Clay et al v. Cytosport, Inc.

Filing 210

ORDER (1) Granting in Part and Denying In Part Plaintiffs' Motion for Class Certification; and (2) Granting in Part and Denying in Part Defendant's Motion to Exclude Expert Testimony. Signed by Judge M. James Lorenz on 9/7/2018. (lrf)

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UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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10 CHAYLA CLAY et al.,

Case No: 3:15-cv-00165-L- AGS

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CLASS ACTION

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v.

Plaintiffs,

ORDER (1) GRANTING IN PART
AND DENYING IN PART
PLAINTIFFS' MOTION FOR
CLASS CERTIFICATION; AND
(2) GRANTING IN PART AND
DENYING IN PART
DEFENDANT'S MOTION TO
EXCLUDE EXPERT TESTIMONY

CYTOSPORT, INC.,

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Defendant.

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Pending before the Court is Plaintiffs' motion for class action certification.

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19 Defendant filed an opposition, and Plaintiffs replied. As part of opposition to
20 Plaintiffs' motion, Defendant filed a motion to exclude the testimony of Plaintiffs'
21 expert Elizabeth Howlett, Ph.D. Plaintiffs opposed the motion and Defendant
22 replied. 1 This matter is submitted on the briefs pursuant to Civil Local Rule
23 7.1.d.1. For the reasons which follow, Plaintiffs' motion for class certification is
24 granted in part. Defendant's motion to exclude Dr. Howlett's testimony is granted
25 in part for purposes of class certification only.
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27

1

Not counting exhibits which were filed non-electronically and several
motions to file documents under seal, the parties filed in excess of 4,000 pages of
28 briefing and exhibits.
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1 I.

BACKGROUND

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Plaintiffs are consumers who purchased Defendant's protein shake and/or

3 protein powder products. They allege that (1) the Nutrition Facts panel and
4 packaging of some of Defendant's ready-to-drink protein shake products overstated
5 the amount of protein content; (2) the Ingredients section on the labels of their
6 Muscle Milk protein powder products included amino acid L-glutamine, L7 glutamine was also listed as an ingredient of the "Precision Protein Blend"
8 elsewhere on the labels, and an L-glutamine molecule was shown on a chart of the
9 amino acid profile for some of the products, implying that L-glutamine was
10 included in its unbonded form, when none was included; and (3) prominently
11 displaying on its Muscle Milk protein powder packaging that the product was
12 "lean" or contained a special blend of "Lean Lipids," when the products contained
13 oils and were no leaner than other protein powders on the market which were not
14 marketed as "lean."
15

Plaintiffs contend that Defendant's product labeling is false and misleading

16 in violation of California, Florida and Michigan state consumer protection laws.
17 After Defendant's summary judgment motion was granted in part, the following
18 claims remain: violation of California False Advertising Law, Cal. Bus. & Prof.
19 Code §§ 17500 et seq. ("FAL"); violation of California Consumer Legal Remedies
20 Act, Cal. Civ. Code §§ 1750 ("CLRA"); violation of California Unfair Competition
21 Law, Cal. Bus. & Prof. Code §§ 17200 et seq. ("UCL"); violation of Florida
22 Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201 et seq.
23 ("FDUTPA"); violation of Michigan Consumer Protection Act, Mich. Comp. Laws
24 § 445.903(1)(c) ("MCPA"); and breach of express warranty under California
25 Uniform Commercial Code - Sales, Cal. Com. Code § 2313. Plaintiffs seek,
26 among other remedies, injunctive relief and restitution.
27 / / / / /
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Plaintiffs move for class action certification under Federal Rule of Civil

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2 Procedure 23(b)(3). They seek to certify two nationwide classes, one for the
3 purchasers of Defendant's liquid shakes, and the other for protein powder
4 purchasers defined as follows:
All persons in the United States who, within four (4) years of the
filing of this Complaint, purchased Defendant’s Cytosport Whey
Isolate Protein Drink; Monster Milk: Protein Power Shake; Genuine
Muscle Milk: Protein Nutrition Shake; and Muscle Milk Pro Series
40: Mega Protein Shake.

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All persons in the United States who, within four (4) years of the
filing of this Complaint, purchased Defendant’s Muscle Milk: Lean
Muscle Protein Powder; Muscle Milk Light: Lean Muscle Protein
Powder; Muscle Milk Naturals: Nature’s Ultimate Lean Muscle
Protein; Muscle Milk Gainer; and High Protein Gainer Powder Drink
Mix; Muscle Milk Pro Series 50: Lean Muscle Mega Protein Powder
(14 oz. to 10 lbs. products); and the [sic] size Monster Milk: Lean
Muscle Protein Supplement (2.06 and 4.13 lbs. products).

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15 (Doc. no. 157 (notice of mot.) at 2.)2 Plaintiffs request that the nationwide classes
16 be certified for UCL and FAL violations. (Id.)
17

Plaintiffs also move for certification of subclasses for California, Florida and

18 Michigan residents under each state's consumer protection statutes, as well as the
19 Magnuson-Moss Warranty Act, 15 U.S.C. §§2301 et seq. ("MMWA"). (Doc. no.
20 157 at 2-4.) Like the nationwide classes, there are two subclasses for each state,
21 one for the liquid shake purchasers and the other for protein powder purchasers.
22 The respective lists of relevant products are the same as for the nationwide classes.
23 (See id. at 3-4.)
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With the exception of deposition transcripts, all page references in citations
to docketed documents are to the page numbers assigned by the ECF system.
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1 II.

DISCUSSION

2

"The class action is an exception to the usual rule that litigation is conducted

3 by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v.
4 Dukes, 564 U.S. 338, 348 (2011) (internal quotation marks and citation omitted).
5 A party seeking class certification must be prepared to prove that it meets the
6 requirements of Federal Rule of Civil Procedure 23(a) and the requirements of at
7 least one of the categories under Rule 23(b). Comcast Corp. v. Behrend, 569 U.S.
8 27, 33 (2013).
9

The district court must conduct a rigorous analysis to determine whether

10 these prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon, 457 U.S.
11 147, 161 (1982). The moving party "must . . . satisfy through evidentiary proof"
12 Rule 23 requirements. Comcast, 569 U.S. at 33. Accordingly, "the class
13 determination generally involves considerations that are enmeshed in the factual
14 and legal issues comprising the plaintiff's cause of action,” Coopers & Lybrand v.
15 Livesay, 437 U.S. 463, 469 (1978) (internal quotation marks and citation omitted),
16 and it "may be necessary for the court to probe behind the pleadings before coming
17 to rest on the certification question," Falcon, 457 U.S. at 160, which may “entail
18 some overlap with the merits of the plaintiff's underlying claim,” Dukes, 564 U.S.
19 at 351. If a court is not fully satisfied that the requirements of Rules 23(a) and (b)
20 are met, certification should be denied. Id. at 161. However, "Rule 23 grants
21 courts no license to engage in free-ranging merits inquiries at the certification
22 stage. Merits questions may be considered to the extent—but only to the extent—
23 that they are relevant to determining whether the Rule 23 prerequisites for class
24 certification are satisfied." Amgen Inc. v. Conn. Ret. Plans and Trust Funds, 568
25 U.S 455, 466 (2013).
26 / / / / /
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1

A.

Rule 23(a) Requirements

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"Rule 23(a) ensures that the named plaintiff is an appropriate representative

3 of the class whose claims he or she wishes to litigate. The Rule's four
4 requirements – numerosity, commonality, typicality, and adequate representation –
5 effectively limit the class claims to those fairly encompassed by the named
6 plaintiff's claims." Dukes, 564 U.S. at 349 (internal quotation marks and citations
7 omitted). “A party seeking class certification must affirmatively demonstrate his
8 compliance with the Rule – that is, she or he must be prepared to prove that there
9 are in fact sufficiently numerous parties, common questions of law or fact, etc.”
10 Id. at 350 (emphasis in original).
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1.

Numerosity

Rule 23(a)(1) requires the class to be "so numerous that joinder of all

13 members is impracticable." Fed. R. Civ. P. 23(a)(1); Staton v. Boeing Co., 327
14 F.3d 938, 953 (9th Cir. 2003). The plaintiff need not state the exact number of
15 potential class members; nor is a specific minimum number required. Arnold v.
16 United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994). Rather,
17 whether joinder is impracticable depends on the facts and circumstances of each
18 case. ld. Plaintiff has shown that several million of Defendant's products were
19 sold in California alone during the relevant time. Defendant does not dispute that
20 this is sufficient to meet the numerosity requirement, and the Court finds that this
21 requirement is met.
22

Defendant claims, however, that the putative class members are not

23 "ascertainable." It makes four arguments. First, Defendant argues that Plaintiffs'
24 proposed "class definitions embrace many consumers who do not have valid
25 claims" in that some putative members have no standing because they suffered no
26 injury, and would therefore have to be individually screened out of the class. (Doc.
27 no. 170-1 (opp'n) at 56.) To the extent the argument is directed at the class
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1 definition, it was rejected in Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th
2 Cir. 2017). At class certification stage, it is sufficient that the class be defined by
3 an objective criterion, i.e., whether the class members purchased the relevant
4 products. See id. at 1124 (affirming decision to the same effect). This is met here,
5 because Plaintiffs list the relevant products in the definition of each proposed class.
6

To the extent the argument is directed to standing specifically, it is also

7 rejected. "In a class action, standing is satisfied if at least one named plaintiff
8 meets the requirements." Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985
9 (9th Cir. 2007). Defendant attacked each class representative's standing in its
10 summary judgment motion. The Court concluded that all class representatives had
11 standing at least as to some of their claims. (Doc. no. 209 (order) at 4-8.)
12

To the extent Defendant suggests that the class definition is overbroad

13 because it may potentially contain some members who were not injured, the issue
14 is better addressed in terms of the predominance requirement under Rule 23(b)(3).
15 Briseno, 844 F.3d at 1125 n.4 (citing Torres v. Mercer Canyon, Inc., 835 F.3d
16 1125, 1136-39 (9th Cir. 2016)). Moreover, as a practical matter, overinclusiveness
17 in class actions involving low-cost consumer goods presents a low risk of
18 fraudulent or mistaken claims, "perhaps to the point of being negligible" because
19 they generate "consistently low participation rates," which makes it "very unlikely
20 that non-deserving claimants would diminish the recovery of participating, bona
21 fide class members." Id. at 1130 (internal quotation marks, citation and footnote
22 omitted).
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Second, Defendant contends that "Plaintiffs' class definitions are unworkable

24 because the members cannot be reliably identified," as "[m]ost customers do not
25 remember the specific types of products they bought or when they purchased
26 them." (Doc. no. 170-1 at 57.) Defendant concedes that this argument was
27 rejected in Briseno (id. at 58 n.51), which held that Rule 23 does not require the
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1 class representative to prove an "administratively feasible" way to identify each
2 putative class member. 844 F.3d at 1128-29. "[N]either Rule 23 nor the Due
3 Process Clause requires actual notice to each individual class member," but allow
4 for "notice by publication . . ., or even at an appropriate physical location," id. at
5 1128-29, to the members who cannot "be identified through reasonable effort,"
6 Fed. R. Civ. Proc. 23(c)(2)(B) (emphasis added).
7

Third, Defendant maintains that the class settlement in Delacruz v.

8 CytoSport, U.S. Distr. Ct. N.D. Cal. case no. 11cv3532, "released any claims based
9 on the protein present in Muscle Milk shakes sold between July 18, 2007 and
10 December 31, 2012." (Doc. no. 170-1 at 57.) The settlement agreement and the
11 order granting final approval of settlement each include a broad release clause,
12 which apparently intended to preclude claims such as the claims asserted in this
13 action. (See Delacruz, doc. no. 67-1 (first am. settlement agreement) at 6-7 & 1614 17; doc. no. 91 (order) at 13-15.) However, a class action settlement's "bare
15 assertion that a party will not be liable for a broad swath of potential claims does
16 not necessarily make it so." Hesse v. Spring Corp., 598 F.3d 581, 590 (9th Cir.
17 2010).
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A settlement agreement may preclude a party from bringing a related
claim in the future even though the claim was not presented and might
not have been presentable in the class action, but only where the
released claim is based on the identical factual predicate as that
underlying the claims in the settled class action.

22 Id. (internal quotation marks and citations omitted). The claims asserted in this
23 action are not based on the "identical factual predicate" as Delacruz. Delacruz was
24 not directed at any representations made with respect to Defendant's protein
25 powders, and to the extent it was directed at the liquid shakes, it did not attack
26 representations regarding the quantity of protein. (See Delacruz, doc. no. 185-14
27 / / / / /
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1 (second am. compl.); doc. no. 67-1 at 2, 11-12; doc. no. 91 at 4, 7-8.) Accordingly,
2 Delacruz does not limit the scope of the class proposed in this action.
3

Fourth, Defendant argues that the label for Monster Milk: Lean Muscle

4 Protein Supplement, a protein powder, was changed during the proposed class
5 period to exclude the reference to "Lean Lipids." Defendant argues that
6 individuals who purchased this product after the label change "cannot be included
7 in any class." (Doc. no. 170-1 at 57.) Although Defendant is correct that the
8 reference to "Lean Lipids" was removed, other allegedly misleading references to
9 "lean" remained. (Doc. no. 157-22 (Kashima Decl. App'x A); cf id. at 2-15
10 (referencing "Lean Lipids") & id. at 16-17 (no longer referencing "Lean Lipids,"
11 but including the claims "new leaner formula," "lean protein," and "lean muscle
12 protein supplement").) Accordingly, the removal of "Lean Lipids" from some of
13 the labels has no effect on class certification in this action.
14

2.

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16

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

The second element of Rule 23(a) requires the existence of "questions of law

17 or fact common to the class." Fed. R. Civ. P. 23(a)(2). To meet this requirement,
18 the putative class members' claims must depend on a common contention, which
19 must be of such nature that it is capable of class-wide resolution. Decision on the
20 contention must
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resolve an issue that is central to the validity of each one of the claims
in one stroke. [¶] What matters to class certification is not the raising
of common "questions" . . . but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of
the litigation. Dissimilarities within the proposed class are what have
the potential to impede the generation of common answers.

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26 Dukes, 564 U.S. at 350 (internal quotation marks and citation omitted).
27 / / / / /
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1

Similarly, the predominance inquiry under Rule 23(b)(3) "tests whether

2 proposed classes are sufficiently cohesive to warrant adjudication by
3 representation." Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 623 (1997).
4 Unlike Rule 23(a)(2), which is met when there is “even a single common
5 question,” Dukes, 564 U.S. at 359 (quotation marks and brackets omitted), Rule
6 23(b)(3) requires that “common questions predominate over any questions
7 affecting only individual class members.” Amgen, 568 U.S. at 469 (internal
8 quotation marks and citation omitted, emphasis in original).
9

Because "Rule 23(a)(2)'s ‘commonality' requirement is subsumed under, or

10 superseded by, the more stringent Rule 23(b)(3) requirement that questions
11 common to the class ‘predominate over' other questions[,]" Amchem, 521 U.S. at
12 609, see also id. at 623, the Court considers these requirements – commonality and
13 predominance – together. The predominance inquiry begins "with the elements of
14 the underlying cause of action." Erica P. John Fund, Inc. v. Halliburton Co., 563
15 U.S. 804, 809 (2011).
16

Defendant argues that certification should be denied because the alleged

17 claims are "idiosyncratic individual claims." (Doc. no. 170-1 at 37.) With respect
18 to the protein powder products, "no one cared about" the L-glutamine and "lean"
19 representations, and each consumer purchased the products for his or her own
20 individual reasons. (Id.) With respect to the protein shake products, according to
21 Defendant, Plaintiffs cannot prove a "common shortfall" for the protein content
22 statement, because any such shortfall differs among the various protein shake
23 formulations. For all products Defendant attacks Plaintiffs' proposed method of
24 calculating damages on a class-wide basis. (Id. at 50.) Finally, Defendant argues
25 that a nationwide class cannot be certified because of individual choice of law
26 questions. (Id. at 35-37.) These arguments are addressed below.
27 / / / / /
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a.

1
2

Warranty Claims

Plaintiff seeks certification of the MMWA claim for the California, Florida

3 and Michigan subclasses. (Doc. no. 157 at 2-3.) This claim was dismissed in the
4 order granting in part Defendant's summary judgment motion. (Doc. no. 209 at 105 12.) Accordingly, the request to certify the MMWA claim is denied as moot.
6

Plaintiffs' intent with respect to the state law claims for breach of express

7 warranty is unclear. In the notice of motion, Plaintiffs state that if their MMWA
8 claim is not certified, they seek to certify the state law warranty claims. (Doc. no.
9 157 at 3 n.2.) However, Plaintiffs do not brief certification of these state law
10 claims, although they refer to them in two footnotes. (Doc. no. 157-1 at 32-33 n.
11 14 & 15.) They also state that they "only move for certification of their MMWA
12 claims at this time." (Id. at 34 n.16.) Their intent regarding certification of the
13 state law breach of express warranty claims is therefore unclear.
14

To the extent Plaintiffs may have intended to certify these claims, the issue

15 is moot as to the Florida and Michigan claims, which were dismissed at summary
16 judgment. (See doc. no. 209 at 8-10.) As to the California claim, Plaintiffs do not
17 meet their burden.
18

Defendant argues that Plaintiffs cannot meet the predominance requirement

19 because breach of express warranty requires individual proof of reliance and
20 causation. On summary judgment, the Court determined that California law does
21 not require proof of reliance. (Doc. no. 209 at 10 (citing Jud. Council of Cal. Civ.
22 Jury Instr. ("CACI") no. 1230 cmt (2017) (quoting Hauter v. Zogarts, 14 Cal.3d
23 104, 115 (1975)); Cal. Comm. Code § 2313(1) & Cal. Code Cmt. 2).) However, it
24 requires proof of causation. CACI no. 1230 ¶6 ("That the failure of the [product]
25 to be as represented was a substantial factor in causing [plainitff]'s harm.").
26 Plaintiffs do not address causation for this cause of action. (See docs. no. 157-1,
27 185.) Accordingly, to the extent Plaintiffs request that the California subclass
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1 include a claim for breach of express warranty, their motion is denied for failure to
2 properly support it.
b.

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California Consumer Protection Claims
i.

4

Elements

Plaintiffs allege false or misleading statements on Defendant's product labels

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6 in violation of the UCL,3 FAL4 and CLRA, Cal. Civ. Code § 1770(a)(5).5
The standard for determining whether a defendant misrepresented the
characteristics, uses or benefits of goods and services under Civil
Code section 1770, subdivision (a)(5) is the same as that for
determining whether there was false advertising under the UCL and
false advertising law.

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unfair competition shall mean and include any unlawful, unfair or
fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising and any act prohibited by Chapter 1
(commencing with Section 17500) of Part 3 of Division 7 of the
Business and Professions Code.

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Cal. Bus. & Prof. Code § 17200.
4

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Cal. Bus. & Prof. Code § 17500.
5

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The FAL provides in pertinent part:
It is unlawful . . . to make or disseminate . . . in any . . . advertising . . .
or in any other manner or means whatever . . . any statement,
concerning . . . personal property . . ., which is untrue or misleading,
and which is known, or which by the exercise of reasonable care
should be known, to be untrue or misleading . . ..

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21

The UCL provides in pertinent part:

The pertinent CLRA provision reads,
The following unfair methods of competition and unfair or deceptive
acts or practices undertaken by any person in a transaction intended to
result or that results in the sale or lease of goods or services to any
consumer are unlawful: . . .
(5) Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that they do
not have or that a person has a sponsorship, approval, status,
affiliation, or connection that he or she does not have.

Cal. Civ. Code § 1770(a)(5).
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1 Chapman v. Skype, Inc., 220 Cal. App. 4th 217, 230 (2013); see also Williams v.
2 Gerber Prods Co., 553 F.3d 934, 938 (9th Cir. 2008) (am. Dec. 22, 2008). In this
3 regard, "it is necessary only to show that members of the public are likely to be
4 deceived." Tobacco II Cases, 46 Cal.4th 298, 312 (2009) (internal quotation
5 marks, brackets, ellipsis and citation omitted). The "focus is on the defendant's
6 conduct, rather than the plaintiff's damages, in service of the statute's larger
7 purpose of protecting the general public against unscrupulous business practices."
8 Id. at 312; see also id. at 324. Accordingly, no individualized proof is required to
9 show deceptiveness.
10

In class actions alleging UCL and FAL violations, once a class

11 representative establishes statutory standing,6 injunctive relief and restitution are
12 "available without individualized proof of deception, reliance and injury."
13 Tobacco II Cases, 46 Cal.4th at 319-20.
14

The CLRA claim requires the additional "showing of actual injury as to each

15 class member." Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145, 155 (2010);
16 see also id. at 156 (discussing Cal. Civ. Code § 1780(a) ("Any consumer who
17 suffers any damage as a result of the use . . . of a . . . practice declared to be
18 unlawful by Section 1770 may bring an action . . ..")). However, injury, as well as
19 reliance and causation, can be proved "by showing that the alleged misleading
20 statement was material, even if [Defendant] might be able to show that some class
21 members would have bought the products even if they had known [the
22 representation was false]." Steroid Prod. Cases, 181 Cal. App. 4th at 156-57.
23 "Materiality of the alleged misrepresentation generally is judged by a 'reasonable
24 man' standard. In other words, a misrepresentation is deemed material if a
25
6
Defendant's contention on summary judgment that Plaintiffs could not
26 establish statutory standing because they did not rely on Defendant's
representations was granted in part and denied in part. (Doc. no. 209 at 5-8.)
27 Nevertheless, there remains a named Plaintiff with statutory standing for each
consumer protection claim as to each allegedly misleading statement. (Id.)
28

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1 reasonable man would attach importance to its existence in determining his choice
2 of action in the transaction in question . . .." Id. at 157 (internal quotation marks,
3 brackets and citation omitted).
ii.

4
5

Class Member Reliance and Causation -L-glutamine and "Lean" Statements on Protein
Powder Labels; Daubert Motion

6
7

Defendant argues certification should be denied because Plaintiffs presented

8 no proof that the L-glutamine and "lean" statements were deceptive. (Doc. no.
9 170-1 at 42, 45.) As discussed above, for all three California consumer protection
10 claims, the issue is decided on a class-wide basis, regardless of each individual
11 consumer's understanding. See Tobacco II Cases, 46 Cal.4th at 312 ("it is
12 necessary only to show that members of the public are likely to be deceived"); see
13 also Chapman, 220 Cal. App. 4th at 230 (same standard applies to UCL, FAL and
14 CLRA claims); Williams, 553 F.3d at 938 (same). Moreover, it is not necessary to
15 prove actual falsity, it is sufficient to prove that the representation, "although true,
16 is either actually misleading or . . . has a capacity, likelihood or tendency to
17 deceive or confuse the public." Chapman, 220 Cal. App. 4th at 226 (internal
18 quotation marks and citations omitted); see also Tobacco II Cases, 46 Cal.4th at
19 312. Whether Plaintiffs are successful in proving deceptiveness or not, the
20 outcome of this issue affects the claims on a class-wide basis. The merits of this
21 issue therefore do not preclude class certification. Accordingly, it is neither
22 necessary nor appropriate for the Court to decide it at this stage. See Amgen, 568
23 U.S at 466.
24

Defendant next maintains that individual "proof of causation and thereby

25 reliance" is required. (Doc. no. 170-1 at 39.) The argument is based on the
26 premise that to avoid individual proof of causation, Plaintiffs must show that the
27 "lean" and L-glutamine representations were material to the class members. This
28
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1 is not required for the UCL and FAL claims, but is required for the CLRA claim.
2 See Steroid Prod. Cases, 181 Cal. App. 4th at 156-57.
3

In support of their contention that the L-glutamine and "lean"

4 representations are material, Plaintiffs primarily rely on their marketing expert
5 Elizabeth Howlett, Ph.D. (Doc. no. 157-8 ("Howlett Report") at 8.) Defendant
6 moves to exclude Dr. Howlett's opinions as inadmissible under Rule 702 of the
7 Federal Rules of Evidence. (Doc. no. 170-1 at 59.) For the reasons stated below,
8 Defendant's Daubert motion is granted in part.
9

The party offering evidence bears the burden of showing that the evidence is

10 admissible. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987).
11 Accordingly, Plaintiffs bear the burden of showing that Dr. Howlett's materiality
12 opinions are admissible. To be admissible, among other things, expert opinion
13 must be based on sufficient facts or data. Fed. R. Evid. 702(b).
14

Dr. Howlett based her opinion on two factors -- role of L-glutamine in

15 muscle recovery and immune system function, and Defendant's own marketing
16 research. (Howlett Report at 8; see Videotaped Deposition of Dr. Elizabeth
17 Howlett ("Howlett Depo.") at 30-35; see also id. at 21.)7 Dr. Howlett did not cite
18 any references for her opinions regarding the function of L-glutamine in the body,
19 but relied on "common knowledge." (Howlett Depo. at 31-34; see also Howlett
20 Report at 8.) However, she admitted that the effect of L-glutamine on the body
21 was "out of [her] area of expertise." (Howlett Depo. at 37.) She also admitted that
22 Defendant's marketing research materials referenced in her report were not
23 referencing L-glutamine, but were more generally addressing protein content. (Id.
24 at 32-35.)
25 / / / / /
26
7
Excerpts from the Howlett Depo. were filed as doc. no. 170-4 (Kaplan Decl.
27 Ex. F) and doc. no. 185-7 (Marino Decl. Ex. E). Throughout this Order, page
references to deposition testimony are to the page numbers in the transcript.
28

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Plaintiffs point to Dr. Howlett's deposition testimony that the primary source

1

2 of the information she reviewed for her report was Defendant's own marketing
3 research. (Doc. no. 185 at 26 (citing Howlett Depo. at 21).) The problem with this
4 argument is that Dr. Howlett's report cites to only a few pages out of those
5 documents (Howlett Report at 8), which do not address L-glutamine. (Howlett
6 Depo. at 32-35). Based on the foregoing, Dr. Howlett's opinion that L-glutamine
7 representations were material to the consumers is unsupported by sufficient facts or
8 data. Defendant's motion to exclude this opinion is granted for purposes of the
9 pending motion for class certification.
In addition to moving to exclude Dr. Howlett's opinions, Defendant offered

10

11 the opinion of its marketing expert Ravi Dhar to argue that the L-glutamine
12 representations were not material. (Doc. no. 170-1 at 43 (citing doc. no. 170-7
13 ("Dhar Report").) Dr. Dhar opined, based on a consumer survey he conducted, that
14 "the overwhelming majority of the respondents do not even mention L-glutamine
15 as a reason for buying the products." (Dhar Report at 10; see also id. at 10-13.)
16

Plaintiffs do not address Dr. Dhar's opinion. Instead, they offer evidence of

17 their own independently of Dr. Howlett's opinion. They rely on, among other
18 things, the deposition testimony of Adam Schrententhaler, Defendant's Director of
19 Product Development (Transcript of the Testimony of Adam Schrententhaler
20 ("Schrententhaler Depo.")),8 and Defendant's own marketing research (doc. no.
21 170-38 through 40 (Kashima Decl. Exs. M-O)). (See doc. no. 185 at 19-20, 37.)
22

Adam Schrententhaler and his team formulated all Defendant's products,

23 "created all the label content, [and] produced claim substantiation."
24 (Schrententhaler Depo. at 13.) He testified it was Defendant's understanding that
25 L-glutamine played a role for athletes in muscle maintenance or building. (Id. at
26
27
28

8

Excerpts from the Schrententhaler Depo. were filed as doc. no. 157-26 and
157-32 (Kashima Decl. Exs. A & G).
- 15 Case No. 3:15-cv-00165-L-AGS

1 124.) Defendant's marketing research shows that muscle maintenance and building
2 were important to consumers who purchased protein supplements. (See, e.g., Ex.
3 N at 034911; Ex. O at 034303.)9 L-glutamine content was specified, and its
4 function for athletes was highlighted, on some of Defendant's protein powder
5 labels. (Kashima Decl. Ex. K at 29-36 ("5g L-glutamine to enhance muscle tissue
6 recovery/repair").) This evidence tends to show, independent of Dr. Howlett's
7 opinions, that L-glutamine representations were material.
Plaintiffs contend that their evidence is sufficient to prevail on the

8

9 predominance issue with respect to the L-glutamine representations. (Doc. no. 185
10 at 20.) They argue that materiality is a merits issue that should not be decided at
11 the class certification stage. (Id. at 18.) According to Plaintiffs, the relevant
12 inquiry is whether materiality can be proven on a class-wide basis and not whether
13 the alleged misrepresentations were in fact material. (Id. at 20.) Citing Clemens v.
14 DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008), Plaintiffs allow that
15 "to the extent [they] must show some prima facie showing of materiality at class
16 certification, '[s]urveys and expert testimony regarding consumer assumptions and
17 expectations may be offered but are not required; anecdotal evidence may suffice.'"
18 (Doc. no. 185 at 19 (emphasis in original) (quoting Clemens, 534 F.3d at 1026).)
19

Clemens did not address class certification. It held that to prevail on the

20 issue of materiality at summary judgment, evidence of consumer assumptions and
21 expectations may be sufficient to raise a genuine issue of fact. 534 F.3d at 1026.10
22 Unlike summary judgment, prevailing on a motion for class certification requires
23 the court to resolve any factual disputes necessary to determine whether class
24 certification requirements are met. Ellis v. Costco Wholesale Corp., 657 F.3d 970,
25 983 (9th Cir. 2011). In Ellis, the district court decision was vacated because the
26
9

27

Page references are to the page numbers assigned by the parties in discovery.

10
The plaintiff's showing in Clemens did not suffice, however, and summary
28 judgment was granted for the defendant. Id.

- 16 Case No. 3:15-cv-00165-L-AGS

1 court did not resolve the factual dispute, presented through conflicting expert
2 opinions, whether there was a nationwide common pattern and practice of alleged
3 employment discrimination that could affect the class as a whole. This was
4 required before the court could decide whether there was commonality of issues of
5 fact or law for purposes of class certification. Id. at 98-84. Ellis expressly rejected
6 the reasoning, relied upon by Plaintiffs here, that because both sides presented
7 admissible evidence, a finding of commonality was appropriate. Id. at 984.
8

Materiality of the alleged misrepresentations is central to finding

9 commonality and predominance, and therefore to class certification of the CLRA
10 claim. If the alleged misrepresentations are material, individualized proof of
11 reliance and causation is not required, and can be presumed on a class-wide basis.
12 Steroid Prod. Cases, 181 Cal. App. 4th at 156-57. If they are not material, the
13 claim does not necessarily fail, but individual proof of reliance and causation will
14 be required for each would-be class member, thus precluding class certification.
15

Both parties presented admissible evidence tending to show that the L-

16 glutamine representations were or were not material. Ellis requires the Court to
17 resolve the factual dispute. Plaintiffs bear the burden to show that all requirements
18 for class certification are met. This includes a showing of materiality. See
19 Comcast, 569 U.S. at 33.
20

Plaintiffs do not address Dr. Dhar's opinion, but merely dismiss it as "some

21 conflicting evidence" and argue that "Defendant's self-serving, post-dispute expert
22 reports do not foreclose certification of the proposed Class." (Doc. no. 185 at 20.)
23 Given admissible evidence on both sides of the materiality issue, which appears to
24 be evenly balanced, Plaintiffs' arguments are insufficient to carry their burden of
25 showing that the L-glutamine representations were material.
26

The parties also dispute whether Defendant's "lean" representations on the

27 protein powder labels were material. Plaintiffs rely on Dr. Howlett's opinion that
28
- 17 Case No. 3:15-cv-00165-L-AGS

1 "fat level of Lean Muscle Milk Products is material." (Howlett Report at 8; see
2 also Howlett Depo. at 37, 42-43.) In this regard, Dr. Howlett's opinion was
3 focused on the "Lean Lipids" representation on the product labels. (Howlett Depo.
4 at 42-43, 79.) She based her materiality opinion on Defendant's marketing
5 research which stated that weight loss management was important to consumers.
6 (Howlett Report at 8 (citing Ex. O at 34303); Howlett Depo. at 38, 42-43.)
7

Defendant criticizes this basis because the document considered by Dr.

8 Howlett does not reference "Lean Lipids" and addresses a whole category of
9 protein products on the market, not only Muscle Milk products. (Doc. no. 170-1 at
10 46.) This argument is rejected. Defendant's research concluded that weight loss
11 management was important to consumers. (See, e.g., Ex. O at 34303.) It is
12 therefore not a stretch to opine that consumers find fat content representations
13 material. It is undisputed that "Lean Lipids" refers to the fat in Defendant's
14 product. Defendant's motion to exclude Dr. Howlett's materiality opinion
15 regarding "Lean Lipids" representation is denied.
16

In addition to attacking the admissibility of Dr. Howlett's opinion, Defendant

17 relies on Dr. Dhar's report. (Doc. no. 170-1 at 46.) Based on a consumer survey,
18 Dr. Dhar opined that the "lean" statements on the labels did not have an impact on
19 the purchase decision. (Dhar Report at 15-17.)
20

In response, in addition to Dr. Howlett's report, Plaintiffs point to

21 Defendant's marketing research showing that a significant portions of consumers
22 purchase protein powder for weight loss and weight management. (See, e.g., Ex.
23 M. at 34847-48; Ex. N. at 34911.) They do not address Dr. Dhar's report, however,
24 other than to dismiss it in a summary fashion outlined in the context of L25 glutamine representations above. As noted, where both sides have come forward
26 with admissible evidence of materiality, which appears to be evenly balanced, this
27 / / / / /
28
- 18 Case No. 3:15-cv-00165-L-AGS

1 is insufficient for Plaintiffs to meet their burden of showing, for purposes of class
2 certification, that the "lean" representations were material.
3

For the foregoing reasons, Defendant's motion to exclude Dr. Howlett's

4 opinion is granted insofar as she opined that the L-glutamine representations were
5 material. This opinion is excluded for purposes of the pending class certification
6 motion only. Defendant's Daubert motion is denied in all other respects. Plaintiffs
7 failed to meet their burden, with respect to the CLRA claim only, that the L8 glutamine and "lean" representations were material, and that causation can be
9 proved on a class-wide basis. This precludes certification of the CLRA claim to
10 the extent it is based on L-glutamine and "lean" statements on protein powder
11 labels.
12
13
14

iii.

Class Member Injury -- Protein Content
Statements on Protein Shake Labels

With respect to the protein shakes, Defendant argues that Plaintiffs cannot

15 meet the predominance requirement because they "failed to offer any common
16 evidence of injury," and because the parties would have to test each batch and
17 bottle of the many formulations of protein shakes. (Doc. no. 170-1 at 49.)
18 Individual proof of injury is not required for the class members to prevail on the
19 UCL and FAL claims; however, it is required for the CLRA claim. Steroid Prod.
20 Cases, 181 Cal. App. 4th at 155.
21

Defendant also argues that Plaintiffs used invalid methodology to test the

22 protein content of the shakes. (Doc. no. 170-1 at 48-49.) Alternatively, it argues
23 that protein content was not uniformly overstated, because in some instances it was
24 accurately stated and in others it was actually greater than stated. (Id. at 49.)
25 These arguments go to the issue whether Plaintiffs can prove deceptiveness of the
26 protein content statement. As previously discussed, regardless of Plaintiffs'
27 / / / / /
28
- 19 Case No. 3:15-cv-00165-L-AGS

1 success or failure on this issue, the result applies to the class as a whole.11 See
2 Tobacco II Cases, 46 Cal.4th at 312 ("members of the public are likely to be
3 deceived"); see also Chapman, 220 Cal. App. 4th at 226 (not necessary to prove
4 actual falsity). As the issue does not preclude class certification, it need not, and
5 should not, be decided at this stage. See Amgen, 568 U.S at 466.
Defendant next contends that the claim should not be certified because

6

7 Defendant offered many varieties of the protein shakes during the class period, and
8 each variety had its own stated protein content and alleged shortfall. (Doc. no.
9 170-1 at 47-49.) Defendant maintains that this shows there is no "common
10 shortfall" for all protein shake varieties. (Id. at 48.) Accepting at face value the
11 contention that the discrepancy varies among the various shake formulations, and
12 considering that the standard is whether "members of the public are likely to be
13 deceived," Tobacco II Cases, 46 Cal.4th at 312, it is not fatal to class certification
14 if the shortfall is not the same for each variety.
15

Although different products may have to be tested for protein content,

16 Defendant's argument that each batch and bottle of each variety of the shake will
17 have to be tested to determine whether the class members were injured (doc. no.
18 170-1 at 49) is rejected. The parties stipulated for purposes of class certification
19 that the amount of protein did not vary materially between different batches of the
20 same product during the class period. (Doc. no. 104 at 1.) Further, Elizabeth
21 Kimball, Defendant's nutritional scientist and compliance manager (Deposition of
22 Elizabeth Willard Kimball, Ph.D. ("Kimball Depo.") at 45-46),12 admitted that
23 there were no variations with respect to the base product formula between various
24 flavors of the same product. (See Kimball Depo. at 45-46, 48-52.)
25
11
Defendant acknowledges this is a merits issue. (Doc. no. 170-1 at 49
26 ("Plaintiffs' claims fail on the merits.").)

27
28

12

Excerpts from the Kimball Depo. were filed as doc. no. 157-33 (Kashima
Decl. Ex. H.)
- 20 Case No. 3:15-cv-00165-L-AGS

1

As Defendant itself suggests, a proper sampling method is sufficient to

2 determine whether the actual protein content varies from the statements on the
3 labels. (See doc. no. 170-1 at 49 n.38.) There is no dispute whether the alleged
4 shortfall can be proved or disproved by sampling, but only as to the validity of the
5 chosen sampling method. Methodology is relevant to the sufficiency, and
6 potentially admissibility, of the evidence to prove deceptiveness, and need not be
7 resolved for purposes of class certification. Defendant's argument that certification
8 should be denied because Plaintiffs would have to make an individualized showing
9 of protein content is rejected.
10
11

iv.

Calculation of Damages

Defendant next contends that class certification should be denied based on

12 Comcast v. Behrend, 569 U.S. 27 (2013), which held that "the plaintiffs must be
13 able to show that their damages stemmed from the defendant's actions that created
14 the legal liability." Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir.
15 2013)(citing Comcast, 569 U.S. at 37-38). In Comcast the plaintiffs advanced four
16 theories of antitrust liability, only one of which was approved for class treatment.
17 Comcast, 569 U.S. at 35. The plaintiffs' proposed damage calculation would
18 include damages caused by all four theories of liability combined. Id. at 36. The
19 holding of Comcast is based on the "unremarkable premise" that if the plaintiffs
20 prevailed, they would be entitled only to damages resulting from one theory of
21 liability. Id. at 35. The Court concluded,
22
23
24
25

It follows that a model purporting to serve as evidence of damages in
this class action must measure only those damages attributable to that
theory. If the model does not even attempt to do that, it cannot
possibly establish that damages are susceptible to measurement across
the entire class for purposes of Rule 23(b)(3).

26 Id.
27 / / / / /
28
- 21 Case No. 3:15-cv-00165-L-AGS

Plaintiffs seek restitution. (Doc. no. 157-1 at 28.) "The difference between

1

2 what the plaintiff paid and the value of what the plaintiff received is a proper
3 measure of restitution." In re Vioxx Class Cases, 180 Cal. App. 4th 116, 131
4 (2009). Plaintiffs propose two alternative models of calculating damages
5 stemming specifically from Defendant's protein, L-glutamine and "lean"
6 representations. To the extent these models attribute damages to each alleged
7 misrepresentation separately, they comply with Comcast.
Defendant also argues that class certification should be denied because

8

9 neither of the proposed damages models has been performed. Defendant cites no
10 binding authority holding that class certification should be denied unless the
11 experts have already calculated damages,13 especially when, as here, the parties
12 bifurcated class certification and merits discovery. (Doc. no. 170-4 (Kaplan Decl.
13 Ex. H (Joint Rule 26(f) Report and Discovery Plan)) at 78.) Plaintiffs filed expert
14 declarations explaining their proposed models.
15

Plaintiffs propose conjoint analysis to calculate class-wide damages

16 attributable to protein content statements on the protein shake labels, and L17 glutamine and "lean" statements on the protein powder labels.14 Conjoint analysis
18 is a quantitative consumer preference analysis used to measure the relative value of
19 various product attributes. (Doc. no. 157-8 ("Howlett Report") at 9.) It has been
20 used in marketing research since the 1970s. (Id. at 10.) Dr. Howlett opined that it
21 is possible "to use the conjoint analysis to quantify the Price Premium associated
22 with the allegedly false 'Protein, L-Glutamine, and Lean Claims' on a class-wide
23 basis." (Id. at 6.)
24
13
This issue was not an impediment to class certification in In re Conagra
25 Foods, which considered at length proposed expert opinions regarding class-wide
proof of damages. 90 F. Supp. 3d 945, 1025-32. 945 (C.D. Cal. 2015); aff'd
26 Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).

27

14

Although class certification was denied for the CLRA claim based on the Lglutamine and "lean" statements, damages analysis is relevant to the UCL and FAL
28 claims based on the same statements.
- 22 Case No. 3:15-cv-00165-L-AGS

1

Dr. Howlett proposes to use the choice-based variant of the conjoint

2 analysis. (Id. at 11.) In a choice-based conjoint analysis, the study respondents are
3 presented with a product that has multiple options for each studied attribute, such
4 as a specific number of car color options and whether the car has a sunroof. (Id. at
5 9.) The choices presented to the respondents have all combinations of the studied
6 attributes. By analyzing the respondents' choices, it is possible to quantify the
7 relative impact of each attribute on product preference, i.e., the value of each
8 attribute. (Id.) With statistical analysis, it is possible to derive the distribution of
9 preferences across all respondents. (Id. at 11.) If one of the studied attributes is
10 price or premium over average market price, the analysis can determine the dollar
11 value of each attribute or the percentage of the average market price associated
12 with each attribute. (Id. at 9, 12.)
13

For the pending case, Dr. Howlett proposes to use a national online survey

14 directed to a sample of consumers who purchased one or more of relevant protein
15 shake or powder products. (Id. at 12.) Defendant's shake products are to be used
16 to study the importance of the protein amount, and the protein powder products to
17 study L-glutamine and "lean" representations. (Id. at 13.) The study would ensure
18 that the product attributes of the highest importance to the sampled consumers are
19 included. (Id.) The responses will be statistically analyzed to determine the value
20 of each of the three attributes, for example an additional gram of protein, presence
21 or absence of L-glutamine and presence or absence of "Lean Lipids" statements.
22 (Id. at 14-15.) The value of each additional increment of protein or presence of L23 glutamine or "Lean Lipids" will be separately multiplied by total product purchases
24 to arrive at class-wide damages. (Id. at 16.)
25

Defendant criticizes Dr. Howlett's proposed study by arguing that she

26 "assumes the ultimate conclusion that consumers cared about and paid a price
27 premium for the L-glutamine or Lean Lipids statements," because she intends to
28
- 23 Case No. 3:15-cv-00165-L-AGS

1 include them in the conjoint analysis. (Doc. no. 170-1 at 55.) These attributes
2 must be included, because they are the attributes studied by her analysis. Dr.
3 Howlett testified that if consumers are indifferent to these attributes, the result of
4 the analysis would show it. (See Howlett Depo. at 51-53.) Defendant's argument
5 omits the pertinent part of Dr. Howlett's testimony. (See doc. no. 170-1 at 55
6 (citing Howlett Depo. at 51:24-52:14).)
7

Defendant further contends Dr. Howlett "does not know if she could obtain

8 pricing data she needs." (Doc. no. 170-1 at 56.) Defendant misconstrues Dr.
9 Howlett's deposition testimony about pricing data. (See doc. no. 170-1 at 56
10 (citing Harris Depo. at 57-58).) She testified she would use data from market
11 research firms such as Information Resources, Inc. and Nielsen, which "almost
12 certainly" is available. (Howlett Depo. at 57-58.) Nowhere in the cited deposition
13 testimony did Dr. Howlett indicate she could not obtain the pricing data.
14 Furthermore, Defendants produced their sales data for each product relevant to this
15 action by state and date. (Doc. no. 157-1 at 41 n.25.)
16

Finally, Defendant argues that Dr. Howlett's analysis does not meet the

17 Comcast requirement that damages be tied only to the liability theory at issue for
18 class treatment. Plaintiffs' L-glutamine claim is based on the contention that the
19 protein powder products did not contain any appreciable amount of unbonded L20 glutamine, as opposed to bonded L-glutamine. Defendant contends Dr. Howlett
21 does not explain how she will determine the value of the unbonded, as opposed to
22 bonded, L-glutamine. (Doc. no. 170-1 at 55.) Plaintiffs' do not address this
23 argument. (See doc. no. 185 at 26, 29-31.) Because damages must be based on the
24 specific theory of liability, certification is denied as to the consumer protection
25 claims based on L-glutamine statements.
26

As an alternative method of calculating damages attributable to protein

27 content statements on protein shake products, Plaintiffs propose hedonic regression
28
- 24 Case No. 3:15-cv-00165-L-AGS

1 analysis to be conducted by Jeffrey E. Harris, M.D., Ph.D. (See doc. no. 157-7
2 ("Harris Report") at 6.) Because Dr. Howlett's proposed conjoint analysis of the
3 same statements is sufficient to meet Plaintiffs' burden to show that damages can
4 be calculated on a class-wide basis, the Court need not address Defendant's
5 criticisms of the alternative method.
6

For the foregoing reasons, Plaintiffs met the commonality and predominance

7 requirements for (1) the UCL, FAL and CLRA claims to the extent they are based
8 on statements of protein content on protein shake labels; and (2) UCL and FAL
9 claims to the extent they are based on "lean" statements on protein powder labels.
10
11

d.

Florida Consumer Protection Claims

Plaintiffs allege that the false or misleading statements on Defendant's

12 product labels also violated the FDUTPA, Fla. Stat. §§ 501.201 et seq. To prevail
13 on this claim, a plaintiff must show that that "the alleged practice was likely to
14 deceive a consumer acting reasonably in the same circumstances." Fla. Offc. of
15 Atty Gen. v. Commerce Comm. Leasing, LLC, 946 So.2d 1253, 1258 (Fla. D. Ct.
16 App. 2007) (internal quotation marks and citation omitted.) The plaintiff "need not
17 show actual reliance on the representation or omission at issue." Id. (citation
18 omitted). Defendant does not disagree. (See doc. no. 170-1 at 24.) This standard
19 is the same as for the UCL and FAL claims. The measure of damages under the
20 FDUTPA is the difference in the market value of the product as sold and the
21 product as promised. Ft. Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715
22 So.2d 311, 313-14 (Fla. D. Ct. App. 1998). It is the same measure as restitution
23 under the UCL and FAL. Accordingly, for the reasons stated in the context of
24 California consumer protection claims, Plaintiffs meet the commonality and
25 predominance requirements for a FDUTPA violation based on the protein content
26 statements on protein shakes and "lean" statements on protein powders.
27 / / / / /
28
- 25 Case No. 3:15-cv-00165-L-AGS

1
2

e.

Michigan Consumer Protection Claims

Plaintiffs allege that Defendant also violated the MCPA, Mich. Comp. Laws

3 § 445.903(1)(c). The statute prohibits "[u]nfair, unconscionable, or deceptive
4 methods, acts, or practices in the conduct of trade or commerce" defined in
5 pertinent part as "representing that goods or services have sponsorship, approval,
6 characteristics, ingredients, uses, benefits, or quantities that they do not have." Id.
7 This provision is identical to the CLRA, Cal. Civ. Code § 1770(a)(5). As with
8 California consumer protection claims,
9
10
11

members of a class proceeding under the [MCPA] need not
individually prove reliance on the alleged misrepresentations. It is
sufficient if the class can establish that a reasonable person would
have relied on the representations.

12
13 Dix v. Am. Bankers Life Assur. Co., 415 N.W.2d 206, 209 (Mich. Supr. Ct. 1987)
14 (footnote omitted). Plaintiffs concede that the analysis under the MCPA should be
15 the same as under the CLRA. (Doc. no. 157-1 at 31 n.12.) The measure of
16 damages under the MCPA is the same as restitution under California consumer
17 protection statutes -- difference in value between the product as promised and
18 product as sold. See Mayhall v. A.H. Pond Co., Inc., 341 N.W.2d 268, 271-72
19 (Mich. Ct. App. 1983). Accordingly, for the reasons stated in the context of
20 California consumer protection claims, Plaintiffs meet the commonality and
21 predominance requirements for a Michigan subclass asserting an MCPA violation
22 based on the protein content statements on protein shakes.
23
24

f.

Nationwide Class for FAL and UCL Violations

Finally, Plaintiffs seek certification of a nationwide class for the FAL and

25 UCL claims. Defendant argues that a nationwide class cannot be certified because
26 California law does not apply to out-of-state putative class members, and that each
27 / / / / /
28
- 26 Case No. 3:15-cv-00165-L-AGS

1 class member's own state law should apply, thus precluding a finding that common
2 issues predominate for a nationwide class.
3

California state law applies to the conflict-of-law issue presented by

4 Plaintiffs' motion to certify a nationwide class. See Mazza v. Am. Honda Motor
5 Co., 666 F.3d 581, 589 (9th Cir. 2012).
6
7
8
9

California law[, rather than the law of a foreign state,] may be used on
a classwide basis so long as its application is not [unconstitutionally]
arbitrary or unfair with respect to nonresident class members, and so
long as the interests of other states are not found to outweigh
California's interest in having its law applied.

10 Wash. Mut. Bank v. Super. Ct., 24 Cal.4th 906, 921 (2001) (citations omitted).
11

"Under California's choice of law rules, the class action proponent bears the

12 initial burden to show that California has 'significant contact or significant
13 aggregation of contacts' to the claims of each class member." Mazza, 666 F.3d at
14 589 (quoting Wash. Mut. Bank, 24 Cal.4th at 921). "Such a showing is necessary
15 to ensure that application of California law is constitutional." Id. at 589-90 (citing
16 Allstate Ins. Co. v. Hague, 449 U.S. 302, 310–11 (1981)).
17

It is undisputed that Defendant is incorporated and headquartered in

18 California, its principal place of business is in California, the final decisions
19 regarding representations made on product labels were made in California, and
20 many of the products were produced in California. (Cf. doc. no. 157-1 (mot.) at
21 41-42 (citing Kashima Decl. Ex. A (excerpts from depo. of Adam
22 Schrententhaler)) with doc. no. 170-1 (opp'n) at 35-37.) This constitutes sufficient
23 contacts between the claims of out-of-state putative class members and the state of
24 California to meet the constitutional requirement. See, e.g., Mazza, 666 F.3d at
25 590 (corporate headquarters, advertising agency and large part of the putative class
26 in California).
27 / / / / /
28
- 27 Case No. 3:15-cv-00165-L-AGS

1

When the class action proponent makes a showing of the requisite contacts,

2

[g]enerally speaking[,] the forum will apply its own rule of decision
unless a party litigant timely invokes the law of a foreign state. In
such event that party must demonstrate that the latter rule of decision
will further the interest of the foreign state and therefore that it is an
appropriate one for the forum to apply to the case before it.

3
4
5

6 Wash. Mut. Bank, 24 Cal.4th at 919 (internal quotation marks, brackets and
7 citations omitted). Defendant contends that the UCL and FAL should not apply to
8 the out-of-state class members, and that their respective state laws should apply
9 instead. (See doc. no. 170-1 at 35-37.) Defendant bears the burden to show that
10 the "governmental interest approach," i.e., the choice-of-law analysis under
11 California law, favors foreign law. See Mazza, 666 F.3d at 590 ("burden shifts to
12 the other side to demonstrate that foreign law, rather than California law, should
13 apply to class claims") (internal quotation marks and citation omitted).
14
15
16
17

Under the first step of the governmental interest approach, the foreign
law proponent must identify the applicable rule of law in each
potentially concerned state and must show it materially differs from
the law of California. The fact that two or more states are involved
does not in itself indicate there is a conflict of laws problem.

18 Wash. Mut. Bank, 24 Cal.4th at 919-20. Defendant filed a chart titled "Material
19 Differences in State Consumer Protection and Deceptive Trade Practices." (Doc.
20 no. 170-6 (Decl. of Matthew Kaplan Ex. T).)15 It contends that some, but not all,
21 states require reliance or causation, some require intent to induce reliance, some
22 have a shorter or longer statute of limitations than California, and some states do
23 not authorize class actions under consumer protection laws. (Id. at 2.) Plaintiffs
24
15
Defendant's brief devotes only one sentence to this issue (doc. no. 170-1 at
25 36) and the entirety of the discussion is presented in a 58-page single spaced chart
in 8-point print. (Doc. no. 170-6 (Decl. of Matthew Kaplan Ex. T).) This is a
26 brazen run around the page limits, which were already extended by parties' request.
(See doc. no. 154 (Order Regarding Briefing Plaintiffs' Motion for Class
27 Certification and Defendant's Summary Judgment and Daubert Motions).) Failure
to comply with orders of the Court is grounds for sanctions. Civ. Loc. Rule 83.1.
28

- 28 Case No. 3:15-cv-00165-L-AGS

1 counter that there is no material difference, because the UCL and FAL are
2 "additive rather than exclusive" to the consumer protection laws of other states.
3 (Doc. no. 157-1 at 43-44; doc. no. 185 at 35.) Plaintiffs cite no binding authority
4 for this proposition. The California appellate cases they cite do not conclude there
5 are no material differences. See Wershba v. Apple Computer, Inc., 91 Cal. App.
6 4th 224, 242 (2001) ("California consumer protection laws are among the strongest
7 in the country."); Clothesrigger, Inc. v. GTE Corp., 191 Cal. App. 3d 605, 616
8 (1987) ("California's more favorable laws may properly apply to benefit
9 nonresident plaintiffs when their home states have no identifiable interest in
10 denying such persons full recovery."). Wershba approved a class-wide settlement
11 of a California unfair business practice claim across a nationwide class because,
12 notwithstanding the differences in the consumer protection laws of various states,
13 "this is not necessarily fatal to a finding that there is a predominance of common
14 issues among a nationwide class." 91 Cal. App. 4th at 244. Clothesrigger held
15 that the trial court did not make the findings required by the governmental interest
16 analysis and remanded for findings. 191 Cal. App. 3d at 613-16, 619-20. The
17 differences among state consumer protection laws, for example, in the requirement
18 of defendant's intent or knowledge, or a statute of limitations that is shorter than
19 California's, are material. See Mazza, 666 F.3d at 590-91; see also McCann v.
20 Foster Wheeler LLC, 48 Cal.4th 68, 88-90 (2010) (statute of repose under foreign
21 law would bar the action).
22

If there is a material difference, the foreign law proponent must next

23 establish the foreign "jurisdiction's interest in the application of its own law under
24 the circumstances of the particular case" to show that "a true conflict exists."
25 Mazza, 666 F.3d at 590 (quoting McCann, 48 Cal.4th at 90) (emphasis added).
26 Defendant does not analyze the state interests under the circumstances of this
27 particular case, but points to the findings made in Mazza. (Doc. no. 170-1 at 36.)
28
- 29 Case No. 3:15-cv-00165-L-AGS

1 Mazza observed that in the false advertising context, "[e]very state has an interest
2 in having its law applied to its resident claimants," 666 F.3d at 591-92 (internal
3 quotation marks, brackets and citation omitted); "each state has an interest in
4 setting the appropriate level of liability for companies conducting business within
5 its territory," id. (citing McCann, 48 Cal.4th at 91); and "[e]ach state has an interest
6 in balancing the range of products and prices offered to consumers with the legal
7 protections afforded them," id. Mazza concluded that it was error to "discount[] or
8 not recogniz[e] each state's valid interest in shielding out-of-state businesses from
9 what the state may consider to be excessive litigation." Id. These interests are
10 valid for any state. Based on the foregoing, in a case where a plaintiff seeks to
11 apply California consumer protection law to a California corporation on behalf of
12 foreign citizens who purchased defendant's products outside California, a true
13 conflict arises where California law affords either greater or lesser consumer
14 protection because other states may choose to offer lesser consumer protection and
15 a more business-friendly climate than California, while others may offer more
16 consumer protection and a less business-friendly environment.
17
18
19
20
21

Third, if the court finds that there is a true conflict, it carefully
evaluates and compares the nature and strength of the interest of each
jurisdiction in the application of its own law to determine which
state's interest would be more impaired if its policy were subordinated
to the policy of the other state, and then ultimately applies the law of
the state whose interest would be more impaired if its law were not
applied.

22
23 Mazza, 666 F.3d at 590 (quoting McCann, 48 Cal.4th at 82 (citations and quotation
24 marks omitted)). In making this analysis,
25
26
27
28

the court does not "weigh" the conflicting governmental interests in
the sense of determining which conflicting law manifested the 'better'
or the 'worthier' social policy on the specific issue. An attempted
balancing of conflicting state policies in that sense is difficult to
justify in the context of a federal system in which, within
- 30 Case No. 3:15-cv-00165-L-AGS

1
2
3
4
5

constitutional limits, states are empowered to mold their policies as
they wish. Instead, the process can accurately be described as a
problem of allocating domains of law-making power in multi-state
contexts—by determining the appropriate limitations on the reach of
state policies—as distinguished from evaluating the wisdom of those
policies. Emphasis is placed on the appropriate scope of conflicting
state policies rather than on the 'quality' of those policies.

6
7 McCann, 48 Cal.4th at 97 (internal quotation marks, brackets, ellipses and citation
8 omitted); see also Mazza, 666 F.3d at 593.
9

Defendant does not offer an analysis of its own, but relies entirely on the

10 holding in Mazza: "because the interests of those other states in applying their own
11 laws to their own consumers is stronger than California's 'attenuated' interest, the
12 Ninth Circuit held that 'each class member's consumer protection claim should be
13 governed by the consumer protection laws of the jurisdiction where the transaction
14 took place.'" (Doc. no. 170-1 at 36 (quoting Mazza, 666 F.3d at 594).)
15

California legislature expressed a strong interest in regulating false

16 advertising which emanates from California into other states. It is unlawful under
17 the UCL and FAL to make or disseminate a false or misleading statement "or cause
18 [it] to be made or disseminated before the public in this state, or to make or
19 disseminate [it] or cause [it] to be made or disseminated from this state before the
20 public in any state." Cal. Bus. & Prof. Code §§ 17500, 17200 (incorporates §
21 17500 by reference). Under the facts of the pending case, applying these
22 provisions to out-of-state sales is consistent with the principle that "a jurisdiction
23 ordinarily has the predominant interest in regulating conduct that occurs within its
24 borders . . .." McCann, 48 Cal.4th at 97-98 (internal quotation marks and citations
25 omitted).
26

Based on this principle, McCann and Mazza found foreign law applicable to

27 their facts. In Mazza, the defendant, American Honda Motor Company, was
28
- 31 Case No. 3:15-cv-00165-L-AGS

1 headquartered in California and its advertising agency, which produced the
2 allegedly misleading materials, was located in California. However, the
3 advertising campaign, as it pertained to the relevant representations, was "very
4 limited," and it was "likely that many class members were never exposed to the
5 allegedly misleading advertisements." Mazza, 666 F.3d at 595. In Mazza, whether
6 a purchaser was exposed to the allegedly misleading statement depended in large
7 part on whether the ultimate seller chose to present it, for example, when the
8 representations were made in product brochures, Acura Style magazine, video or
9 other presentations, which were available only at dealerships. Id. at 586-87
10 (through "small scale marketing efforts," dealers were "encouraged" to show
11 promotional materials at dealership kiosks). Accordingly, "the communication of
12 the advertisements to the claimants and their reliance thereon in purchasing
13 vehicles--took place in the various foreign states, not in California." Id. at 594. In
14 this regard, the Court concluded,
15
16
17
18

We recognize that California has an interest in regulating those who
do business within its state boundaries, . . ., but we disagree with the
dissent that applying California law to the claims of foreign residents
concerning acts that took place in other states where cars were
purchased or leased is necessary to achieve that interest in this case.

19 Id. (emphasis added).
20

Mazza relies in large part on McCann, 48 Cal.4th 68 (2010), because the

21 choice of law issue is governed by California law. Mazza, 666 F.3d at 589.
22 McCann decided that foreign law applied because the incident occurred in
23 Oklahoma when the plaintiff was an Oklahoma resident and the defendant was
24 conducting business in Oklahoma. 48 Cal.4th at 98. The fact that the defendant
25 was a New York company was not persuasive, because Oklahoma had an interest
26 in promoting business, whether by domestic or foreign companies. Id. at 97. The
27 fact that the plaintiff later moved to California for unrelated reasons was
28
- 32 Case No. 3:15-cv-00165-L-AGS

1 happenstance that should not determine the choice of law. Id. The Court
2 recognized that the outcome could be different, if the defendant's conduct occurred
3 in California:
4
5
6

California's interest in applying its laws providing a remedy to, or
facilitating recovery by, a potential plaintiff in a case in which the
defendant's allegedly tortious conduct occurred in another state is less
than its interest when the defendant's conduct occurred in California.

7
8 Id. at 99.
9

In the pending case, the alleged misconduct occurred entirely in California.

10 (See Schrententhaler Depo. at 60-61).) All allegedly false representations were
11 made on Defendant's product labels, and all products were sold with labels. All
12 final decisions regarding the labels were made and approvals were given in
13 California, where Defendant is incorporated and maintains its principal place of
14 business. Defendant distributed its products nationwide.
15

The fact that some products were purchased in one state rather than another

16 should be immaterial to the choice of law under the facts of the present case,
17 because the alleged misconduct occurred entirely in California. Defendant points
18 to no state with a greater interest in enforcing its laws under the facts of this case.
19 Applying the UCL and FAL nationwide does not impede other states in applying
20 their policies, whether through consumer-friendly or business-friendly legislation,
21 to the conduct that occurs within their borders. In light of the foregoing,
22 Defendant has provided no grounds to conclude that any other state's interest,
23 including any state's "interest in promoting business," Mazza, 666 F.3d at 593,
24 would be more impaired than California's, if California law did not apply.
25

Defendant's argument that the questions of law presented by each state's own

26 consumer protection laws defeat a showing of commonality and predominance is
27 rejected. For the reasons stated above, and in the context of California consumer
28
- 33 Case No. 3:15-cv-00165-L-AGS

1 protection claims, Plaintiffs meet the commonality and predominance requirements
2 for the UCL and FAL claims on a nationwide basis to the extent they are based on
3 statements of protein content on protein shake labels and "lean" statements on
4 protein powder labels.
5
6

3.

Typicality

The typicality requirement of Rule 23(a)(3) focuses on the relationship of

7 facts and issues between the class and its representatives.
8
9
10
11

[T]he commonality and typicality requirements of Rule 23(a) tend to
merge. Both serve as guideposts for determining whether under the
particular circumstances maintenance of a class action is economical
and whether the named plaintiff's claim and the class claims are so
interrelated that the interests of the class members will be fairly and
adequately protected in their absence.

12
13 Dukes, 564 U.S. at 249 n.5 (internal quotation marks and citation omitted).
14 "[R]epresentative claims are ‘typical' if they are reasonably co-extensive with those
15 of absent class members; they need not be substantially identical." Hanlon v.
16 Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).
17
18
19

The test of typicality is whether other members have the same or
similar injury, whether the action is based on conduct which is not
unique to the named plaintiffs, and whether other class members have
been injured by the same course of conduct.

20
21 Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010)
22 (internal quotation marks and citations omitted).
23

Defendant does not dispute that Plaintiffs' claims are typical of the class

24 members' claims. Plaintiffs and putative class members were injured by the same
25 conduct -- Defendant's allegedly misleading statements on product labels. The
26 relevant conduct is not unique to named Plaintiffs. The legal theories Plaintiffs
27 / / / / /
28
- 34 Case No. 3:15-cv-00165-L-AGS

1 seek to assert on behalf of the class apply equally to Plaintiffs and the class
2 members. Plaintiffs therefore meet the typicality requirement.
3
4

4.

Adequacy

Rule 23(a)(4) requires a showing that "the representative parties will fairly

5 and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). This
6 requirement is grounded in constitutional due process concerns: "absent class
7 members must be afforded adequate representation before entry of judgment which
8 binds them." Hanlon, 150 F.3d at 1020. In reviewing this issue, courts must
9 resolve two questions: "(1) do the named plaintiffs and their counsel have any
10 conflicts of interest with other class members, and (2) will the named plaintiffs and
11 their counsel prosecute the action vigorously on behalf of the class?" Id. In other
12 words, the named plaintiffs and their counsel must have sufficient "zeal and
13 competence" to protect the interests of the rest of the class. Fendler v. Westgate14 California Corp., 527 F.2d 1168, 1170 (9th Cir. 1975).
15

Defendant does not dispute that the adequacy requirement is met. No

16 conflict of interest is apparent from the record between Plaintiffs and their counsel
17 on one hand and the putative class on the other.
18

With respect to Plaintiffs, the issue is whether they "maintain a sufficient

19 interest in, and nexus with, the class so as to ensure vigorous representation.” In re
20 Online DVD Rental Antitrust Litig., 779 F.3d 934, 943 (9th Cir. 2015) (internal
21 quotation marks, brackets and citation omitted). Based on Plaintiffs' declarations,
22 they have suffered the same injury as they allege on behalf of the class, understand
23 their duties if appointed class representatives, and are willing to undertake them,
24 including vigilantly prosecuting the case on behalf of the class. To date, Plaintiffs
25 have been actively involved in the prosecution of this action, including providing
26 information to class counsel, participating in written discovery and giving
27 deposition testimony. They intend to continue to actively prosecute the case on
28
- 35 Case No. 3:15-cv-00165-L-AGS

1 behalf of the class. (Doc. no. 157-2 ("Roman Decl."); 157-3 ("Clay Decl."); 157-4
2 ("Reichert Decl."); 157-5 ("Ehrlichman Decl.").) Although Plaintiff Christopher
3 Roman has criminal history, Defendant does not contend he cannot adequately
4 represent the class. Roman's history does not include crimes which would
5 adversely reflect on his credibility. (See Deposition of Christopher Roman
6 ("Roman Depo.") at 12-18.)16 Plaintiffs therefore meet Rule 23(a)(4) adequacy
7 requirements.
Based on the counsels' declarations, California attorneys Jeffrey R. Krinsk

8

9 and Trenton Kashima, as well as Michigan attorneys Nick Suciu III, Jason J.
10 Thompson, and Amy L. Marino meet Rule 23(a)(4) adequacy requirements and
11 Rule 23(g) requirements for appointment of class counsel. (Doc. no. 157-9 ("Suciu
12 Decl."), 157-10 ("Thompson Decl."), 157-11 ("Krinsk Decl."), 157-11 (Ex. A to
13 Krinsk Decl.), 157-13 ("Marino Decl.") at 2).
14

B.

15

Certification under Rule 23(b)(3) is proper when "the questions of law or

Rule 23(b)(3) Requirements

16 fact common to class members predominate over any questions affecting only
17 individual members, and . . . a class action is superior to other available methods
18 for fairly and efficiently adjudicating the controversy." Fed. R. Civ. Proc.
19 23(b)(3).
20

As discussed above, this action meets the predominance requirement. The

21 superiority requirement includes consideration of:
22

(A) the class members' interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;

23
24
25 / / / / /
26
27
28

16

Excerpts from the Roman Depo. were filed as doc. no. 170-6 at 189-221, and
doc. no. 185-8.
- 36 Case No. 3:15-cv-00165-L-AGS

1
2

(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.

3
4 Fed. R. Civ. Proc. 23(b)(3). This inquiry "requires the court to determine whether
5 maintenance of this litigation as a class action is efficient and whether it is fair,"
6 such that the proposed class is superior to other methods for adjudicating the
7 controversy. Wolin, 617 F.3d at 1175-76.
8

Defendant argues class action is not superior because individual issues

9 predominate and there are material differences among state consumer protection
10 laws. (Doc. no. 170-1 at 58-59.) Defendant also contends that "Plaintiffs have not
11 offered any means [to] exclude uninjured class members." (Id. at 58 (citing Chow
12 v. Neutrogena Corp., 2013 WL 5629777 *2 (C.D. Cal. Jan. 22, 2013).) The latter
13 argument is based on the contention that each class member may not have been
14 exposed to the allegedly misleading advertisements, and therefore would not suffer
15 the same injury. See Chow, 2013 WL 5629777 *1-2. All of Defendant's
16 arguments were rejected in the context of analyzing the predominance requirement.
17

This is a consumer class action involving low-priced consumer goods and a

18 large number of potential class members. Prosecution of the alleged claims
19 requires discovery, including product testing, and expert analysis, including
20 consumer surveys. It would therefore most likely not be feasible for class
21 members to individually prosecute the consumer protection claims asserted herein.
22 See Briseno, 844 F.3d at 1129. The class members' interest in individually
23 controlling the prosecution of individual actions is small. According to Plaintiffs,
24 no other similar cases are pending. (Doc. no. 157-1 at 41.)
25

This action bears a substantial connection to California, as Defendant is

26 located in California (Schrententhaler Depo. at 61), two of the named Plaintiffs, as
27 well as numerous other consumers, purchased Defendant's products during the
28
- 37 Case No. 3:15-cv-00165-L-AGS

1 class period in California (see Clay Decl. at 2; Roman Decl. at 2). The record does
2 not reflect any reason not to concentrate the litigation of the claims in this District.
3 Finally, it does not appear that this action will be more difficult to manage than
4 other class actions.
5

For the foregoing reasons, the Court finds that all requirements for class

6 action certification under Rule 23(b)(3) are met with respect to (1) the nationwide
7 classes as to the UCL and FAL claims to the extent they are based on statements of
8 protein content on protein shake labels and "lean" statements on protein powder
9 labels; (2) the California subclasses as to the UCL, FAL and CLRA claims to the
10 extent they are based on statements of protein content on protein shake labels; and
11 UCL and FAL claims to the extent they are based on "lean" statements on protein
12 powder labels; (3) the Florida subclasses as to the FDUTPA violation based on the
13 protein content statements on protein shakes and "lean" statements on protein
14 powders; and (4) the Michigan subclass as to the MCPA violation based on the
15 protein content statements on protein shakes.
16 III.

CONCLUSION

17

1.

Plaintiffs' motion for class certification is granted in part and denied in

18 part. The following classes are certified:
19

(a)

A nationwide class comprising of all persons in the United

20 States who, within four (4) years of the filing of this action, purchased Defendant’s
21 Cytosport Whey Isolate Protein Drink; Monster Milk: Protein Power Shake;
22 Genuine Muscle Milk: Protein Nutrition Shake; and Muscle Milk Pro Series 40:
23 Mega Protein Shake. The class is certified for purposes of prosecuting violations
24 of the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et
25 seq., and California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et
26 seq., to the extent the claims are based on the protein content statements on product
27 labels.
28
- 38 Case No. 3:15-cv-00165-L-AGS

1

(b)

A nationwide class comprising of all persons in the United

2 States who, within four (4) years of the filing of this action, purchased Defendant’s
3 Muscle Milk: Lean Muscle Protein Powder; Muscle Milk Light: Lean Muscle
4 Protein Powder; Muscle Milk Naturals: Nature’s Ultimate Lean Muscle Protein;
5 Muscle Milk Gainer; High Protein Gainer Powder Drink Mix; Muscle Milk Pro
6 Series 50: Lean Muscle Mega Protein Powder (14 oz. to 10 lbs. products); and
7 Monster Milk: Lean Muscle Protein Supplement (2.06 and 4.13 lbs. products).
8 The class is certified for purposes of prosecuting violations of the California Unfair
9 Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., and California False
10 Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq., to the extent the claims
11 are based on the "lean" statements on product labels.
12

(c)

All persons residing in California who, within four (4) years of

13 the filing of this action, purchased Defendant’s Cytosport Whey Isolate Protein
14 Drink; Monster Milk: Protein Power Shake; Genuine Muscle Milk: Protein
15 Nutrition Shake; and Muscle Milk Pro Series 40: Mega Protein Shake. The class is
16 certified for purposes of prosecuting violations of the California Unfair
17 Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., California False
18 Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq., and California
19 Consumer Legal Remedies Act, Cal. Civ. Code § 1770(a)(5), to the extent the
20 claims are based on the protein content statements on product labels.
21

(d)

All persons residing in California who, within four (4) years of

22 the filing of this action, purchased Defendant’s Muscle Milk: Lean Muscle Protein
23 Powder; Muscle Milk Light: Lean Muscle Protein Powder; Muscle Milk Naturals:
24 Nature’s Ultimate Lean Muscle Protein; Muscle Milk Gainer; High Protein Gainer
25 Powder Drink Mix; Muscle Milk Pro Series 50: Lean Muscle Mega Protein
26 Powder (14 oz. to 10 lbs. products); and Monster Milk: Lean Muscle Protein
27 Supplement (2.06 and 4.13 lbs. products). The class is certified for purposes of
28
- 39 Case No. 3:15-cv-00165-L-AGS

1 prosecuting violations of the California Unfair Competition Law, Cal. Bus. & Prof.
2 Code §§ 17200 et seq., and California False Advertising Law, Cal. Bus. & Prof.
3 Code §§ 17500 et seq., to the extent the claims are based on the "lean" statements
4 on product labels.
5

(e)

All persons residing in Florida who, within four (4) years of the

6 filing of this action, purchased Defendant’s Cytosport Whey Isolate Protein Drink;
7 Monster Milk: Protein Power Shake; Genuine Muscle Milk: Protein Nutrition
8 Shake; and Muscle Milk Pro Series 40: Mega Protein Shake. The class is certified
9 for purposes of prosecuting violations of the Florida Deceptive and Unfair Trade
10 Practices Act, Fla. Stat. §§ 501.201 et seq., to the extent the claim is based on the
11 protein content statements on product labels.
12

(f)

All persons residing in Florida who, within four (4) years of the

13 filing of this action, purchased Defendant’s Muscle Milk: Lean Muscle Protein
14 Powder; Muscle Milk Light: Lean Muscle Protein Powder; Muscle Milk Naturals:
15 Nature’s Ultimate Lean Muscle Protein; Muscle Milk Gainer; High Protein Gainer
16 Powder Drink Mix; Muscle Milk Pro Series 50: Lean Muscle Mega Protein
17 Powder (14 oz. to 10 lbs. products); Monster Milk: and Lean Muscle Protein
18 Supplement (2.06 and 4.13 lbs. products). The class is certified for purposes of
19 prosecuting violations of the Florida Deceptive and Unfair Trade Practices Act,
20 Fla. Stat. §§ 501.201 et seq., to the extent the claim is based on "lean" statements
21 on product labels.
22

(g)

All persons residing in Michigan who, within six (6) years of

23 the filing of this action, purchased Defendant’s Cytosport Whey Isolate Protein
24 Drink; Monster Milk: Protein Power Shake; Genuine Muscle Milk: Protein
25 Nutrition Shake; and Muscle Milk Pro Series 40: Mega Protein Shake. The class is
26 certified for purposes of prosecuting violations of the Michigan Consumer
27 / / / / /
28
- 40 Case No. 3:15-cv-00165-L-AGS

1 Protection Act, Mich. Comp. Laws § 445.903(1)(c), to the extent the claim is based
2 on protein content statements on product labels.
3

2.

Excluded from the above classes are: (a) Defendant and any entity in

4 which Defendant has or had a controlling interest; (b) the officers and directors of
5 Defendant at all relevant times, the members of Defendant’s officers' and directors'
6 immediate families and their legal representatives, heirs, successors, or assigns; (c)
7 any judge to whom this action is assigned, any members of such judges’ staffs, and
8 any members of such judges' immediate families; and (4) all persons or entities that
9 purchased the relevant products for purposes of resale.
10

3.

Plaintiffs Chayla Clay, Chris Roman, Erica Ehrlichman, and Logan

11 Reichert are appointed as class representatives for the nationwide classes. In
12 addition, Plaintiffs Chayla Clay and Chris Roman are appointed as class
13 representatives for the California classes, Plaintiff Logan Reichert is appointed as
14 class representative for the Florida classes, and Plaintiff Erica Ehrlichman is
15 appointed as class representative for the Michigan class.
16

4.

Attorneys Jeffrey R. Krinsk, Trenton Kashima, Nick Suciu III, Jason

17 J. Thompson, and Amy L. Marino are appointed as class counsel under Rule 23(g).
18

5.

No later than September 14, 2018, the parties shall jointly propose a

19 class notice in compliance with Federal Rule of Civil Procedure 23(c)(2)(B).
20

6.

Defendant's Daubert motion is granted with respect to the opinion of

21 Elizabeth Howlett, Ph.D. that the statements on protein powder labels regarding
22 / / / / /
23
24
25
26
27
28
- 41 Case No. 3:15-cv-00165-L-AGS

1 L-glutamine were material. The opinion is excluded for purposes of this Order
2 only. Defendant's motion is denied in all other respects.
3

IT IS SO ORDERED.

4
5 Dated: September 7, 2018
6
7
8
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10
11
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13
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