1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 STEVEN ROBERT PRESCOTT, et al., Case No. 20-cv-02101-BLF 9 Plaintiffs, ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS 10 v. CERTIFICATION 11 RECKITT BENCKISER LLC, 12 Defendant. [Re: ECF 111] 13 14 15 Plaintiffs bring this putative class action against Defendant Reckitt Benckiser LLC 16 (“Reckitt”) on behalf of consumers who purchased Woolite laundry detergent labeled with the 17 phrases “COLOR RENEW” and/or “revives colors” (collectively, “the color renew/revive 18 representation”). Plaintiffs assert that the color renew/revive representation was false or 19 misleading, because Woolite laundry detergent does not renew or revive color in clothing. They 20 assert consumer claims on behalf of the residents of three states, California, New York, and 21 Massachusetts. 22 Plaintiffs move for certification of a California class, a New York class, and a 23 Massachusetts class of consumers. Reckitt opposes certification. The motion is GRANTED for 24 the reasons discussed below. 25 I. BACKGROUND 26 In 2017, Reckitt launched a new marketing campaign for its Woolite brand laundry 27 detergents. See Kafka Decl. ¶ 3 and Exh. 1; Exh. 7, Fuentes Dep. 33:18-24. Reckitt changed the 1 marketing those products by representing that the reformulated detergent would “renew” and 2 “revive” color in clothing. See Kafka Decl. ¶ 3 and Exh. 1; Exh. 7, Fuentes Dep. 33:18-24. On 3 100% of those detergent bottles, the back label displayed the phrase “revives colors” as part of a 4 prominent graphic showing that the reformulated detergent “smooths rough fibers” and “removes 5 pilling and fuzz” with the end result that it “revives colors.” See Henry Exh. 14, Tyrell Decl. ¶¶ 5- 6 10. On approximately 57% of the bottles, the back label also displayed the phrase “HOW 7 COLOR RENEW WORKS” inside a rainbow-colored hexagon. See id. Finally, on 8 approximately 55% of the bottles, the front label displayed the phrase “COLOR RENEW” inside a 9 rainbow-colored hexagon. See id. 10 In conjunction with the new marketing campaign, Reckitt implemented a % increase in 11 its wholesale prices for all sizes of Woolite Gentle Cycle detergent and Woolite Darks detergent, 12 with the exception of the See Kafka Decl. Exh. 3, Tedesco 13 Dep. 90:23-91:3. Although it did not increase the wholesale price for the Reckitt 14 cancelled a previously-planned decrease in the wholesale price for those bottles. See Kafka Exh. 15 20, Pinsonneault Report ¶¶ 60-61. 16 A competitor in the detergent market, Procter & Gamble, initiated a challenge to Reckitt’s 17 advertising with the National Advertising Division (“NAD”) of the Council of Better Business 18 Bureaus.1 See Kafka Exh. 37, Procter & Gamble’s Challenge. Among other things, Procter & 19 Gamble asserted that Reckitt’s claim that Woolite detergent “revives color” is misleading because 20 Woolite detergent does not add color back to fabrics. See Kafka Exh. 37, Procter & Gamble’s 21 Challenge at 14. In August 2019, the NAD issued a decision recommending that Reckitt 22 discontinue its claim that Woolite detergent “revives color.” See Kafka Exh. 41, NAD 23 Recommendation at 16. Reckitt voluntarily agreed to discontinue the “revives color” claim. See 24 id. Reckitt stopped distributing Woolite bottles with the allegedly misleading labels in April 2021. 25 See Kafka Decl. Exh. 2. 26 1 “The Council isn’t a binding arbitral body, an administrative agency, or a judicial tribunal. 27 Rather, it’s a private organization that offers a voluntary, alternative setting for resolving 1 Plaintiff Steven Robert Prescott, a California resident, filed this putative class action in 2 March 2020 on behalf of a California class of consumers. See Compl., ECF 1. He filed a first 3 amended complaint (“FAC”) in May 2020. See FAC, ECF 24. The Court granted in part and 4 denied in part Reckitt’s motion to dismiss the FAC, without leave to amend. See Order, ECF 70. 5 The Court thereafter granted Prescott’s unopposed motion for leave to file a second amended 6 complaint (“SAC”) adding additional named plaintiffs from California, New York, Massachusetts, 7 and Washington, and additional state law claims. See Order, ECF 90; SAC, ECF 91. Pursuant to 8 stipulation, the only named plaintiff from Washington and the only claim under Washington state 9 law were voluntarily dismissed on July 19, 2021. See Stip., ECF 98. 10 The operative SAC now contains the following claims, asserted by named plaintiffs Steven 11 Robert Prescott, Donovan Marshall, Maria Christine Anello, Darlene Kittredge, Treahanna 12 Clemmons, and Susan Elizabeth Graciale, on behalf of the residents of California, New York, and 13 Massachusetts: (1) violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 14 17200 et seq.; (2) violation of California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750 15 et seq.; (3) Quasi-Contract Claim for Restitution under California Law; (4) violation of New York 16 General Business Law § 349 et seq.; (5) violation of New York General Business Law § 350 et 17 seq.; (6) [dismissed]; and (7) violation of Massachusetts General Law Chapter 93A. 18 Plaintiffs seek certification of three classes:
19 California Class: All residents of California who purchased Woolite laundry detergent with a label bearing the phrases “Color Renew” and/or “revives colors” 20 from February 1, 2017 to the present.
21 New York Class: All residents of New York who purchased Woolite laundry detergent with a label bearing the phrases “Color Renew” and/or “revives colors” 22 from February 22, 2018 to the present.
23 Massachusetts Class: All residents of Massachusetts who purchased Woolite laundry detergent with a label bearing the phrases “Color Renew” and/or “revives 24 colors” from February 22, 2017 to the present. 25 II. LEGAL STANDARD 26 Federal Rule of Civil Procedure 23 governs class certification. “The party seeking class 27 certification has the burden of affirmatively demonstrating that the class meets the requirements of 1 marks and citation omitted). “As a threshold matter, a class must first meet the four requirements 2 of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of 3 representation.” Id. 4 “In addition to Rule 23(a)’s requirements, the class must meet the requirements of at least 5 one of the three different types of classes set forth in Rule 23(b).” Stromberg, 14 F.4th at 1066 6 (internal quotation marks and citation omitted); see also Olean Wholesale Grocery Coop., Inc. v. 7 Bumble Bee Foods LLC, 31 F.4th 651, 664 (9th Cir. 2022). “To qualify for the third category, 8 Rule 23(b)(3), the district court must find that ‘the questions of law or fact common to class 9 members predominate over any questions affecting only individual members, and that a class 10 action is superior to other available methods for fairly and efficiently adjudicating the 11 controversy.’” Olean, 31 F.4th at 664 (quoting Rule 23(b)(3)). 12 “Before it can certify a class, a district court must be satisfied, after a rigorous analysis, 13 that the prerequisites of both Rule 23(a) and 23(b)(3) have been satisfied.” Olean, 31 F.4th at 664 14 (internal quotation marks and citation omitted). “[P]laintiffs must prove the facts necessary to 15 carry the burden of establishing that the prerequisites of Rule 23 are satisfied by a preponderance 16 of the evidence.” Id. at 665. “In carrying the burden of proving facts necessary for certifying a 17 class under Rule 23(b)(3), plaintiffs may use any admissible evidence.” Id. 18 III. DISCUSSION 19 Plaintiffs assert that that all four requirements of Rule 23(a) are satisfied in this case, and 20 that certification of a damages class is appropriate under Rule 23(b)(3). Reckitt argues that 21 Plaintiffs have not satisfied the requirements of either Rule 23(a) or Rule 23(b)(3). 22 A. Rule 23(a) Requirements 23 1. Numerosity 24 Rule 23(a)(1) requires that the size of the proposed class be “so numerous that joinder of 25 all the class members is impracticable.” Fed. R. Civ. P. 23(a)(1). “No exact numerical cut-off is 26 required; rather, the specific facts of each case must be considered.” Litty v. Merrill Lynch & Co., 27 No. CV 14-0425 PA (PJWx), 2015 WL 4698475, at *3 (C.D. Cal. Apr. 27, 2015). “[N]umerosity 1 Plaintiffs submit evidence that between February 1, 2017 and September 30, 2020, Reckitt 2 sold approximately bottles of Woolite laundry detergent labeled with the phrases 3 “revives colors” and/or “Color Renew,” and that additional bottles bearing one or both of those 4 phrases were sold between October 1, 2020 and April 4, 2021. See Kafka Decl. ¶ 5 & Exh. 2. 5 Based on the 2020 United States Census populations of California, New York, and Massachusetts, 6 those states’ proportional shares of the Woolite products at issue are approximately 7 bottles for California, approximately bottles for New York, and approximately 8 bottles for Massachusetts. See Kafka Decl. ¶ 6. 9 While Reckitt does not dispute Plaintiffs’ sales figures, Reckitt argues that Plaintiffs have 10 not shown that all putative class members were exposed to the color renew/revive representation. 11 Only 55% of the subject bottles displayed the phrase “COLOR RENEW” on the front label, and 12 Reckitt asserts that Plaintiffs have not shown that purchasers of the other 45% of the bottles 13 looked at the back label. Reckitt’s argument regarding classwide exposure to the color 14 renew/revive representation is addressed below in the context of other Rule 23 requirements. For 15 purposes of the numerosity requirement, it is clear that each of the proposed classes would contain 16 thousands of members, even if the classes were limited to consumers who purchased Woolite 17 bottles bearing the phrase “COLOR RENEW” on the front label. 18 The Court finds that the numerosity requirement is satisfied. 19 2. Commonality 20 Rule 23(a)(2) requires the plaintiff to show that “there are questions of law or fact common 21 to the class.” Fed. R. Civ. P. 23(a)(2). The requirement cannot be satisfied by any common 22 question, however. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). “Commonality 23 requires the plaintiff to demonstrate that the class members have suffered the same injury.” Id. at 24 349-50 (internal quotation marks and citation omitted). The claim of common injury must depend 25 on a common contention “of such a nature that it is capable of classwide resolution – which means 26 that determination of its truth or falsity will resolve an issue that is central to the validity of each 27 one of the claims in one stroke.” Id. at 350. “[C]ommonality only requires a single significant 1 overruled on other grounds by Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 2 31 F.4th 651 (9th Cir. 2022) (en banc).2 3 Plaintiffs argue that all putative class members were injured by Reckitt’s false and 4 misleading labeling of Woolite laundry detergent. Plaintiffs assert consumer protection claims 5 under California’s UCL and CLRA, New York’s General Business Law §§ 349 and 350, and 6 Massachusetts’ General Law Chapter 93A. Plaintiffs also asserts a quasi-contract claim for 7 restitution under California state law. As a federal court sitting in diversity over Plaintiffs’ state 8 law claims, this Court applies the substantive law of the relevant state. See Moore v. Mars 9 Petcare US, Inc., 966 F.3d 1007, 1016 (9th Cir. 2020). Plaintiffs argue that their claims raise a 10 number of common questions, including whether the color renew/revive representation on the 11 Woolite labels is false or deceptive, and whether it is material to a reasonable consumer. 12 All of Plaintiffs’ statutory claims are governed by the reasonable consumer test. See 13 Moore, 966 F.3d at 1017 (California’s UCL and CLRA); In re Scotts EZ Seed Litig., 304 F.R.D. 14 397, 409 (S.D.N.Y. 2015) (New York’s General Business Law §§ 349 and 350); Aspinall v. Philip 15 Morris Companies, Inc., 442 Mass. 381, 395-96 (2004) (Massachusetts’ General Law Chapter 16 93A). “Numerous courts have recognized that a claim concerning alleged misrepresentations on 17 packaging to which all consumers were exposed is sufficient to satisfy the commonality 18 requirement because it raises the common question of whether the packaging would mislead a 19 reasonable consumer.” Broomfield v. Craft Brew All., Inc., No. 17-CV-01027-BLF, 2018 WL 20 4952519, at *5 (N.D. Cal. Sept. 25, 2018). That commonality encompasses a quasi-contract claim 21 for restitution under California law where such claim is based on the same representation giving 22 rise to statutory labeling claims. See id. at *13. Based on these authorities, it appears that 23 Plaintiffs have identified at least two common questions – whether the color renew/revive 24 representation on Woolite detergent labels is false or deceptive, and whether it is material to a 25 reasonable consumer. 26 2 In Olean, the Ninth Circuit en banc “overrule[d] the statement in Mazza that ‘no class may be 27 certified that contains members lacking Article III standing.’” Olean, 31 F.4th at 682 n.32. The 1 Reckitt argues that Plaintiffs have not satisfied the common question requirement because 2 they have neither demonstrated classwide exposure to the color renew/revive representation, nor 3 shown the existence of common evidence that may be used on a classwide basis to prove that the 4 representation is false or misleading. In their reply, Plaintiffs contend that they have demonstrated 5 classwide exposure to the color renew/revive representation and have presented common evidence 6 that the representation is false or misleading. 7 a. Classwide Exposure 8 Reckitt points out that only 55% of the Woolite bottles at issue displayed the “COLOR 9 RENEW” language on the front label, and that 45% of the bottles displayed the “COLOR 10 RENEW” and/or “revives color” language only on the back label. Reckitt argues that “Plaintiffs 11 submitted no evidence showing that proposed class members or the reasonable consumer reviews 12 the back label before purchase, let alone paid attention to the ‘revives color’ language.” Opp. at 8. 13 Reckitt submits evidence that two of the named plaintiffs did not rely on the back label when 14 purchasing Woolite detergent. See Henry Decl. Exh. 8, Clemmons Dep. 143:19-144:11; Exh. 10, 15 Kittredge Dep. 83:2-9. One of the named plaintiffs could not remember whether he saw the back 16 label before purchasing the detergent. See Henry Decl. Exh. 11, Marshall Dep. 138:19-140:14. 17 Based on this record, Reckitt contends that exposure to the color renew/revive representation is 18 not established for purchasers of 45% of the Woolite bottles at issue. 19 “Under California law, class members in CLRA and UCL actions are not required to prove 20 their individual reliance on the allegedly misleading statements.” Bradach v. Pharmavite, LLC, 21 735 F. App’x 251, 254 (9th Cir. 2018). “Instead, the standard in actions under both the CLRA and 22 UCL is whether members of the public are likely to be deceived.” Id. (internal quotation marks 23 and citation omitted). “For this reason, courts have explained that CLRA and UCL claims are 24 ideal for class certification because they will not require the court to investigate class members’ 25 individual interaction with the product.” Id. at 254-55. Claims under New York’s General 26 Business Law §§ 349 and 350 likewise do not require proof of reliance; labeling claims under 27 those statues turn on whether the label “was false, and if so, whether it was likely to mislead a 1 F.R.D. at 409. The same holds true for claims under Massachusetts’ General Law Chapter 93A. 2 See Aspinall, 442 Mass. at 397 (“Neither an individual’s smoking habits nor his or her subjective 3 motivation in purchasing Marlboro Lights bears on the issue whether the advertising was 4 deceptive.”). Consequently, Reckitt’s argument premised on Plaintiffs’ failure to show actual 5 reliance on the back label is misplaced. 6 It is undisputed that every putative class member purchased Woolite bottles displaying the 7 phrases “COLOR RENEW” and/or “revives color.” Plaintiffs argue, and the Court agrees, that 8 these phrases are so similar that they may be viewed collectively as a single representation 9 regarding the effect of Woolite detergent on clothing. See In re First All. Mortg. Co., 471 F.3d 10 977, 992 (9th Cir. 2006) (“The class action mechanism would be impotent if a defendant could 11 escape much of his potential liability for fraud by simply altering the wording or format of his 12 misrepresentations across the class of victims.”). Reckitt does not argue to the contrary. Plaintiffs 13 have established that the color renew/revive representation appeared in one or more forms on each 14 and every bottle of Woolite detergent sold to putative class members. In general, “[w]here the 15 alleged misrepresentation appears on the label or packaging of each item being sold, class-wide 16 exposure to it may be inferred.” Zakaria v. Gerber Prod. Co., No. LA CV15–00200 JAK (Ex), 17 2016 WL 6662723, at *8 (C.D. Cal. Mar. 23, 2016); see also McCrary v. Elations Co., LLC, No. 18 EDCV 13-00242 JGB OP, 2014 WL 1779243, at *10 (C.D. Cal. Jan. 13, 2014) (“By definition, 19 class members were exposed to these labeling claims, creating a common core of salient facts.”). 20 Reckitt correctly notes that some district courts have declined to infer classwide exposure 21 where the alleged misrepresentation is not “prominently displayed on the packaging.” Hadley v. 22 Kellogg Sales Co., 324 F. Supp. 3d 1084, 1099 (N.D. Cal. 2018); see also Zakaria, 2016 WL 23 6662723, at *8. In Hadley, the district court concluded that “the ‘wholesome goodness’ phrase on 24 Nutri-Grain packaging was not sufficiently ‘prominently displayed’ to warrant an inference of 25 class-wide exposure.” Hadley, 324 F. Supp. 3d at 1099-1100. The phrase in question appeared on 26 the back panel of the Nutri-Grain packaging, in small font, and in the middle of a block of text. 27 See id. In Zakaria, the district court likewise declined to infer classwide exposure with respect to 1 *8. The language at issue was in small font, in a block of text, and located on the back or inside 2 cover of the product package. See id. Reckitt urges this Court to follow Hadley and Zakaria in 3 adding a prominence requirement to the general rule that classwide exposure may be inferred 4 where the alleged misrepresentation appears on the label of each product sold. Reckitt argues that 5 “for about 43 percent of the units referred to in the Motion, the only reference to the 6 renews/revives color claim is ‘revives color’ in small font size on the back – by no means 7 ‘prominently displayed’ – within the graphic.” Opp. at 20. 8 In their reply, Plaintiffs cite Krommenhock, in which the district court rejected the 9 prominence requirement articulated in Hadley and Zakaria. See Krommenhock v. Post Foods, 10 LLC, 334 F.R.D. 552, 565 (N.D. Cal. 2020). The Krommenhock court carefully reviewed the 11 reasoning of Hadley and Zakaria, the cases cited by those decisions, and other relevant authorities. 12 See id. Ultimately, the Krommenhock court concluded that California law does not support a 13 requirement that an alleged misrepresentation must be prominently displayed on the label or 14 packaging before classwide exposure may be inferred. See id. This Court agrees with 15 Krommenhock that a prominence requirement is not supported by California law. Reckitt has not 16 cited, nor has the Court discovered, any New York or Massachusetts cases imposing a prominence 17 requirement. Accordingly, the Court finds that all putative class members were exposed to the 18 color renew/revive representation, including those who purchased Woolite bottles displaying only 19 the phrase “revives color” on the back label. 20 Even if prominence were required, the Court would find that requirement met in this case. 21 The back label of all Woolite bottles at issue displayed the phrase “revives colors” as part of a 22 prominent graphic that takes up the entire upper portion of the back label. See Henry Exh. 14, 23 Tyrell Decl. ¶¶ 5-10. The present case therefore is distinguishable from Hadley and Zakaria, 24 which involved language displayed in small font and buried in a block of text. 25 In conclusion, the Court finds that Plaintiffs have established classwide exposure to the 26 color renew/revive representation, meaning that all putative class members “have suffered the 27 same injury” as required by Dukes. See Dukes, 564 U.S. at 349-50. 1 b. Common Evidence 2 Reckitt contends that the commonality requirement is not satisfied because Plaintiffs have 3 not shown the existence of common evidence that may be used on a classwide basis to prove that 4 the color renew/revive representation was false or misleading. “In determining whether the 5 ‘common question’ prerequisite is met, a district court is limited to resolving whether the evidence 6 establishes that a common question is capable of class-wide resolution, not whether the evidence 7 in fact establishes that plaintiffs would win at trial.” Olean, 31 F.4th at 666-67. “While such an 8 analysis may entail some overlap with the merits of the plaintiff’s underlying claim, the merits 9 questions may be considered only to the extent that they are relevant to determining whether the 10 Rule 23 prerequisites for class certification are satisfied.” Id. at 667 (internal quotation marks, 11 citations, and brackets removed). “Rule 23 grants courts no license to engage in free-ranging 12 merits inquiries at the certification stage.” Id. (internal quotation marks and citation omitted). 13 Plaintiffs submit the opinion of their chemistry expert, Dr. Randy Meirowitz, who tested 14 the Woolite products at issue and concluded that they do not renew or revive color in clothing. 15 Reckitt challenges the admissibility of Dr. Meirowitz’s opinion under Federal Rule of Evidence 16 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). For the reasons discussed 17 below, the Court determines that Dr. Meirowitz’s opinion is admissible and capable of 18 establishing on a classwide basis that the color renew/revive representation was false or 19 misleading. 20 Rule 702 provides that a qualified expert may testify if “(a) the expert’s scientific, 21 technical, or other specialized knowledge will help the trier of fact to understand the evidence or 22 to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony 23 is the product of reliable principles and methods; and (d) the expert has reliably applied the 24 principles and methods to the facts of the case.” Fed. R. Evid. 702. The Supreme Court’s trilogy 25 of cases addressing the admissibility of expert testimony – Daubert, 509 U.S. 579, General Elec. 26 Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) – 27 require the district court to play a “gatekeeping” role, ensuring that any expert opinion admitted is 1 the requirements of Rule 702, underlying factual disputes and how much weight to accord the 2 expert’s opinion are questions for the jury. See Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 3 2010). 4 Dr. Meirowitz has a Ph.D. in chemistry and more than 30 years of experience in surface 5 science, including the testing of textiles. See Kafka Decl. Exh. 27, Meirowitz Report ¶¶ 12-14. 6 He designed and oversaw testing to determine whether Woolite laundry detergent renews or 7 revives color in clothing. See id. ¶¶ 38-47. The testing was based on American Association 8 Textile Chemists and Colorists (“AATCC”) protocols, the industry standard for the testing of 9 textiles in the United States. See id. ¶¶ 31-34. Dr. Meirowitz states that in his experience, the 10 standardized tests from the AATCC are widely accepted for use in testing clothing. See id. ¶ 34. 11 The testing was conducted at an accredited laboratory, TexTest Laboratories in Columbus, 12 Georgia. See Kafka Decl. Exh. 27, Meirowitz Report ¶ 40. Dr. Meirowitz elected to use eight 13 samples of cotton clothing for the test, four navy blue t-shirts and four red t-shirts. See id. ¶ 35. 14 The t-shirts were washed with detergent from a 150-ounce bottle of Woolite Darks laundry 15 detergent purchased in 2019. See id. ¶ 36. The front label of the Woolite bottle displayed the 16 phrase “COLOR RENEW,” and the back label displayed the phrases “COLOR RENEW” and 17 “revives colors.” See id. Pursuant to the instructions on the detergent bottle, the t-shirts were 18 machine washed in cold water twenty-five times. See id. ¶ 41. A Datacolor spectrophotometer 19 was used to measure the color of the unwashed t-shirts and then the color of the t-shirts at 1, 2, 10, 20 15, and 25 washes. See id. ¶ 42. All eight t-shirts lost a substantial amount of color after 10 21 washes. See id. ¶ 44. The t-shirts continued to lose a substantial amount of color between 10 and 22 25 washes. See id. Based on this testing, Dr. Meirowitz concluded that Woolite laundry detergent 23 does not renew or revive color in clothing. See id. ¶ 45. 24 Reckitt contends that Dr. Meirowitz’s test is inadmissible under Rule 702 and the Daubert 25 line of cases because it did not analyze the relevant question of whether Woolite laundry detergent 26 renews or revives color in clothing. Plaintiffs allege that they understood the color renew/revive 27 representation to mean that Woolite detergent would bring color back to their clothing. Reckitt 1 and color cannot be brought back to new clothing. In their reply, Plaintiffs point out that Dr. 2 Meirowitz’s testing showed loss of color between 0 and 10 washes, and additional loss of color 3 between 10 and 25 washes. See Kafka Decl. Exh. 27, Meirowitz Report ¶ 44. Thus, even if the 4 first wash did not provide an opportunity for the Woolite detergent to bring color back to the t- 5 shirts, that opportunity was provided at all subsequent washes. By wash 10, the t-shirts no longer 6 qualified as new. However, color continued to be lost between wash 10 and wash 25. The Court 7 finds Reckitt’s challenge to Dr. Meirowitz’s methodology to be without merit. 8 Reckitt asserts that Dr. Meirowitz’s testing was not reliable because he did not control for 9 all potential causes of color change, citing to his deposition testimony. See Henry Exh. 3, 10 Meirowitz Dep. 21:20-22. Prior to the cited portion of his deposition transcript, Dr. Meirowitz 11 had been asked whether he understood that Reckitt’s color renew/revive representation was based 12 on removal of pilling and fuzz from fabric. See id. 20:22-21:9. Dr. Meirowitz stated that he had 13 reviewed documents on Reckitt’s new chemical formulation and its effect on cotton fabric, but 14 that during testing “[t]he probe was into color renewal, not quantifying a method and excluding 15 any other possibilities for color change.” Id. 21:20-22. That testimony does not undermine Dr. 16 Meirowitz’s testing results; rather it confirms that Dr. Meirowitz tested for color renewal and not 17 anything else. 18 Finally, Reckitt argues that Dr. Meirowitz’s opinion is inadmissible because he did not 19 personally wash the t-shirts but instead relied on the report created by TexTest, the accredited 20 laboratory that performed the test Dr. Meirowitz designed. According to Reckitt, the TexTest 21 report is inadmissible hearsay, and any opinion based on that hearsay is inadmissible. Under 22 Federal Rule of Evidence 703, “An expert may base an opinion on facts or data in the case that the 23 expert has been made aware of or personally observed.” Fed. R. Evid. 703 (emphasis added). “If 24 experts in the particular field would reasonably rely on those kinds of facts or data in forming an 25 opinion on the subject, they need not be admissible for the opinion to be admitted.” Id. In this 26 manner, “Rule 703 relaxes, for experts, the requirement that witnesses have personal knowledge of 27 the matter to which they testify.” Claar v. Burlington N. R. Co., 29 F.3d 499, 501 (9th Cir. 1994). 1 particular field would reasonably rely on those kinds of facts or data in forming an opinion on the 2 subject, and if they are applying their training and experience to the sources before them and 3 reaching an independent judgment, as opposed to merely acting as a transmitter for testimonial 4 hearsay.” Erhart v. BofI Holding, Inc., 445 F. Supp. 3d 831, 839 (S.D. Cal. 2020) (internal 5 quotation marks, citations, and brackets omitted). Based on these authorities, the Court finds that 6 Dr. Meirowitz’s reliance on testing performed by TexTest does not render his opinion 7 inadmissible. 8 Caldwell and Mejia, cited by Reckitt, stand for the proposition that “expert witnesses may 9 not simply repeat hearsay without bringing their expertise to bear” on it. Caldwell v. City of San 10 Francisco, No. 12-CV-01892-DMR, 2021 WL 1391464, at *5 (N.D. Cal. Apr. 13, 2021) (internal 11 quotation marks, citation, and brackets omitted); see also United States v. Mejia, 545 F.3d 179, 12 197 (2d Cir. 2008) (“The expert may not, however, simply transmit that hearsay to the jury. . . . 13 Instead, the expert must form his own opinions by ‘applying his extensive experience and a 14 reliable methodology’ to the inadmissible materials.”). Caldwell and Mejia are inapplicable here, 15 because Dr. Meirowitz brought his own expertise to bear in designing and analyzing the testing 16 performed by TexTest. 17 Having determined that Dr. Meirowitz’s opinion is admissible and capable of establishing 18 that the color renew/revive representation was false or misleading, the Court need not address 19 Plaintiffs’ additional proffered evidence of falsity. 20 c. Conclusion Re Commonality 21 The Court finds that Plaintiffs have identified common questions that are central to the 22 validity of all claims remaining in the SAC. The Court finds Reckitt’s arguments that Plaintiffs 23 have not established classwide exposure, or the existence of common evidence, to be without 24 merit. 25 The Court finds that the commonality requirement is satisfied. 26 3. Typicality 27 Rule 23(a)(3) requires that “the [legal] claims or defenses of the representative parties [be] 1 claim arises from the same course of events, and each class member makes similar legal 2 arguments to prove the defendants’ liability.” Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 3 2010) (internal quotation marks and citation omitted). “The requirement is permissive, such that 4 representative claims are typical if they are reasonably coextensive with those of absent class 5 members; they need not be substantially identical.” Just Film, Inc. v. Buono, 847 F.3d 1108, 1116 6 (9th Cir. 2017) (internal quotation marks and citation omitted). However, “[a] court should not 7 certify a class if there is a danger that absent class members will suffer if their representative is 8 preoccupied with defenses unique to it.” Id. (internal quotation marks and citation omitted). 9 Plaintiffs assert that the typicality requirement is satisfied because all claims, including 10 their own and those of putative class members, arise from exposure to the same color renew/revive 11 representation on Woolite labels. Reckitt suggests that three of the six named plaintiffs – 12 Clemmons, Kittredge, and Marshall – are not typical because they did not review the back label 13 before purchase. The cited evidence establishes that Clemmons and Kittredge did not rely on the 14 back label, and that Marshall could not remember whether he saw the back label before purchasing 15 the Woolite detergent. See Henry Decl. Exh. 8, Clemmons Dep. 143:19-144:11; Exh. 10, 16 Kittredge Dep. 83:2-9; Exh. 11, Marshall Dep. 138:19-140:14. This evidence does not render 17 those plaintiffs atypical, however. As discussed above, Plaintiffs’ claims do not require proof of 18 actual reliance on the color renew/revive representation. Plaintiffs need show only that they were 19 exposed to that representation. Plaintiffs have established classwide exposure to the color 20 renew/revive representation, because every bottle of Woolite detergent at issue displayed the 21 phrase “COLOR RENEW” and/or the phrase “revives colors.” 22 The Court finds that the typicality requirement is satisfied. 23 4. Adequacy 24 To determine Plaintiffs’ adequacy as class representatives, the Court “must resolve two 25 questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other 26 class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously 27 on behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) 1 interest. Plaintiffs and their counsel have demonstrated their ability and intention to prosecute this 2 action vigorously on behalf of the class. Reckitt does not challenge Plaintiffs’ adequacy as class 3 representatives. 4 The Court finds that the adequacy requirement is satisfied. 5 B. Rule 23(b)(3) 6 “In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification must 7 show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem Prod., Inc. v. 8 Windsor, 521 U.S. 591, 614 (1997). Plaintiffs seek certification under Rule 23(b)(3). A class may 9 be certified under Rule 23(b)(3) only if “the court finds that the questions of law or fact common 10 to class members predominate over any questions affecting only individual members, and that a 11 class action is superior to other available methods for fairly and efficiently adjudicating the 12 controversy.” Fed. R. Civ. P. 23(b)(3). “Further, parties seeking to certify a Rule 23(b)(3) class 13 must also demonstrate that the class is sufficiently ascertainable.” Datta v. Asset Recovery Sols., 14 LLC, No. 15-CV-00188-LHK, 2016 WL 1070666, at *2 (N.D. Cal. Mar. 18, 2016). 15 1. Ascertainability 16 “[A] class is ascertainable if the class is defined with objective criteria and if it is 17 administratively feasible to determine whether a particular individual is a member of the class.” 18 Huynh v. Harasz, No. 14-CV-02367-LHK, 2015 WL 7015567, at *13 (N.D. Cal. Nov. 12, 2015) 19 (internal quotation marks and citation omitted). Plaintiffs do not expressly address the issue of 20 ascertainability. However, the class definitions in this case rely on objective criteria – purchase of 21 Woolite laundry detergent with a label bearing the phrases “Color Renew” and/or “revives colors” 22 during the relevant class period. Reckitt does not dispute the ascertainability of the putative 23 classes. 24 The Court finds that the putative classes are ascertainable. 25 2. Predominance of Common Questions 26 “When one or more of the central issues in the action are common to the class and can be 27 said to predominate, the action may be considered proper under Rule 23(b)(3) even though other 1 peculiar to some individual class members.” Olean, 31 F.4th at 668 (internal quotation marks and 2 citation omitted). The plaintiffs need not show that they are likely to succeed on the common 3 issues in the case. See id. at 667. “[A] district court cannot decline certification merely because it 4 considers plaintiffs’ evidence relating to the common question to be unpersuasive and unlikely to 5 succeed in carrying the plaintiffs’ burden of proof on that issue.” Id. If the plaintiffs present 6 evidence that could sustain a reasonable jury verdict on the merits of a common question as to all 7 class members, a district court may conclude that the plaintiffs have carried their burden under 8 Rule 23(b)(3). See id. 9 Plaintiffs assert that common questions of law and fact predominate over individual 10 questions in this case. As discussed above in the context of the Rule 23(a)(2) commonality 11 inquiry, Plaintiffs have demonstrated the existence of substantial common questions relating to 12 liability. Plaintiffs have shown that all putative class members were exposed to the color 13 renew/revive representation, and have presented common evidence (Dr. Meirowitz’s opinion) that 14 the representation was false. In addition, Plaintiffs have shown that their statutory claims are 15 governed by an objective reasonable consumer test, and that none of their claims require proof of 16 individual reliance. 17 Reckitt suggests that the graphic on the back label impacts the predominance inquiry, 18 asserting that “[a]ny consumer reviewing the back label would understand that the Woolite 19 Laundry Detergent revives colors by smoothing rough fibers and removing pilling and fuzz.” 20 Opp. at 22. Reckitt argues that “[a]t a minimum, individual issues predominate as to whether a 21 class member viewed the back label, and, if so, whether he or she understood how the product 22 would work and on which types of fabric.” Id. This argument is misplaced, because Plaintiffs 23 need not show that any putative class member actually reviewed and relied on the back label to 24 prevail on their claims. 25 Based on the foregoing, the Court has no difficulty concluding that Plaintiffs have met 26 their burden to show that common questions of law and fact predominate over individual 27 questions relating to liability. That is not the end of the predominance inquiry, however. “Rule 1 F.3d at 1120. Plaintiffs must propose a damages model that is consistent with its theory of 2 liability and capable of measuring damages on a classwide basis. See Comcast Corp. v. Behrend, 3 569 U.S. 27, 34-35 (2013). 4 Plaintiffs’ theory of liability is that the color renew/revive misrepresentation on the 5 Woolite labels caused putative class members to overpay for the detergent. Plaintiffs seek to 6 recover, as restitution or damages, the “price premium” attributable to the color renew/revive 7 feature they thought they were getting but did not receive. “The difference between what the 8 plaintiff paid and the value of what the plaintiff received is a proper measure of restitution in UCL 9 cases.” In re Vioxx Class Cases, 180 Cal. App. 4th 116, 131 (2009). Plaintiff also seeks this 10 measure of restitution under their quasi-contract theory, which is based on the same facts as their 11 UCL and CLRA claims. With respect to the CLRA claim, the price premium is an appropriate 12 measure of recovery for product mislabeling. See Brazil v. Dole Packaged Foods, LLC, No. 12- 13 CV-01831-LHK, 2014 WL 5794873, at *5 (N.D. Cal. Nov. 6, 2014). The price premium also is 14 an appropriate measure of damages under New York’s General Business Law §§ 349 and 350. 15 See Hasemann v. Gerber Prod. Co., 331 F.R.D. 239, 275 (E.D.N.Y. 2019). Finally, the price 16 premium is an appropriate measure of damages under Massachusetts’ General Law Chapter 93A. 17 See Aspinall, 442 Mass. at 399 (approving damages measured by “the difference between the price 18 paid by the consumers and the true market value of the ‘misrepresent[ed]’ cigarettes they actually 19 received”).3 20 Plaintiffs offer the opinion of their damages expert, Gregory Pinsonneault, to quantify the 21 price premium paid by the putative class and attributable to the color renew/revive representation 22 on the Woolite labels. See Kafka Decl. Exh. 20, Pinsonneault Report; Exh. 17, Pinsonneault 23 Reply Report. Mr. Pinsonneault has a Bachelor of Science in computer science, a Bachelor of 24 Arts in economics and mathematics, and a Master of Arts degree in economics. See Kafka Decl. 25 Exh. 20, Pinsonneault Report ¶ 6. He has worked as a consultant for nineteen years and currently 26 3 As an alternative to the price premium, statutory damages are available under New York’s 27 General Business Law §§ 349 and 350 and Massachusetts’ General Law Chapter 93A. Plaintiffs 1 is the managing director and chief executive officer of a financial and economic consulting firm. 2 || See id. 4, 7. 3 Mr. Pinsonneault opines that the price premium each class member paid as a result of the 4 || color renew/revive representation may be calculated as of the purchase price. See Kafka 5 || Decl. Exh. 20, Pinsonneault Report § 64. Mr. Pinsonneault selected the jgj% figure based on 6 || Reckitt’s implementation of increase in its wholesale prices in conjunction with its new 7 || Woolite marketing campaign. Jd. 435. In Mr. Pinsonneault’s view, Reckitt’s internal materials 8 || clearly tie the[j% price increase to the color renew/revive representation. See id. {§ 36-43. Mr. 9 || Pinsonneault concludes that “the Color Renew/Revive misrepresentations were the driver of the 10 || price increase.” Jd. { 43. 11 In reaching that conclusion, Mr. Pinsonneault considered and rejected alternative 12 || explanations for the price increase offered by Christopher Tedesco, Reckitt’s General Manager of 13 || United States Marketing for Hygiene. See Kafka Decl. Exh. 20, Pinsonneault Report 44-53. 14 || Mtr. Tedesco testified at his deposition that the color renew/revive marketing campaign was a 3 15 || factor in the decision to implement the JJ% price increase, but that other factors played into that 16 |] decision as well, including: [Ns 2 ee || 19 || EMM See id. Mr. Pinsonneault asserts Mr. Tedesco’s explanation that Reckitt raised the 20 || price of Woolite duc to TE is not economically rational. 21 See id. { 46. According to Mr. Pinsonneault, i cencrally 22 || will decrease demand for the product, which in turn will lead to a decrease in prices. See id. Mr. 23 Pinsonneault also opines that none of the factors identified by Mr. Tedesco, other than the color 24 || renew/revive campaign, would increase demand for Woolite detergent, and therefore none of those 25 || factors provide an economic justification for the JJ% price increase. See id. JJ 52-53. 26 Mr. Pinsonneault notes that the new Woolite detergent formula appears to be less 27 || expensive than the prior formula. See Kafka Decl. Exh. 20, Pinsonneault Report 54. He 28 || explains that usually a reduction in production costs would be expected to result in lower prices.
1 See id. However, Reckitt raised prices. Mr. Pinsonneault opines that the only change that 2 occurred around the time of the % price increase was the color renew/revive marketing. See id. 3 ¶ 55. He concludes that the % increase is a reasonable measure of the impact that the color 4 renew/revive representation had on the price. See id. ¶ 56. Mr. Pinsonneault acknowledges that 5 there was no price increase on the size of Woolite Gentle Cycle detergent and Woolite 6 Darks detergent. See id. ¶¶ 60-61. However, he concludes that Reckitt’s decision not to 7 implement a previously planned price decrease as to those products is attributable to the color 8 renew/revive campaign. See id. 9 Recognizing that the % increase was with respect to wholesale prices, Mr. Pinsonneault 10 explains that the general economic rule is that price increases flow through to retail prices. See 11 Kafka Decl. Exh. 20, Pinsonneault Report ¶ 62. He opines that Woolite products do not have the 12 characteristics of the types of products for which a wholesale price increase is not passed through 13 to the consumer. See id. Mr. Pinsonneault therefore concludes that it is reasonable to use the 14 % figure to approximate the price premium paid by each class member and attributable to the 15 color renew/revive representation on the label. See id. ¶ 72. He lays out the mechanics of that 16 calculation and states that it may performed on a classwide basis regardless of variations in the 17 actual prices paid by individual class members. See id. ¶ 73. 18 Reckitt contends that Plaintiffs’ “damages model is not tethered to their theory of liability” 19 as required under Comcast in order to satisfy Rule 23(b)(3). Opp. at 23. In Comcast, the plaintiffs 20 initially relied on four theories of antitrust liability and calculated aggregate damages based on 21 those four theories. See Comcast, 569 U.S. at 36-37. However, the district court certified the 22 class based on only one of the four theories. See id. at 35. The plaintiffs did not offer a method of 23 calculating damages for liability stemming from that theory alone. See id. Pointing out that “a 24 model purporting to serve as evidence of damages in this class action must measure only those 25 damages attributable to that [surviving] theory,” the Supreme Court determined that “[i]f the 26 model does not even attempt to do that, it cannot possibly establish that damages are susceptible of 27 measurement across the entire class for purposes of Rule 23(b)(3).” Id. The Ninth Circuit has 1 from the defendant’s actions that created the legal liability.” Vaquero v. Ashley Furniture Indus., 2 Inc., 824 F.3d 1150, 1154 (9th Cir. 2016) (internal quotation marks and citation omitted). In the 3 present case, the damages model articulated by Mr. Pinsonneault is firmly tethered to Plaintiffs’ 4 theory of liability. Plaintiffs seek to recover the price premium they paid for the color 5 renew/revive feature promised on the Woolite labels. The price premium is an appropriate 6 measure of recovery for all of their claims. Mr. Pinsonneault’s damages model is designed to 7 calculate that price premium for each class member. “Therefore, even if the measure of damages 8 proposed here is imperfect, it cannot be disputed that the damages (if any are proved) stemmed 9 from Defendant[’s] actions.” Vaquero, 824 F.3d at 1155. 10 Reckitt’s real quibble with Plaintiffs’ damages model is the method by which Mr. 11 Pinsonneault proposes to calculate the price premium. Reckitt does not assert a Daubert challenge 12 to Mr. Pinsonneault’s opinion. However, Reckitt cites numerous cases in which damages models 13 were rejected, and it argues that Plaintiffs’ damages model suffers from similar defects. In Brazil, 14 a consumer class action based on alleged misrepresentations in product labeling, the district court 15 initially approved the plaintiffs’ use of a regression model to calculate the price premium 16 attributable to the allegedly misleading label statements. See Brazil, 2014 WL 5794873, at *5. 17 The district court subsequently decertified the class in part, finding that the plaintiffs’ regression 18 model failed to isolate a price premium attributable to the labeling claim. See id. In Zakaria, the 19 Ninth Circuit affirmed the district court’s decertification of a product labeling class that initially 20 had been certified based on a damages model using conjoint analysis. Zakaria v. Gerber Prod. 21 Co., 755 F. App’x 623, 624 (9th Cir. 2018). The Ninth Circuit determined that the conjoint 22 analysis showed only how much consumers subjectively valued the labeling at issue, but did not 23 contain any evidence that consumers had paid higher prices based on that labeling. See id. at 624- 24 25. In In re Graphics Processing Units, the district court found that the plaintiffs’ damages model 25 did not support class certification, because it did not demonstrate how pass-through of wholesale 26 pricing to retailers could be established absent a wholesaler-by-wholesaler and re-seller-by-re- 27 seller investigation. See In re Graphics Processing Units, 253 F.R.D. 478, 505 (N.D. Cal 2008). 1 uses Reckitt’s documented % price increase as an approximation for the price premium. Mr. 2 Pinsonneault explains how he isolated the price premium paid for the color renew/revive 3 representation by discounting other explanations for the % price, addressing the problem raised 4 in Brazil. Unlike the model in Zakaria, Mr. Pinsonneault’s model is based on an actual % 5 priced increase implemented by Reckitt, not on a mere hypothetical. In re Graphics Processing 6 Units was an antitrust case in which calculation of damages was complicated by an intricate 7 distribution chain involving multiple distribution channels. That court’s discussion of pass- 8 through in circumstances very different from those in this case is not particularly helpful. 9 “In calculating damages, here restitution, California law requires only that some reasonable 10 basis of computation of damages be used, and the damages may be computed even if the result 11 reached is an approximation.” Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 989 (9th 12 Cir. 2015) (internal quotation marks and citation omitted). In Nguyen, the Ninth Circuit reversed 13 the district court’s denial of class certification in a consumer class action alleging that the 14 defendants sold vehicles with a faulty clutch system. Nguyen v. Nissan N. Am., Inc., 932 F.3d 811 15 (9th Cir. 2019). The plaintiff sought to recover damages equaling the amount he purportedly 16 overpaid in purchasing a vehicle with a defective clutch, and his damages model used the cost of 17 replacing the defective clutch as a proxy for the amount of his overpayment. See id. at 821. The 18 Ninth Circuit found that the plaintiff’s damages model satisfied Comcast, stating that “[w]hether 19 his proposed calculation of the replacement cost is accurate, whether the clutch was actually 20 defective, and whether Nissan knew of the alleged defect are merits inquiries unrelated to class 21 certification.” Id. The Ninth Circuit concluded that, “For now, it is sufficient that Plaintiff has 22 demonstrated the nexus between his legal theory – that Nissan violated California law by selling 23 vehicles with a defective clutch system that was not reflected in the sale price – and his damages 24 model – the average cost of repair.” Id. 25 In the present case, this Court likewise finds that, at the class certification stage, it is 26 sufficient that Plaintiffs have demonstrated a nexus between their legal theory and their damages 27 model. Whether Mr. Pinsonneault’s proposed calculation for the price premium is accurate is a 1 The Court finds that the predominance requirement of Rule 23(b)(3) is satisfied. 2 3. Superiority of Class Action 3 To satisfy Rule 23(b)(3), Plaintiffs must demonstrate that “a class action is superior to 4 other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 5 23(b)(3). Rule 23 lists the following factors that Courts should consider in making this 6 determination: “(A) the class members’ interests in individually controlling the prosecution or 7 defense of separate actions; (B) the extent and nature of any litigation concerning the controversy 8 already begun by or against class members; (C) the desirability or undesirability of concentrating 9 the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a 10 class action.” Fed. R. Civ. P. 23(b)(3). 11 Plaintiffs assert that class members’ interests in bringing separate actions is minimal, as 12 any recovery under such an action would be dwarfed by the cost of litigation. Plaintiffs state that 13 there are no other relevant cases pending. Defendant consented to Plaintiffs’ addition of state law 14 claims from other jurisdiction – New York and Massachusetts – to this suit. Finally, the issues 15 presented by this action are manageable given the defined class and the existence of common 16 proof regarding central issues. Reckitt does not offer any argument regarding these factors and the 17 Court finds Plaintiffs’ arguments to be persuasive. 18 The Court finds that the superiority requirement of Rule 23(b)(3) is satisfied. 19 IV. ORDER 20 (1) Plaintiffs’ motion for class certification is GRANTED. 21 (2) Pursuant to Federal Rule of Civil Procedure 23, the Court hereby certifies the 22 following Classes: 23 (a) California Class: All residents of California who purchased Woolite 24 laundry detergent with a label bearing the phrases “Color Renew” and/or 25 “revives colors” from February 1, 2017 to the present. 26 (b) New York Class: All residents of New York who purchased Woolite 27 laundry detergent with a label bearing the phrases “Color Renew” and/or 1 (c) Massachusetts Class: All residents of Massachusetts who purchased 2 Woolite laundry detergent with a label bearing the phrases “Color Renew” 3 and/or “revives colors” from February 22, 2017 to the present. 4 (3) Excluded from the Classes are the Defendant, any entity in which Defendant has a 5 controlling interest, and Defendant’s officers, directors, legal representatives, 6 successors, subsidiaries, and assigns. Also excluded are any judge, justice, or 7 judicial officer presiding over this matter and the members of their immediate 8 families and judicial staff. 9 (4) The Court appoints Steven Prescott, Donovan Marshall, and Treahanna Clemmons 10 as class representatives for the California Class; Maria Christine Anello as class 11 representative for the New York Class; Darlene Kittredge and Susan Graciale as 12 class representatives for the Massachusetts Class; and Eric Kafka of Cohen 13 Milstein Sellers & Toll as class counsel for the Classes. 14 (5) Notice shall be provided to the Classes as required under Rule 23. 3 15 (6) This order terminates ECF 111. 16
= 17 || Dated: July 14, 2022 1g hem Lh homer BETH LABSON FREEMAN 19 United States District Judge 20 21 22 23 24 25 26 27 28