In re Scotts EZ Seed Litigation
2015 U.S. Dist. LEXIS 9116
| S.D.N.Y. | 2015Background
- Scotts sold ~1.5 million EZ Seed packages in California and ~992,000 in New York (2009–2013); packaging bore a prominent claim: "50% Thicker With Half the Water."
- Plaintiffs allege EZ Seed is either worthless (does not grow grass) or that the "50% thicker" claim is false/misleading, and seek to certify California and New York purchaser classes.
- Plaintiffs assert claims under California UCL, FAL, CLRA, and New York GBL §§ 349/350, plus breach of warranty, breach of contract (NY), and unjust enrichment.
- Scotts offered a "No Quibble Guarantee" refund program and moved to exclude plaintiffs’ damages expert. Plaintiffs moved to strike certain defendant evidence.
- The court conducted the Rule 23 analysis, addressing numerosity, commonality, typicality, adequacy, ascertainability, predominance (including damages models), superiority, and motions on expert/evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification under Rule 23(a) and (b)(3) | Plaintiffs seek certification for CA and NY purchasers because common questions (product efficacy and falsity of "50% thicker" claim) predominate | Scotts argued individualized issues (why some consumers failed to grow grass), ascertainability, and that refunds/programs make class relief unnecessary | Court granted certification under Rule 23(a) and 23(b)(3) except as to 23(b)(2); numerosity, commonality, typicality, adequacy, and ascertainability satisfied; superiority met |
| Predominance re: statutory false‑advertising claims (CA UCL/FAL/CLRA; NY GBL §§ 349/350) | Materiality and injury can be proven with common, objective evidence; reliance not required (or is presumed) for CA statutory claims | Scotts contends individualized proof of deception/injury defeats predominance | Court: common issues (truth/misleadingness, materiality, classwide injury/premium) predominate for these statutory claims |
| Predominance re: New York express & common‑law warranty claims | Plaintiffs assert express warranty claims based on uniform package statements | Scotts argues NY warranty claims require individualized "basis of the bargain" reliance inquiries | Held: NY warranty claims require individual reliance inquiries; class certification denied for NY express and common‑law warranty claims |
| Classwide damages models (Dr. Weir) | Proposed three models: full refund (product valueless), price‑premium (premium attributable to "50% thicker" claim), disgorgement of Scotts’ profits | Scotts argued models fail Comcast because they do not tie damages to the legal theory or isolate premium; sought to exclude Dr. Weir | Held: Full‑refund and price‑premium models acceptable at class stage (disgorgement rejected); Daubert exclusion denied but disgorgement model struck; expert methodologies acceptable subject to future merits discovery |
Key Cases Cited
- Wal‑Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (Rule 23 certification requires rigorous, merits‑sensitive analysis)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (damages model must measure damages attributable to class theory)
- Amgen Inc. v. Connecticut Retirement Plans, 133 S. Ct. 1184 (2013) (materiality can be a common question appropriate for class treatment)
- Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) (requirements for predominance and adequacy in class certification)
- In re Initial Public Offerings Sec. Litig., 471 F.3d 24 (2d Cir. 2006) (ascertainability and district court's obligation to make factual findings on Rule 23 requirements)
- Allen v. Hyland’s Inc., 300 F.R.D. 643 (C.D. Cal. 2014) (full‑refund model appropriate when product alleged uniformly ineffective)
- Ebin v. Kangadis Food Inc., 297 F.R.D. 561 (S.D.N.Y. 2014) (ascertainability and common proof for mislabeling claims)