Colucci et al v. ZonePerfect Nutrition Company

Filing 101

ORDER by Judge Samuel Conti denying 65 Motion to Certify Class; denying 86 Motion for Hearing (sclc1, COURT STAFF) (Filed on 2/13/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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KIMBERLY S. SETHAVANISH, on behalf ) Case No. 12-2907-SC
of themselves and all others
)
similarly situated,
) ORDER DENYING MOTION FOR
) CLASS CERTIFICATION
Plaintiff,
)
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v.
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ZONEPERFECT NUTRITION COMPANY,
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Defendant.
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)

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I.

INTRODUCTION
Plaintiff Kimberly S. Sethavanish ("Plaintiff") brings this

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putative class action against Defendant ZonePerfect Nutrition

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Company ("Defendant"), a maker of nutritional snack bars

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("nutrition bars").

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Defendant's nutrition bars, which bear on their labels the

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statement "All-Natural Nutrition Bars," are not all-natural and

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hence misleadingly labeled.

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Plaintiff's fully-briefed motion for class certification.

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65 ("Mot."), 73 ("Pl.'s Supp. Br."), 77 (Opp'n), 82 ("Reply"), 85

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("Def.'s Sur-Reply").

The thrust of Plaintiff's Complaint is that

Now pending before the Court is
ECF Nos.

Also pending before the Court is Defendant's

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fully briefed motion for an evidentiary hearing on class

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certification issues, ECF Nos. 86 ("Evid. Mot."), 88 ("Opp'n to

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Evid. Mot."). 1

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argument.

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motions are DENIED.

The motions are suitable for decision without oral

Civ. L.R. 7-1(b).

For the reasons set forth below, both

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II.

Defendant manufactures, distributes, and sells nutrition bars

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BACKGROUND

(the "ZonePerfect bars") through walk-in and online retailers.

ECF

United States District Court

For the Northern District of California

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No. 1 ("Compl.") ¶ 9.

There are twenty varieties of ZonePerfect

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bars, and they are sold and distributed nationwide in grocery

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stores, health food stores, and other venues.

Id. ¶ 10.

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packaging of all twenty varieties is similar.

See id. ¶ 42.

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front of the packaging is emblazoned with the ZonePerfect logo and

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the legend "All-Natural Nutrition Bars."

The
The

Id.

Plaintiff claims that this "all-natural" representation is

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false and misleading because all varieties of the ZonePerfect bars

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contain one or more of the following ten allegedly non-natural

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ingredients: ascorbic acid; calcium pantothenate; calcium

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phosphates; glycerine; potassium carbonate a/k/a "Cocoa [Processed

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with Alkali]" or "Cocoa Powder [Processed with Alkali]"; pyridoxine

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hydrochloride; disodium phosphate; sorbitan monostearate;

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tocopherols; and xanthan gum.

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that these ingredients are not natural because federal regulations

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define them as "synthetic."

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(list of applicable regulations).

Id. ¶¶ 21-30.

Plaintiff contends

See ECF No. 66 ("Kravec Decl.") Ex. 8

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At the Court's request, the parties also submitted supplemental
briefing on the issue of standing. ECF Nos. 94, 99.

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Beginning on or around September 14, 2007, Plaintiff purchased

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the ZonePerfect bars for her then-fiancé James Collucci (the two

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are now married).

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active-duty member of the United States Marine Corps.

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stationed at Camp Pendleton in San Diego County, California and

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then deployed overseas.

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Colucci a monthly care package.

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Plaintiff would include in these care packages "two multi-bar packs

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of ZonePerfect Nutrition Bars per month, including its Classic

Compl. ¶ 8.

Id.

At the time, Mr. Colluci was an
Id.

He was

During this time, Plaintiff sent Mr.
Id.

At Mr. Colucci's request,

United States District Court

For the Northern District of California

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ZonePerfect 'All-Natural' Nutrition Bars Chocolate Peanut Butter

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flavor."

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2007, Ms. Sethavanish would purchase packs of ZonePerfect Chocolate

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Peanut Butter Bars every four to six weeks from retail stores near

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her home.

Id.

Plaintiff alleges that, beginning on September 14,

See id.

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Plaintiff alleges that Mr. Colucci believed and relied upon

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the "all-natural" representation on the label of the ZonePerfect

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bars when he asked Plaintiff to purchase them for him.

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Plaintiff alleges that, based on the "all-natural" representation,

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she believed that the nutrition bars were made entirely of natural

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ingredients.

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the ZonePerfect bars than she would have had to pay for other

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nutrition bars that were not all natural, and that, had she known

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the truth, she would have purchased another brand of nutrition bar

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that was truly all natural or, lacking that, other non-natural

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nutrition bars that were less expensive.

Id. ¶ 8.

Id. ¶ 7.

Plaintiff alleges that she paid more for

Id.

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Plaintiff asserts claims for (1) common law fraud; (2)-(4)

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unlawful, unfair, and fraudulent business practices in violation of

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the California Unfair Competition Law ("UCL"), Cal. Bus & Prof.

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Code § 17200, et seq.; (5) false advertising in violation of the

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California False Advertising Law ("FAL"), id. § 17500, et seq.; (6)

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violation of the California Consumers Legal Remedies Act ("CLRA"),

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Cal. Civ. Code § 1750, et seq.; and (7) restitution based on quasi

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contract. 2

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class of all persons who purchased ZonePerfect bars in the United

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States on or after September 14, 2007.

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purchases of ZonePerfect bars that were labeled "All-Natural," but

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which contain one or more of the allegedly non-natural ingredients

United States District Court

For the Northern District of California

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Plaintiff now moves this Court to certify a nationwide

The class is limited to

listed above.

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III. LEGAL STANDARD
"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).

"In order

Id. (internal quotations and

Under Rule 23(a), four prerequisites must be satisfied for

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

class certification:

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(1) the class is so numerous that joinder of all members
is impracticable;

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(2) there are questions of law or fact common to the
class;

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(3) the claims or defenses of the representative parties

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Plaintiff's claim for violation of the Magnuson-Moss Warranty Act
was previously dismissed with prejudice. ECF No. 38.

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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.

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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).

Plaintiff moves for

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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 the class action is

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superior to other available methods of adjudication.

United States District Court

For the Northern District of California

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

A party

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seeking class certification must affirmatively demonstrate his

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compliance with the Rule -- that is, he must be prepared to prove

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that there are in fact sufficiently numerous parties, common

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questions of law or fact, etc."

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(emphasis deleted).

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considerations that are enmeshed in the factual and legal issues

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comprising the plaintiff's cause of action."

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quotations and citations omitted).

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about that consequence: The necessity of touching aspects of the

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merits in order to resolve preliminary matters, e.g., jurisdiction

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and venue, is a familiar feature of litigation."

Dukes, 131 S. Ct. at 2551

Analysis of these factors "generally involves

Id. at 2552 (internal

"Nor is there anything unusual

Id.

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IV.

DISCUSSION
Defendant argues that the Court need not address the

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requirements of Rule 23 because (1) Plaintiff has failed to

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establish that she has standing, and (2) Plaintiff has failed to

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establish that the proposed class is ascertainable.

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finds that Plaintiff has satisfied the standing requirements, at

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The Court

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least for class certification purposes.

However, the Court also

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finds that Plaintiff has failed to establish ascertainability.

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Accordingly, her motion for class certification is DENIED. 3

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A.

Standing

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Article III of the United States Constitution provides that

cases and controversies.

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this language requires a plaintiff to establish: (1) "injury in

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fact," (2) "a causal connection between the injury and the conduct

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United States District Court

the judicial power of the United States extends only to proper

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For the Northern District of California

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complained of," and (3) that it is likely "that the injury will be

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redressed by a favorable decision."

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Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotations

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omitted).

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injury in fact, is absent here.

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certification, Plaintiffs must demonstrate, not merely allege, that

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they have suffered an injury-in-fact to establish Article III

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standing to bring the claims asserted on behalf of the Main Class."

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Evans v. Linden Research, Inc., C 11-01078 DMR, 2012 WL 5877579, at

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*6 (N.D. Cal. Nov. 20, 2012).

The doctrine of standing which flows from

Lujan v. Defenders of

Defendant contends that the first element of standing,
"On a motion for class

At the pleading stage, "[a] consumer who relies on a product

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label and challenges a misrepresentation contained therein can

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[satisfy the economic injury] requirement . . . by alleging . . .

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that he or she would not have bought the product but for the

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misrepresentation."

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330 (Cal. 2011).

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present evidence supporting such allegations.

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Kwikset Corp. v. Sup. Ct., 51 Cal. 4th 310,

At class certification, the plaintiff must
See Evans, 2012 WL

Defendant also argues that typicality, adequacy, and predominance
are lacking. The Court need not reach these issues since it finds
that the proposed class is not ascertainable.

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5877579, at *6.

Plaintiffs may establish economic injury even if

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the product in question is not "defective, overpriced, or of

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inferior quality."

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Kwikset, the California Supreme Court found that the plaintiffs had

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established an economic injury where they had purchased locksets

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based on the allegedly false representation that the products were

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made in the United States.

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had not received the benefit of the bargain:

Kwikset, 51 Cal. 4th at 331.

For example, in

The court explained that the plaintiffs

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United States District Court

For the Northern District of California

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Plaintiffs selected Kwikset's locksets to purchase in
part because they were "Made in U.S.A."; they would
not have purchased them otherwise; and, it may be
inferred, they value what they actually received less
than either the money they parted with or working
locksets that actually were made in the United States.
They bargained for locksets that were made in the
United States; they got ones that were not. The same
points may be made generally with regard to consumers
who
purchase
products
in
reliance
on
misrepresentations. The observant Jew who purchases
food represented to be, but not in fact, kosher; the
Muslim who purchases food represented to be, but not
in fact, halal; the parent who purchases food for his
or her child represented to be, but not in fact,
organic, has in each instance not received the benefit
of his or her bargain.

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Id. at 332.

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Likewise, Plaintiff asserts that she would not have purchased

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ZonePerfect bars but for the "all natural" claim on the packaging.

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Plaintiff pleads that "had [she] known the truth that [Defendant]'s

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Nutrition Bars were not all natural, she would not have purchased

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[Defendant]'s Nutrition Bars, but would have purchased another

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brand of nutrition bar that was truly all natural or, if one was

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not available, would have purchased other non-natural nutrition

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bars that were less expensive."

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testified that Mr. Colucci requested that she send him ZonePerfect

Compl. ¶ 8.

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Plaintiff also

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bars because he wanted to eat an all-natural product while he was

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deployed.

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considered purchasing something other than the ZonePerfect bars,

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Plaintiff responded: "I went to the all natural section -- or the

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nutrition bar section, looked for ones that had "all natural," and

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just included them in the packages [to Mr. Colucci]."

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The Court finds this sufficient to establish injury.

When asked whether she

Id. at 34.

Defendant argues that Plaintiff did not suffer injury because

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ECF No. 96 Ex. A at 24.

the alleged misrepresentations actually saved her money.

Opp'n at

United States District Court

For the Northern District of California

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9.

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purchases Pure Protein bars, products Plaintiff does not believe to

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be all natural.

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actually more expensive than ZonePerfect bars.

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what Plaintiff now purchases for her household, she has testified

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that she was interested in purchasing all-natural nutrition bars

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for Mr. Colucci while he was deployed.

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not prove that she paid a premium for ZonePerfect bars in order to

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establish standing.

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would not have purchased the product but for Defendant's alleged

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misrepresentation.

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natural, and she allegedly received one that was not.

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Defendant points out that Plaintiff has testified that she now

Id.

Defendant contends that Pure Protein bars are
But regardless of

Moreover, Plaintiff need

It is enough that she has asserted that she

She bargained for a nutrition bar that was all

Defendant also urges the Court to reject Plaintiff's claim

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that she and Mr. Colucci valued all-natural products.

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of her motion for class certification, Plaintiff has submitted a

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declaration stating she did not purchase any nutrition bar that was

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not labeled as "All Natural" during the class period.

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Defendant argues that this declaration is a sham.

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out that Plaintiff has alleged that she was willing to purchase

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In support

ECF No. 95.

Defendant points

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non-natural nutrition bars, so long as they were less expensive

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than all-natural alternatives.

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out that, at her deposition, Plaintiff testified that she

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previously purchased a number of other nutrition bars, including

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Power Bars and Luna Bars, but she does not recall whether these

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products are all natural.

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Plaintiff also testified she has always been willing to eat foods

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with artificial and synthetic ingredients.

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Compl. ¶ 8.

Defendant also points

ECF No. 78-5 at 69-70, 122, 126-27.

Id. at 181.

The Court agrees that there is some tension between

United States District Court

For the Northern District of California

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Plaintiff's declaration, her pleadings, and her deposition

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testimony.

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is unclear when Plaintiff purchased the other nutrition bars

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referenced by Defendant, as well as whether Plaintiff purchased

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these products for Mr. Colucci while he was deployed.

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the fact that Plaintiff sometimes purchases non-natural products

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does not preclude the possibility that she also values all-natural

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products.

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to assess the credibility of Plaintiff's statements regarding her

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preference for all-natural foods.

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make such a determination on a motion for class certification.

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For these reasons, the Court finds that Plaintiff has set

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forth sufficient evidence to establish standing for the purposes of

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class certification.

However, those statements are not irreconcilable.

It

Moreover,

In any event, Defendant is essentially asking the Court

It would be inappropriate to

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B.

Ascertainability

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"As a threshold matter, and apart from the explicit

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

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must demonstrate that an identifiable and ascertainable class

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exists."

Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482 (N.D. Cal.

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2011).

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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

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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).

United States District Court

For the Northern District of California

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"A class definition should be precise, objective, and
O'Connor v. Boeing N. Am., Inc., 184

The class definition must be sufficiently definite

Wolph, 272 F.R.D. at 482

Defendant argues that Plaintiff has failed to define an

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objectively ascertainable class.

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that it overwhelmingly sells to retailers, not directly to

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consumers, and that there are no records identifying any but a

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small fraction of consumers who have purchased ZonePerfect bars in

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the last several years.

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would be infeasible to determine whether a putative class member

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actually purchased Defendant's products and in what quantity.

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Plaintiff responds that a class need not be so ascertainable that

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every potential member can be identified at class certification.

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Reply at 2.

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sufficient since it allows identification of class members through

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objective criteria.

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Opp'n at 10.

Id. at 11.

Defendant contends

Thus, Defendant reasons, it

Id.

Plaintiff further argues that its class definition is

Id.

The Third Circuit addressed a similar dispute in Carrera v.

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Bayer Corp., 727 F.3d 300 (3d Cir. 2013), a putative class action

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brought on behalf of the purchasers of the defendant's diet

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supplement.

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because there was insufficient evidence to show that retailer

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records could be used to identify class members.

The court found that the class was not ascertainable

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Id. at 308-09.

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The court also rejected the plaintiff's contention that class

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membership could be determined based on affidavits by putative

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class members, reasoning this process deprived the defendant of the

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opportunity to challenge class membership.

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Additionally, the court held that fraudulent or inaccurate claims

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could dilute the recovery of absent class members, and, as a

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result, absent class members could argue that they were not bound

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by a judgment because the named plaintiff did not adequately

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represent them.

United States District Court

Id. at 310.

Courts in this circuit are split on the issue.

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For the Northern District of California

Id. at 309.

Xavier v.

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Philip Morris USA Inc., 787 F. Supp. 2d 1075 (N.D. Cal. 2011)

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(Alsup J.), echoes the Third Circuit's decision in Carrera.

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Xavier, the plaintiff moved to certify a class of asymptomatic

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smokers and recent quitters who were more than fifty years old and

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had at least a twenty-pack-year smoking history. 4

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The Court denied the motion, holding that the class members could

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not be ascertained in a reliable manner.

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Specifically, "[t]here [was] no reliable way in which smokers

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themselves could document their long-term smoking histories."

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Like the Third Circuit, the Court declined to rely on affidavits to

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determine class membership, reasoning that the procedure could

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invite fraudulent or inaccurate claims and undermine the finality

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of any judgment with respect to absent class members.

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91.

In

Id. at 1078.

Id. at 1089.

Id.

Id. at 1090-

The Court reached a different result in Ries v. Arizona

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Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) (Seeborg J.), a

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The plaintiff defined "pack-year" as "the product of the number
of cigarette packs smoked per day and the number years the smoking
habit has continued." Xavier, 787 F. Supp. 2d at 1078.

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consumer class action suit challenging the defendant's

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representation that its ice tea products were "All Natural."

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defendant argued that administration of the class would require

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fact-intensive mini-trials because class members were unlikely to

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have retained receipts or other proof that they purchased the

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defendant's products.

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argument, reasoning that if such concerns could defeat class

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certification, "there would be no such thing as a consumer class

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action."

Id.

Id. at 535.

The

The Court rejected this

The Court also held that there is "no requirement

United States District Court

For the Northern District of California

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that 'the identity of class members . . . be known at the time of

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certification.'"

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to Ries, the District Court for the Southern District of California

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reached the same conclusion in Astiana v. Kashi Co., 291 F.R.D.

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493, 500 (S.D. Cal. 2013), another consumer class action

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challenging a defendant's "all natural" representations.

Id. (quoting Wolph, 272 F.R.D. at 482).

Citing

The Court finds the reasoning of Carrera and Xavier more

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persuasive than that of Ries and Astiana.

While the former line of

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cases may restrict the types of consumer classes that can be

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certified, they do not bar certification in consumer class actions

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altogether. 5

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records may make it economically and administratively feasible to

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determine who is in (and who is out) of a putative class.

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Moreover, even though there is no requirement that a named

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plaintiff identify all class members at the time of certification,

For example, in some cases, retailer or banking

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Moreover, there are other means of curbing the kind of false and
misleading labeling alleged here. The FDA could promulgate
regulations concerning the use of the term "all natural."
Alternatively, under the UCL, the California attorney general or a
city attorney could file an action in the name of the people of
California. Cal. Bus. & Prof. Code § 17204.

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that does not mean that a named plaintiff need not present some

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method of identifying absent class members to prevail on a motion

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for class certification.
In the instant action, Plaintiff has yet to present any method

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for determining class membership, let alone an administratively

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feasible method.

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who purchased ZonePerfect bars during the proposed class period, or

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how many ZonePerfect bars each of these putative class members

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purchased.

It is unclear how Plaintiff intends to determine

It is also unclear how Plaintiff intends to weed out

United States District Court

For the Northern District of California

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inaccurate or fraudulent claims.

Without more, the Court cannot

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find that the proposed class is ascertainable.

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V.

CONCLUSION
For the foregoing reasons, Plaintiff Kimberly Sethavanish's

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motion for class certification is DENIED without prejudice.

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Plaintiff may move for class certification again if she can devise

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a method for determining class membership in a manner consistent

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with the guidance set forth above.

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evidentiary hearing on class certification issues is DENIED as

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moot.

Defendant's motion for an

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IT IS SO ORDERED.

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February 13, 2014
UNITED STATES DISTRICT JUDGE

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