Dennis Lynch v. TROPICANA PRODUCTS, INC.

Filing 311

OPINION. Signed by Judge William J. Martini on 1/22/18. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

IN RE: TROPICANA ORANGE JUICE
MARKETING AND SALES PRACTICES
LITIGATION

Civ. No. 2:11-07382

MDL 2353
OPINION

This Document Relates To:
ALL CASES

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiffs bring this class action against Defendant Tropicana Products, Inc.
(“Defendant”), alleging numerous violations of common law and state consumer protection
laws, in connection with Defendant’s sale of orange juice. This matter comes before the
Court on Plaintiffs’ motion for class certification pursuant to Federal Rule of Civil
Procedure 23. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set
forth below, Plaintiffs’ motion for class certification is DENIED.
I.

BACKGROUND

The Court assumes familiarity with the claims, facts and procedural history of the
instant case and writes solely for the parties’ benefit.1 On June 22, 2017, Plaintiffs filed a
motion to certify the class, appoint class representatives and appoint class counsel. See
ECF No. 270. In their supporting memorandum of law, Plaintiffs argue that their claims
“are the poster child for aggregate trial under Rule 23” because the conduct that they will
prove is common to every potential class member. See Pls.’ Mem. of Law in Supp. of Mot.
(“Pls.’ Mem.”) 1, ECF No. 271. At its core, Plaintiffs’ argument centers on the alleged
mislabeling and misbranding of Defendant’s orange juice product, Tropicana Pure
Premium (“TPP”). Plaintiffs intend to prove the following: (1) Defendant adds ingredients,
namely natural flavoring, to TPP in violation of the Food and Drug Administration’s
(“FDA”) standard of identity for pasteurized orange juice; (2) Defendant’s TPP labeling

For a more complete recitation of recent procedural history, see the Court’s opinion filed on December 19, 2016.
ECF No. 205.
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fails to disclose all ingredients, as required by law; (3) Defendant’s marketing of TPP as
“pure, natural and fresh from the grove” is “demonstrably false” given the added flavoring
and is, therefore, uniformly misleading; and (4) Defendant’s conduct entitles Plaintiffs and
all other class members to damages. See id. at 2–3.
Plaintiffs define their proposed class (the “Class”) as “[p]urchasers from California,
New York, New Jersey, and Wisconsin of [TPP] from either Members Only clubs or
Loyalty Card Stores from January 1, 2008 to June 22, 2017.” Plaintiffs also “seek to certify
four individual subclasses for California, New York, New Jersey and Wisconsin.” Id. at
3. Plaintiffs submit that their theory of liability compels class treatment because “either
TPP conforms to the standard of identity or it does not, either flavors are added or they are
not.” Id. at 2.
Defendant naturally opposes certification. Defendant advances four main points.
First, Defendant argues that individual inquiries as to materiality, causation and loss are
required to establish that a TPP consumer is in fact a member of the Class. See Def.’s
Mem. of Law in Opp’n to Pls.’ Mot. (“Def.’s Opp’n”) 2, ECF No. 281. Second, the named
Plaintiffs are neither typical nor adequate representatives of the Class because none of these
individuals referenced the supposed regulatory infraction, which is now the primary theory
of liability that they advance. Id. at 2–3. Third, Plaintiffs fail to meet Rule 23(b)(3)
because the Class members are not ascertainable and Plaintiffs’ damages model does not
align with their new theory of liability. Id. at 3. Fourth, Plaintiffs’ claim for injunctive
relief under Rule 23(b)(2) fails because they lack standing to pursue such relief and because
the primary relief sought is individualized monetary damages. Id. at 3–4. Plaintiffs also
filed a reply (ECF No. 285), both parties filed sur-replies (ECF Nos. 292 & 295), and
Plaintiffs filed a notice of supplemental authority (ECF No. 297).
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 23(a) provides for class certification if: (1) the class
is so numerous that joinder of all members is impracticable; (2) there are questions of law
or fact common to the class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). Courts commonly
refer to these requirements as numerosity, commonality, typicality, and adequacy. See In
re Constar Int’l Inc. Sec. Litig., 585 F.3d 774, 780 (3d Cir. 2009).
In addition to fulfilling Rule 23(a), a plaintiff must also meet one of the requirements
set forth in Rule 23(b). Id. The requirements at issue here emanate from Rule 23(b)(2)
and (b)(3). Rule 23(b)(2) permits certification where “the party opposing the class has
acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class[.]” Fed. R.
Civ. P. 23(b)(2). The rule “applies only when a single injunction or declaratory judgment
would provide relief to each member of the class.” See Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 360 (2011). Rule 23(b)(3) permits certification only if “questions of law or
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fact common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “The twin requirements
of Rule 23(b)(3) are known as predominance and superiority.” In re Hydrogen Peroxide
Antitrust Litig., 552 F.3d 305, 310 (3d Cir. 2008).
“Class certification is proper only if the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23 are met.” Id. at 309 (footnote and quotation
marks omitted). Each Rule 23 requirement must be established by a preponderance of the
evidence. See In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015).
While the class certification analysis may “entail some overlap with the merits of the
plaintiff’s underlying claim,” Wal-Mart Stores, 564 U.S. at 351, courts consider merits
questions only to the extent that they are relevant to determining whether Rule 23
prerequisites have been met. See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S.
455, 466 (2013) (internal citations omitted).
III.

DISCUSSION

The Court will first address the Rule 23(a) requirements before turning to Rule
23(b)(2) and (3). Ultimately, the Court finds that Plaintiffs meet Rule 23(a) but fall short
of their obligations under Rule 23(b). The Court, therefore, denies class certification.
A. Plaintiffs’ Claims Satisfy Rule 23(a)
The Court finds that Plaintiffs’ claims meet the four requirements under Rule 23(a).
As an initial matter, the Court notes that Defendant does not address Plaintiffs’ arguments
concerning numerosity and commonality. Nonetheless, the rule requires the satisfaction
of each requirement and the Court will consider each in turn.
i. Numerosity
Numerosity is satisfied when joinder of all putative class members is impracticable.
Fed. R. Civ. P. 23(a)(1). Plaintiffs’ class definition incorporates any person who purchased
TPP within the four named states for a period of approximately nine years. See Pls.’ Mem.
at 3. Clearly, the number of potential class members could reach into the hundreds of
thousands, if not millions, rendering joinder impracticable. Plaintiffs’ claims satisfy
numerosity.
ii. Commonality
“Commonality is a consideration of whether there are ‘questions of law common to
the class[.]’ Commonality is satisfied when there are classwide answers.” Reyes v.
Netdeposit, LLC, 802 F.3d 469, 482 (3d Cir. 2015) (quoting Fed. R. Civ. P. 23(a)(2))
(citation omitted). Plaintiffs identify four questions common to the Class: “(1) whether
TPP conforms with the standard of identity for pasteurized orange juice; (2) whether TPP
contains undisclosed flavors; (3) whether TPP’s label is misleading; and (4) whether the
conduct of Defendant is such that Plaintiffs and other members of the Classes are entitled
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to damages.” Pls.’ Mem. at 26. Plaintiffs argue that the claims of each class member will
universally turn on the answers to these questions because Defendant’s conduct was the
same to every member and, therefore, “the lawfulness of [Defendant’s] conduct is not
unique to any members of the Classes.” Id. at 27. The Court agrees. Plaintiffs’ claims
satisfy commonality. See Reyes, 802 F. 3d at 486 (“A court’s focus must be on whether
the defendant’s conduct [is] common as to all of the class members[.]”) (quotation and
citation omitted).
iii. Typicality
“The concepts of commonality and typicality are broadly defined and tend to
merge.” Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). “The typicality
inquiry centers on whether the interest of the named plaintiffs align with the interests of
the absent members.” Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001) (citation
omitted). “‘[C]ases challenging the same unlawful conduct which affects both the named
plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the
varying fact patterns underlying the individual claims.’” Id. (quoting Baby Neal, 43 F.3d
at 58. “Factual differences will not render a claim atypical if the claim arises from the
same event or practice or course of conduct that gives rise to the claims of the [absent]
class members, and if it is based on the same legal theory.” Id. at 227–28 (quotation and
citation omitted).
Plaintiffs argue that the named Plaintiffs’ claims “are identical to those of the
Classes in all respects except for the amount of damages” because they “arise from the
same events, the same course of Defendant’s conduct, and are based on the same legal
theories[.]” See Pls.’ Mem. at 27–28. Defendants disagree, arguing that the named
Plaintiffs’ claims are atypical because none of the named Plaintiffs “testified that their
decision to purchase TPP turned on the standard of identity or labeling regulations.” See
Def.’s Opp’n at 29. Individual purchasing decisions, however, do not make Plaintiffs’
claims atypical. Each of the named Plaintiffs’ claims arise from their individual purchases
of TPP and the injuries alleged universally arise from Defendant’s conduct—i.e., the
purported mislabeling of TPP. That Plaintiffs have shifted their theory of liability does not
change the fact that the named Plaintiffs’ claims and all potential claims by putative class
members will hinge on that same theory of liability. Plaintiffs’ claims, therefore, satisfy
typicality. See Baby Neal, 43 F.3d at 57–58.
iv. Adequacy
Adequacy “encompasses two distinct inquiries designed to protect the interests of
absentee class members.” See In re Prudential Ins. Co. Am. Sales Practice Litig. Agent
Actions, 148 F.3d 283, 312 (3d Cir. 1998). “First, [it] tests the qualifications of the counsel
to represent the class.” Id. (quotation omitted). “Second, it ‘serves to uncover the conflicts
of interest between named parties and the class they seek to represent.’” Id. (quoting
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997)).
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Plaintiffs submit that their claims satisfy adequacy because Plaintiffs retained
competent counsel and the named Plaintiffs’ interests directly align with those of all
putative class members. See Pls.’ Mem. at 29. Defendants counter that Plaintiffs failed to
satisfy adequacy because their revised Class definition jettisoned most of the original class
they sought to represent. See Def.’s Opp’n at 30. Defendant does not contest the
competence of Plaintiffs’ counsel and the Court finds that counsel is qualified.
It is true that Plaintiffs’ new Class definition includes only those individuals who
purchased TPP in “Members Only” clubs or “Loyalty Card” stores, but this does not defeat
adequacy. Plaintiffs are entitled to define the Class as broadly or as narrowly as their
evidence supports. See In re Neurontin Antitrust Litig., No. 02-cv-1830, 2011 WL 286118,
at *1 n.4 (D.N.J. Jan. 25, 2011) (“Because Plaintiffs are entitled to define the class period
as broadly as their evidence supports, for purposes of this Motion, the Court will consider
Plaintiffs’ amended class definition.” (internal quotation and citation omitted)). In their
reply, Plaintiffs explained that they narrowed their Class definition to meet the existing
Third Circuit precedent requiring a showing of “ascertainability.” See Pls.’ Reply at 20.
Absent such a revision, Plaintiffs would likely fail to meet the ascertainability requirement
and the Class would not be certifiable. Indeed, the Court would likely find counsel’s
representation inadequate in such a scenario. As it stands, the Court agrees with Plaintiffs
that the named Plaintiffs’ interests are directly in line with those of the proposed Class for
the same reason that their claims are typical: their claims are identical and, therefore, their
interests are identical. Plaintiffs’ claims satisfy adequacy.
B. Plaintiffs’ Claims Fail to Satisfy Rule 23(b)(3) & (b)(2)
Plaintiffs’ primarily seek relief in the form of monetary damages under Rule
23(b)(3). In the alternative, Plaintiffs seek injunctive relief under Rule 23(b)(2). The
Court, therefore, will first address Plaintiffs’ Rule 23(b)(3) arguments before turning to
Rule 23(b)(2).
i. Plaintiffs’ unjust enrichment, express warranty and NJCFA claims
require individualized proof and, therefore, individual issues
predominate.
Rule 23(b)(3) requires that Plaintiffs satisfy both predominance and superiority.
Predominance “is even more demanding than Rule 23(a).” See Comcast Corp. v. Behrend,
569 U.S. 27, 34 (2013). “The ‘predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.’” Tyson Foods, Inc. v.
Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting Amchem, 521 U.S. at 623). “This calls
upon courts to give careful scrutiny to the relation between common and individual
questions in a case.” Id. “An individual question is one where members of a proposed
class will need to present evidence that varies from member to member, while a common
question is one where the same evidence will suffice for each member to make a prima
facie showing [or] the issue is susceptible to generalized, class-wide proof.” Id. (quotation
omitted). Predominance is satisfied where “the common, aggregation-enabling, issues in
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the case are more prevalent or important than the non-common, aggregation-defeating,
individual issues.” See id. (quotation omitted).
As a threshold matter, Plaintiffs’ common law and New Jersey consumer fraud
claims are plainly unsuitable for class certification because each of these claims requires
individualized proof. The Court addresses each, beginning with unjust enrichment.
1. Unjust Enrichment
In New Jersey, unjust enrichment is a quasi-contract claim, which requires a
plaintiff to show “both that the defendant received a benefit and that retention of that
benefit without payment would be unjust.” See VRG Corp. v. GKN Realty Corp., 641 A.2d
519, 554 (N.J. 1994). It further requires that “plaintiff show that it expected remuneration
from the defendant at the time it performed or conferred a benefit on defendant and that
the failure of remuneration enriched defendant beyond its contractual rights.” See id.
California, New York and Wisconsin similarly define unjust enrichment. See Astiana v.
Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (“[Unjust enrichment]
describe[s] the theory underlying a claim that a defendant has been unjustly conferred a
benefit through mistake, fraud, coercion, or request. The return of that benefit is the
remedy typically sought in a quasi-contract cause of action.” (quotations omitted));
Corsello v. Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012) (“The basis of a claim
for unjust enrichment is that the defendant has obtained a benefit which in equity and good
conscience should be paid to the plaintiff.” (quotation omitted)); Watts v. Watts, 405
N.W.2d 303, 313 (Wisc. 1987) (“[A]n action for recovery based upon unjust enrichment is
grounded on the moral principle that one who received a benefit has a duty to make
restitution where retaining such a benefit would be unjust.”).
“Plaintiffs’ theory of liability on unjust enrichment is that all consumers have either
not received what they paid for or have overpaid for what they received – a misbranded
food – and that Defendant, aware of the governing standard, added flavors that are not
permitted.” Pls.’ Mem. at 31. Plaintiffs submit their unjust enrichment claims are uniform
because the focus of each claim “places a spotlight directly on Defendant’s conduct and
TPP’s label.” See id. Plaintiffs’ theory also assumes a critical fact: “Defendant labeled
TPP as the standardized food pasteurized orange juice, but TPP does not conform to the
standard and is therefore illegally sold.” Id. In other words, Plaintiffs uniformly paid for
pasteurized orange juice but they did not receive it and Defendant, therefore, was unjustly
enriched.
Defendant argues that unjust enrichment is unsuitable for class-wide proof because
it requires the Court to consider the reasons behind each individual’s purchase of TPP. See
Def.’s Opp’n at 23–24. According to Defendant, the record reflects that purchasers bought
TPP for a variety of reasons and that “many purchasers indisputably received the benefits
that they sought from their purchases of TPP.” See id. at 24. Consequently, common
questions do not predominate over individualized concerns.
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The Court agrees with Defendant. Plaintiffs’ theory misapprehends the quasicontract nature of an unjust enrichment claim. A defendant is only unjustly enriched if a
plaintiff does not receive the benefit of the bargain for which he or she paid. Logic compels
an inquiry as to what exactly was the benefit of the bargain in a given transaction. In the
instant case, common questions would predominate Plaintiffs’ unjust enrichment claims if
Plaintiffs showed, beyond a preponderance of the evidence, that each of the named
Plaintiffs and the putative class members bought TPP because they believed it to be
pasteurized orange juice. The record does not so reflect. In fact, the named Plaintiffs’ own
testimony shows quite the opposite: they each testified that they purchased TPP for various
reasons, only one of whom mentioned its pasteurized quality. See Decl. of L. Walsh in
Supp. of Def.’s Opp’n (“Walsh Decl.”), ECF Nos. 281-1–281-4, Ex. 1, Lewis Dep. 24:2–
6, 56:18–57:8 (price point, vitamin and calcium content, and pasteurized quality); Ex. 2,
Martinucci Dep. 69:5–20 (taste and vitamin content); Ex. 3, Marshall Dep. 31:6–34:8 (taste
and folic acid content due to pregnancy); Ex. 4, Olivares Dep. 100:4–24 (taste and vitamin
content); Ex. 5, Salerno Dep. 36:17–22 (name recognition); Ex. 6, Simic Dep. 31:16–32:19,
40:7–41:25 (promotional offering); see also id., Ex. 8, Ugone Decl., App’x C
(summarizing deposition testimony of the named Plaintiffs and Defendant); Decl. of D.
Ecklund (“Ecklund Decl.”), Ex. D, ECF No. 153-9, Lewis Dep. 23:1–5, 63:20–24
(freshness quality and reduced sugar content); Marshall Dep. 86:2–87:4 (extra source of
calcium and Vitamin D).
Consequently, Plaintiffs cannot credibly show that common questions predominate
their unjust enrichment claims over individual questions because the benefit of the bargain
for which each of the named Plaintiffs and putative class members purchased TPP requires
an individualized showing of proof. Indeed, case law emanating from each of the four
states at issue supports such a conclusion. See Grandalski v. Quest Diagnostics, Inc., 767
F.3d 175, 185 (3d Cir. 2014) (“the District Court properly found that individual inquiries
would be required to determine whether an alleged overbilling constituted unjust
enrichment for each class member”); Ono v. Head Racquet Sports USA, Inc., No. 13-cv4222, 2016 WL 6647949, at *15 (C.D. Cal. Mar. 8, 2016) (“determining whether retaining
the funds was unjust would require determinations as to materiality and the degree of
reliance on the alleged misrepresentations”); Wyatt v. Philip Morris USA, Inc., No. 09-cv597, 2013 WL 4046334, at *6 (D. Wisc. Aug. 8, 2013) (“plaintiff’s unjust enrichment claim
will require individualized inquiries into each class member’s beliefs at the time of each
purchase and therefore is not maintainable as a class action”); Weiner v. Snapple Beverage
Corp., No. 07-cv-8742, 2010 WL 3119452, at *11 (S.D.N.Y. Aug. 5, 2010) (finding that
individual issues such as knowledge of ingredients and belief that defendant’s product was
natural “dwarf any issues of law or fact common to the class”). Plaintiffs’ unjust
enrichment claims, therefore, fail to satisfy predominance and certification is DENIED.
Additionally, the Court notes that unjust enrichment was the sole remaining claim of the
Wisconsin subclass. Certification of the Wisconsin subclass, therefore, is also DENIED.

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2. Breach of Express Warranty
“Under New Jersey law, to state a claim for breach of express warranty, Plaintiffs
must properly allege: (1) that Defendant made an affirmation, promise or description about
the product; (2) that this affirmation, promise or description became part of the basis of the
bargain for the product; and (3) that the product ultimately did not conform to the
affirmation, promise or description.” Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304, 324
(D.N.J. 2014) (quotation and citation omitted). California applies a similar construction to
breach of express warranty claims. In re Conagra Foods, Inc., 90 F. Supp. 3d 919, 984
(C.D. Cal. 2015). In New York, however, “a plaintiff must allege (1) the existence of a
material statement amounting to a warranty, (2) the buyer’s reliance on this warranty as a
basis for the contract with the immediate seller, (3) breach of the warranty, and (4) injury
to the buyer caused by the breach.” In re Scotts EZ Seed Litig., 304 F.R.D. 397, 410
(S.D.N.Y. 2015) (quotation and citation omitted).
Plaintiffs argue that Defendant breached the warranty on TPP’s label, which
provided “that TPP conforms to the standard of identity [for pasteurized orange juice] –
which it does not – and contains no flavoring – which is false.” See Pls.’ Mem. at 32.
Plaintiffs contend, “Factual resolution of these claims will all be the same for all class
members – either essence or flavoring was added or it was not.” Id. Defendant counters
that Plaintiffs ignore key differences in each state’s warranty law and that individualized
issues of injury, reliance and causation predominate. See Def.’s Opp’n at 20–22.
New York’s incorporation of a reliance element clearly establishes that
individualized issues predominate. As with unjust enrichment, Plaintiffs failed to
demonstrate by a preponderance of the evidence that the named Plaintiffs and putative class
members purchased TPP in reliance of the statement on its label claiming it to be
pasteurized orange juice. See supra Part III.B.i.1. In fact, at least one named Plaintiff
admitted that she did not look at the label at all when purchasing TPP. Walsh Decl., Ex.
5, Salerno Dep. 71:3–5 (“Q. When you bought Tropicana with Calcium, did you look at
the packaging? A. No.”). Another named Plaintiff could not recall whether he had ever
seen the word “pasteurized” on the label when purchasing TPP. Id., Ex. 6, Simic Dep.
126:5–7 (“Q. Did you ever see the word ‘pasteurized’ on any of the labels of the orange
juice that you purchased? A. I do not recall.”). Thus, “it is clear that plaintiffs’ purported
reliance on [Defendant’s] label cannot be the subject of generalized proof.” See Weiner,
2010 WL 3119452, at *11 (finding that express warranty claim concerning beverage
company’s “All Natural” label failed to satisfy predominance).
California courts are conflicted about whether a showing of reliance is required to
establish an express warranty claim in the class action context. Compare ConAgra Foods,
90 F. Supp. 3d at 984 (“Proof of reliance on specific promises or representations is not
required.”), with Sanders v. Apple Inc., 672 F. Supp. 2d 978, 991 (N.D. Cal. 2009)
(“reliance is a necessary element of a claim for breach of express warranty” (emphasis
original)). What is indisputable, however, is that the statement in question must have been
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“part of the basis of the bargain.” See Keith v. Buchanan, 220 Cal. Rptr. 392, 395 (Cal. Ct.
App. 1985). In Keith v. Buchanan, the California Court of Appeal explained a then recent
revision to Section 2313 of the California Commercial Code, which modified “both the
degree of reliance and the burden of proof” in express warranty claims. See id. at 397–98.
The court concluded that the statement “need only be part of the basis of the bargain, or
merely a factor or consideration inducing the buyer to enter into the bargain.” See id. at
398. “If, however, the resulting bargain does not rest at all on the representations of the
seller, those representations cannot be considered as becoming any part of the basis of the
bargain.” See id. at 397 (quotation and citation omitted). Thus, “the burden is on the seller
to prove that the resulting bargain does not rest at all on the representation.” Id. at 398.
In light of the above, reason commands that an individual must actually see or hear
a misrepresentation for it to become part of that individual’s basis of the bargain. As noted
above, Plaintiff Salerno admitted that she never saw the alleged misrepresentation when
she purchased TPP and it, therefore, could not have been part of the basis of her bargain
with Defendant. Walsh Decl., Ex. 5, Salerno Dep. 71:3–5. Furthermore, Plaintiff Simic
testified that he recalled specific characteristics of TPP’s label but the statement in question
was not one of them, which raises serious doubt as to whether it was part of his bargain
with Defendant. See id., Ex. 6, Simic Dep. 127:22–128:2 (“Q. What do you remember
seeing on that label? A. Remember seeing the logo for Tropicana. It says, ‘Tropicana Pure
Premium,’ then there’s an orange with a straw stuck into it. And then it also states that it’s
‘not from concentrate.’ That’s pretty much it on the label.”). These admissions clearly
show that individualized proof is necessary to determine whether putative class members
actually saw the statement when purchasing TPP and, therefore, individualized issues
predominate Plaintiffs’ California express warranty claims.2
New Jersey express warranty law also incorporates the “part of the basis of the
bargain” requirement. In interpreting this language, the Third Circuit held “that once the
buyer has become aware of the affirmation of fact or promise, the statements are presumed
to be part of the ‘basis of the bargain’ unless the defendant, by ‘clear affirmative proof,’
shows that the buyer knew that the affirmation of fact or promise was untrue.” See
Cipollone v. Liggett Grp., Inc., 893 F.2d 541, 568 (3d Cir. 1990), rev’d on other grounds,
505 U.S. 504 (1992). The critical portion of this standard to the instant case is “once the
buyer has become aware,” which clearly requires that a plaintiff have seen or heard the
representation at issue to be considered part of the basis of the bargain. As the Third Circuit
noted, “It strains the language to say that a statement is part of the ‘basis’ of the buyer’s
‘bargain,’ when that buyer had no knowledge of the statement’s existence.” Cipollone,
893 F.2d at 567; see In re: Elk Cross Timbers Decking Mktg., No. 15-cv-18, 2015 WL

2

The Court is aware that Plaintiffs Salerno and Simic do not represent the California subclass. Nonetheless, their
testimony sufficiently shows that individuals behave differently when purchasing TPP, including when deciding
whether to review or ignore the product’s label. That notion certainly applies to individuals residing in California, the
nation’s most populous state.

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6467730, at *28–29 (D.N.J. Oct. 26, 2015) (“Plaintiffs do not cite relevant law
demonstrating that a plaintiff can state a breach of express warranty claim based on
representations that they were not even aware of.”); Hammer v. Vital Pharm., Inc., No. 11cv-4124, 2015 WL 12844442, at *9 (D.N.J. Mar. 31, 2015) (finding predominance issues
“as to whether the proposed class members ever ‘became aware of the promise’” and
denying class certification). As noted above, Plaintiffs Salerno and Simic’s own testimony
raises serious doubt as to whether they ever saw the statement about pasteurization.
Plaintiffs, therefore, failed to show by a preponderance of the evidence that common issues
predominate over individualized ones as to all breach of express warranty claims and class
certification is DENIED.
3. New Jersey Consumer Fraud Act
The New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. 56:8-1–20, “affords
broad protections to New Jersey consumers.” Bosland v. Warnock Dodge, Inc., 964 A.2d
741, 743 (N.J. 2009). Under its private right of action, “there are only three elements
required for prima facie proofs: (1) unlawful conduct by defendant; (2) an ascertainable
loss by plaintiff; and (3) a causal relationship between the unlawful conduct and the
ascertainable loss.” Id. at 749. The alleged unlawful conduct in the instant case is the
labeling of TPP as pasteurized orange juice, which Plaintiffs claim amounts to a regulatory
violation. See Pls.’ Mem. at 32–33. “[A] plaintiff who cannot prove the causal link
between the asserted regulatory violation and his loss cannot find relief within the
[NJ]CFA.” Bosland, 964 A.2d at 751. In establishing a causal link, the relevant issue is
“whether class members got less than what they expected.” See Marcus v. BMW of N.A.,
LLC, 687 F.3d 583, 607 (3d Cir. 2012). “[C]ertification of a NJCFA class is not proper
when class members do not react to misrepresentations or omissions in a sufficiently
similar manner.” Id. at 609.
Plaintiffs would have this Court apply a presumption of causation to all putative
class members by accepting that “each consumer of TPP suffered an ascertainable loss
because they paid for TPP but did not receive pasteurized orange juice.” See Pls.’ Mem.
at 33. In the Rule 23 context, however, “a presumption may not be automatically used to
eliminate a particular element,” particularly with regard to the causal nexus element of a
NJCFA claim. See Demmick v. Cellco P’ship, No. 06-cv-2163, 2010 WL 3636216, at *16
(D.N.J. Sept. 8, 2010). Plaintiffs’ theory would erroneously eliminate the required causal
nexus of each individual class member’s loss—i.e., price premium paid—to Defendant’s
pasteurization statement.
The record does not reflect that New Jersey putative subclass members reacted to
the pasteurization statement in a sufficiently similar manner. First, and most telling,
Plaintiff Salerno, the lead representative of the New Jersey subclass, testified that she was
not focused on the label when purchasing TPP and, in fact, did not even look at it. See
Walsh Decl., Ex. 5, Salerno Dep. 36:21–22 (“I was just going to by [sic] Tropicana, the
name.”), 71:3–5 (“Q. . . . did you look at the packaging. A. No.”). Consequently, Plaintiff
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Salerno cannot credibly claim to have bought TPP with the expectation that it conformed
to the FDA’s standard of identity of pasteurized orange juice. Second, Plaintiffs’ own
expert conducted a survey that suggests a great variation in how putative subclass members
would react to the knowledge that TPP did conform to the standard of identity. When told
to assume that TPP contained added natural flavoring made by flavor and fragrance
companies, over twenty percent of respondents indicated that they would still purchase
TPP at any of the given price points. See Ecklund Decl., Ex. 75, Toubia Rprt. ¶¶ 44, 91.
Hence, the survey results suggest that an individual consumer in New Jersey might
purchase TPP even with the knowledge that it did not conform to the FDA’s standard of
identity. Consequently, Plaintiffs failed to show predominance beyond a preponderance
of the evidence and certification is DENIED. See Marcus, 687 F.3d at 610. Certification
of the New Jersey subclass is also DENIED.
ii. Plaintiffs have not demonstrated that the proposed Class is
ascertainable under the Third Circuit standard.
Plaintiffs remaining claims emanate from California and New York consumer
protection laws. California’s Unfair Competition Law and Consumer Legal Remedies Act
apply an objective “reasonable consumer” standard, which requires that Plaintiffs “show
that members of the public are likely to be deceived” by Defendant’s alleged misconduct.
See Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (quotation and
citation omitted). Similarly, Sections 349 and 350 of the New York General Business Law
apply “an objective definition of deceptive acts and practices” that are “likely to mislead a
reasonable consumer acting reasonably under the circumstances.” See Oswego Laborers’
Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 745 (N.Y. 1995).
In light of this objective standard, individual issues cannot predominate over common ones
as they did with Plaintiffs’ common law and NJCFA claims. See Scotts EZ Seed, 304
F.R.D. at 409–10 (finding class certification proper for UCL, CLRA and GBL §§ 349 and
350 claims because the objective standard only requires generalized proof). Nonetheless,
Plaintiffs must still satisfy the Third Circuit’s standard of “ascertainability” to meet the
requirements of Rule 23(b)(3).
“A Rule 23(b)(3) class must also be ‘currently and readily ascertainable based on
objective criteria.’” City Select Auto Sales Inc. v. BMW Bank of N.A., Inc., 867 F.3d 434,
439 (3d Cir. 2017) (quoting Marcus, 687 F.3d at 593). The Third Circuit provides three
principal rationales for the ascertainability requirement. “First, ‘ascertainability and a clear
class definition allow potential class members to identify themselves for purposes of opting
out of the class.’” Id. (quoting Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013)).
“Second, it ensures that a defendant’s rights are protected by the class action mechanism,’
[] and that ‘those persons who will be bound by the final judgment are clearly identifiable.”
Id. (quoting Carrera, 727 F.3d at 306; Marcus, 687 F.3d at 593). “Finally, ‘it ensures that
the parties can identify class members in a manner consistent with the efficiencies of a
class action.’” Id. (quoting Carrera, 727 F.3d at 307).
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“A plaintiff seeking certification of a Rule 23(b)(3) class must prove by a
preponderance of the evidence that the class is ascertainable.” Byrd v. Aaron’s Inc., 784
F.3d 154, 163 (3d Cir. 2015). “The rigorous analysis requirement applies equally to the
ascertainability inquiry.” Id. Plaintiffs must “show that: (1) the class is defined with
reference to objective criteria; and (2) there is a reliable and administratively feasible
mechanism for determining whether putative class members fall within the class
definition.” Id. (quotation and citation omitted). Importantly, the requirement “does not
mean that a plaintiff must be able to identify all class members at class certification—
instead, a plaintiff need only show that ‘class members can be identified.’” Id. (quoting
Carrera, 727 F.3d at 308 (emphasis original)). “[A] party cannot merely provide
assurances to the district court that it will later meet Rule 23’s requirements.” Id. at 164.
“Nor may a party ‘merely propose a method of ascertaining a class without any evidentiary
support that the method will be successful.’” Id. (quoting Carrera, 727 F.3d at 306–07,
311). “The type of challenge to the reliability of evidence that is required will vary based
on the nature of the evidence.” Carrera, 727 F.3d at 308.
Plaintiffs claim that they satisfy ascertainability because the proposed Class and
subclasses are objectively defined, class members are easily identifiable using existing
business records and any further inquiry is premature in light the Supreme Court’s recent
holding in Tyson Foods, Inc. v. Bouaphakeo. See Pls.’ Mem. at 14–16. Defendant argues
that Tyson Foods is irrelevant to the instant case because it does not address
ascertainability. See Def.’s Opp’n at 31–33. Furthermore, Defendant asserts that nothing
in the record reflects that the business records referenced by Plaintiffs can identify putative
class members. See id. at 33–41. Defendant does not challenge Plaintiffs’ proposed Class
definition and the Court accepts that their definition satisfies the first prong of the
ascertainability inquiry.
The Court agrees with Defendant that the holding from Tyson Foods does not affect
the Third Circuit’s ascertainability requirement. The central question in Tyson Foods
concerned the use of representative or statistical samples of evidence as a means to
establish class-wide liability at the certification stage. See 136 S. Ct. at 1046–47. The
Supreme Court did not address ascertainability and certainly did not overrule any of the
Third Circuit precedent upon which this Court must rely.
The critical question, then, is whether Plaintiffs have shown that putative class
members can be identified by employing “a reliable and administratively feasible
mechanism.” Plaintiffs submit that their expert, Dr. Arvind Narayanan, can create a
computer program that will reliably identify all putative class members. Dr. Narayanan’s
proposed methodology requires a putative class member to submit an electronic claim form
that includes a loyalty card or member ID number and other personal identifying
information such as a home address and telephone number. He further proposes that he
will collect the various retailer data, convert all of it into a standard digital format and draft
a program that will “(1) look up the ID number in the retailer’s customer records, and (2)
should a match exist, cross-check the individual’s available personal information against
12

the corresponding fields in the retailer’s customer record.” See Ecklund Decl., Ex. 93,
Expert Decl. of A. Narayanan (“Narayanan Decl.”) ¶¶ 25–27. Dr. Narayanan will then
write a second program “to verify that claimants did in fact purchase the products of
interest.” Id. at ¶ 32.
Dr. Narayanan’s methodology assumes that the retailer data exists and contains the
necessary information required to properly “cross-check” against putative class members’
claim forms. See id., Ex. 94, Narayanan Dep. 58:23–59:10, 127:10–17. It further assumes
that all retailers will produce their consumer data to him in a usable electronic format. See
id., Narayanan Dep. 204:6–12. By his own admission, Dr. Narayanan has not seen any of
the data in question, has never conducted the type of project he now proposes, has not
tested or even drafted the programs he asserts will ascertain class members, and has never
heard of anyone else successfully implementing such a proposal. See id., Narayanan Dep.
23:4–13, 43:5–12, 72:7–74:9.
Plaintiffs contend that ample evidence in the record supports the existence of the
requisite retailer data to implement Dr. Narayanan’s proposal. With respect to Members
Only clubs, Costco appears able to retrieve a member’s purchasing history if given the
membership number and a range of dates. See id., Ex. 83, Costco Resp. at 2. BJ’s
Wholesale Club also appears able to track purchasing history, although it is unclear for
how long it maintains its data. See id., Ex. 84, BJ’s Resp. at Doc. No. 1. Wal-Mart and
Sam’s Club, on the other hand, estimate that they only have “some identifying information”
for approximately twenty percent of all TPP units purchased for a three-year period
between 2011 and 2014. See id., Ex. 85, Wal-Mart Resp. at 1–2.
With respect to Loyalty Card retailers, Plaintiffs submit that Catalina Marketing
Corporation (“Catalina”) maintains a consumer database, which can track the purchases of
consumers who use loyalty cards at more than 31,000 supermarkets and drugstores
throughout the United States. See Pls.’ Mem. at 20–23. Dr. Narayanan, for his part,
expects that he will need to use “a lot” of consumer data produced by Catalina to perform
his methodology. See Ecklund Decl., Ex. 94, Narayanan Dep. 282:15–20. Catalina
confirmed that it receives certain transactional information at the point of sale (i.e., when
a loyalty card is scanned), including date, time, product code and pricing. See id., Ex. 82,
Carrigan Dep. 59:2–60:11, 64:22–65:5. Notably, however, all information it receives is
anonymous and contains no personal identifying information of any kind. See id., Ex. 82,
Carrigan Dep. 66:19–67:25. Consequently, all available personal identifying information
resides with the individual retailers in Catalina’s network. Dr. Narayanan’s methodology,
therefore, is inoperable without the inclusion of the retailers’ consumer data. See id., Ex.
94, Naraynana Dep. 58:23–59:10 (testifying that “the most typical case” would have
“records across the two databases that have matching I.D. fields as well as multiple fields
of personal information”).
The scant information in the record as to Catalina retailers’ data calls into question
what is, in fact, available. In responding to Plaintiffs’ subpoena, Wakefern Food Corp.
13

indicated that it requests a customer’s name, address and sometimes an email address or
telephone number when that customer joins its loyalty program. It does not validate the
accuracy of the personal identifiers and it only maintains a customer’s purchasing history
for approximately thirty months. See id., Ex. 86, Wakefern Resp. at 1–2. Stop & Shop
Supermarket Company maintains data, which can identify purchases from a product code
and a customer’s card number, but that data is not readily available and would require
customized searching to acquire the desired information. It is unclear what personal
information, if any, Stop & Shop retains in its database. See id., Ex. 87, Stop & Shop Resp.
at 1. The Court presumes that there are dozens of similar corporations within Catalina’s
vast network of 31,000 stores, for which there is no evidence in the record identifying
available consumer data.
As Wakefern’s response exhibits, the personal identifying information each retailer
possesses is only as good as the accuracy with which each customer provided it. Plaintiffs’
own testimony shows that customers rarely update their personal information connected
with various loyalty card programs. See Walsh Decl., Ex. 2, Martinucci Dep. 156:7–11,
159:16–21; Ex. 4, Olivares Dep. 131:24–132:15, 135:24–136:7, 140:16–23, 146:3–9; Ex.
5, Salerno Dep. 84:18–85:4, 89:13–90:5, 94:6–14, 98:8–20. Thus, if putative class
members have moved or changed their telephone numbers or email addresses since
opening their loyalty accounts, then the personal identifying information they provide on
the claim forms likely would not match the information in the retailer’s database.
Additionally, one named Plaintiff attempted to acquire his purchasing history from a
Catalina retailer, to which the retailer responded that it did not retain the requisite data. See
id., Ex. 6, Simic Dep. 63:10–64:21.
To be clear, the Court is mindful that “there is no records requirement” with respect
to ascertainability. See Byrd, 784 F.3d at 164. In City Select, the Third Circuit confirmed
that affidavits from putative class members combined with business records or other data
that verify class members’ statements is an acceptable “mechanism” in some instances.
See City Select, 867 F.3d at 440–42. It also cautioned, however, “The determination
whether there is a reliable and administratively feasible mechanism for determining
whether putative class members fall within the class definition must be tailored to the facts
of the particular case.” Id. at 442. In that case, one defendant maintained a database that
contained all putative class members’ contact information and other details about their
relationship to the defendant. See id. at 437. Plaintiff timely moved during open discovery
for the production of the database but the district court denied its request. Id. The district
court later concluded that the evidence in the record did not sufficiently show that the class
was ascertainable. Id. at 438. The Third Circuit remanded, compelling the production of
the database. It concluded, “Without further information about [defendant’s] database,
there was not an adequate record on which to base the conclusion that the class was not
ascertainable based on a ‘reliable and administratively feasible mechanism.’” Id. at 442
(quoting Byrd, 784 F.3d at 163).

14

The case at bar presents a similar, but more complicated, issue about Plaintiff’s
proposed mechanism and is a closer comparison to an earlier Third Circuit case addressing
ascertainability, Carrera v. Bayer Corp. In Carrera, plaintiff brought a false advertising
claim about a dietary supplement sold by defendant. See 727 F.3d at 304. As here,
defendant never directly sold the product to putative class members; instead, it distributed
the product through retail stores. Id. Consequently, defendant did not possess its own
database of purchasers. Plaintiff proposed to use a nearly identical ascertainability method
to the one now before this Court: “‘retailer records of online sales and sales made with
store loyalty or rewards cards’ combined with affidavits from potential class members.”
See City Select, 867 F.3d at 440 (quoting Carrera, 727 F.3d at 304 and characterizing its
decision). Notably, however, “plaintiff had not sought, nor obtained, the proposed records
during class discovery.” Id. (citing Carrera, 727 F.3d at 308–09). The Third Circuit
“determined that it was inappropriate to certify the class without further inquiry into the
nature and extent of the available records, and remanded in part for this purpose.” Id. “In
addition, [it] noted that, even if the proposed records did exist, there was no evidence that
a ‘single purchaser,’ let alone the whole class, could be identified using them.” Id.
With these decisions at the forefront, this Court now returns to two rationales
underlying the ascertainability requirement, which were not present in City Select but very
present in Carrera: “facilitating opt-outs and identifying persons bound by the final
judgment.” See City Select, 867 F.3d at 441; Carrera, 727 F.3d at 307–09. The record
before the Court does not show by a preponderance of the evidence that Plaintiffs can
identify all, or even a majority, of putative class members. Dr. Narayanan has never
conducted a project like the one he now proposes, nor has he even looked at a sample of
the data that he will need to perform it. He does not know anyone in his field who has
attempted, successfully or unsuccessfully, to do what he proposes. Ecklund Dec., Ex. 94,
Narayanan Dep. 72:6–74:9. The Court does not doubt his ability to write computer
programs, but even he admits that the performance of his program will only be as good as
the consumer data he puts into it. Id., Narayanan Dep. 127:10–17. Catalina, the consumer
database upon which Dr. Narayanan expects to rely, does not maintain any of the requisite
personal identifiers that he needs to verify claims. Ecklund Decl., Ex. 82, Carrigan Dep.
66:19–67:25.
Thus, the retailer data is the critical component in determining whether putative
class members can be ascertained and that data is not in the record. 3 Of the dozens, if not
The Court acknowledges that Plaintiffs belatedly sought production of the databases maintained by Catalina, BJ’s
Wholesale and Wal-Mart, which this Court denied on December 19, 2016. See Op., ECF No. 205. Unlike plaintiff
in City Select, the Court denied Plaintiffs’ request in the instant case because they made it nine months after the closure
of discovery, which was open for almost three years. The Court found that Plaintiffs knew of these databases and
made a strategic decision not to pursue them until confronted with Defendant’s ascertainability argument. If the
Federal Rules of Civil Procedure, particularly Rules 16 and 26, are to have any meaning and effect on federal practice,
then a court cannot allow a party to circumvent them by conduct such as that exhibited by Plaintiffs here. The Court
decided that Plaintiffs’ strategy in prosecuting their case caused the moment in which they found themselves then.
The Court stands by that decision today. Furthermore, given Catalina’s statements in the record, the Court doubts that
3

15

hundreds, of retailers at issue here, only Costco has expressed any degree of certainty that
it can provide the requisite data for the entire class period. Most of the Catalina retailers
have made no expression about their consumer data because Plaintiff did not ask them.
Plaintiff Simic admitted that one of his retailers, Pick ‘N Save, maintains no consumer data
whatsoever. Walsh Decl., Ex. 6, Simic Dep. 63:10–64:3. The Court has no way of
knowing from the record how many Catalina retailers are like Pick ‘N Save and how many
are like Costco. More importantly, any putative class member who shops at a retailer like
Pick ‘N Save will be excluded from the Class because there will be no way to verify his or
her claim; and yet, that class member will still be bound by any judgment on the merits
emanating from this Court. That defies one of the principal rationales of ascertainability—
“identifying persons bound by the final judgment”—and simply cannot be permitted. See
City Select, 867 F.3d at 441.
The Third Circuit obligates Plaintiffs to propose a method of ascertaining the class
with evidentiary support that the method will be successful. See Byrd, 784 F.3d at 164.
For the reasons stated above, Plaintiffs failed to show by a preponderance of the evidence
that Dr. Narayanan’s methodology will be successful and, therefore, they failed to satisfy
the ascertainability requirement. Accordingly, certification of the California and New
York consumer law claims is DENIED. Certification of the California and New York
subclasses is also DENIED.4
iii. Plaintiffs lack standing to pursue injunctive relief under 23(b)(2).
Plaintiffs move alternatively for class-wide injunctive relief under Rule 23(b)(2).
See Pls.’ Mem. at 45–47. “Rule 23(b)(2) applies only when a single injunction or
declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores,
564 U.S. at 360. “When, as in this case, prospective relief is sought, the plaintiff must
show that he is ‘likely to suffer future injury’ from the defendant’s conduct.” McNair v.
Synapse Grp. Inc., 672 F.3d 213, 223 (3d Cir. 2012) (quoting City of Los Angeles v. Lyons,
461 U.S. 95, 105 (1983)). “In the class action context, that requirement must be satisfied
by at least one named plaintiff.” Id. (citations omitted). “The threat of injury must be
sufficiently real and immediate, and, as a result of the immediacy requirement, ‘[p]ast
exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” See
id. (quoting O’Shea v. Littleton, 414 U.S. 490, 502 (1975)) (internal quotation and citation
omitted).
None of the named Plaintiffs expressed with any certainty that they intend to
purchase TPP in the future. Walsh Decl., Ex. 1, Lewis Dep. 30:13–31:22 (responding “I
don’t know” when asked about changes to TPP’s label that would enable future purchases);

the production of its database would change the outcome of the Court’s ascertainability analysis without the additional
production of the retailers’ databases.
4
The Court need not reach the parties’ arguments addressing Plaintiffs’ damages model.

16

Ex. 2, Martinucci Dep. 63:9–23 (no future purchases); Ex. 3, Marshall Dep. 61:11–23 (no
future purchases); Ex. 4, Olivares Dep. 76:17–19 (no future purchases); Ex. 5, Salerno Dep.
17:16–22 (responding “probably not” when asked about future purchases); Ex. 6, Simic
Dep. 116:4–12 (responding “unlikely” when asked about future purchases). Consequently,
Plaintiffs failed to show a “sufficiently real and immediate” threat of future injury by a
preponderance of the evidence and, therefore, lack standing to pursue injunctive relief. See
McNair, 672 F.3d at 223. Certification under Rule 23(b)(2) is DENIED.
IV.

CONCLUSION

For the reasons stated above, Plaintiffs’ motion for class certification is DENIED.
An appropriate order follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

Date: January 22, 2018

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