1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 LISA M. MOORE individually and on Case No: 4:20-cv-09077-JSW 6 behalf of all others similarly situated, ORDER GRANTING MOTION TO 7 CERTIFY CLASS AND GRANTING Plaintiff, 8 v. AND DENYING MOTIONS TO EXCLUDE
9 GLAXOSMITHKLINE CONSUMER Re: Dkt. Nos. 63, 81, 82, 94 10 HEALTHCARE HOLDINGS (US) LLC and
PFIZER INC., 11 Defendants. 12 13 Now before the Court for consideration are Plaintiff’s motion for class certification; 14 Plaintiff’s motions to exclude the expert testimony of Dr. Steven Dentali; and Defendants’ 15 motions to exclude the expert testimony of Dr. Michael Dennis, Mr. Colin B. Weir, and Dr. Anton 16 Toutov. The Court has considered the parties’ papers, relevant legal authority, and the record in 17 this case, and the Court finds the motions suitable for disposition without oral argument. See N.D. 18 Civ. L.R. 7-1(b). For the reasons set forth below, the Court HEREBY GRANTS IN PART AND 19 DENIES IN PART Plaintiff’s class certification motion insofar as the motion to certify under 20 Rule 23(b)(2) is GRANTED, while the motion to certify under Rule 23(b)(3) is DENIED. The 21 Court also GRANTS Plaintiff’s motion to exclude the expert testimony of Dr. Steven Dentali and 22 Defendants’ motion to exclude the expert testimony of Dr. Anton Toutov, and DENIES 23 Defendants’ motions to exclude the expert testimony of Dr. Michael Dennis and Mr. Colin B. 24 Weir. 25 BACKGROUND 26 Plaintiff Lisa Moore (“Plaintiff”) brings this putative consumer class action on behalf of 27 herself and all residents of California who purchased certain ChapStick products within four years 1 Healthcare Holdings (US) LLC falsely label certain of their ChapStick products with the claims 2 “100% Natural,” “Natural,” “Naturally Sourced Ingredients,” and “100% Naturally Sourced 3 Ingredients” (collectively, the “Challenged Statements”). (Dkt. No. 63-1 at 1–2 (“MPA”).) 4 Plaintiff alleges these representations are false because the challenged ChapStick products contain 5 non-natural, synthetic, artificial, and/or highly processed ingredients. (Id.) 6 Plaintiff challenges six ChapStick products: (1) ChapStick 100% Natural Lip Butter, which 7 comes in four scents; (2) ChapStick Total Hydration 100% Natural Lip Balm, which comes in four 8 scents; (3) ChapStick Total Hydration Essential Oils Lip Balm, which comes in five scented- 9 variations; (4) ChapStick Total Hydration Moisture + Tint Lip Balm, which comes in eight shades; 10 (5) Total Hydration Moisture + Tint SPF 15 Lip Balm, which comes in three scents; and (6) 11 ChapStick Total Hydration Natural Lip Scrub, which comes in two scents (collectively, the 12 “Products”). (Dkt. No. 22 ¶ 2 (FAC).) Plaintiff alleges that the Products contain ingredients that 13 are non-natural, synthetic, artificial, and/or highly processed, and she identifies eight such 14 ingredients that are allegedly present in the Products: (1) caprylic/capric triglycerides, (2) 15 capryloyl glycerin/sebacic acid copolymer; (3) carmine, (4) hydrogenated soybean oil, (5) 16 octyldodecanol, (6) tocopherol acetate, (7) polyhydroxystearic acid, (8) jojoba esters. (MPA 8.) 17 Plaintiff, a resident of California, alleges that she routinely purchased two scent variations 18 of ChapStick Total Hydration 100% Natural Lip Balm and one scent variation of the ChapStick 19 Total Hydration Essential Oils Lip Balm at CVS and Walgreens stores in or around San Francisco. 20 (FAC ¶ 6.) Plaintiff alleges that she relied on the Challenged Statements on those labels and 21 would not have purchased the products if she knew that they contained non-natural ingredients. 22 (Id.) Plaintiff further alleges that she continues to desire to purchase the Products if they did not 23 contain any non-natural ingredients but is unable to rely on the truth of the Challenged Statements 24 and does not know the meaning of the Products’ ingredients. (Id. ¶¶ 6–7.) Based on these 25 allegations, Plaintiff brings causes of action for violations of: (1) California’s Unfair Competition 26 Law, Business and Professions Code sections 17200, et seq. (“UCL”); (2) California’s False 27 Advertising Law, Business and Professions Code sections 17500, et seq. (“FAL”); and (3) 1 (“CLRA”). Plaintiff also brings causes of action for breach of express warranty and unjust 2 enrichment. 3 I. MOTIONS TO EXCLUDE 4 A. Applicable Legal Standard 5 Federal Rule of Evidence 702 permits opinion testimony by an expert as long as the expert 6 is qualified and his or her opinion is relevant and reliable. An expert witness may be qualified by 7 “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. “[I]n evaluating 8 challenged expert testimony in support of class certification, a district court should evaluate 9 admissibility under the standard set forth” in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 10 589-90, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Grodzitsky v. Am. Honda Motor Co., 957 F.3d 11 979, 985 (9th Cir. 2020) (citation omitted). A court may exclude expert testimony submitted in 12 support of class certification if it does not comply with the standards set forth in Daubert. See id. 13 “Under Daubert, ‘the district court judge must ensure that all admitted expert testimony is 14 both relevant and reliable.’” Id. (quoting Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1232 15 (9th Cir. 2017)). “Scientific evidence is reliable if the principles and methodology used by an 16 expert are grounded in the methods of science.” Wendell, 858 F.3d at 1232 (citation and internal 17 quotation marks omitted). “The focus of the district court’s analysis must be solely on principles 18 and methodology, not on the conclusions that they generate,” and “the court's task is to analyze 19 not what the experts say, but what basis they have for saying it.” Id. (citations, alteration, and 20 internal quotation marks omitted). In conducting this analysis, the district court may consider 21 “whether the theory or technique employed by the expert is generally accepted in the scientific 22 community; whether it’s been subjected to peer review and publication; whether it can be and has 23 been tested; and whether the known or potential rate of error is acceptable.” Id. (citation omitted). 24 B. Defendants’ Motion to Exclude the Expert Report of Dr. Michael Dennis 25 Plaintiff offers the expert testimony of Dr. Michael Dennis, Ph.D., a survey researcher, for 26 a proposed consumer perception survey and proposed conjoint analysis. For the consumer 27 perception survey, Dr. Dennis proposes a method for conducting a market research study that can 1 members were misled as alleged by the Plaintiff. (Dkt. No. 63-3 ¶ 21 (“Dennis Report”).) For the 2 conjoint analysis, Dr. Dennis provides a proposed method for conducting a market research study 3 that can measure the market price premium attributable to the Challenged Statements. Id. 4 Defendants argue that Dr. Dennis’s survey deviates from accepted principles of survey 5 design for a variety of reasons, including its lack of sufficient controls and reliance on improper 6 closed-ended and leading questions. Defendants argue that Dr. Dennis’s conjoint analysis suffers 7 from the decision to combine various product lines into just four surveys, including language that 8 is not challenged in the survey, and failing to account for supply-side factors. Plaintiff disputes 9 these points and argues that any concerns regarding the survey go to weight, not admissibility. 10 The Court agrees with Plaintiff that these objections as to the survey’s design, 11 methodologies, and reliability go to the weight to be given to Dr. Dennis’s opinions, and not their 12 admissibility. “[A]s long as [the survey] is conducted according to accepted principles and is 13 relevant,” the “technical inadequacies in a survey, including the format of the questions or the 14 manner in which it was taken, bear on the weight of the evidence, not its admissibility.” Montera 15 v. Premier Nutrition Corp., No. 16-CV-06980-RS, 2022 WL 1225031, at *4 (N.D. Cal. Apr. 26, 16 2022) (citing Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 17 1036 (9th Cir. 2010). Accordingly, the Court concludes that Defendants have not shown that Dr. 18 Dennis’s opinions are subject to exclusion at this stage of the litigation, and the Court 19 DENIES Defendants’ motion to exclude the testimony of Dr. Dennis. 20 C. Defendants’ Motion to Exclude the Expert Report of Mr. Colin B. Weir 21 Plaintiff offers the testimony of Mr. Colin B. Weir, an economic consultant, to ascertain 22 whether Plaintiff can determine damages on a class-wide basis using common evidence. Mr. Weir 23 provides a framework for the calculation of damages suffered by the proposed class of consumers 24 as a result of the allegedly false and misleading Challenged Statements. (Dkt. No. 63-4 ¶ 6 (“Weir 25 Report)). 26 Defendants argue that Mr. Weir’s testimony should be excluded because it is needlessly 27 cumulative and unhelpful. The Court disagrees. Mr. Weir provides new information about 1 product attributes to differentiate products to increase sales and charge a price premium. (Id. ¶¶ 2 11–20.) Mr. Weir then applies those principles to Defendants’ documentary and testimonial 3 evidence to support the existence of a price premium associated with the Challenged Statements. 4 (Id.) Mr. Weir also explains the propriety of Dr. Dennis’s price attributes to ensure that they 5 adequately account for supply-side factors from an economics standpoint. (Id. ¶¶ 45–61). 6 Contrary to Defendants’ contentions, this analysis goes far beyond the “grade-school arithmetic” 7 of simply multiplying the price-premium percentage from Dr. Dennis’s conjoint study with the 8 dollar amounts reflected in Defendants’ sales data spreadsheet. 9 The Court also rejects Defendants’ contention that Mr. Weir lacks expertise to opine on 10 market research, as numerous courts have found Mr. Weir qualified to provide similar opinions. 11 See id., Ex. A. 12 Accordingly, the Court DENIES the motion to exclude the testimony of Mr. Weir. 13 D. Defendants’ Motion to Exclude the Expert Report of Dr. Anton Toutov; Plaintiff’s Motion to Exclude the Expert Report of Dr. Steven Denali 14 Plaintiff provides the testimony of Dr. Anton Toutov, Ph.D., a chemist, to determine 15 whether the Products contain artificial ingredients. (Dkt. No. 63-5.) Defendants provide the 16 testimony of Dr. Steven Dentali, Ph.D., another chemist, to rebut Dr. Toutov’s testimony. (Dkt. 17 No. 80-19.) 18 Here, the only relevant understanding of the Challenged Statements is that of the 19 reasonable consumer. See Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 537 (N.D. Cal. 20 2012). Neither party demonstrates how the perception of chemists would have any bearing on 21 how reasonable consumers understand the Challenged Statements. In re KIND LLC “Healthy & 22 All Natural” Litig., 627 F. Supp. 3d 269, 293 (S.D.N.Y. 2022) (excluding testimony of Dr. Toutov 23 because it did not speak to the understanding of the reasonable consumer). Accordingly, the Court 24 GRANTS Plaintiff’s motion to exclude the testimony of Dr. Dentali and GRANTS Defendants’ 25 motion to exclude the testimony of Dr. Toutov. 26 II. MOTION FOR CLASS CERTIFICATION 27 1 Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), a 2 court may certify a class only if (i) the class is so numerous that joinder of all members is 3 impracticable, (ii) there are questions of law or fact common to the class, (iii) the claims or 4 defenses of the representative parties are typical of the claims or defenses of the class, and (iv) the 5 representative parties will fairly and adequately protect the interests of the class. 6 Under Rule 23(b), a class action may be maintained if Rule 23(a) is satisfied and if: (i) 7 separate actions by or against individual class members would risk: (a) inconsistent results with 8 respect to individual class members that would impose inconsistent requirements on the defendant, 9 or (b) results for individual class members dispositive of other members’ interests or which would 10 substantially impair or impede class members’ ability to protect their interests; (ii) the party 11 opposing the class has acted on grounds that apply generally to the class, so that declaratory relief 12 is appropriate; or (iii) the court finds that the questions of law or fact common to class members 13 predominate over any questions affecting only individual members and that a class action is 14 superior to other available methods for fairly and efficiently adjudicating the controversy. 15 A party seeking to certify a class must “affirmatively demonstrate” compliance with Rule 16 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A court must conduct a “rigorous 17 analysis” of the Rule 23 factors, which necessarily entails “some overlap with the merits of the 18 plaintiff’s underlying claim.” Id. at 351. However, a court may consider merits questions only to 19 the extent such questions are relevant to determining whether the moving party has met its burden 20 to satisfy the Rule 23 prerequisites. Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 21 466 (2013). The decision to grant or deny class certification is within the trial court’s discretion. 22 Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). As the moving party, 23 plaintiffs bear the burden to show they meet each of Rule 23(a)’s requirements. See Lozano v. 24 AT&T Wireless Servs., Inc., 504 F.3d 718, 724 (9th Cir. 2007). 25 B. The Requirements Under Rule 23(a) Are Satisfied 26 Defendants do not dispute that the Rule 23 numerosity, adequacy, and superiority 27 requirements have been met. Accordingly, the Court analyzes only the commonality and 1 1. Commonality 2 Commonality requires that there be “questions of fact and law common to the class.” Fed. 3 R. Civ. P. 23(a)(2). The Ninth Circuit has construed Rule 23(a)’s commonality factor 4 permissively. See, e.g., Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998), overruled 5 on other grounds by Wal-Mart, 564 U.S. 338. To satisfy this factor, Plaintiffs must do more than 6 show they and the putative class members “suffered a violation of the same provision of law.” 7 Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541 (internal quotations and citations omitted). Rather, the 8 “claims must depend on a common contention . . . of such a nature that it is capable of classwide 9 resolution,” i.e., “determination of its truth or falsity will resolve an issue that is central to the 10 validity of each one of the claims in one stroke.” Id. “What matters to class certification” is 11 whether a class-wide proceeding has “the capacity . . . to generate common answers apt to drive 12 the resolution of the litigation.” Id. (emphasis, internal quotation and citation omitted). A “single 13 common question” can satisfy this factor. Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 14 (9th Cir. 2013) (quoting Wal-Mart, 564 U.S. at 359). 15 Plaintiff identifies several common questions. These include, for example, whether 16 Defendants’ conduct constitutes an unfair method of competition, and whether Defendants used 17 deceptive representations in connection with the sale of the Products, in violation of Civil Code 18 section 1750, et seq. Plaintiff argues that commonality is satisfied because an answer to these 19 questions could resolve “in one stroke” whether the Products were falsely and unlawfully labeled 20 under California’s consumer protection laws. Plaintiff further argues that these questions “are 21 capable of class-wide resolution” through common evidence. The Court analyzes commonality 22 across the various causes of action. 23 a) CLRA and Breach of Warranty 24 The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or 25 practices.” Cal. Civ. Code § 1770. The requirements for stating a claim under the CLRA differ 26 from those for a claim under the UCL and FAL because a CLRA plaintiff can obtain damages, as 27 well as equitable relief and other remedies. Cal. Civ. Code § 1780(a). A CLRA plaintiff must 1 harm.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1022 (9th Cir. 2011) (citing In re Vioxx 2 Class Cases, 180 Cal. App. 4th 116, 129 (2009)). In other words, “[a] CLRA claim warrants an 3 analysis different from a UCL [and FAL] claim because the CLRA requires each class member to 4 have an actual injury caused by the unlawful practice.” Id. (citation omitted). That said, 5 “[c]ausation, on a classwide basis, may be established by materiality. If the trial court finds that 6 material misrepresentations have been made to the entire class, an inference of reliance arises as to 7 the class.” Id. (quoting In re Vioxx Class Cases, 180 Cal. App. 4th at 129) (emphasis added). “A 8 misrepresentation is judged to be ‘material’ if a reasonable [person] would attach importance to its 9 existence or nonexistence in determining his choice of action in the transaction in 10 question.” Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 320 (2011) (citation omitted). “Whether 11 a misrepresentation is sufficiently material to allow for an inference of reliance is generally a 12 question of fact[.]” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1021 (9th Cir. 2020) (citation 13 omitted). “If the misrepresentation or omission is not material as to all class members, the issue of 14 reliance ‘would vary from consumer to consumer’ and the class should not be certified.” Stearns, 15 655 F.3d at 1022–23 (citing In re Vioxx Class Cases, 180 Cal. App. 4th at 129). 16 As for breach of warranty, courts have found that such claims are appropriate for class 17 treatment where the question of whether defendant misrepresented its product and whether such 18 misrepresentation breached warranties are issues common to members of the putative class. In re 19 ConAgra Foods, Inc., 90 F. Supp. 3d 919, 985 (C.D. Cal. 2015). Class treatment of breach of 20 express warranty claims is only appropriate if plaintiffs can demonstrate that the alleged 21 misrepresentation would have been material to a reasonable consumer. Id. 22 Plaintiff argues that materiality is capable of being proved through common evidence, 23 including the Defendants’ internal documents and deposition testimony and a consumer perception 24 survey from Dr. Dennis.1 25 (1) Internal Documents and Deposition Testimony 26 The Court first turns to the documents and testimony Plaintiff provides. See Kumar v. 27 1 Salov N. Am. Corp. 2016 WL 3844334, at *8 (N.D. Cal. July 15, 2016) (“Materiality can be 2 shown by a third party’s, or defendant’s own, market research showing the importance of such 3 representations to purchasers.”); Mullins v. Premier Nutrition Corp., No. 13-cv-01271 RS, 2016 4 WL 1535057, at *3 (N.D. Cal. Apr. 15, 2016) (defendant’s own “[m]arketing research suggests 5 the overwhelming majority of Joint Juice users purchased the product to obtain these benefits, and 6 thus there is a reason to believe the represented health benefits were material.”). 7 Plaintiff points to documents in which Defendants acknowledge that there is a “strong 8 consumer desire for ‘natural’ products and ingredients” in the lip balm market generally. (E.g., 9 Dkt. No 64-49 at 16.) Plaintiff also points to Rule 30(b)(6) testimony that establishes the same. 10 (See, e.g., Dkt. No. 64-7 at 81:19-82:5 (Deposition of Amy Reibrich) (“‘Natural’ was a trend in 11 the marketplace of competitive products . . . [for] beauty products in general. . . . And [they] knew 12 there was a consumer who was looking for that.”’).) Plaintiff further alleges that Defendants’ 13 internal marketing research reflected the importance of natural products. According to these 14 documents, Defendants concluded that the “100% Naturals” ChapStick products “[t]ap[] into 15 consumer desire for [a] natural option,” finding “79% of lip balm users 18-34 [are] interested in 16 [the] natural option.” (Dkt. No. 64-8 at 34; see also Weir Report ¶¶ 11-20 (detailing Defendants’ 17 own marketing research that demonstrated the price premia commanded by the Products).) 18 Defendants found that “[t]op purchase drivers for natural lip balm are . . . ingredients.” (Id. at 3.) 19 Specifically, 79% of consumers identified ingredients as an “important” product-attribute. (Id. at 20 6.) In addition, 59% of consumers also identified how ingredients are sourced, and 57% identified 21 that where ingredients are sourced is “important.” Id. Defendants’ other surveys rendered similar 22 results. (See Dkt. No. 64-9 at 33 (in 2015 survey regarding lip products, Defendants found 23 “‘Natural’ is important in a product that promises more than color”); Dkt. 64-50 at 53 (in 2019 24 survey, Defendants found 65% of consumers place “importance” on “[a]ll-natural ingredients.”).) 25 Defendants challenge the persuasive weight of only some of this documentary and 26 testimonial evidence. In all, their arguments do not undermine Plaintiff’s showing of common 27 evidence of materiality. The documents and testimony presented allows the court to determine 1 consumer. See Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 326 F.R.D. 592, 613 (N.D. 2 Cal. 2018) (holding that, among other evidence, survey finding that 78.5% of respondents believed 3 “Made From Real Ginger” meant “made from ginger root” helped demonstrate materiality.) 4 (2) Consumer Perception Survey 5 Plaintiff also provides a consumer perception survey proposed by Dr. Dennis. Defendants 6 criticize the methodology of this survey for several reasons. The Court analyzes each critique in 7 turn, finding that the survey as proposed does not separately establish common proof of 8 materiality. 9 (a) Failure to Isolate the Challenged Statements 10 Defendants argue that the survey fails to sufficiently isolate the Challenged Statements by 11 including certain language surrounding certain Challenged Statements. Dr. Dennis testifies that he 12 sufficiently isolated the Challenged Statements by “asking respondents to consider” only the 13 descriptor at issue and “control[ing] for those respondents that are not basing their answers on the 14 stimulus” through control questions. (Deposition of Dr. Dennis at 134:24-135:6.) As noted, the 15 Challenged Statements include “100% Natural,” “Natural,” “Naturally Sourced Ingredients,” and 16 “100% Naturally Sourced Ingredients.” Here, Dr. Dennis included label claims with extraneous 17 words such as “Lip Butter” and “Natural with Argan Oil.” (See Dkt. No 92-1 ¶ 19 (Reply 18 Declaration and Expert Report of Dr. Dennis) (citing questions including the following labels: 19 “100% Natural Lip Butter,” “100% Natural with Argan Oil,” “Natural Age Defying,” “100% 20 Naturally Sourced Oils and Butters,” “Natural Sunscreen,” “Natural Lip Scrub,” and “100% 21 Natural Lip Care.”).) 22 Defendants point to the reasoning in Vizcarra v. Unilever United States, Inc., 339 F.R.D. 23 530, 554 (N.D. Cal. 2021) as persuasive on this issue. In that case, the court found that Dr. 24 Dennis’s survey showed images of the “entire package of ice cream at issue . . . includ[ing] 25 statements and elements not challenged,” which undermined the ability of the survey to speak to 26 the challenged representations specifically. Id. at 541. Defendants argue that as in Vizcarra, the 27 presence of extraneous words in these labels makes it impossible to know what language a survey 1 Plaintiff’s responses to this flaw in the survey are unavailing. Plaintiff notes that unlike in 2 Vizcarra, here Dr. Dennis “adamantly testified” that his proposed survey isolates the effect of the 3 Challenged Statements. (Dkt. No 93-7 at 6 n.4 (MTE Opp.)) (citing Deposition of Dr. Dennis at 4 134:24-135:6). Yet the survey on its face does not isolate the challenged language. Plaintiff also 5 contends that Dr. Dennis can strike these extraneous words without changing the methodology of 6 the survey. But Plaintiff fails to provide authority for the proposition that such proposed changes 7 to the survey are viable to consider at this juncture. As such, the Court finds that the consumer 8 perception survey cannot demonstrate materiality through common evidence. 9 (b) Testing Multiple Claims in a Single Question 10 Defendants argue that the survey does not account for differences between each of the four 11 Challenged Statements, and that by testing multiple claims in a single question, Dr. Dennis cannot 12 accurately measure a consumer’s perception as to each of the four Challenged Statements. 13 Plaintiff argues that Defendants’ internal documents and deposition testimony admit and 14 demonstrate that the Challenged Statements functionally mean the same thing. (See Deposition of 15 Amy Reibrich at 32:24-33:10, 39:20-41:1, 46:19-25 (claims mean the same thing from a 16 marketing perspective); Dkt. No. 71-6 at 52:15-17 (Deposition of Angela Eppler) (natural means 17 no artificial ingredients from a formulation perspective); Dkt. 64-55, at 2 (purportedly 18 substantiating the Challenged Statements to mean “no artificial ingredients”); Dkt. 92-1 ¶ 20 19 (Dennis Rebut Rept.) (“it serves no purpose to measure . . . each statement, separately, when they 20 each individually and in combination are alleged to have the same effects”).) Here, Defendants’ 21 criticisms “boil down to a disagreement as to Dr. Dennis’s survey design choices, which go to the 22 weight to be accorded to Dr. Dennis’s survey results and opinions when determining the merits of 23 [Plaintiff’s] claims at trial. That merits determination is not one for this Court at the class 24 certification stage.” Vizcarra v. Unilever United States, Inc., 2023 WL 2364736, at *19 (N.D. 25 Cal. Feb. 24, 2023); see also In re Packaged Seafood Prod. Antitrust Litig., 332 F.R.D. 308, 328 26 (S.D. Cal. 2019) aff’d sub nom. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 27 31 F.4th 651, 664 (9th Cir.), cert. denied sub nom. StarKist Co. v. Olean Wholesale Grocery 1 court to determine which multiple regression model is most accurate, which is ultimately a merits 2 decision.”). To the extent that some questions test multiple representations, the Court does not 3 find this specific issue with the survey fatal at this stage. Defendants can cross examine Dr. 4 Dennis on this approach at trial. 5 (c) Failure to Include All Product Variations 6 Dr. Dennis proposes testing labels for six of the twenty-six products. Defendants 7 challenge that this methodology ignores consumer perceptions as to the dozens of other labels 8 used during the relevant period. Yet Defendants fail to adequately explain how these variations to 9 the label necessarily affect the validity of these results. Dr. Dennis used his expertise to combine 10 these labels in a way he believed would be representative. (Dennis Rebut Rept. ¶¶ 21–22 (“I could 11 have selected the packaging for any one of the . . . variations . . . and it would have been 12 representative of the rest of the Products within that Product Line”).) To the extent that this 13 methodology weakens the survey, Defendants can raise the issue at trial. 14 (d) Survey Structure Leading to Bias 15 Defendants argue that the survey is biased because it contains leading questions and does 16 not employ open-ended questions. The Court notes that Dr. Dennis’s direct question methodology 17 is well accepted by courts around the country. (See Dennis Report ¶ 44 n.9.) Moreover, the key 18 questions at issue do not appear to be leading or to present a risk of bias. For example, Dr. Dennis 19 asks respondents “whether or not they understand the specified statements on the product 20 packaging to be communicating certain meanings.” (Id. ¶ 45.) This is far from leading. The 21 Court does not find Dr. Dennis’s methodology to be unduly leading or to present bias. 22 (e) Failure to Complete the Survey 23 Defendants argue that Plaintiff’s failure to conduct the consumer perception survey negates 24 its usefulness at this stage. The Court disagrees. Courts in this District routinely grant class 25 certification in cases where plaintiffs have relied on proposed survey evidence. See, e.g., Brown v. 26 Hain Celestial Grp., Inc., 2014 WL 6483216, at *19 (N.D. Cal. Nov. 18, 2014); Milan v. Clif Bar 27 & Co., 340 F.R.D. 591, 596 (N.D. Cal. 2021); see also Vizcarra, 2023 WL 2364736, at *19 1 b) UCL and FAL 2 The UCL prohibits any “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. 3 & Prof. Code § 17200. The FAL prohibits any “unfair, deceptive, untrue, or misleading 4 advertising.” Cal. Bus. & Prof. Code § 17500. “[T]o state a claim under either the UCL or the 5 false advertising law, based on false advertising or promotional practices, it is necessary only to 6 show that members of the public are likely to be deceived.” Stearns, 655 F.3d at 1020. This 7 standard is governed by whether a “reasonable consumer” is likely to be deceived. Freeman v. 8 Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995) (“[T]he false or misleading advertising and unfair 9 business practices claim must be evaluated from the vantage of a reasonable consumer.”) (citation 10 omitted). “‘Likely to deceive’ implies more than a mere possibility that the advertisement might 11 conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. 12 Rather, the phrase indicates that the ad is such that it is probable that a significant portion of the 13 general consuming public or of targeted consumers, acting reasonably in the circumstances, could 14 be misled.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508, 129 Cal.Rptr.2d 486 15 (2003). 16 Plaintiff points to the same evidence described above to demonstrate that whether the 17 Challenged Statements were likely to deceive a reasonable consumer can be resolved with 18 common proof. As noted, the documentary and testimonial evidence is sufficient to demonstrate 19 materiality. For the same reasons, this evidence is sufficient to demonstrate that a reasonable 20 consumer is likely to be deceived by the alleged misrepresentations for the purposes of 21 commonality. 22 c) Unjust Enrichment 23 Unjust enrichment claims “require common proof of the defendant’s conduct and raise the 24 same legal issues for all class members.” Astiana v. Kashi Co., 291 F.R.D. 493, 505 (S.D. Cal. 25 2013) (citing cases). The question of whether Defendants were unjustly enriched by the proposed 26 class members’ purchase of the Products given the allegedly false representations raises the same 27 legal issues as to all class members. Accordingly, commonality is also met for the unjust 1 Sept. 21, 2020). 2 1. Typicality 3 Typicality requires showing that “the claims or defenses of the representative parties are 4 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The typicality 5 requirement tests whether other members have an injury similar to that of the named plaintiffs and 6 whether other class members “have been injured by the same course of conduct.” Hanon v. 7 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). The purpose of this requirement is to 8 assure that the named plaintiffs’ interests align with the interests of the putative class 9 members. Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). Under 10 this “permissive” standard, representative claims are “typical” if they are “reasonably coextensive 11 with those of absent class members.” Sandoval v. M1 Auto Collisions Cntrs., 309 F.R.D. 549, 12 568–69 (N.D. Cal. 2015) (citation omitted). Typicality is “satisfied when each class member’s 13 claim arises from the same course of events, and each class member makes similar legal 14 arguments to prove the defendant’s liability.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 15 2001) (quoting Marisol v. Giuliani, 126 F.3d 372, 376 (2nd Cir. 1997)). “In determining whether 16 typicality is met, the focus should be ‘on the defendants’ conduct and the plaintiffs’ legal theory,’ 17 not the injury caused to the plaintiff.” Astiana, 291 F.R.D. at 502 (quoting Simpson v. Fireman’s 18 Fund Ins. Co., 231 F.R.D. 391, 396 (N.D. Cal. 2005)). 19 Defendants argue that Plaintiff cannot establish typicality because she did not purchase all 20 the Products. Defendants also point out that different arguments apply to the different ingredients 21 at issue. The Court nevertheless finds that Plaintiff’s claims are “reasonably co-extensive” with 22 the claims of absent class members. Young, 2020 WL 11762212, at *5. Plaintiff may not have 23 purchased all the challenged Products, but she alleges the same harm as absent class members 24 based on Defendants’ labeling of the Products as containing all natural ingredients. Although the 25 Court recognizes certain differences across the twenty-six products, these products and claims 26 from which they arise do not appear to be so different as to defeat typicality. See Jones v. 27 ConAgra Foods, Inc., 2014 WL 2702726, at *7 (N.D. Cal. June 13, 2014) (typicality satisfied 1 all varieties at issue contained the same misleading label and were alleged to be misleading for the 2 same reason); Testone, 2021 WL 4438391, at *9 (typicality established even though plaintiffs did 3 not purchase “every size and type” of challenged products); de Lacour v. Colgate-Palmolive Co., 4 338 F.R.D. 324, 346 (S.D.N.Y. 2021), leave to appeal denied, No. 21-1234, 2021 WL 5443265 5 (2d Cir. Sept. 16, 2021) (typicality established even though unpurchased products “contain 6 different ingredients, bear different packaging, and have different functions”); Young, 2020 WL 7 11762212, at *5 (“Although Plaintiffs may not have purchased all the challenged Products, they 8 allege the same harm as absent class members based on Defendants’ labeling of the Products as 9 having “natural flavors” and “no artificial colors or flavors” when the Products in fact contained 10 the allegedly artificial flavor, malic acid. This is sufficient for typicality.”). The Court therefore 11 concludes Plaintiff has satisfied the typicality requirement. 12 B. Plaintiff Fails to Satisfy the Requirements Under Rule 23(b)(3) 13 Under the Rule 23(b)(3) predominance inquiry, a court has a duty to take a close look at 14 whether common questions predominate over individual ones and ensure that individual questions 15 do not overwhelm questions common to the class. In re Hyundai & Kia Fuel Econ. Litig., 881 16 F.3d 679, 691 (9th Cir. 2018) (internal quotation marks, citations, and alterations omitted) 17 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997). Id. In short, the main concern 18 of the predominance inquiry under Rule 23(b)(3) is the balance between individual and common 19 issues. Id. In determining if common questions predominate, the Court identifies the substantive 20 issues related to plaintiff’s claims and then considers the proof necessary to establish each element 21 of the claim, and then considers how these issues would be tried. See Cal. Prac. Guide Fed. Civ. 22 Pro. Before Trial Ch. 10 § 10:412 (citing Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 23 804, 809 (2011)). 24 Plaintiff argues that the predominance requirement is met because the questions that she 25 contends are capable of class-wide resolution with common proof, namely likelihood of deception 26 and materiality, predominate over individual questions. As discussed above, the questions of 27 likelihood of deception and materiality address the most critical elements of claims under the 1 proof. In such circumstances, courts routinely find that common questions predominate over 2 individual ones. See, e.g., Hadley v. Kellogg Sales Co., 324 F. Supp. 3d 1084, 1115 (N.D. Cal. 3 2018) (holding that predominance requirement was met as to claims under the FAL, CLRA, and 4 UCL in part because the plaintiff had shown that likelihood of deception and materiality could be 5 resolved on a class-wide basis based on expert testimony and defendant’s own internal 6 documents); Broomfield v. Craft Brew All., Inc., 2018 WL 4952519, at *11 (N.D. Cal. Sept. 25, 7 2018) (same based on expert testimony and defendants’ admissions); Mullins v. Premier Nutrition 8 Corp., 2016 WL 1535057, at *5 (N.D. Cal. Apr. 15, 2016) (same based on the defendants’ own 9 marketing research and surveys). 10 However, a plaintiff seeking certification under Rule 23(b)(3) must show that damages are 11 capable of measurement on a classwide basis. Plaintiff seeks certification under Rule 23(b)(3) 12 because she seeks damages pursuant to the CLRA and restitution pursuant to her other claims on 13 behalf of the proposed class. The damages and restitution owed to a plaintiff under each of these 14 claims is based on the difference between the price the consumer paid and the price a consumer 15 would have been willing to pay for the product had it been labeled accurately. Pulaski & 16 Middleman, LLC v. Google, Inc., 802 F.3d 979, 988–89 (9th Cir. 2015). In other words, “the 17 focus is on the difference between what was paid and what a reasonable consumer would have 18 paid at the time of purchase without the fraudulent or omitted information.” Id. (citing Kwikset, 19 51 Cal. App. 4th at 329). 20 Under Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013), plaintiffs bear the burden of 21 providing a damages model showing that “damages are susceptible of measurement across the 22 entire class for purposes of Rule 23(b)(3).” The damages model “must measure only those 23 damages attributable to” the plaintiffs’ theory of liability and must reasonably reflect the claims 24 and evidence in the case. Id. To demonstrate that damages can be measured classwide, Plaintiff 25 has proffered a conjoint analysis through the testimony of Dr. Dennis, with analytical assistance 26 from Mr. Weir. Defendants argue that this analysis is unreliable for three reasons. 27 First, Defendants argue that Dr. Dennis failed to adequately account for supply-side 1 used in the surveys underlying the analyses reflect the actual market prices that prevailed during 2 the class period; and (2) the quantities used (or assumed) in the statistical calculations reflect the 3 actual quantities of products sold during the class period.” Hadley v. Kellogg Sales Co., 324 F. 4 Supp. 3d 1084, 1105 (N.D. Cal. 2018). Dr. Dennis and Mr. Weir use real world historical data to 5 account for supply-side factors to measure a reliable price premium for the Challenged Statements, 6 which is sufficient at this stage. See Maldonado v. Apple, Inc., 2021 WL 1947512 at *22 (N.D. 7 Cal. May 14, 2021) (“Real-world price and quantity data is reliable for these purposes because, put 8 simply, it is what the supplier firm actually did. The new price that emerges—and the resulting 9 price premium—reliably captures what it set out to capture: a change in price as a result of a 10 change in consumer behavior.”). 11 Second, Defendants argue that Dr. Dennis’s four surveys cannot account for the twenty-six 12 product lines and fault his plan to combine four of the product lines into just two surveys. 13 Defendants argue that by combining product lines, the survey ignores key features that distinguish 14 the Products, such as certain flavors or the presence of essential oils that some consumers may 15 value highly. This “inappropriate conflation of product lines,” as Defendants’ expert Dr. Toubia 16 explains, “renders the proposed conjoint survey unreliable.” (Dkt. No. 80-18 ¶ 66 (“Toubia 17 Report”).) Plaintiff responds that conducting twenty-six conjoint surveys would be unduly 18 burdensome and that Dr. Dennis based his design choice to combine certain Products is based on 19 his expertise and analysis of the packaging. (See Dkt. No. 80-7 at 177:13-178:18 (Deposition of 20 Dr. Dennis).) The Court agrees with Plaintiff. Defendants fail to establish with sufficient 21 specificity how or why Dr. Dennis’s design choice represents a “conflation” of product lines as it 22 relates to differences such as flavors or scents. To the extent that this “conflation” weakens the 23 persuasiveness of the conjoint analysis, Defendants can challenge this portion of the survey at 24 trial. 25 Third, Defendants argue that Dr. Dennis improperly includes in his conjoint study certain 26 words and phrases that Plaintiff does not challenge. As he does for the consumer perception 27 survey, Dr. Dennis plans to test language that Plaintiff does not challenge, such as “with argan 1 Report ¶ 97; Deposition of Dr. Dennis at 70:4-17 (measured “the entire label claim, not just the 2 challenged representation”).) Just as this failure to isolate the Challenged Statements fatally 3 flawed the consumer perception survey, this failure to isolate the key challenged statements 4 renders the conjoint survey incapable of calculating a reliable price premium. Plaintiff again 5 argues that Dr. Dennis can change the survey to isolate these representations, but cites no authority 6 that would allow the Court to approve the survey in its current state. Indeed, courts facing similar 7 issues with Dr. Dennis’s conjoint surveys have required Dr. Dennis to isolate the challenged 8 statements in the conjoint survey on a renewed motion. For example, in McMorrow v. Mondelez 9 Int’l, Inc, instead of specifically testing the effect of the challenged word “nutritious,” Dr. 10 Dennis’s proposed to test entire phrases that contained other non-challenged words, including 11 “nutritious sustained energy,” “nutritious steady energy all morning,” and “4 hours of nutritious 12 steady energy.” 2020 WL 1157191, at *5–9 (S.D. Cal. March 9, 2020). The court in McMorrow 13 reasoned that because the proposed study would not isolate the price premium resulting from the 14 challenged word “nutritious,” the proposed study was inconsistent with the plaintiff’s theory of 15 liability and thus failed to satisfy Comcast. See id. at *19-20. After the court denied the motion 16 for certification on this basis, the plaintiff filed a renewed motion for class certification that relied 17 upon a revised proposed conjoint study by Dr. Dennis, and the court granted certification. See 18 McMorrow v. Mondelez Int’l, Inc, 2021 WL 859137, at *7 (S.D. Cal. Mar. 8, 2021). Similarly, in 19 Vizcarra, the court found that the methodology for calculating damages did not isolate the 20 challenged statements and was therefore incapable of calculating the price premium. Vizcarra, 21 339 F.R.D. at 554. On a renewed motion in which Dr. Dennis made greater efforts to isolate the 22 representations in the survey, the court approved certification. Vizcarra v. Unilever United States, 23 Inc. 2023 WL 2364736. (N.D. Cal. Feb. 24, 2023). 24 Accordingly, the Court DENIES the motion to certify a class under Rule 23(b)(3). 25 C. The Requirements Under Rule 23(b)(2) Are Satisfied 26 Plaintiff also seeks certification under Rule 23(b)(2), which provides that a class action is 27 appropriate if “the party opposing the class has acted or refused to act on grounds generally 1 declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). Class 2 certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory 3 or injunctive. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001). “[A] 4 previously deceived consumer may have standing to seek an injunction against false advertising or 5 labeling,” if (1) “she will be unable to rely on the product’s advertising or labeling in the future, 6 and so will not purchase the product although she would like to” or (2) “she might purchase the 7 product in the future, despite the fact it was once marred by false advertising or labeling, as she 8 may reasonably, but incorrectly, assume the product was improved.” Davidson v. Kimberly-Clark 9 Corp., 889 F.3d 956, 969–70 (9th Cir. 2018). 10 Plaintiff contends that certification of an injunctive relief class is appropriate because 11 Defendants engaged in a uniform practice of misrepresenting on its packaging the existence of 12 natural ingredients in the Products. As noted, Plaintiff explained that she would like to purchase 13 the Products but will not do so because she is unable to rely on the Products’ representations. 14 Plaintiff argues that an injunction requiring Defendants to cease making these alleged 15 misrepresentations would provide relief to the class as a whole, which is limited to consumers who 16 purchased Defendants’ Products that contain the Challenged Statements. 17 Defendants argue that Plaintiff lacks Article III standing, as Plaintiff admitted in a 18 deposition that “if the ‘natural’ statements were taken off the label,” she would “probably” 19 consider purchasing the products again, and that she is concerned with “being lied to” if the 20 Challenged Statements remain on the label. (Dkt. No. 63-17 at 114:24-115:22 (Deposition of Lisa 21 M. Moore).) In support of this contention, Defendants point to Ninth Circuit precedent 22 establishing that the desire for a product to be “properly labeled” is merely “an abstract interest in 23 compliance with labeling requirements” that is “insufficient, standing alone, to establish Article III 24 standing.” In re Coca-Cola Prod. Mktg. & Sales Pracs. Litig. (No. II), 2021 WL 3878654, at *2 25 (9th Cir. Aug. 31, 2021). 26 Despite her admission of an arguably abstract interest, Plaintiff has otherwise adequately 27 alleged standing for an injunctive class. See id. (“[S]uch an abstract interest in compliance with 1 added) (citing Spokeo, Inc. v. Robins, 136 8. Ct. 1540, 1550 (2016)).” As Plaintiff explained in 2 || her deposition, she desires to buy natural lip-care products and she relied on the labels of the 3 natural lip-care Products in deciding to buy them. (Deposition of Lisa M. Moore at 74:17-21; 4 75:22-76:15; 86:7-25; 92:7-15; 93:25-94:23; 105:10-14.) When asked if she would purchase the 5 || Products again in the future, she answered, “I would like to buy them again[.]” (Ud. at 114:14-22.) 6 However, Plaintiff does not know whether they are, in fact, natural, and she does not have the 7 || expertise to discern from their ingredient disclosures whether the Challenged Statements are true. 8 Ud. at 112:12-24; 113:11-114:10; see also Dkt. No. 63-2 5, 6 (Moore Decl.).) This evidence 9 establishes standing under Article III. 10 Accordingly, the Court holds that a single injunction barring Defendant from making the 11 alleged misrepresentations would benefit the whole proposed class. The Court GRANTS the 12 motion to certify under Rule 23(b)(2). 13 CONCLUSION 14 For the reasons explained above, the Court HEREBY GRANTS IN PART AND 3 15 || DENIES IN PART Plaintiffs motion to certify a class. The motion to certify a class under Rule a 16 23(b)(2) is GRANTED, and the motion to certify a class under Rule 23(b)(3) is DENIED 3 17 || WITHOUT PREJUDICE. The Court also GRANTS Plaintiff's motion to exclude the expert 18 testimony of Dr. Steven Dentali and Defendants’ motion to exclude the expert testimony of Dr. 19 || Anton Toutov, and DENIES Defendants’ motions to exclude the expert testimony of Dr. Michael 20 || Dennis and Mr. Colin B. Weir. 21 IT IS SO ORDERED. 22 Dated: January 30, 2024 Sy teres 23 24 JEFFREY S. WHITE 25 United States District Judge 26 27 > To the extent the admission undermines the testimony in the declaration, the inconsistency 2g || identified does is not so “clear and ambiguous” to find the declaration is a sham. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 1003 (9th Cir. 2009).