ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CLASS CERTIFICATION; VACATING ORDER TO SHOW CAUSE; SETTING CASE MANAGEMENT CONFERENCE
Re: EOF No. 29-3
I. INTRODUCTION
In this аction challenging the labeling of Jamba Juice home smoothie kits, Plaintiffs Aleta Lilly and David Cox (“Plaintiffs”) have moved to certify the following class: “all
II. BACKGROUND
A. Factual Background
Since 2010, Defendants Jamba Juice Company and Inventure Foods, Inc. (“Defendants”) have produced at-home frozen smoothie kits for sale in retail grocery stores, big box stores, and wholesale clubs throughout California. Class Action Complaint (“Compl.”) ¶¶ 2-3 (ECF No. 1-1). The Smoothie Kits, which come in five flavors, are sold in a three-sided pouch with the words “All Natural” aрpearing prominently on the front of the package. Compl. ¶ 3; see also, Exh. 1 to Declaration of Rosemary M. Rivas. Plaintiffs allege that the Smoothie Kits contain ascorbic acid, xanthan gum, steviol gly-cosides, modified corn starch, and gelatin (the “challenged ingredients”). Compl. ¶¶ 121-29.
Plaintiff Aleta Lilly purchased the “Strawberries Wild” and “Caribbean Passion” smoothie kits from March 2010 to November 2012. Compl. ¶ 12. Plaintiff David Cox purchased the “Caribbean Passion” smoothie kits “within the last three years.” Compl. ¶ 13. Plaintiffs allege that, in making their purchases, they relied on the representation that the smoothie kits are “all natural,” and they believe that because the Smoothie Kits contain the challenged ingredients, the kits are not “all natural.” Compl. ¶¶ 12-13.
B. Procedural History
Plaintiffs Lilly and Cox filed a proposed clаss action complaint in this action in June 2013. The complaint brings causes of action under the California Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq., the California False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500 et seq., the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq., and for breach of warranty pursuant to Cal. Comm. Code § 2313. ¶¶ 42-70.
In November, the Court denied Defendants’ motion to dismiss.
C. Jurisdiction
After reviewing the parties’ responses to the Court’s Order to Show Cause regarding Subject-Matter Jurisdiction, and the evidence submitted in support of those responses, the Court has determined that it has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)(2) & (6), the Class Action Fairness Act of 2005 (“CAFA”). Considering all Proposed Class members’ claims, the “matter in controversy” exceeds $5,000,000, exclusive of interests and costs, and at least one plaintiff and defendant are citizens of diffеrent states. Even though the Proposed Class is composed entirely of California residents, the “local controversy” exception to CA FA jurisdiction does not require dismissal, for reasons persuasively explained in Phillips v. Kaiser Found. Health Plan, Inc.,
D. Legal Standard
Class certification under Rule 23 is a two-step process. First, Plaintiff must demonstrate that the four requirements of 23(a) are met: “numerosity,” “commonality,” “typicality,” and “adequacy.” “One or more members of a class may sue or be sued as representative parties on behalf of all members only if (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 partiеs 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. Pro. 23(a). “Class certification is proper only if the trial court has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has been satisfied.” Wang v. Chinese Daily News, Inc.,
Second, a plaintiff must also establish that one of the bases for certification in Rule 23(b) is met. Here, Plaintiffs invoke 23(b)(3), which requires plaintiffs to prove the elements of “predominance” and “superiority”: “questions of law or fact common to class members predominate over any questions affecting only individual members, and ... a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. Pro. 23(b)(3).
The party seeking class certification bears the burden of demonstrating by a preponderance of the evidence that all four requirements of Rules 23(a) and at least one of the three requirements under Rule 23(b) are met. See Dukes,
In addition, “[wjhile it is not an enumerated requirement of Rule 23, courts have recognized that ‘in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable.’” Vietnam Veterans of Am. v. C.I.A.,
III. ANALYSIS
A. Ascertainability/Definiteness
In their motion, Plaintiffs do not specifically аddress the “ascertainability” requirement. In their opposition, Defendant argues that Plaintiffs have failed to demonstrate the existence of an ascertainable class, and that this failure should defeat class certification. Defendants’ Response to Motion for Class Certification (“Response”) 3-5 (ECF No. 39).
The Court is unaware of the Ninth Circuit or the Supreme Court ever explicitly acknowledging in any published opinion that “ascertainability” or “definiteness” is a required element of class certification that imposes obligations independent of the enumerated Rule 23 factors. But see Berger v. Home Depot USA, Inc.,
However, this Court joins numerous circuit courts and courts of this district in finding that this criterion is an inherent requirement of at least Rule 23(b)(3) class actions.
Courts have examined at least three types of “ascertainability” (or “definiteness”) concerns in determining whether class certification is appropriate. First, “[a]n identifiable class exists if its members can be ascertained by reference to objective criteria.” Manual for Complex Litigation (4th) § 21.222. “The order defining the class should avoid subjective standards (e.g., a plaintiffs state of mind) or terms that depend on resolution of the merits (e.g., persons who were discriminated against).” Id. See, e.g., Xavier v. Philip Morris USA Inc.,
Second, some courts appear to accept the argument, advanced by Defendants here, that the ascertainability analysis requires district courts to deny certification if the class includes any members who will not be able to recover. See Wright & Miller, 7A Fed. Prac. & Proc. Civ. § 1760 (3d ed.) (“Some courts also have considered whether the class definition must excludе anyone who does not have a viable claim.”) For reasons more fully explained in a previous order, the undersigned does not endorse this view. See Rodman v. Safeway, Inc., No. 11-cv-03003-JST,
Third and finally, some courts have denied class certification motions, even when the criteria for class membership are objective, if plaintiffs cannot show at the class certification stage that they will be able to locate the absent class members. In a line of recent cases, the Third Circuit has aсcepted this argument, as has at least one court in this district. Carrera v. Bayer Corp.,
“[I]t appears that pursuant to Garerra in any case where the consumer does not have a verifiable record of its purchase, such as a
• Adopting the Carrera approach would have significant negative ramifications for the ability to obtain redress for consumer injuries. Few people retain receipts for low-priced goods, since there is little possibility they will need to later verify that they made the purchase.
Before rejecting the proposition, however, it is worth considering the reasons that have motivated courts to require a plan to identify specific class members at the class certification stage. Two reasons appear to be paramount.
The first concern is that if it is impossible to actually deliver to class members the notice and relief to which they are entitled, it would be unfair to bind them to any final judgment; and if the class action is insufficient to release absent class members of their claims, it would deprive defendants of the benefit of global peace. See Marcus v. BMW of North Am., LLC,
This concern is legitimate, but our law has long recognized that direct notice to every class member is not always possible. What Rule 23 and the Due Process Clause require is “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. Pro. 23(c)(2)(B); see also Phillips Petroleum Co. v. Shutts,
Plaintiffs here have submitted a detailed plan for notice prepared by a commissioned
There is a second concern that appears to have motivated at least some other courts to require identification of actual class members at the certification stage. This case, like others, will require at least some potential class members to respond to a general notice and then assert their class membership by attesting to the fact that they purchased the challenged products. The Carrera court, among others, objected to this, arguing that “[a] defendant in a class action has a due process right to raise individual challenges and defenses to claims,” and “has a similar, if not the same, due process right to challenge the proof used to demonstrate class membership as it does to challenge the elements of a plaintiff’s claim.”
But Plaintiffs are not proposing to establish the fact or extent of a defendant’s liability through the notice and claim administration process. The notice process is a way to deliver class members their relief, but the amount of liability will be proven at trial. Defendants would certainly be entitled to object to a process through which a nonjudicial administrator “ascertains” each applicant’s class membership on the basis of the applicants’ own self-identification, gives a defendant no opportunity to challenge that determination, and then racks up the defendant’s bill every time an individual submits a form. But the fact and extent of Defendants’ liability will be proven by admissible evidence submitted at summary judgment or at trial, or it will not be proven at all. In other words, it is Plaintiffs’ burden is to establish, with admissible evidence, that Defendants’ challenged labeling practices violated to the law, and to produce evidence of the total damages to which the Class is entitled. Plaintiffs cannot lighten their burden by leaning on the responses to the class notice (unless those responses are provided, in admissible form, as evidence to the Court, subject to Defendants’ right to challenge and object). But neither can Defendants shortcut the class action process by claiming that these responses will have some impact on their liability.
The Carrera court recognized this important distinction, acknowledging Carrera’s argument that “affidavits attesting to class membership will only be used to determine to whom to pay the refund, and in what amount,” and that therefore, any inaccurate claim submissions will not affect the defendant’s due process rights.
Plaintiffs have demonstrated that the class is sufficiently ascertainable.
B. Typicality and Adequacy
Typicality ensures that “the interests of the named representatives align with the interests of the class.” Wolin v. Jaguar Land Rover N. Am. LLC,
“The adequacy-of-representation requirement ‘tend[s] to merge’ with the commonality and typicality criteria of Rule 23(a).” Amchem Products, Inc. v. Windsor,
Named Plaintiffs Lilly and Cox clearly have a similar alleged injury as the rest of the proposed сlass, since they purchased products that are the same as, or very similar to, the products challenged by the rest of the proposed class. Their claims are not based on any conduct that is unique to them. There are no apparent conflicts between the named Plaintiffs, their counsel, and the proposed class, and neither is there any reason to believe they will not prosecute the action vigorously or adequately protect the absent class members’ interests.
Defendants argue that Lilly and Cox are unrepresentative and atypical because they have sometimes consumed other products that contain the ingredients they complain of here. This argument misapprehends the Plaintiffs’ complаint; when Lilly and Cox consumed those other products, they did so with full knowledge of what they were eating, because the ingredients were disclosed. That the named Plaintiffs sometimes consume products with ingredients they challenge in this action does not harm their case any more than a person who sometimes eats ice cream would be deprived of her legal ability to challenge a product falsely labeled to contain no sugar. Defendants also argue that some of Plaintiffs’ deposition testimony indicates they may have purchased Smoothie Kits for reasons other than the “All Natural” label, but this does not make them atypical for purposes of bringing this action, since their consumer actions do not rise or fall on the basis of their particular experience with the product. Finally, Defendants argue that Plaintiff Lilly is subject to a unique defense because, when asked (over objection), “[d]o you think you were harmed, from purchasing and consuming the smoothie kit?,” she answered “no.” Deposition of Aleta Lilly, at 75 (EOF No. 40-1). Plaintiff Lilly’s layperson understanding of the word “harm” has no effect on her legal claim.
Plaintiffs have established typicality and adequacy.
“[C]ourts generally find that the numerosity factor is satisfied if the class comprises 40 or more members.” In re Facebook, Inc., PPC Advertising Litig.,
D. Superiority
A class action must be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. Pro. 23(b)(3). “The superiority inquiry under Rule 23(b)(3) requires determination of whether the objеctives of the particular class action procedure will be achieved in the particular case.” Hanlon v. Chrysler Corp.,
Here, no class members have any significant interest in pursuing individual litigation, the Court is unaware of any already-commenced litigation concerning the controversy, economies of scale make it desirable to concentrate the claims of these California class members in this California forum, and the Court foresees no likely difficulties in managing this case as a class action. Defendants do not dispute that superiority is established, and the Court concludes that it is.
E. Commonality and Predominance
“[F]or purposes of Rule 23(a)(2) [e]ven a single [common] question will do.” Dukes,
In seeking to certifying a Rule 23(b)(3) class, Plaintiff must further show that these common questions “predominate over any questions affecting only individual members.” “Considering whether questions of law or fact common to class members predominate begins ... with the elements of the underlying causes of action.” Erica P. John Fund, Inc. v. Halliburton Co.,
Plaintiffs have demonstrated that there are numerous questions common to the class: whether Defendants’ “All Natural” representations are false and misleading, whether the Challenged Ingredients may legally be included in a product labeled “All Natural,” and whether the representations constitute “unfair” or “unlawful” practices under the UCL, constitute a breach of warranty, or are likely to deceive reasonable consumers in violation of the FAL, CLRA, and UCL. Mot. 10-11. Resolution of these questions, which are common to all class members, “will generate common answers apt to drive the resolution of the litigation.” Dukes,
Plaintiffs further argue that thesе common issues will predominate over any individualized issues. In establishing the elements of a CLRA violation, an inference of common reliance arises if representations are material, and materiality is judged by an objective standard rather than any understandings specific to the individual consumer. Mass. Mut. Life Ins. Co. v. Super. Ct.,
Defendants raise two problems with predominance.
1. Common Definition of “All Natural”
Defendants argue that the term “All Natural” has no definition established by regulation, and that different consumers understand the term to mean different things. Therefore, Defendants argue that since Plaintiffs have failed to establish at this point that the “All Natural” representation is objectively material, reliance will have to be established individually rather than with an inference of common reliance, defeating predominance.
As support for this argument, Defendants cite two opinions by a judgе of the Southern District of California. Astiana v. Kashi Co. (“Kashi”),
2. Damages
Defendants next argue that “Plaintiffs have entirely failed to demonstrate with evidentiary рroof that their damages can be measured on a classwide basis, as required under Comcast Corp. v. Behrend [, — U.S. -,
Plaintiffs propose three methods for calculating damages: (1) restitution of the full
Before turning to that question, however, the Court needs to address Defendants’ suggestion that any damages model Plaintiffs advance also address differences in damages among individual class members as a matter of “predominance.” See Response at 7-8. The Ninth Circuit has recently made clear that Comcast does not impose such a burden. In the first of its two opinions applying Com-cast, that court reversed a district court for denying certificatiоn of a wage-and-hour class on the grounds that class members’ damages were individualized. Leyva v. Medline Indus. Inc.,
Very recently, the Ninth Circuit upheld a district court’s order granting class certification in Jimenez, supra,
But Defendants’ opposition does not rest solely on a lack of predominance. Defendants also argue that certification should be denied because Plaintiffs have failed to submit any evidence establishing that damages can be feasibly and efficiently calculated. After Comcast, this argument has considerable force.
In Leyva, the “[p]laintiff included deposition testimony of Medline’s director of payroll operations, and Medline’s Notice of Removal,” showing “that Medline’s computerized payroll and time-keeping database would enable the сourt to accurately calculate damages and related penalties for each claim.”
It would have been unnecessary for the Ninth Circuit to engage in this analysis if plaintiffs had no obligation of any kind at the class certification stage to demonstrate that their damages models were feasible. Moreover, whatever might have been implicit in Leyva has been made explicit in thorough district court opinions analyzing very similar food labeling class actions. These courts have interpreted Comcast to require considerably more rigor than Plaintiffs have shown here. Astiana v. Ben & Jerry’s Homemade, Inc. (“Ben & Jerry’s ”), No. 10-cv-4387 PJH, 2014 W L 60097, at *11-14 (N.D.Cal. Jan. 7, 2014); Werdebaugh,
The Court concludes that the correct reading of Comcast is that plaintiffs must establish at the certification stage that “damages ... [can] feasibly and efficiently be calculated once the common liability questions are adjudicated.” Leyva,
Defendants here have made such a showing. Plaintiffs seek “full refund” as one remedy, but considering the proper value of a restitution remedy may require the Court to take into account the benefit consumers receive even from a mislabeled product. See In re POM Wonderful,
However, the fact that a class may not be satisfied for purposes of seeking damages does not mean that it cannot be certified at all. In all of the other circuit court decisions cited in Jimenez, the courts of appeal concluded that the cases before them fell outside Comcast’s scope at least in part because the classes were certified only for liability purposes rather than for purposes of considering damages. As the most recent of those cases noted, “the rule of Comcast is largely irrelevant ‘[w]here determinations on liability and damages have been bifurcated’ in accordance with Rule 23(c)(4) and the district court has ‘reserved all issues concerning damages for individual determination.’ ” In re Deepwater Horizon,
Some of the difficulties in determining individual damages may fall away after liability is determined, depending upon which claims (if аny) are successful, and which type or relief the class is entitled to. Since Plaintiff has established that, with the exception of determining damages, all of the required elements of class certification have been met, the Court will exercise its discretion pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure to certify the proposed class solely for purposes of determining liability.
The Court hereby GRANTS Plaintiffs’ motion, insofar as it seeks to certify the proposed class for the purposes of determining liability. The Court also hereby APPOINTS Plaintiffs Aleta Lilly and David Cox as Class Representatives and APPOINTS Finkelstein Thompson LLP and Glancy Binkow & Goldberg LLP as Class Counsel.
The Court hereby SETS a ease management conference in this case for October 15, 2014. A joint case managemеnt statement is due 10 days before the conference.
IT IS SO ORDERED.
Notes
. Plaintiffs’ complaint also seeks to certify an injunctive relief class pursuant to Rule 23(b)(2). Compl. ¶¶ 33, 41, 70, 70(D). In their motion, however, Plaintiffs fail directly to address whether they have established the required criterion for a Rule 23(b)(2) class: that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” At the hearing on this motion, the Court ordered supplemental briefing on the question of whether Plaintiffs have standing to seek injunctive relief. In this order, the Court only addresses Plaintiffs’ motion insofar as they seek certification of a 23(b)(3) damages class; the Court will address the certification of a Rule 23(b)(2) class by separate order.
. Demonstrating that class members can be feasibly identified could be considered a requirement of 23(b)(3)(D)’s “manageability” prong rather than a separate, free-standing requirement of Rule 23 as a whole. See Pierce, 526 F.3d at 1200. If "ascertainability” is properly located within Rule 23(b)(3)(D), it would not be a requirement for Rule 23(b)(1) or 23(b)(2) classes, and it would have less applicability to class action settlements, since, when "[cjonfronted with a request for settlement-only class certification, a
. See Mitch Hedberg, Minibar, on Strategic Grill Locations (Comedy Central Records, 2003) ("I bought a doughnut, and they gave me a receipt for the doughnut. I don’t need a receipt for the doughnut, man. I'll just give you the money, then you give me the doughnut. End of transaction. We don’t need to bring ink and paper into this. I just cannot imagine a scenario where I would have to prove that I got a doughnut. Some skeptical friend? ‘Don't even act like I didn’t get that doughnut. I got the documentation right here.'")
. Defendants argue these issues also endanger commonality, but Mazza held that as long as there is a single common question, "individualized issues raised go to preponderance under Rule 23(b)(3), not to whether there are common issues under Rule 23(a)(2).”