Langendorf v. Skinnygirl Cocktails, LLC et al

Filing 142

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 10/30/2014: Langendorf's Motion for Class Certification #94 is denied. Langendorf's motion to exclude the report and testimony of Dr. Rappeport #101 is denied as moot. [For further detail see attached order.] (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AMY LANGENDORF, on behalf of herself
and all others similarly situated,
Plaintiff,

No. 11 CV 7060

v.

Judge Manish S. Shah

SKINNYGIRL COCKTAILS, LLC,
BETHENNY FRANKEL,
SGC GLOBAL, LLC, and
BEAM GLOBAL SPIRITS & WINE, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Amy Langendorf alleges that Skinnygirl Margarita, a pre-mixed alcoholic
beverage, contains the non-natural preservative sodium benzoate, and thus the text
“all natural” on the label is false and misleading. Langendorf sued the makers and
promoters of the product (1) under the Illinois Consumer Fraud and Deceptive
Business Practices Act; (2) under Illinois statutes concerning express and implied
warranties; and (3) under breach-of-contract, unjust enrichment, and promissory
estoppel theories. Langendorf seeks to represent an Illinois-wide class of purchasers
of the product, and now moves for class certification. For the reasons discussed
below, that motion is denied.
I.

Legal Standards
A plaintiff seeking to certify a class under Rule 23 of the Federal Rules of

Civil Procedure must show that her proposed class is “sufficiently definite that its

members are ascertainable.” Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 493
(7th Cir. 2012). Once that hurdle is cleared, the plaintiff must satisfy the four
requirements of Rule 23(a)—commonly referred to as numerosity, commonality,
typicality, and adequacy of representation. Harper v. Sheriff of Cook County, 581
F.3d 511, 513 (7th Cir. 2009). The plaintiff must also satisfy the requirements of at
least one subsection of Rule 23(b). Id. Langendorf seeks to certify a class under Rule
23(b)(3), so must show that issues common to the class members predominate over
questions affecting only individual members, and that a class action is superior to
other available adjudication methods. Fed. R. Civ. P. 23(b)(3); Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
Langendorf must “affirmatively demonstrate” compliance with Rule 23
through “evidentiary proof”—mere allegations are insufficient. Comcast Corp. v.
Behrend, 133 S.Ct. 1426, 1432 (2013); Szabo v. Bridgeport Mach., Inc., 249 F.3d 672,
675 (7th Cir. 2001). Compliance with each requirement must be shown by a
preponderance of the evidence. Messner, 669 F.3d at 811. I can only certify a class if
I am “satisfied, after a rigorous analysis,” that compliance with Rule 23 has been
shown, even if the analysis entails some overlap with the merits. Wal-Mart Stores,
Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011); see also Am. Honda Motor Co., Inc. v.
Allen, 600 F.3d 813, 815 (7th Cir. 2010).
II.

Analysis
Langendorf seeks to represent the following class:
Any and all persons who purchased “Skinnygirl” Margarita spirits
in Illinois from March 1, 2009 until the date notice is disseminated.
Excluded from the Class are Defendants’ officers, directors, agents
2

and employees, those who purchased “Skinnygirl” Margaritas for
the purpose of resale and any judge presiding over this case,
including any member of his/her family.
[104] at 2. Defendants oppose certification, arguing that the proposed class is not
ascertainable, and that Langendorf has satisfied none of the Rule 23 requirements.
A. Whether the Class is Ascertainable
Langendorf must show that the proposed class is sufficiently definite—its
members must be ascertainable. Jamie S., 668 F.3d at 493; Oshana v. Coca-Cola
Co., 472 F.3d 506, 513 (7th Cir. 2006). A proposed class is not ascertainable where
“there is no way to know or readily ascertain who is a member of the class.” Jamie
S., 668 F.3d at 495. The identities of the class members need not be known at this
stage, but there must be some objective criteria by which the identities can be
determined. Manual for Complex Litigation, Fourth § 21.222. In addition to
defining the class by reference to objective criteria, the plaintiff must propose a
method for ascertaining class members with some evidentiary support that the
method will be successful. Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013).
Plaintiff has satisfied the objective-criteria requirement. Purchase of
Skinnygirl Margarita, after March 1, 2009, and lack of association with defendants
or the court provide objective descriptions of prospective class members. But
plaintiff has not offered any method by which the court could find out who the
purchasers were. Plaintiff says class membership can be verified by the dates of
purchase, the locations of retail establishments, the frequency of purchases, the
quantity of purchases, and the cost of purchase, [129] at 22, but does not offer any
showing that this can be done. For example, plaintiff provides no evidence that any
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records exist that show who purchased the offending product, when, or where.
Defendants argue that because they never sold the product directly to consumers,
there is no way (without individual mini-trials) to specifically identify the class
members. [111] at 12–13. The burden is on the plaintiff to demonstrate that the
class can be identified, and plaintiff has failed to meet this burden.
The Third Circuit’s decision in Carrera could be read to impose too high a
burden on plaintiffs in consumer class actions. See Carrera v. Bayer Corp., 2014 WL
3887938 (3d Cir. 2014) (Ambro, J., dissenting from denial of rehearing en banc). I
am not bound by Carrera, but I am persuaded that in order for a class to be
ascertainable, there must be a showing by plaintiff that some method exists to
identify the members. Here there has been none; even if Carrera set the bar too
high, plaintiff has not made a minimal showing.1 Because plaintiff has failed to
demonstrate how one would go about using the objective criteria to ascertain the
class members, on this record the class cannot be ascertained. For the sake of
completeness, I address the other requirements for class certification.
B. Numerosity
Rule 23(a)(1) requires that a class be so numerous that joinder of all its
members is impracticable. Szabo, 249 F.3d at 676. Defendants argue that

Defendants also argue that the proposed class is “incurably overbroad” because it includes
individuals that did not rely on the “all natural” text and thus were not harmed. [111] at 14.
This is not an issue for ascertaining the class, but one of individual claim validity. It would
be wrong to think that no class could be certified until proof exists that every member has
been harmed. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 757–58 (7th Cir. 2014).
Therefore, the fact that the class definition might include individuals with no claim is not a
reason to find the class improperly defined.
1

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numerosity is not met because the proposed class includes people whose claims will
fail on the merits. [109] at 7–8. As in Parko v. Shell Oil Co., 739 F.3d 1083, 1084–85
(7th Cir. 2014), the defendants are putting the cart before the horse. “How many (if
any) of the class members have a valid claim is the issue to be determined after the
class is certified.” Id. Langendorf contends that the proposed class includes
thousands of members. [104] at 6. That estimate, which is reasonable in a case
concerning a consumer product, is not disputed by defendants. The numerosity
requirement is met.
C. Commonality
Rule 23(a)(2) requires the existence of at least one question of law or fact that
is common to the class. “Commonality requires the plaintiff to demonstrate that the
class members have suffered the same injury.” Wal-Mart, 131 S.Ct. at 2551
(internal quotation and citation omitted). This requires more than a mere showing
that the proposed class members have “all suffered a violation of the same provision
of law.” Id. Rather, the claims must depend upon a common contention, capable of
classwide resolution. Id. “What matters to class certification is the capacity of a
classwide proceeding to generate common answers apt to drive the resolution of the
litigation.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014)
(internal marks omitted) (quoting Wal-Mart, 131 S.Ct. at 2551). “An issue central to
the validity of each one of the claims in a class action, if it can be resolved in one
stroke, can justify class treatment.” Butler v. Sears, Roebuck & Co., 727 F.3d 796,
801 (7th Cir. 2013) (internal quotation marks omitted) (quoting Wal-Mart, 131 S.Ct.
at 2551).
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Defendants argue that the commonality requirement is not met because
“[t]he critical questions of injury, causation, materiality, and reliance” turn on
individual issues. [109] at 9. But counting and weighing individual issues is an
analysis for the predominance requirement of Rule 23(b)(3). To satisfy the
commonality requirement, a single common question will do. Wal-Mart, 131 S.Ct. at
2556; Suchanek, 764 F.3d at 756 (“Neither Rule 23 nor any gloss that decided cases
have added to it requires that every question be common. It is routine in class
actions to have a final phase in which individualized proof must be submitted.”).
Whether the product’s label was false or misleading is relevant to the asserted
claims, and is capable of classwide resolution. See Suchanek, 764 F.3d at 758
(question of “whether packaging was likely to mislead a reasonable consumer”
satisfies the commonality requirement). The commonality requirement is satisfied.
D. Typicality
To satisfy Rule 23(a)(3)’s typicality requirement, “there must be enough
congruence between the named representative’s claim and that of the unnamed
members of the class to justify allowing the named party to litigate on behalf of the
group.” Spano v. The Boeing Co., 633 F.3d 574, 586 (7th Cir. 2011). The typicality
requirement addresses the separate concerns that (1) the representative’s claim
may fail on unique grounds, dooming meritorious claims of absent class members;
or (2) the representative’s claims may prevail on unique grounds, and the
representative may therefore fail to adequately present alternative grounds under
which the unnamed class members could prevail on their own claims. CE Design
Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011).
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Defendants argue that “the proposed class would include individuals who
knew of, and those who did not care about, the presence of one part per million of
sodium benzoate, which precludes a finding of typicality.” [109] at 10. Defendants
urge that individual examinations would be required to determine whether putative
class members were deceived by the “all natural” marketing. [109] at 11. But
defendants have not raised the concern that unnamed class members with
meritorious claims will be prejudiced by Langendorf’s representation. Defendants’
concerns—that time will be spent on individual examinations to eliminate nonmeritorious claims—are more appropriately considered under the predominance
requirement of Rule 23(b)(3).
Generally, “[a] claim is typical if it arises from the same event or practice or
course of conduct that gives rise to the claims of other class members and [is] based
on the same legal theory.” Oshana, 472 F.3d at 513 (quotations omitted).
Langendorf complains about defendants’ labeling and marketing practices, which
were directed to the public at large. [104] at 9. Her claim is typical of the claims of
the proposed class.
E. Adequacy of Representation
Rule 23(a)(4) requires that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Adequacy of
representation is composed of two parts: the adequacy of the named plaintiff’s
counsel, and the adequacy of representation provided in protecting the different,
separate, and distinct interest of the class members.” Retired Chicago Police Ass’n v.
City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) “A class is not fairly and adequately
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represented if class members have antagonistic or conflicting claims.” Id. (citations
omitted). A proposed class representative “who has serious credibility problems or
who is likely to devote too much attention to rebutting an individual defense may
not be an adequate class representative.” CE Design, 637 F.3d at 726 (internal
citations and quotation marks omitted).
Defendants have raised issues that potentially undermine Langendorf’s
credibility. See [109] at 12–13 (discussing Langendorf’s inconsistent testimony
about her prior arrest; evasive testimony about underage drinking; incorrect
testimony about defendant Frankel’s statements on The Real Housewives of New
York; and uncertain testimony about when she purchased Skinnygirl Margarita).
But “[f]or an assault on the class representative’s credibility to succeed, the party
mounting the assault must demonstrate that there exists admissible evidence so
severely undermining plaintiff’s credibility that a fact finder might reasonably focus
on plaintiff’s credibility, to the detriment of the absent class members’ claims.” CE
Design, 637 F.3d at 728. I am not persuaded that defendants have raised issues that
will undermine Langendorf’s credibility to that degree, and defendants have not
shown that this evidence will be admissible at trial. See id. (defendants cannot
“derail legitimate class actions by conjuring up trivial credibility problems or
insubstantial defenses unique to the class representative”).
Defendants raise an additional concern: an apparent personal relationship
between Langendorf and lead counsel for plaintiff in this case. Specifically,
Langendorf’s father recommended counsel to Langendorf. [106] at 14. The father, an

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attorney, has a professional relationship with counsel: they have acted as co-counsel
in at least five putative class action lawsuits (including some filed after this case).
[106] at 14. Indeed, the father’s name and contact information appeared in the
signature block of written discovery responses in this case (and no one has
explained why). [106] at 4 n.5. Further, counsel has brought other class action suits
in which the named plaintiffs were members of Langendorf’s family. [106] at 14.
Defendants argue that the personal relationship between Langendorf and counsel
presents a conflict of interest, making the representation inadequate.
In her reply brief, Langendorf (through counsel) brushes this concern off,
stating that “Defendants’ ad hominem attack on counsel for being co-counsel with
Plaintiff’s father in other cases, and successfully representing Plaintiff’s
grandfather, are baseless arguments without support in fact or law . . . .” [129] at
12. But Langendorf does not dispute the facts, and the law does support defendants’
position. See Eubank v. Pella Corp., 753 F.3d 718, 722, 723–24 (7th Cir. 2014); see
also Susman v. Lincoln Am. Corp., 561 F.2d 86, 89–91 (7th Cir. 1977) (affirming two
denials of class certification due to close relationships between class counsel and
named plaintiffs); Mowry v. JP Morgan Chase Bank, N.A., 2007 U.S. Dist. LEXIS
44222, *8–13 (N.D. Ill. 2007) (neither the brother, nor the former roommate, of class
counsel could adequately serve as a class representative).
In Eubank, the Seventh Circuit reversed the approval of a class-action
settlement on multiple grounds, including the conflict of interest between the
named plaintiff and class counsel. “Class representatives are, as we noted earlier,

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fiduciaries of the class members, and fiduciaries are not allowed to have conflicts of
interest without the informed consent of their beneficiaries, which was not sought
in this case. Only a tiny number of class members would have known about the
family relationship between the lead class representative and the lead class
counsel—a relationship that created a grave conflict of interest; for the larger the
fee award to class counsel, the better off Saltzman’s daughter and son-in-law would
be financially—and (which sharpened the conflict of interest) by a lot.” Id. at 723–
24.
While Langendorf is not related to counsel, defendants have provided
evidence indicating that the relationship is not purely arms-length, and this causes
genuine concern about conflicts of interest. Yet plaintiff’s reply brief largely ignores
the issue, despite the fact that she bears the burden of proving by a preponderance
of the evidence that the putative class members would be adequately represented.
Plaintiff has failed to carry that burden; therefore, I find the adequacy of
representation requirement has not been satisfied.
F. Predominance and Superiority
Although similar to commonality, “the predominance criterion is far more
demanding.” Messner, 669 F.3d at 814. To satisfy it, the plaintiff must show that
questions of law or fact common to class members predominate over any questions
affecting only individual members. Fed. R. Civ. P. 23(b)(3). I must compare the role
of common issues of law and fact with the role of individual issues, and consider
whether it would be necessary to examine individual transactions to decide whether
there is liability on individual claims. See Messner, 669 F.3d at 815; see also Lady
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Di’s, Inc. v. Enhanced Servs. Billing, Inc., 654 F.3d 728, 738 (7th Cir. 2011).
Predominance requires that the “legal or factual questions that qualify each class
member’s case as a genuine controversy” are “sufficiently cohesive to warrant
adjudication by representation.” Messner, 669 F.3d at 814. “Predominance is a
qualitative rather than a quantitative concept. It is not determined simply by
counting noses: that is, determining whether there are more common issues or more
individual issues, regardless of relative importance.” Parko, 739 F.3d at 1085.
Predominance is not satisfied if “resolving a common issue will not greatly simplify
the litigation to judgment or settlement . . . .” Id. “If the class certification only
serves to give rise to hundreds or thousands of individual proceedings . . . it is hard
to see how common issues predominate or how a class action would be the superior
means to adjudicate the claims.” Andrews v. Chevy Chase Bank, 545 F.3d 570, 577
(7th Cir. 2008).
The predominance inquiry “begins, of course, with the elements of the
underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 131 S.Ct.
2179, 2184 (2011) (internal quotation marks omitted). The individual issue that
defendants focus on is the particular reason why each class member purchased
Skinnygirl Margarita.2 An element of each claim in the complaint is that the
plaintiff was harmed by the allegedly misleading “all natural” text. For example, to
Defendants also argue that the specific price paid by each putative class member is an
individual issue that should preclude class certification. [111] at 8, 11. I disagree. See
Butler, 727 F.3d at 801 (“If the issues of liability are genuinely common issues, and the
damages of individual class members can be readily determined in individual hearings, in
settlement negotiations, or by creation of subclasses, the fact that damages are not identical
across all class members should not preclude class certification.”).
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prove liability on the Illinois Consumer Fraud and Deceptive Business Practices Act
claim, class members must show proximate causation. Avery v. State Farm Mut.
Auto. Ins. Co., 216 Ill.2d 100, 179–80, 200 (2005); Oliveira v. Amoco Oil Co., 201
Ill.2d 134, 149 (2002); Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir.
2012). Langendorf’s argument to the contrary ([129] at 15–16) is wrong; it relies on
the text of 815 ILL. COMP. STAT. § 505/2, but ignores § 505/10a, which applies to
private actions, as opposed to actions brought by the Attorney General. Oshana, 472
F.3d at 514–15 (citing Oliveira, 201 Ill.2d at 155). Langendorf’s other causes of
action similarly require a showing of harm.3
Contrary to the authority just cited, Langendorf states that “there are no
individual issues among Class members relevant to the determination of the
Defendants’ liability.” [104] at 12–13. Langendorf argues that it is irrelevant why
each class member purchased the product, because “the simple fact is that Plaintiff
and the Class did not get what they paid for, i.e. ‘All Natural’ or ‘Blue Agave’.” [129]
at 5–6. But “what they paid for” is precisely the question, and it is an individual
one. That common issues predominate over individual ones is a requirement for
class certification, and Langendorf has the burden of demonstrating it by a
preponderance of the evidence—attorney assertions do not suffice.

Cleary v. Philip Morris, Inc., 656 F.3d 511, 518–19 (7th Cir. 2011) (unjust enrichment);
Zwicky v. Freightliner Custom Chassis Corp., 373 Ill.App.3d 135, 144 (2d Dist. 2007)
(breach of express warranty; breach of implied warranty); Wigod, 673 F.3d at 560 (breach of
contract) (citing MC Baldwin Fin. Co. v. DiMaggio, Rosario & Veraja, LLC, 364 Ill.App.3d 6
(1st Dist. 2006)); Wigod, 673 F.3d at 566 (promissory estoppel) (quoting Newton Tractor
Sales, Inc. v. Kubota Tractor Corp., 233 Ill.2d 46 (2009)).
3

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Next, Langendorf argues that “the fact that a defendant may be able to defeat
the showing of causation as to a few individual class members does not transform
the common question into a multitude of individual ones; plaintiffs satisfy their
burden of showing causation as to each by showing materiality as to all.” [129] at
14. But even if that were a correct statement of the law (for these claims, in this
Circuit), Langendorf has produced no evidence to show that causation will be
defeated only as to “a few” class members; in other words, she has not demonstrated
the materiality of the “all natural” text. As defendants point out ([111] at 9), such a
showing could have been attempted through survey evidence. Langendorf submitted
no evidence, survey or otherwise, to show what portion of purchasers likely relied on
the “all natural” text, or the degree to which the label “all natural” had a tendency
to influence the decision to purchase the product. She has therefore failed to carry
her burden to show that common issues predominate. See Am. Honda Motor Co.,
Inc. v. Allen, 600 F.3d 813, 818–19 (7th Cir. 2010) (where plaintiffs’ proffered expert
testimony was excluded, they were “left with too little to satisfy Rule 23(b)(3)’s
predominance prong”).
To be sure, individual issues will almost always be present in consumer fraud
actions, and the Seventh Circuit recently stated that it is an error of law to apply a
rigid rule that “individual issues necessarily predominate in cases requiring
individual subjective inquiries into causality.” Suchanek, 764 F.3d at 759; see also
Pella Corp. v. Saltzman, 606 F.3d 391, 393 (7th Cir. 2010) (“While consumer fraud
class actions present problems that courts must carefully consider before granting

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certification, there is not and should not be a rule that they never can be certified.”).
I do not apply a rule that individual issues necessarily predominate in this case, but
I do find that Langendorf, who has the burden of proof, has not shown otherwise.
The court’s decision in Suchanek is illustrative.
The Suchanek defendants marketed and sold single-cup coffee pods for use
with the popular Keurig-brand coffee machines. But unlike Keurig-brand pods, the
defendants’ product contained almost exclusively instant coffee. 764 F.3d at 753.
Recognizing that their target consumers disfavor instant coffee, the defendants
intentionally concealed the nature of their product. Id. Further, they charged threeto-four times as much for their product as typical instant coffee, so “only a very
price insensitive consumer, or one who was misled,” would buy it. Id. at 754.
Therefore, unlike Langendorf, the Suchanek plaintiff produced evidence tending to
show the materiality of the misleading marketing. Because few (if any) informed
purchasers would have bought the product, the court stated that “if the class
prevails on the common issue, it would be a straightforward matter for each
purchaser to present her evidence on reliance and causation. Indeed, if the class
prevails, the case would probably be quickly settled.” Id. at 760 (internal marks
omitted).
The record before the Suchanek court was quite different than the record
here: “From the record amassed for the class certification decision, it is apparent
that this is not a case where few, if any, of the putative class members share the
named representative’s grievance against the defendant. If it were, things would be

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different.” Id. at 758. Langendorf has not amassed any such record: she offers no
evidence concerning the portion of the proposed class that did not know about the
presence of a small quantity of sodium benzoate and would not have purchased the
product (or paid as much as they did) had they known. While the Suchanek plaintiff
may have carried her burden of showing that common issues predominate,
Langendorf has not.4
In short, I agree with the analysis conducted by Judge Feinerman, who
denied class certification in a similar case:
To prevail on an ICFA, intentional representation, or unjust
enrichment claim[], each class member would have to prove that
they were deceived by Chattem’s labeling of Dexatrim and that they
suffered damages as a result. . . .
These matters cannot be proved on a classwide basis. The proposed
class includes individuals who: (1) were unaware of the presence of
hexavalent chromium in Dexatrim and who would not have
purchased the product had they been so aware; (2) were unaware of
the presence of hexavalent chromium but may have still purchased
the product had they been so aware; and (3) were aware of the
presence of hexavalent chromium and purchased the product
anyway. These differences among the proposed class require that
the key liability issues—whether a given class member was
deceived by Chattem’s labeling of Dexatrim and whether she
Langendorf submitted, as supplemental authority, two cases in which the district court
granted class certification. [138]. In each case, the plaintiff’s theory was that the
defendant’s homeopathic product was completely bogus and worthless, such that no
informed consumer would purchase it for any reason. Under such a theory, the courts found
that individual issues of reliance did not preclude certification. Forcellati v. Hyland’s, Inc.,
2014 U.S. Dist. LEXIS 50600, *29–30 (C.D. Cal. 2014) (under plaintiff’s theory, all
purchasers were harmed, even those that were satisfied, because satisfaction resulted from
a placebo effect); Allen v. Hyland’s Inc., 2014 U.S. Dist. LEXIS 107187, *37–38 (C.D. Cal.
2014) (same). Langendorf’s theory is not that the Skinnygirl product is worthless, and
Langendorf has offered no evidence to suggest that harm could be presumed by the “all
natural” label. Given the nature of the product (a pre-mixed alcoholic beverage), it would
not be reasonable to infer that a false “all natural” label rendered the drink worthless to its
consumers.
4

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suffered damages as a result—can be resolved only on an individual
basis. Certification under Rule 23(b)(3) is not appropriate for
resolving such highly individualized questions of fact.
Lipton v. Chattem, 2013 U.S. Dist. LEXIS 17216, *15–17 (N.D. Ill. 2013) (internal
marks and citations omitted) (citing Thorogood v. Sears, Roebuck and Co., 547 F.3d
742, 746–48 (7th Cir. 2008); Oshana, 472 F.3d at 514; In re Sears, Roebuck & Co.,
2007 U.S. Dist. LEXIS 89349 (N.D. Ill. 2007) (denying class certification of ICFA
and unjust enrichment claims where the class included “people who (1) bought
Craftsman tools but never saw any Craftsman advertising; (2) bought Craftsman
tools but never saw advertising representing that the tools were made in the United
States; and (3) bought Craftsman tools with the knowledge that those tools were not
made in the United States”)).
I also agree with the analysis in Weiner v. Snapple Bev. Corp., 2010 U.S. Dist.
LEXIS 79647 (S.D.N.Y. 2010), in which the defendant was alleged to have violated
New York’s deceptive trade practices act by labeling its beverages “All Natural”
despite the presence of high fructose corn syrup. The court denied certification:
[P]laintiffs have not proposed a suitable methodology for
establishing the critical elements of causation and injury on a classwide basis. Without a reliable methodology, plaintiffs have not
shown that they could prove at trial using common evidence that
putative class members in fact paid a premium for Snapple
beverages as a result of the “All Natural” labeling. And since the
issue of damages is bound up with the issue of injury in this case,
plaintiffs have likewise failed to show how damages could be proven
class-wide. Because individualized inquiries as to causation, injury,
and damages for each of the millions of putative class members
would predominate over any issues of law or fact common to the
class, plaintiffs’ [deceptive trade practices] claim cannot be certified
under Rule 23(b)(3).

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Id. at *18; see also id. at *34–35 (denying certification on unjust enrichment claim);
id. at *36–37 (denying certification on breach of express warranty claim).
Because Langendorf has not shown that common issues predominate, she has
not shown that a class action is superior to other adjudication methods. See Pastor
v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1047 (7th Cir. 2007) (“[W]hen a
separate evidentiary hearing is required for each class member’s claim, the
aggregate expense may, if each claim is very small, swamp the benefits of classaction treatment.”).
III.

Motion to Exclude Expert Report
In a separate motion, Langendorf asked me to exclude the expert report and

testimony of defendants’ expert, Dr. Michael Rappeport. [101]. I have decided
Langendorf’s motion for class certification without relying on Dr. Rappeport’s report
or testimony; therefore, a full Daubert analysis is not necessary at this time.
Messner, 669 F.3d at 814. The motion to exclude Rappeport’s report and testimony
is denied as moot.
IV.

Materials Filed Under Seal
The parties filed certain materials in connection with the class certification

motion under seal. The filing party must now file a publicly accessible version,
redacting only information that fits the narrow categories of information deserving
of under-seal status. Baxter Int’l v. Abbott Labs., 297 F.3d 544, 546–47 (7th Cir.
2002); Union Oil Co. v. Leavell, 220 F.3d 562, 567–68 (7th Cir. 2000).

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V.

Conclusion
For the reasons discussed above, Langendorf’s motion for class certification

[94] is denied. Langendorf’s motion to exclude the report and testimony of Dr.
Rappeport [101] is denied as moot.

ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: 10/30/14

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