Hadley v. Kellogg Sales Company

Filing 208

ORDER GRANTING IN PART AND DENYING IN PART 129 PLAINTIFF'S MOTION FOR CLASS CERTIFICATION; DENYING 167 DEFENDANT'S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN P. GASKIN. Signed by Judge Lucy H. Koh 8/17/2018.(lhklc2S, COURT STAFF) (Filed on 8/17/2018) Modified on 8/17/2018 (iym, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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STEPHEN HADLEY,
Plaintiff,

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR CLASS
CERTIFICATION; DENYING
DEFENDANT’S MOTION TO
EXCLUDE OPINION TESTIMONY OF
STEVEN P. GASKIN

v.

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Case No. 16-CV-04955-LHK

KELLOGG SALES COMPANY,
Defendant.

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Re: Dkt. Nos. 129, 167

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Plaintiff Stephen Hadley (“Plaintiff”) brings the instant putative class action against
Defendant Kellogg Sales Company (“Kellogg”) for allegedly misleading statements on Kellogg’s

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food product packaging. Before the Court are (1) Plaintiff’s motion for class certification; and (2)
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Kellogg’s motion to exclude the opinion testimony of Steven P. Gaskin. Having considered the
parties’ briefing, the relevant law, and the record in this case, the Court GRANTS in part DENIES

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in part Plaintiff’s motion for class certification, and DENIES Kellogg’s motion to exclude the
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opinion testimony of Steven P. Gaskin.
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I.

BACKGROUND
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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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A. Factual Background
Kellogg is a “multi-billion dollar food company that manufactures, markets, and sells a

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wide variety of cereals and bars, among other foods.” ECF No. 62, Second Amended Complaint
(“SAC”) ¶ 108. Plaintiff alleges that Kellogg has “positioned itself in the market as a purportedly
‘healthy’ brand of processed food, by using various labeling statements to suggest its foods,
especially its cereals and bars, are healthy choices.” Id. ¶ 112.
Plaintiff “has been a frequent cereal eater for many years.” Id. ¶ 249. Over the past

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several years, Plaintiff has purchased Kellogg’s breakfast cereals and cereal bars. Id. ¶ 250–51.
During that time period, Plaintiff allegedly “tried to choose healthy options, and has been willing
to pay more for cereals he believes are healthy.” Id. ¶ 249.
This case concerns statements on the packaging for breakfast cereals and cereal bars sold

United States District Court
Northern District of California

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by Kellogg that indicate that Kellogg’s products are healthy when excess added sugar allegedly
causes those products to be unhealthy. Plaintiff alleges that eight of Kellogg’s product lines are
sold with misleading packaging. See SAC ¶¶ 120–23. Four of those product lines are relevant to
the instant order: (1) Kellogg’s Raisin Bran; (2) Kellogg’s Frosted Mini-Wheats; (3) Kellogg’s
Smart Start—Original Antioxidants; and (4) Nutri-Grain Soft-Baked Breakfast Bars. See id.; ECF
No. 129 at 1.
In general, Kellogg’s products are alleged to contain 9 to 16 grams of total sugar per

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serving and are 18% to 40% added sugar by calorie. See SAC App. 1. Plaintiff alleges that the
consumption of added sugar can have significant health impacts on individuals. Specifically,
Plaintiff states that people in the United States consume excess added sugar, that people can
become addicted to added sugar, and that excess added sugar consumption has been empirically
linked to metabolic syndrome, type 2 diabetes, cardiovascular disease, liver disease, obesity,
inflammation, high cholesterol, hypertension, Alzheimer’s disease, and some cancers. SAC ¶¶ 9–
107.
Moreover, Plaintiff alleges that the American Heart Association (“AHA”) has found that a
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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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person is “safe” to consume up to 5% of his or her daily calories in added sugar, which amounts to

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approximately 25 grams of added sugar on a 2000 calorie diet. Id. ¶ 26. On the other hand, the

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United States Food and Drug Administration (“FDA”) has concluded that the Daily

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Recommended Value (“DRV”) of added sugars is 10% of a person’s daily calories, or

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approximately 50 grams of added sugar. Based on these values, Plaintiff alleges that Kellogg’s

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products are unhealthy because they contain a higher percentage of added sugar (18%–40% of

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total calories per serving) than the daily “safe” percentage of added sugar recommended by the

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AHA or the DRV recommended by the FDA.

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Plaintiff asserts that the packaging for Kellogg’s products displays multiple statements
touting the health and wellness benefits of consuming Kellogg’s products that are misleading (the

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United States District Court
Northern District of California

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“challenged statements” or “challenged health statements”). Specifically, Plaintiff challenges

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Kellogg’s use of statements that contain the terms “healthy,” “nutritious,” or “wholesome.” SAC

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¶ 186–89. Plaintiff alleges that these statements assert that Kellogg’s products are healthy when

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they are in fact not healthy because of the presence of added sugar. Id. ¶ 189. Further, Plaintiff

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alleges that a number of statements, such as “lightly sweetened,” imply that Kellogg’s products are

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lower in sugar, when they actually are composed of 18% to 40% added sugar. Id. ¶¶ 215–19.

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Some of the products at issue allegedly display multiple challenged health statements. For

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example, Plaintiff states that the packaging for Raisin Bran displays “HEART HEALTHY,” “Start

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with a healthy Spoonful,” and “Invest in your health invest in yourself.” Id. ¶ 128. On the other

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hand, other products only have a single challenged statement. For example, on the packaging for

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Nutri-Grain Soft-Baked Breakfast Bars, Plaintiff only challenges the statement “wholesome

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goodness.” See ECF No. 130 Exhs. 19–22.

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B. Procedural History
On August 29, 2016, Plaintiff filed a complaint. ECF No. 1. On October 31, 2016,

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Kellogg filed a motion to dismiss. ECF No. 22. In lieu of filing a response, on November 14,

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2016, Plaintiff filed a First Amended Complaint (“FAC”). ECF No. 27.

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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On December 8, 2016, Kellogg filed a motion to dismiss the FAC. ECF No. 44. On

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January 5, 2017, Plaintiff filed an opposition, ECF No. 49, and on January 19, 2017, Kellogg filed

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a reply. ECF No. 50. On March 21, 2017, the Court granted Kellogg’s motion to dismiss

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Plaintiff’s FAC. ECF No. 56.

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On April 5, 2017, Plaintiff filed a second amended complaint (“SAC”). See SAC.

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Plaintiff’s SAC alleges five causes of action, including (1) violation of the California False

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Advertising Law (“FAL”); (2) violation of the California Consumers Legal Remedies Act

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(“CLRA”); (3) violation of the California Unfair Competition Law (“UCL”) under the fraudulent,

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unfair, and unlawful prongs; (4) breach of express warranty; and (5) breach of the implied

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United States District Court
Northern District of California

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warranty of merchantability. Id.
On April 19, 2017, Kellogg filed a motion to dismiss Plaintiff’s SAC. ECF No. 62. On

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May 3, 2017, Plaintiff filed an opposition, ECF No. 65, and on May 10, 2017, Kellogg filed a

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reply. ECF No. 66. On August 10, 2017, the Court granted in part and denied in part Kellogg’s

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motion to dismiss Plaintiff’s SAC. ECF No. 76.

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On April 30, 2018, Plaintiff filed a motion for class certification. ECF No. 129 (“Mot.”).

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Plaintiff seeks to certify the following class, which is composed of four subclasses, under Federal

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Rule of Civil Procedure 23(b)(3):

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[A]ll persons in California who, on or after August 29, 2012, purchased for
household use and not for resale or distribution:
Raisin Bran Subclass: Kellogg’s Raisin Bran (including Omega-3) or Kellogg’s
Raisin Bran Crunch Cereals in a 13.7 oz., 14.3 oz., 18.2 oz., 18.7 oz., 23.5 oz., 24.8
oz., 29 oz., 30.3 oz., 43.3 oz., 56.6 oz., or 76.5 oz. package stating “heart healthy.”
Smart Start Subclass: Kellogg’s Smart Start Original Antioxidants cereal in a 17.3
oz. package.
Frosted Mini-Wheats Subclass: Kellogg’s Frosted Mini-Wheats Bite Size
(Original, Maple Brown Sugar, Strawberry, or Blueberry varieties), Big Bites
(Original variety), Little Bites (Chocolate or Cinnamon Roll varieties), or Touch of
Fruit in the Middle (Mixed Berry and Raspberry varieties) cereals in a 15.2 oz.,
15.5 oz., 15.8 oz., 16.5 oz., 18 oz., 21 oz., or 24 oz. package.
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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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Nutri-Grain Soft-Baked Breakfast Bar Subclass: Kellogg’s Nutri-Grain SoftBaked Breakfast Bars (Blueberry, Strawberry, Cherry, Raspberry, and Variety Pack
varieties), in 8-bar, 9-bar, 16-bar, or 24-bar counts with packaging stating, “the
wholesome goodness you need to shine your brightest!”

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Id. at 1.
Kellogg filed an opposition to Plaintiff’s motion for class certification on June 11, 2018,

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ECF No. 159 (“Opp.”), and Plaintiff filed a reply on July 2, 2018. ECF No. 194 (“Reply”).
Kellogg also filed a motion based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

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U.S. 579 (1993), to exclude the opinion testimony of one of Plaintiff’s damages experts, Steven P.

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Gaskin, on June 11, 2018. ECF No. 167 (“Gaskin Daubert Mot.”). Plaintiff filed an opposition to
Kellogg’s Daubert motion on June 25, 2018, ECF No. 181, and Kellogg filed a reply on July 2,

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United States District Court
Northern District of California

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2018. ECF No. 188.

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II.

LEGAL STANDARD
Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Rule 23

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does not set forth a mere pleading standard. To obtain class certification, plaintiffs bear the

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burden of showing that they have met each of the four requirements of Rule 23(a) and at least one

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subsection of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended by

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273 F.3d 1266 (9th Cir. 2001). “A party seeking class certification must affirmatively

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demonstrate . . . compliance with the Rule[.]” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350

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(2011).

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Rule 23(a) provides that a district court may certify a class only if: “(1) the class is so

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numerous that joinder of all members is impracticable; (2) there are questions of law or fact

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common to the class; (3) the claims or defenses of the representative parties are typical of the

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claims or defenses of the class; and (4) the representative parties will fairly and adequately protect

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the interests of the class.” Fed. R. Civ. P. 23(a). That is, the class must satisfy the requirements of

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numerosity, commonality, typicality, and adequacy of representation to maintain a class action.

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Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012).

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

If all four prerequisites of Rule 23(a) are satisfied, the Court must also find that the

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plaintiff “satisf[ies] through evidentiary proof” at least one of the three subsections of Rule 23(b).

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Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). The Court can certify a Rule 23(b)(1) class

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when plaintiffs make a showing that there would be a risk of substantial prejudice or inconsistent

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adjudications if there were separate adjudications. Fed. R. Civ. P. 23(b)(1). The Court can certify

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a Rule 23(b)(2) class if “the party opposing the class has acted or refused to act on grounds that

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apply generally to the class, so that final injunctive relief or corresponding declaratory relief is

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appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Finally, the Court can

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certify a Rule 23(b)(3) class if the Court finds that “questions of law or fact common to class

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members predominate over any questions affecting only individual members, and that a class

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United States District Court
Northern District of California

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action is superior to other available methods for fairly and efficiently adjudicating the

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controversy.” Fed. R. Civ. P. 23(b)(3).

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“[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap

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with the merits of the plaintiff’s underlying claim[.]’” Amgen Inc. v. Connecticut Ret. Plans & Tr.

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Funds, 568 U.S. 455, 465–66 (2013) (quoting Dukes, 564 U.S. at 351); see also Mazza, 666 F.3d

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at 588 (“‘Before certifying a class, the trial court must conduct a ‘rigorous analysis’ to determine

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whether the party seeking certification has met the prerequisites of Rule 23.’” (quoting Zinser, 253

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F.3d at 1186)). This “rigorous” analysis applies to both Rule 23(a) and Rule 23(b). Comcast, 569

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U.S. at 34 (stating that Congress included “addition[al] . . . procedural safeguards for (b)(3) class

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members beyond those provided for (b)(1) or (b)(2) class members (e.g., an opportunity to opt

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out)” and that a court has a “duty to take a ‘close look’ at whether common questions predominate

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over individual ones”).

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Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries

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at the certification stage.” Amgen, 568 U.S. at 466. “Merits questions may be considered to the

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extent—but only to the extent—that they are relevant to determining whether the Rule 23

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prerequisites for class certification are satisfied.” Id. If a court concludes that the moving party

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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has met its burden of proof, then the court has broad discretion to certify the class. Zinser, 253

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F.3d at 1186.

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III.

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DISCUSSION
As discussed above, Plaintiff seeks class certification under Rule 23(b)(3). Kellogg does

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not contest that Plaintiff has satisfied the numerosity and commonality requirements of Rule 23(a),

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as evidenced by the fact that Kellogg’s opposition to Plaintiff’s motion for class certification does

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not meaningfully address these requirements. See generally Opp. The Court agrees that Plaintiff

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has satisfied the numerosity and commonality requirements of Rule 23(a). First, with regards to

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numerosity, Plaintiff has provided evidence that “the unit and dollar sales” of the Kellogg products
at issue in the instant case “suggest at least thousands of Class Members” bought these products

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Northern District of California

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during the class period. Mot. at 16; see Twegbe v. Pharmaca Integrative Pharmacy, Inc., 2013

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WL 3802807, *3 (N.D. Cal. July 17, 2013) (“[T]he numerosity requirement is usually satisfied

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where the class comprises 40 or more members.”). Second, as to commonality, the Court finds

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that there are numerous common questions of law and fact, such as whether the challenged health

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statements are unlawful, unfair, deceptive, or misleading when affixed to products containing 9 to

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16 grams of sugar per serving (or “an average of 12.2 grams of added sugar” per serving, Opp. at

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18). See Jones v. ConAgra Foods, Inc., 2014 WL 2702726, at *5 (N.D. Cal. June 13, 2014)

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(finding that class claims had common issue of “whether the ‘100% natural’ and ‘free of artificial

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ingredients & preservatives’ labels are unlawful, unfair, deceptive, or misleading when affixed to

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products containing citric acid and/or calcium chloride”).

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Kellogg also does not contest that Plaintiff has satisfied the superiority requirement of Rule

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23(b)(3). The Court agrees that superiority is met in the instant case. As Plaintiff correctly

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observes, individual class members are likely to have little “interest in controlling individual

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actions because the product[s]” at issue in the instant case cost “under about $5.” Mot. at 25; see

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Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (stating that

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“[w]here recovery on an individual basis would be dwarfed by the cost of litigating on an

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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individual basis, this factor weighs in favor of” finding that the superiority requirement is

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satisfied). Further, no significant manageability concerns are apparent, and in any event, there is a

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“‘well-settled presumption that courts should not refuse to certify a class merely on the basis of

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manageability concerns.’” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1128 (9th Cir. 2017)

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(quoting Mullins v. Direct Digital, LLC, 795 F.3d 654, 663 (7th Cir. 2016)); see also In re Visa

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Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir. 2001) (listing “management tools

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available to” district courts).

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Kellogg opposes Plaintiff’s motion for class certification on nearly every other front.
Kellogg first asserts a handful of arguments for why Plaintiff has failed to establish Rule 23(b)(3)

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predominance. See Opp. at 12–34. Then, Kellogg briefly argues that Plaintiff does not satisfy the

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Northern District of California

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typicality and adequacy requirements of Rule 23(a). See id. at 34–35. The Court addresses these

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arguments in turn.

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A. Rule 23(b)(3) Predominance
Under Rule 23(b)(3), plaintiffs must show “that the questions of law or fact common to

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class members predominate over any questions affecting only individual members.” Fed. R. Civ.

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P. 23(b)(3). The Rule 23(b)(3) predominance requirement is “even more demanding” than Rule

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23(a)’s commonality counterpart. Comcast, 569 U.S. at 34. Predominance “tests whether

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proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem,

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521 U.S. at 623 (citation omitted). The Ninth Circuit has held that “there is clear justification for

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handling the dispute on a representative rather than an individual basis” if “common questions

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present a significant aspect of the case and they can be resolved for all members of the class in a

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single adjudication.” Hanlon, 150 F.3d at 1022. As the United States Supreme Court recently

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explained, “[t]he predominance inquiry asks whether the common, aggregation-enabling, issues in

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the case are more prevalent or important than the non-common, aggregation-defeating, individual

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issues.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting 2 W.

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Rubenstein, Newberg on Class Actions § 4:49 (5th ed. 2012)). “When ‘one or more of the central

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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issues in the action are common to the class and can be said to predominate, the action may be

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considered proper under Rule 23(b)(3) even though other important matters will have to be tried

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separately, such as damages or some affirmative defenses peculiar to some individual class

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members.’” Id. (quoting 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §

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1778 (3d ed. 2005)).

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Plaintiff argues that common issues predominate in the instant class action for each of

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Plaintiff’s four theories of liability. First, with regards to Plaintiff’s theory that the challenged

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health statements amount to affirmative misrepresentations that violate California’s FAL, CLRA,

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and the UCL’s “fraudulent” prong (the “affirmative misrepresentation theory”), Plaintiff points out
that under these statutes, the issue of whether a particular statement on a product’s packaging or

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Northern District of California

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labeling is “either actually misleading or . . . has a capacity, likelihood or tendency to deceive or

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confuse the public,” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (internal

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quotation marks omitted), is “judged by the effect [that statement] would have on a reasonable

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consumer.” Mot. at 18 (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 506–07

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(2003)). In other words, “California’s UCL, ‘FAL and CLRA rely on the same objective test.”

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Tait v. BSH Home Appliances Corp., 289 F.R.D. 466, 480 (C.D. Cal. 2012) (emphasis added).

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This objective test focuses on the “reasonable consumer,” Lavie, 105 Cal. App. 4th at 507, or, put

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another way, on whether “members of the public are likely to be deceived.” In re Tobacco II

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Cases, 46 Cal. 4th 298, 312 (2009). Further, Plaintiff cites cases that affirm that “[t]his objective

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test renders claims under the UCL, FAL, and CLRA ideal for class certification because they will

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not require the court to investigate class members’ individual interaction with the product.” Mot.

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at 19 (quoting Tait, 289 F.R.D. at 480 (internal quotation marks omitted)).

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Second, Plaintiff’s theory that Kellogg deceptively “hides” and “omits . . . information

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regarding the products’ high sugar content” in violation of the FAL, CLRA, and the UCL’s

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“fraudulent” prong (the “deceptive omission theory”), SAC ¶ 209, is subject to the same objective

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test. Plaintiff states that he “has substantial common evidence on which to bring the Class’s

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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[deceptive] omission claims to trial,” including common evidence “of Kellogg’s knowledge” and

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“that the omitted information was material.” Mot. at 20.

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Third, as to Plaintiff’s theory that “certain labeling claims” on the products at issue in the
instant case “violate[] FDA regulations” and therefore violate the UCL’s “unlawful” prong (the

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“unlawful misbranding theory”), Plaintiff argues that “Kellogg’s liability for such misbranding is a

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predominating common question because ‘proving the . . . unlawful prong of the UCL . . . does

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not depend upon any issues specific to individual consumers.’” Mot. at 20 (quoting Lilly v. Jamba

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Juice Co., 308 F.R.D. 231, 242 (N.D. Cal. 2014)) (alterations adopted). “Rather, ‘the label is

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either illegal or it is not,’ and that determination will apply to all Class Members the same.” Id.

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(quoting Ang v. Bimbo Bakeries USA, Inc., 2014 WL 1024192, at *8 (N.D. Cal. Mar. 13, 2013))

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(alteration adopted).

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Fourth, regarding Plaintiff’s theory that the challenged statements amounted to warranties

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that were breached by Kellogg (the “breach of warranty theory”), Plaintiff states that “‘[w]hether

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such statements constitute an express warranty, and whether that warranty was breached . . . are

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issues subject to common and generalized proof.’” Id. at 21 (quoting Martin v. Monsanto Co.,

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2017 WL 1115167, at *7 (C.D. Cal. Mar. 24, 2017)) (alterations adopted). Further, Plaintiff

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asserts that “‘because reliance is not an element of express warranty claims under California law,

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common questions predominate and class action treatment is appropriate.’” Id. (quoting In re

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Scotts EZ Seed Litig., 304 F.R.D. 397, 411 (S.D.N.Y. 2015)) (alteration adopted).

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Additionally, Plaintiff argues that the three damages models proposed by Plaintiff are

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“consistent with [Plaintiff’s] theories of liability, and capable of measuring classwide damages.”

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Id. at 21–25.

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Kellogg advances five arguments for why common issues do not predominate over

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individual ones in the instant case. First, Kellogg argues that “individual issues predominate

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because most people never saw the challenged statements.” Opp. at 12–16. Second, Kellogg

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asserts that “individual issues predominate because the health impact of consuming added sugar—

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

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and thus the alleged falsity of the challenged statements—differs for each consumer.” Id. at 16–

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20. Third, Kellogg contends that “Plaintiff’s proposed damages models cannot competently assess

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class-wide damages.” Id. at 20–29. Fourth, Kellogg argues that “Plaintiff has not provided any

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evidence of classwide deception or materiality.” Id. at 29–32. Finally, Kellogg asserts that

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“Plaintiff’s alternative theories of liability”—that is, Plaintiff’s deceptive omission, unlawful

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misbranding, and breach of warranty theories of liability—“are also not subject to common

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proof.” Id. at 32–34. The Court addresses each of Kellogg’s arguments in turn.

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1. Exposure to Challenged Statements

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Kellogg first argues that “most people” who bought the Kellogg products at issue in the
instant case “never saw the challenged statements.” Id. at 12. Based on this assertion, Kellogg’s

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Northern District of California

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appears to argue that Plaintiff cannot satisfy the predominance requirement because, according to

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Kellogg, the Court would have to determine which consumers actually saw the challenged

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statements on an individualized, consumer-by-consumer basis in order to determine the exact

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scope of Kellogg’s liability. Kellogg’s argument proceeds in two parts. First, Kellogg asserts that

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“Kellogg consumers were not uniformly exposed to the challenged statements over the class

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period for Raisin Bran, Nutri-Grain, and Smart Start.” Id. Second, Kellogg argues that “there is

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no indication that every consumer—let alone most consumers—saw or relied upon” either (1) the

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“lightly sweetened” statement displayed “on the front of each package of Frosted Mini-Wheats

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and Smart Start”; or (2) the “wholesome goodness” statement displayed on the back panel of some

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Nutri-Grain boxes. Id. at 15–16 & n.5. The Court considers these assertions in turn.

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a. Lack of Uniform Exposure to Challenged Statements on Packaging for Raisin
Bran, Nutri-Grain, and Smart Start
Kellogg points out that many of the “challenged statements did not appear on the
packaging for a substantial portion . . . of the class period.” Id. at 13. Specifically, Kellogg states
that during the class period, (1) “Invest in Your Health, Invest in Yourself” appeared on only
17.6% of all Raisin Bran and Raisin Bran Crunch packages; (2) “the ‘heart health’ statement did
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1

not appear on versions of the packaging for a significant portion of Raisin Bran and Raisin Bran

2

Crunch products from January 2014 to February 2015; May 2016 to October 2016; and April 2017

3

to present—a total of 33 months and counting during the class period”; (3) “Start with a Healthy

4

Spoonful” appeared on only 13.9% of all Raisin Bran and Raisin Bran Crunch packages; (4)

5

55.3% of Nutri-Grain boxes “did not have the ‘wholesome goodness’ text”; (5) “Invest in Your

6

Health, Invest in Yourself” appeared on only 27.3% of all Smart Start packages; and (6)

7

“Nutrients for Every Day” appeared on less than 15% of all Smart Start packages. Id. at 13–14.

8

Kellogg asserts that under Ninth Circuit law, “such a lack of uniform and consistent exposure

9

dooms class certification.” Id. at 14; see In re Hyundai and Kia Fuel Economy Litig., 881 F.3d
679, 705 (9th Cir. 2018) (reversing class certification because “factual differences regarding [the

11
United States District Court
Northern District of California

10

class members’] exposure to the misleading statements translate into significant legal differences

12

regarding the viability of these class members’ claims”); Mazza, 666 F.3d at 596 (holding that

13

“[i]n the absence of [a] massive advertising campaign” “where there was little doubt that almost

14

every class member had been exposed to defendants’ misleading statements,” “the relevant class

15

must be defined in such a way as to include only members who were exposed to advertising that is

16

alleged to be materially misleading”).

17

However, Kellogg acknowledges that Plaintiff “sidestep[s]” this “lack of uniform and

18

consistent exposure” problem “by defining the subclasses to include only those individuals who

19

purchased versions of the products that included the challenged statements on the packaging.”

20

Opp. at 14. For example, in order to account for the fact that not all Raisin Bran and Raisin Bran

21

Crunch packaging displayed a “heart healthy” statement during the class period, Plaintiff has

22

defined the Raisin Bran Subclass to include only the “persons in California” who bought Raisin

23

Bran or Raisin Bran Crunch in a “package stating ‘heart healthy.’” Mot. at 1 (emphasis added).

24

By defining the Raisin Bran Subclass in this way, Plaintiff has ensured that all Raisin Bran

25

Subclass members were by definition exposed to a “heart healthy” statement, and has thereby

26

eliminated all “factual differences regarding . . . exposure” to that statement that could give rise to

27
28

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2

predominance issues. In re Hyundai, 881 F.3d at 705.
Kellogg argues that Plaintiff should not be allowed to define the subclasses in this way
because such an allowance would enable Plaintiff to “effectively evade a lack of uniform exposure

4

by gerrymandering the class to encompass only those individuals who saw specific advertisements

5

and labels over a years-long period while excluding those who did not.” Opp. at 14. However,

6

Kellogg marshals no persuasive arguments or case law to demonstrate why narrowly defining

7

classes in fraudulent product labeling cases “to encompass only those individuals who saw [the]

8

specific” challenged health statements is inappropriate. Id. On the contrary, this appears to be an

9

accepted and uncontroversial approach to class definition. See Astiana v. Kashi Co. 291 F.R.D.

10

493, 500 (S.D. Cal. 2013) (certifying a class of “all [California] customers who purchased Kashi

11
United States District Court
Northern District of California

3

products during the class period that were labeled as containing ‘Nothing Artificial.’”); cf. Inland

12

Empire—Immigrant Youth Collective v. Nielsen, 2018 WL 1081408, at *8 (C.D. Cal. Feb. 26,

13

2018) (“As for the requirement that class members ‘have suffered the same injury,’ Dukes, 565

14

U.S. at 349–50, the narrow tailoring of the class definition—to include only those individuals who

15

lost their DACA without notice and did not commit disqualifying criminal offenses—ensures

16

commonality of injury.”). Indeed, Plaintiff’s allegedly improper “gerrymandering” of the class

17

definitions in the instant case—for example, defining the Raisin Bran Subclass to include only

18

those California consumers who bought Raisin Bran or Raisin Bran Crunch in a “package stating

19

‘heart healthy,’” Mot. at 1—appears to align neatly with the Ninth Circuit’s directive in Mazza

20

that “the relevant class must be defined in such a way as to include only members who were

21

exposed to advertising that is alleged to be materially misleading.” 666 F.3d at 596.

22

The only case that Kellogg cites in support of its argument is this Court’s order denying

23

class certification in Bruton v. Gerber Products Co., 2018 WL 1009257 (N.D. Cal. Feb. 13, 2018).

24

In particular, Kellogg asserts that in Bruton, “[t]his Court rejected th[e] precise [class definition]

25

tactic” used by Plaintiff in the instant case because “even though the plaintiffs’ counsel [in Bruton]

26

tried to define the class to include only those who purchased products labeled with ‘one or more of

27
28

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the following [challenged] claims,’ this Court nonetheless held that individual issues

2

predominated because the Court would need to determine whether each consumer purchased a

3

product with one of the challenged statements.” Opp. at 14 (quoting Bruton, 2018 WL 1009257 at

4

*2). Kellogg misreads this Court’s Bruton class certification order. In that order, while discussing

5

the viability of the plaintiff’s proposed damages model, the Court did note that 66 of the 69

6

products at issue “had multiple label iterations with material variation—some labels contained the

7

challenged statements, some did not.” Id. at *10 (internal quotation marks omitted). The Court

8

concluded that this was problematic for the proposed damages model because “the proposed

9

[damages model] presumes [that the plaintiff] will be able to determine precisely when consumers
were buying Gerber products with the challenged label statements, and when consumers were

11
United States District Court
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10

buying Gerber products without the challenged label statements,” but that assumption was

12

“mistaken.” Id. at *11. Thus, in Bruton, the Court clearly did not disapprove of how the plaintiff

13

narrowly defined the class to include only those California consumers who purchased products

14

labeled with “one or more” of the challenged statements at issue in that case. Id. at *2. Instead,

15

the Court merely determined that the plaintiff’s proposed damages model was rendered

16

unworkable by the fact that some of the products at issue in Bruton did not display the challenged

17

statements for some stretches of time during the class period. See id. at *11. As discussed below,

18

Kellogg raises this issue with regards to Plaintiff’s proposed hedonic regression damages model.
In sum, the Court concludes that, contrary to Kellogg’s view, Plaintiff properly defined the

19
20

subclasses narrowly in order to avoid the individualized issues that would have otherwise arisen

21

from the variations in the packaging for Raisin Bran, Nutri-Grain, and Smart Start during the class

22

period.

23
24

b. “Lightly Sweetened” and “Wholesome Goodness”
Kellogg points out that although “each package of Frosted Mini-Wheats and Smart Start”

25

sold during the class period displayed a “lightly sweetened” statement “as part of the phrase

26

‘lightly sweetened whole grain cereal’ or ‘lightly sweetened, toasted multi-grain flakes,’” that

27
28

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statement only “appear[ed] in miniscule font” and was “not featured or highlighted—whether

2

measured by size, unique font, placement, coloring, or any other metric.” Opp. at 15. Similarly,

3

Kellogg further states that “the phrase ‘wholesome goodness’ appeared only on the back panel of

4

some Nutri-Grain boxes.” Id. at 16 n.5. Kellogg asserts that this is significant for class

5

certification purposes because “[c]ourts have . . . h[e]ld that class certification is inappropriate if

6

some class members may not have seen the allegedly misleading statement, even if it appeared on

7

each package.” Id. at 15. In other words, the crux of Kellogg’s argument is that because the

8

“lightly sweetened” and “wholesome goodness” statements were not sufficiently prominently

9

displayed on the packaging for Frosted Mini-Wheats, Smart Start, and Nutri-Grain, class

10

United States District Court
Northern District of California

11

certification is inappropriate for those statements and/or products.
However, the only case that Kellogg cites to reinforce its argument—this Court’s order

12

denying class certification in Philips v. Ford Motor Co., 2016 WL 7428810 (N.D. Cal. Dec. 22,

13

2016)—plainly does not support Kellogg’s assertion that “class certification is inappropriate if

14

some class members may not have seen the allegedly misleading statement, even if it appeared on

15

each package.” Opp. at 15. The key predominance issue in Philips was not about whether certain

16

allegedly misleading statements were sufficiently prominently displayed on product packaging.

17

Instead, the plaintiffs in Philips alleged that Ford fraudulently concealed a power steering defect in

18

certain vehicles, and this Court concluded that the plaintiffs could not satisfy the predominance

19

requirement because “an unknown number of class members saw warnings regarding [the alleged

20

power steering defect] in the owner’s manual” for the vehicles, and therefore “the Court would be

21

forced to conduct individual inquiries to discover which class members read the owner’s manual

22

and which did not.” Philips, 2016 WL 7428810 at *23. Exposure to statements displayed on the

23

outside of a product’s packaging is clearly more likely, and therefore much easier to infer, than

24

exposure to statements buried in the middle of an owner’s manual. Indeed, courts have repeatedly

25

recognized that “[w]here the alleged misrepresentation appears on the label or packaging of each

26

item being sold, class-wide exposure to it may be inferred.” Zakaria v. Gerber, 2016 WL

27
28

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6662723, at *8 (N.D. Cal. Mar. 23, 2016); see Ehret v. Uber Techs., Inc., 148 F. Supp. 3d 884,

2

895 (N.D. Cal. 2015) (“On the other hand, in numerous cases involving claims of false-

3

advertising, class-wide exposure has been inferred because the alleged misrepresentation is on the

4

packaging of the item being sold. In such a case, given the inherently high likelihood that in the

5

process of buying the product, the consumer would have seen the misleading statement on the

6

product and thus been exposed to it, exposure on a classwide basis may be deemed sufficient.”);

7

see also Tait, 289 F.R.D at 482 (“Thus, Mazza stands for the unremarkable proposition that it is

8

difficult to certify a class where the class members are not all exposed to the same representations.

9

This proposition has no relevance to the present case, where Plaintiffs’ theory is that Defendant’s

10

omissions violated the UCL, FAL, and CLRA and that partial representations on the product itself

11
United States District Court
Northern District of California

1

are misleading.”).

12

That being said, the court in Zakaria also recognized that an inference of class-wide

13

exposure to an alleged misrepresentation affixed to a product’s packaging might not be warranted

14

if the alleged misrepresentation is not sufficiently prominently displayed on the packaging.

15

Specifically, the Zakaria court observed that one of the alleged misrepresentations in that case—a

16

statement claiming that Gerber’s “Good Start Gentle” product could reduce “the risk of atopic

17

dermatitis”—was displayed “in small font” in the middle of a block of text “on the back . . . cover”

18

of the product. 2016 WL 6662723 at *8. The court found that because this alleged

19

misrepresentation was not “prominently displayed,” “it cannot be inferred that there is a ‘high

20

likelihood that in the process of buying the product, the consumer would have seen the misleading

21

statement on the product and thus been exposed to it.’” Id. (quoting Ehret, 2015 WL 7759464 at

22

*8). Subsequently, the Zakaria court contrasted this alleged misrepresentation with another

23

alleged misrepresentation—a statement claiming that Gerber’s “Good Start Gentle” could reduce

24

the risk of developing allergies—and found that an inference of class-wide exposure to the allergy

25

statement was warranted because the allergy statement was “displayed prominently on the top

26

front of the Good Start Gentle containers.” Id.

27
28

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In the instant case, the Court finds that class-wide exposure to the “wholesome goodness”

2

phrase on Nutri-Grain packaging cannot be inferred. Much like the “atopic dermatitis” statement

3

in Zakaria, “wholesome goodness” only appeared (1) on the back panel of the Nutri-Grain

4

packaging; (2) “in small font”; and (3) in the middle of a block of text. 2016 WL 6662723 at *8;

5

see ECF No. 160-7; ECF No. 130 Exhs. 19–22. Thus, the “wholesome goodness” phrase on

6

Nutri-Grain packaging was not sufficiently “prominently displayed” to warrant an inference of

7

class-wide exposure. Zakaria, 2016 WL 6662723 at *8.

8
9

However, the Court cannot say the same for the “lightly sweetened” statement displayed
on the packaging for Frosted Mini-Wheats and Smart Start. Although this statement does appear
in relatively small font “as part of the phrase ‘lightly sweetened whole grain cereal’ or ‘lightly

11
United States District Court
Northern District of California

10

sweetened, toasted multi-grain flakes,’” Opp. at 15, it is displayed in the center of the front panel

12

of the packaging for Frosted Mini-Wheats and Smart Start, and is not located in the middle of a

13

block of text. See ECF Nos. 160-5 & 160-6. As a result, the Court cannot conclude that an

14

inference of class-wide exposure to the “lightly sweetened” statement is unwarranted.

15

Because class-wide exposure to the “wholesome goodness” phrase on Nutri-Grain

16

packaging cannot be inferred, in order to resolve Kellogg’s liability for that phrase, the Court

17

would have to engage in individualized inquiries to discover which members of the Nutri-Grain

18

Soft-Baked Breakfast Bar Subclass actually saw “wholesome goodness” and which did not.

19

Additionally, the “wholesome goodness” phrase is the only statement on the packaging for Nutri-

20

Grain Soft-Baked Breakfast Bars that Plaintiff challenges as misleading. See ECF No. 130 Exhs.

21

19–22. As a result, Plaintiff fails to meet Rule 23(b)(3)’s predominance requirement for his

22

proposed Nutri-Grain Soft-Baked Breakfast Bar Subclass. Accordingly, the Court DENIES

23

Plaintiff’s motion for class certification as to the proposed Nutri-Grain Soft-Baked Breakfast Bar

24

Subclass.

25

2. Individualized Health Effects

26

Kellogg’s second argument against predominance is that “the alleged falsity of the

27
28

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challenged statements” “differs for each consumer” because “the health impact of consuming [the]

2

added sugar” in the Kellogg products at issue in the instant case varies person-by-person,

3

depending on, inter alia, a person’s “age, gender, metabolism, general eating habits, activity level,

4

genetic factors, and other health conditions.” Opp. at 16–17. Kellogg asserts that “the challenged

5

statements are false” or misleading to a particular person only if “the amount of added sugar [in

6

the products at issue] causes physical harm” to that specific person “in the form of increased risk

7

of diabetes, heart disease, and other ailments.” Id. at 16 (emphasis added). Therefore, Kellogg

8

states that “if consumption of Kellogg’[s] . . . cereal has no negative impact on a specific person’s

9

health, then the challenged statements (such as ‘wholesome goodness’ or ‘heart health’) are not

10

false as to that person.” Id.
Kellogg’s argument is not well-taken. As mentioned above, under the FAL, CLRA, and

United States District Court
Northern District of California

11
12

the “fraudulent” prong of the UCL, the issue of whether a particular statement on a product’s

13

packaging or labeling is false, deceptive, or materially misleading is evaluated according to an

14

objective “reasonable consumer” standard. Lavie, 105 Cal. App. 4th at 507; see Yumul v. Smart

15

Balance, Inc., 733 F. Supp. 2d 1117, 1125 (C.D. Cal. 2010) (explaining that a “reasonable

16

consumer” standard applies to product mislabeling claims under FAL, CLRA, and UCL). Thus,

17

contrary to Kellogg’s view, the actual physical “impact” of the products at issue on any “specific

18

[class member’s] health” has no bearing on whether the challenged health statements are false,

19

deceptive, or materially misleading under the FAL, CLRA, or the “fraudulent” prong of the UCL.

20

Opp. at 16. Instead, the falsity or deceptiveness of the challenged health statements on the

21

products at issue will be determined based solely on whether the health statements are likely to

22

deceive or mislead a hypothetical reasonable consumer in light of the amount of added sugar that

23

Kellogg puts into those products. As a result, “the alleged falsity of the challenged statements”

24

will not “differ[] for each consumer” based on that consumer’s individual health circumstances,

25

and thus there will be no need to inquire into each class member’s “unique circumstances.” Opp.

26

at 16.

27
28

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Kellogg’s unpersuasive argument appears to stem from a mistaken assumption that the

2

injury that Plaintiff is seeking to redress in the instant case is physical in nature. For example,

3

Kellogg relies on two false advertising cases, Gartin v. S & M NuTec LLC, 245 F.R.D. 429 (C.D.

4

Cal. 2007), and Pelman v. McDonald’s Corp., 272 F.R.D. 82 (S.D.N.Y 2010), in which the

5

plaintiffs sought to recover for physical harms caused by the allegedly false advertising on behalf

6

of putative classes. Opp. at 17; see Gartin, 245 F.R.D. at 432–33 (explaining that the plaintiffs

7

alleged that the defendant failed to “disclose certain dangers associated with” defendant’s dog

8

treats, and that the plaintiffs sought to recover for the physical harms suffered by their dogs as a

9

result of the defendant’s failure to disclose these risks); Pelman, 272 F.R.D. at 84–85 (“Plaintiffs

10

claim that the effect of Defendant’s affirmative representations and material omissions throughout

11
United States District Court
Northern District of California

1

this marketing scheme—from 1985 until the filing of this case in 2002—was to mislead

12

consumers into falsely believing that Defendant’s food products may be consumed on a daily basis

13

without incurring any adverse health effects, and that, as a result of this marketing scheme,

14

Plaintiffs and putative class members suffered injury in the form of, inter alia, the development of

15

certain adverse medical conditions.”(emphasis added)). In both Gartin and Pelman, class

16

certification was denied because individual factual issues regarding whether the challenged

17

products actually caused physical harm to each of the class members would predominate over

18

common questions. See Gartin, 245 F.R.D. at 436 (“Individual factual issues are likely to

19

predominate the disposition of the class members’ claims. For example, individual factual issues

20

will predominate the determination of whether any alleged defects in Greenies proximately caused

21

putative class members’ pets’ injuries. . . . Other unique factors will also affect the causation

22

analysis, such as the dog’s unique medical history, environment, age, and diet.”); Pelman, 272

23

F.R.D. at 94 (“The court therefore concludes that, because factual questions with regard to, at the

24

very least, the nutritional composition of food products consumed by each plaintiff from sources

25

other than Defendant’s facilities, as well as the level of regular physical activity engaged in by

26

each plaintiff, predominate in the inquiry with respect to an essential element of Plaintiffs’ cause

27
28

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1

of action, this case is not appropriate for adjudication on a class-wide basis.”). Kellogg relies on

2

both Gartin and Pelman to argue that the predominance requirement has not been satisfied in the

3

instant case. See Opp. at 17.

4

However, as Plaintiff points out, the instant action does not seek redress for any physical
harms caused by Kellogg’s packaging statements. Instead, Plaintiff “is seeking to recover for the

6

economic injury caused by Kellogg representing that its . . . foods are healthy.” Reply at 4.

7

Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111 (N.D. Cal. 2010), a case that involved

8

health statements that are similar to those in the instant case, is instructive on this point. In

9

Chacanaca, the plaintiffs brought a putative class action asserting that the defendant violated the

10

FAL, CLRA, and UCL by “label[ing] and market[ing]” “defendant’s Chewy Bars product . . . to

11
United States District Court
Northern District of California

5

suggest that they are in fact wholesome and healthful” even though the Chewy Bars contained

12

“dangerous amounts of trans fat.” Id. at 1114. The defendant in Chacanaca argued that the

13

plaintiffs failed to “establish[] an injury in fact” for Article III standing purposes because they

14

“categorically failed to plead any health-related ailments or impact from consumption of the trans

15

fat-laden snacks.” Id. at 1124–25. The court rejected this argument, explaining that the plaintiffs

16

“correctly point out that the particular harm for which they seek redress is not health related.

17

Rather, the claims sound in deception, unfairness and false advertising.” Id. at 1125. The

18

Chacanaca court further explained that “[t]he injury alleged here is the purchase of food products

19

that contain an ingredient the plaintiffs find objectionable.” Id. As in Chacanaca, “the particular

20

harm for which” Plaintiff “seek[s] redress” in the instant case “is not health related” in any

21

relevant sense. Id. Instead, like the plaintiff in Chacanaca, Plaintiff seeks redress for economic

22

injuries caused by Kellogg’s challenged health statements. As a result, both Gartin and Pelman

23

are inapposite and do not have any bearing on whether the predominance requirement of Rule

24

23(b)(3) is satisfied in the instant case.

25
26
27
28

Kellogg’s reliance on In re Vioxx Class Cases, 180 Cal. App. 4th 116 (2009), Opp. at 17, is
also unavailing. In Vioxx, the plaintiffs brought a putative class action alleging that Merck
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violated the FAL, CLRA, and UCL because it “knew about” certain “dangers of Vioxx”—“a pain-

2

relieving drug” manufactured and marketed by Merck—but nonetheless “engaged in a campaign

3

to hide or explain away those risks.” 180 Cal. App. 4th at 120. The Vioxx court denied class

4

certification in part because “the materiality of any” alleged misrepresentations by Merck about

5

the risks of Vioxx could not “be presumed” on a class-wide basis, and instead had to be evaluated

6

on an individualized basis. Id. at 134. According to the Vioxx court, this was because (1)

7

consumers could only obtain Vioxx through a prescription from a physician; and therefore (2) in

8

addition to Merck’s representations about the risks of Vioxx, “physicians consider many patient-

9

specific factors in determining” whether to prescribe Vioxx, “including the patient’s history and
drug allergies, the condition being treated, and the potential for adverse reactions with the patient’s

11
United States District Court
Northern District of California

10

other medications.” Id. Thus, because “all of these patient-specific factors are a part of” a

12

physician’s decision to prescribe Vioxx, a court would have to engage in individualized patient-

13

by-patient inquiries to determine whether Merck’s representations about the risks of Vioxx were

14

actually material “to any particular prescribing decision.” Id.

15

In contrast to Vioxx, access to the cereal products at issue is not similarly restricted and is

16

generally available to all consumers. Thus, access is in no way determined on an individualized

17

basis by third-party medical professionals who are required to take patient-specific factors into

18

account when making prescription decisions. In other words, in the instant case, because

19

consumers do not need to obtain Kellogg’s cereal products by prescription, there is no risk that the

20

materiality of the challenged statements will vary from class member to class member because of

21

the patient-specific determinations inherent in any physician’s prescription decision-making

22

process.

23

For these reasons, the Court disagrees with Kellogg’s contention that “individual issues

24

predominate” in the instant case “because the health impact of consuming added sugar . . . differs

25

for each consumer.” Opp. at 16.

26
27
28

3. Damages Models
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Although individual damages calculations alone do not make class certification

2

inappropriate under Rule 23(b)(3), see Leyva v. Medline Indus., Inc., 716 F.3d 510, 514 (9th Cir.

3

2013) (“[T]he amount of damages is invariably an individual question and does not defeat class

4

action treatment.”), the United States Supreme Court has held that the plaintiff bears the burden of

5

providing a damages model showing that “damages are susceptible of measurement across the

6

entire class for purposes of Rule 23(b)(3).” Comcast, 569 U.S. at 35. The damages model “must

7

measure only those damages attributable to” the plaintiff’s theory of liability. Id. If the plaintiff

8

does not offer a plausible damages model that matches her theory of liability, “the problem is not

9

just that the Court will have to look into individual situations to determine the appropriate measure
of damages; it is that Plaintiffs have not even told the Court what data it should look for.” In re

11
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10

MyFord Touch Consumer Litig., 2016 WL 7734558, at *15 (N.D. Cal. Sept. 14, 2016) (“MyFord

12

Touch I”).

13

Kellogg’s third predominance argument is that none of Plaintiff’s proposed damages

14

models satisfy the requirements set forth in Comcast. See Opp. at 20–29. Plaintiff proposes three

15

damages models: (1) a “[c]onjoint analysis”; (2) a “hedonic regression”; and (3) an “advantage

16

realized model.” Mot. at 22–25. Plaintiff states that both the conjoint analysis and the hedonic

17

regression correspond with Plaintiff’s affirmative misrepresentation theory of liability, while the

18

advantage realized model corresponds with Plaintiff’s deceptive omission theory of liability. See

19

id. The Court considers each of these damages models in turn.

20
21

a. Conjoint Analysis
As discussed above, Plaintiff’s affirmative misrepresentation theory of liability is that (1)

22

the challenged health statements amount to affirmative misrepresentations that violate the FAL,

23

the CLRA, and the UCL’s “fraudulent” prong; and (2) these misrepresentations caused consumers

24

(including Plaintiff) to “pa[y] more for the Kellogg cereals and bars” than they otherwise would

25

have. SAC ¶ 273. In other words, consumers “would only have been willing to pay less” for

26

these Kellogg products—or would have been “unwilling to purchase them at all”—“absent the

27
28

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

[challenged health] statements” identified by Plaintiff. Id. Accordingly, one of Plaintiff’s

2

damages experts, Steven Gaskin, proposes a “choice-based conjoint analysis” damages model.

3

ECF No. 134 (“Gaskin Decl.”) at 4. As Gaskin notes, “[t]he general idea behind conjoint analysis

4

is that the market value for a particular product is driven by features or descriptions of features

5

embodied in that product.” Id. at 7. Survey respondents are therefore asked to choose between

6

different sets of product attributes, the responses are aggregated, and statistical methods are then

7

used to determine the value (often termed “partworth”) that consumers attach to each specific

8

attribute. Id. at 7–10; In re NJOY, Inc. Consumer Class Action Litig., 120 F. Supp. 3d 1050, 1073

9

(C.D. Cal. 2015) (discussing conjoint analysis).

10

In the instant case, Gaskin proposes to ask survey respondents to choose between

United States District Court
Northern District of California

11

hypothetical cereal or breakfast bar products that differ in brand, flavor, labeling statements, price,

12

and, for the survey corresponding to Kellogg’s Frosted Mini Wheats, biscuit size. Gaskin Decl. at

13

16–21. Gaskin states that “[t]he range of prices [he] propose[s] to use in this conjoint analysis

14

mirrors those actually observed in the market and is based on actual sales data.” Id. at 12. Gaskin

15

also proposes to use in his conjoint analysis quantity figures that reflect the quantities of the

16

challenged products that were actually sold during the class period, in order to further “account[]

17

for appropriate market considerations, including the fact that the number of Kellogg’s Raisin Bran,

18

Frosted Mini Wheats, [and] Smart Start . . . purchased is fixed as a matter of history, which is to

19

say that their sale is a matter of historical fact.” Id. at 11. Additionally, Gaskin explains that the

20

set of labeling statements shown to survey respondents will be comprised of a mixture of the

21

alleged affirmative misrepresentations (for example, “Heart Healthy”) and some “distractor”

22

statements (for example, “Excellent Source of Fiber”). Id. at 17–21.

23

Gaskin states that, based on these survey inputs, the conjoint analysis will yield estimates

24

of the “market price premia” associated with the alleged affirmative misrepresentations in the

25

instant case. Id. at 11. In other words, the conjoint analysis will isolate the monetary value that

26

consumers in the cereal market (as it existed over the class period) attached to the alleged

27
28

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P. GASKIN

1

affirmative misrepresentations. It is well-established that the “‘price premium’ attributable to” an

2

alleged misrepresentation on product labeling or packaging is a valid measure of damages in a

3

mislabeling case under the FAL, CLRA, and UCL. Brazil v. Dole Packaged Foods, LLC, 660 F.

4

App’x 531, 534 (9th Cir. 2016); see Werdebaugh v. Blue Diamond Growers, 2014 WL 2191901,

5

at *22 (N.D. Cal. May 23, 2014) (“The proper measure of restitution in a mislabeling case is the

6

amount necessary to compensate the purchaser for the difference between a product as labeled and

7

the product as received.”). Accordingly, Plaintiff asserts that Gaskin’s proposed conjoint analysis

8

satisfies Comcast’s requirement that Plaintiff’s damages model must “measure only those

9

damages attributable to” Plaintiff’s affirmative misrepresentation theory of liability. 569 U.S. at

10

United States District Court
Northern District of California

11

35; see Mot. at 24.
Kellogg advances two sets of arguments against Gaskin’s proposed conjoint analysis.

12

First, Kellogg argues that the conjoint analysis fails to satisfy Comcast because it only seeks to

13

measure people’s subjective willingness to pay, or demand, without considering the supply side of

14

the equation—or, put another way, “other market factors that determine a product’s price.” Opp.

15

at 21–23. Second, Kellogg asserts that the conjoint analysis “suffers from egregious

16

methodological flaws that doom it under” Daubert, and explicitly references its motion to exclude

17

Gaskin’s opinion testimony under Daubert. Opp. at 23–24 (citing Gaskin Daubert Mot. at 9–19).

18

The Court addresses these arguments in turn.

19

i. Supply-Side Factors

20

As discussed above, Kellogg argues that Gaskin’s proposed conjoint analysis measures

21

“consumers’ subjective willingness to pay for the challenged statement[s]”—or in other words,

22

consumer demand—without considering the supply side of the equation. Opp. at 21.

23

Consequently, according to Kellogg, the conjoint analysis cannot possibly “calculate the price

24

premium charged by Kellogg for the challenged statement[s]” because “‘the ultimate price of a

25

product is a combination of market demand and market supply.’” Id. (quoting Apple, Inc. v.

26

Samsung Elecs. Co., 2014 WL 976898, at *2 (N.D. Cal. Mar. 6, 2014). Kellogg relies on two

27
28

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P. GASKIN

cases in particular, In re NJOY and Saavedra v. Eli Lilly & Co., 2014 WL 7338930 (C.D. Cal.

2

Dec. 18, 2014), see Opp. at 22–23, both of which rejected proposed conjoint analyses because

3

those analyses looked “only ‘to the demand side of the market equation,’ converting what is

4

properly ‘an objective evaluation of relative fair market values into a seemingly subjective inquiry

5

of what an average consumer wants.’” In re NJOY, 120 F. Supp. 3d at 1119 (quoting Saavedra,

6

2014 WL 7338930 at *5); see also id. (stating that the damages expert’s conjoint analysis

7

“provide[d] only a model for testing what a consumer is willing to pay, without considering other

8

factors in a functioning marketplace”); id. at 1122 (“[T]he willingness to pay for products with or

9

without the message . . . does not permit the court to calculate the true market price of NJOY e-

10

cigarettes absent the purported misrepresentations. Plaintiffs’ damages methodology is therefore

11
United States District Court
Northern District of California

1

deficient under Comcast[.]”).

12

Kellogg is correct that, in cases where price premia are the relevant measure of damages,

13

courts have repeatedly rejected conjoint analyses that only measure demand-side willingness-to-

14

pay. However, courts have also found that conjoint analyses can adequately account for supply-

15

side factors—and can therefore be utilized to estimate price premia without running afoul of

16

Comcast—when (1) the prices used in the surveys underlying the analyses reflect the actual

17

market prices that prevailed during the class period; and (2) the quantities used (or assumed) in the

18

statistical calculations reflect the actual quantities of products sold during the class period. For

19

example, in In re Dial Complete Marketing and Sales Practices Litigation, 320 F.R.D. 326

20

(D.N.H. 2017), the court approved a proposed conjoint analysis where the plaintiffs argued that

21

the conjoint analysis had adequately “account[ed] for the supply side” because “the supply

22

element of the supply and demand price function is fixed” in the analysis “and is set, or included,

23

in the [market] price[s] paid for” the product at issue. Id. at 334 (emphasis added). The court

24

further noted that the proposed conjoint analysis was “one in which quantity (the number of

25

products with the offending claims actually sold) is held constant . . . in determining” the price

26

premium, id. at 336 (emphasis added), which means that the conjoint analysis used a “quantity”

27
28

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P. GASKIN

1

figure that matched the quantity of the challenged product that was actually sold during the class

2

period. The court explained that the reason the proposed conjoint analysis “held” quantity

3

“constant” in this manner was because the conjoint analysis sought to calculate the price premium

4

attributable to the challenged labeling statement by first “calculat[ing] the highest price in the

5

actual market at which Dial could have sold the same number of products without the challenged

6

[statement].” Id. (emphasis added); see also In re MyFord Touch Consumer Litig., 291 F. Supp.

7

3d 936, 969–71 (N.D. Cal. 2018) (“MyFord Touch II”) (approving a nearly identical proposed

8

conjoint analysis from the same expert and finding that the conjoint analysis adequately accounted

9

for supply-side factors “by assuming that the supply—the quantity—was fixed”); Davidson v.
Apple, Inc., 2018 WL 2325426, at *22 (N.D. Cal. May 8, 2018) (finding that a proposed conjoint

11
United States District Court
Northern District of California

10

analysis from the same expert adequately “account[ed] for the supply side of the equation” by

12

holding supply (and therefore quantity) constant).

13

Similarly, in Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 2018 WL 3126385

14

(N.D. Cal. June 26, 2018), the court rejected the defendant’s argument that the plaintiffs’ proposed

15

conjoint analysis ignored supply-side factors and “only considered a consumer’s willingness to

16

pay in the conjoint survey.” Id. at *8. The court concluded that, contrary to the defendant’s

17

position, the proposed conjoint analysis “calculated the price premium consumers paid for the

18

[challenged] claim, and not just a theoretical willingness to pay,” because, among other things, the

19

conjoint survey (1) “used actual market-clearing prices as the basis for the prices in the survey”;

20

and (2) “took into account the fixed quantity of supply of [the product] because those sales

21

occurred in the past.” Id. at *8 (emphases added) (internal quotation marks omitted). Likewise,

22

in In re Lenovo Adware Litigation, 2016 WL 6277245 (N.D. Cal. Oct. 27, 2016), the court found

23

that a proposed conjoint analysis adequately “ensure[d] that the results [of the conjoint analysis]

24

would ‘reflect the market’”—and not just demand-side willingness-to-pay—by (1) incorporating

25

the market “‘pric[es] of the [products] at issue [and of] comparable [products]’” into the survey;

26

and (2) holding quantity constant “because all sales of the [products] at issue have occurred in the

27
28

26
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1
2

past.” Id. at *21 (internal quotation marks omitted).
In the instant case, the Court finds that, contrary to Kellogg’s view, Gaskin’s proposed

3

conjoint analysis adequately accounts for supply-side factors and does not merely measure

4

demand-side willingness-to-pay. Like the conjoint analyses in Dial, MyFord Touch II, Davidson,

5

Fitzhenry-Russell, and Lenovo Adware, Gaskin’s proposed conjoint analysis (1) utilizes prices that

6

“mirror[] those actually observed in the market” and that are “based on actual sales data,” Gaskin

7

Decl. at 12; and (2) holds quantity constant—by using the quantities of the challenged products

8

that were actually sold during the class period—in order to “account[]” for “the fact that the

9

number of Kellogg’s Raisin Bran, Frosted Mini Wheats, [and] Smart Start . . . purchased is fixed
as a matter of history, which is to say that their sale is a matter of historical fact.” Id. at 11.

11
United States District Court
Northern District of California

10

Plaintiff explains that these measures adequately account for supply-side market factors because

12

“all the factors that affected Kellogg’s willingness to sell”—i.e., supply—“during the class period,

13

like cost of goods, are reflected in the sales [quantity] and prices that were actually extant in the

14

market during that time.” Reply at 16. Consequently, Gaskin’s proposed conjoint analysis is

15

materially distinguishable from the conjoint analyses that were rejected in In re NJOY and

16

Saavedra for failure to account for supply-side factors. See In re NJOY, 120 F. Supp. 3d at 1119

17

(rejecting conjoint analysis damages model because it “completely ignores the price for which

18

NJOY is willing to sell its products”); Saavedra, 2014 WL 7338930 at *5 (rejecting conjoint

19

analysis model because it failed to consider “willingness to sell”). Accordingly, Kellogg’s

20

argument that Gaskin’s proposed conjoint analysis fails to satisfy Comcast because it “only seeks

21

to measure people’s willingness-to-pay” is unavailing. Opp. at 21.

22
23

ii. Daubert Arguments
Kellogg also argues that Gaskin’s proposed conjoint analysis “suffers from egregious

24

methodological flaws that doom it under” Daubert, and explicitly references Kellogg’s motion to

25

exclude Gaskin’s expert testimony based on Daubert. Opp. at 23–24 (citing Gaskin Daubert Mot.

26

at 9–19). However, whether Gaskin’s proposed conjoint analysis is sufficiently reliable from a

27
28

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

methodological standpoint—and therefore admissible under Daubert—is a different issue from

2

whether the conjoint analysis satisfies Comcast. See In re ConAgra Foods, Inc., 90 F. Supp. 3d

3

919, 946 (C.D. Cal. 2015) (“Admissibility [under Daubert] turns on whether [an expert’s]

4

methodology is sufficiently reliable; whether it satisfies Comcast and shows that a class should be

5

certified is another question altogether.”). Nonetheless, the Court will rule on Kellogg’s motion to

6

exclude Gaskin’s opinion testimony under Daubert (ECF No. 167) in this order. The Court deems

7

this necessary because if Gaskin’s opinion testimony regarding his proposed conjoint analysis is

8

found to be inadmissible, and if his conjoint analysis turns out to be the only damages model that

9

satisfies Comcast, then a class cannot be certified in the instant case.

10

Federal Rule of Evidence 702 allows admission of “scientific, technical, or other

United States District Court
Northern District of California

11

specialized knowledge” by a qualified expert if it will “help the trier of fact to understand the

12

evidence or to determine a fact in issue.” Fed. R. Evid. 702. Expert testimony is admissible

13

pursuant to Rule 702 if it is both relevant and reliable. Daubert, 509 U.S. at 589. An expert

14

witness may provide opinion testimony if: (1) the testimony is based upon sufficient facts or data;

15

(2) the testimony is the product of reliable principles and methods; and (3) the expert has reliably

16

applied the principles and methods to the facts of the case. Fed. R. Evid. 702. “The duty falls

17

squarely upon the district court to ‘act as a gatekeeper to exclude junk science that does not meet

18

Federal Rule of Evidence 702’s reliability standards.’” Estate of Barabin v. AstenJohnson, Inc.,

19

740 F.3d 457, 463 (9th Cir. 2014) (quoting Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982

20

(9th Cir. 2011)). However, this duty “is to evaluate the soundness of the expert’s methodology,

21

not the correctness of the expert’s conclusions.” Fitzhenry-Russell, 2018 WL 3126385 at *2

22

(citing Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)). Moreover, the inquiry into

23

admissibility of expert opinion is a “flexible one,” where “[s]haky but admissible evidence is to be

24

attacked by cross examination, contrary evidence, and attention to the burden of proof, not

25

exclusion.” Primiano, 598 F.3d at 564 (citing Daubert, 509 U.S. at 594, 596). In other words,

26

“[t]he Court has broad discretion and flexibility in assessing an expert’s reliability.” Fitzhenry-

27
28

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1
2

Russell, 2018 WL 3126385 at *2 (citing Estate of Barabin, 740 F.3d at 463).
In its motion to exclude Gaskin’s opinion testimony regarding his proposed conjoint

3

analysis, Kellogg does not appear to dispute “that conjoint analysis is a well-accepted economic

4

methodology.” In re Dial, 320 F.R.D. at 331; Miller v. Fuhu Inc., 2015 WL 7776794, at *21

5

(C.D. Cal. Dec. 1, 2015) (stating that “numerous courts . . . have accepted” conjoint analyses “as

6

reliable methodologies for calculating price premiums on a classwide basis in consumer class

7

actions”); Odyssey Wireless, Inc. v. Apple Inc., 2016 WL 7644790, at *9 (S.D. Cal. Sept. 14,

8

2017) (“Further, a conjoint analysis is a generally accepted method for valuing the individual

9

characteristics of a product.”); Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 551 (E.D.N.Y.
2017) (stating that conjoint analyses “have previously been approved in consumer class actions as

11
United States District Court
Northern District of California

10

reliable methodologies available for calculating the price premium attributable to a product

12

characteristic”). Instead, Kellogg asserts that the particular way in which Gaskin proposes to

13

conduct the consumer surveys for his conjoint analysis is “plagued by numerous” methodological

14

“defects.” Gaskin Daubert Mot. at 2.

15

However, the Ninth Circuit has stated that as a general matter, “[c]hallenges to survey

16

methodology go to the weight given the survey, not its admissibility.” Wendt v. Host Int’l, Inc.,

17

125 F.3d 806, 814 (9th Cir. 1997); see also Microsoft Corp. v. Motorola, Inc., 904 F. Supp. 2d

18

1109, 1120 (W.D. Wash. 2012) (“Microsoft’s criticisms of Mr. Sukumar’s survey go to issues of

19

methodology, survey design, reliability . . . [and] critique of conclusions, and therefore go to the

20

weight of the survey rather than its admissibility.”) (internal quotation marks omitted). In the

21

instant case, although Kellogg appears to raise a number of valid concerns about Gaskin’s survey

22

methodology, the Court finds that these alleged defects neither individually nor collectively render

23

Gaskin’s proposed conjoint analysis inadmissible under Daubert.

24

Kellogg’s first two arguments are that Gaskin’s proposed conjoint survey fails to

25

adequately mimic “real-life shopping experience[s]” because it (1) “fails to show the actual

26

product packaging and instead highlights several challenged statements that survey respondents

27
28

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

must read”; and consequently (2) fails to show “the Nutrition Facts panel or ingredient list” that

2

appeared on all product packaging in the instant case. Gaskin Daubert Mot. at 2, 9–14. However,

3

the Ninth Circuit has held that criticisms about a survey’s “fail[ure] to replicate real world

4

conditions”—“valid as they may be”—“go to ‘issues of methodology, design, reliability, . . . and

5

critique of conclusions,’ and therefore ‘go to the weight of the survey rather than its

6

admissibility.’” Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d

7

1025, 1037–38 (9th Cir. 2010) (quoting Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252,

8

1263 (9th Cir. 2010)). Thus, while the Court understands Kellogg’s point that Gaskin’s failure to

9

show Nutrition Facts to survey respondents may deprive respondents of real-life “context to the

10

meaning of the challenged [health] statements,” Gaskin Daubert Mot. at 2, Kellogg’s criticisms

11
United States District Court
Northern District of California

1

about the ways in which Gaskin’s proposed conjoint surveys deviate from real-world shopping

12

conditions do not render Gaskin’s conjoint analysis excludable. Instead, Kellogg will be free to

13

attack Gaskin’s conjoint analysis on these grounds at trial. See Classic Foods Int’l Corp. v. Kettle

14

Foods, Inc., 2006 WL 5187497, *7 (C.D. Cal. Mar. 2, 2006) (“Any survey is of necessity an

15

imperfect mirror of actual customer behavior under real life conditions. Any flaws in the survey

16

may be elucidated on cross-examination, so that the finder of fact can appropriately adjust the

17

weight it gives to the survey’s results.” (internal quotation marks omitted and alteration adopted)).

18

Kellogg’s third argument is that Gaskin’s proposed conjoint survey fails to include other

19

“critical” attributes “that consumers consider” when purchasing breakfast products. Gaskin

20

Daubert Mot. at 2, 14–16. Kellogg specifically identifies “three key factors” that Gaskin “failed to

21

consider”: taste, product names, and promotions. Id. at 15. Kellogg argues that Gaskin’s failure

22

to include these key attributes in his proposed conjoint surveys “will artificially inflate the

23

importance of the attributes that are” included, which in turn will render the results of his analysis

24

unreliable. Id. at 14. But once again, even though Kellogg’s critiques about Gaskin’s failure to

25

include certain attributes in his conjoint survey may be valid, it is well-established that these types

26

of critiques merely go to the weight, but not to the admissibility, of survey-based analyses. See In

27
28

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

re Dial, 320 F.R.D. at 332–33 (“Dial also argues, plausibly, that by limiting the attributes

2

surveyed to four (five, including price), Boedeker’s model fails to adequately take into account

3

and properly weigh other attributes that may well be very important to liquid hand soap consumers

4

(e.g., brand name, or scent, or shape or color of the product). However, . . . those issues—and the

5

myriad others identified by Dial—are either curable, or go to the weight, not admissibility, of

6

Boedeker’s testimony.”); Zakaria, 2017 WL 9512587 at *13 (finding that the defendant’s

7

objections regarding an expert’s failure to account for certain important product attributes in his

8

conjoint surveys “go to weight, not admissibility”); Sanchez-Knutson v. Ford Motor Co., 181 F.

9

Supp. 3d 988, 995 (S.D. Fla. 2016) (“Ford challenges Gaskin’s methodology, including but not
limited to . . . the variables he used [in his conjoint survey]. These arguments go to the weight of

11
United States District Court
Northern District of California

10

the survey, not its admissibility, and may be addressed by cross-examination and the presentation

12

of contrary evidence at trial[.]”). As a result, Gaskin’s purported failure to account for key

13

product attributes in his conjoint survey does not render his opinion testimony inadmissible under

14

Daubert.

15

Next, Kellogg’s fourth argument is that Gaskin’s proposed conjoint analysis “fail[s] to

16

account for the distinct purchasing behaviors of repeat buyers.” Gaskin Daubert Mot. at 17.

17

Kellogg argues that this is important because “Kellogg derives a significant portion of its sales

18

from repeat consumers.” Id. However, Plaintiff vigorously contests Kellogg’s claim that

19

Gaskin’s conjoint analysis fails to account for the behavior of repeat purchasers. ECF No. 181 at

20

21–22. Specifically, Plaintiff points out that under Gaskin’s proposed methodology, the sample of

21

survey respondents will include only consumers who have recently purchased the Kellogg

22

products at issue, and will therefore “presumably reflect a [representative] cross-section of first-

23

time and repeat purchasers.” Id. at 22 (emphasis added); see Gaskin Decl. ¶ 36 (“Respondents

24

must indicate that they have purchased either Kellogg’s Frosted Mini Wheats, Kellogg’s Smart

25

Start, or Kellogg’s Nutri-Grain Soft-Baked Breakfast Bars in the past three months to qualify for

26

the survey.”). In turn, this will “ensur[e]” that “the class-wide measure[s]” for the market price

27
28

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CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

premia generated by Gaskin’s conjoint analysis will accurately “reflect[] both demographics”—

2

that is, first-time and repeat purchasers alike. Id. The Court is inclined to agree with Plaintiff that

3

Gaskin’s proposed conjoint analysis adequately accounts for the behavior of repeat purchasers by

4

including both first-time and repeat purchasers in the pool of survey respondents (and by not

5

actively seeking to bias the pool towards either of these demographics). Further, and in any event,

6

even if Kellogg’s repeat-purchaser criticism were valid, it would only go to the weight, and not to

7

the admissibility, of Gaskin’s proposed conjoint analysis. The practical effect of any failure to

8

account for repeat purchasers would be an overestimation of the market price premia attributable

9

to the challenged health statements at issue in the instant case. “Yet just because the conjoint
survey may result in overestimating the value consumers placed on” the challenged health

11
United States District Court
Northern District of California

10

statements “does not necessarily render the survey excludable.” Fitzhenry-Russell, 2018 WL

12

3126385 at *6. Instead, Kellogg “will be free to attack [Gaskin’s] conjoint study as inflating the

13

price premium at trial.” Id.; see also Estate of Barabin, 740 F.3d at 463 (“Shaky but admissible

14

evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of

15

proof, not exclusion.”).

16

Kellogg’s fifth and final methodological argument is that Gaskin’s proposed conjoint

17

survey “suffers from pervasive focalism bias.” Gaskin Daubert Mot. at 3, 18–19. Kellogg

18

explains that a conjoint survey suffers from focalism bias if it “telegraph[s] to respondents that

19

they are only being tested about a [particular] attribute” or set of attributes. Id. at 18. Kellogg

20

further explains that focalism bias leads to “demand effects,” “whereby survey respondents use

21

cues provided by the survey procedure and questions to figure out the purpose of the survey and

22

what they perceive to be the ‘correct’ answers to the questions they are asked.” Id. Then, Kellogg

23

asserts that Gaskin’s proposed conjoint survey “telegraphs to respondents that the survey is testing

24

the weight attributable to certain health and nutrition statements” because “[a]lmost all of the

25

‘distractor’ statements used in the survey related to the ingredients, nutritional benefits, or health

26

properties of the challenged products.” Id. Kellogg insists that Gaskin “could easily have avoided

27
28

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P. GASKIN

1

this problem” by using distractor statements that “have nothing to do with [the product’s]

2

ingredients, [] nutritional qualities, or [] purported health benefits.” Id. at 19.

3

The Court is not persuaded by Kellogg’s focalism bias argument. As Plaintiff correctly

4

explains, the fact that the distractor claims are similar to the challenged health statements—in that

5

the distractor claims are “also health and wellness claims likely to be important to consumers in

6

choosing products”—makes it harder, not easier, for survey respondents to figure out which

7

specific health statements are being tested by the survey. ECF No. 181 at 23. In other words, if

8

“only the challenged claims but not [the] distractor claims related to health and wellness”—as

9

recommended by Kellogg—“this would create far more focalism bias[] by focusing respondents
on the specific claims of interest.” Id. Gaskin’s entire purpose for including these “distractor

11
United States District Court
Northern District of California

10

claims” was to “obscure which [statements] are of primary interest in the surveys.” Gaskin Decl.

12

¶ 24. The Court agrees with Plaintiff that Gaskin’s proposed distractor claims are better-suited for

13

this task than Kellogg’s recommended distractor claims. Further, and in any event, like all of

14

Kellogg’s other survey methodology concerns, Kellogg’s focalism bias objection goes to the

15

weight, and not to the admissibility, of Gaskin’s proposed conjoint analysis. See Morales v. Kraft

16

Foods Grp., Inc., 2017 WL 2598556, at *15–16 (C.D. Cal. June 9, 2017) (“Defendant also argues

17

that Bodapati failed to conduct a blind survey and instead telegraphed to respondents the purpose

18

of the survey. . . . This phenomenon is known as ‘focalism.’ . . . This is another matter that goes

19

to the weight, not the admissibility of the challenged survey.”).

20

In sum, as the Court noted above, conjoint analysis is widely-accepted as a reliable

21

economic tool for isolating price premia, and the concerns that Kellogg raises are nowhere near

22

severe enough to turn Gaskin’s conjoint analysis into unreliable “junk science.” Estate of

23

Barabin, 740 F.3d at 463. Although some of Kellogg’s critiques regarding Gaskin’s survey

24

methodology appear to be valid, all of them go to the weight, and not to the admissibility, of

25

Gaskin’s proposed conjoint analysis.

26
27
28

Relatedly, towards the end of Kellogg’s motion to exclude Gaskin’s opinion testimony,
33
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

Kellogg briefly argues that Gaskin “should not even be accepted as an expert witness in light of

2

his lack of expertise in consumer behavior.” Gaskin Daubert Mot. at 22. Kellogg’s argument is

3

not well-taken. “Gaskin” is “an expert in the fields of market research and marketing science

4

models.” Sanchez-Knutson, 181 F. Supp. 3d at 995; see Gaskin Decl. Exh. 1-1 (curriculum vitae of

5

Gaskin showing that Gaskin is a principal of “a marketing research and consulting organization”

6

and has almost forty years of quantitative marketing research experience and training). As such,

7

Gaskin’s conjoint analyses have been accepted by federal courts on many occasions, and for a

8

variety of markets and industries. See, e.g., Sanchez-Knutson, 181 F. Supp. 3d at 995

9

(automobiles); Lenovo Adware, 2016 WL 6277245 at *21 (laptops); Khoday v. Symantec Corp.,
93 F. Supp. 3d 1067, 1082–83 (D. Minn. 2015) (internet security software). Thus, the Court

11
United States District Court
Northern District of California

10

rejects Kellogg’s assertion that Gaskin lacks sufficient “expertise in consumer behavior” to be

12

qualified as an expert witness in the instant case. Gaskin Daubert Mot. at 22; see also ECF No.

13

177-4 at 53 (deposition testimony of Gaskin stating that “for many years I’ve worked on new

14

product forecasting, which involves consumer behavior,” as well “other techniques that attempt to

15

measure consumer preferences and behavior” in order to “forecast future behavior”).

16
17
18
19

Accordingly, the Court DENIES Kellogg’s motion to exclude Gaskin’s expert testimony
insofar as it relates to Gaskin’s proposed conjoint analysis.
b. Hedonic Regression
As discussed above, Plaintiff also offers a regression model to measure class-wide

20

damages for Plaintiff’s affirmative misrepresentation theory of liability. Specifically, one of

21

Plaintiff’s other damages experts, Colin Weir, proposes a “hedonic regression” damages model to

22

measure the price premia attributable to the challenged health statements in the instant case. ECF

23

No. 143-1 (“Weir Decl.”) ¶ 29. “Regression analysis” is an “econometric technique” that

24

“identifies and quantifies the relationship between two or more variables.” Id. ¶ 31. According to

25

Weir, “hedonic regression is an application of standard regression techniques” that can be used to

26

“measure the value of various product attributes”—or in other words, the relationship between a

27
28

34
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

particular product attribute and that product’s price. Id. ¶ 32. As such, “[h]edonic regression is

2

based on the concept that each product attribute has a different and measurable impact on

3

aggregate consumer utility.” Id. Weir further notes that “hedonic regression is now widely used

4

by economists” and “has a long history of use for determining damages in class action litigation.”

5

Id. ¶¶ 33–34.

6

Weir states that “[h]edonic regression is an ideal technique for calculating the price

7

difference between the value of the Kellogg Cereals with and without the” challenged health

8

statements. Id. ¶ 50. Weir proposes a hedonic regression that estimates the price premia

9

attributable to the challenged health statements while controlling for many other product attributes
that might have affected price, including brand, promotions, and nutrient content. See id. ¶ 51.

11
United States District Court
Northern District of California

10

Further, Weir stresses that hedonic regression is an “iterative” process that requires “multiple

12

regressions” to “help determine” all the factors that may have affected price. Id. ¶ 52. Weir

13

proposes to run his hedonic regression using a “dataset [that] includes” both the challenged

14

Kellogg products and a set of comparable breakfast products from 16 other “major brands”—

15

including Kellogg’s “three primary competitors, General Mills, Post[,] and Quaker.” Id. ¶ 66.

16

Like with the proposed conjoint analysis discussed above, Kellogg advances two sets of

17

arguments against Weir’s proposed hedonic regression damages model: one asserting that it fails

18

to satisfy Comcast, and another asserting that it is inadmissible under Daubert. See Opp. at 24–

19

28. However, because the Court concluded above that Gaskin’s conjoint analysis—which, like

20

Weir’s hedonic regression, corresponds with Plaintiff’s affirmative misrepresentation theory of

21

liability—satisfies Comcast and is admissible under Daubert, Plaintiff has already established that

22

one of his proposed damages models can validly support his affirmative representation theory of

23

liability on a class-wide basis. Further, in its motion to exclude Weir’s expert testimony, Kellogg

24

raises the same sets of arguments against Weir’s proposed hedonic regression model, and in fact

25

discusses them in greater detail. ECF No. 169. Thus, the Court finds that it need not address

26

Kellogg’s Comcast and Daubert arguments against Weir’s proposed hedonic regression damages

27
28

35
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

model in this class certification order. Instead, the Court will defer ruling on those arguments

2

until the hearing on Kellogg’s motion to exclude Weir’s expert testimony, which is currently set

3

for November 8, 2018, at 1:30 p.m.

4
5

c. Advantage Realized Model
Aside from his affirmative misrepresentation theory of liability, Plaintiff also asserts, inter

6

alia, a deceptive omission theory of liability against Kellogg. Plaintiff’s deceptive omission

7

theory is that Kellogg deceptively “hides” and “omits . . . information regarding the products’ high

8

sugar content” in violation of the FAL, CLRA, and the UCL’s “fraudulent” prong. SAC ¶ 209. In

9

other words, Plaintiff “alleges that Kellogg was under a duty to disclose material information
about the negative health implications of the added sugar in its products,” and that “by failing to

11
United States District Court
Northern District of California

10

do so, [Kellogg] distorted the market demand for its product.” Mot. at 24.

12

Plaintiff states in his motion for class certification that he can provide a damages model

13

that is “consistent with [Plaintiff’s] deceptive omission theory of liability,” and points to an

14

“advantage realized model” proposed by Gaskin. Id. at 24–25. In turn, Gaskin states that his

15

proposed advantage realized damages model utilizes “market research surveys and analyses” to

16

“test the effect of the omitted information regarding the dangers of added sugar consumption” on

17

consumption of, or demand for, the challenged products. Gaskin Decl. ¶ 8(b). Under Gaskin’s

18

proposed methodology for testing the effect of the omitted sugar warnings on demand for Raisin

19

Bran, survey respondents will be randomly assigned to one of two groups—the “Test Group” or

20

the “Control Group.” Id. ¶ 55. Respondents in the Test Group will be shown a page that displays

21

a message—“[s]uppose you see the following statements on the boxes of Raisin Bran that you can

22

buy when you shop in the near future”—and subsequently lists five of the challenged health

23

statements at issue in the instant case, including “HEART HEALTHY,” “Start with a HEALTHY

24

SPOONFUL,” and “INVEST IN YOUR HEALTH, INVEST IN YOURSELF.” Id. ¶ 66. In

25

contrast, respondents in the Control Group will be shown the same page with one additional item:

26

a warning statement that reads “WARNING: DUE TO ITS HIGH ADDED SUGAR CONTENT,

27
28

36
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

CONSUMPTION OF RAISIN BRAN MAY LEAD YOU TO EXCEED THE USDA’S

2

RECOMMENDED DAILY ADDED SUGAR MAXIMUM, WHICH CAN CAUSE TYPE 2

3

DIABETES, HEART DISEASE, FATTY LIVER DISEASE, AND TOOTH DECAY.” Id. Both

4

Test Group and Control Group respondents will then be prompted to answer four questions that

5

are designed to gauge how much Raisin Bran they intend to consume in the near future. The first

6

question “present[s] respondents with three different bowl sizes and ask[s] respondents which

7

bowl, if any, most closely matches in size and depth the bowl they will use when they eat Raisin

8

Bran in the near future.” Id. ¶ 68. Thereafter, the second question presents respondents with

9

“photos of the bowl they chose in” the first question “filled to varying amounts of Raisin Bran,”
and asks respondents to choose the “serving size” that “most closely matches the amount of cereal

11
United States District Court
Northern District of California

10

you plan to pour in the bowl when you eat Raisin Bran in the near future.” Id. ¶ 69. Then, the

12

third question asks respondents to indicate “how often they plan to eat bowls of Raisin Bran like

13

the [bowl] they chose in” the second question “in the near future,” id. ¶ 70, and the final question

14

asks respondents “how many bowls they plan to eat, either per week or month in the near future.”

15

Id. ¶ 71.

16

Gaskin then proposes to calculate the difference in consumption between the Test and

17

Control Groups and to use that difference as a measure of the market advantage that Kellogg

18

gained by omitting information about the risks of added sugar consumption from Raisin Bran

19

packaging. See id. ¶¶ 74, 77. Further, Gaskin notes that he has already “conducted” an advantage

20

realized “survey for Kellogg’s Raisin Bran as a proof of concept.” Id. ¶ 52. The results of that

21

survey “showed that those in the Test Group would have consumed 315.53 servings of Raisin

22

Bran per year . . . and those in the Control Group would have consumed 259.22 servings of Raisin

23

Bran per year.” Id. ¶ 77. In other words, the results of Gaskins’ preliminary advantage realized

24

survey suggest that Kellogg would have sold 17.8% less Raisin Bran if Kellogg had disclosed

25

“information regarding the dangers of sugar consumption” on its Raisin Bran packaging instead of

26

omitting that information. Id. Plaintiff states that this “aggregate difference” can then be “applied

27
28

37
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1
2

to the aggregate sales to determine classwide damages.” Mot. at 24.
Kellogg asserts that Gaskin’s proposed advantage realized model fails to satisfy Comcast

3

because it can only measure the effect that a warning statement would have had on consumer

4

demand for the challenged products, and that effect is unrelated to any class-wide remedy that

5

might be available under Plaintiff’s deceptive omission theory of liability. See Opp. at 28. For the

6

reasons stated below, the Court agrees with Kellogg.

7

Under California law, there are two types of disgorgement remedies: “restitutionary

8

disgorgement, which focuses on the plaintiff’s loss, and nonrestitutionary disgorgement, which

9

focuses on the defendant’s unjust enrichment.” In re Tobacco Cases II, 240 Cal. App. 4th 779,
800 (2015) (internal quotation marks omitted). Restitutionary disgorgement is available as a

11
United States District Court
Northern District of California

10

remedy for Plaintiff’s mislabeling claims under the FAL, CLRA, and UCL. See Chowning v.

12

Kohl’s Department Stores, Inc., 2018 WL 3016908, at *1 (9th Cir. June 18, 2018) (“The proper

13

calculation of restitution in this case is price paid versus value received. Under California law,

14

where a plaintiff obtains value from the product, the proper measure of restitution is ‘the

15

difference between what the plaintiff paid and the value of what the plaintiff received.’” (quoting

16

Vioxx, 180 Cal. App. 4th at 131)). This explains why, as the Court observed above, the price

17

premium attributable to an alleged misrepresentation on product packaging is a valid measure of

18

damages in the affirmative misrepresentation context under the FAL, CLRA, and UCL. See

19

Brazil, 660 F. App’x at 534. Such a price premium clearly “focuses on the plaintiff’s loss,” and

20

therefore falls squarely within the category of restitutionary disgorgement. In re Tobacco Cases

21

II, 240 Cal. App. 4th at 800; see also Werdebaugh, 2015 WL 2191901 at *22 (“The proper

22

measure of restitution in a mislabeling case is the amount necessary to compensate the purchaser

23

for the difference between a product as labeled and the product as received.” (emphasis added)).

24

On the other hand, it is well-established that nonrestitutionary disgorgement, “which

25

focuses on the defendant’s unjust enrichment,” is “unavailable in a . . . class action” under the

26

FAL, CLRA, and UCL. In re Tobacco Cases II, 240 Cal. App. 4th at 800; see Madrid v. Perot

27
28

38
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

Sys. Corp., 130 Cal. App. 4th 440, 460 (2006) (“We disagree and shall conclude that

2

nonrestitutionary disgorgement is not an available remedy in a UCL class action.”); Koehler v.

3

Litehouse, Inc., 2012 WL 6217635, at *7 (N.D. Cal. Dec. 13, 2012) (prohibiting the plaintiff from

4

seeking disgorgement of “ill-gotten gains” under the FAL because (1) this amounted to

5

nonrestitutionary disgorgement; (2) nonrestitutionary disgorgement is not allowed under the UCL;

6

and (3) “[t]he restitutionary remedies of the UCL and FAL . . . are identical and are construed in

7

the same manner” (citing Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163, 177 n.10

8

(2000))); Ivie v. Kraft Foods Global, Inc., 2015 WL 183910, at *2 (N.D. Cal. Jan. 14, 2015)

9

(“[N]onrestitutionary disgorgement is not a remedy under the UCL, FAL, or CLRA.”).

10

As discussed above, Gaskin’s proposed advantage realized model purports to measure how

United States District Court
Northern District of California

11

many fewer challenged products Kellogg would have sold if it had included “information

12

regarding the dangers of sugar consumption” on the products’ packaging. Gaskin Decl. ¶ 77. Put

13

another way, in Plaintiff’s words, Gaskin’s advantage realized model seeks to “quantify[] the

14

‘additional sales’ Kellogg realized by virtue of its” allegedly deceptive omissions. Reply at 19.

15

Thus, the advantage realized model appears to “focus[]” solely on Kellogg’s “unjust

16

enrichment”—i.e., the additional sales Kellogg gained from its allegedly deceptive omissions—

17

and therefore seems to be capable of providing only a measure for nonrestitutionary disgorgement.

18

In re Tobacco Cases II, 240 Cal. App. 4th at 800.

19

Plaintiff does not argue that Gaskin’s proposed advantage realized model can be used to

20

measure the loss incurred by the class—as opposed to the benefit gained by Kellogg—due to

21

Kellogg’s allegedly deceptive omissions. Indeed, Plaintiff makes no effort to explain how the

22

advantage realized model is in any way related to “the plaintiff[s’] loss.” In re Tobacco Cases II,

23

240 Cal. App. 4th at 800. Instead, Plaintiff only argues that (1) nonrestitutionary disgorgement—

24

or Kellogg’s “ill-gotten gain[],” Reply at 19 (internal quotation marks omitted)—is an available

25

class-wide remedy under the FAL, CLRA, and UCL; and (2) price premia are not “‘the only

26

proper measure of restitution’” in the instant case. Id. (quoting Johns v. Bayer Corp., 2012 WL

27
28

39
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

1520030, at *5 (S.D. Cal. Apr. 30, 2012) (alteration adopted)). However, as the Court explained

2

above, nonrestitutionary disgorgement is not a permissible class-wide remedy under the FAL,

3

CLRA, or UCL, and therefore Plaintiff’s first argument is legally erroneous. Further, as to

4

Plaintiff’s second argument, Plaintiff may be correct that price premia are not the only possible

5

measures of restitutionary disgorgement in mislabeling cases under the FAL, CLRA, and UCL,

6

but that does not change the fact that any alternative measure of restitutionary disgorgement must

7

“focus[] on the plaintiff’s loss,” and not “on the defendant’s unjust enrichment,” in order to be

8

valid. In re Tobacco Cases II, 240 Cal. App. 4th at 800. Again, Plaintiff neither argues nor

9

provides any reason to believe that Gaskin’s proposed advantage realized damages model

10

measures or “focuses on” anything other than Kellogg’s purportedly “unjust enrichment.” Id.

United States District Court
Northern District of California

11

Importantly, it is Plaintiff’s burden to demonstrate that his deceptive omission theory of

12

liability is suitable for resolution on a class-wide basis. See Zinser, 253 F.3d at 1186. Because

13

Plaintiff makes no effort to explain how Gaskin’s proposed advantage realized damages model can

14

measure anything other than nonrestitutionary disgorgement, Plaintiff has failed to satisfy his

15

burden to show that the advantage realized model “measure[s] only those damages attributable to”

16

Plaintiff’s deceptive omission theory of liability. Comcast, 569 U.S. at 35. Further, Plaintiff

17

neither states nor makes any effort to demonstrate that either of his other damages models is

18

“consistent with [Plaintiff’s] deceptive omission theory of liability.” Mot. at 24. As a result,

19

Plaintiff has failed to offer any damages model for Plaintiff’s deceptive omission theory of

20

liability that satisfies Comcast.

21

4. Evidence of Deception and Materiality

22

Kellogg’s fourth predominance argument is that Plaintiff “has not provided any evidence

23

of classwide deception or materiality.” Opp. at 29–32. In other words, Kellogg asserts that

24

Plaintiff “has not provided any evidence that the challenged statements are either misleading” or

25

“material.” Id. at 29, 31 (emphasis added).

26
27
28

Kellogg’s argument is unavailing for two reasons. First, it is simply not the case that
40
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

Plaintiff has completely failed to provide “any evidence” that the challenged health statements at

2

issue were either misleading or material. Id. at 29 (emphasis added). With regards to deception,

3

as Plaintiff explains in his reply, Plaintiff has “offered evidence of the nutritional content of the

4

challenged products,” as well as “the testimony of two scientific experts, Drs. Lustig and Greger,

5

explaining the physiological effects of consuming the products and opining as to the veracity of

6

their health and wellness claims in light of the best available science.” Reply at 11. Additionally,

7

as to materiality, Plaintiff has offered, inter alia, (1) the expert testimony of a marketing expert,

8

Bruce Silverman, opining that “the challenged [health statements] convey a material health

9

message, bolstered by the context in which they are presented,” Mot. at 4; and (2) some of
Kellogg’s own internal documents, which, according to Plaintiff, show that Kellogg deliberately

11
United States District Court
Northern District of California

10

crafted and displayed these challenged health statements—after years of meticulously studying

12

consumer behavior and preferences in the cereal market—as part of a full-scale advertising and

13

marketing push to increase sales. See id. at 3–9. To the extent Kellogg argues that Plaintiff’s

14

expert testimony is weak or that Plaintiff lacks consumer survey evidence, see Opp. at 32 (“As

15

indicated in Kellogg’s Daubert motion, Mr. Silverman did not a survey or interview a single

16

consumer to determine if the challenged statements are material.”), that argument is without merit.

17

California courts have explicitly “‘reject[ed] [the] view that a plaintiff must produce’” extrinsic

18

evidence “such as expert testimony or consumer surveys” in order “‘to prevail on a claim that the

19

public is likely to be misled by a representation’” under the FAL, CLRA, or UCL. Colgan v.

20

Leatherman Tool Grp., Inc., 135 Cal. App. 4th 662, 681–82 (2006) (quoting Consumer Advocates

21

v. Echostar Satellite Corp., 113 Cal. App. 4th 1351, 1386 (2003)); see also id. at 682 (“[W]ith

22

regard to the showing of deception, the primary evidence in a false advertising case is the

23

advertising itself.” (internal quotation marks omitted)).

24

Second, and more fundamentally, even if Kellogg is correct in its assertion that Plaintiff

25

has failed to provide sufficient evidence of deception and materiality, that failure has no bearing

26

on whether common questions will predominate over individual questions in the instant case. As

27
28

41
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

the Court has already explained, the questions of whether the challenged health statements were

2

misleading and material must be evaluated according to an objective “reasonable consumer”

3

standard. See Lavie, 105 Cal. App. 4th at 507; Yumul v. Smart Balance, Inc., 733 F. Supp. 2d

4

1117, 1125 (C.D. Cal. 2010) (explaining that a “reasonable consumer” standard applies to product

5

mislabeling claims under the FAL, CLRA, and UCL); Racies v. Quincy Bioscience, LLC, 2017

6

WL 6418910, at *3 (N.D. Cal. Dec. 15, 2017) (“California’s consumer protection laws evaluate

7

materiality under a reasonable person standard, not on an individualized basis.”). Further, because

8

deception and materiality under the FAL, CLRA, and UCL are objective questions, they are “ideal

9

for class certification because they will not require the court to investigate class members’

10

individual interaction with the [challenged] product[s].” Tait, 289 F.R.D. at 480 (internal

11
United States District Court
Northern District of California

1

quotation marks omitted). Put another way, because deception and materiality are objective

12

questions, they are “‘common question[s]’ for purposes of Rule 23(b)(3).” Amgen, 568 U.S. at

13

467 (quoting Basic Inc. v. Levinson, 485 U.S. 224, 242 (1988)). As a result, “[t]here is no risk

14

whatever that a failure of proof on the common question[s] of [deception and] materiality will

15

result in individual questions predominating.” Amgen, 568 U.S. at 468. “Instead, the failure of

16

proof on the element[s] of [deception and] materiality would end the case for one and for all; no

17

claim would remain in which individual . . . issues could potentially predominate.” Id.

18

Kellogg also makes the related argument that Plaintiff has failed to establish predominance

19

under Rule 23(b)(3) because the evidence indicates that consumers of the products at issue did not

20

have a uniform, “common understanding” of many of the challenged health statements. Opp. at

21

30. In other words, Kellogg asserts that because “consumers interpret” the challenged statements

22

“in a wide variety of ways,” the Court will be forced to inquire into each individual class

23

member’s subjective understanding of the challenged statements in order to determine Kellogg’s

24

liability. Id.

25
26
27
28

Once again, Kellogg’s argument is defeated by the fact that deception and materiality
under the FAL, CLRA, and UCL are governed by an objective “reasonable consumer” test.
42
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

Because deception and materiality are objective questions, Plaintiff “has no burden to establish

2

that there is a uniform understanding among putative class members as to the meaning of” the

3

challenged health statements, “or that all or nearly all of [the class members] shared any specific

4

belief.” Pettit v. Procter & Gamble Co., 2017 WL 3310692, at *3 (N.D. Cal. Aug. 3, 2017).

5

Instead, Plaintiff need only make “an objective showing of a probability that a ‘significant portion’

6

of the relevant consumers acting reasonably ‘could be misled’” by the challenged statements. Id.

7

(quoting Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)). Indeed, the Ninth Circuit

8

recently reversed a denial of class certification in a similar product mislabeling case where the

9

district court found that the plaintiff had failed to satisfy predominance because he had not
established that the alleged misrepresentation had a common understanding among consumers.

11
United States District Court
Northern District of California

10

Specifically, in Bradach v. Pharmavite, LLC, 2016 WL 7647661 (C.D. Cal. July 6, 2016), the

12

district court found that the plaintiff had “offered no evidence that consumers uniformly interpret

13

the statement” “Helps Maintain a Healthy Heart” “in a particular manner.” Id. at *5. Based on

14

this finding, the court concluded that Rule 23(b)(3)’s predominance requirement was not met

15

because “an individualized inquiry into each consumer’s interpretation of ‘Helps Maintain a

16

Healthy Heart’ would be required to determine” both “materiality” and “whether each consumer

17

ha[d] non-preempted claims” of falsity. Id. The Ninth Circuit promptly reversed the district

18

court’s denial of class certification in an unpublished opinion. See Bradach v. Pharmavite, LLC,

19

2018 WL 2250508 (9th Cir. May 17, 2018). With regards to the district court’s uniform

20

interpretation finding, the Ninth Circuit held that “the district court’s conclusion that it would need

21

to inquire into the motives of each individual class member was premised on an error of law”

22

because “the standard in actions under both the CLRA and UCL is” an objective standard that

23

focuses on “whether ‘members of the public are likely to be deceived,’” and therefore “class

24

members in CLRA and UCL actions are not required to prove their individual reliance on the

25

allegedly misleading statements.” Id. at *2 (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 951

26

(2002)).

27
28

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

Finally, Kellogg briefly argues that predominance is not met in the instant case because the

2

evidence “shows that people buy Kellogg products for reasons other than ‘health,’” “such as taste,

3

price, brand loyalty, nostalgia, and convenience.” Opp. at 31–32. However, under California law,

4

Plaintiff is not required to prove that the challenged health statements were “‘the sole or even the

5

predominant or decisive factor influencing’” the class members’ decisions to buy the challenged

6

products. In re Tobacco II Cases, 46 Cal. 4th at 581 (quoting Engalla v. Permanente Med. Grp.,

7

Inc., 15 Cal. 4th 951, 977 (1997)). Further, and in any event, Plaintiff correctly observes that

8

Kellogg’s argument about “consumers hav[ing] a variety of reasons for purchasing cereal” is “a

9

merits dispute as to materiality,” and is therefore a dispute “that can be resolved classwide,” Reply
at 10, because, as discussed at length above, materiality is a “‘common question’ for purposes of

11
United States District Court
Northern District of California

10

Rule 23(b)(3).” Amgen, 568 U.S. at 467 (quoting Basic Inc. v. Levinson, 485 U.S. 224, 242

12

(1988)).

13

Accordingly, the Court rejects Kellogg’s assertion that Plaintiff has failed to satisfy Rule

14

23(b)(3)’s predominance requirement because Plaintiff lacks any evidence of deception or

15

materiality.

16

5. Alternative Theories of Liability

17

Finally, Kellogg argues that Plaintiff’s “alternative theories of liability”—that is, Plaintiff’s

18

deceptive omission, unlawful misbranding, and breach of warranty theories of liability—“are also

19

not subject to common proof.” Opp. at 32–34. The Court discusses each theory in turn.

20

First, as to Plaintiff’s deceptive omission theory of liability, Kellogg argues that Plaintiff

21

has provided no evidence that Kellogg either “‘had exclusive knowledge of material facts not

22

known to the plaintiff,” “actively conceals a material fact from the plaintiff,” or “makes partial

23

representations but also suppresses some material fact.” Id. at 32–33 (quoting Falk v. Gen.

24

Motors, Inc., 496 F. Supp. 2d 1088, 1095 (N.D. Cal. 2007)). However, the Court has already

25

determined that Plaintiff has failed to provide a damages model for his deceptive omission theory

26

of liability that satisfies Comcast. As a result, Kellogg’s evidentiary argument against Plaintiff’s

27
28

44
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

deceptive omission theory of liability is moot, and thus the Court need not address it.
Second, as to Plaintiff’s unlawful misbranding theory of liability, Kellogg asserts that the

3

allegedly unlawful challenged statements “are not unlawful,” but rather “are ‘expressly permitted

4

under FDA regulations.’” Opp. at 33–34 (quoting In re Quaker Oats Labeling Litg., 2012 WL

5

1034532, at *3 (N.D. Cal. Mar. 28, 2018)). In other words, Kellogg argues that Plaintiff is wrong

6

on the merits of his unlawful misbranding theory of liability. Indeed, Kellogg even states that it

7

intends to “move to dispose of” this theory of liability later in this litigation, which indicates that

8

Kellogg understands this argument to be a merits argument. Opp. at 34 n.17. However, as

9

discussed above, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the

10

certification stage.” Amgen, 568 U.S. at 466. Thus, “[m]erits questions may be considered to the

11
United States District Court
Northern District of California

2

extent—but only to the extent—that they are relevant to determining whether the Rule 23

12

prerequisites for class certification are satisfied.” Id. Kellogg’s argument that its purportedly

13

unlawful statements “are ‘expressly permitted under FDA regulations’” raises a merits question

14

that is completely unrelated to whether any of the Rule 23 requirements have been met in the

15

instant case. Opp. at 34. As a result, at this stage of the proceedings, the Court cannot consider

16

Kellogg’s argument that its allegedly unlawful statements “are not [actually] unlawful.” Opp. at

17

34.

18

Third, as to Plaintiff’s breach of warranty theory of liability, Kellogg argues that this

19

theory is “not susceptible to common proof for the same reasons that” Plaintiff’s affirmative

20

misrepresentation theory under the UCL is not. Opp. at 34. However, the Court has already

21

rejected all of Kellogg’s predominance arguments against Plaintiff’s affirmative misrepresentation

22

theory of liability, and has therefore determined that Plaintiff has met Rule 23(b)(3)’s

23

predominance requirement for his affirmative misrepresentation theory. Consequently, the Court

24

also rejects Kellogg’s predominance arguments against Plaintiff’s breach of warranty theory of

25

liability, and instead concludes that predominance is satisfied as to that theory.

26
27
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6. Conclusion
45
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

In sum, the Court finds that Plaintiff has failed to satisfy Rule 23(b)(3) predominance as to

2

(1) Plaintiff’s proposed Nutri-Grain Soft-Baked Breakfast Bar Subclass; and (2) Plaintiff’s

3

deceptive omission theory of liability. However, the Court also finds that Plaintiff has established

4

Rule 23(b)(3) predominance as to the remainder of Plaintiff’s proposed subclasses and theories of

5

liability. Accordingly, the Court DENIES Plaintiff’s motion for class certification only as to

6

Plaintiff’s proposed Nutri-Grain Soft-Baked Breakfast Bar Subclass and Plaintiff’s deceptive

7

omission theory of liability. Moreover, because the Court denies class certification as to

8

Plaintiff’s deceptive omission theory of liability, the Court DENIES as moot Kellogg’s motion to

9

exclude Gaskin’s expert testimony to the extent that it concerns Gaskin’s proposed advantage

10

United States District Court
Northern District of California

11
12

realized damages model. See Gaskin Daubert Mot. at 20–22.
B. Typicality and Adequacy
Under Rule 23(a)(3), a representative party must have claims or defenses that are “typical

13

of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality is satisfied “when each

14

class member’s claim arises from the same course of events, and each class member makes similar

15

legal arguments to prove the defendants’ liability.” Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9 th

16

Cir. 2010) (citations omitted). This requirement is “permissive and requires only that the

17

representative’s claims are reasonably co-extensive with those of the absent class members; they

18

need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir.

19

1998). “[C]lass certification is inappropriate where a putative class representative is subject to

20

unique defenses which threaten to become the focus of the litigation.” Hanon v. Dataproducts

21

Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citations omitted). “The purpose of the typicality

22

requirement is to assure that the interest of the named representative aligns with the interests of the

23

class.” Id.

24

Further, Rule 23(a)(4) requires “the representative parties [to] fairly and adequately protect

25

the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement turns upon resolution of two

26

questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other

27
28

46
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously

2

on behalf of the class?” Hanlon, 150 F.3d at 1020.

3

Plaintiff argues that “typicality exists, not just within each Subclass, but across the entire
class,” because (1) “Plaintiff alleges he was injured when he paid more for the challenged products

5

due to the price premium [Kellogg’s] false and material health and wellness claims demanded in

6

the market”; and (2) “[t]hese are the same injuries each Class Member alleges based on the same

7

Kellogg conduct.” Mot. at 17. Additionally, Plaintiff asserts that he “is an adequate Class

8

Representative because he is a bona fide purchaser with standing, has no conflicts, is aware of his

9

obligations, and will continue to vigorously prosecute the case for the Class.” Id. at 18 (citing

10

ECF No. 135 ¶¶ 2–12). Plaintiff further states that he “has retained adequate proposed Class

11
United States District Court
Northern District of California

4

Counsel,” and attaches a declaration from one of Plaintiff’s lawyers, Jack Fitzgerald, detailing his

12

(and his law firm’s) extensive experience in prosecuting class actions and other complex cases.

13

Mot. at 18 (citing ECF No. 30 ¶¶ 152–56).

14

For its part, Kellogg briefly raises three challenges to Plaintiff’s typicality and adequacy as

15

the named representative of the class at the end of its opposition to Plaintiff’s motion for class

16

certification. See Opp. at 34–35. The Court finds none of Kellogg’s arguments to be persuasive,

17

and discusses each of them in turn.

18

First, Kellogg argues that Plaintiff is an inadequate class representative because, although

19

Plaintiff stated at his deposition that a Safeway store in Del Rey Oaks, California, was his “go-to”

20

grocery store, the electronic record for his Safeway discount card does not reflect any purchases of

21

the products at issue in the instant case. Opp. at 34–35. Kellogg asserts that this amounts to

22

“strong evidence that Plaintiff never made the purchases he claims to have made,” and therefore

23

calls Plaintiff’s credibility into question. Id. at 35.

24

However, Plaintiff’s SAC alleges only that Plaintiff “believes” that he purchased Kellogg

25

products from locations including, but not limited to, that particular Safeway store. SAC ¶¶ 252,

26

255, 257, 263. Further, it appears from Plaintiff’s deposition that by confirming Kellogg’s

27
28

47
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

counsel’s query about whether the Safeway was “sort of [Plaintiff’s] go-to shop,” Plaintiff meant

2

only that Safeway “was closest to where [Plaintiff] was living.” See Reply at 21 (citing ECF No.

3

195-7 at 88–89). Additionally, Plaintiff testified that out of all the grocery stores Plaintiff

4

identified in his complaint, Safeway was the most expensive. See id. (citing ECF No. 195-7 at

5

281–82). Relatedly, Plaintiff has submitted a declaration explaining that, while Safeway was

6

where he “most frequently made quick purchases” due to its proximity to his house, Plaintiff

7

“usually purchased cereal” on “more regular grocery shopping trips” to cheaper stores, like

8

“Target, Wal-Mart, or especially Grocery Outlet,” which he “believe[s] . . . is why records of [his]

9

purchase history from Safeway do not show many cereal purchases.” ECF No. 194-2 ¶ 2.

10

In light of these portions of the record regarding Plaintiff’s cereal purchases, the Court

United States District Court
Northern District of California

11

cannot conclude that the absence of Kellogg products from Plaintiff’s Safeway purchase records

12

creates a concern about Plaintiff’s credibility that is “‘so sharp as to jeopardize the interests of

13

absent class members.’” Harris v. Vector Mktg. Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal.

14

2010) (quoting Lapin v. Goldman Sachs & Co., 254 F.R.D. 168, 177 (S.D.N.Y. 2008)); see also

15

id. (“That being said, ‘credibility problems do not automatically render a proposed class

16

representative inadequate.’” (quoting Ross v. RBS Citizens, N.A., 2010 WL 3980113, at *4 (N.D.

17

Ill. Oct. 8, 2010))); In re Computer Memories Secs. Litig., 111 F.R.D. 675, 682 (N.D. Cal. 1986)

18

(stating that “questions of personal integrity are but one factor the Court must consider in making

19

the adequacy determination”). Based on his deposition testimony, Plaintiff can plausibly maintain

20

that Plaintiff did not mean to convey that Safeway was his “go-to” grocery store for all purchases.

21

Further, Plaintiff has advanced a conceivable explanation for why there are no Kellogg products

22

listed on Plaintiff’s Safeway purchase records. Finally, and in any event, Plaintiff correctly notes

23

that “the record leaves no doubt” about the most critical fact regarding Plaintiff’s adequacy as a

24

class representative in this lawsuit: that Plaintiff “was an avid cereal eater who regularly bought

25

and consumed the products at issue here.” Reply at 21 (citing ECF No. 195-7 at 77–78, 102–04,

26

125, 134–35, 154); see Harris, 753 F. Supp. 2d at 1015 (stating that “[t]here is ‘inadequacy only

27
28

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Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

where the representative’s credibility is questioned on issues directly relevant to the litigation’”

2

(quoting Ross, 2010 WL 3980113 at *4)).
Second, Kellogg argues that Plaintiff fails to meet the typicality requirement of Rule

4

23(a)(3) because “Plaintiff is subject to unique defenses because he engages in activities that

5

dramatically increase his risk of suffering the harmful health effects he blames on the challenged

6

products.” Opp. at 35. However, as the Court explained above, none of Plaintiff’s claims require

7

Plaintiff to prove that he or any other class member was physically harmed as a result of Kellogg’s

8

alleged misconduct. Instead, Plaintiff “is seeking to recover for the economic injury caused by

9

Kellogg representing that its . . . foods are healthy.” Reply at 4. Thus, Plaintiff’s claims will be

10

evaluated according to an objective “reasonable consumer” standard. As a result, the “activities”

11
United States District Court
Northern District of California

3

in which Plaintiff engaged that might have physically affected Plaintiff are irrelevant to the

12

resolution of any claims in the instant case, and therefore cannot render Plaintiff “subject to” any

13

“unique defenses.” Opp. at 35.

14

Third, and finally, Kellogg argues that Plaintiff’s “interests do not overlap with those of

15

other class members.” Id. Specifically, Kellogg points to the fact that, “[o]n the same day he filed

16

this lawsuit, Plaintiff also filed two other lawsuits in which he alleges that dozens of other

17

breakfast products were mislabeled because of their supposedly ‘excessive’ added sugar content.”

18

Id. Thus, Kellogg asserts that “Plaintiff is not a proper class representative” because he is a

19

“serial” cereal plaintiff. Id.

20

Kellogg’s final argument lacks merit. The Ninth Circuit has stated that “the term

21

‘professional,’ as in ‘professional plaintiff,’ is not a ‘dirty word’ and should not itself undermine

22

one’s ability to seek redress for injuries suffered . . . .” Gordon v. Virtumundo, Inc., 575 F.3d

23

1040, 1056 (9th Cir. 2009) (internal citation omitted). As such, courts have rejected the notion

24

that serial plaintiffs are inadequate and atypical class representatives solely by virtue of having

25

served as named plaintiffs in other class actions. See Patten v. Vertical Fitness Grp., LLC, 2013

26

WL 12069031, at *9 (S.D. Cal. Nov. 8, 2013) (rejecting argument that the named plaintiff, Mr.

27
28

49
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1

Van Patten, was inadequate due to his status “[a]s a professional plaintiff” and the resulting

2

“concern that Mr. Van Patten is not truly representing the interests of the class, and is only

3

interested in maximizing his own payout,” noting that Mr. Van Patten “is perfectively entitled” to

4

“bring other lawsuits,” and finding that Mr. Van Patten was an adequate class representative

5

because the Court saw “no conflict of interest . . . between Van Patten and other members of the

6

class, nor d[id] it see any reason to believe that Van Patten won’t prosecute this case vigorously”

7

(internal quotation marks omitted)); Bruno v. Quten Research Inst., LLC, 280 F.R.D. 524, 534

8

(C.D. Cal. 2011) (“[T]his Court has already held that being a serial plaintiff is not a basis for

9

finding that a plaintiff is atypical.”). Kellogg offers no specific reason to think that Plaintiff’s
status as a class representative in two similar class actions against other large food-manufacturing

11
United States District Court
Northern District of California

10

corporations might put Plaintiff’s interests at odds with those of the class in the instant case or

12

cause Plaintiff to prosecute the instant case apathetically. Indeed, “the history of this case”—

13

specifically, two rounds of hard-fought motion-to-dismiss disputes and the instant class

14

certification row—suggests quite the opposite. Patten, 2013 WL 12069031 at *9.
In sum, the Court is not persuaded by any of Kellogg’s arguments regarding Plaintiff’s

15
16

typicality and adequacy as a class representative in the instant case. Accordingly, the Court

17

concludes that Plaintiff has satisfied Rule 23(a)’s typicality and adequacy requirements.

18

IV.

19

CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiff’s

20

motion for class certification, and DENIES Kellogg’s motion to exclude the opinion testimony of

21

Steven P. Gaskin under Daubert. The Court CERTIFIES the following Rule 23(b)(3) class, which

22

is composed of three subclasses:

23
24
25
26
27
28

All persons in California who, on or after August 29, 2012, purchased for
household use and not for resale or distribution:
Raisin Bran Subclass: Kellogg’s Raisin Bran (including Omega-3) or Kellogg’s
Raisin Bran Crunch Cereals in a 13.7 oz., 14.3 oz., 18.2 oz., 18.7 oz., 23.5 oz., 24.8
oz., 29 oz., 30.3 oz., 43.3 oz., 56.6 oz., or 76.5 oz. package stating “heart healthy.”
50
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN

1
2
3
4
5
6

Smart Start Subclass: Kellogg’s Smart Start Original Antioxidants cereal in a 17.3
oz. package.
Frosted Mini-Wheats Subclass: Kellogg’s Frosted Mini-Wheats Bite Size
(Original, Maple Brown Sugar, Strawberry, or Blueberry varieties), Big Bites
(Original variety), Little Bites (Chocolate or Cinnamon Roll varieties), or Touch of
Fruit in the Middle (Mixed Berry and Raspberry varieties) cereals in a 15.2 oz.,
15.5 oz., 15.8 oz., 16.5 oz., 18 oz., 21 oz., or 24 oz. package.
The Court APPOINTS Stephen Hadley as representative of the class. As Kellogg

7

does not challenge the adequacy of proposed class counsel, the Court also APPOINTS Jack

8

Fitzgerald of The Law Office of Jack Fitzgerald, P.C., as class counsel.

9

IT IS SO ORDERED.

10

United States District Court
Northern District of California

11
12
13

Dated: August 17, 2018
______________________________________
LUCY H. KOH
United States District Judge

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51
Case No. 16-CV-04955-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; DENYING DEFENDANT’S MOTION TO EXCLUDE OPINION TESTIMONY OF STEVEN
P. GASKIN