied. Dr. Singh’s testimony is excluded. 24 2. Dr. Morgeson 25 Plaintiffs offer Dr. Morgeson as an expert on consumer-purchasing behavior to 26 opine that: (1) consumers “spend limited time examining package labeling information” 27 and generally “assume that larger packages contain a larger quantity of a product”; 28 (2) “[n]et weight labeling information on product packages is rarely examined (or 1 understood) by consumers”; and (3) due to these consumer tendencies and “general 2 unfamiliarity with the concept of slack fill, the relevant Unilever product package features 3 suggest” that Unilever consumers got “less product than they might have anticipated.” 4 (ECF 57-3, at 59.) Dr. Morgeson is a university professor who teaches “marketing research 5 and marketing management courses.” (ECF 57-3, at 57, 65.) He has researched and testified 6 about “customer satisfaction and customer experience measurement and management,” 7 including “how they relate to slack-fill.” (Id. at 58; ECF 80, at 4.) Unilever does not 8 challenge his expert qualifications, but it contests every other step of the Rule 702 analysis. 9 a. Helpfulness to Factfinder 10 Although Unilever maintains that Dr. Morgeson’s “opinions are not helpful to the 11 trier of fact” (ECF 72-1, at 13), that is not the precise question the Court must answer. The 12 issue is whether the expert’s “knowledge will help the trier of fact to understand the 13 evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Dr. Morgeson appears to 14 have extensively studied consumer behavior, but his expertise in this field is only relevant 15 if it sheds light on consumer expectations regarding deodorants and antiperspirants. That 16 is, at best, unclear. Even assuming his knowledge is helpful, plaintiffs must prove that his 17 wisdom can be channeled into reliable opinions about Unilever’s consumers. 18 b. Facts or Data 19 Unilever criticizes Dr. Morgeson for failing to gather any relevant “facts or data,” 20 and doing “nothing to study the products at issue.” (ECF 72-1, at 8.) Indeed, his discussion 21 of the items here betrays a certain unfamiliarity. Plaintiffs’ central allegation is that 22 Unilever’s sticks came in “larger packaging” than competitor products, although “the net 23 weight [is] the same.” (ECF 52, at 11.) Yet Dr. Morgeson rebuts these foundational points, 24 claiming that Unilever’s products “are roughly the same size (or larger) than those used by 25 its competitors,” but “contain less actual product.” (ECF 57-3, at 63 (emphasis added).) 26 He has also apparently never examined the deodorant and antiperspirant market. 27 According to his report, Dr. Morgeson based his opinions on his “review of relevant 28 scientific and academic literature,” his “academic research over the past 15 years,” two 1 decades of “experience working with large annual samples of cross-industry consumer 2 survey data and research,” and materials provided by plaintiffs’ counsel. (ECF 57-3, 3 at 59.) Yet he fails to specify how much of this background touched the pertinent market. 4 He references three academic or industry articles and 13 papers describing original studies, 5 but none concerning the market at hand. 6 In fact, only two papers extend slightly beyond food and beverages. A 1990 study 7 of grocery-shopping habits considered four products: coffee, margarine, cereal, and 8 toothpaste. See Peter R. Dickson & Alan G. Sawyer, The Price Knowledge and Search of 9 Supermarket Shoppers, 54 J. Mktg., July 1990, at 42, 46. The results lumped all four items 10 together, so it’s impossible to tell if consumers behaved differently with toothpaste than 11 with, say, cereal. Id. at 49–51. Similarly, a 2016 Australian grocery study of purchasing 12 speed focused on twelve items, including milk, bananas, yogurt, chocolate bars, pasta 13 sauce, rice, toothpaste, shampoo, and four pet foods. See Zachary Anesbury et al., How Do 14 Shoppers Behave Online? An Observational Study of Online Grocery Shopping, 15 J. 15 Consumer Behav. 261, 265 (2016). Interestingly, the two non-food items—shampoo and 16 toothpaste—had the longest average selection times, with shoppers spending twice as long 17 choosing shampoo as bananas. Id. If anything, these results suggest that food-buying habits 18 don’t apply equally to other commodities. 19 Unilever insists that Dr. Morgeson’s opinion is not based on any “empirical study 20 on the relevant [consumer] universe and products.” (ECF 72-1, at 9.) Plaintiffs do not say 21 otherwise. The adequacy of this dataset is concerning. 22 c. Methodology and Application 23 With no data points in the relevant market, plaintiffs must shoulder the burden of 24 demonstrating why food consumers (or 1990-era toothpaste shoppers) are apt to behave 25 like deodorant buyers. Or they must at least explain why food-shopping habits can be 26 generalized across all consumables markets. “[W]hile studies involving similar but not 27 identical situations may be helpful, an expert must set forth the steps used to reach the 28 conclusion that the research is applicable.” Domingo ex rel. Domingo v. T.K., 289 F.3d 1 600, 606 (9th Cir. 2002). Without that minimum foundation, Dr. Morgeson could just as 2 easily extrapolate opinions from car-buying research papers. 3 Plaintiffs respond that “there is no reason to believe that” the studies Dr. Morgeson 4 relied upon “do not still apply to all consumers,” including Unilever’s customers. (See 5 ECF 80, at 6.) But there is also “no reason to believe” that they apply here. The Court need 6 not take Dr. Morgeson’s word for it. Nor must it “admit opinion evidence that is connected 7 to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 8 146 (1997). 9 The Court concludes that “there is simply too great an analytical gap between the 10 data and the opinion proffered.” See id.; see also Highfields Cap. I, LP v. SeaWorld Entm’t, 11 Inc., No. 18-CV-1276-MMA (AGS), 2022 WL 1037210, at *16, 18 (S.D. Cal. Apr. 6, 12 2022) (excluding expert who “merely reviewed statements, documents, testimony, and 13 outside articles,” but applied “no scientific or methodological analysis of any data” to form 14 his opinions). Dr. Morgeson’s testimony, like Dr. Singh’s, is excluded. 15 C. Summary Judgment 16 That leaves Unilever’s summary-judgment motion. “The court shall grant summary 17 judgment if the movant shows that there is no genuine dispute as to any material fact and 18 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute over 19 a material fact is “genuine” when “the evidence is such that a reasonable jury could return 20 a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 21 (1986). The Court must view the facts and draw all reasonable inferences “in the light most 22 favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 23 372, 378 (2007) (cleaned up). 24 Plaintiffs bring three claims based on California consumer-protection statutes: the 25 Consumers Legal Remedies Act (claim 1), False Advertising Law (claim 2), and Unfair 26 Competition Law (claim 3). They also allege common-law claims for negligent 27 misrepresentation (claim 4) and fraud and deceit (claim 5). The statutory claims may 28 generally be considered “together,” with one caveat. See In re ConAgra Foods, Inc., 1 90 F. Supp. 3d 919, 982 (C.D. Cal. 2015). Under the Unfair Competition Law, plaintiffs 2 allege that Unilever engaged in “unfair, unlawful, [and] fraudulent business acts and 3 practices.” (ECF 52, at 23.) Each of these UCL prongs—“unfair,” “unlawful,” and 4 “fraudulent”—is “a separate and distinct theory of liability.” Kearns v. Ford Motor Co., 5 567 F.3d 1120, 1127 (9th Cir. 2009). But when the factual bases for the unfair and 6 fraudulent versions “overlap entirely,” as here, their fates merge. See Sue Shin v. Campbell 7 Soup Co., No. CV 17-1082-DMG (JCx), 2017 WL 3534991, at *7–8 (C.D. Cal. Aug. 9, 8 2017). Because the UCL’s unlawful prong raises distinct legal issues, however, the Court 9 will address it separately from the other statutory claims. 10 1. Claims Subject to the Reasonable-Consumer Test 11 The first four causes of action—excepting the UCL’s unlawful prong—rise and fall 12 together, as they “are governed by the ‘reasonable consumer’ test.” See Williams v. Gerber 13 Products Co., 552 F.3d 934, 938 (9th Cir. 2008) (CLRA, FAL, and UCL’s fraudulent 14 prong); see also Girard v. Toyota Motor Sales, U.S.A., Inc., 316 F. App’x 561, 562 (9th Cir. 15 2008) (negligent misrepresentation). Under this test, plaintiffs must prove that “members 16 of the public are likely to be deceived.” Id. Put another way, they must show “that it is 17 probable that a significant portion of the general consuming public or of targeted 18 consumers, acting reasonably in the circumstances, could be misled.” Lavie v. Procter & 19 Gamble Co., 129 Cal. Rptr. 2d 486, 495 (Ct. App. 2003). 20 “Surveys and expert testimony” are “not required” to satisfy the reasonable- 21 consumer test, but a “few isolated examples of actual deception are insufficient.” Clemens 22 v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008) (cleaned up). In fact, as 23 many as seven “Plaintiffs’ deposition testimonies” have failed to meet this standard, when 24 unaccompanied by other pertinent evidence of deception. See In re 5-Hour Energy Mktg. 25 & Sales Pracs. Litig., No. ML132438PSGPLAX, 2018 WL 11354864, at *7 (C.D. Cal. 26 Jan. 24, 2018). By contrast, the testimony of even a single individual may suffice if paired 27 with patently false marketing or relevant extrinsic evidence. See, e.g., Hawkins v. Kroger 28 Co., 512 F. Supp. 3d 1079, 1088–89 (S.D. Cal. 2021) (holding that plaintiff’s testimony, 1 “the ‘0g Trans Fat’ label,” and defendant’s “admission” that the product “contained some 2 trans fat” were sufficient without other “extrinsic evidence”); Mullins v. Premier Nutrition 3 Corp., 178 F. Supp. 3d 867, 891 (N.D. Cal. 2016) (concluding that “three types of 4 evidence”—plaintiff’s testimony, “marketing research surveys,” and the name “Joint 5 Juice”—showed that reasonable consumers would likely “buy the product to relieve joint 6 pain”). 7 With all their expert testimony now excluded, the four plaintiffs must depend on 8 their own anecdotal accounts of deception. All four testified that Unilever’s packaging 9 tricked “them into thinking they were getting more product than they were.” (ECF 52, 10 at 11; see, e.g., ECF 57-4, at 2 (Nicole Krause-Pettai); ECF 77-7, at 7 (Christy Stevens 11 Botto); ECF 77-8, at 10 (Kevin Bolden); ECF 57-6, at 3 (Errol Carreon).) 12 Yet plaintiffs have little else to work with. This case does not have patently false 13 marketing like Hawkins, which involved a product with “some trans fat” bearing a 14 “‘0g Trans Fat’ label.” See Hawkins, 512 F. Supp. 3d at 1088–89. To the contrary, each 15 plaintiff here is aware that every Unilever product is labeled with its actual net weight, 16 which can be used for value comparisons. (ECF 69-5, at 13–15 (Krause-Pettai); ECF 77-7, 17 at 11 (Botto); ECF 69-7, at 37–38 (Bolden); ECF 69-8, at 13 (Carreon).) Nor do plaintiffs 18 have “marketing research surveys” or other evidence to corroborate their anecdotal claims. 19 See Mullins, 178 F. Supp. 3d at 891. 20 With so little positive proof, plaintiffs cannot make their case. And that’s before 21 taking stock of the countervailing evidence that undercuts their theory of deception. First, 22 plaintiffs offer no comparative evidence to corroborate their claims that Unilever is an 23 outlier and that its competitors suffer lost sales due to their more aboveboard packaging. 24 See Bruton v. Gerber Products Co., 703 F. App’x 468, 471 (9th Cir. 2017) (finding that 25 because competitors’ labels “make many of the same illegal claims . . . [a] reasonable jury 26 comparing the labels side by side could not rationally conclude [defendant’s] labels were 27 likely to deceive”). By contrast, the defense introduced compelling comparative evidence 28 that Unilever’s “Dove and Degree sticks are generally in line with competing products.” 1 (ECF 69-3, at 20.) For women’s antiperspirants, for instance, the Degree model is nearly 2 the same overall height as the competing Secret brand, but it has less opaque height than 3 the competitor. (See id.) This is because the Degree stick’s bottom is translucent (revealing 4 some slack fill), whereas the competitor’s is not. (See id.) The same is true for women’s 5 deodorants. (See id. at 21.) And Unilever’s Dove and Degree brands stand out even less in 6 the men’s categories. Indeed, they appear about the same height as—or shorter than—their 7 competitors. (See id. at 22–23.) 8 Second, plaintiffs have not persuasively refuted Unilever’s evidence that “from 2016 9 to 2022, there were zero complaints from California consumers concerning the empty space 10 in the products at issue.” (ECF 69-4, at 37.) After all, a “lack of complaints and returns” is 11 “highly relevant” to rebutting a misrepresentation claim. See Consumer Advocs. v. 12 Echostar Satellite Corp., 8 Cal. Rptr. 3d 22, 30 (Ct. App. 2003). Plaintiffs rejoin that this 13 is a “hidden practice” that is “essentially impossible to discover[],” let alone complain 14 about. (ECF 77, at 5, 16.) Yet all four plaintiffs became suspicious because Unilever’s 15 sticks seemed top-heavy. (See ECF 69-5, at 10 (Krause-Pettai); ECF 69-6, at 28 (Botto); 16 ECF 69-7, at 40 (Bolden); ECF 69-8, at 27 (Carreon)). Surely this observation wasn’t 17 unique to them. After millions of sales, a reasonable factfinder might expect more than 18 “zero” complaints from a consuming public that truly felt deceived. 19 Finally, plaintiffs have little answer to Unilever’s expert testimony that any 20 “slack-fill in the sticks at issue is functional.” (See ECF 69-2, at 46; see also id. at 42 21 (“purely functional”).) That expert cogently explained this functionality. (See id. at 43–45; 22 ECF 70-1, at 23–26.) Plaintiffs reply with some purported comparative evidence: 23 Unilever’s Axe brand products are filled on the same assembly lines, yet allegedly “contain 24 a higher proportion of product to empty space” than the accused products. (ECF 79, at 5; 25 see also ECF 77, at 18.) But Dr. Singh’s testimony—including his questionable Axe 26 measurements—is now excluded and cannot support this argument. Even if allowed, 27 though, this evidence cuts both ways. If excessive slack fill offers some market advantage, 28 1 || as plaintiffs claim, they must explain why Unilever would deliberately handicap one of its 2 product lines by giving it less slack fill. 3 Even viewing the evidence in the light most favorable to plaintiffs, they cannot show 4 || that the general consuming public and targeted consumers would be misled. So there is no 5 ||genuine dispute as to the material facts regarding negligent misrepresentation and the 6 ||claims under the CLRA, FAL, and the UCL’s fraudulent and unfair prongs. The Court 7 || grants summary judgment for Unilever accordingly. 8 2. Other Claims 9 The above reasonable-consumer analysis is the legal domino that largely topples the 10 |}remaining causes of action. The fraud-and-deceit claim’s elements are even more 11 demanding than the reasonable-consumer test. Among other things, plaintiffs must prove 12 || that the labeling or packaging here was “actually false.” See Nacarino v. KSF Acquisition 13 || Corp., 642 F. Supp. 3d 1074, 1087 (N.D. Cal. 2022). As they have not shown it was even 14 || misleading, it isn’t false. The UCL unlawful-prong cause of action suffers a similar fate, 15 || as it requires the “violation of another law.” See Berryman vy. Merit Prop. Memt., Inc., 16 Cal. Rptr. 3d 177, 186 (Ct. App. 2007). Because the Court has rejected all plaintiffs’ 17 ||theories of predicate illegality—including those based on consumer expectations—the 18 |}unlawful-prong claim cannot stand. 19 Thus, the Court grants summary judgment for Unilever on all claims. 20 CONCLUSION 21 Unilever’s motions for summary judgment and to exclude expert testimony are 22 || GRANTED. Plaintiffs’ class-certification motion is DENIED AS MOOT. The Clerk is 23 || directed to close this case. 24 || Dated: September 30, 2023 25 A i f 6 Hon. Andfew G. Schopler United States District Judge 27 28 16