Wallenstein et al v. Mondelez International, Inc. et al

Filing 85

ORDER. The 57 Motion for Class Certification is granted. Signed by Judge Vince Chhabria on 9/25/2024. (vclc2, COURT STAFF) (Filed on 9/25/2024)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

DAVID WALLENSTEIN, et al.,

Case No. 22-cv-06033-VC

Plaintiffs,
ORDER GRANTING MOTION FOR
CLASS CERTIFICATION

v.
MONDELEZ INTERNATIONAL, INC., et
al.,

Re: Dkt. No. 57

Defendants.

The plaintiff’s motion for class certification is granted. The proposed class of all California
purchasers of Wheat Thins from October 13, 2018, to present is certified. Both claims—violation
of California’s Consumers Legal Remedies Act and breach of express warranty—satisfy the
requirements for a damages class.
The defendants focus largely on the issues of typicality and adequacy in their opposition
to class certification. They assert that they have unique defenses against Wallenstein because he
knew that cornstarch was a refined grain. But while the defendants point to a deposition exchange
in which Wallenstein stated that he has read the Wheat Thins ingredients label as evidence that
Wallenstein’s experience is different from that of the putative class members, that colloquy does
not establish that he read the label—and so knew that Wheat Thins contained cornstarch—prior
to purchasing Wheat Thins. See Dkt. No. 56-2, Exh. A to Sims Declaration (Wallenstein Depo.
189:14–24, 190:24–191:1–8). And although Wallenstein testified that he knew cornstarch was not
a whole grain, he also stated that he did not know that cornstarch was in Wheat Thins before
making his purchases. Id. at 190:24–191:1–8. In this instance, given the relatively unambiguous
representation that Wheat Thins were “100% Whole Grain”, Wallenstein was not required to read

the ingredients label to verify that the representation was accurate. See McGinity v. Procter &
Gamble Co., 69 F.4th 1093, 1097–98 (9th Cir. 2023). Nor does his testimony raise credibility
issues leading to a conclusion that he would be unable to adequately represent the interests of the
class. See Jovel v. Boiron, Inc., No. 11-cv-10803-SVW-SHX, 2014 WL 1027874, at *2 (C.D. Cal.
Feb. 27, 2014). Wallenstein’s claims are thus typical of the putative class and he is an adequate
class representative.
In addition, the defendants argue that Wallenstein cannot demonstrate that common issues
of law and fact predominate because individual consumers of Wheat Thins have different
purchasing motivations and so reliance on the “100% Whole Grain” representation would be an
individual determination. See Fed. R. Civ. P. 23(a)(2), (b)(3). But under California law, if a
representation is material, i.e., if a reasonable consumer would attach importance to the existence
of the representation in determining whether to buy the product, an inference of reliance “arises as
to the class.” Lytle v. Nutramax Laboratories, Inc., No. 22-55744, 2024 WL 3915361, at *14 (9th
Cir. Aug. 23, 2024) (quoting Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1022 (9th Cir. 2011)).
Here, Wallenstein produced convincing evidence that a majority of consumers would consider the
“100% Whole Grain” representation as a reason for purchasing Wheat Thins and that the
representation impacted the price that consumers were willing to pay. So a reasonable consumer
could decide that the representation was material to their purchasing decision. And the defendants
have not offered anything meaningful to counter the inference of class-wide reliance.
Finally, the defendants contend that there is no damages model fit for class-wide relief. But
Wallenstein submitted expert reports explaining that this case is suitable for a price premium
damages model using conjoint analysis, which is sufficient at the class certification stage. See id.
at *14. And while the defendants invoke concerns about “ascertainability,” this requirement does
not exist in the Ninth Circuit. See Briseno v. Conagra Foods, Inc., 844 F.3d 1121, 1124 nn.3–4
(9th Cir. 2017).
Wallenstein’s motion to certify a class of California Wheat Thins purchasers from October
13, 2018, to present is granted.

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IT IS SO ORDERED.
Dated: September 25, 2024
______________________________________
VINCE CHHABRIA
United States District Judge

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