Bush v. Rust-Oleum Corporation
Filing
188
Order by Magistrate Judge Laurel Beeler granting 95 the plaintiff's motion for class certification. (lblc1, COURT STAFF) (Filed on 2/5/2024)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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San Francisco Division
United States District Court
Northern District of California
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ANTHONY BUSH,
Case No. 20-cv-03268-LB
Plaintiff,
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ORDER GRANTING MOTION FOR
CLASS CERTIFICATION
v.
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RUST-OLEUM CORPORATION,
Re: ECF No. 95
Defendant.
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INTRODUCTION AND STATEMENT
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This is a consumer-products mislabeling case. On behalf of a putative class of California
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consumers, the plaintiff challenges defendant Rust-Oleum’s labeling of its “Krud Kutter” cleaning
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products as “non-toxic” and “Earth friendly,” contending that the products in fact can cause harm
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to humans, animals, and the environment, in violation of California consumer-protection laws.
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The plaintiff now moves for class certification under Federal Rule of Civil Procedure 23. The
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proposed class is defined as “[a]ll residents of California who, within four years prior to the filing
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of [the] Complaint, purchased the Products.” 1 The court grants the motion.
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Mot. – ECF No. 95. Citations refer to material in the Electronic Case File (ECF); pinpoint citations
are to the ECF-generated page numbers at the top of documents.
ORDER – No. 20-cv-03268-LB
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The operative complaint has five claims: (1) unlawful, unfair, and fraudulent business
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practices under the Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §§ 17200–08; (2)
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deceptive advertising under the False Advertising Law (FAL), Cal. Bus. & Prof. Code § 17500;
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(3) deceptive practices under the Consumer Legal Remedies Act (CLRA), Cal. Civ. Code §§
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1750–84; (4) breach of express warranties; and (5) unjust enrichment. 2
It is undisputed that the court has diversity jurisdiction under the Class Action Fairness Act. 28
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U.S.C. § 1332(d). All parties consented to magistrate-judge jurisdiction. 3 Id. § 636(c). The court
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held a hearing on January 25, 2024.
ANALYSIS
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Class actions are governed by Federal Rule of Civil Procedure 23. A party seeking to certify a
United States District Court
Northern District of California
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class must prove that all the prerequisites of Rule 23(a) are met, as well as those of at least one
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subsection of Rule 23(b) (and the relevant subsections here are (b)(2) and (b)(3)).
The following are the prerequisites of Rule 23(a): (1) the class is so numerous that joinder of
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all members is impracticable; (2) there are questions of law or fact common to the class; (3) the
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claims or defenses of the representative parties are typical of the claims or defenses of the class;
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and (4) the representative parties will fairly and adequately protect the interests of the class.
A court may certify a class under Rule 23(b)(3) if “the court finds that the questions of law or
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fact common to class members predominate over any questions affecting only individual members,
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and that a class action is superior to other available methods for fairly and efficiently adjudicating
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the controversy.” Fed. R. Civ. P. 23(b)(3). A court may certify a class under Rule 23(b)(2) for
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injunctive or declaratory relief if “the party opposing the class has acted or refused to act on
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grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory
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relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
“[P]laintiffs wishing to proceed through a class action must actually prove — not simply plead
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— that their proposed class satisfies each requirement of Rule 23, including (if applicable) the
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First Am. Compl. – ECF No. 26 at 31–43 (¶¶ 66–161).
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Consents – ECF Nos. 6, 17.
ORDER – No. 20-cv-03268-LB
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United States District Court
Northern District of California
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predominance requirement of Rule 23(b)(3).” Halliburton Co. v. Erica P. John Fund, Inc., 573
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U.S. 258, 275 (2014) (emphasis in original) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
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350–51 (2011)); Comcast Corp. v. Behrend, 569 U.S. 27, 32–33 (2013)). “[C]ertification is proper
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only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23[] have
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been satisfied.” Comcast, 569 U.S. at 33 (cleaned up). “Such an analysis will frequently entail
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overlap with the merits of the plaintiff’s underlying claim.” Id. at 33–34 (cleaned up). “That is so
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because the class determination generally involves considerations that are enmeshed in the factual
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and legal issues comprising the plaintiff’s cause of action.” Id. at 34 (cleaned up). Still, “Rule 23
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grants courts no license to engage in free-ranging merits inquiries at the certification stage.”
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Amgen Inc. v. Conn. Ret. Plans and Tr. Funds, 568 U.S. 455, 466 (2013). “Merits questions may
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be considered to the extent — but only to the extent — that they are relevant to determining
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whether the Rule 23 prerequisites for class certification are satisfied.” Id.
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The court certifies Rule 23(b)(2) and (b)(3) class because the plaintiffs have met all Rule 23
prerequisites.
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1. Rule 23(a) Prerequisites
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1.1
Numerosity — Rule 23(a)(1)
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Rule 23(a)(1) requires that “the class [be] so numerous that joinder of all members is
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impracticable.” There is no absolute minimum class size for establishing numerosity, but courts
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have held that classes as small as 40 satisfy the numerosity requirement. See, e.g., In re Qualcomm
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Antitrust Litig., 328 F.R.D. 280, 294 (N.D. Cal. 2018); In re Lidoderm Antitrust Litig., No. 14-cv-
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02521-WHO, 2017 WL 679367, at *13 (N.D. Cal. Feb. 21, 2017).
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The defendant does not dispute that the class is sufficiently numerous. As the plaintiff points
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out, based on the number of Californians who purchased the products at issue, it is reasonable to
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infer that this requirement is met.
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Rule 23(a)(2) requires that “there [be] questions of law or fact common to the class.” “What
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Commonality — Rule 23(a)(2)
matters to class certification is not the raising of common questions — even in droves — but,
ORDER – No. 20-cv-03268-LB
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rather the capacity of a classwide proceeding to generate common answers apt to drive the
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resolution of the litigation.” Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1133 (9th Cir. 2016)
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(cleaned up) (quoting Wal-Mart, 564 U.S. at 350). “To satisfy Rule 23(a)(2) commonality, ‘even a
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single common question will do.’” Id. (cleaned up) (quoting Wal-Mart, 564 U.S. at 359).
“Numerous courts have recognized that a claim concerning alleged misrepresentations on
United States District Court
Northern District of California
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packaging to which all consumers were exposed is sufficient to satisfy the commonality
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requirement because it raises the common question of whether the packaging would mislead a
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reasonable consumer.” Broomfield v. Craft Brew All., Inc., No. 17-cv-01027-BLF, 2018 WL
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4952519, at *5 (N.D. Cal. Sept. 25, 2018) (collecting cases); Prescott v. Reckitt Benckiser LLC,
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No. 20-cv-02101-BLF, 2022 WL 3018145, at *4 (N.D. Cal. July 29, 2022). This requirement is
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also met.4
The defendant contends that there are two key questions here that will not generate common
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answers. The first, according to the defendant, is what the challenged label claims mean. Whereas
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the plaintiff seeks to define the challenged claims (“non-toxic” and “Earth friendly”) as meaning
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that the products carry no risk to humans or the environment, the reasonable consumer knows
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otherwise. The reasonable consumer knows, for example, that onions (like the products at issue)
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can irritate the eyes and even water carries risk in excess amounts. And the plaintiff did not
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“provide evidence that there is a common understanding of the [challenged] terms” among
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consumers. Thus, because the plaintiff “fail[ed] to establish a uniform definition among class
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members,” the commonality required is not satisfied. 5
In cases like Broomfield, courts rest on the notion that the commonality requirement is a “low
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threshold” and that a common, dispositive question — even if it might ultimately be resolved
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against the plaintiff — is itself sufficient. Id. In cases like Vizcarra v. Unilever U.S., Inc., on the
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other hand, courts have held that the plaintiff must provide “evidence regarding the knowledge
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base of the targeted consumer (which is relevant to the determination of the reasonableness of the
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First Am. Compl. – ECF No. 26 at 29–30 (¶ 59) (listing common questions in the form of alleged
misrepresentations on the packaging).
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Opp’n – ECF No. 149 at 17–20.
ORDER – No. 20-cv-03268-LB
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consumer).” 339 F.R.D. 530, 548 (N.D. Cal. 2021); see Jones v. ConAgra Foods, Inc., No. C 12-
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01633 CRB, 2014 WL 2702726, at *14 (N.D. Cal. June 13, 2014) (in analyzing the predominance
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inquiry, the court held that because “there is no fixed meaning for the word ‘natural,’” consumers’
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understanding of the word would not be uniform). Under the more recent Ninth Circuit decision in
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Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, though, “a district court is
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limited to resolving whether the evidence establishes that a common question is capable of class-
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wide resolution, not whether the evidence in fact establishes that plaintiffs would win at trial.”
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31 F.4th 651, 666–67 (9th Cir. 2022) (“[A] district court cannot decline certification merely
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because it considers [the] plaintiffs’ evidence relating to the common question to be unpersuasive
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United States District Court
Northern District of California
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and unlikely to succeed in carrying the plaintiffs’ burden of proof on that issue.”).
The issue thus is whether evidence of a reasonable consumer’s understanding of the
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challenged claims’ meaning is required to establish that the common question (the reasonable-
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consumer test, i.e., whether a reasonable consumer is deceived by the labels) is “capable of class-
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wide resolution.” Id. Importantly, Olean Wholesale was not a consumer-products-labeling case,
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and in the labeling context, the challenged terms’ meaning is really just a part of the merits of the
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reasonable-consumer test. To put it another way, the issue of “[w]hether an ordinary consumer
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reasonably believes [the defendant] advertises [its product] as [conveying a certain message] is
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amenable to common proof: reviewing the advertisements [and] labels, and then asking the jury
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how they understand the message.” Mullins v. Premier Nutrition Corp., No. 13-cv-01271-RS,
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2016 WL 1535057, at *5 (N.D. Cal. Apr. 15, 2016); see also Tran v. Sioux Honey Ass’n., 471 F.
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Supp. 3d 1019, 1028–29 (C.D. Cal. 2020) (even on the merits, when “the allegedly false word has
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no fixed meaning,” survey evidence is “not required” even though it “can be particularly helpful in
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determining whether a reasonable consumer would be misled”) (collecting cases). And even if
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evidence on this point were required at class certification, the plaintiff has produced evidence,
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including the defendant’s own consumer study.
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ORDER – No. 20-cv-03268-LB
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The defendant also contends that “[t]he critical question[] of materiality . . . also lack[s]
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common proof.”6 “[T]he question at this stage is not whether [the plaintiff] ha[s] successfully
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proven materiality, but rather whether the materiality inquiry is a common question susceptible to
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common proof[.]” Broomfield, 2018 WL 4952519, at *11; Olean Wholesale, 31 F.4th at 668 (it is
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a “rule that the evidence need merely be capable of resolving a common question on a class-wide
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basis”). In a case like this, “[b]ecause materiality is an objective question based on the reasonable
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consumer, it is common to the class and ideal for certification.” Broomfield, 2018 WL 4952519, at
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1.3
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Northern District of California
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Typicality — Rule 23(a)(3)
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Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of
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the claims or defenses of the class.” “The test of typicality serves to ensure that the interest of the
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named representative aligns with the interests of the class.” Torres, 835 F.3d at 1141 (cleaned up).
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“Under the Rule’s permissive standards, representative claims are ‘typical’ if they are reasonably
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coextensive with those of absent class members; they need not be substantially identical.” Id.
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(cleaned up). “In this context, typicality refers to the nature of the claim or defense and not to the
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specific facts from which it arose or the relief sought.” Id. “Measures of typicality include whether
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other members have the same or similar injury, whether the action is based on conduct which is
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not unique to the named plaintiffs, and whether other class members have been injured by the
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same course of conduct.” Id. (cleaned up). Put another way, “[t]ypicality is present ‘when each
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class member’s claim arises from the same course of events, and each class member makes similar
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legal arguments to prove the defendants’ liability.’” In re Qualcomm, 328 F.R.D. at 295 (quoting
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Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010)).
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Here, the plaintiff’s “allegations as to deception, materiality, and harm are all typical of the
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class as a whole.” Broomfield, 2018 WL 4952519, at *6. The plaintiff testified that he bought one
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of the products at issue and that absent the challenged claims on the label, he would not have done
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so. The typicality requirement is thus satisfied.
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Id. at 20–25.
ORDER – No. 20-cv-03268-LB
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The defendant contends that the plaintiff is atypical because he is subject to two unique
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defenses. The first of these is standing to seek injunctive relief. At his deposition, the plaintiff
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testified that he will not purchase the products again “as long as they are mislabeled,” and he
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declared that he wants to again purchase Krud Kutter cleaning products if he “could rely upon the
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truthfulness of [the challenged] representations.” 7 Plaintiffs in a false or misleading labeling case
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may seek injunctive relief when they “‘would like to’ buy the product again but ‘will not’ because
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they ‘will be unable to rely on the product’s advertising or labeling’ without an injunction.”
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Krommenhock v. Post Foods, LLC, 334 F.R.D. 552, 572 (N.D. Cal. 2020) (citing Davidson v.
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Kimberly-Clark Corp., 889 F.3d 956, 970 (9th Cir. 2018)). The plaintiff thus has standing.
The defendant also contends that the plaintiff is atypical because when he purchased a Krud
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Northern District of California
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Kutter product, he did not examine the entire label, unlike what a reasonable consumer would
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allegedly do. But “individual experience with a product is irrelevant” to the typicality inquiry
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because “the injury under the UCL, FAL and CLRA is established by an objective test.” See, e.g.,
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Astiana v. Kashi Co., 291 F.R.D. 493, 502 (S.D. Cal. 2013).
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1.4
Adequacy — Rule 23(a)(4)
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Rule 23(a)(4) requires that “the representative parties [] fairly and adequately protect the
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interests of the class.” “This adequacy requirement . . . ‘serves to uncover conflicts of interest
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between named parties and the class they seek to represent’ as well as the ‘competency and
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conflicts of class counsel.’” Espinosa v. Ahearn (In re Hyundai and Kia Fuel Econ. Litig.), 926
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F.3d 539, 566 (9th Cir. 2019) (en banc) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
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625, 626 n.20 (1997)). “To determine legal adequacy, [courts] resolve two questions: (1) do the
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named plaintiffs and their counsel have any conflicts of interest with other class members and
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(2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the
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class?” Id. (cleaned up).
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The plaintiff and his counsel satisfy the adequacy requirement. The defendant’s argument
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otherwise is mainly focused on the plaintiff’s honesty and credibility. “There is inadequacy only
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Bush Dep. – ECF No. 112-1 at 29 (p. 27:10–18); Bush Decl. – ECF No. 95-2 at 4 (¶ 6).
ORDER – No. 20-cv-03268-LB
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where the representative’s credibility is questioned on issues directly relevant to the litigation or
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there are confirmed examples of dishonesty, such as a criminal conviction for fraud.” Harris v.
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Vector Mktg. Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal. 2010) (cleaned up). The issue is
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whether the plaintiff actually purchased a Krud Kutter product and how he came to question the
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veracity of the label. The court does not consider the plaintiff’s credibility on these points to be
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sufficiently called into question by the deposition testimony cited by the defendant.
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Northern District of California
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2. Rule 23(b) Prerequisites
2.1
Predominance — Rule 23(b)(3)
Among other things, Rule 23(b)(3) requires that “the questions of law or fact common to class
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members predominate over any questions affecting only individual members.” “Considering
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whether ‘questions of law or fact common to class members predominate’ begins . . . with the
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elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S.
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804, 809 (2011). “An individual question is one where members of a proposed class will need to
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present evidence that varies from member to member, while a common question is one where the
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same evidence will suffice for each member to make a prima facie showing or the issue is
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susceptible to generalized, class-wide proof.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453
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(2016) (cleaned up).
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Regarding the claims at issue here, the parties mainly dispute whether the challenged label
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claims are material. As the court already noted, “the question at this stage is not whether [the
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plaintiff] ha[s] successfully proven materiality, but rather whether the materiality inquiry is a
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common question susceptible to common proof that helps to establish predominance.” Broomfield,
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2018 WL 4952519, at *11. In any case, California’s statutory adoption of the FTC’s Green Guides
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— which speak to the challenged label claims at issue — means that materiality is adequately
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proven at this stage. Smith v. Keurig Green Mountain, Inc., No. 18-cv-06690-HSG, 2020 WL
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5630051, at *6 (N.D. Cal. Sept. 21, 2020); Cal. Bus. & Prof. Code § 17580.5(a); Kwikset Corp. v.
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Super. Ct., 51 Cal. 4th 310, 329 (2011) (“The Legislature has recognized the materiality of this
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representation by specifically outlawing [it].”). Under all the circumstances, the predominance
ORDER – No. 20-cv-03268-LB
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United States District Court
Northern District of California
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requirement is satisfied. Schneider v. Chipotle Mexican Grill, Inc., 328 F.R.D. 520, 539–40 (N.D.
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Cal. 2018) (“In cases alleging misrepresentation, common issues predominate when plaintiffs are
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exposed to a common set of representations about a product.”) (cleaned up); Olean Wholesale,
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31 F.4th at 667 (“[I]f each class member could have relied on the plaintiffs’ evidence to establish
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liability if he or she had brought an individual action, and the evidence could have sustained a
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reasonable jury finding on the merits of a common question, then a district court may conclude
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that the plaintiffs have carried their burden of satisfying the Rule 23(b)(3) requirements as to that
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common question of law or fact.”) (cleaned up).
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The defendant attacks the breadth of the proposed class, which is defined as “[a]ll residents of
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California who, within four years prior to the filing of this [First Amended] Complaint, purchased
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the Products.”8 The defendant objects that this definition is overbroad because it includes every
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purchaser rather than only those who were misled by the labels, i.e., those who suffered an injury. 9
For purposes of the predominance requirement, a class definition is not automatically
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overbroad when it “potentially includes more than a de minimis number of uninjured class
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members.” Olean Wholesale Grocery, 31 F.4th at 669. But “[w]hen a class is defined so broadly
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as to include a great number of members who for some reason could not have been harmed by the
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defendant’s allegedly unlawful conduct, the class is defined too broadly to permit certification.”
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Id. at 669 n.14 (cleaned up).
The proposed class is not overbroad. In line with the Ninth Circuit’s statement that classes are
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overbroad when they include members who “could not have been harmed,” courts in consumer-
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deception cases have generally held the class to be overbroad when it includes members who were
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not exposed to the alleged misrepresentations. Id.; In re ConAgra Foods, Inc., 302 F.R.D. 537,
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568 (C.D. Cal. 2014) (collecting cases). Beyond that, there is no ascertainability or “administrative
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feasibility prerequisite to class certification” in the Ninth Circuit. Briseno v. ConAgra Foods, Inc.,
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844 F.3d 1121, 1126 (9th Cir. 2017).
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Mot. – ECF No. 95 at 19.
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Opp’n – ECF No. 109 at 29–34.
ORDER – No. 20-cv-03268-LB
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Citing Comcast, 569 U.S. at 35, the defendant also contends that there is “a disconnect
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between [the plaintiff’s] damages model and [his] theory of liability,” because his expert tested
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only the challenged label claims rather than the full context of the labels. 10 In Comcast, which was
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an antitrust case, the court held that “a model purporting to serve as evidence of damages” must
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“measure only those damages attributable to” the plaintiff’s “theory of antitrust impact.” Id. To the
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extent this principle can be analogized to the present case, the plaintiff has not offered a measure
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of damages that is inconsistent with his theory of deception. Hadley v. Kellogg Sales Co., 324 F.
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Supp. 3d 1084, 1113 (N.D. Cal. 2018) (“[T]he price premium attributable to an alleged
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misrepresentation on product packaging is a valid measure of damages in the affirmative
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Northern District of California
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misrepresentation context under the FAL, CLRA, and UCL.”).
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2.2
Superiority – Rule 23(b)(3)
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Rule 23(b)(3) requires a class proponent to show that the class action is the superior method for
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adjudicating the dispute. Factors to be considered in weighing this question include the following:
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(1) class members’ interest in individually controlling the litigation; (2) the extent and nature of the
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litigation; (3) the desirability of concentrating the claims in one suit; and (4) the likely difficulties in
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managing the class action. Fed. R. Civ. P. 23(b)(3)(A)–(D); Leyva v. Medline Inds. Inc., 716 F.3d
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510, 514 (9th Cir. 2013).
The superiority requirement is met here. Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d
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1168, 1175 (9th Cir. 2010) (“Where recovery on an individual basis would be dwarfed by the cost
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of litigating on an individual basis, this factor weighs in favor of class certification.”). The
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defendant’s argument otherwise is that the class is not ascertainable, but the Ninth Circuit has
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foreclosed that argument. Briseno, 844 F.3d at 1126.
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2.3
Acting on Grounds That Apply Generally to the Class — Rule 23(b)(2)
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A court may certify a class under Rule 23(b)(2) if “the party opposing the class has acted or
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refused to act on grounds that apply generally to the class, so that final injunctive relief or
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corresponding declaratory relief is appropriate respecting the class as a whole.” “The key to the
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Id. at 22.
ORDER – No. 20-cv-03268-LB
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United States District Court
Northern District of California
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[Rule 23(b)(2)] class is the ‘indivisible nature of the injunctive or declaratory remedy warranted
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— the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of
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the class members or as to none of them.’” B.K. ex rel. Tinsley v. Snyder, 922 F.3d 957, 971 (9th
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Cir. 2019) (quoting Wal-Mart, 564 U.S. at 360). “In other words, Rule 23(b)(2) applies only when
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a single injunction or declaratory judgment would provide relief to each member of the class. It
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does not authorize class certification when each individual class member would be entitled to a
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different injunction.” Id. (quoting Wal-Mart, 564 U.S. at 360).
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Rule 23(b)(2) “does not require [courts] to examine the viability or bases of class members’
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claims for declaratory and injunctive relief, but only to look at whether class members seek uniform
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relief from a practice applicable to all of them.” Rodriguez, 591 F.3d at 1125. “[I]t is sufficient to
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meet the requirements of Rule 23(b)(2) that class members complain of a pattern or practice that is
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generally applicable to the class as a whole.” Id. (cleaned up). “The fact that some class members
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may have suffered no injury or different injuries from the challenged practice does not prevent the
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class from meeting the requirements of Rule 23(b)(2).” Id. (cleaned up). “Furthermore, unlike
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actions brought under one of the other 23(b) prongs, questions of manageability and judicial
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economy are irrelevant to 23(b)(2) class actions.” Id. (cleaned up).
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The Ninth Circuit has instructed that courts should not impose a “cohesiveness” requirement in
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assessing whether certification under Rule 23(b)(2) is appropriate. Senne v. Kan. City Royals
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Baseball Corp., 934 F.3d 918, 937–38 (9th Cir. 2019) (quoting Fed. R. Civ. P. 23(b)(2)). “Although
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common issues must predominate for class certification under Rule 23(b)(3), no such requirement
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exists under 23(b)(2).” Id. at 938 (cleaned up). Instead, “Rule 23(b)(2) . . . requires only that ‘the
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party opposing the class have acted or refused to act on grounds that apply generally to the class, so
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that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
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whole.’” Id. at 928 (cleaned up) (quoting Fed. R. Civ. P. 23(b)(2)).
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Here, the class members “seek uniform relief from a practice applicable to all of them.”
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Rodriguez, 591 F.3d at 1125. Also, the court has already held that the named plaintiff has standing
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to seek injunctive relief.
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ORDER – No. 20-cv-03268-LB
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CONCLUSION
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The court grants the motion for class certification and certifies the proposed class under Rule
23(b)(2) and (b)(3). This resolves ECF No. 95.
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IT IS SO ORDERED.
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Dated: February 5, 2024
______________________________________
LAUREL BEELER
United States Magistrate Judge
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United States District Court
Northern District of California
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ORDER – No. 20-cv-03268-LB
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