Townsend v. Monster Beverage Corp., 303 F. Supp. 3d 1010

Background

Plaintiffs (Townsend, Cross) brought a putative class action under California law (UCL, FAL, CLRA) challenging four on‑label statements on Monster drinks: “Hydrates like a sports drink,” “Re‑hydrate,” “Consume Responsibly…Limit 3 cans/day,” and the “Ideal Combo…” slogan. Ninth Circuit narrowed the case to those four on‑label representations.
Plaintiffs sought certification of two classes (Original Monster Energy purchasers and Monster Rehab purchasers) under Rule 23(b)(3) for damages; parties submitted competing expert surveys and damages models.
Defendants moved to strike/exclude portions of multiple experts (Boedeker, Maronick, Van Liere, Ugone) and objected to new survey evidence submitted with Plaintiffs’ reply; Plaintiffs cross‑moved to exclude parts of defendants’ experts and a declaration by Defendants’ employee (Eva Lilja).
The Court applied Rule 702/Daubert gatekeeping principles but treated many survey‑design criticisms as going to weight rather than admissibility per Ninth Circuit precedent.
The Court admitted only portions of the experts’ work: it permitted Boedeker only as to the Hydrates statement (struck his opinions on the other three statements); struck Maronick’s supplemental Study 2 and portions of his report; struck specific paragraphs of Maronick; struck narrow portions of Van Liere and Ugone reports; denied exclusion of Lilja’s declaration.
On class certification, the Court found Plaintiffs failed Rule 23(b)(3) predominance: Plaintiffs did not prove materiality and common reliance for the challenged statements across the class and their damages model (Boedeker) was unreliable for measuring classwide damages.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Boedeker damages survey/testimony	Boedeker’s conjoint survey measures willingness‑to‑pay and isolates price premium for each challenged statement	Survey altered or used imprecise wording for three statements, had methodological flaws (focalism, omitted attributes) making results unreliable	Struck Boedeker’s opinions as to Re‑hydrate, Consume Responsibly, and Ideal Combo; denied motion as to Hydrates statement only
Admission of Maronick’s supplemental Study 2 (new evidence in reply)	Study 2 bolsters original survey and addresses critiques	Study 2 was new data disclosed on reply, prejudiced Defendants who lacked opportunity to respond	Struck Study 2 and designated paragraphs of supplemental report; struck parts of original report that omitted/altered wording (e.g., omitted “bad”)
Reliability of Maronick survey (interpretation & materiality evidence)	Survey shows how consumers perceive statements; that perception supports materiality	Survey did not measure purchasing impact or purchasers specifically; omitted/altered words (e.g., “bad”) and conflated statements	Struck portions that relied on shortened/altered wording and conclusions about purchasers; otherwise denied motion to strike (survey criticisms go to weight)
Exclusion of Van Liere (Defendants’ rebuttal survey expert)	Van Liere is unqualified for some quantitative critiques and cumulative/redundant	Van Liere is a survey‑methods/statistics/social‑science expert; critiques relevant to Boedeker’s design; only limited paragraphs exceeded his expertise	Excluded Van Liere paragraphs 120–121 (improper quantitative critique); otherwise report admissible
Exclusion of Ugone (Defendants’ economic rebuttal)	Ugone’s pricing analysis flawed (failure to standardize Nielsen data, ignored volume, aggregation issues)	Ugone’s analysis helps assess Boedeker’s model; methodological disputes go to weight not admissibility	Excluded paragraphs 48–56 (where Ugone failed to explain not standardizing Nielsen data); remainder admissible
Exclusion of Lilja declaration (Defendants’ in‑house witness) for Rule 26 non‑disclosure	Defendants failed to disclose Lilja per Rule 26, so declaration and dependent expert uses should be excluded	Lilja had previously submitted a declaration in 2013 on same topics and Plaintiffs themselves identified her in disclosures; non‑disclosure harmless	Denied motion to exclude Lilja’s declaration; not sanctioned under Rule 37
Class certification (Rule 23(b)(3) predominance: materiality & damages)	Plaintiffs rely on Maronick for perception/materiality and Boedeker for classwide damages model	Defendants argue perceptions are varied; surveys don’t show materiality or that representations drove purchases; Boedeker’s model suffers focalism and omitted attributes so cannot tie premium to Plaintiffs’ liability theory	Denied class certification: Plaintiffs failed to prove common materiality/reliance and failed to present a damages model capable of measuring classwide damages tied to their liability theory

Key Cases Cited

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (trial court gatekeeping for expert reliability)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping extends to non‑scientific expert testimony)
Comcast Corp. v. Behrend, 569 U.S. 27 (2013) (plaintiff must present a damages model capable of measuring classwide damages consistent with liability theory)
Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (party seeking class certification must affirmatively demonstrate Rule 23 requirements)
Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011) (materiality standard for California UCL/FAL/CLRA; material misrepresentation gives rise to reliance inference)
In re Tobacco II Cases, 46 Cal.4th 298 (2009) (classwide reliance inference in long‑term advertising campaigns context)
Fortune Dynamic Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025 (9th Cir. 2010) (survey admissibility threshold; many survey design objections go to weight)
Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) (plaintiff need not resolve merits at class stage; expert testimony may be admissible for class‑certification analysis)
Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) (trial court has broad latitude in admitting/excluding expert testimony)