I. INTRODUCTION
Plaintiffs bring this putative class action against Defendant The Clorox Company (“Clorox”) in connection with its marketing and advertising of Fresh Step cat litter. Plaintiffs now move to certify five plaintiff sub-classes, each distinguished by the state in which the plaintiff purchased his or her cat litter. ECF No. 89 (“Mot.”) (filed under seal) at 7-14. The motion is fully briefed.
II. BACKGROUND
A detailed discussion of this case’s background appears in the Court’s order on Clorox’s motion to dismiss. See In re Clorox Consumer Litig.,
The lead plaintiffs in the case purport to represent five sub-classes, each identified by the state in which the plaintiff purchased his or her Clorox cat litter. Specifically, Plaintiffs seek certification of sub-classes including all purchasers of Fresh Step between
III. LEGAL STANDARD
“The class action is an exception to the usual rale that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, — U.S. —,
Under Rule 23(a), four prerequisites must be satisfied for class certification:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a).
A plaintiff аlso must satisfy one or more of the separate prerequisites set forth in Rule 23(b). Plaintiffs move for certification under Rule 23(b)(3), which requires that common questions of law or fact predominate and that the class action is superior to other available methods of adjudication.
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes,
IV. DISCUSSION
Plaintiffs’ motion for class certification is denied because the class is not ascertainable and because common questions do not predominate, as required by Rule 23(b)(3). Accordingly, this discussion focuses mostly on those issues, but the Court mentions the other class certification requirements (at least briefly) for the sake of completeness.
A. Ascertainability
“A class definition should be precise, objective, and presently ascertainable.” O’Connor v. Boeing N. Am., Inc.,
In their reply brief, Plaintiffs indicate that the classes might be ascertained by obtaining records from Clorox or from the retailers who sell Fresh Step. Reply at 8. Plaintiffs assert that this method of ascertaining the classes will capture “a substantial number of Class members.” Id. To support their assertions, Plaintiffs contacted sixteen Fresh Step retailers, which together account for about 85 percent of Fresh Step sales nationwide. ECF No. 115-8 (“Dearman Deck”) (filed under seal) ¶ 15. Of those sixteen retailers, five have not responded or refused to turn over any information. Id. ¶¶ 17-19. Six of the retailers do not have any method for tracking Fresh Step purchases. Id. ¶¶ 20. Of thе five retailers who had relevant information and were willing to provide it, few provided sufficient information to help Plaintiffs ascertain the class.
Target is the most helpful for Plaintiffs. It can identify customers who made purchases with “trackable” cards. Id. Ex. 16 (filed under seal). In Target’s case, the purchaser is identifiable in about 67 percent of (approximately 18 million) Fresh Step transactions. Dearman Deck ¶ 21(b), Ex. 16. Similarly, PetSmart can identify 2.1 million Fresh Step customers, but it is not clear what portion of their Fresh Step sales those identifiable customers represent.
Pet Supermarket, Inc. provided a spreadsheet containing information on purchasers of Fresh Step since 2009. Plaintiffs claim that the spreadsheet identifies purchasers for 74,977 units of Fresh step between 2010 and present. Id. ¶ 21(a), Ex. 16 (filed under seal). Defendants counter, however, that “the vast majority” of consumers identified on the spreadsheet are not members of any putative class — only five are from New Jersey, and only ten are from New York. ECF No. 117-3 (“Surreply”) at 3. Regardless, Pet Supermarket can only identify purchasers who used the company’s loyalty card program. Dearman Deck Ex. 15 (filed under seal). Those 74,977 units represent only a tiny fraction of Fresh Step purchases.
Wal-Mart and Sam’s Club estimate that approximately 4.3 million individuals may have purchased Fresh Step at their retail locations or online. However, in only about 18 percent of transactions are the individual customers identifiable. Dearman Deck ¶ 21(c).
Clorox itself does not sell Fresh Step directly to consumers, but it does have a “Paw Points” loyalty program that Plaintiffs argue might be able to identify some class members. Reply at 8. However, only about five percent of Fresh Step purchases in California, New York, New Jersey, Texas, and Florida were registered through the Paw Points program. Even were this number larger, the Paw Points program’s utility in determining class membership would be limited. The program does not collect information on the date of purchase, and the location it records is the customer’s address, rather than the location of the store where the product was purchased. Dearman Deck ¶¶ 25-26.
Plaintiffs’ evidence demonstrates quite clearly that there is no administratively feasi
B. Rule 23(a) Requirements
Rule 23(a) requires numerosity, commonality, typicality, and adequacy of representation. See Mazza v. Am. Honda Motor Co., Inc.,
1. Numerosity
Federal Rule of Civil Procedure 23(a)(1) requires that the proposed classes be “so numerous that joinder of all members is impracticable.” Generally, “classes of forty or more are considered sufficiently numerous.” Delarosa v. Boiron, Inc.,
2. Commonality
Rule 23 also requires that “there be questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). “This does not mean merely that [all plaintiffs have] suffered a violation of the same provision of law____ Their claims must depend upon a common contention____ That common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, — U.S. —,
Plaintiffs argue that there are a number of common questions of law and fact that govern the claims of all members of the proposed classes. These questions mostly concern Clorox’s claims that Fresh Step is superior to other cat litter brands — such as the truthfulness and materiality of those claims, and whether they were likely to deceive a reasonable consumer. Mot. at 18. In response, Clorox argues that those questions are not actually common to all members of the proposed classes. Plaintiffs’ proposed classes include all purchasers of Fresh Step. Clorox argues that some Fresh Step purchasers likely never sаw the allegedly misleading statements, did not rely on them, or did not actually find them to be false. Therefore, Clorox contends, questions regarding those claims are not common to the entire class.
The Court need not resolve this issue. Rule 23(b)(3) includes a related, but additional, requirement that these common questions predominate over questions affecting only individual class members. “The commonality preconditions of Rule 23(a)(2) are less rigorous than the companion requirements of Rule 23(b)(3).” Hanlon,
3. Typicality
The Ninth Circuit has interpreted the typicality requirement, like the commonality requiremеnt, permissively. Typicality requires that the class representatives’ claims be “reasonably eo-extensive with those of absent class members; they need not be substantially identical.” Hanlon,
The Court finds these arguments unconvincing. “In determining whether typicality is met, the focus should be on the defendants’ conduct and plaintiffs legal theory, not the injury caused to the plaintiff. Typicality does not require that all class members suffer the same injury as the named class represеntative.” Simpson v. Fireman’s Fund Ins. Co.,
Of course, these similarities apply only to the extent that class members have any claim at all. Plaintiffs’ proposed classes are hopelessly overbroad and include many persons who likely never saw the allegedly misleading statements. Those class members therefore could not have relied on the alleged misrepresentations to purchase Fresh Step. However, the clearest analytical framework for the over breadth of the proposed classes is the predominance issue (again, see Part IV.C.l, below).
4. Adequacy of Representation
The Ninth Circuit applies a two-part test to determine the adequacy of class representation. First, the representative plaintiffs and their counsel must not have conflicts of interest with other class members. Second, the representative plaintiffs and their counsel must prosecute the action vigorously on behalf of the class. Staton v. Boeing Co.,
There is no evidence of conflicts of interest between the lead plaintiffs, their counsel, and other class members. To the extent that members of the proposed classes have claims against Clorox, those claims all arise under the same legal theories and substantially similar facts. Thus, there is no indication that their theories of liability or legal arguments will create any sort of conflict.
With regard to the second part of the test, there is again nothing to suggest that the lead plaintiffs or their counsel will fail to adequately represent the class. Plaintiffs’ attorneys are experienced class action litigators who have prosecuted this litigation since it was filed in early 2012.
Clorox argues in a footnote that Plaintiffs do not adequately represent their sub-classes for a variety of reasons including lack of typicality, lack of membership in the proposed classes, criminal history, and credibility concerns. Opp’n at 40 n.19. Because the Court denies Plaintiffs’ motion on other grounds, it declines to examine these specific claims.
C. Rule 23(b)(3) Requirements
In addition to satisfying the requirements of Rule 23(a), a class action must fit at least one of the categories defined in Rule 23(b). Plaintiffs assert that this class action qualifies under Rule 23(b)(3). Mot. at 22. That Rule requires the Court to find that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating controversy.” Fed.R.Civ.P. 23(b)(3).
1. Predominance
The burden of demonstrating that common questions predominate lies with the party seeking class certification. Zinser v. Accufix Research Inst., Inc.,
This inquiry is complicated by the fact that Plaintiffs have amended their complaint, adding new statements they claim were misleading to consumers. Plaintiffs’ original complaint only identified allegedly misleading statements in Clorox’s television commercials. ECF No. 1 ¶¶ 1-8. Five days after moving to file certain portions of their class certification motion under seal, Plaintiffs filed their third amended complaint, alleging that some variants of Fresh Step рackaging also included misleading statements. ECF No. 93 (“TAC”) ¶¶ 2-9. However, the third amended complaint still defines the beginning of the class period by the airdate of the first television commercials, and the bulk of Plaintiffs’ allegations still focuses on the commercials. Id. ¶¶ 6-9, 33-39.
Clorox argues that the television commercials reached only a very limited audience. The four commercials Plaintiffs identify ran for a total of only sixteen months. Reply at 1. Additionally, in mid-2011, several months before this class action was filed, Clorox commissioned an advertising analytics company to assess the commercials’ effectiveness. The results indicated that “not enough people are seeing, or possibly remembering, the advertising.” See ECF No. 108-25, at CL1560 (filed under seal); Opp’n at 9-10. Plaintiffs counter that the misleading statements' also appear on Fresh Step packaging, resulting in a “uniform message to consumers.” Reply at 1.
That is not the ease. The allegedly misleading statements are limited to claims that Fresh Step eliminates odors better than other brands because it contains carbon. The complaint does not allege that statements that Fresh Step contains carbon, or even that claims that carbon eliminates odor, were misleading. According to the complaint, only claims that Fresh Step is superior to other brands because of its carbon content is misleading. This so-called “superiority message” appeared only on the back of some Fresh Step packaging during the proposed class period. Plaintiffs provide two examples of such packaging; Clorox has submitted ten versions of Fresh Step packaging that express no superiority claims.
The effect that this lack of a consistent message has on Plaintiffs’ motion varies according to state law. The consumer protection laws in California, Texas, New York, New Jersey, and Florida differ significantly in the protection they offer to potential class action plaintiffs. Generally speaking, however, two concepts are crucial: exposure and causation. That is, plaintiffs must be exposed to allegedly misleading statements, and those statements must cause them harm. All states require both, though the required proof of causation varies greatly; indeed, some states require reliance rather than causation. For example, New Jersey law infers causation in many instances, while Texas generally requires proof that each individual plaintiff relied on the allegedly misleading statements. Plaintiffs do not distinguish between reliance and exposure, and they offer no individualized proof of either. Though Plaintiffs may be entitled to a class-wide presumption of reliance in some states, a
i. California
Under California law, a class-wide presumption of reliance upon an allegedly misleading message may be appropriate in some cases. Plaintiffs urge the Court to “presume[ ] that all class members relied on Clorox’s odor superiority 'misrepresentation.” Reply at 10. Bizarrely, Plaintiffs cite a California Supreme Court case for the proposition that “[i]t is well-settled in the Ninth Circuit that class-wide reliance is presumed where a misrepresentation is ‘material.’ ” Id. It is possible that Plaintiffs meant to argue that California Supreme Court precedent governs the application of California law when federal courts apply it.
Plaintiffs appear, remarkably, to argue that any materially misleading product advertisement is automatically presumed under California law to reach and influence all of the product’s customers. See Id. (citing In re Tobacco II Cases,
Tobacco II involved cigarette advertising, and presumptions of exposure and reliance were justified by a “decades-long campaign of the tobacco industry to conceal the health risks of its product.” Tobacco II,
“In the absence of the kind of massive advertising campaign at issue in Tobacco II, the relevant class must be defined in such a way as to include only members who were exposed to advertising that is alleged to be materially misleading.” Mazza,
The Court finds that Plaintiffs are not entitled to a class-wide presumption of reliance. Therefore, Plaintiffs must define their classes to include only persons exposed the allegedly misleading advertisement. Because Plaintiffs fail to do so, “common questions of fact do not predominate where an individualized case must be made for each member showing reliance.” Id. at 596. Plaintiffs’ motion to certify the California sub-class is DENIED because issues common to all class members do not predominate over questions applicable only to individual members.
ii. Texas
Plaintiffs’ Texas sub-class brings a claim under the Texas Deceptive Trade Practices — Consumer Protection Act Section 17.50(a)(1) (“DTP-CPA”). Pls. Supp. Brief, at 6. The DTP-CTA requires a showing of reliance. Tex. Bus. & Com.Code § 17.50(B). Individualized proof is required for Plaintiffs’ claim under the DTP-CPA See Peltier Enters., Inc. v. Hilton,
Plaintiffs’ only response is to urge the court to “infer[ ] that no reasonable consumer would pay more for cat litter that said it provided superior odor control if it did not, in fact, provide that benefit.” Pis. Supp. Brief at 7 (emphasis in original). That sort of inference is inappropriate under Texas law. See Pina,
The Court finds that Texas law also precludes a presumption of reliance in Plaintiffs’ favor. Accordingly, the Court DENIES Plaintiffs’ motion as to the Texas sub-class because issues common to all class members do not predominate over questions applicable only to individual members.
iii. New York
The New York sub-class brings claims under New York General Business Law Sections 349 and 350. Neither of these claims includes a reliance requirement.
Solomon illustrates this problem as it applies to cases, like this one, where allegedly misleading statements did not necessarily reach every member of a putative class. The Solomon court held that “class certification is not approрriate where the plaintiffs do not point to any specific advertisement or public pronouncement by the [defendants] which was undoubtedly seen by all class members.” Solomon,
Plaintiffs’ proposed class makes no attempt to limit the class to persons who saw or heai’d a common misrepresentation____ Distinguishing between the different representations made to putative class members would require individualized inquiries not suitable for class litigation. Accordingly, this element supports denying class certification.
In re Ford Motor Co. E-350 Van Prods. Liab. Litig. (No. II), CIV.A. 03-4558,
iv. New Jersey
The parties agree that New Jersey imposes an “ascertainable loss” requirement, rather than a reliance element through its Consumer Fraud Act (“NJCFA”). Pis. Supp. Brief at 5-6; Defs. Supp. Brief at 8-9; see also Elias v. Ungar’s Food Prods., Inc.,
To establish the required causal relationship, the New Jersey plaintiffs rely upon “a presumption of reliance and/or causation” developed in Varacallo v. Massachusetts Mutual Life Insurance Co.,
The record simply does not support such a finding here. The alleged misrepresentations were made in television advertisements that ran for about 16 months of the nearly four-year class period and in small print on the baсk of a minority of Fresh Step paekagings. It is likely that the majority of members of the New Jersey sub-class never saw the allegedly misleading claims. Consequently, Clorox’s statements to each purchaser are not readily identifiable; Clorox’s conduct did not subject each purchaser to the same wrongful conduct; and individualized evidence will be required to support the New Jersey plaintiffs’ claims. Those individual questions preclude a finding that questions common to the New Jersey sub-class predominate over individualized issues. Plaintiffs’ motion to certify the New Jersey subclass is DENIED.
v. Florida
Florida consumer protection law does not require reliance but does require causation. The Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) permits a person “who has suffered a loss as a result of a violation of this part” to recover actual damages. Fla. Stat. § 501.211(2) (emphasis added). One key Florida case on the reliance issue is Davis v. Powertel, Inc.,
Similarly, Plaintiffs allege here that Clorox employed a variety of methods over the years — three different television commercials and two varieties of Fresh Step packaging — to claim that Fresh Step is superior to other brands. The Court finds that, as in Egwuatu, there will be “many differences in the facts supporting the claims of the individual plaintiffs.” Id. Many members of the proposed Florida sub-class never saw the alleged misrepresentations. Determining whether any individual member of the Florida sub-class has a claim against Clorox will therefore depend upon whether that person actually saw the misrepresentation. If a class member never saw Clorox’s superiority message, it is impossible that he suffered damages as a result of Clorox’s conduct. The Court finds that questions common to the Florida sub-class do not predominate over such individualized issues. Accordingly, Plaintiffs’ motion to certify the Florida sub-class is DENIED.
2. Measurement of Damages on a Class-Wide Basis
The Supreme Court has interpreted Rule 23(b)(3) predominance to include a requirement that plaintiffs establish “that damages are capable of measurement on a classwide basis.” Comcast Corp. v. Behrend, — U.S. —,
The final Rule 23(b)(3) requirement is that a class action is superior to other available methods for fairly and effectively adjudicating the controversy. Relevant to determining the superiority of the class action are: (a) the class members’ interests in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already begun by or against class members; (c) the desirability or undesirability of сoncentrating the litigation of the claims in the particular forum; and (d) the likely difficulties in managing a class action. Fed.R.Civ.P. 23; see also ConAgra Foods,
The problems Plaintiffs face with aseertainability and predominance are both pertinent to superiority as well. The immense difficulty of determining class membership will make managing this ease as a class action extremely complicated. That alone may be sufficient to preclude a finding that a class action is the superior method for resolving this case. See ConAgra Foods,
Y. CONCLUSION
For the reasons set forth above, Plaintiffs’ motion for class certification is DENIED with respect to all five proposed sub-classes.
IT IS SO ORDERED.
Notes
. ECF Nos. 108-4 ("Opp'n”) (filed under seal); 115-4 (“Reply”) (filed under seal); 127 ("Pis. Supp. Brief"); 128-4 ("Defs. Supp. Brief”) (filed under seal). Clorox has moved to strike new arguments and evidence from Plaintiffs’ reply— mainly regarding ascertainability- — or, in the alternative, for leave to file a surreply. ECF No. 116 ("MTS”). Plaintiffs have opposed thеse motions. ECF No. 118 ("MTS Opp’n”). Because Clorox devoted a large section of its brief to ascertainability, it was appropriate for Plaintiffs to respond. Additionally, one of the cases on which Clorox primarily relies was decided only one day before Plaintiffs filed their motion. Thus the Court is willing to consider the arguments and new evidence that Plaintiffs offer for the first time on reply. However, the Court’s lenience should not deprive Clorox of an opportunity to respond. Clorox’s motion to strike is DENIED, but its alternative motion to file a surreply is GRANTED.
. One plaintiff, Ms. Kristin Luszez, apparently began keeping receipts from her Fresh Step purchases after filing this lawsuit. Luszez Depo. at 44:1-6.
. Clorox asserts that "nearly ten dozen different packagings were used during the proposed class period, almost all of which did not include the carbon superiority language.” Opp’n at 13. However, Clоrox does not cite to the record in support of this proposition. Nonetheless, Plaintiffs do not dispute Clorox’s figure. Plaintiffs provide only two examples of packaging containing the "superiority message,” while Clorox provides ten that do not. See TAC ¶ 5, ECF No. 109 ("Lee Deck”) Exs. 39-44, 50-53.
. At least, that is how Clorox interprets the survey data. See Opp’n at 13. However, the Court’s reading of the evidence is that only 11 percent of customers who read the packaging at all read the back panel. Only 37 percent of customers read the packaging at all, and only 11 percent of those read the back panel. Thus it appears that only about four percent of all cat litter customers read the back panel. Regardless, the percentage of customers who read the back panel is very low.
. Plaintiffs also cite a single case from this District that followed the California case on a different issue, holding that unnamed class members in an action brought under California's Unfair Competition Law need not establish standing. Reply at 10 (citing Chavez v. Blue Sky Natural Beverage Co.,
. These cases applied Texas Rule of Civil Procedure 42(b)(3), which is virtually identical to Federal Rule of Civil Procedure 23(b)(3).
. Plaintiffs' briefs are contradictory on this issue. Compare Mot. at 12 ("A claim under Section 349 does not require a demonstration of reliance, although a claim under Section 350 does.”) with Pls. Supp. Brief at 4 ("Reliance is not an element of either claim.”). According to New York law, the latter statement is accurate. See Koch v. Acker, Merrall & Condit Co.,