Blitz, Thomas et al v. Monsanto Company et al

Filing 117

ORDER. Signed by District Judge William M. Conley on 1/2/2019. (DPM)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
THOMAS BLITZ,
Plaintiff,
v.

OPINION AND ORDER
17-cv-473-wmc

MONSANTO COMPANY,
Defendant.
In this putative class action, plaintiff Thomas Blitz claims that the statement on the
label of defendant Monsanto Company’s Roundup® product misled him into believing it
was safe to use around people and pets because the active ingredient targeted an enzyme
only found in plants, inducing him to purchase the product and causing him pecuniary
loss. (Compl. (dkt. #1) ¶¶ 22, 34, 75.) Before the court presently is his request to certify
a class of similarly situated Wisconsin consumers.

Because individual inquiries

predominate and a class action is not a superior method of resolving this dispute, plaintiff’s
motion will be denied.

BACKGROUND
The active ingredient in Roundup is glyphosate (id. at ¶ 2), which kills weeds and
grasses by inhibiting the enzyme 5-enolpyruvylshikimate-3-phosphate (“EPSP”) synthase,
thus disrupting one of the steps in the so-called “shikimate pathway.” (Id. at ¶ 29.)
Roundup’s label, as seen below, reads: “DID YOU KNOW? Glyphosate targets an enzyme

found in plants but not in people or pets.” (Id. at ¶ 35.)

(Label (dkt. #83-31) 3).
The Environmental Protection Agency (“EPA”) has registered glyphosate as a
pesticide since 1974 and renewed that registration in 1993. (Mot. to Dismiss Br. (dkt.
#12) 12.) The EPA also approved the Roundup labels at issue as (1) EPA Reg. No. 7199525, (2) EPA Reg. No. 71995-29, and (3) EPA Reg. No. 71995-33. (Id.) Each label includes
the same statement “Glyphosate targets an enzyme found in plants but not in people or
pets.” (Id. at 13.)
The parties appear to agree that EPSP is not found in human and animal cells as
evidenced by the absence of the shikimate pathway. (See Mot. to Dismiss Opp’n (dkt.
#31) 6; accord Mot. to Dismiss Reply (dkt. #41) 8.) Taking plaintiff’s allegations as true,
however, EPSP is found in bacteria that inhabit human and other mammalian stomachs.

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(Compl. (dkt. #1) ¶ 30.) The materiality of that fact is unclear at this stage, but the court
will infer for the purposes of this opinion, that it at least makes the representation that the
enzyme is not found “in people or pets” misleading.

OPINION
To certify a class under Federal Rule of Civil Procedure 23(b)(3), Blitz must satisfy
a two-step analysis. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir.
2012). First, the proposed class must satisfy the four threshold requirements under Rule
23(a): numerosity, commonality, typicality and adequacy. Id. Second, the proposed class
must satisfy the two requirements under Rule 23(b)(3): predominance and superiority. Id.
Current law further requires the trial court to engage in a “rigorous analysis” to
determine whether the proposed class satisfies these Rule 23 requirements. CE Design Ltd.
v. King Architectural Metals, Inc., 637 F.3d 721, 722 (7th Cir. 2011). As a result, the Rule
23 analysis may overlap with a determination of the merits of the case. Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 352 (2011). When overlap occurs, “the judge must make a
preliminary inquiry into the merits.” Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676
(7th Cir. 2001). If material factual disputes arise, the court may even be required to receive
evidence and resolve those disputes before ruling on class certification. Messner, 669 F.3d
at 811. However, resolving the factual dispute “should not turn the class certification
proceedings into a dress rehearsal for the trial on the merits.” Id.
Here, plaintiff seeks to certify a single class under Rule 23(b)(3): “All consumers
who purchased Roundup Products containing the statement ‘Glyphosate targets an
enzyme found in plants but not in people or pets’ on the labeling in the State of Wisconsin,

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from June 2015 through the present.” (Pl.’s Class Cert. Br. (dkt. #73) 4.) While plaintiff’s
proposed class satisfies the Rule 23(a) requirements, it does not satisfy Rule 23(b)(3)
because individual questions of material inducement under the Wisconsin Deceptive Trade
Practices Act (“WDTPA”) overwhelm questions common to the class, making a class action
inferior to other available methods for resolving the dispute.

I. Rule 23(a) Requirements
A. Numerosity
The numerosity requirement is satisfied when “the class is so numerous that joinder
of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Here, the proposed class easily
satisfies the numerosity requirement. Plaintiff seeks to represent consumers who have
purchased Roundup Products since June 2015. (Pl.’s Class Cert. Br. (dkt #73) 4.) Plaintiff
asserts, and defendant does not challenge, that “more than 1 million units of the Roundup
Products were sold in Wisconsin during the class period.” (Id. at 5.) Even accounting for
consumers who repurchased Roundup products, joining potentially thousands, if not
hundreds of thousands, of consumers who purchased Roundup products in Wisconsin
since June 2015 in one lawsuit would obviously be impractical. Thus, numerosity is
satisfied.

B. Commonality
The commonality requirement is met when there are “questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). A single, common issue will satisfy this
requirement if the issue is “capable of classwide resolution -- which means that

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determination of its truth or falsity will resolve an issue that is central to the validity of
each of the claims in one stroke.” Dukes, 564 U.S. at 339. Under the commonality
standard, plaintiff must do more than “merely” demonstrate “that they have all suffered a
violation of the same provision of law.”

Id.

(internal quotation marks and citation

omitted). Plaintiff must show that “the class members have suffered the same injury.” Id.
Plaintiff offers four relevant common questions of law and fact related to
defendant’s representations about Glyphosate: (1) “whether Monsanto’s representation
that ‘Glyphosate targets an enzyme found in plants but not in people or pets’ is false,
misleading, or deceptive”; (2) “whether Monsanto omitted material information from the
labels of Roundup Products”; (3) “whether practices related to the marketing, labeling, and
sales of Roundup Products were unfair, deceptive, fraudulent, and/or unlawful”; and
(4) “whether Monsanto’s conduct economically injured” the class members. 1 (Pl.’s Class
Cert. Br. (dkt. #73) 7.) In support, plaintiff notes that “thousands of consumers purchased
Roundup Products after having viewed the label representation or other Monsanto
marketing” regarding the efficacy of Glyphosate. (Id.) In response, defendant argues that
commonality is not met because plaintiff “relies on the fact that he saw the Labeling
Statement, [but] many class members did not.” (Def.’s Opp’n to Class Cert. (dkt #79)
38.)
Defendant’s commonality argument fails because a jury could still find members of

Plaintiff also identifies two common questions of law and fact, pertaining to claims previously
dismissed by this court. See Blitz v. Monsanto, 317 F. Supp. 3d 1042, 1054–1055 (W.D. Wis. 2018)
(dismissing plaintiff’s breach of express warranty and unjust enrichment claims for failure to state
a claim).

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the proposed class were injured by false, misleading, or deceptive claims under the
WDTPA, even if some class members did not see the Roundup products’ labels. See Blitz,
317 F. Supp. 3d at 1052–53 (noting that reasonable reliance on a false statement is not
“an element of a statutory false representation claim” (quoting Novell v. Migliaccio, 2008
WI 44, ¶ 49, 309 Wis. 2d 132, 151, 749 N.W.2d 544, 553)). Even if some members of
the proposed class did not see the label, therefore, there may still be common questions of
law and fact capable of classwide resolution.

See Dukes, 564 U.S. at 339.

Thus,

commonality would appear satisfied.

C. Typicality
Rule 23(a) typicality requires that a named plaintiff’s claim “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.” Keele v. Wexler, 149 F.3d 589,
595 (7th Cir. 1998) (quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232
(7th Cir. 1983)). Typicality often overlaps with the commonality requirement. See Gen.
Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). However, this inquiry should
ensure that “a plaintiff with typical claims will pursue his or her own self-interest in the
litigation and in so doing will advance the interests of the class members, which are aligned
with . . . those of the representative.” Insolia v. Phillip Morris, Inc., 186 F.R.D. 535, 544
(W.D. Wis. 1998) (quoting 1 Newberg & Conte, Newberg on Class Actions § 3.13 (3d ed.
1992)).
Plaintiff argues that typicality is satisfied because both he and the proposed class

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were “subject to Monsanto’s common course of conduct,” in that they “viewed Monsanto’s
deceptive representations” regarding Glyphosate and subsequently “purchased the
Roundup Product.” (Pl.’s Class Cert. Br. (dkt. #73) 8.) In response, defendant argues
that typicality is not met for two reasons: (1) the named plaintiff’s claim is not typical of
the proposed class because plaintiff “relies on the fact that he saw the Labeling Statement,
and many class members did not”; 2 and (2) plaintiff only purchased some of the Roundup
products, differentiating him from many other members of the proposed class. 3 (Def.’s
Opp’n to Class Cert. (dkt. #79) 38, 40.)
Defendant’s first argument fails because even if members of the proposed class did
not see the labeling statement, the named plaintiff’s claims may still be “typical . . . of the
class.” Fed. R. Civ. P. 23(a)(3). As previously mentioned, the act of viewing a Roundup
Product’s label is not dispositive as to whether a statement is false, misleading, or deceptive
under the WDTPA. Blitz, 317 F. Supp. 3d at 1052–53. Instead, it is enough that the
named plaintiff’s claim has “the same essential characteristics” -- in this case, putative harm
caused by untrue, deceptive or misleading statements -- “as the claims of the class at large.”
Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (quoting De La Fuente, 713 F.2d

While defendant asserts this argument in opposition to a finding of commonality and typicality
(Def.’s Opp’n to Class Cert. (dkt. #79) 38), plaintiff criticizes defendant’s characterization of this
argument as one of typicality, since it really goes more to commonality. (Pl.’s Class Cert. Reply
(dkt. #99) 7–8.) The court has no interest in engaging in an argument over whether both dance
on the head of the same pin, particularly since typicality and commonality arguments are often
considered together. See Wiedenbeck v. Cinergy Health, Inc., No. 12-cv-508-wmc, 2013 WL 5308206,
at *9 (W.D. Wis. Sept. 20, 2013) (citing Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992);
Falcon, 457 U.S. at157 n.13).
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Defendant notes that plaintiff purchased several of Roundup’s “ready-to-use” products, but not
Roundup’s “concentrated products.” (Def.’s Opp’n to Class Cert. (dkt. #79) 40).

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at 232).
Defendant’s second argument against typicality also fails. While plaintiff may not
have purchased all the Roundup products at issue in the case, he may still adequately
represent the claims of the proposed class. Defendant cites several cases where plaintiffs
failed to show typicality because the named plaintiffs had “purchased a different product
than that purchased by unnamed plaintiffs.” 4 (Def.’s Opp’n to Class Cert. (dkt. #79) 40.)
Only Lewis Tree is arguably similar to the typicality concerns raised by defendant in this
case. See 211 F.R.D. at 232–34. Moreover, the Lewis Tree decision does not persuade this
court that the typicality requirement is missing in this case.
The plaintiff in Lewis Tree sought certification of a class comprised of:
all individuals who purchased, leased, or acquired any one of
nearly sixty telecommunications products that were sold by the
AT&T Corporation (“AT&T”) and its successor, Lucent
Technologies, Inc. (“Lucent”) . . . over a ten-year period and
that allegedly contained defects related to processing of dates
including and after January 1, 2000 (the “Y2K defect”).
Lewis Tree, 211 F.R.D. at 229. Given this definition of the class, the district court found
the plaintiff did not satisfy typicality for three reasons: (1) the plaintiff had only purchased
two of the “over sixty products”; (2) there was no allegation that “the circumstances under
which Lewis Tree purchased its equipment were similar to those of other class members”;

Defendant directs the court to Weiner v. Dannon, 255 F.R.D. 658, 666 (C.D. Cal. 2009). (Def.’s
Opp’n to Class Cert. (dkt. #79) 40.) Three related cases cited in Dannon are: Gonzalez v. Proctor &
Gamble Co., 247 F.R.D. 616, 621–22 (S.D. Cal. 2007); Lewis Tree Serv. Inc. v. Lucent Techs. Inc., 211
F.R.D. 228, 232–34 (S.D.N.Y. 2002); Kaczmarek v. Int’l Bus. Machs. Corp., 186 F.R.D. 307, 313
(S.D.N.Y. 1999). The remaining cases relied upon by defendant concern plaintiffs who had not
purchased any of the products at issue in the litigation. This includes Dannon and Major v. Ocean
Spray Cranberries, Inc., No. 5:12-CV-03067 EJD, 2013 WL 2558125, at *3–4 (N.D. Cal. June 10,
2013).

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and (3) Lewis Tree’s legal claims were not “typical of the class.” Id. at 234. The first of
these concerns is also true here, since the named plaintiff has not purchased all of the
Roundup products, but the other two are not: the circumstances under which plaintiff and
other members of the proposed class purchased Roundup products are similar -- all
allegedly purchased from retail stores -- and, as the court previously noted, the plaintiff’s
legal claims are typical of the proposed class.
Further informing the court’s decision are the cases cited by plaintiff where
typicality was satisfied even though the plaintiff had not purchased all the products at issue
in the case. (Pl.’s Class Cert. Reply (dkt. #99) 13.) The district court’s decision in Elias
v. Ungar’s Food Products, Inc., 252 F.R.D. 233 (D.N.J. 2007), is particularly persuasive
because of the factual similarity. As in this case, the defendants in Elias argued that
typicality was missing because none of the named plaintiffs had purchased several of the
products at issue in the case. Id. at 243. Nevertheless, the Elias court found that the
named plaintiffs were typical of the class. In its decision, the court emphasized that the
products were all manufactured and distributed by the same corporation, and that the
litigation’s focus on the defendants’ “misrepresentations on their packages concerning fat
and calories.” Id. at 243-44. Furthermore, the court noted that all of the claims in the
litigation involved the same legal analysis and arose from the same course of conduct:
“selling a product with false nutritional information.” Id. at 244.
Like Elias, plaintiff’s claim and the claims of the putative class members involve
products sold that are manufactured and distributed by the same company, Monsanto,
under the same brand name, Roundup. Further, plaintiff’s and the proposed class’s claims:

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(1) focus on the exact same alleged misrepresentation on all Roundup product labels;
(2) involve the same legal analysis; and (3) arise from the same course of conduct. This
case’s similarity to Elias, along with the distinctions from Lewis Tree, persuade the court
that defendant’s second argument against typicality fails as well. Thus, typicality is also
met.

D. Adequacy
The purpose of Rule 23’s adequacy requirement is to ensure that “the representative
parties will fairly and adequately protect the interest of the class.” Fed. R. Civ. P. 23(a)(4).
A class representative is not adequate if he is subject to a defense to which other class
members are not subject or could not prove the elements of the class claim for reasons
particular to him. CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724–25
(7th Cir. 2011). Defendant alleges plaintiff is an inadequate class representative because
he “is not seeking any monetary or injunctive relief.” (Def.’s Opp’n to Class Cert. (dkt.
#79) 39.) To support its argument, defendant points to Perovich v. Humphrey, No. 97 C
3209, 1997 WL 674975, at *6 (N.D. Ill. Oct. 28, 1997). Perovich found plaintiffs would
not adequately represent the proposed class for three reasons: (1) the plaintiffs claimed no
monetary interest in the claim nor any monetary injury arising from the claim; (2) the
plaintiffs had not paid for or possessed the product “at the heart” of the lawsuit; and (3) the
plaintiffs brought the lawsuit “based only ‘on principle.’” Id.
While the plaintiff in this case did admit that he is not personally seeking monetary
damages, he is still not analogous to the individual plaintiffs in Perovich. Here, plaintiff has
paid for and possessed the products involved in this litigation, and plaintiff is not bringing

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this lawsuit on principle alone. Plaintiff has alleged specific injuries that were sufficient to
survive a motion to dismiss. Blitz, 317 F. Supp. 3d at 1052–56. Given these differences
between this plaintiff and those is Perovich, defendant’s argument fails.
Defendant also argues that plaintiff’s class counsel cannot adequately represent the
proposed class. Defendant’s inadequacy argument focuses on the inappropriate conduct
of one attorney from one of the eight law firms listed in plaintiff’s brief. 5 (Def.’s Opp’n to
Class Cert. (dkt. #79) 41–42; Pl.’s Class Cert. Br. (dkt. #73) 12.) While the court has
had concerns about the performance of putative class counsel to date in this case, those
concerns could be addressed by requiring the retention of an experienced, local counsel. 6
Moreover, misconduct by a single attorney in a past litigation is not enough to render
plaintiff’s class counsel inadequate, particularly given their apparent experience in class
actions generally. (Richman Law Group Resume (dkt. #63-1) 1–4.)
Accordingly, the Rule 23(a) requirements are met here.

II. Rule 23(b)(3) Requirements
A. Predominance
The “predominance inquiry tests whether the proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521

In fairness, while the California court expressly found that only this one particular attorney had
acted in an unethical manner, defendants correctly note that the court found that “perhaps the
entire leadership team” for plaintiffs had acted in bad faith. (Def.’s Opp’n to Class Cert. (dkt. #79)
42.)

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In light of the fact that the court is denying class certification, it will not require the retention of
local counsel, although plaintiff’s counsel may want to give that option serious consideration if this
case were to proceed to trial.

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U.S. 591, 623 (1997).

Predominance is not satisfied if “individual questions . . .

overwhelm questions common to the class.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,
568 U.S. 455, 468 (2013).

Plaintiff’s proposed class falters under this test because

individual questions of material inducement overwhelm the questions common to the class,
at least as Wisconsin law currently stands.
In an uninvited letter filed with the court, plaintiff presented a last-ditch effort to
save its motion for class certification. (Pl.’s Letter Br. (dkt. #112) 1–5.) Plaintiff insists
that because “reasonable reliance” is not an element of a misrepresentation claim under
the WDTPA, plaintiff is not burdened with showing any reliance to establish liability, and
thus class certification is appropriate on the issue of whether Monsanto intentionally made
a misleading assertion regarding Glyphosate. (Id. at 1.) However, this argument highlights
plaintiff’s consistent misunderstanding of what is now settled law under the WDTPA.
Certainly, plaintiff’s argument would appear to have merit based solely on the
language of the WDTPA, but this court is not writing on a tabula rasa. Indeed, if the court
were applying only a plain reading of the WDTPA, plaintiff’s proposed class might well
proceed, but the Wisconsin Supreme Court’s decision in Novell requires a claim under
§ 100.18 of the WDTPA demonstrate that the misrepresentation must have “materially
induced (caused) a pecuniary loss to the plaintiff.” Novell, 309 Wis. 2d 132, 151 (citing
K&S Tool and Die Corp. v. Perfection Mach. Sales, Inc., 2007 WI 70, 301 Wis. 2d 109, 122,
732 N.W. 792); see also Mark R. Hinkston, Protecting Consumers in the Modern Age:
Wisconsin’s Deceptive Trade Practices Act, 81 Wis. Law. 14, 65 (Oct. 2008) (noting that the
third element under Wis. Stat. § 100.18 is “whether a representation caused the plaintiff’s

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pecuniary loss” (emphasis added)). In other words, the plaintiff would have to show that
each member of the class was materially induced by (i.e., relied upon) the alleged
misrepresentation. 7

Under Novell, therefore, individual questions of whether the

Glyphosate label materially induced each member of plaintiff’s proposed class overwhelm
questions common to the class and prevent class certification.
Plaintiff attempts to overcome the need for individual inquiry into material
inducement by pointing to California’s consumer protection laws. (Pl.’s Letter Br. (dkt.
#112) 3–4.) Unlike Wisconsin law, however, California’s consumer protection law directs
courts to apply an objective “reasonable person” standard to misrepresentation claims. (See
id. (citing Rikos v. P&G, 799 F.3d 497 (6th Cir. 2015); Steroid Hormone Product Cases, 181
Cal. App. 4th 145 (2010)).) That standard is more amenable to potential class actions
because it shifts the inquiry from whether a misrepresentation induced an individual to
whether the statement would have induced a reasonable consumer. Because a claim under
the WDTPA turns on whether the misrepresentation materially induced each individual
Wisconsin consumer -- and not whether it would have materially induced a reasonable
consumer -- plaintiff’s argument cannot prevail. 8

Whether the plaintiff reasonably relied on the misrepresentation is a factor that the jury can
consider, but is not the ultimate question. Novell, 309 Wis. 2d at 143–44.

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While it is at least arguably unfortunate that plaintiff cannot proceed under Wisconsin’s consumer
protection statute to protect consumers as a whole, the Wisconsin Department of Agriculture,
Trade and Consumer Protection (“DATCP”) expressly retains the authority to seek broader,
equitable relief for consumers under Wis. Stat. § 100.18(11)(a) (2015–16).
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B. Superiority
For the same reason that common questions do not predominate, superiority -- the
final requirement -- is not met. Here, the court must consider whether “a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3). Relevant considerations include: (1) the class members’ interests
in individually litigating their claims; (2) the extent and nature of competing litigation;
(3) the desirability of concentrating the litigation in the particular forum; and (4) the likely
difficulties of managing a class action. Id. Ultimately, the case must be one “in which a
class action would achieve economies of time, effort, and expense, and promote uniformity
of decision as to persons similarly situated, without sacrificing procedural fairness or
bringing about other undesirable results.” Amchem Prods., 521 U.S. at 615 (quoting Fed.
R. Civ. P. 23(b)(3) advisory committee note to the 1966 Amendment).

Because a

consumer’s reliance on the Roundup label must be determined on an individual basis, a
class action is not a superior method for resolving this dispute.

III. Plaintiff’s Motion to Amend Schedule
Finally, plaintiff recently filed an unopposed motion to stay deadlines for expert
disclosures and summary judgment, pending the issuance of this opinion. (Pl.’s Mot. to
Amend. Schedule (dkt. #116) 1.) In light of the court’s denial of class certification,
plaintiff’s motion will be granted in part. Plaintiff may have until January 24, 2019, to
disclose his remaining experts. Defendant may have until February 24 to disclose its
remaining experts. The discovery cutoff will now be March 1. Dispositive motions will be
due March 8. All other deadlines remain unchanged.

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ORDER
IT IS ORDERED that:
1) Plaintiff’s motion to certify a class under Rule 23 (dkt. #72) is denied.
2) In light of the court’s lack of consideration or reliance on the Butler Report (dkt.
#88) in reaching its opinion on class certification, plaintiff’s motion for leave to
file the Maronick Report (dkt. #97) is DENIED AS MOOT.
3) Plaintiff’s motion for extension of time (dkt. #116) is GRANTED IN PART and
DENIED IN PART as set forth above. Additionally, the court will schedule a
telephonic status conference with Judge Crocker.
Entered this 2nd day of January, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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