Phan v. Sargento Foods, Inc.

• Court: District Court, N.D. California
• Decided: June 2, 2021
• Docket: 3:20-cv-09251
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 QUYNH PHAN, Case No. 20-cv-09251-EMC

8 Plaintiff,

ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS, AND 10 SARGENTO FOODS, INC., GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO 11 Defendant. STRIKE

12 Docket Nos. 16, 18

13 14 Plaintiff Quynh Phan has filed a class action against Sargento Foods Inc., alleging that the 15 company engaged in false advertising with respect to the sale of its dairy cheese products. 16 Currently pending before the Court are two motions filed by Sargento: (1) a motion to dismiss and 17 (2) a motion to strike class claims and allegations and to dismiss for lack of standing. Having 18 considered the parties’ briefs, as well as the oral argument of counsel, the Court hereby GRANTS 19 in part and DENIES in part the motion to dismiss and GRANTS in part and DENIES in part the 20 motion to strike. 21 I. FACTUAL & PROCEDURAL BACKGROUND 22 In the complaint, Plaintiff alleges as follows. 23 Sargento is a company that manufactures, markets, and/or distributes dairy cheese products 24 (the “Products”). See Compl. ¶ 22. The packaging of the Products includes the label “No 25 Antibiotics*.”1 See Compl. ¶ 26. The label can appear on the front or the back of the packaging. 26 In either case, it is featured prominently. At the bottom of the packaging (on the same side as the 27 1 label) or just below the label, the asterisk is explained as follows: “*Our cheese is made from milk 2 that does not contain antibiotics.” See Compl. ¶ 26; see also Compl. ¶ 33. The statement appears 3 in small font. See Compl. ¶¶ 26, 33. 4 According to Plaintiff, consumers interpret the “No Antibiotics*” label in at least one of 5 two ways: 6 • The Products are made with milk from cows who were not given antibiotics. 7 • The Products never contain antibiotics. 8 See Compl. ¶ 34. Plaintiffs assert that the label is false and misleading because (1) “[t]he Products 9 are produced with milk from cows who receive antibiotics,” Compl. ¶ 9, and (2) at least some 10 Products actually contain antibiotics. See, e.g., Compl. ¶ 40 (alleging that, in July 2020, an 11 independent laboratory tested Sargento’s Mild Cheddar sliced cheese product and “found 12 detectable levels of the antibiotic sulfamethazine”). 13 During the relevant period, Plaintiff purchased two of the Products with the “No 14 Antibiotics*” label: Natural String Cheese Snacks and Sharp Cheddar Cheese Slices. Plaintiff 15 purchased these products “at least once every two months.” Compl. ¶ 25. In deciding to purchase 16 the products, Plaintiff “saw, relied upon, and reasonably believed” the “No Antibiotics” label on 17 the product packaging. Compl. ¶ 26. Plaintiff, as well as others, “paid more for the Products 18 based upon the misrepresentations than they otherwise would have paid, and/or purchased the 19 Products, or purchased more of the Products, when they would not have if they had known the 20 truth.” Compl. ¶ 15; see also Compl. ¶ 53. 21 Based on, inter alia, the above allegations, Plaintiff has brought a nationwide class action. 22 See Compl. ¶ 58. “Included in the Class, to the extent necessary, is a subclass of all persons who 23 purchased Sargento’s Products (as defined herein) in the following states during the Class Period 24 (the ‘Multi-State Subclass’): Alabama, California, Connecticut, Florida, Illinois, Michigan, 25 Minnesota, Missouri, New Jersey, and New York.” Compl. ¶ 59. Plaintiff asserts the following 26 causes of action: 27 (1) Violation of various state consumer protection laws. This claim is brought on behalf of 1 identified above. 2 (2) Breach of express warranty. This is a nationwide class claim. 3 (3) Unjust enrichment. This is also a nationwide class claim. 4 II. MOTION TO DISMISS (DOCKET NO. 16) 5 A. Legal Standard 6 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 7 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 8 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 9 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss 10 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 11 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must 12 . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 13 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true 14 and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 15 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a 16 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient 17 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself 18 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial 19 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 20 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The 21 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer 22 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). 23 Because Plaintiff’s claims sound in fraud, Federal Rule of Civil Procedure 9(b) is also 24 applicable. Under Rule 9(b), “[i]n alleging fraud . . . , a party must state with particularity the 25 circumstances constituting fraud . . . . Malice, intent, knowledge, and other conditions of a 26 person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). 27 B. Consumer Protection Claim 1 false and misleading in two ways: (1) the Products are made with milk from cows who were given 2 antibiotics and that (2) at least some of the Products actually do contain antibiotics. In its motion 3 to dismiss, Sargento challenges both theories. 4 1. Cows Given Antibiotics 5 According to Plaintiff, the “No Antibiotics*” label is false and misleading because a 6 reasonable consumer would understand the label to mean that the Products are made with milk 7 from cows who were not given antibiotics when, in fact, the opposite is true. In response, 8 Sargento argues that it is not plausible a reasonable consumer would have this understanding 9 because the asterisk is explained on the package (on the same side as the label) as follows: “*Our 10 cheese is made from milk that does not contain antibiotics.” Sargento asserts that the plain 11 meaning of this disclaimer is clear: The fact that the milk itself does not contain antibiotics says 12 nothing about whether the cows who produced the milk were ever given antibiotics.2 13 The Court finds that there is a factual dispute as to what a reasonable consumer would 14 understand from the label, thus making dismissal at 12(b)(6) inappropriate. Even assuming that a 15 reasonable consumer would see and read the disclaimer in small font,3 it is plausible that a 16 reasonable consumer could still believe that there are no antibiotics in the milk because the cows 17 producing the milk were not given antibiotics. See Organic Consumers Ass’n v. Sanderson 18 Farms, Inc., 284 F. Supp. 3d 1005, 1014 (N.D. Cal. 2018) (Seeborg, J.) (noting that “courts grant 19 motions to dismiss under the reasonable consumer test only in rare situations in which the facts 20 alleged in the complaint ‘compel the conclusion as a matter of law that consumers are not likely to 21 be deceived’”); Gallagher v. Chipotle Mexican Grill, Inc., No. 15-cv-03952-HSG, 2016 U.S. Dist. 22 LEXIS 14479, at *9 (N.D. Cal. Feb. 5, 2016) (stating that “dismissal is appropriate where ‘the 23 advertisement itself ma[kes] it impossible for the plaintiff to prove that a reasonable consumer [is] 24 likely to be deceived’”); cf. Friends of the Earth v. Sanderson Farms, Inc., No. 17-cv-03592-RS, 25

26 2 Neither party disputes that the state consumer protection laws are predicated on what a reasonable consumer would understand. 27 1 2018 U.S. Dist. LEXIS 220547, at *12 (N.D. Cal. Dec. 3, 2018) (stating that defendant’s “focus 2 on a close reading of the advertisement’s words . . . is misplaced”; although “[a] lawyer may well 3 catch this turn of phrase, . . . the reasonable consumer standard does not demand that consumers 4 interpret advertisements the same way a judge interprets statutes”). It is plausible that a 5 reasonable consumer would assume that, if a cow consumed antibiotics, the antibiotics would 6 appear in its milk, even if, in fact, science may show that is not necessarily the case. It is not 7 inconceivable that, drawing upon the publicized effect on human infants from the transmission of 8 certain chemicals through mother’s milk through the mother’s consumption, consumers might 9 assume a similar nexus between a cow’s intake and its milk. Although Sargento asserts that “dairy 10 products made from cows that are never treated with antibiotics are labeled with a different 11 representation very familiar to American consumers: ‘organic,’” Mot. at 2, that does not mean a 12 reasonable consumer could not interpret both the label “no antibiotics” and the label “organic” to 13 mean that a cow was never given antibiotics. 14 The Court therefore denies Sargento’s motion to dismiss Plaintiff’s first theory of false 15 advertising because this is a matter that cannot be resolved on a motion to dismiss. 16 2. Never Contain Antibiotics 17 According to Plaintiff, the label “No Antibiotics*” is also false and misleading because “at 18 least some of the Products . . . still contain detectable levels of antibiotics.” Compl. ¶ 9. In 19 support, Plaintiff alleges that, in July 2020, an independent laboratory tested Sargento’s Mild 20 Cheddar sliced cheese product and “found detectable levels of the antibiotic sulfamethazine.” 21 Compl. ¶ 40. 22 Some of the arguments Sargento makes to challenge this theory of false advertising are not 23 persuasive. For example, Sargento contends that Rule 9(b) requires particularity and Plaintiff has 24 not provided any specifics about how the independent laboratory testing was done. This argument 25 ignores the fact that Rule 9(b) requires particularity about the falsity only. See United States ex 26 rel. Silingo v. Wellpoint, Inc., 904 F.3d 667, 677 (9th Cir. 2018) (noting that, under Rule 9(b), “a 27 pleading must identify ‘the who, what, when, where, and how of the misconduct charged,’ as well 1 as ‘what is false or misleading about [the purportedly fraudulent statement], and why it is false’”).4 2 Here, Plaintiff has been specific about what is false – i.e., the “No Antibiotics*” label is false 3 because at least some of the Products actually contain antibiotics. That is enough for Rule 9(b). 4 Nothing about Rule 9(b) suggests that Plaintiff must provide specifics about the means by which 5 the falsity was revealed. 6 Sargento also argues that the false advertising claim is implausible because the 7 independent laboratory testing on which Plaintiff relied in the complaint showed only a de 8 minimis amount of antibiotic. See Def.’s RJN, Ex. 5 (in a different case filed by Plaintiff’s 9 counsel against Sargento, referring to the same independent laboratory testing in the applicable 10 complaint (¶ 29) and providing specifics about that testing – i.e., that 0.985 parts per billion of 11 sulfamethazine were detected); Mot. at 16 (explaining that 0.985 ppb is the equivalent of one 12 ounce in 7.75 million gallons). The gist of this argument is that a reasonable consumer would not 13 be misled by the “No Antibiotics*” label because a reasonable consumer would understand that it 14 would be nearly impossible to have zero antibiotics. In other words, a reasonable consumer would 15 still see the “No Antibiotics*” label as accurate even if there were trace amounts of an antibiotic 16 present. However, what a reasonable consumer would think is a factual dispute that cannot be 17 resolved at the 12(b)(6) phase of proceedings. Cf., e.g., Berke v. Whole Foods Mkt., No. CV 19- 18 7471 PSG (KSx), 2020 U.S. Dist. LEXIS 184346, at *33-34 (C.D. Cal. Sept. 18, 2020) (at 19 12(b)(6), disagreeing with defendant that a reasonable consumer could not understand a label that 20 water was “pure” or “pristine” to mean that the water did not have arsenic in it just because arsenic 21 is “naturally occurring”); Tran v. Sioux Honey Ass’n, Coop., No. 8:17-cv-110-JLS-JCSx, 2018 22 U.S. Dist. LEXIS 146380, at *17-18 (C.D. Cal. Aug. 20, 2018) (taking note of defendant’s 23

24 4 There are two reasons for the heightened pleading requirement: (1) “allegations of fraud ‘must be specific enough to give defendants the notice of the particular misconduct which is alleged to 25 constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong’”; and (2) the rule “‘deter[s] the filing of complaints as a pretext for the 26 discovery of unknown wrongs, . . . protect[s] [defendants] from the harm that comes from being subject to fraud charges, and . . . prohibit[s] plaintiffs from unilaterally imposing upon the court, 27 the parties and society enormous social and economic costs absent some factual basis.’” 1 argument that, “many, if not all, agricultural products contain trace amounts of pesticide” and that 2 plaintiff’s “definition of the term ‘100% Pure’ would essentially preclude any seller of agricultural 3 products from using the term to describe their goods”; but stating that this argument of business 4 difficulty “do[es] not go towards establishing what reasonable consumers would understand the 5 terms ‘100% Pure’ or ‘Pure’ to mean” – and, “[t]o the extent a reasonable consumer considers the 6 honey production process and the prevalence of herbicide use in the modern world when 7 evaluating the term ‘Pure,’ those involve factual issues that should be tested through discovery”); 8 Organic, 284 F. Supp. 3d at 1014-15 (acknowledging defendant’s contention that “a reasonable 9 consumer would not interpret ‘natural as stringently as the plaintiffs propose or be surprised to 10 learn that [defendant’s] products have trace amounts of synthetic materials like antibiotics” but 11 finding a question of fact on the issue). 12 The Court acknowledges that there is case law to support Sargento’s position. See, e.g., Yu 13 v. Dr Pepper Snapple Grp., Inc., No. 18-cv-06664-BLF, 2020 U.S. Dist. LEXIS 185322, at *11 14 (N.D. Cal. Oct. 6, 2020) (in case where defendant’s product was labeled “Natural” or “All Natural 15 Ingredients,” rejecting plaintiff’s argument that “reasonable consumers interpret the word natural 16 to mean a food product that is completely free of any trace pesticides”); In re Gen. Mills 17 Glyphosate Litig., No. 16-2869 (MJD/BRT), 2017 U.S. Dist. LEXIS 108469, at *16-17 (D. Minn. 18 July 12, 2017) (holding that “it is not plausible to allege that the statement ‘Made with 100% 19 Natural Whole Grain Oats’ means that there is no trace glyphosate in Nature Valley Products or 20 that a reasonable consumer would so interpret the label[;] [i]t would be nearly impossible to 21 produce a processed food with no trace of any synthetic molecule”). But the Court finds this 22 authority less persuasive. 23 Although Sargento’s arguments above are not convincing, the Court nevertheless grants its 24 motion to dismiss the second theory of false advertising because its argument that Plaintiffs lacks 25 standing has merit. Plaintiff has expressly alleged that only some of Sargento’s Products – not all 26 or most Products – contain antibiotics. See Compl. ¶ 9 (alleging that “at least some of the 27 Products, in their final form as sold to consumers, still contain detectable levels of antibiotics, 1 one of these Products containing antibiotics. In the absence of that additional allegation, the Court 2 concludes that Plaintiff has no standing to claim that the “No Antibiotics*” label was misleading. 3 Notably, in Rice-Sherman v. Big Heart Pet Brands, Inc., No. 19-cv-03613-WHO, 2020 U.S. Dist. 4 LEXIS 46197 (N.D. Cal. Mar. 16, 2020), Judge Orrick acknowledged that this specific situation 5 would be an obstacle for the plaintiff. See id. at *19-20 (noting that, in two different cases, 6 plaintiffs “failed to allege that ‘all or even most’ of the accused products were falsely advertised 7 and therefore were required to allege that the particular products they purchased were part of a 8 subset of accused products that were falsely advertised”; these plaintiffs “lacked standing because 9 it was merely speculative whether they purchased” problematic products). 10 Plaintiff’s standing is not saved by any implication that there is a systemic problem with 11 Sargento’s Products, from which one could infer that the Product Plaintiff purchased was also 12 tainted. Plaintiff has alleged that antibiotics were detected in one Product (different from the one 13 Plaintiff purchased) based on one test, but this allegation by itself is insufficient to show that all or 14 most Products contain antibiotics. There is no indication that the single test of a single product is 15 likely representative of other Sargento Products and, if so, why. 16 Accordingly, the Court dismisses Plaintiff’s second theory of false advertising but gives 17 Plaintiff leave to amend. 18 C. Claims for Breach of Warranty and Unjust Enrichment 19 The parties largely agree that how the Court resolves the consumer protection claim should 20 dictate how the Court resolves the remaining claims for breach of warranty and unjust enrichment. 21 Accordingly, the Court’s analysis above applies equally to the warranty and unjust enrichment 22 claims. 23 D. Monetary Equitable Relief 24 Finally, Sargento contends that, to the extent Plaintiff seeks monetary equitable relief, that 25 claim should be dismissed because Plaintiff has failed to show that there is no adequate legal 26 remedy for the alleged harm. The Court recently addressed a similar issue in a different case, 27 Julian v. TTE Technology, Inc., No. 20-cv-02857-EMC, 2020 U.S. Dist. LEXIS 215039 (N.D. 1 In Sonner v. Premier Nutrition Corp., 971 F.3d. 834 (9th Cir. 2020), the Ninth Circuit held that a plaintiff "must establish that she lacks 2 an adequate remedy at law before securing equitable restitution for past harm under the UCL and CLRA." Id. at 844. Notably, the 3 court pointed out that the plaintiff in Sonner sought "the same sum in equitable restitution as 'a full refund of the purchase price' . . . as 4 she requested in damages to compensate her for the same past harm. Sonner fails to explain how the same amount of money for the exact 5 same harm is inadequate or incomplete . . . ." Id.

6 [Here,] it is not an unfair burden to require Plaintiffs to explain why legal remedies are inadequate in their pleading. Gibson v. Jaguar 7 Land Rover North America, LLC, No. CV 20-00769-CJC(GJSx), 2020 U.S. Dist. LEXIS 168724, 2020 WL 5492990, at *3 (C.D. Cal. 8 Sept. 9, 2020) (stating that "courts generally require plaintiffs seeking equitable relief to allege some facts suggesting that damages 9 are insufficient to make them whole"). Here, Plaintiffs have failed to explain how restitution could be different from damages. 10 Plaintiffs have simply speculated that restitution and damages could be different (e.g., as to disgorgement) – but even that speculation is 11 questionable given that any profits subject to disgorgement under § 17200 would be limited. See S. Cal. Water Co. v. Aerojet-General 12 Corp., No. CV 02-6340 ABC (RCx), 2003 U.S. Dist. LEXIS 26534, at *44 (C.D. Cal. Apr. 1, 2003) (noting that "§ 17200 does not 13 provide a remedy of nonrestitutionary disgorgement"; "[u]nder § 17200, restitution is limited to disgorgement of (1) money or 14 property once in the plaintiff's possession and (2) money in which the plaintiff has a vested interest"). 15 Finally, on the face of the complaint, it appears that what Plaintiffs' 16 claim for damages and restitution are not really different. The FAC asserts Plaintiffs have been damaged because they "would have paid 17 significantly less for [the televisions]" had they known the truth – or that they would not have purchased the televisions at all. FAC ¶ 18 120. The first measure is the same as what may be obtained as restitution. See Brazil v. Dole Packaged Foods, LLC, 12-cv-01831- 19 LHK, 2014 U.S. Dist. LEXIS 157578, 2014 WL 5794873, at *5 (N.D. Cal. Nov. 6, 2014 (stating that "[t]he proper measure of 20 restitution in a mislabeling case is the amount necessary to compensate the purchaser for the difference between a product as 21 labeled and the product as received"). As for the second measure, some courts have held that a full refund of the purchase price is not 22 even available as restitution, see Victor v. R.C. Bigelow, Inc., 2015 U.S. Dist. LEXIS 106924, 2015 WL 5672577, at *1 (N.D. Cal. Aug. 23 12, 2015) (stating that "[t]he law is clear in this District that '[t]he proper measure of restitution in a mislabeling case is the amount 24 necessary to compensate the purchaser for the difference between a product as labeled and the product as received, not the full purchase 25 price or all profits'").

26 . . . . The Court dismisses the § 17200, § 17500, CLRA, and unjust enrichment claims to the extent they seek equitable relief because 27 Plaintiffs have not demonstrated the inadequacy of a legal remedy. remedies do not provide for adequate relief, they may seek to 1 amend. 2 Id. at *9-13. 3 Plaintiff does not address Julian. Plaintiff simply argues that Plaintiff is “free to plead 4 alternative remedial requests” and that it is premature for a court to decide the adequacy of a legal 5 remedy on a motion to dismiss. Opp’n at 16. Both these arguments, however, were explicitly 6 rejected in Julian. See id. at *10 (taking into account plaintiffs’ contention that “Defendant's 7 argument is premature and ignores that a plaintiff should typically be allowed to plead alternative 8 remedies”). 9 Therefore, the Court proceeds here as it did in Julian – i.e., it dismisses the claim for relief 10 but without prejudice so that Plaintiff may bring the claim back in should Plaintiff find facts, 11 during discovery, showing that the legal remedy would not be adequate. 12 E. Summary 13 Plaintiff’s consumer protection, warranty, and unjust enrichment claims are dismissed in 14 part. The claims are dismissed without prejudice to the extent Plaintiff’s theory is that the “No 15 Antibiotics*” label is false and misleading for lack of standing. Plaintiff is given leave to amend 16 on this theory. However, Plaintiff may proceed with the other theory – i.e., that the label is false 17 and misleading because the Products at issue are made from milk that comes from cows who have 18 been given antibiotics. 19 As for monetary equitable remedies, the Court dismisses the relief but without prejudice. 20 III. MOTION TO STRIKE AND DISMISS (DOCKET NO. 18) 21 In its second motion, Sargento primarily moves to strike class claims and allegations. 22 Plaintiff’s class claims are as follows: 23 (1) Violation of state consumer protection laws (brought on behalf of a multi-state 24 subclass). 25 (2) Breach of express warranty (brought on behalf of a nationwide class). 26 (3) Unjust enrichment (brought on behalf of a nationwide class). 27 For the two nationwide claims, Sargento criticizes Plaintiff for failing to identify what state 1 would apply (i.e., wherever a consumer purchased the Sargento Product, that state’s law applies), 2 and that would bar class certification because individualized issues would predominate. 3 For the multi-state claim, Sargento makes a similar argument; that is, that there are too 4 many differences in the various state’s laws such that individualized issues would predominate. 5 A. Nationwide Claims 6 For the nationwide claims, Plaintiff does not dispute that, under a choice-of-law analysis, 7 the laws of all 50 states would apply. Indeed, Plaintiff expressly states: “the law applicable to 8 each class member is the law of the state in which they purchased the Sargento Product.” Opp’n 9 at 8. Plaintiff, however, argues that it is premature to decide now – at the outset of this litigation – 10 what impact this will on the claims. In other words, Plaintiff takes the position that the issue 11 should be deferred until class certification. 12 As Plaintiff notes, many cases have reiterated the following principle: “‘motions to strike 13 class allegations are disfavored because a motion for class certification is a more appropriate 14 vehicle for arguments about class propriety.’” Marsh v. First Bank of Del., No. 11-cv-05226- 15 WHO, 2014 U.S. Dist. LEXIS 17577, at *51 (N.D. Cal. Feb. 7, 2014). However, that does not 16 mean that a motion to strike class claims or allegations cannot be decided at the pleading stage. 17 See id. at *50-51 (noting that “[a] motion to strike class allegations may be appropriate to dispense 18 with issues well before trial or before discovery is taken”). Nevertheless, courts, including this 19 one, have examined the degree of factual development needed to resolve the particular issue. If 20 the issue is purely legal in nature, then it may make little sense not to wait until class certification 21 proceedings to resolve it given the burdens class certification and other class-related discovery 22 imposes on the parties. As the Sixth Circuit noted in one case, while “‘it may be necessary for the 23 court to probe behind the pleadings before coming to rest on the certification question,’”

24 [t]he problem for the plaintiffs [here] is that we cannot see how discovery or for that matter more time would have helped them. To 25 this day, they do not explain what type of discovery or what type of factual development would alter the central defect in this class 26 claim. The key reality remains: Their claims [for false advertising in violation of consumer protection law] are governed by different 27 States’ laws, a largely legal determination, and no proffered or 1 Pilgrim v. Univ. Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011); see also Soo v. Lorex 2 Corp., No. 20-cv-01437-JSC, 2020 U.S. Dist. LEXIS 164664, at *29 (N.D. Cal. Sep. 8, 2020) 3 (noting that “Plaintiffs do not identify any discovery that might permit them to bring claims under 4 the laws of state to which they have no connection; to defer ruling and permit nationwide 5 discovery would therefore merely waste time and money”). 6 The Court agrees with the Sixth Circuit’s comments in Pilgrim, and therefore addresses the 7 merits of Sargento’s position – i.e., that the law on unjust enrichment and the law on breach of 8 express warranty vary too much from state to state such that individualized issues predominate 9 and that is a matter suitable for determination at this stage. 10 1. Unjust Enrichment 11 The Court finds Sargento’s argument on the unjust enrichment claim meritorious. 12 Although Plaintiff does cite cases in support – in which courts certified a nationwide class for an 13 unjust enrichment claim – those cases were largely decided before the Ninth Circuit’s decision in 14 Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012). As Sargento points out, 15 in Mazza, the Ninth Circuit expressly noted that “[t]he elements necessary to establish a claim for 16 unjust enrichment . . . vary materially from state to state.” Id. at 591 (citing Candace S. Kovacic, 17 A Proposal to Simplify Quantum Meruit Litigation, 35 Am. U. L. Rev. 547, 558-60 (1986)5). 18 5 In the law review article, Ms. Kovacic notes, inter alia, that a claim of quantum meruit may be 19 based on a contract implied in law or on a contract implied in fact, which can lead to different remedies; that such a claim may not have any defined elements comprising the claim; that, and 20 where there are elements, there is not a single set of elements by which courts may obtain consistent results (especially as quantum meruit can be based on a contract implied in law or a 21 contract implied in fact). See also Vista Healthplan, Inc. v. Cephalon, Inc., No. 2:06-cv-1833, 2015 U.S. Dist. LEXIS 74846, at *82-83 (E.D. Pa. June 10, 2015) (“First, states apply statutes of 22 limitations of varying lengths to unjust enrichment claims. Second, states have different rules as to when and how the statute of limitations accrues. Third, some states do not recognize unjust 23 enrichment as an independent cause of action. Fourth, some but not all states require a plaintiff to demonstrate that they lack an adequate remedy at law. Fifth, some states require that a plaintiff 24 establish that the benefit was directly conferred on the defendant. Sixth, the states also vary as to the level of misconduct, if any, a plaintiff must prove. Lastly, the states follow different rules as 25 to the availability of defenses, including laches and unclean hands.”); Spencer v. Hartford Fin. Servs. Grp., Inc., 256 F.R.D. 284, 304 (D. Conn. 2009) (“[Regarding unjust enrichment,] [s]ome 26 state require proof of an actual loss or impoverishment, while others do not. Some states allow an unjust enrichment claim only in the absence of a contract. Some states allow a claim to go 27 forward only ‘where there is no adequate remedy at law.’ Some stats require the defendants to 1 Admittedly, the court made this statement in discussing whether, for choice of law purposes, there 2 were material differences in state law. However, the Ninth Circuit went on to hold that the laws of 3 the 50 states would apply to the class claim and remanded to the district court for further 4 proceedings, noting as follows:

5 We express no view whether on remand it would be correct to certify a smaller class containing only those who purchased or 6 leased in California, or to certify a class with members more broadly but with subclasses for class members in different states, with 7 different jury instruction for materially different bodies of state law. 8 Id. at 594 (emphasis added). Thus, implicitly, the Ninth Circuit was highly skeptical of a 9 nationwide unjust enrichment claim where the laws of all 50 states are implicated (even if it did 10 not foreclose a class implicating the laws of fewer than all 50 states). 11 Furthermore, at least one judge in this District has interpreted Mazza in this way. 12 Specifically, Judge Gonzalez Rogers noted as follows:

13 It is true that district courts – including courts in this District – have certified nationwide unjust enrichment classes. Plaintiffs, though, 14 cannot point to a single case in this Circuit to do so since the Ninth Circuit addressed the issue in Mazza v. American Honda Motor Co., 15 Inc., 666 F.3d 581, 591 (9th Cir. 2012). This is unsurprising given that, in Mazza, the Ninth Circuit unequivocally held that the 16 "elements necessary to establish a claim for unjust enrichment . . . vary materially from state to state." It is hard to imagine a clearer 17 directive from our Circuit on this issue. 18 Bias v. Wells Fargo & Co., 312 F.R.D. 528, 540 (N.D. Cal. 2015). And because the laws of all 50 19 states are implicated, Plaintiff has not sufficiently shown that common questions of fact or law 20 predominate over individualized issues – or that a class action would be manageable. See Allen v. 21 ConAgra Foods, Inc., 331 F.R.D. 641, 657-58 (N.D. Cal. 2019) (Orrick, J.) (denying plaintiffs’ 22 three elements, some have a five part of our part test, while others use one or two elements.”); 23 Thompson v. Jiffy Lube Int'l, Inc., 250 F.R.D. 607, 626 (D. Kan. 2008) (“[T]here are differences nationwide in the very definition of unjust enrichment and its availability as a remedy. Some 24 states preclude such claims when an adequate legal remedy is available, and many states say the existence of an enforceable contract will preclude an unjust enrichment claim.”); Clay v. Am. 25 Tobacco Co., 188 F.R.D. 483, 501 (S.D. Ill. 1999) (“[V]ariances exist in state common laws of unjust enrichment. The actual definition of ‘unjust enrichment’ varies from state to state. Some 26 states do not specify the misconduct necessary to proceed, while others require that the misconduct include dishonesty or fraud. Other states only allow a claim of unjust enrichment 27 when no adequate legal remedy exists. Many states, but not all, permit an equitable defense of 1 motion for certification of a nationwide unjust enrichment class because the laws of all 50 states 2 would apply and therefore “plaintiffs cannot meet their burden to show that common questions of 3 fact or law predominate over individualized questions as required by Rule 23(b)(3)”); Hughes v. 4 The Ester C Co., 317 F.R.D. 333, 353 (E.D.N.Y. 2016) (holding that the law of all 50 states would 5 apply to the plaintiffs’ nationwide unjust enrichment claim and that the variation in state law on 6 unjust enrichment precluded class certification); Spencer, 256 F.R.D. at 304 (holding the same; 7 underscoring that, “[i]n contrast to the legal issues underlying breach of contract claims, which 8 exhibit substantial uniformity from state to state, unjust enrichment claims do not” which reflects 9 the fact that a breach-of-contract claim is based on a voluntary agreement whereas an unjust 10 enrichment claim is based on equity). Notably, many courts have reached this conclusion on an 11 unjust enrichment claim even prior to formal class certification proceedings, see, e.g., Tromble v. 12 W. Dig. Corp., No. 4:20-cv-08102-YGR, 2021 U.S. Dist. LEXIS 100778, at *4-5 (N.D. Cal. May 13 27, 2021) (“‘[W]hile the Court agrees that whether a nationwide class claim can be stated is 14 typically addressed during class certification, they have been routinely narrowed after the Ninth 15 Circuit's ruling in Mazza . . . .’ Indeed, the Court recently granted a request to strike similar 16 nationwide class allegations of unjust enrichment in Pistacchio v. Apple Inc., 4:20-cv-7034-YGR, 17 2021 U.S. Dist. LEXIS 47071, 2021 WL 949422, at *3 (N.D. Cal. Mar. 11, 2021).”); In re Toyota 18 RAV4 Hybrid Fuel Tank Litig., No. 20-cv-00337-EMC, 2021 U.S. Dist. LEXIS 69643, at *119 19 (N.D. Cal. Apr. 9, 2021) (“In light of Mazza, the Court finds that Plaintiffs cannot assert a 20 nationwide claim for unjust enrichment under California law.”), although, admittedly, other courts 21 have reached a different conclusion. See, e.g., Wallace v. SharkNinja Operating, LLC, No. 18-cv- 22 05221-BLF, 2020 U.S. Dist. LEXIS 40594, at *45 (N.D. Cal. Mar. 9, 2020). (“The Court agrees 23 that Mazza is binding, and that choice of law issues might ultimately preclude a nationwide class. 24 But as Mazza itself demonstrates, a detailed and fact-intensive inquiry is necessary to determine 25 the substantive law applicable to class members' claims. The Court is also mindful that dismissing 26 or striking class allegations at the pleading stage is rare.”); Valencia v. Volkswagen Grp. of Am. 27 Inc., No. 15-cv-00887-HSG, 2015 U.S. Dist. LEXIS 105545, at *4 (N.D. Cal. Aug. 11, 2015) 1 litigation is not a proper inquiry at the pleading stage. Such a deeply factual inquiry is more 2 appropriately addressed at the class certification stage, which was, incidentally, the posture of the 3 Mazza action when it was appealed to the Ninth Circuit.”) (emphasis omitted); Clancy v. Bromley 4 Tea Co., 308 F.R.D. 564, 572-73 (N.D. Cal. 2013) (“Such a detailed choice-of-law analysis is not 5 appropriate at this stage of the litigation. Rather, such a fact-heavy inquiry should occur during 6 the class certification stage, after discovery. Mazza, of course, will be relevant to the decision 7 whether to certify any proposed class or sub-class. But at this early stage of the litigation, ‘it 8 would be premature to speculate about whether the difference in various states' consumer 9 protection laws are material in this case.’”). However, this case presents the extreme situation in 10 which a single plaintiff seeks to certify one entire nationwide class involving 50 different state 11 laws, not, e.g., a subset of states grouped into discrete subclasses. Furthermore, as noted above, 12 Plaintiff has not demonstrated that a fact-intensive inquiry would be necessary here. Thus, the 13 cases which have refused to certify a nationwide class for unjust enrichment claims are 14 particularly apt. 15 2. Breach of Express Warranty 16 Plaintiff fares no better on the claim for breach of express warranty. As Sargento points 17 out, in Tasion Communications, Inc. v. Ubiquiti Networks, Inc., 308 F.R.D. 630, 636 (N.D. Cal. 18 2015) (Chen, J.), this Court – post-Mazza – considered a nationwide claim for breach of express 19 warranty. The Court did a choice-of-law analysis (noting, e.g., that there were material 20 differences in state law regarding the privity, notice, and reliance requirements)6 and concluded 21 that

22 California law does not uniformly apply to the entire class; rather the governing law for the express warranty claim will be based on 23 where the purchaser of the . . . product resided. And because the laws of multiple jurisdictions is thereby implicated, [defendant] 24 correctly contends that there is a predominance/manageability 25 6 For instance, some states require privity between the plaintiff and the defendant, while other 26 states do not. See Tasion, 308 F.R.D. at 636 (comparing Alabama and North Carolina law with California law). Some states require notice but others do not, and, for those that require notice, 27 some require pre-litigation notice but others do not. See id. (comparing California law with laws problem that precludes certification of a Rule 23(b)(3) class. 1 2 Id. at 638. Other district courts in the Ninth Circuit have reached similar holdings. See, e.g.: 3 • Amavizca v. Nutra Mfg., LLC, No. 8:20-cv-01324-RGK-MAA, 2021 U.S. Dist. 4 LEXIS 36009, at *26-30 (C.D. Cal. Jan. 27, 2021) (denying plaintiff’s motion to 5 certify a nationwide class for breach of warranty and unjust enrichment claims 6 because the laws of all 50 states would apply and plaintiff “failed to meet his 7 burden to establish predominance and demonstrate a suitable and realistic plan for 8 trial”). 9 • Tsonev v. Kia Motors Am., Inc., No. SACV 16-01020-CJC(DFMx), 2016 U.S. Dist. 10 LEXIS 192698, at *14-15 (C.D. Cal. Nov. 9, 2016) (taking note of “several 11 material differences between states with regard to express warranty causes of 12 action, specifically with regard to how states analyze privity, reliance, and notice”; 13 “[p]laintiff makes no effort to argue that the conflicting state laws Kia identified do 14 not exist or do not preclude class certification” and therefore striking the 15 nationwide class). 16 • Darisse v. Nest Labs, Inc., No. 5:14-cv-1363-BLF, 2016 U.S. Dist. LEXIS 107938, 17 at *31-33, 40 (N.D. Cal. Aug. 15, 2016) (holding that laws of 50 states must be 18 applied to, inter alia, express warranty claim; because express warranty law “varies 19 across the 50 states” – e.g., on privity, reliance, and notice – common questions did 20 not predominate). 21 • Czuchaj v. Conair Corp., No. 13-cv-1901-BEN (RBB), 2016 U.S. Dist. LEXIS 22 42788, at *10 (S.D. Cal. Mar. 30, 2016) (noting that, “[a]lthough material 23 differences in state laws do not automatically overcome the predominance and 24 superiority requirements in Rule 23(b)(3), here they do[;] [w]hether the Model 259 25 was defective and whether the implied warranty of merchantability was breached 26 were the two common questions that the Court previously found suitable for a class 27 action” but, “[i]n light of the application of each state law to this case, more 1 • Karim v. Hewlett-Packard Co., 311 F.R.D. 568, 572 (N.D. Cal. 2015) (noting that 2 “the court found that California law could not be applied to a nationwide class, 3 because a conflict existed between California's express warranty law and that of 4 other states, and that the interests of those other states outweighed California's 5 interest in applying its laws on a nationwide basis[;] [t]hus, because California law 6 could not be used on a classwide basis, individual questions of law would 7 predominate over common ones”). 8 Compare Kaupelis v. Harbor Freight Tools USA, Inc., No. SACV 19-1203 JVS (DFMx), 2020 9 U.S. Dist. LEXIS 186249, at *38-39 (C.D. Cal. Sep. 23, 2020) (holding that multistate implied 10 warranty class could be certified; even though defendant claimed “differences between the statutes 11 of limitations, requirements of notice, and requirements for privity among the states,” plaintiffs 12 “demonstrated why each of these differences does not bar class certification” – e.g., plaintiffs 13 defined the class “so that it does not impair the interest of any state as represented in their statutes 14 of limitations,” and “chainsaws [were sold] directly to class members . . . so privity would be 15 uniformly satisfied”). 16 For the same reason the Court refuses to certify a nationwide class for an unjust 17 enrichment claim brought by a single named plaintiff, it refuses to certify a nationwide class for a 18 breach-of-warranty claim. 19 3. Summary 20 For the reasons stated above, the Court strikes both the nationwide unjust enrichment claim 21 as well as the nationwide warranty claim. Plaintiff has leave to amend to assert a narrower class. 22 B. Multistate Claim: Violation of Consumer Protection Laws of Ten States 23 For the consumer protection claim, Plaintiff asserts a multistate class – i.e., the laws of ten 24 different states are implicated. Those states are: Alabama, California, Connecticut, Florida, 25 Illinois, Michigan, Minnesota, Missouri, New Jersey, and New York. See Compl. ¶ 59. It appears 26 that Plaintiff selected these ten states based on a Seventh Circuit case, which noted that (1) these 27 ten states all have “Little FTC Acts” patterned on the Federal Trade Commission Act and (2) all 1 reasonable consumers,’ which ‘requires a probability that a significant portion of the general 2 consuming public or of targeted consumers, acting reasonably in the circumstances, could be 3 misled.’” Bell v. Publix Super Mkts., Inc., 982 F.3d 468, 474-75 (7th Cir. 2020). 4 But Bell is not dispositive. Although there may be some significant commonalities among 5 the consumer protection laws of the ten states, there are no significant differences. Notably, Bell 6 included the statement that “[t]he core prohibitions of these laws are interpreted for the most part 7 interchangeably, and the parties have not identified any differences relevant to these appeals.” Id. 8 at 475 (emphasis added). Here, Sargento has identified differences in the consumer protection 9 laws – e.g., on whether scienter is required, whether reliance is required, whether damages are 10 permitted, whether a misrepresentation must be material, whether there are procedural 11 requirements, and what is the applicable statute of limitations. See Garganta Decl., Ex. 2 (chart on 12 “Variations in State Consumer Protection and Deceptive Trade Practice Laws”). For instance: 13 • Scienter. In Mazza, the Ninth Circuit noted that California’s consumer protection 14 law (the UCL and the CLRA) does not have a scienter requirement but other states’ 15 consumer protection laws do – including, e.g., New Jersey. See Mazza, 666 F.3d at 16 591 (citing N.J. Stat. § 56:8-2). Sargento has also shown that Connecticut does not 17 have a scienter requirement, see Cheshire Mortg. Serv., Inc. v. Montes, 223 Conn. 18 80, 106 (1992) (stating that “[a] party need not prove an intent to deceive to prevail 19 under CUTPA [Connecticut Unfair Trade Practices Act]”), but that Alabama does. 20 See Ala. Code § 8-19-13 (providing that “[a]ny person against whom any civil 21 action or proceeding is brought pursuant to this chapter shall have a defense to such 22 action or proceeding upon a showing by a preponderance of the evidence presented 23 that such person did not knowingly commit any act or knowingly engage in any 24 activity which constitutes a violation of any provision of this chapter”). This Court 25 has previously noted that Minnesota consumer protection law does not have a 26 scienter requirement. See In re Chrysler-Dodge-Jeep EcoDiesel Mktg., Sales 27 Practices & Prods. Liab. Litig., 295 F. Supp. 3d 927, 1020 (N.D. Cal. 2018) 1 Inc., 474 N.W.2d 605, 612 (Minn. Ct. App. 1991), the court stated: “‘Minnesota 2 courts have held that a finding of negligent or unintentional misrepresentation 3 violates’” the Minnesota Consumer Fraud Act)). 4 • Reliance. In Mazza, the Ninth Circuit noted that California’s consumer protection 5 law has a reliance requirement while some other states’ consumer protection 6 statutes do not – including Florida, New Jersey, and New York. See Mazza, 666 7 F.3d at 591 (citing cases from these states). Connecticut also does not require 8 reliance. See Izzarelli v. R.I. Reynolds Tobacco Co., 117 F. Supp. 2d 167, 176 (D. 9 Conn. 2000) (stating that, “[u]nlike a claim of fraud, CUTPA does not require 10 reliance or a claim that the misrepresentation became part of the basis of the 11 bargain[;] [u]nder CUTPA, if the message is false, then it is a deceptive act without 12 inquiry into whether the consumer actually believed the message or whether the 13 consumer acted reasonably in relying on it”). 14 In response, Plaintiff fails to address any of these differences, except for the statute of 15 limitations (arguing that the difference in the statute of limitations can easily be addressed as an 16 administrative matter). Rather than addressing the differences, Plaintiff now takes the position 17 that there should be certification of ten different subclasses (one for each of the ten states). See 18 Opp’n at 11 (“Plaintiff Phan has pleaded the multi-state subclass precisely in order to represent 19 subclass members under their own state statutes.”). Assuming that it would be manageable to 20 have ten subclasses with varying substantive legal elements, Sargento’s motion raises the vexing 21 question of whether the Court presently should consider Plaintiff’s standing to prosecute the 22 claims of subclass members from other states or instead defer the question and analyze the issue as 23 a matter for class certification (e.g., commonality, typicality, adequacy). 24 Plaintiff contends that this issue would be better addressed in the context of class 25 certification. See generally In re Carrier IQ, Inc., Consumer Privacy Litig., 78 F. Supp. 3d 1051, 26 1069 (N.D. Cal. 2015) (noting that courts have differed as to “whether differences between a 27 named plaintiff's claims and the unnamed class members' claims should be treated as a standing 1 23”) (emphasis added). In support, Plaintiff notes that this Court deferred ruling on the same issue 2 until class certification in FCA, 295 F. Supp. 3d at 953-56. In so holding, the Court relied on a 3 Ninth Circuit decision, Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015). 4 In response, Sargento asserts that the issue can still be addressed at the pleading stage, as 5 many courts (but not all) have held post-Melendres. For example, in Jones v. Micron Technology, 6 Inc., 400 F. Supp. 3d 897 (N.D. Cal. 2019), Judge White noted as follows:

7 In [Melendres], the Ninth Circuit considered an appeal from a district court judgment (following a bench trial) against Sheriff 8 Joseph Arpaio and the Maricopa County Sheriff's Office, enjoining them from making traffic stops based on a car occupant's race. The 9 injunction applied to stops made during "saturation patrol" (when the defendant officers "saturated" a particular area for the purpose of 10 enforcing immigration laws) and "nonsaturation patrol." In support of their request to partially decertify the class, the defendants argued 11 that the remaining named plaintiffs, who were stopped during saturation patrols, lacked Article III standing to bring constitutional 12 claims on behalf of class members stopped during nonsaturation patrols. 13 Unlike the instant case, Melendres did not confront a situation where 14 named plaintiffs brought claims under the laws of multiple states where they did not reside and where they were not injured: in 15 Melendres, all plaintiffs alleged that they suffered the same constitutional injury, only in different factual circumstances. Here, 16 because Plaintiffs bring claims under the laws of multiple states (some antitrust and some not), Plaintiffs technically invoke different 17 legally protected interests.

18 The Court is here called upon to examine whether the named Plaintiffs have standing to bring certain claims, not standing "to 19 obtain relief for unnamed class members" for the same injury. Plaintiffs must show they have standing for each claim they raise, 20 and Plaintiffs do not have standing to bring claims under the laws of states where they have alleged no injury, residence, or other 21 pertinent connection. 22 Id. at 909. 23 Judge White thus disagreed with this Court’s approach in FCA but added that he also 24 found FCA factually distinguishable.

25 In that case, there were only seven state laws without named plaintiff representatives. Judge Chen explained that, even if 26 Melendres "did not impose a per se rule," it would be appropriate in the case then before him to defer standing analysis because forty- 27 three of the state laws invoked by the complaint had corresponding "subjecting the [defendants] to the expense and burden of 1 nationwide discovery without Plaintiffs first securing actual plaintiffs who clearly have standing and are willing and able to 2 assert claims under these state laws." 3 Id. at 910. Finally, Judge White noted that post-Melendres, many courts, “at the pleading stage of 4 a putative class action, have dismissed sister state claims based on the named plaintiff’s standing.” 5 Id. 6 Taking into account the post-Melendres authority, the Court revisits its earlier statement in 7 FCA that Melendres “requires courts in the Ninth Circuit to apply the ‘class certification 8 approach.’” FCA, 295 F. Supp. 3d at 955 (emphasis added). As this Court previously held in 9 Carrier IQ and as it suggested as an alternative holding in FCA, Melendres does not “impose a 10 per se rule”; rather, “district courts retain discretion to address standing before or after class 11 certification in the ‘sister state’ law scenario.” Id. at 956. 12 In determining whether the issue should be analyzed as a question of standing properly 13 addressed prior to certification or instead one of e.g. adequacy and typicality at certification, the 14 Court recognizes that there is

15 a "'growing consensus' among lower courts . . . that class certification should indeed be decided first 'where its outcome will 16 affect the Article III standing determination.'" Rubenstein, supra, § 2:2 (quoting Winfield v. Citibank, N.A., 842 F. Supp. 2d 560, 574 17 (S.D.N.Y. 2012). As the Seventh Circuit has noted:

18 once a class is properly certified, statutory and Article III standing requirements must be assessed with reference to the 19 class as a whole, not simply with reference to the individual named plaintiffs. The certification of a class changes the 20 standing aspects of a suit, because "[a] properly certified class has a legal status separate from and independent of the 21 interest asserted by the named plaintiff."

22 Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir. 2002). The Ninth Circuit has similarly recognized that "once a class has been 23 certified, 'the class of unnamed persons described in the certification acquire[s] a legal status separate from the representative.'" Bates, 24 511 F.3d at 987 (quoting Sosna v. Iowa, 419 U.S. 393, 399 (1975)).\ 25 Carrier IQ, 78 F. Supp. 3d at 1071-72 (emphasis added). 26 In a thoughtful opinion, the court in In re McCormick & Co., 217 F. Supp. 3d 124, 144 27 (D.D.C. 2016) observed: state-law claims as a question of commonality, typicality, and 1 adequacy under Rule 23, rather than a question of standing. Generally, the named plaintiffs in a class action do not have 2 individual standing for all of the claims that they raise, because one individual does not have standing to claim injury to another 3 individual. Therefore, standing analysis cannot address whether one plaintiff should be able to bring claims on behalf of others. In 4 contrast, “the requirements of Rule 23(a) – commonality, typicality, and adequacy – exist to test the relationship between the named 5 plaintiff's claims and those of the class.” Thus, when defendants are “not challenging Plaintiffs' standing to bring their own claims” but 6 rather “their standing to bring claims on behalf of the class,” “[t]his question would be appropriately, and more efficiently addressed at 7 the class certification stage.”

8 Whether the named plaintiffs can adequately represent unnamed class members with claims under other states' laws depends on how 9 variable the laws are. If the laws are similar enough, or if they can be grouped into a small number of categories with named plaintiffs 10 representing each category, it may be unnecessary to have a named plaintiff from every state. 11 12 Id. at 144; cf. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (stating that 13 “[v]ariations in state law do not necessarily preclude a 23(b)(3) action, but class counsel should be 14 prepared to demonstrate the commonality of substantive law applicable to all class members”); In 15 re US FoodServ. Pricing Litig., 729 F.3d 108, 126-27 (2d Cir. 2013) (“agree[ing] that putative 16 class actions involving the laws of multiple states are often not properly certified pursuant to Rule 17 23(b)(3) because variation in the legal issues to be addressed overwhelms the issues common to 18 the class,” but “these concerns are lessened where the states' laws do not vary materially”). 19 Nevertheless, the Court holds that, in the instant case, it is more appropriate to decide the 20 issue now, prior to formal class certification proceedings. Here, as noted above, there are 21 substantial variations in the consumer protection laws of the ten states at issue. Although Plaintiff 22 suggests the court certify ten subclasses, this underscores the problematic nature of the request that 23 Plaintiff singularly be appointed to be the named representative for each of these subclasses, even 24 though Plaintiff has had no involvement with the other nine states and even though there are 25 substantial differences in the laws asserted. Under these circumstances, whether it be cast as a 26 standing question or an early adjudication of prospective class certification, the Court exercises its 27 discretion to hold that Plaintiff, on this record, cannot represent unnamed class members in states 1 bring claims under the laws of the twenty jurisdictions invoked by the Complaint where they do 2 not reside and have alleged no injury”); Corcoran v. CVS Health Corp., No. 15-CV-3504 YGR, 3 2016 U.S. Dist. LEXIS 99797, at *7 (N.D. Cal. July 29, 2016) (noting that, “[a]lthough plaintiffs 4 allege standing properly to bring the common law claims under the laws of the thirteen 5 jurisdictions in which they reside and/or filled prescriptions, it does not necessarily follow that 6 they allege standing properly under the laws of the thirty-eight other jurisdictions”); Johnson v. 7 Nissan N. Am., Inc., 272 F. Supp. 3d 1168, 1175 (N.D. Cal. 2017) (Orrick, J.) (“opt[ing] . . . to 8 require that plaintiffs present named class representatives who possess individual standing to 9 assert each stat law’s claims against Nissan[;] [i]n this case, plaintiffs have two named class 10 representatives in two states purporting to represent a nationwide class”); Fenerjian v. Nongshim 11 Co., 72 F. Supp. 3d 1058, 1082-83 (N.D. Cal. 2014) (Orrick, J.) (noting that none of the five 12 plaintiffs “resides in, or suffered an injury in, the 24 states identified above” and therefore they 13 “lack standing to assert claims based on those states’ laws”). 14 C. Summary 15 As noted above, the Court strikes the nationwide unjust enrichment claim as well as the 16 nationwide warranty claim but gives Plaintiff leave to amend to assert a narrower class. On the 17 multistate consumer protection claim, even if Plaintiff has set forth ten state subclasses, Plaintiff 18 may not assert and serve a named representative of non-California claims. At this point, Plaintiff 19 may only represent a California “subclass.” Plaintiff, however, may amend if Plaintiff can bring 20 in individuals who can served as putative representatives for other states to address the problems 21 discussed herein. 22 IV. CONCLUSION 23 Sargento’s motion to dismiss is granted in part and denied in part. Plaintiff has leave to 24 amend the second false advertising theory. Plaintiff does not, at this juncture, have leave to amend 25 with respect to monetary equitable remedies but is not precluded from asking for leave to amend 26 in the future. 27 Sargento’s motion to strike is granted in part and denied in part. The nationwide claims 1 unjust enrichment and warranty claims. On the multistate claim, Plaintiff may proceed with only a 2 California “subclass” but has leave to amend. 3 If Plaintiff decides to amend, the amended complaint must be filed no later than June 30, 4 2021. Sargento has until July 28, 2021 to respond to the amended complaint or, if no amended 5 complaint is filed, to the original complaint. 6 This order disposes of Docket Nos. 16 and 18. 7 8 IT IS SO ORDERED. 9 10 Dated: June 2, 2021 11 12 ______________________________________ EDWARD M. CHEN 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27