Sanderson v. Whoop, Inc.

Filing 62

ORDER GRANTING MOTION FOR CLASS CERTIFICATION. Signed by Judge Charles R. Breyer on 3/7/2025. (crblc1, COURT STAFF) (Filed on 3/7/2025)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DONRICK SANDERSON, individually
and on behalf of all others similarly
situated,
Plaintiff,

United States District Court
Northern District of California

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v.

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WHOOP, INC.,

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ORDER GRANTING IN PART AND
DENYING IN PART CLASS
CERTIFICATION

Defendant.

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Case No. 3:23-CV-05477-CRB

This is a proposed class action arising from alleged violations of California state
consumer protection laws. Plaintiff Donrick Sanderson alleges that Whoop, Inc. did not

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adhere to California’s Automatic Renewal Law (ARL), thereby deceiving consumers and

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illegally charging them for continued memberships. Plaintiff moves to appoint Sanderson

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as class representative and Dovel & Luner, LLP as class counsel. The Court GRANTS
Plaintiff’s motion to certify a 23(b)(3) class and subclass and DENIES Plaintiff’s motion

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to certify a 23(b)(2) class.

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I.

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BACKGROUND
Plaintiff filed suit in 2023, alleging that Whoop sold an auto-renewing membership

to Plaintiff without properly disclosing the terms of the auto-renewal, in violation of the

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ARL. See generally Compl. (dkt. 1); First Am. Compl. (dkt. 29); Second Am. Compl.

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(SAC) (dkt. 42). California’s ARL prohibits companies from enrolling consumers in auto-

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“automatic renewal offer terms” “in visual proximity . . . to the request for consent to the

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offer.” Cal. Bus. & Prof. Code §§ 17601(a)(2), 17602(a)(1).

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Whoop sells wearable fitness trackers and a subscription-based membership that
allows users to access associated tracking software. SAC ¶ 3. Although users initially

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sign up for an “Annual Membership,” a “24 Month Membership,” or a “1 Month Free

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Trial,” at the end of that initial membership period, Whoop automatically enrolls users in a

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Northern District of California

renewing memberships without making “clear and conspicuous” disclosures of specific

new Annual Membership billed on an auto-renewing basis. See id. ¶¶ 27–28. Plaintiff
alleges that Whoop’s pre-purchase disclosures violated the ARL because they did not

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include required terms and were not presented in a “clear and conspicuous” way. Id. ¶ 29.

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Plaintiff also alleges that Whoop violated the ARL by failing to give adequate post-

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purchase acknowledgements. Id. ¶ 57. Plaintiff specifically alleges that Sanderson
purchased a Whoop Membership in 2021 and that Whoop auto-renewed that membership
twice, without his knowledge or consent. Id. ¶¶ 63–71.
Plaintiff has brought three claims against Whoop: one under California’s False
Advertising Law (FAL); one under the unlawful, unfair, and deceptive prongs of
California’s Unfair Competition Law (UCL); and one under California’s Consumer Legal

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Remedies Act (CLRA). All three causes of action rely on the alleged ARL violations. Id.

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¶¶ 80–118. This Court has diversity jurisdiction. See 28 U.S.C. § 1332(a).

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Plaintiff seeks to certify the following class:
All persons in California who purchased a Whoop Membership
through the Whoop website, were enrolled in [Whoop’s]
automatically renewing Whoop Membership subscription, and
were automatically renewed and charged for at least one
renewal term after their initial membership or commitment
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period ended, during the applicable statute of limitations.

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Mot. (dkt. 45) at 6. Plaintiff also seeks to certify the following subclass: “[a]ll members of

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the Class who were automatically renewed and charged for at least one renewal term that

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United States District Court
Northern District of California

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they did not use (the ‘No Use Autorenewal’ subclass).” Id. Whoop opposes Plaintiff’s
motion. Opp’n (dkt. 52) at 20.
II.

LEGAL STANDARD
Plaintiffs bear the burden of proving, by a preponderance of the evidence, that class

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certification is appropriate. See Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th

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Cir. 2001). Certification is a two-step process.

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First, plaintiffs must meet the four explicit requirements of Rule 23(a): numerosity,
commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). “Class certification is

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proper only if the trial court has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has

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been satisfied.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542–43 (9th Cir. 2013)

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(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)).
Second, plaintiffs must show that the proposed class meets at least one of the

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provisions of Rule 23(b). Fed. R. Civ. P. 23(b); Amchem Prods., Inc. v. Windsor, 521

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U.S. 591, 614 (1997). Rule 23(b)(3) requires that “questions of law or fact common to

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class members predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for fairly and efficiently

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adjudicating the controversy.” These are known as the predominance and superiority

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requirements. Rule 23(b)(2) requires that “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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At the class certification stage, the Court considers the merits of a plaintiff’s case

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“only to the extent that they are relevant to determining whether the Rule 23 prerequisites

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for class certification are satisfied.” In re Diamond Foods, Inc. Sec. Litig., 295 F.R.D.
240, 245 (N.D. Cal. 2013) (quoting Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S.

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455, 466 (2013)).

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III.

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corresponding declaratory relief is appropriate respecting the class as a whole.”

DISCUSSION
First, this order will analyze whether Plaintiff has met the 23(a)(1) numerosity,

23(a)(3) typicality, and 23(a)(4) adequacy requirements. Second, this order will analyze

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whether Plaintiff has met the 23(a)(2) commonality and 23(b)(3) predominance

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requirements. Third, this order will analyze whether Plaintiff has met the 23(b)(3)

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superiority requirement. Fourth, this order will discuss Plaintiff’s request for 23(b)(2)
certification. The Court concludes that Plaintiff has met all of the 23(a) and 23(b)(3)

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requirements, and certifies a 23(b)(3) class and subclass. The Court declines to certify a

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23(b)(2) class.

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a.

Rule 23(a) Numerosity, Typicality, and Adequacy
i.

Numerosity

Under the first Rule 23(a) factor, a class must be “so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). “Although there is no exact number,
some courts have held that numerosity may be presumed when the class comprises forty or
more members.” Krzesniak v. Cendant Corp., No. C 05-05156 MEJ, 2007 U.S. Dist.
LEXIS 47518, at *19 (N.D. Cal. June 20, 2007).
Whoop does not contest this requirement. Plaintiff’s
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-member class is

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sufficiently numerous, as is Plaintiff’s subclass of
satisfied numerosity. Mot. at 7.

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ii.

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Typicality

Under the third Rule 23(a) factor, a representative party’s claims or defenses must
be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The purpose

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of the typicality requirement is to assure that the interest of the named representative aligns

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with the interest of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

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Plaintiff has

1992) (citations omitted). “Like the commonality requirement, the typicality requirement
is ‘permissive’ and requires only that the representative’s claims are ‘reasonably co-

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extensive with those of absent class members; they need not be substantially identical.’”

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Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (quoting Hanlon v. Chrysler

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Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).
Whoop contends that Sanderson’s claims are not typical of other class members’

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claims for several reasons. First, Whoop notes that Sanderson could not remember details

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of the Whoop website’s appearance. Opp’n at 18; Suehiro Decl. (dkt. 52-1) Ex. D

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(Sanderson Dep.) at 91:17–92:3, 187:13–189:18 (Sanderson could not recall “any of the
colors” on the webpage or the size of the font on the webpage). Second, Whoop states that

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Sanderson admitted that the screenshot images from the complaint were not identical to the

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page he viewed at time of his purchase. Opp’n at 18; Suehiro Decl. Ex. D (Sanderson

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Dep.) at 193:20–194:17, 128:3–10, 128:21–24. 1 Third, Whoop asserts that Sanderson

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When asked what the sign-up page looked like when he visited it, Sanderson said, “it
wasn’t a hundred percent” identical to the screenshot from the complaint, but the “general
layout and structure” were “pretty similar.” See Suehiro Decl. Ex. D (Sanderson Dep.) at
193:20–194:17. Sanderson agreed that he visited the checkout page before Whoop added a
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could not recall the exact amount he was charged for his first purchase, whether he

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received a receipt, or whether he received an auto-renewal notice. Opp’n at 19. All of

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this, Whoop argues, means that Sanderson cannot prove that his alleged harm was caused

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by Whoop’s allegedly noncompliant disclosures rather than Sanderson’s own oversight.
Id. Whoop further contends that because Sanderson said that he could not speak to the

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claims, expectations, or experiences of other class members, his interests differ from those

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of the class. 2 Id.

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United States District Court
Northern District of California

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Plaintiff responds that Sanderson can prove his claims with common evidence
provided by Whoop. Reply (dkt. 56) at 13. Plaintiff also argues that whether Sanderson

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can recall details off the top of his head “has nothing to do with typicality.” Id.

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Additionally, Plaintiff maintains that Sanderson’s interests align with all class members:

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all are interested in “recovering against [Whoop] for [Whoop’s] ARL violations.” Id.
According to Plaintiff, Sanderson’s claims, and all class members’ claims, turn on whether

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Whoop complied with the ARL. Id. So, Plaintiff asserts, any differences in class

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members’ experiences or expectations “cannot defeat typicality” because they all derive

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from the same common question and can be proven with common evidence. Id. at 13–14.
Plaintiff argues that Sanderson “asserts the same claims as class members, based on the
same course of events” and that Sanderson and class members “will make similar

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free trial option, so that option was not visible on the version of the page that he saw. Id.
at 128:3–10. Sanderson acknowledged that “logically speaking,” there might have been
“some other text there.” Id. at 128:21–24.
Whoop does not provide an accurate pincite for this deposition testimony. Whoop asserts
that Sanderson “does not know if fellow class members even were actually harmed by
Whoop and admits he does not know what membership options putative class members
saw,” but the cited deposition clip does not contain such testimony. See Suehiro Decl. Ex.
D (Sanderson Dep.) at 206:7–11.
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arguments to prove [Whoop’s] liability,” so Sanderson’s claims are “reasonably

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coextensive with those of the proposed class.” Mot. at 4, 8; see also Doe v. Neopets, Inc.,

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No. CV 15-8395 DMG (PLAx), 2016 U.S. Dist. LEXIS 206880, at *9–10 (C.D. Cal. Feb.

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22, 2016) (“Doe purchased an automatically renewing subscription from the [defendant’s]
[w]ebsite, as did all other putative class members. He has satisfied the typicality
requirement.”).

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United States District Court
Northern District of California

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Whoop does not adequately address the typicality requirement. 3 Whoop’s sole
argument against typicality is that if Sanderson does not remember the details of his own
purchase experience, it is impossible for his claims to align with those of the class. See

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Opp’n at 19. But this argument does not address the Ninth Circuit’s typicality threshold,

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that “the representative’s claims are reasonably co-extensive with those of absent class

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members.” See Rodriguez, 591 F.3d at 1124 (internal quotation marks omitted). As
Plaintiff notes, both Sanderson’s claims and all class members’ claims “turn on whether

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[Whoop] made ARL-compliant disclosures and obtained affirmative consent,” so they are

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reasonably co-extensive. Reply at 13. The reliability of Sanderson’s own memory does

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not matter in making that determination. Regardless of whether Sanderson remembers
seeing certain details or receiving an auto-renewal notice, Whoop’s own records contain

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information on what he experienced. Id. The typicality inquiry is not concerned with how

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the class representative will prove his claim, only whether that claim “is reasonably co-

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This section of Whoop’s brief has more to do with the merits of Sanderson’s claim. The
only case in this subsection did not address typicality at all, but rather involved a motion to
dismiss an ARL claim because of insufficient factual allegations. See Opp’n at 19 (citing
Turnier v. Bed Bath & Beyond Inc., 517 F. Supp. 3d 1132, 1140 (S.D. Cal. 2021)).
Whoop cites no cases holding that a finding of typicality hinges on the merits of a lead
plaintiff’s claims, or his knowledge of other class members’ claims.
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marks omitted). This is why Whoop’s argument misses the mark. Moreover, Sanderson’s

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interest “aligns with the interest of the class” because all of them seek to recover against

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Whoop for alleged ARL violations. See Hanon, 976 F.2d at 508; Reply at 13. Therefore,
Plaintiff has satisfied typicality with respect to its proposed class.

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For identical reasons, Plaintiff has satisfied typicality with respect to its proposed

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subclass. Sanderson’s claims are “reasonably co-extensive” with those of the proposed

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extensive” with other class members’. See Rodriguez, 591 F.3d at 1124 (internal quotation

subclass and Sanderson’s interests align with those of the proposed subclass. 4 See
Rodriguez, 591 F.3d at 1124; Hanon, 976 F.2d at 508.
iii.

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Adequacy

Under the fourth Rule 23(a) factor, class representatives must show that they can
“fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Courts
determine whether the named plaintiffs and counsel (1) “have any conflicts of interest with

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other class members” and (2) will “prosecute the action vigorously on behalf of the class.”

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See Hanlon, 150 F.3d at 1020.

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1.

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Adequacy of counsel

Whoop does not challenge the adequacy of Plaintiff’s counsel. Plaintiff’s counsel,

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Dovel & Luner, LLP, has no conflicts of interest, has vigorously prosecuted this case up to

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this point, and has declared their commitment to continue doing so. See Mot. Ex. 18

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(Franzini Decl.) ¶ 5. Plaintiff has satisfied adequacy of counsel.
Plaintiff alleges that Sanderson did not use his Whoop Membership between the fall of
2022 and the time the complaint was filed, in October of 2024. SAC ¶¶ 69–70. Thus he is
a member of the “No Use Autorenewal” subclass because he did not use his membership
for at least one renewal term. Mot. at 6.

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2.

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Whoop contends that Sanderson is not an adequate class representative because “the

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evidence shows inconsistencies between the Complaint and the facts,” Opp’n at 20, but
Whoop does not clearly identify these inconsistencies. Whoop also argues that Sanderson
is unfamiliar with certain details of his purchase experience, the allegations in the case, and

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his role as a class representative. Id. Whoop cites to a case in which the court held that “a

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party who is not familiar with basic elements of its claim is not considered to be an

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Adequacy of party representative

adequate representative for the class.” 5 See id. (citing Burkhalter Travel Agency v.
MacFarms Intern., Inc., 141 F.R.D. 144, 153 (N.D. Cal. 1991)). Whoop argues that

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because Sanderson testified that he “can’t speak” to class members’ claims, what class

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members saw during their purchase experiences, what type of memberships class members

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purchased, or what class members intend to do with their memberships, he is unable to
perform his role as class representative. Id. Finally, Whoop contends that because

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Sanderson did not know “whether he was seeking to represent any subclass in this suit,” or

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who took the screenshots included in the complaint, he is unfamiliar with the case and is

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therefore inadequate. Id.
Plaintiff argues that Sanderson is sufficiently familiar with the basis of the suit, the

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details of his own complaint, and the duties of a class representative. Reply at 14.

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Plaintiff identifies numerous excerpts from Sanderson’s deposition that demonstrate this.

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Whoop cites another Northern District case to show that any inconsistencies should be
dispositive of the adequacy question. See Opp’n at 20 (citing Feske v. MHC Thousand
Trails Ltd. Partnership, No. 11–4124 PSG, 2013 WL 1120816, at *12–14 (N.D. Cal. Mar.
18, 2013)). But the Feske court specifically noted that the proposed class representative’s
claims “were atypical for other reasons” and that the court did not disqualify them as
representatives on the “grounds” of any inconsistencies “alone.” See Feske, 2013 WL
1120816, at *14.
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details or legal strategy to satisfy the adequacy requirement. Id. at 14–15.
Sanderson has no conflicts of interest, and Whoop does not dispute this. See
Hanlon, 150 F.3d at 1020. Accordingly, the adequacy analysis here hinges on whether
Sanderson is able to prosecute the action vigorously on behalf of the class. See id. Whoop

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relies on Sanderson’s supposed lack of knowledge of the details of his and other class

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members’ claims to argue that Sanderson is inadequate. Opp’n at 20 (citing Burkhalter,

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Id. Plaintiff also argues that Sanderson need not demonstrate familiarity with irrelevant

141 F.R.D. at 153–54). But Burkhalter is distinguishable. In Burkhalter, the proposed
class representative “lacked a basic understanding of the identity of some of the defendants

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in th[e] action,” and said that he thought he would be representing a class “composed of

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the defendants,” which indicated that he was an “essentially unknowledgeable client” for

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class counsel. 141 F.R.D. at 154. Sanderson is far more knowledgeable than the class
representative in Burkhalter. See id.
Whoop bases its argument that Sanderson “demonstrate[s] unfamiliarity with the
allegations in the case” on the following exchanges:
Q: Are you pursuing the same claims on behalf of all class
members?
A: I can’t speak to the claims of other class members . . .
Q: Are you seeking to represent any subclass in this suit?
A: I am not sure . . .
Q: Were these screenshots . . . taken from your personal
phone?
A: No.
Q: Do you know on whose phones these screenshots were
taken?
A: I don’t know.
Suehiro Decl. Ex. D (Sanderson Dep.) at 200:4–7, 198:24–199:1, 123:25–124:7. These
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excerpts do not demonstrate an egregious lack of familiarity with the case. They merely

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show that Sanderson is not an attorney. 6 Indeed, Plaintiff successfully demonstrates that

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Sanderson is familiar with the lawsuit. See Reply Ex. 20 (dkt. 56-4) (Sanderson Dep.) at

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186:24–189:3 (demonstrating his knowledge that the lawsuit is about Whoop’s alleged
failure to clearly and conspicuously provide pre-purchase disclosures), 193:13–19

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(acknowledging the details of his complaint), 195:12–17 (outlining additional allegations

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in his complaint), 197:15–21 (identifying who is included in the proposed class).

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Northern District of California

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Whoop argues that because Sanderson could not “recall the circumstances of his
Whoop purchase experience,” he is an “unsuitable” representative. Opp’n at 20. But some

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of these details (such as webpage background color) are irrelevant to Sanderson’s claim.

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And to the extent that other details (such as font size and webpage layout) are material,

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Sanderson need not be able to recall these details because they “can be found in [Whoop’s]
records.” See Reply at 15; supra Part III(a)(ii). A finding of adequacy does not hinge on

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the specificity with which a lead plaintiff can recall information. Even where a proposed

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class representative could not remember material details “without looking at the

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complaint,” one court found that the plaintiff had established adequacy because “lead

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Other courts have ruled that a class representative need not understand the legal details of
their case in order to be adequate. See, e.g., Torliatt v. Ocwen Loan Servicing, 570 F.
Supp. 3d 781, 796 (N.D. Cal. 2021) (finding a class representative adequate even though
“he did not know what type or amount of damages were sought or whether the case
[sought] injunctive relief,” because “it is not necessary that [class representatives] be
intimately familiar with every factual and legal issue in the case”) (citation omitted); In re
Tableware Antitrust Litig., 241 F.R.D. 644, 649 (N.D. Cal. 2007) (“Because class
representatives serve as a guardian of the interests of the class, the representatives must
have some minimal familiarity with the litigation, although a detailed understanding of the
theories and facts of the case is not required.”) (internal citations omitted); In re Emulex
Corp., 210 F.R.D. 717, 721 (C.D. Cal. 2002) (“Plaintiffs’ reliance on counsel to file
documents and to investigate and litigate the case does not show a failure to supervise or
an abdication of their duties as class representatives.”).
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plaintiffs.” In re LendingClub Sec. Litig., 282 F. Supp. 3d 1171, 1182 (N.D. Cal. 2017)

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(internal citations omitted).

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Whoop also contends that Sanderson is unfamiliar with his role as a class
representative because when asked about what class members saw on their respective sign-

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up pages, what type of memberships class members purchased, or whether class members

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intended to renew their memberships, Sanderson repeatedly responded with “I can’t

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plaintiffs need only be familiar with the basis for the suit and their responsibilities as lead

speculate” or “I can’t speak to that.” See Suehiro Decl. Ex. D (Sanderson Dep.) at 197:22–
198:20. But, as Plaintiff demonstrates, Sanderson is familiar with his duties as class

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representative. See Reply Ex. 20 (Sanderson Dep.) at 196:24–197:11 (explaining the role

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of the class representative and confirming that he intends to fulfill that role in this case),

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201:22–202:1 (explaining his role in speaking for class members should the case reach
settlement negotiations); see also Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund v.

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Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001) (“The record indicates clearly

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that [lead plaintiff] understands his duties and is currently willing and able to perform

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them. The Rule does not require more.”). Furthermore, this is a class of
and a subclass of

. Mot. at 7. Sanderson cannot possibly have

personal knowledge of each one of their experiences.
Sanderson is more knowledgeable than other class representatives who have been
deemed adequate in this district. See, e.g., O’Connor v. Uber Techs., No. C-13-3826
EMC, 2015 U.S. Dist. LEXIS 116482, at *41, *49 (N.D. Cal. Sept. 1, 2015) (class

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representative was found to be adequate despite testifying that he did not “have any

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understanding as to what his responsibilities would be to the extent this case were to be
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v. Amyris, Inc., 340 F.R.D. 575, 584 (N.D. Cal. 2021) (class representative was adequate

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even though he could not remember important dates, whether those dates impacted his

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decisions, which court filings he reviewed, or who was involved in alleged misstatements,
because he “sufficiently expressed a general understanding of the litigation.”). Overall,

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Plaintiff demonstrates that Sanderson will vigorously prosecute the action. Sanderson is

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an adequate class representative. See Sayce v. Forescout Techs., Inc., No. 20-cv-00076-SI,

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certified as a class . . .”), rev’d on other grounds, 904 F.3d 1087 (9th Cir. 2018); Mulderrig

2024 U.S. Dist. LEXIS 94700, at *57 (N.D. Cal. May 28, 2024) (class representative was
adequate where he was “actively involved in the litigation, appeared for [his] deposition,

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[was] willing to serve as a representative party on behalf of the class, and underst[ood]

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[his] duties as class representative.”).

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Therefore, Plaintiff has satisfied adequacy with respect to both class counsel and the
class representative.

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b.

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Predominance and commonality are two separate inquiries. See Fed. R. Civ. P.

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Rule 23(b)(3) Predominance and Rule 23(a)(2) Commonality

23(a)–(b). But the parties’ arguments about predominance and commonality overlap.
Indeed, Whoop references commonality only once in its opposition. See Opp’n at 6

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(“Plaintiff has no common evidence regarding whether and how putative class members

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viewed these disclosures, precluding a finding of commonality and predominance.”). Both

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parties discuss predominance far more than they do commonality. This section will first
discuss predominance, then address the parties’ cursory dispute over commonality. The

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Court concludes that Plaintiff has satisfied the predominance requirement. It follows that

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Plaintiff has also satisfied commonality.
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i.

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Under the first Rule 23(b)(3) factor, a plaintiff must show that “the questions of law
or fact common to class members predominate over any questions affecting only
individual members.” Fed. R. Civ. P. 23(b)(3). A plaintiff must also present a model of
damages that (1) identifies damages that stem from the defendant’s alleged wrongdoing

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and (2) is “susceptible of measurement across the entire class.” Comcast Corp. v.

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Behrend, 569 U.S. 27, 34–38 (2013). Proof is not a prerequisite for class certification. See

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Predominance

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Amgen, 568 U.S. at 459 (“Rule 23(b)(3) requires a showing that questions common to the
class predominate, not that those questions will be answered, on the merits, in favor of the
class.”).
Whoop argues that three central issues in this case preclude a finding of
predominance, because their resolution will require individualized inquiries that
predominate over questions common to the class. See Opp’n 11–18. These issues are (a)

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ARL compliance, (b) Article III standing, and (c) damages calculations. See id. Plaintiff

18

responds that these are common questions that will be resolved via classwide proof, such

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21
22
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25
26

that predominance is satisfied. See Reply at 1–12. The Court agrees with Plaintiff.
1.

ARL Compliance

Whoop argues that Plaintiff must rely on individualized inquiries to determine ARL
compliance, which makes it an individual question. Opp’n at 6. All of Plaintiff’s claims
hinge on whether Whoop complied with the ARL’s disclosure requirements. See supra
Part I. Compliance with the ARL requires that: (1) pre-purchase disclosures on the Whoop

27

website were “clear and conspicuous . . . and in visual proximity” to the request for

28

consent; (2) Whoop obtained affirmative consent from users; (3) Whoop’s pre-purchase
14

1
2

adequate post-purchase acknowledgement that included a specified set of terms. See Mot.

3

at 9 (citing Cal. Bus. & Prof. Code §§ 17601(a)(2)–(3), 17602(a)(1)–(4)). 7 This order will

4
5
6

refer to these as Requirements 1–4, respectively. This section will discuss each
requirement, though Whoop only discussed Requirements 1 and 2. According to Whoop,

7

whether it satisfied Requirements 1 and 2 are individualized questions that defeat

8

predominance. Plaintiff contends that whether Whoop satisfied Requirements 1–4 are

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United States District Court
Northern District of California

disclosures included the required “automatic renewal terms”; and (4) Whoop provided an

common questions that can be answered via common proof, so predominance is met. This
section of the order will conclude that each of these four ARL requirements present

12

common questions sufficient to satisfy predominance.

13

a.

14
15
16

Requirement 1

Whoop asserts that whether it met Requirement 1 cannot be answered using
classwide proof. See Opp’n at 11. According to Whoop, individual users’ device

17

settings—such as “vertical or horizontal orientation” and “preferences in terms of font

18

size, browser format, zoom percentages, and similar”—could affect “how and where

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20
21

disclosures by Whoop appeared” to the user. Id. at 7. Whoop also notes that the website
layout changed over time, so individual users viewed different versions of the disclosure. 8

22

Id. Whoop asserts that because personalized device settings are unique to the individual,

23

and users viewed different iterations of the Whoop site depending on when they signed up

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25
26
27
28

The ARL carries additional requirements, but Plaintiff only references these four—
presumably because additional requirements were added on January 1, 2025, several
months after Plaintiff filed its SAC. See Cal. Bus. & Prof. Code §§ 17602(a)(5)–(8).

7

Changes included that “the disclaimer moved from below to above the ‘place order’
button” and that “subscription plan offerings varied over time” so “there may be additional
blank space on the website in which disclosures or other text could appear.” Opp’n at 13.

8

15

1
2

were “clear and conspicuous” and in sufficient proximity to the request for consent. Id. at

3

6–7.

4
5
6

Plaintiff responds that whether Whoop met Requirement 1 is a common question
that can be resolved via classwide proof. Reply at 1. Plaintiff’s central contention is that

7

liability under the ARL hinges on whether Whoop published noncompliant disclosures, not

8

whether or how users saw those disclosures. See id. at 3–4. So, Plaintiff contends,

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Northern District of California

for their memberships, Plaintiff cannot use classwide evidence to show that disclosures

whether Whoop satisfied Requirement 1 is a common question that must be resolved via
classwide evidence and cannot be subject to individualized inquiries. Id. at 1, 4. Plaintiff

12

argues that individual device settings like screen orientation and zoom percentage “cannot

13

plausibly affect” whether a disclosure was “clear and conspicuous” and “in visual

14
15
16

proximity” to the request for consent, so individual inquiries need not be addressed to
determine whether Whoop met Requirement 1. Id. at 2; Cal. Bus. & Prof. Code §

17

17602(a)(1). Plaintiff adds that “website text that is not programmed to be set off by

18

symbols or other marks will not be set off in this manner on any device—regardless of

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21
22
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25
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settings or orientation.” Reply at 2. Likewise for “text that is programmed to be smaller
than surrounding text.” Id.
In response to Whoop’s argument that the timing of sign-up, and therefore the
version of the disclosure that class members saw, is an individualized inquiry, Plaintiff
contends that Whoop never published an ARL-compliant disclosure satisfying
Requirement 1. See id. at 2; Mot. at 9. Plaintiff asserts that all proposed class members

27
28
16

1
2

. . . and in visual proximity . . . to the request for consent to the offer.”) (emphasis added).

3

Moreover, other district courts in California characterize the ARL as establishing

4
5
6

affirmative obligations for publishers to present adequate disclosures to users. See Zeller
v. Optavia LLC, 22-cv-434-DMS-MSB, 2024 U.S. Dist. LEXIS 51882, at *19 (S.D. Cal.

7

Mar. 14, 2024) (“The ARL imposes upon Octavia a duty to present the terms of the offer

8

in a clear and conspicuous manner before the subscription or purchasing agreement is

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United States District Court
Northern District of California

renewal offer terms or continuous service offer terms in a clear and conspicuous manner

fulfilled and in visual proximity . . . to the request for consent to the offer . . .”) (emphasis
added); Farmer v. Barkbox, Inc., 5:22-cv-01574-SSS-SHKx, 2023 U.S. Dist. LEXIS

12

222435, at *12 (C.D. Cal. Oct. 6, 2023) (“the ARL creates an obligation to disclose

13

automatic renewal terms . . .”) (emphasis added). The common question here is whether

14
15

Whoop complied with Requirement 1.
It does not matter whether class members had different device settings that resulted

16
17

in visually different disclosures. 10 As Plaintiff notes, if ARL liability turned on how users

18

saw auto-renewal disclosures, no ARL case could ever be certified as a class—but courts

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20
21
22

have certified ARL classes. See, e.g., Doe, 2016 U.S. Dist. LEXIS 206880, at *15. Plus,
the Ninth Circuit has explained that “online providers have complete control over the
design of their websites,” so “the onus must be on website owners to put users on notice of

23
24
25
26
27
28

Even if it did matter, user device settings apply uniformly to the entire display page,
rendering Whoop’s argument about such settings moot. Picture a hypothetical disclosure
written in small, low-contrast font that is significantly smaller than surrounding text,
making it noncompliant with the ARL. Increasing the font size on one’s browser may
result in a more prominent disclosure, but it will not make that disclosure larger than the
surrounding text. Thus, users cannot self-remedy the problem of an inadequate disclosure
by making it appear larger on their own devices. Liability still hinges on what the
publisher presents to users.
10

18

1
2

LLC, 30 F.4th 849, 857 (9th Cir. 2022) (citations omitted). More importantly, as Whoop’s

3

own 30(b)(6) witness noted, certain relevant features about the disclosure did not change

4
5
6
7
8
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United States District Court
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the terms to which they wish to bind consumers.” See Berman v. Freedom Fin. Network,

during the class period. See Mot. at 9. This undermines Whoop’s argument that class
members’ individual experiences with different versions of the disclosure at different times
make this an individualized question.
Whether Whoop satisfied Requirement 1 is a common question.
b.

Requirement 2

Whoop argues that whether it satisfied Requirement 2 is an individualized question

12

that defeats predominance. Opp’n at 7. Whoop reasons that “[w]hat customers understood

13

or thought they were agreeing to when they were placing an order depends on what they

14
15
16
17
18
19
20
21
22
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25
26

saw, which varied among the class, . . . their expectations, and what they understood to be
purchasing at the time.” Id. at 13–14. Whoop asserts that because these questions demand
individualized answers, Plaintiff cannot satisfy predominance.
Plaintiff argues that whether users’ consent via “sign-in wrap” was sufficient to
satisfy Requirement 2 is a common question. Reply at 4. Plaintiff contends that California
appellate law requires that courts evaluate this type of consent based on objective factors,
not subjective ones, so it must be resolved using classwide proof. Id.
Whoop’s arguments about consent do not align with recent Ninth Circuit reasoning.
A California appellate court in Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 460
(2021) discussed how “[m]utual assent is determined under an objective standard applied

27

to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of

28

their words and acts, and not their unexpressed intentions or understandings.” The Sellers
19

1
2

satisfy the ARL’s requirements, the agreement did not bind the plaintiffs because “a

3

reasonably prudent offeree” would not be “on inquiry notice of the terms at issue,”

4
5
6

precluding mutual assent. See id. at 471, 477–78. The Ninth Circuit in Berman applied
the reasoning of Sellers and found that because a textual notice was not reasonably

7

conspicuous and did not explicitly inform users of the terms of the agreement, users could

8

not “be deemed to have manifested assent” to those terms. 30 F.4th at 857–58. The Ninth

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court found that where the conspicuousness of a textual notice on a webpage did not

Circuit applied identical reasoning in an ARL case only a few days ago, holding that a user
could not be bound by a sign-in wrap agreement because the website publisher did not

12

provide “reasonably conspicuous notice of the Terms of Use” and the user did not

13

“unambiguously manifest her assent to the Terms of Use.” See Chabolla v. Classpass Inc.,

14
15

No. 23-15999, 2025 U.S. App. LEXIS 4591, at *10–11, *25 (9th Cir. Feb. 27, 2025).
The Court applies the Ninth Circuit’s objective standard for determining mutual

16
17

assent. Using this objective inquiry, Whoop’s characterization of Requirement 2 as an

18

individualized question fails. Affirmative consent hinges not on what individual users

19
20
21

thought, but rather on objective conspicuousness. See Berman, 30 F.4th at 857–58.
Plaintiff cites multiple cases in which district courts explicitly deemed affirmative consent

22

to be a common question in ARL class actions. 11 As such, whether Whoop met

23

Requirement 2 is a common question.

24
25
26
27
28

11

See Reply at 5 (citing Doe, 2016 U.S. Dist. LEXIS 206880, at *14; Beer v. GoBrands, Inc., No.
CV 22-7386 FMO (RAOx), 2024 U.S. Dist. LEXIS 93502, at *14 (C.D. Cal. Jan. 3, 2024); Kissel
v. Code 42 Software, Inc., No. SACV 15-1936-JLS (KES), 2017 U.S. Dist. LEXIS 223526, at
*11–12 (C.D. Cal. Oct. 4, 2017)).

20

1

Requirement 3

2

Whoop does not address Requirement 3 in its opposition.

3

Plaintiff argues that whether Whoop satisfied Requirement 3 is a common question

4
5
6

because the allegedly deficient “content” of the disclosures “was materially the same
classwide.” Reply at 1. Plaintiff contends that, at all points in the relevant period, the

7

disclosures themselves did not “clearly and conspicuously disclose that Whoop

8

Memberships continue until the consumer cancels,” “accurately or fully describe the

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United States District Court
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c.

cancellation policy,” “disclose what the recurring charges that will be charged will be, or
that that amount may change,” or “clearly disclose what the length of the automatic

12

renewal term will be.” Mot. at 10. So, Plaintiff asserts, all class members were “exposed

13

to the same material omissions,” and the determination of whether Whoop satisfied

14
15
16

Requirement 3 can be made using classwide information. Id. at 10–11. This, Plaintiff
argues, makes it a common question.

17

Plaintiff’s argument is persuasive. Based on Plaintiff’s framing of the deficiencies

18

in the pre-purchase disclosures, determining compliance with Requirement 3 cannot be an

19
20
21
22
23
24
25
26

individualized inquiry. It is a common question that can only be answered using classwide
information, because Plaintiff alleges that all class members were “exposed to the same
material omissions.” Id. Whether Whoop satisfied Requirement 3 is a common question.
d.

Requirement 4

Whoop does not address Requirement 4 in its opposition.
Plaintiff argues that Whoop’s post-purchase acknowledgement was insufficient at

27

all times, failing to satisfy Requirement 4. Id. at 11. The acknowledgement did not

28

include required terms, according to Plaintiff, and did not provide “clear and conspicuous
21

1

notice.” Id. Plaintiff notes that the post-purchase acknowledgement
. Id.; id. Ex. 3 (Giacalone Dep.) at 160:19–161:6

2
3
4
5
6

).
Whoop does not argue that individual questions predominate in evaluating

Requirement 4. Plaintiff asserts that, classwide, the content of Whoop’s post-purchase

7

acknowledgements was deficient. Reply at 1. Determining compliance with Requirement

8

4 is therefore a common question.

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United States District Court
Northern District of California

(

2.

Article III Standing

Whoop argues that Plaintiff must rely on individualized inquiries to establish

12

Article III standing, which makes it an individual question. Opp’n at 8. To

13

demonstrate Article III standing, a plaintiff must establish (1) that she has suffered an

14
15
16

injury-in-fact, (2) that her injury is “fairly traceable” to a defendant’s conduct, and (3) that
her injury would likely be “redressed by a favorable decision.” Lujan v. Defs. of Wildlife,

17

504 U.S. 555, 560–61 (1992). The Ninth Circuit has recognized that “to the extent that

18

class members were relieved of their money” because of a defendant’s wrongful conduct,

19
20
21

“they have suffered an injury-in-fact sufficient to establish Article III standing.” See
Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th Cir. 2012) (citations omitted),

22

overruled on other grounds by Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods

23

LLC, 31 F.4th 651, 682 n.32 (9th Cir. 2022).

24
25
26

Whoop argues that determining Article III standing for each class member would
require individual inquiries. Opp’n at 8. Whoop cites to Sanderson’s deposition, in which

27

he answered affirmatively when asked whether in “considering his own damages,” he is

28

“taking into account [his] own expectation and what [he] knew at the time that [he] signed
22

1
2

206:7–11). When Sanderson was asked whether other class members would consider their

3

personal expectations when evaluating their damages, he responded: “I cannot speak to

4
5
6

their expectations or what we have to do.” Id. (citing Suehiro Decl., Ex. D (Sanderson
Dep.) at 206:12–17). Extrapolating from this exchange, Whoop posits that Sanderson

7

“does not know if his fellow class members were harmed” and characterizes his responses

8

as indicating that Plaintiff’s theory of injury “depends on [class members’] expectations

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Northern District of California

up for the Whoop Membership.” Id. at 14 (citing Suehiro Decl., Ex. D (Sanderson Dep.) at

and assumptions.” Id. This is Whoop’s only argument as to why individualized inquiries
predominate in evaluating injury-in-fact sufficient for Article III standing.

12

Plaintiff contends that it can establish Article III standing for each class member

13

using Whoop’s own transactional data, which is a source of classwide proof. Reply at 7.

14
15
16

Plaintiff posits that “class members were relieved of the money they paid for their
renewals” because Whoop “enrolled them in automatically-renewing Whoop

17

Memberships—and then charged them for renewals—in violation of the ARL.” Id. So,

18

Plaintiff theorizes, class members suffered economic injury in the form of wrongfully

19
20
21

charged membership costs. Id. A favorable judgment, Plaintiff asserts, will likely redress
this injury in the form of refunds for wrongful auto-renewals. Id. Plaintiff also cites a

22

Ninth Circuit case in which a plaintiff had Article III standing where he was charged for

23

auto-renewal of a membership without being provided ARL-required disclosures. See

24
25
26

Mot. at 16 (citing Johnson v. Pluralsight, LLC, 728 F. App’x 674, 676 (9th Cir. 2018)).
Plaintiff’s argument prevails. Johnson indicates that if the allegations in the

27

complaint are true, all class members have injuries-in-fact sufficient to confer Article III

28

standing. See 728 F. App’x at 676 (finding that where the defendant violated the ARL, it
23

1
2

standing because he experienced monetary harm through “unlawfully retained

3

subscriptions payments”). Moreover, as Plaintiff notes, Plaintiff can use Whoop’s own log

4
5
6

of transactional data to prove this injury. Mot. at 14. Sanderson’s belief about his own
expectations at the time of purchase does not supersede Ninth Circuit precedent. This is a

7

common question that predominates over any individual questions. It can be answered

8

using common, classwide proof.

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“was not entitled to charge customers” for its subscriptions, so the plaintiff had Article III

3.

Damages Calculations

Whoop argues that Plaintiff must rely on individualized inquiries to calculate

12

damages, which makes damages an individual question. Opp’n at 8. Whoop asserts that

13

Plaintiff’s damages model improperly assumes that class members would not have signed

14
15
16

up for memberships if Whoop’s allegedly wrongful disclosures were instead ARLcompliant. Id. Whoop’s main point is that Plaintiff cannot prove, with classwide

17

evidence, that class members would not have renewed their memberships “but for” the

18

allegedly wrongful auto-renewals. Id. Whoop notes that Sanderson used his Whoop

19
20
21

Membership during the auto-renewal period, and only stopped using it because the device
stopped working. Id. at 15–16. This, Whoop contends, is proof that Sanderson derived

22

some value from his membership, which should be subtracted from the full autorenewal

23

charges in calculating damages. See id. at 16. In making this argument, Whoop cites

24
25
26

excerpts from Sanderson’s deposition that appear to indicate that he viewed the disclosure
at the time of purchase and decided not to cancel his membership even though he knew he

27

would be auto-renewed. Id. Whoop implies that, because other class members used their

28

memberships during auto-renewal periods, the consideration of offsetting benefits makes
24

1

the calculation of damages an individual question. 12 Id. at 16–17. Finally, Whoop

2

disputes Plaintiff’s assumption that if users did not use the Whoop app, it was because they

3

did not want to be auto-renewed. Id. at 15.

4
5
6

classwide. 13 See Reply at 10. Plaintiff also argues that the proposed model measures

7

damages that stem directly from Whoop’s ARL violations, so “individual damages issues

8

do not defeat predominance” and “Comcast is satisfied.” Id. at 9–10. Plaintiff maintains

9
10
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United States District Court
Northern District of California

Plaintiff notes that it is undisputed that the proposed model measures damages

that ARL liability does not depend on what a website user thought, saw, or wanted, but
instead depends on whether a website publisher complied with the requirements of the law.

12

Id. at 10. Plaintiff centers much of its argument around the “unconditional gifts” provision

13

of the ARL, which states that if a business violates the ARL, that business transforms its

14
15
16

membership product into an “unconditional gift” for which it is “not entitled to charge
consumers.” See id.; Johnson, 728 F. App’x at 675–76; Cal. Bus. & Prof. Code § 17603.

17

Plaintiff asserts that in violating the ARL, Whoop transformed its Whoop Memberships

18

into unconditional gifts, and therefore Whoop unlawfully obtained any payment it received

19
20
21

from its subscribers for auto-renewed memberships. Mot. at 16. As such, Plaintiff’s
damages model seeks to refund class members the amounts of money for which they were

22
23
24
25
26
27
28

Whoop cites a case in which a plaintiffs’ full refund model did not account for the value
of benefits derived, so the model could not “accurately measure classwide damages.” See
Opp’n at 17 (citing In re POM Wonderful LLC, No. ML 10–02199 DDP (RZx), 2014 WL
1225184, at *3 (C.D. Cal. Mar. 25, 2014)).
12

Plaintiff’s proposed damages model seeks to recover full refunds for auto-renewed
memberships. Mot. at 15. This model does not include refunds for the initial membership
period purchased by class members, and Plaintiff does not seek a recovery of those
membership costs. Judge Kim addressed this issue in resolving an earlier discovery
dispute, holding that “information about the value of the initial term of membership is not
relevant.” Order on Disc. Dispute 39 (dkt. 41).
13

25

1
2

their Whoop devices does not relate to predominance or class certification. Id. at 11.

3

Plaintiff contends that the Court need not offset class members’ recovery by the value of

4
5
6

their ongoing use, but that even if it did, the Court could calculate prorated refunds using
classwide data provided by Whoop. Mot. at 16–17.

7

Whoop’s arguments are unconvincing. Even if Sanderson or other class members

8

did use their Whoop Memberships throughout the auto-renewal periods, and even if they

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United States District Court
Northern District of California

unlawfully charged. Reply at 10. Plaintiff also argues that class members’ ongoing use of

did cancel their memberships for reasons unrelated to the auto-renewals, this does not
mean that these customers wanted to be auto-renewed. Nor would class members’ reasons

12

for using or cancelling their memberships affect whether Whoop violated the ARL when it

13

auto-renewed them. 14 As the Ninth Circuit recognized in Johnson, monetary harm can

14
15
16

derive from ARL violations that “transform subscriptions into unconditional gifts pursuant
to section 17603” of the California Business and Professions Code, gifts for which

17

businesses are “not entitled to charge consumers.” See 728 F. App’x at 675–76; see also

18

Roz v. Nestle Waters N. Am., Inc., 2:16-cv-04418-SVW-JEM, 2017 U.S. Dist. LEXIS

19
20
21

5177, at *24 (C.D. Cal. Jan. 11, 2017) (“When the Defendant collected money from the
Plaintiffs that it was not owed by charging their debit or credit cards, the Plaintiffs were

22

undoubtedly injured and lost money as the result of the Defendant’s actions. Being forced

23

to pay money for what should be considered a gift must qualify as an injury.”).

24
25
26
27
28

This is relevant for certifying both Plaintiff’s proposed class and its “No Use
Autorenewal” subclass. Whoop argues in a single footnote that the subclass cannot be
certified because in order to determine why users did not use their memberships, the Court
would need to consider “individual issues,” defeating predominance. Opp’n at 17, n.14.
But as discussed here, Whoop’s liability for violating the ARL does not depend on why
users did or did not use their Whoop Memberships.
14

26

As discussed earlier in this order, the violation itself, rather than an individual

1
2

user’s expectation, results in damage. See supra Part III(b)(i)(1)(b). It follows that the

3

calculation of damages can depend on the fact of the violation; what the user might have

4
5
6

clear meaning of this provision is that when a business violates the requirements of [the

7

ARL] . . . that consumer has no obligation to pay the business for the product because it is

8

deemed a gift . . . The statute specifically places no conditions on these gifts, meaning that

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10
11
United States District Court
Northern District of California

actually wanted does not matter. See Roz, 2017 U.S. Dist. LEXIS 5177, at *23–24 (“The

the product is considered a gift whether or not the Plaintiffs can show they did not actually
want the product.”). Moreover, a full refund damages model cannot create individual

12

questions because it applies across the entire class, regardless of individual circumstances.

13

See Leanne Tan v. Quick Box, LLC, 20cv1082-LL-DDL, 2024 U.S. Dist. LEXIS 6935, at

14
15
16
17

*44 (S.D. Cal. Jan. 12, 2024) (“Plaintiff shows that damages can be determined without
excessive difficulty and that each model stems from her theory of liability, which is
sufficient at this stage to establish that common questions predominate.”).

18
19
20
21
22

To the extent that the recovery of damages might depend on the calculation of
offsetting benefits, such that any value derived from use of a Whoop Membership would
be subtracted from the full membership cost, using Whoop’s data to do so (as Plaintiff
suggests) would mitigate any predominance issues. 15,16 Whoop’s internal data contains

23
24
25
26
27
28

Whoop argues that Plaintiff cannot seek a full refund of membership costs for those
class members who derived some tangible benefit from use of their membership during
autorenewal periods. Opp’n at 16. This might be true, but only for claims under the UCL.
See Robinson v. OnStar, LLC, No.: 15-CV-1731 JLS (MSB), 2020 U.S. Dist. LEXIS
10797, at *72 (S.D. Cal. Jan. 22, 2020) (rejecting a full refund damages model in a UCL
case).
15

The “No Use Autorenewal” subclass members did not use their memberships, so
offsetting benefits need not be calculated for them at all. See Mot. at 6. Calculating
27
16

1
2

autorenewal periods. See Opp’n at 16. This is a source of classwide evidence; individual

3

inquiries do not predominate over this common inquiry. The predominance requirement,

4
5
6

and in particular the Comcast damages standard, helps avoid throwing the Court into a
series of “individualized mini-trials to determine each class member’s damage award.”

7

See Olean, 31 F.4th at 682 n.31. Using a common batch of data to conduct these inquiries,

8

rather than conducting individual discovery into each class member’s offsetting benefits,

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10
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United States District Court
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information on all class members’ use of their Whoop Memberships during the

would avoid “individualized mini-trials.” See id. 17 Whoop does not identify any cases in
which a plaintiff sought a full refund because of an ARL violation, and that damages

12

model defeated predominance. Nor is it clear why the use of classwide proof from

13

Whoop’s own data would constitute an individual question sufficient to undermine

14
15
16
17

predominance, especially when the CLRA permits class members to recover a full
refund. 18 Moreover, the Ninth Circuit has held that “the need for individual damages
calculations does not, alone, defeat class certification,” and that “[d]amages issues

18
19

damages for the subclass would not threaten predominance.

20

The Ninth Circuit has held that “[u]ncertainty regarding class members’ damages does
not prevent certification of a class as long as a valid method has been proposed for
calculating those damages,” and “[t]he fact that the amount of damage . . . may be
uncertain, contingent or difficult of ascertainment does not bar recovery.” See Lambert v.
Nutraceutical Corp., 870 F.3d 1170, 1182 (9th Cir. 2017) (citations omitted), rev’d on
other grounds, 586 U.S. 188 (2019). It also noted that “[c]lass wide damages calculations
under the UCL, FAL, and CLRA are particularly forgiving.” Id. at 1183.

21
22
23
24
25
26
27
28

17

Plaintiff notes that on the CLRA claim, it “can seek actual damages, instead of
restitution, which does not require Plaintiff to account for value received.” Mot. at 15; see
Amavizca v. Nutra Mfg., LLC, 8:20-cv-01324-RGK-MAA, 2021 U.S. Dist. LEXIS 36009,
at *33–34 (C.D. Cal. Jan. 27, 2021) (holding that damages under the CLRA could be
calculated classwide, which was sufficient to meet the predominance requirement under
Rule 23(b)(3)); see also Zeller, 2024 U.S. Dist. LEXIS 51882, at *22–23 (S.D. Cal. Mar.
14, 2024) (“Section 17603 states that Plaintiffs shall not be liable for qualifying
unconditional gifts,” which “permits Plaintiffs to seek a full refund in the form of damages
through their CLRA claim.”) (internal quotation marks omitted).
18

28

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defendant’s conduct.” Vaquero v. Ashley Furniture Indus., 824 F.3d 1150, 1154–55 (9th

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Cir. 2016).

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5
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In sum, Whoop’s predominance arguments about Plaintiff’s damages model are: (1)
that calculating damages for each class member is an individual question that threatens to

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overwhelm common questions; and (2) that the full refund model is not capable of

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classwide damages measurement. Opp’n at 15. But Whoop does not adequately support

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predominate only where a plaintiff cannot prove that damages resulted from the

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those arguments with case law. And, even if damages calculations were individualized,
this does not overwhelm common questions with individualized inquiries. See Vaquero,
824 F.3d at 1155.
Having considered Whoop’s arguments with respect to ARL compliance, Article III
standing, and damages calculations, common questions will predominate over individual
questions for both the proposed class and the proposed subclass. Plaintiff has satisfied

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predominance.

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ii.

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Commonality

Under the second Rule 23(a)(2) factor, plaintiffs must show the existence of
“questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The

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commonality inquiry is less demanding than the predominance inquiry. See DZ Rsrv. v.

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Meta Platforms, Inc., 96 F.4th 1223, 1233 (9th Cir. 2024) (citing Amchem, 521 U.S. at

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624). Commonality is satisfied where claims “depend upon a common contention . . .
capable of classwide resolution” such that “determination of its truth or falsity will resolve

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an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart,

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564 U.S. at 350. “All that Rule 23(a)(2) requires is ‘a single significant question of law or
29

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2
3
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5
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Mazza, 666 F.3d at 589).
As noted earlier, the parties’ predominance arguments completely overlap with their
commonality arguments. Though the standards for each requirement are different, in order
for common questions to predominate over individual questions, common questions must

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exist. The Court has already determined that predominance is satisfied. Accordingly,

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Plaintiff has satisfied commonality for both the proposed class and the proposed subclass.

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fact.’” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting

Because common questions predominate over individual questions, in looking for
one “significant” common question sufficient to satisfy commonality, the parties can take

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their pick. See id. Were the published disclosures “clear and conspicuous” and “in visual

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proximity” to the request for consent, satisfying Requirement 1 of the ARL? See Cal. Bus.

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& Prof. Code § 17601(a)(3). Based on a reasonable user inquiry, did class members give
affirmative consent, satisfying Requirement 2? See id. § 17602(a)(4). Did the published

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disclosures include the required “automatic renewal offer terms,” satisfying Requirement

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3? See id. § 17601(2). Was the content of the post-purchase acknowledgements adequate,

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satisfying Requirement 4? See id. Were all class members injured? See supra Part
III(b)(i)(2). Any will do.

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c.

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Under the second Rule 23(b)(3) requirement, plaintiffs must show “that a class

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Rule 23(b)(3) Superiority

action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” A court must consider Rule 23(b)(3)’s four factors. See Zinser v. Accufix

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Research Institute, Inc., 253 F.3d 1180, 1190 (9th Cir. 2001). These factors are: “(a) the

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class members’ interests in individually controlling the prosecution or defense of separate
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begun by or against class members; (c) the desirability or undesirability of concentrating

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

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managing a class action.” Fed. R. Civ. P. 23(b)(3)(A)–(D). “Where recovery on an
individual basis would be dwarfed by the cost of litigating on an individual basis, this

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factor weighs in favor of class certification.” Wolin v. Jaguar Land Rover North Am.,

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LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (citing Zinser, 253 F.3d at 1189).

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actions; (b) the extent and nature of any litigation concerning the controversy already

Whoop does not mention the superiority requirement at all, mentioning only that the
allegedly high number of “individualized issues . . . render class treatment an inferior

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method of adjudicating Plaintiff’s claims.” Opp’n at 12. Whoop provides no support for

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this point other than its predominance arguments.

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Plaintiff notes that the monetary value of individual claims is small, such that class
members have no “significant interest in pursuing individual litigation.” Mot. at 17 (citing

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Lilly v. Jamba Juice Co., 308 F.R.D. 231, 241 (N.D. Cal. 2014)). Plaintiff also argues that

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there is no “already-commenced litigation concerning the controversy,” “economies of

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scale make it desirable to concentrate the claims of these . . . class members in this . . .
forum” because Whoop is based here, and there are “no likely difficulties in managing this
case as a class action.” Id.
Because this order has already determined that individual issues do not
predominate, Whoop’s superiority argument, based on its theory of a lack of
predominance, also fails. Moreover, all of the 23(b)(3) superiority requirements are met in

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this case: individual recovery “would be dwarfed by the cost of litigating on an individual

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basis,” meaning that class members do not have an interest in individually controlling
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is no preexisting litigation on the matter involving class members. Mot. at 17. It is

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desirable to concentrate these claims in the forum where Whoop resides. Id. Finally, as

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previously discussed, Whoop’s “individualized inquiries” argument is not convincing
evidence that there would be “difficulties in managing” this case as a class action. Opp’n

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at 12; Fed. R. Civ. P. 23(b)(3)(D). Plaintiff has satisfied superiority for both the proposed

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class and the proposed subclass.

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prosecution of this action. See Wolin, 617 F.3d at 1175 (internal citations omitted). There

Because Plaintiff has satisfied all of the 23(b)(3) requirements, the Court GRANTS
the motion to certify Plaintiff’s proposed class and proposed subclass under 23(b)(3).

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d.

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Plaintiff also seeks to certify a class under Rule 23(b)(2). Mot. at 17–18. Rule

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23(b)(2) Injunction Class Certification

23(b)(2) permits class certification where “the party opposing the class has acted or
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.” Fed. R.

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Civ. P. 23(b)(2). “[I]t does not authorize class certification when each class member

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would be entitled to an individualized award of monetary damages” and where “the
monetary relief is not incidental to the injunctive or declaratory relief.” Wal-Mart, 564
U.S. at 360–61.
The Court declines to certify the class under Rule 23(b)(2) because Plaintiff’s
primary form of requested relief is monetary. See Fed. R. Civ. P. 23(b)(2) advisory
committee’s notes to 1966 amendment (“The subdivision does not extend to cases in

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which the appropriate final relief relates exclusively or predominantly to money

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damages.”). “Class certification under Rule 23(b)(2) is appropriate only where the primary
32

1

relief sought is declaratory or injunctive.” Ellis v. Costco Wholesale Corp., 657 F.3d 970,

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986 (9th Cir. 2011) (citing Zinser, 253 F.3d at 1195). This is because 23(b)(3) class

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members “are afforded the right to be notified of the action and to opt out of the class,” but

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23(b)(2) class members have no opportunity to opt out. Id. at 987 (citing Wal-Mart, 564
U.S. at 362). “The absence of these protections in a class action predominantly for

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monetary damages violates due process.” Id. (citing Phillips Petroleum Co. v. Shutts, 472

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U.S. 797, 812 (1985)).

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Plaintiff spends the majority of its motion discussing why appropriate relief should
consist of money damages via full refunds for auto-renewed subscriptions. See Mot. at 5–

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17 (discussing in twelve pages why this Court should certify a damages class), 17–18

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(discussing in two paragraphs why this Court should certify an injunction class). The

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primary form of relief Plaintiff seeks is monetary damages. As such, Ninth Circuit law
prohibits 23(b)(2) certification. See Ellis, 657 F.3d at 986.
Accordingly, the Court DENIES Plaintiff’s motion to certify a class under 23(b)(2).

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IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS the motion for 23(b)(3) certification,

CERTIFIES Plaintiff’s proposed 23(b)(3) class and subclass, APPOINTS Dovel & Luner

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as class counsel, and APPOINTS Donrick Sanderson as class representative. The Court

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DENIES the motion for 23(b)(2) certification.

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IT IS SO ORDERED.
7 2025
Dated: March ___,

CHARLES R. BREYER
United States District Judge

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