ORDER DISCHARGING ORDER TO SHOW CAUSE WHY THE CERTIFIED CLASS SHOULD CONTINUE TO INCLUDE PURCHASERS OF YOPLUS CONTAINED IN THE FOURTH GENERATION PACKAGING
INTRODUCTION & BACKGROUND
Mr. Johnson has brought claims on behalf of himself and putative class members asserting that General Mills, Inc. and Yoplait USA, Inc. (collectively “Defendants”) violated California’s Unfair Competition Law (“UCL”) and Consumers Legal Remedies Act (“CLRA”) by falsely representing that YoPlus yogurt products promote digestive health.
After this Court granted certification, the United States Supreme Court issued a decision in Wal-Mart v. Dukes, — U.S. -,
The issue currently before the Court is whether the class should continue to include fourth generation purchasers. The fourth generation of YoPlus packaging began to appear on retail shelves around January of 2011. While the fourth generation packaging retains the YoPlus name, mentions probiotics (the bacteria alleged to provide the digestive health benefit), and compares YoPlus yogurt to Dannon’s Activia (the leading brand of digestive health yogurt), the packaging does not contain an explicit statement regarding digestive health. (Pl.’s Resp. to OSC, at 3; Id. Ex. B.) Additionally as of December 2, 2011, the YoPlus website continued to state “Yoplait YoPlus Yogurt — Proactive Nutrition Yogurt to Improve Digestive Health” and displayed the fourth generation packaging. (Id. Ex. C.) For the following reasons, the Court finds that the class properly includes fourth generation purchasers, and DISCHARGES the order to show cause.
A. Commonality and Predominance
Defendants assert that keeping fourth generation purchasers in the class would destroy commonality and predominance because, unlike previous packaging, there is no digestive health message explicitly on the package. To satisfy the commonality requirement, the plaintiff must establish that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury,’ ” which “does not mean merely that they have all suffered a violation of the same provision of law.” Wal-Mart Stores, Inc.
Mr. Johnson has presented sufficient facts to show that all of the class members’ claims have at their heart a common contention: Defendants made a material misrepresentation regarding the digestive health benefits of YoPlus that violated the UCL and the CLRA. The class members all assert they were misled by a common advertising campaign that had little to no variation. Mr. Johnson has presented evidence demonstrating that Defendants marketing campaign was prominent and not limited to statements made on the YoPlus packaging, and that the veracity of the digestive health method can be adjudicated once for the class as a whole, even as to fourth generation purchasers. The common questions Mr. Johnson identified still apply to the fourth generation purchasers because the packaging was not the only method of communicating the digestive health message. Moreover, each generation of packaging cannot be assessed in isolation from the marketing message presented previously: Yoplait continued to call their product YoPlus, continued to advertise that it contained probiotics, an ingredient advertised as providing the digestive health message prominently on the package, still made comparisons to Activia, the leading digestive health yogurt, and continued to present an explicit assertion that YoPlus improved digestive health on its website. A purchaser of this package could have reasonably associated Yoplait’s representations regarding digestive health through advertising, the website, and previous packaging and displays with the fourth generation product and purchased it based on that representation. Additionally, Mr. Johnson correctly notes that California law permits him to seek relief for future purchasers of the product who were misled by the lingering impressions made by the advertising campaign. See Consumers Union of U.S., Inc. v. Altar-Dena Certified Dairy, 4 Cal.App.4th 963, 972-73,
Common issues predominate over individual ones, even as to fourth generation purchasers. Regardless of how the message was communicated, the claims brought by Mr. Johnson on behalf of the class under the UCL and the CLRA center around a common question: Did Defendants state a false claim of a digestive health benefit that a reasonable person would have been deceived by, for purposes of the UCL, or would have attached importance to, for purposes of the CLRA? While an individualized determination as to whether each class member purchased YoPlus based on the common advertising campaign may be required to determine whether he or she is entitled to damages, this does not significantly alter the balance of common and individual issues, and does not warrant decertifi-cation. Mr. Johnson has presented evidence of a unitary message, despite the different mechanisms by which it was communicated, and thus he has satisfied the commonality and predominance requirements.
Yoplait also challenges certification as to the fourth generation purchasers because Mr. Johnson, who did not purchase YoPlus in the fourth generation packaging, is not typical of those class members who did. The Court disagrees. Mr. Johnson’s claims are sufficiently typical to satisfy Rule 23(a)(3) even as to fourth generation purchasers. Under the requirement’s “permissive standards,” claims are typical if they are “reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp.,
CONCLUSION
For the foregoing reasons, the Court’s order to show cause is DISCHARGED.
Notes
. Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. See Fed.R.Civ.P. 78; Local Rule 7-15. Accordingly, the hearing set for January 9, 2012, at 1:30 p.m. is hereby vacated and off calendar.
. By "ordinary,” the Court refers to commercially available yogurts that are not specifically marketed as having a digestive health benefit.