Suchanek et al v. Sturm Foods, Inc. et al
Filing
416
ORDER DENYING 410 Motion to Relabel, Decertify, and Dismiss Modified Package Subclasses. Signed by Chief Judge Nancy J. Rosenstengel on 5/3/2019. (jmp2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LINDA SUCHANEK,
RICHARD MCMANUS, CAROL
CARR, PAULA GLADSTONE,
EDNA AVAKIAN,
CHARLES CARDILLO, BEN CAPPS,
DEBORAH DIBENEDETTO, and
CAROL RITCHIE,
Plaintiffs,
vs.
STURM FOODS, INC. AND
TREEHOUSE FOODS, INC.,
Defendants.
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Case No. 11-CV-565-NJR-RJD
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is the Motion to Relabel, Decertify and Dismiss Modified
Package Subclass (Doc. 410). For the following reasons, the motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2015, the Court certified a class as to, “All persons or consumers
that during the Class Period, from September of 2010, up through the date the case is
certified and notice is disseminated, who purchased Defendants’ Grove Square Coffee
(“GSC”) products in Alabama, California, Illinois, New Jersey, New York, North
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Carolina, South Carolina, and Tennessee. . .” (Doc. 247). 1 Plaintiffs assert two theories of
liability: (1) by affirmative statements, the GSC packaging misleads purchasers into
believing GSC is all ground coffee; and (2) by omission, the GSC packaging misleads
purchasers as to the ratio of instant and microground coffee in GSC.
In 2011, Defendants released a different version of the packaging at issue
(Doc. 192, p. 33). The first version stated the product was “Soluble & Microground” (the
“Original Packaging”), while the second version stated the product was “Instant &
Microground” (the “Modified Packaging”).
In January 2015, Defendants moved to decertify the class, arguing, in part, the class
definition is overly broad, and certification should have been denied, because the class is
not limited to consumers who purchased the Original Packaging (Doc. 192, p. 33). At that
time, and to date, Plaintiffs have not identified any class member who purchased the
Modified Packaging. The Court denied the motion in this aspect, stating,
[T]hroughout these proceedings, the Court was given the impression that
the original package and modified package were nearly identical. The only
difference was that the original package stated in small font that it
contained “soluble and microground coffee” while the modified package
said “instant and microground coffee.” As best the Court can tell, the
modified package still contained all the other misleading descriptions,
images, and statements and still omitted what percentage of GSC was
instant coffee. And regardless of the package, the problem – that GSC’s
package misrepresented and concealed the true nature of the product –
remain the same. The Court does not believe that the single variation
between the original and modified packages is so significant that it makes
the packages sufficiently and meaningfully distinct and requires an
independent review of each. As the litigation unfolds, if there are large and
1 The
Class Period was modified in July 2018 to cover the period from September 1, 2010 through September
30, 2014, when GSC was discontinued (Doc. 334).
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unmanageable differences in proving the deceptive nature of the original
and modified packages, the Court may decide to exclude the modifiedpackage-purchasers from the class or create a subclass. But, at this point,
the Court does not see the different packages as an obstacle to certification
of a single class
(Doc. 247, pp. 44-45).
On July 3, 2018, the Court issued an Order laying out the trial plan, dividing the
class into 18 subclasses, to account for the two versions of packaging and the nine
different laws governing Plaintiffs’ claims proceeding to jury trial (Doc. 334).
On April 18, 2019, Defendants filed a Motion to Relabel, Decertify and Dismiss
Modified Package Subclass (Doc. 410). 2 Defendants argue Plaintiffs have not identified
any class member who purchased the Modified Packaging and, thus, do not have
standing to bring those claims. Also, Defendants argue the Named Plaintiffs’ claims are
not typical of absent class members who purchased the Modified Packaging. Plaintiffs
object, and contend that the Modified Packaging was similarly misleading to the Original
Packaging, so they have standing to assert claims of absent class members (Doc. 411).
DISCUSSION
“To have standing to sue as a class representative it is essential that a plaintiff must
be a part of that class, that is, he must possess the same interest and suffer the same injury
shared by all members of the class he represents.” Schlesinger v. Reservist Committee to Stop
the War, 418 U.S. 208, 216 (1974). In addition to standing, the plaintiff in a class action
Defendants argue the Court incorrectly divided the class into “Groups” to account for the different
packaging, before creating the 18 subclasses. Defendants insist the Court should have used the word
“subclass,” instead. Defendants may refer to the Groups however they want. The result is the same. There
are currently 18 subclasses involved in this litigation. See Body v. Meriter Health Services Employee Retirement
Plan, 10-cv-426-wmc, 2012 WL 12995302, at *2 n.2 (W.D. Wis. Feb. 17, 2012) (referring to subclasses under
an umbrella “Group”).
2
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must demonstrate the class meets the prerequisites described in Federal Rule of Civil
Procedure
23,
including
numerosity,
commonality,
typicality,
and
adequate
representation. “[A] plaintiff’s 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 his or her
claims are based on the same legal theory.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th
Cir. 1992). The standing and typicality requirements are closely aligned. See Di Rosa v.
Dodd, 514 F. Supp. 258, 263 (E.D.N.Y. 1981) (“[S]ince Di Rosa lacks standing, he cannot
represent that class because FED. R. CIV. P. 23(a) requires that the claims of the class
representative must be typical of the class as a whole.”). The majority of courts hold “that
a plaintiff may have standing to assert claims for unnamed class members based on
products he or she did not purchase so long as the products and alleged
misrepresentations are substantially similar.” Brown v. Hain Celestial Grp., Inc., 913 F.
Supp. 2d 881, 890 (N.D. Cal. 2012);
Defendants rely on Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861 (N.D. Cal.
2012), to argue Plaintiffs do not have standing to represent absent class members who
purchased the Modified Packaging. In Miller, the plaintiff attempted to bring a class
action alleging the defendant deceptively led customers to believe that five of its products
were, or contained, white chocolate and/or cocoa butter. Id. at 867. Miller only purchased
one of the products. Id. The five products had some similarities in packaging,
composition, and labeling, including that they were branded “Ghirardelli Chocolate,”
they did not contain chocolate or white chocolate, and they were sold next to products
that contained chocolate or white chocolate. Id. at 870. The defendant moved to dismiss
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the case for lack of standing as to the four products Miller did not buy. Id. The court held,
“[T]hese similarities and Miller’s other allegations about the labeling of the products do
not establish the kind of similarity that courts find persuasive in conferring standing over
similar (but unpurchased) products.” Id. The court noted the products varied from baking
chips, drink powders, and wafers; looked different; and were labeled differently. Id.
But this case is more like Ulrich v. Probalance, Inc., No. 16 C 10488, 2017 WL 3581183
(N.D. Ill. Aug. 18, 2017). In Ulrich, the plaintiff sought to certify a class, claiming the
defendant misled consumers about the protein content of four of its products. Id. at *1.
The defendant argued the plaintiff lacked standing to raise his claims to the extent he did
not purchase all of the products. Id. at *5. The court found the plaintiff had standing,
reasoning,
In this case, all of the Products are protein supplements sold by [the
defendant], and all of them have labels that are misleading, plaintiff alleges,
because they make protein content claims based at least partially on
amounts of low-quality collagen protein isolate that is effectively
indistinguishable. The alleged misrepresentations are the same, they all
relate to the Products’ quantity of protein . . . and the protein claims are
inaccurate in the same manner on every Product.”
Id. at *6.
This case is also similar to Zemola v. Carrington Tea Company, LLC, 17cv760-MMA
(KSC), 2017 WL 4922974 (S.D. Cal. Oct. 30, 2017). In Zemola, the plaintiffs brought a
putative class action alleging that defendants labeled a variety of coconut oil products to
deceptively represent the products were healthy. Id. at *1. The defendant moved to
dismiss the plaintiffs’ claims related to products they did not purchase, for lack of
standing. Id. at *4. The court found the plaintiffs had standing because “the composition
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of the products and the alleged misrepresentations are sufficiently similar. The products’
primary ingredient is coconut oil. The nutrition facts are nearly identical. And the alleged
misrepresentations on each product include some variation on the ‘healthy’ theme.” Id.
Here, the Original and Modified Packaging contained the same product, had
virtually identical packaging, and allegedly contained the same misrepresentation
and/or omission regarding the amount of instant coffee in GSC. The Court has already
held that Plaintiffs have standing to represent absent class members who purchased the
Modified Packaging, and that the class meets the typicality requirement under Rule 23.
The Court’s July 2018 Order was not intended to imply otherwise.
Instead, the Court’s creation of various subclasses in its July 2018 Order (Doc. 334)
was merely for trial management purposes, pursuant to the Court’s broad authority
under Rule 23(d) to issue orders that “determine the course of proceedings or prescribe
measures to prevent undue repetition or complication in presenting evidence or
argument . . . [or] deal with similar procedural matters.” Rule 23(d) authorizes the Court
to create subclasses for management purposes when there is no fundamental conflict
underlying the class claims, 3 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 7:32
(5th ed.), and the subclasses are created to “expedite resolution of the case by segregating
[certain factual and legal questions] which [are] common to some members of the larger
class,” Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., 311 F.R.D. 590, 609-10 (C.D. Cal.
Nov. 16, 2015) (alterations in original). When a subclass is “appropriate under Rule 23(d),
it is unnecessary to evaluate it under Rule 23(c)(4) for commonality, numerosity,
typicality, and adequacy of representation.” American Timber & Trading Co. v. First Nat.
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Bank of Oregon, 690 F.2d 781, 787 n.5 (9th Cir. 1982). Accordingly, the class does not need
a new named subclass representative. Susan Bisom-Rapp, The Use of Subclasses in Class
Action Suits Under Title VII, 9 INDUS. REL. L.J. 116, 136 (1987).
CONCLUSION
For these reasons, Defendants’ Motion to Relabel, Decertify and Dismiss Modified
Package Subclass (Doc. 410) is DENIED.
IT IS SO ORDERED.
DATED: May 3, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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