In Re Clorox Consumer Litigation

Filing 129

ORDER denying 99 Motion to Certify Class; finding as moot 99 Motion to Appoint Counsel ; finding as moot 114 Motion Exclude the Expert Reports of Candace L. Preston and Aimee Drolet Rossi; denying 116 Motion to Strike but granting alternative motion to file surreply. (sclc1, COURT STAFF) (Filed on 7/28/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IN RE CLOROX CONSUMER
LITIGATION

United States District Court

For the Northern District of California

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This Document Relates To:
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ALL ACTIONS
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) Master File No. 12-00280 SC
)
) ORDER DENYING MOTION FOR CLASS
) CERTIFICATION
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I.

INTRODUCTION

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Plaintiffs bring this putative class action against Defendant

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The Clorox Company ("Clorox") in connection with its marketing and

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advertising of Fresh Step cat litter.

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certify five plaintiff sub-classes, each distinguished by the state

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in which the plaintiff purchased his or her cat litter.

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("Mot.") (filed under seal) at 7-14.

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Plaintiffs now move to

ECF No. 89

The motion is fully briefed. 1

ECF Nos. 108-4 ("Opp'n") (filed under seal); 115-4 ("Reply")
(filed under seal); 127 ("Pls. 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 these
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

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Pursuant to Civil Local Rule 7-1(b), the Court finds this matter

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appropriate for disposition without oral argument.

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set forth below, Plaintiffs' motion is DENIED.

For the reasons

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5 II.

BACKGROUND

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A detailed discussion of this case's background appears in the

Consumer Litig., 894 F. Supp. 2d 1224, 1228-31 (N.D. Cal. 2012).

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The basic facts are these: Clorox's Fresh Step cat litter uses

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United States District Court

Court's order on Clorox's motion to dismiss.

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For the Northern District of California

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carbon to eliminate cat litter odors, whereas other cat litter

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products typically use baking soda.

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allegedly conveys that Fresh Step is more effective at eliminating

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cat odors than products that do not contain carbon.

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consumers of Fresh Step from five different states, allege that

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these statements are false and misleading and are contradicted by

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scientific studies.

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See In re Clorox

Clorox's marketing campaign

Plaintiffs,

The lead plaintiffs in the case purport to represent five sub-

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classes, each identified by the state in which the plaintiff

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purchased his or her Clorox cat litter.

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seek certification of sub-classes including all purchasers of Fresh

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Step between October 2010 and the present in the states of

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California, Florida, New Jersey, New York, and Texas.

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14.

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///

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///

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Specifically, Plaintiffs

Mot. at 7-

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.

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1 III.

LEGAL STANDARD

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"The class action is an exception to the usual rule that

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litigation is conducted by and on behalf of the individual named

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parties only."

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2550 (2011) (internal quotations and citations omitted).

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to justify a departure from that rule, a class representative must

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be part of the class and possess the same interest and suffer the

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same injury as the class members."

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citations omitted).

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
"In order

Id. (internal quotations and

"As a threshold matter, and apart from the

United States District Court

For the Northern District of California

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explicit requirements of Rule 23(a), the party seeking class

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certification must demonstrate that an identifiable and

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ascertainable class exists."

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477, 482 (N.D. Cal. 2011).

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Wolph v. Acer Am. Corp., 272 F.R.D.

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;

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20

(3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class; and

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(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a).
A plaintiff also must satisfy one or more of the separate

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prerequisites set forth in Rule 23(b).

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certification under Rule 23(b)(3), which requires that common

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questions of law or fact predominate and that the class action is

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superior to other available methods of adjudication.

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Plaintiffs move for

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"Rule 23 does not set forth a mere pleading standard.

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party seeking class certification must affirmatively

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demonstrate his compliance with the Rule -- that is, he must

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be prepared to prove that there are in fact sufficiently

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numerous parties, common questions of law or fact, etc."

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Dukes, 131 S. Ct. at 2551 (emphasis deleted).

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these factors "generally involves considerations that are

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enmeshed in the factual and legal issues comprising the

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plaintiff's cause of action."

A

Analysis of

Id. at 2552 (internal

United States District Court

For the Northern District of California

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quotations and citations omitted).

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unusual about that consequence: The necessity of touching

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aspects of the merits in order to resolve preliminary matters,

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e.g., jurisdiction and venue, is a familiar feature of

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litigation."

"Nor is there anything

Id.

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IV.

DISCUSSION
Plaintiffs' motion for class certification is denied because

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the class is not ascertainable and because common questions do not

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predominate, as required by Rule 23(b)(3).

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discussion focuses mostly on those issues, but the Court mentions

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the other class certification requirements (at least briefly) for

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the sake of completeness.

Accordingly, this

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A.

Ascertainability

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"A class definition should be precise, objective, and

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presently ascertainable."

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F.R.D. 311, 319 (C.D. Cal. 1998) (internal quotations omitted).

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"While the identity of the class members need not be known at the

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time of certification, class membership must be clearly

O'Connor v. Boeing N. Am., Inc., 184

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ascertainable.

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so that it is administratively feasible to determine whether a

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particular person is a class member."

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(internal citations omitted).

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district courts in the Ninth Circuit on the issue, the undersigned

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has followed the guidance of the Third Circuit in requiring

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plaintiffs to "show, by a preponderance of the evidence, that the

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class is currently and readily ascertainable based on objective

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criteria."

The class definition must be sufficiently definite

Wolph, 272 F.R.D. at 482

Though there is a split among

Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir.

United States District Court

For the Northern District of California

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2013) (internal quotation marks omitted).

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action, like this one, where Plaintiffs intend to rely on retailer

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records, Plaintiffs must produce sufficient evidence to show that

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such records can be used to identify class members.

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ZonePerfect Nutrition Co., 12-2907-SC, 2014 WL 580696, at *4-6

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(N.D. Cal. Feb. 13, 2014) (citing Carrera, 727 F.3d at 308-09).

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Affidavits from consumers alone are insufficient to identify

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members of the class.

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In a consumer class

Sethavanish v.

Carrera, 727 F.3d at 306.

The problem Plaintiffs face is figuring out exactly who

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purchased Fresh Step during the class period.

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Plaintiffs do not propose any method for making this determination.

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None of the named plaintiffs in this case, for example, kept

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receipts for their purchases of Fresh Step.

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("Butler-Furr Depo.") at 39:3-5; 109-2 ("Lenz Depo.") at 14:22-24;

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109-3 ("Luszcz Depo.") at 44:1-13; 109-4 ("Kowalewski Depo.") at

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49:24-50:5; 109-5 ("Doyle Depo.") at 28:16-18. 2

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necessarily remember when they bought cat litter, or which sizes,

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2

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In their motion,

ECF Nos. 108-8

Nor do consumers

One plaintiff, Ms. Kristin Luszcz, apparently began keeping
receipts from her Fresh Step purchases after filing this lawsuit.
Luszcz Depo. at 44:1-6.

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types, or even brands of cat litter they purchased.

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Depo. at 39:6-10; Kowalewski Depo. at 49:2-10; Doyle Depo. at

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27:22-28:9.

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even recall whether she bought Fresh Step during the class period;

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Ms. Doyle testified at her deposition that the last time she bought

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Fresh Step was "around 2009."

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54:14-55:21.

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Fresh Step between October 2010 and the present.

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why affidavits from consumers are insufficient to identify the

United States District Court

For the Northern District of California

10
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Butler-Furr

One of the plaintiffs in this case apparently cannot

Doyle Depo. at 36:14-18, 37:17-21,

But the class includes only persons who purchased
That is precisely

class.
In their reply brief, Plaintiffs indicate that the classes

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might be ascertained by obtaining records from Clorox or from the

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retailers who sell Fresh Step.

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this method of ascertaining the classes will capture "a substantial

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number of Class members."

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Plaintiffs contacted sixteen Fresh Step retailers, which together

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account for about 85 percent of Fresh Step sales nationwide.

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No. 115-8 ("Dearman Decl.") (filed under seal) ¶ 15.

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sixteen retailers, five have not responded or refused to turn over

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any information.

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any method for tracking Fresh Step purchases.

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five retailers who had relevant information and were willing to

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provide it, few provided sufficient information to help Plaintiffs

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ascertain the class.

Id.

Id. ¶¶ 17-19.

Reply at 8.

Plaintiffs assert that

To support their assertions,

ECF

Of those

Six of the retailers do not have
Id. ¶¶ 20.

Of the

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Target is the most helpful for Plaintiffs.

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customers who made purchases with "trackable" cards.

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(filed under seal).

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identifiable in about 67 percent of (approximately 18 million)

It can identify
Id. Ex. 16

In Target's case, the purchaser is

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Fresh Step transactions.

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Similarly, PetSmart can identify 2.1 million Fresh Step customers,

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but it is not clear what portion of their Fresh Step sales those

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identifiable customers represent.

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Dearman Decl. ¶ 21(b), Ex. 16.

Pet Supermarket, Inc. provided a spreadsheet containing

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information on purchasers of Fresh Step since 2009.

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claim that the spreadsheet identifies purchasers for 74,977 units

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of Fresh step between 2010 and present.

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under seal).

Plaintiffs

Id. ¶21(a), Ex. 16 (filed

Defendants counter, however, that "the vast majority"

United States District Court

For the Northern District of California

10

of consumers identified on the spreadsheet are not members of any

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putative class -- only five are from New Jersey, and only ten are

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from New York.

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Supermarket can only identify purchasers who used the company's

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loyalty card program.

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Those 74,977 units represent only a tiny fraction of Fresh Step

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purchases.

ECF No. 117-3 ("Surreply") at 3.

Regardless, Pet

Dearman Decl. Ex. 15 (filed under seal).

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Wal-Mart and Sam's Club estimate that approximately 4.3

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million individuals may have purchased Fresh Step at their retail

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locations or online.

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transactions are the individual customers identifiable.

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Decl. ¶ 21(c).

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However, in only about 18 percent of
Dearman

Clorox itself does not sell Fresh Step directly to consumers,

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but it does have a "Paw Points" loyalty program that Plaintiffs

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argue might be able to identify some class members.

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However, only about five percent of Fresh Step purchases in

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California, New York, New Jersey, Texas, and Florida were

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registered through the Paw Points program.

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larger, the Paw Points program's utility in determining class

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Reply at 8.

Even were this number

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membership would be limited.

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information on the date of purchase, and the location it records is

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the customer's address, rather than the location of the store where

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the product was purchased.

The program does not collect

Dearman Decl. ¶¶ 25-26.

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Plaintiffs' evidence demonstrates quite clearly that there is

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no administratively feasible method for ascertaining the plaintiff

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classes.

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cat litter or how much they bought.

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to Plaintiffs' inquiries, six do not have any way of identifying

Customers do not remember when they purchased Fresh Step
Of the retailers who responded

United States District Court

For the Northern District of California

10

Fresh Step purchasers.

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loyalty programs or store credit cards, but three of those five can

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identify customers in only a small minority of Fresh Step

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transactions.

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Plaintiffs contacted can help identify a substantial number of

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plaintiffs.

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feasible method of determining membership for the vast majority of

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potential members of Plaintiffs' proposed sub-classes.

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Plaintiffs' proposed classes are not ascertainable.

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alone, their motion is DENIED.

Five can track some customers through

Ultimately, only two of the sixteen retailers

The Court finds that there is no administratively

Therefore,

On this ground

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B.

Rule 23(a) Requirements

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Rule 23(a) requires numerosity, commonality, typicality, and

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adequacy of representation.

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Inc., 666 F.3d 581, 588 (9th Cir. 2012).

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1.

See Mazza v. Am. Honda Motor Co.,

Numerosity

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Federal Rule of Civil Procedure 23(a)(1) requires that the

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proposed classes be "so numerous that joinder of all members is

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impracticable."

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considered sufficiently numerous."

Generally, "classes of forty or more are

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Delarosa v. Boiron, Inc., 275

1

F.R.D. 582, 587 (C.D. Cal. 2011).

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sales figures that at least tens of thousands of people purchased

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Fresh Step in each of the relevant states.

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contest these claims.

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requirement of Rule 23 is met.

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7

2.

Plaintiffs demonstrate using

Defendants do not

The Court finds that the numerosity

Commonality

Rule 23 also requires that "there be questions of law or fact

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common to the class."

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mean merely that [all plaintiffs have] suffered a violation of the

Fed. R. Civ. P. 23(a)(2).

"This does not

United States District Court

For the Northern District of California

10

same provision of law. . . .

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common contention . . . .

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be of such a nature that it is capable of classwide resolution --

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which means that determination of its truth or falsity will resolve

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an issue that is central to the validity of each one of the claims

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in one stroke."

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2551 (2011).

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permissively."

18

Cir. 1998).

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Their claims must depend upon a

That common contention, moreover, must

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

Nonetheless, "Rule 23(a)(2) has been construed
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

Plaintiffs argue that there are a number of common questions

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of law and fact that govern the claims of all members of the

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proposed classes.

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that Fresh Step is superior to other cat litter brands -- such as

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the truthfulness and materiality of those claims, and whether they

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were likely to deceive a reasonable consumer.

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response, Clorox argues that those questions are not actually

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common to all members of the proposed classes.

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proposed classes include all purchasers of Fresh Step.

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argues that some Fresh Step purchasers likely never saw the

These questions mostly concern Clorox's claims

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Mot. at 18.

In

Plaintiffs'
Clorox

1

allegedly misleading statements, did not rely on them, or did not

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actually find them to be false.

3

questions regarding those claims are not common to the entire

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class.

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Therefore, Clorox contends,

The Court need not resolve this issue.

Rule 23(b)(3) includes

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a related, but additional, requirement that these common questions

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predominate over questions affecting only individual class members.

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"The commonality preconditions of Rule 23(a)(2) are less rigorous

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than the companion requirements of Rule 23(b)(3)."

Hanlon, 150

United States District Court

For the Northern District of California

10

F.3d at 1019.

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least one of these questions is common to the proposed classes.

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But, as discussed in Part IV.C.1, below, the Court finds that the

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questions Plaintiffs cite as common to the classes do not

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predominate over individual concerns.

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16

3.

Consequently the Court assumes arguendo that at

Typicality

The Ninth Circuit has interpreted the typicality requirement,

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like the commonality requirement, permissively.

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requires that the class representatives' claims be "reasonably co-

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extensive with those of absent class members; they need not be

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substantially identical."

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that Plaintiffs' claims are not typical because consumers of Fresh

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Step used and experienced the product differently.

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one plaintiff claims that Fresh Step did not work at all, while

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another says it was as effective as any other brand of cat litter

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(just not better).

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("Sterritt Depo.") at 131:6-14; see also Opp'n at 39-40.

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The Court finds these arguments unconvincing.

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Typicality

Hanlon, 150 F.3d at 1020.

Clorox argues

For example,

See Lenz Depo. at 76:4-19; ECF No. 109-1

"In determining

whether typicality is met, the focus should be on the defendants'

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conduct and plaintiff's legal theory, not the injury caused to the

2

plaintiff.

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suffer the same injury as the named class representative."

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v. Fireman's Fund Ins. Co., 231 F.R.D. 391, 396 (N.D. Cal. 2005).

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All of the claims that plaintiffs bring here are similar: they all

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allege that they saw Clorox's allegedly misleading statements,

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purchased Fresh Step because of those statements, paid more for

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Fresh Step than they would have for other brands, and did not find

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Fresh Step to work better than other brands.

Typicality does not require that all class members
Simpson

See Reply at 13.

United States District Court

For the Northern District of California

10

Clorox's alleged conduct and Plaintiffs' legal theories are the

11

same, regardless of variations in their individual experiences with

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Fresh Step.

13

Of course, these similarities apply only to the extent that

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class members have any claim at all.

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are hopelessly overbroad and include many persons who likely never

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saw the allegedly misleading statements.

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therefore could not have relied on the alleged misrepresentations

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to purchase Fresh Step.

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for the over breadth of the proposed classes is the predominance

20

issue (again, see Part IV.C.1, below).

21
22

4.

Plaintiffs' proposed classes

Those class members

However, the clearest analytical framework

Adequacy of Representation

The Ninth Circuit applies a two-part test to determine the

23

adequacy of class representation.

First, the representative

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plaintiffs and their counsel must not have conflicts of interest

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with other class members.

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and their counsel must prosecute the action vigorously on behalf of

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the class.

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2003).

Second, the representative plaintiffs

Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir.

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1

There is no evidence of conflicts of interest between the lead

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plaintiffs, their counsel, and other class members.

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that members of the proposed classes have claims against Clorox,

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those claims all arise under the same legal theories and

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substantially similar facts.

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their theories of liability or legal arguments will create any sort

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of conflict.

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9

To the extent

Thus, there is no indication that

With regard to the second part of the test, there is again
nothing to suggest that the lead plaintiffs or their counsel will

United States District Court

For the Northern District of California

10

fail to adequately represent the class.

11

experienced class action litigators who have prosecuted this

12

litigation since it was filed in early 2012.

13

Plaintiffs' attorneys are

Clorox argues in a footnote that Plaintiffs do not adequately

14

represent their sub-classes for a variety of reasons including lack

15

of typicality, lack of membership in the proposed classes, criminal

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history, and credibility concerns.

17

Court denies Plaintiffs' motion on other grounds, it declines to

18

examine these specific claims.

Opp'n at 40 n.19.

Because the

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C.

Rule 23(b)(3) Requirements

20

In addition to satisfying the requirements of Rule 23(a), a

21

class action must fit at least one of the categories defined in

22

Rule 23(b).

23

under Rule 23(b)(3).

24

find that "questions of law or fact common to class members

25

predominate over any questions affecting only individual members,

26

and that a class action is superior to other available methods for

27

fairly and efficiently adjudicating controversy."

28

23(b)(3).

Plaintiffs assert that this class action qualifies
Mot. at 22.

12

That Rule requires the Court to

Fed. R. Civ. P.

1

1.

2

Predominance

The burden of demonstrating that common questions predominate

3

lies with the party seeking class certification.

4

Research Inst., Inc., 253 F.3d 1180, 1188 (9th Cir. 2001).

5

Plaintiffs argue that questions common to all class members

6

predominate here.

7

that Fresh Step is superior to other cat litter brands.

8

18.

9

variety of reasons, including that many, or even most, members of

Zinser v. Accufix

These questions mostly concern Clorox's claims
Mot. at

Clorox argues that common issues do not predominate for a

United States District Court

For the Northern District of California

10

the proposed classes did not see, much less rely upon, the

11

allegedly misleading superiority claims.

12

Court finds that these individual questions predominate; Plaintiffs

13

cannot demonstrate that enough members of the proposed classes saw

14

the allegedly misleading messages.

15

Opp'n at 25-30.

The

This inquiry is complicated by the fact that Plaintiffs have

16

amended their complaint, adding new statements they claim were

17

misleading to consumers.

18

identified allegedly misleading statements in Clorox's television

19

commercials.

20

certain portions of their class certification motion under seal,

21

Plaintiffs filed their third amended complaint, alleging that some

22

variants of Fresh Step packaging also included misleading

23

statements.

24

complaint still defines the beginning of the class period by the

25

airdate of the first television commercials, and the bulk of

26

Plaintiffs' allegations still focuses on the commercials.

27

6-9, 33-39.

28

///

Plaintiffs' original complaint only

ECF No. 1 ¶¶ 1-8.

Five days after moving to file

ECF No. 93 ("TAC") ¶¶ 2-9.

13

However, the third amended

Id. ¶¶

1

Clorox argues that the television commercials reached only a

2

very limited audience.

3

ran for a total of only sixteen months.

4

in mid-2011, several months before this class action was filed,

5

Clorox commissioned an advertising analytics company to assess the

6

commercials' effectiveness.

7

people are seeing, or possibly remembering, the advertising."

8

ECF No. 108-25, at CL1560 (filed under seal); Opp'n at 9-10.

9

Plaintiffs counter that the misleading statements also appear on

The four commercials Plaintiffs identify
Reply at 1.

Additionally,

The results indicated that "not enough

United States District Court

For the Northern District of California

10

Fresh Step packaging, resulting in a "uniform message to

11

consumers."

See

12

Reply at 1.

That is not the case.

The allegedly misleading statements are

13

limited to claims that Fresh Step eliminates odors better than

14

other brands because it contains carbon.

15

allege that statements that Fresh Step contains carbon, or even

16

that claims that carbon eliminates odor, were misleading.

17

According to the complaint, only claims that Fresh Step is superior

18

to other brands because of its carbon content is misleading.

19

so-called "superiority message" appeared only on the back of some

20

Fresh Step packaging during the proposed class period.

21

provide two examples of such packaging; Clorox has submitted ten

22

versions of Fresh Step packaging that express no superiority

23

claims. 3

24

3

25
26
27
28

The complaint does not

This

Plaintiffs

Plaintiffs do not produce any evidence as to the

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,
Clorox 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 Decl.") Exs. 39-44, 50-53.

14

1

percentage of Fresh Step units that included the allegedly

2

misleading messages.

3

only 11 percent of consumers read the back panel of cat litter

4

packaging. 4

5

Moreover, Clorox has provided evidence that

ECF No. 108-41, at CL5029 (filed under seal).

The effect that this lack of a consistent message has on

6

Plaintiffs' motion varies according to state law.

7

protection laws in California, Texas, New York, New Jersey, and

8

Florida differ significantly in the protection they offer to

9

potential class action plaintiffs.

The consumer

Generally speaking, however,

United States District Court

For the Northern District of California

10

two concepts are crucial: exposure and causation.

11

plaintiffs must be exposed to allegedly misleading statements, and

12

those statements must cause them harm.

13

though the required proof of causation varies greatly; indeed, some

14

states require reliance rather than causation.

15

Jersey law infers causation in many instances, while Texas

16

generally requires proof that each individual plaintiff relied on

17

the allegedly misleading statements.

18

between reliance and exposure, and they offer no individualized

19

proof of either.

20

presumption of reliance in some states, a plaintiff can only

21

reasonably be presumed to rely upon information he actually

22

received.

23

evidence that most members of the proposed classes probably never

24

4

25
26
27
28

That is,

All states require both,

For example, New

Plaintiffs do not distinguish

Though Plaintiffs may be entitled to a class-wide

The problem Plaintiffs face is that there is powerful

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.

15

1

saw the allegedly misleading statements.

2

commercials ran for only a small part of the class period, and the

3

superiority claims appeared in small print on the back of a

4

minority of Fresh Step packages.

5

the various states' causation or reliance requirements, Plaintiffs

6

simply cannot demonstrate that the proposed classes were uniformly

7

exposed to the allegedly misleading messages.

8

to analyze each proposed sub-class by state.

9

i.

The television

Regardless of the generosity of

The Court proceeds

California

United States District Court

For the Northern District of California

10

Under California law, a class-wide presumption of reliance

11

upon an allegedly misleading message may be appropriate in some

12

cases.

13

members relied on Clorox's odor superiority misrepresentation."

14

Reply at 10.

15

case for the proposition that "[i]t is well-settled in the Ninth

16

Circuit that class-wide reliance is presumed where a

17

misrepresentation is 'material.'"

18

Plaintiffs meant to argue that California Supreme Court precedent

19

governs the application of California law when federal courts apply

20

it. 5

21

the case they cite for a much broader proposition than it supports.

Plaintiffs urge the Court to "presume[] that all class

Bizarrely, Plaintiffs cite a California Supreme Court

Id.

It is possible that

Even if that were Plaintiffs' intended argument, they read

22
23
24
25
26
27
28

5

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., 268 F.R.D. 365,
376 (N.D. Cal. 2010)). The issue here is not standing but
predominance, and the Ninth Circuit has made clear that they are
distinct inquiries. See Mazza, 666 F.3d at 595-96 (class had
standing despite lack of proof of reliance or injury, but lack of
evidence of reliance still meant that individual questions
predominated).

16

1

Plaintiffs appear, remarkably, to argue that any materially

2

misleading product advertisement is automatically presumed under

3

California law to reach and influence all of the product's

4

customers.

5

298, 326-27 (Cal. 2009)).

6

II was much more limited, and it applied only to reliance, not

7

exposure.

8

who actually saw a materially misleading advertisement relied upon

9

it.

See Id. (citing In re Tobacco II Cases, 46 Cal. 4th
The presumption established in Tobacco

That is, it may be justified to presume that consumers

However, Tobacco II does not mean that Plaintiffs are entitled

United States District Court

For the Northern District of California

10

to a presumption that every purchaser of Fresh Step during the

11

class period was exposed to the misleading statements.

12

Tobacco II involved cigarette advertising, and presumptions of

13

exposure and reliance were justified by a "decades-long campaign of

14

the tobacco industry to conceal the health risks of its product."

15

Tobacco II, 46 Cal. 4th at 327.

16

state courts and federal courts in the Ninth Circuit -- when

17

applying California law -- have refused to presume so broadly in

18

other contexts.

19

reliance not justified under California law where it was likely

20

that "many class members were never exposed to the allegedly

21

misleading advertisements"); ConAgra Foods, C 12-01633 CRB, 2014 WL

22

2702726, at *14 (N.D. Cal. June 13, 2014) (examining treatment of

23

Tobacco II in the Ninth Circuit and reaching same conclusion);

24

Cohen v. DIRECTV, Inc., 178 Cal. App. 4th 966, 973 (Cal. Ct. App.

25

2009) ("An inference of classwide reliance cannot be made where

26

there is no showing that representations were made uniformly to all

27

members of the class.").

28

///

Since Tobacco II, both California

See, e.g., Mazza, 666 F.3d at 595 (presumption of

17

1

"In the absence of the kind of massive advertising campaign at

2

issue in Tobacco II, the relevant class must be defined in such a

3

way as to include only members who were exposed to advertising that

4

is alleged to be materially misleading."

5

A sixteen-month television advertising campaign combined with

6

messages in small print on the back of a small minority of Fresh

7

Step packaging does not even approach the "massive advertising

8

campaign" at issue in Tobacco II.

9

which includes all purchasers of Fresh Step in California over a

Mazza, 666 F.3d at 596.

Plaintiffs' proposed class --

United States District Court

For the Northern District of California

10

period of almost four years -- is not defined so as to include only

11

members who were exposed to the allegedly misleading material.

12

Without any evidence that Clorox included its superiority message

13

on a significant portion of Fresh Step products, or that consumers

14

actually saw it, Plaintiffs have no basis for their claim that

15

Clorox presented a uniform message to its customers.

16

ConAgra Foods, 2014 WL 2702726, at *14 (variations in labeling of

17

food products precluded cohesion among class members necessary for

18

class-wide presumption of reliance).

19

See also

The Court finds that Plaintiffs are not entitled to a class-

20

wide presumption of reliance.

21

their classes to include only persons exposed the allegedly

22

misleading advertisement.

23

"common questions of fact do not predominate where an

24

individualized case must be made for each member showing reliance."

25

Id. at 596.

26

is DENIED because issues common to all class members do not

27

predominate over questions applicable only to individual members.

28

///

Therefore, Plaintiffs must define

Because Plaintiffs fail to do so,

Plaintiffs' motion to certify the California sub-class

18

1
2

ii.

Texas

Plaintiffs' Texas sub-class brings a claim under the Texas

3

Deceptive Trade Practices -- Consumer Protection Act Section

4

17.50(a)(1) ("DTP-CPA").

5

requires a showing of reliance.

6

Individualized proof is required for Plaintiffs' claim under the

7

DTP-CPA.

8

(Tex. App. 2000) ("This claim requires individualized proof because

9

reliance is an essential element of this DTPA claim.").

Pls. Supp. Brief. at 6.

The DTP-CTA

Tex. Bus. & Com. Code § 17.50(B).

See Peltier Enters., Inc. v. Hilton, 51 S.W.3d 616, 624

By

United States District Court

For the Northern District of California

10

requiring individual proof of reliance, the Texas Supreme Court

11

"did not entirely preclude class actions in which reliance was an

12

issue, but it did make such cases a near-impossibility."

13

Guar. Life Ins. Co. v. Pina, 165 S.W.3d 416, 423 (Tex. App. 2005).

Fid. &

14

Plaintiffs' only response is to urge the court to "infer[]

15

that no reasonable consumer would pay more for cat litter that said

16

it provided superior odor control if it did not, in fact, provide

17

that benefit."

18

sort of inference is inappropriate under Texas law.

19

S.W.3d at 424 ("Despite the fact that the misrepresentation clearly

20

occurred and the purchases were then made by all class members, the

21

class also had to show that every purchaser relied on the

22

misrepresentation in making the purchase.").

23

inference were permitted, Clorox has provided sufficient evidence

24

to rebut any claim that the inference would apply uniformly across

25

the Texas sub-class.

26

protection laws has precluded class certification due to lack of

27

predominance in cases analogous to this one.

28

Schein, Inc. v. Stromboe, 102 S.W.3d 675, 694 (Tex. 2002) ("[T]he

Pls. Supp. Brief at 7 (emphasis in original).

That

See Pina, 165

Even if such an

This strict interpretation of Texas consumer

19

See, e.g., Henry

1

plaintiffs in this case have failed to show that individual issues

2

of reliance do not preclude the necessary finding of

3

predominance . . . ."); Pina, S.W.3d at 425 ("[A]ppellees failed to

4

show that individualized determinations of reliance would not

5

predominate over common questions of law or fact."); Ford Motor Co.

6

v. Ocanas, 138 S.W.3d 447, 454 (Tex. App. 2004) ("[A]ppellee failed

7

to show that individualized determinations will not predominate

8

over common questions of law or fact . . . ."). 6
The Court finds that Texas law also precludes a presumption of

9

United States District Court

For the Northern District of California

10

reliance in Plaintiffs' favor.

11

Plaintiffs' motion as to the Texas sub-class because issues common

12

to all class members do not predominate over questions applicable

13

only to individual members.

14

iii.

Accordingly, the Court DENIES

New York

The New York sub-class brings claims under New York General

15
16

Business Law Sections 349 and 350.

Neither of these claims

17

includes a reliance requirement. 7

18

that "[i]n a class action alleging deceptive acts and practices and

19

false advertising, the proof must show that each plaintiff was

20

reasonably deceived by the defendant's misrepresentations or

21

omissions and was injured by reason thereof."

Even so, New York law requires

Solomon v. Bell Atl.

22
6

23

These cases applied Texas Rule of Civil Procedure 42(b)(3), which
is virtually identical to Federal Rule of Civil Procedure 23(b)(3).

24

7

25
26
27
28

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., 18 N.Y.3d 940, 941 (N.Y. 2012)
("To the extent that the Appellate Division order imposed a
reliance requirement on General Business Law §§ 349 and 350 claims,
it was error.").

20

1

Corp., 9 A.D.3d 49, 52 (N.Y. App. Div. 2004).

2

that "causation does not require individualized proof and can be

3

resolved on a classwide basis where, as here, a misrepresentation

4

is made uniformly to the class."

5

Plaintiffs are stymied by the fact that the alleged

6

misrepresentations were not made uniformly to the class.

7

Mot. at 13.

Plaintiffs argue

Once again,

Solomon illustrates this problem as it applies to cases, like

8

this one, where allegedly misleading statements did not necessarily

9

reach every member of a putative class.

The Solomon court held

United States District Court

For the Northern District of California

10

that "class certification is not appropriate where the plaintiffs

11

do not point to any specific advertisement or public pronouncement

12

by the [defendants] which was undoubtedly seen by all class

13

members."

14

Tobacco Co., Inc., 252 A.D.2d 1, 9 (N.Y. App. Div. 1998), aff'd, 94

15

N.Y.2d 43 (N.Y. 1999)).

16

York cases in denying class certification:

Solomon, 9 A.D.3d at 53 (citing Small v. Lorillard

Federal courts have followed these New

17
18
19
20

Plaintiffs' proposed class makes no attempt to limit the
class
to
persons
who
saw
or
heard
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.

21
22

In re Ford Motor Co. E-350 Van Prods. Liab. Litig. (No. II), CIV.A.

23

03-4558, 2012 WL 379944, at *14 (D.N.J. Feb. 6, 2012).

24

plaintiffs in Ford, Solomon, and Small, Plaintiffs in this case

25

failed to limit their proposed classes to persons who saw or heard

26

a common misrepresentation.

27

plaintiffs did not all see the same advertisements; some saw no

28

advertisements at all."

Like the

As in Solomon, "the individual

Solomon, 9 A.D.3d at 53.

21

Nor do

1

Plaintiffs point to any specific advertisement that was seen by all

2

class members.

3

commercials and statements that appeared on a small minority of

4

Fresh Step packaging.

5

whatsoever as to which or how many members of their proposed

6

classes ever saw these misrepresentations.

7

limit any of their proposed classes to persons who saw these

8

alleged misrepresentations.

9

predominate over individual issues under New York law, either.

Rather, Plaintiffs point to a series of television

Plaintiffs have produced no evidence

Nor do they attempt to

As a result, common questions do not

United States District Court

For the Northern District of California

10

Plaintiffs' motion to certify the New York sub-class is therefore

11

DENIED.

12
13

iv.

New Jersey

The parties agree that New Jersey imposes an "ascertainable

14

loss" requirement, rather than a reliance element through its

15

Consumer Fraud Act ("NJCFA").

16

Brief at 8-9; see also Elias v. Ungar's Food Prods., Inc., 252

17

F.R.D. 233, 239 (D.N.J. 2008) ("In place of the traditional

18

reliance element of fraud and misrepresentation, we have required

19

that plaintiffs demonstrate that they have sustained an

20

ascertainable loss.") (quoting Int'l Union of Operating Eng'rs

21

Local No. 68 Welfare Fund v. Merck & Co., Inc., 192 N.J. 372, 391

22

(N.J. 2007)).

23

alleging three elements: (1) unlawful conduct; (2) an ascertainable

24

loss; and (3) a causal relationship between the defendants'

25

unlawful conduct and the plaintiff's ascertainable loss.

26

192 N.J. at 389.

27
28

Pls. Supp. Brief at 5-6; Defs. Supp.

Thus stating a claim under the NJCFA requires

Merck,

To establish the required causal relationship, the New Jersey
plaintiffs rely upon "a presumption of reliance and/or causation"

22

1

developed in Varacallo v. Massachusetts Mutual Life Insurance Co.,

2

752 A.2d 807, 817-18 (N.J. Super. Ct. App. Div. 2000).

3

specifically dealt with that presumption in situations where

4

"omissions of material fact are common to the class."

5

However, at least one federal court has extended the Varacallo

6

presumption to affirmative misrepresentations.

7

F.R.D. at 238.

8

extended Varacallo, Plaintiffs in this case are still not entitled

9

to that presumption.

Varacallo

Id. at 817.

See Elias, 252

Even assuming that the Elias court correctly

In Elias, the court wrote that the allegedly

United States District Court

For the Northern District of California

10

misleading "statements to each purchaser are finite and readily

11

identifiable."

12

"defendants' conduct subjected each purchaser to the same wrongful

13

course of conduct and thereby produced the same claims, supported

14

by the same evidence and responded to by defendants with the same

15

defenses."

Id.

Additionally, the Elias court found that

Id. at 238-39.

16

The record simply does not support such a finding here.

The

17

alleged misrepresentations were made in television advertisements

18

that ran for about 16 months of the nearly four-year class period

19

and in small print on the back of a minority of Fresh Step

20

packagings.

21

Jersey sub-class never saw the allegedly misleading claims.

22

Consequently, Clorox's statements to each purchaser are not readily

23

identifiable; Clorox's conduct did not subject each purchaser to

24

the same wrongful conduct; and individualized evidence will be

25

required to support the New Jersey plaintiffs' claims.

26

individual questions preclude a finding that questions common to

27

the New Jersey sub-class predominate over individualized issues.

28

Plaintiffs' motion to certify the New Jersey sub-class is DENIED.

It is likely that the majority of members of the New

23

Those

1
2

v.

Florida

Florida consumer protection law does not require reliance but

3

does require causation.

The Florida Deceptive and Unfair Trade

4

Practices Act ("FDUTPA") permits a person "who has suffered a loss

5

as a result of a violation of this part" to recover actual damages.

6

Fla. Stat. § 501.211(2) (emphasis added).

7

the reliance issue is Davis v. Powertel, Inc., 776 So. 2d 971, 973

8

(Fla. Dist. Ct. App. 2000) ("A party asserting a deceptive trade

9

practice claim need not show actual reliance on the representation

One key Florida case on

United States District Court

For the Northern District of California

10

or omission at issue.").

11

been criticized for its failure to analyze the causation element.

12

See Pop's Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677, 686-87

13

(S.D. Fla. 2008) (collecting cases).

14

Powertel court has since clarified that "[i]t does not follow,

15

however, that because class litigation is possible in a statutory

16

action for a deceptive trade practice, that it will always be

17

appropriate. . . . We did not suggest otherwise in Powertel."

18

Egwuatu v. S. Lubes, Inc., 976 So. 2d 50, 53 (Fla. Dist. Ct. App.

19

2008).

20

be impractical because there would be many differences in the facts

21

supporting the claims of the individual plaintiffs. This conclusion

22

was based on the fact that the defendants have employed a variety

23

of methods over the years to inform customers [of the alleged

24

misrepresentation]."

25

However, the Powertel decision has since

Equally important, the

In Egwatu, the court concluded "that class litigation would

Id.

Similarly, Plaintiffs allege here that Clorox employed a

26

variety of methods over the years -- three different television

27

commercials and two varieties of Fresh Step packaging -- to claim

28

that Fresh Step is superior to other brands.

24

The Court finds that,

1

as in Egwatu, there will be "many differences in the facts

2

supporting the claims of the individual plaintiffs."

3

members of the proposed Florida sub-class never saw the alleged

4

misrepresentations.

5

the Florida sub-class has a claim against Clorox will therefore

6

depend upon whether that person actually saw the misrepresentation.

7

If a class member never saw Clorox's superiority message, it is

8

impossible that he suffered damages as a result of Clorox's

9

conduct.

Id.

Many

Determining whether any individual member of

The Court finds that questions common to the Florida sub-

United States District Court

For the Northern District of California

10

class do not predominate over such individualized issues.

11

Accordingly, Plaintiffs' motion to certify the Florida sub-class is

12

DENIED.

13
14

2.

Measurement of Damages on a Class-Wide Basis

The Supreme Court has interpreted Rule 23(b)(3) predominance

15

to include a requirement that plaintiffs establish "that damages

16

are capable of measurement on a classwide basis."

17

Behrend, 133 S. Ct. 1426 (2013).

18

whether Plaintiffs had made that showing.

19

submitted two expert reports, one of which includes a class-wide

20

damages measurement.

21

Rpt.") (filed under seal).

22

Plaintiffs' expert reports on the grounds that the experts used

23

unreliable methods.

24

(unredacted version filed under seal).

25

Plaintiffs' motion on other grounds, the thorough examination of

26

the experts' reports required to resolve this objection is

27

unnecessary.

28

therefore DENIED as moot.

Comcast Corp. v.

The parties disagree as to
Plaintiffs have

See Mot. at 24-25; ECF No. 89-6 ("Preston
Clorox has moved to exclude both of

ECF Nos. 114 (redacted version), 108-6
Because the Court denies

Clorox's motion to exclude the expert testimony is

25

1
2

3.

Superiority of Class Action

The final Rule 23(b)(3) requirement is that a class action is

3

superior to other available methods for fairly and effectively

4

adjudicating the controversy.

5

superiority of the class action are: (a) the class members'

6

interests in individually controlling the prosecution or defense of

7

separate actions; (b) the extent and nature of any litigation

8

concerning the controversy already begun by or against class

9

members; (c) the desirability or undesirability of concentrating

Relevant to determining the

United States District Court

For the Northern District of California

10

the litigation of the claims in the particular forum; and (d) the

11

likely difficulties in managing a class action.

12

23; see also ConAgra Foods, 2014 WL 2702726, at *23-24.

13

Fed. R. Civ. P.

The problems Plaintiffs face with ascertainability and

14

predominance are both pertinent to superiority as well.

The

15

immense difficulty of determining class membership will make

16

managing this case as a class action extremely complicated.

17

alone may be sufficient to preclude a finding that a class action

18

is the superior method for resolving this case.

19

2014 WL 2702726, at *24 (finding it "not at all clear" that a class

20

action was superior because "Plaintiffs have not proposed an

21

adequate means of identifying each class member, which products

22

each class member purchased, and how many products each class

23

member purchased").

24

Step packaging during the proposed class period, and the fact that

25

most class members likely never saw the allegedly misleading

26

statements at all, create individualized questions that render a

27

class action unmanageable.

That

See ConAgra Foods,

Additionally, the variations in Clorox's Fresh

See id. (variations in product labels

28

26

1

during the proposed class period were relevant to manageability of

2

class action).

3
4

V.

CONCLUSION
For the reasons set forth above, Plaintiffs' motion for class

5

certification is DENIED with respect to all five proposed sub-

6

classes.

7
8

IT IS SO ORDERED.

9

United States District Court

For the Northern District of California

10
11

Dated:

July 28, 2014
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

27