Allen v. ConAgra Foods, Inc.

Filing 150

ORDER by Judge Vince Chhabria denying 89 Administrative Motion to File Under Seal; denying 113 Motion to Strike (knm, COURT STAFF) (Filed on 1/9/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERIN ALLEN,

Case No. 13-cv-01279-VC

Plaintiff,
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v.
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CONAGRA FOODS, INC.,
Defendant.

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ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION
FOR CLASS CERTIFICATION;
DENYING DEFENDANT'S MOTION TO
STRIKE

United States District Court
Northern District of California

Re: Dkt. Nos. 89, 113
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Erin Allen brings this proposed class action against ConAgra Foods, Inc., alleging that the

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label on ConAgra's "Parkay Spray" misleads people about the product's fat and calorie content.

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Allen now moves for certification of a multi-state class, divided into several subclasses. The

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motion is denied, but denial is without prejudice to filing a renewed motion for class certification

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after discovery is complete.

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The party seeking class certification bears the burden of demonstrating by a preponderance

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of the evidence that the requirements of Rule 23 are met. See Wal-Mart Stores, Inc. v. Dukes, 131

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S. Ct. 2541, 2551 (2011). To certify a class, the Court must also be satisfied that the party

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seeking certification has met the requirements of one of the three subsections of Rule 23(b). See

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Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). Here, the motion for class certification

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contains at least four defects that preclude certification of the proposed Rule 23(b)(3) damages

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class.

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1. As Judge Tigar explained in Lilly v. Jamba Juice Co., No. 13-CV-02998-JST, 2014 WL

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4652283 (N.D. Cal. Sept. 18, 2014), to demonstrate ascertainability in a case like this, a class

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action plaintiff should present a plan for how the class members will be identified. See id. at *4–6.

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Allen has not done so here, and therefore she does not satisfy the ascertainability requirement.

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However, the Court declines ConAgra's invitation to follow the Third Circuit's approach to

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ascertainability as reflected in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), also for the

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reasons thoroughly set forth by Judge Tigar in Lilly. 2014 WL 4652283, at *4–6.
2. At the beginning of the class period, the front label of the Parkay Spray bottle stated

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that the product contained zero grams of fat and zero calories. Later in the period, the label stated

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that the product contained zero grams of fat and zero calories "per serving." See Gordon Decl.,

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Ex. 1–3. Allen only purchased the product with the revised label. And it's conceivable that a jury

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could find the original label misleading while finding that the revised label is not. If so, Allen's

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claim would fail, leaving no one to represent the absent class members who did have a claim based

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on their purchase of Parkay Spray with the earlier label.
3. Although Allen's damages expert, Colin Weir, appears to have identified a methodology

United States District Court
Northern District of California

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that could reasonably measure, on a classwide basis, those damages attributable to the allegedly

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misleading labeling, see Comcast, 133 S. Ct. at 1432, his declaration does not explain in sufficient

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detail how he would apply that methodology on the facts of this case. But it would be

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unreasonable to require that Weir conduct pilot surveys or any pretesting when the parties have

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not yet completed discovery. See Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK,

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2014 WL 2466559, at *18 (N.D. Cal. May 30, 2014).1
4. Allen seeks to certify a class of people from different states, including subclasses for

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claims of breach of express warranty and for violation of the consumer protection laws of many of

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those states. But she has not adequately shown how this case is distinguishable from Mazza v.

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Am. Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012), where the Court identified a number of

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state consumer protection laws and concluded that variance among them precluded certification of

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a multi-state class. In other words, she has not adequately shown how common questions would

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predominate in a case involving so many states, and has not adequately demonstrated how the

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proposed multi-state class action would be manageable. See Zinser v. Accufix Research Inst., Inc.,

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253 F.3d 1180, 1189, 1192 (9th Cir.), amended, 273 F.3d 1266 (9th Cir. 2001); Hanlon v.

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For this reason, ConAgra's motion to strike Weir's declaration, Docket No. 113, is denied.
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Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). For instance, Allen may well be correct

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that, among each of the states in the proposed consumer protection subclass, a plaintiff need not

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provide individualized proof of reliance where the plaintiff can show that an alleged

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misrepresentation is material under a "reasonable consumer" standard. But it appears that

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differences remain in areas such as scienter requirements and damages, and Allen offers only

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conclusory statements that these differences are immaterial. Moreover, while the various

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consumer protection statutes appear largely uniform in their prohibition of "unfair or deceptive

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acts or practices," see Gordon Decl., Ex. 24, Allen has not adequately shown that these terms are

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applied in a uniform manner by courts of the respective states. Cf. Matter of Rhone-Poulenc

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Rorer, Inc., 51 F.3d 1293, 1300 (7th Cir. 1995) ("The law of negligence, including subsidiary

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United States District Court
Northern District of California

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concepts such as duty of care, foreseeability, and proximate cause, may . . . differ among the states

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only in nuance . . . . But nuance can be important[.]").

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For these reasons, the motion for certification of a damages class under Rule 23(b)(3) is

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denied. However, because it appears likely that Allen could cure the first three of these defects,

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and because it is at least conceivable that she could cure the fourth, denial is without prejudice to

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filing a renewed motion for certification of a Rule 23(b)(3) class no later than 60 days after the

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close of discovery.

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Allen also argues that, in the event she cannot meet the requirements of a Rule 23(b)(3)

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class, the Court should nonetheless certify a multi-state class for purposes of injunctive relief

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under Rule 23(b)(2). Although "[c]lass certification under Rule 23(b)(2) is appropriate only where

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the primary relief sought is declaratory or injunctive," Ellis v. Costco Wholesale Corp., 657 F.3d

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970, 986 (9th Cir. 2011), nothing would prevent the Court from . . . grant[ing] class certification

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for the purposes of declaratory and injunctive relief and den[ying] [it] to the extent plaintiffs seek

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monetary damages." Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726, at

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*12 (N.D. Cal. June 13, 2014) (internal quotation marks omitted). But to establish Article III

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standing to pursue a claim for prospective relief, "a named plaintiff must show that [s]he h[er]self

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is subject to a likelihood of future injury. Allegations that a defendant's conduct will subject

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unnamed class members to the alleged harm is insufficient to establish standing to seek injunctive
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relief on behalf of the class." Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045–45 (9th Cir.

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1999). Here, Allen stated in her deposition that she has no interest in buying Parkay Spray as it is

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currently constituted, regardless of whether its label is accurate. Coombe Decl., Ex. 1, p. 33.

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Therefore, Allen cannot possibly be subject to a likelihood of future injury. As a result, even if the

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Court ultimately denied a renewed motion to certify a Rule 23(b)(3) class with prejudice, it would

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not certify a Rule 23(b)(2) class.

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In the event of a renewed motion to certify a Rule 23(b)(3) class, and the event Allen

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continues to seek certification of a multi-state class, she should, as part of her required showing as

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to the predominance of common questions and the manageability of such a class, attach, as an

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exhibit to her motion, a set of proposed jury instructions that would govern the trial.

United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: January 8, 2015
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VINCE CHHABRIA
United States District Judge

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