Angela M. Spiveyiframe.dri.org/DRI/course-materials/2017-ClassActions/pdfs/07_Spivey.pdf301 F.R.D....

Ascertainability

Angela M. Spivey

McGuireWoods LLP

1230 Peachtree Street NE Atlanta, GA 30309 (404) 443-5720

Angela M. Spivey is managing partner of the McGuireWoods LLP Atlanta office. She defends and counsels food companies on a host of issues, including implementation of recalls, defense of widespread international outbreaks and resulting civil litigation, defense of corporations and individuals in OCI criminal investigations, and regulatory oversight and compliance. Ms. Spivey is a national speaker at various food industry group conferences and has first-chair trial experience before state and federal courts on matters ranging from product liability, personal injury, contract disputes, and business torts.

Ascertainability ■ Spivey ■ 3

Ascertainability

I. Introduction ...................................................................................................................................................5 II. Briseño v. Conagra Foods, Inc., U.S. Court of Appeals for the Ninth Circuit. Appellant’s

Opening Brief .................................................................................................................................................6 III. Briseño v. Conagra Foods, Inc., U.S. Court of Appeals for the Ninth Circuit. Answering

Brief of Plaintiffs-Appellees .........................................................................................................................81 IV. Briseño v. Conagra Foods, Inc., U.S. Court of Appeals for the Ninth Circuit. Appellant’s

Reply Brief ..................................................................................................................................................171 V. Briseño v. Conagra Foods, Inc., U.S. Court of Appeals for the Ninth Circuit. Opinion ..........................209

Table of Contents


Ascertainability

I. IntroductionThe federal courts of appeals have adopted different approaches regarding whether and to what

extent a class must be ascertainable to be certified. The following materials provide context for an overview of the current state of the law on ascertainability and practical suggestions for defeating class certification under the various standards.

6 ■ Class Actions ■ July 2017

II. Briseño v. Conagra Foods, Inc., U.S. Court of Appeals for the Ninth Circuit. Appellant’s Opening BriefNo. 15-55727

In the

United States Court of Appeals For the Ninth Circuit

__________________

ROBERT BRISEÑO, Plaintiff-Appellee,

v.

CONAGRA FOODS, INC., Defendant-Appellant. _________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

(The Honorable Margaret M. Morrow) Case No. 2:11-cv-05379 __________________

APPELLANT’S OPENING BRIEF__________________

A. Brooks GreshamLaura E. Coombe MCGUIREWOODS LLP1800 Century Park East, 8th Floor Los Angeles, CA 90067 Telephone: (310) 315-8291

Angela M. Spivey MCGUIREWOODS LLP1230 Peachtree St, NE, Suite 2100 Atlanta, GA 30309 Telephone: (404) 443-5720

R. Trent Taylor MCGUIREWOODS LLPGateway Plaza 800 E. Canal St. Richmond, VA 23219 Telephone: (804) 775-1182

E. Rebecca Gantt MCGUIREWOODS LLPWorld Trade Center 101 W. Main St., Suite 9000 Norfolk, VA 23510 Telephone: (757) 640-3731

Counsel for Defendant-Appellant ConAgra Foods, Inc.

Case: 15-55727, 09/21/2015, ID: 9691076, DktEntry: 13, Page 1 of 75

Ascertainability ■ Spivey ■ 7 -i-

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Defendant-Appellant

ConAgra Foods, Inc., hereby states, by and through counsel, that it does not have a

parent corporation and that no publicly held corporation owns 10% or more of its

stock.

Dated: September 21, 2015 Respectfully submitted,

MCGUIREWOODS LLP

/s/ A. Brooks Gresham A. Brooks Gresham



8 ■ Class Actions ■ July 2017 -ii-

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i STATEMENT WITH RESPECT TO ORAL ARGUMENT ................................ xii INTRODUCTION .................................................................................................... 1 JURISDICTIONAL STATEMENT ......................................................................... 4 STATEMENT OF THE ISSUES.............................................................................. 5 STATEMENT OF THE CASE ................................................................................. 5 SUMMARY OF THE ARGUMENT ....................................................................... 8 ARGUMENT .......................................................................................................... 10 I. STANDARD OF REVIEW .......................................................................... 11 II. THE DISTRICT COURT ERRONEOUSLY HELD THAT THE

PUTATIVE CLASSES ARE ASCERTAINABLE ..................................... 12 A. Ascertainability is a threshold requirement for certification ............. 13 B. A class is only ascertainable where its members can be

determined in an objectively verifiable and administratively feasible manner ................................................................................... 14

C. The district court abused its discretion by relying solely on the proffered class definition to hold that the classes’ members were ascertainable .............................................................................. 18

III. THE NAMED REPRESENTATIVES DO NOT HAVE CLAIMS AND DEFENSES THAT ARE TYPICAL OF THOSE OF THE PUTATIVE CLASS MEMBERS ................................................................. 23

IV. THE DISTRICT COURT ERRONEOUSLY HELD THAT COMMON QUESTIONS PREDOMINATE OVER INDIVIDUAL ONES ............................................................................................................ 27 A. Individual issues predominate with respect to materiality

because there is no reliable classwide method of proof ..................... 28 1. Plaintiffs must show they can prove materiality to avoid

individualized issues of reliance and causation ....................... 29 2. The district court erroneously relied on surveys that do

not support a finding of classwide materiality ......................... 31



TABLE OF CONTENTS(continued)

Page

-iii-

a. Plaintiffs’ proffered method of proving materiality was not tailored to their theory that consumers factor a belief that the Wesson Oil natural label means the absence of GMOs into their purchasing decision .......................................................................... 32

b. The district court erred in finding it appropriate to apply a classwide presumption of materiality when at least one-third of a proposed class does not find the label claim material .................................................. 38

3. The district court did not consider ConAgra’s own superior rebuttal evidence which shows that the term ‘natural’ holds so many different meanings for different consumers that materiality cannot be shown ........................... 41

B. Individual issues predominate with respect to damages .................... 45 1. Comcast requires a damages model linked to Plaintiffs’

theory of liability ...................................................................... 46 2. The district court twice rejected one of the models that

formed the basis of the hybrid model ...................................... 47 3. The district court erroneously accepted a “hybrid” model

that was incapable of reliably or persuasively calculating classwide damages ................................................................... 48

V. A CLASS ACTION IS NOT A SUPERIOR VEHICLE FOR ADJUDICATING PLAINTIFFS’ CLAIMS BECAUSE IT IS UNMANAGEABLE..................................................................................... 57

CONCLUSION ....................................................................................................... 59 STATEMENT OF RELATED CASES .................................................................. 59 CERTIFICATE OF COMPLIANCE ...................................................................... 61 CERTIFICATE OF SERVICE ............................................................................... 62


10 ■ Class Actions ■ July 2017 -iv-

TABLE OF AUTHORITIES

Page(s)

Cases

Algarin v. Maybelline, LLC,300 F.R.D. 444 (S.D. Cal. 2014) .................................................................. 16, 42

Allen v. Hyland’s, Inc.,300 F.R.D. 643 (C.D. Cal. 2014) ........................................................................ 44

Amchem Products, Inc. v. Windsor,521 U.S. 591 (1997) ................................................................................ 27, 28, 32

Astiana v. Ben & Jerry’s Homemade, Inc.,No. C 10-4387-PJH, 2014 WL 60097 (N.D. Cal. Jan. 7, 2014) ................... 13, 16

Astiana v. Kashi Co.,291 F.R.D. 493 (S.D. Cal. 2013) .................................................................. 42, 44

Bakalar v. Vavra,237 F.R.D. 59 (S.D.N.Y. 2006) .......................................................................... 20

Beck v. Maximus, Inc.,457 F.3d 291 (3d Cir. 2006) ............................................................................... 26

Berger v. Home Depot USA, Inc.,741 F.3d 1061 (9th Cir. 2014) ............................................................................ 13

Brazil v. Dole Packaged Foods, LLC,No. 12-CV-01831-LHK, 2014 WL 5794873(N.D. Cal. Nov. 6, 2014) ..................................................................................... 48

Bruton v. Gerber Products Co.,No. 12-CV-02412-LHK, 2014 WL 2860995(N.D. Cal. June 23, 2014) ............................................................................. 16, 21

Byrd v. Aaron’s Inc.,784 F.3d 154 (3d Cir. 2015) ............................................................. 13, 14, 15, 17

Caro v. Procter & Gamble Co.,18 Cal. App. 4th 644 (1993) ......................................................................... 30, 41


Ascertainability ■ Spivey ■ 11 -v-

Carrera v. Bayer Corp.,727 F.3d 300 (3d Cir. 2013) ......................................................................... 20, 21

Clausen v. M/V New Carissa,339 F.3d 1049 (9th Cir. 2003) ............................................................................ 56

Comcast v. Behrend,133 S. Ct. 1426 (2013) .................................................................................passim

Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579 (1993) ...................................................................................... 50, 51

Ellis v. Costco Wholesale Corp.,657 F.3d 970 (9th Cir. 2011) ............................................................ 11, 12, 19, 51

EQT Production Co. v. Adair, 764 F.3d 347, 359 (4th Cir. 2014) ............. 15, 20, 32

Exxon Corp. v. Texas Motor Exchange of Houston, Inc.,628 F.2d 500 (5th Cir. 1980) .............................................................................. 34

Fairbanks v. Farmers New World Life Ins. Co.,197 Cal. App. 4th 544 (2011) ............................................................................. 40

Fancaster, Inc. v. Comcast Corp.,832 F. Supp. 2d 380 (D.N.J. 2011) ..................................................................... 35

Forrand v. Federal Express Corp.,No. CV 08-1360-DSF, 2013 WL 1793951(C.D. Cal. Apr. 25, 2013) ................................................................................... 32

Fractus, S.A. v. Samsung,Civ. No. 6:09-cv-203-LED-JDL, 2011 WL 7563820(E.D. Tex. Apr. 29, 2011) ................................................................................... 35

Garcia v. Medved Chevrolet, Inc.,263 P.3d 92 (Colo. 2011) .................................................................................... 30

Gartin v. S&M NuTec LLC,245 F.R.D. 429 (C.D. Cal. 2007) ........................................................................ 57

General Telephone Co. of Southwest v. Falcon,457 U.S. 147 (1982) ............................................................................................ 17


12 ■ Class Actions ■ July 2017 -vi-

Gianino v. Alacer Corp.,846 F. Supp. 2d 1096 (C.D. Cal. 2012) .............................................................. 58

Guido v. L’Oreal USA, Inc.,Nos. 2:11-CV-01067 & -05465-CAS, 2014 WL 6603730(C.D. Cal. Jul. 24, 2014) ..................................................................................... 54

Gunnells v. Healthplan Services, Inc.,348 F.3d 417 (4th Cir. 2003) .............................................................................. 58

Hanon v. Dataproducts Corp.,976 F.2d 497 (9th Cir.1992) ............................................................................... 24

Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc.,82 F.3d 1533 (10th Cir. 1996) ............................................................................ 34

Henry Schein, Inc. v. Stromboe,102 S.W.3d 675 (Tex. 2003) .............................................................................. 40

In re Blood Reagents Antitrust Litig.,783 F.3d 183 (3d Cir. 2015) ............................................................................... 51

In re Celexa & Lexapro Marketing & Sales Practices Litigation,291 F.R.D. 13 (D. Mass. 2013) ........................................................................... 39

In re Clorox Consumer Litigation,301 F.R.D. 436 (N.D. Cal. 2014) ........................................................................ 16

In re Countrywide Financial Corp. Mortgage Marketing & Sales Practices Litigation, Nos. 08md1988-DMS, 2011 WL 6325877 (S.D. Cal. Dec. 16, 2011) .............................................................................. 40, 41

In re NJOY, Inc. Consumer Class Action Litigation,No. CV-14-00428-MMM, 2015 WL 4881091(C.D. Cal. Aug. 14, 2015) ................................................................................... 54

In re POM Wonderful LLC Marketing & Sales Practices Litigation,ML 10-02199-DDP, 2014 WL 1225184(C.D. Cal. Mar. 25, 2014) ............................................................................. 16, 21

In re Tobacco II Cases,207 P.3d 20 (Cal. 2009) ...................................................................................... 29


Ascertainability ■ Spivey ■ 13 -vii-

In re Vioxx Class Cases,180 Cal. App. 4th 116 (2009) ....................................................................... 39, 40

In re WellPoint, Inc. Out-of-Network UCR Rates Litigation,No. MDL 09-2074-PSG, 2014 WL 6888549(C.D. Cal. Sept. 3, 2014) ..................................................................................... 16

Ivie v. Kraft Foods Global, Inc.,No. C-12-02554-RMW, 2013 WL 685372(N.D. Cal. Feb. 25, 2013) ................................................................................... 43

Jimenez v. Allstate Insurance Co.,765 F.3d 1161 (9th Cir. 2014) ............................................................................ 11

Johnson v. Harley-Davidson Motor Co. Group, LLC,285 F.R.D. 573 (E.D. Cal. 2012) ........................................................................ 41

Jones v. ConAgra Foods, Inc.,No. C 12-01633-CRB, 2014 WL 2702726(N.D. Cal. June 13, 2014) ................................................................ 16, 21, 43, 44

Karhu v. Vital Pharmaceuticals, Inc.,--- F. App’x ---, 2015 WL 3560722 (11th Cir. June 9, 2015) ............................ 16

Khoday v. Symantec Corp.,Civil No. 11-180, 2014 WL 1281600 (D. Minn. Mar. 13, 2014) ....................... 54

Koos v. First Nat’l Bank,496 F.2d 1162 (7th Cir. 1974) ............................................................................ 25

Kosta v. Del Monte Foods, Inc.,No. 12-CV-1722 YGR, 2015 WL 4593175(N.D. Cal. July 30, 2015) .............................................................................. 32, 33

Leyva v. Medline Industries Inc.,716 F.3d 510 (9th Cir. 2013) .............................................................................. 45

Ludlow v. BP, P.L.C.,--- F.3d ---, 2015 WL 5235010 (5th Cir. Sept. 8, 2015) ..................................... 51

Lust v. Merrell Dow Pharmaceuticals, Inc.,89 F.3d 594 (9th Cir. 1996) ................................................................................ 52


14 ■ Class Actions ■ July 2017 -viii-

Marcus v. BMW of North America, LLC,687 F.3d 583 (3d Cir. 2012) ......................................................................... 14, 22

Martin v. Pacific Parking Systems Inc., 583 F. App’x 803(9th Cir. 2014) ..............................................................................................passim

Massachusetts Mutual Life Insurance Co. v. Superior Court,97 Cal. App. 4th 1282 (2002) ............................................................................. 29

Mevorah v. Wells Fargo Home Mortgage(In re Wells Fargo Home Mortgage), 571 F.3d 953 (9th Cir. 2009) ................. 28

Mullins v. Direct Digital,795 F.3d 654 (7th Cir. 2015) .................................................................. 15, 20, 58

Oracle America, Inc. v. Google Inc.,No. 10-CV-03561, 2012 WL 850705 (N.D. Cal. Mar. 13, 2012) ...................... 54

Oshana v. Coca-Cola Co.,No. 04 C 3596, 2005 WL 1661999 (N.D. Ill. July 13, 2005) ............................. 39

Parra v. Bashas’, Inc.,536 F.3d 975 (9th Cir. 2008) .............................................................................. 12

Pizza Hut, Inc. v. Papa John’s Int’l,227 F.3d 489 (5th Cir. 2000) .............................................................................. 36

Prism Technologies LLC v. AT&T Mobility, LLC,Case Nos. 8:12CV122-126, LLC, 2014 U.S. Dist. LEXIS 132619 (D. Neb. Sept. 22, 2014) ..................................................................................... 53

Randolph v. J.M. Smucker Co., 303 F.R.D. 679(S.D. Fla. 2014). ............................................................................................ 44, 56

Red v. Kraft Foods, Inc.,No. CV-10-1028-GW, 2012 WL 8019257 (C.D. Cal. Apr. 12, 2012) ................................................................................... 23

Rikos v. Procter & Gamble Co.,--- F.3d ---, 2015 WL 4978712 (6th Cir. Aug. 20, 2015) ................................... 13


Ascertainability ■ Spivey ■ 15 -ix-

Rojas v. General Mills, Inc.,No. 12-cv-05099-WHO, 2013 WL 5568389 (N.D. Cal. Oct. 9, 2013) ...................................................................................... 43

Rubio v. Capital One Bank,613 F.3d 1195 (9th Cir. 2010) ............................................................................ 43

Sethavanish v. ZonePerfect Nutrition Co.,No. 12-2907-SC, 2014 WL 580696(N.D. Cal. Feb. 13, 2014) ................................................................. 16, 20, 21, 23

Stearns v. Ticketmaster Corp.,655 F.3d 1013 (9th Cir. 2011) .....................................................................passim

Steroid Hormone Product Cases, 104 Cal. Rptr. 3d 329(Cal. Ct. App. 2010) ............................................................................................ 30

Strawn v. Farmers Ins. Co. of Oregon,258 P.3d 1199 (Or. 2011) ................................................................................... 40

THOIP v. Walt Disney Co.,690 F. Supp. 2d 218 (S.D.N.Y. 2010) ................................................................ 35

Thurston v. Bear Naked, Inc.,No. 3:11-cv-02890-H (BGS), 2013 WL 5664985(S.D. Cal. July 30, 2013) .................................................................................... 44

Universal City Studios, Inc. v. Nintendo Co.,746 F.2d 112 (2d Cir. 1984) ............................................................................... 34

Vinole v. Countrywide Home Loans, Inc.,571 F.3d 935 (9th Cir. 2009) .............................................................................. 28

Wal-Mart Stores, Inc. v. Dukes,131 S. Ct. 2541 (2011) .................................................................................passim

Water Pik, Inc. v. Med-Systems, Inc.,726 F.3d 1136 (10th Cir. 2013) .......................................................................... 35

Webb v. Carter’s, Inc.,272 F.R.D. 489 (C.D. Cal. 2011) ........................................................................ 30


16 ■ Class Actions ■ July 2017 -x-

Wells Fargo & Co. v. WhenU.com, Inc.,293 F. Supp. 2d 734 (E.D. Mich. 2003) ............................................................. 35

Wiener v. Dannon Co.,255 F.R.D. 658 (C.D. Cal. 2009) ........................................................................ 25

Xavier v. Philip Morris USA, Inc.,787 F. Supp. 2d 1075 (N.D. Cal. 2011) ........................................................ 14, 18

Yokoyama v. Midland National Life Insurance Co.,594 F.3d 1087 (9th Cir. 2010) ............................................................................ 11

Zinser v. Accufix Research Institute, Inc.,253 F.3d 1180 (9th Cir. 2001) ............................................................................ 57

Statutes

28 U.S.C. § 1292(e) ................................................................................................... 4

28 U.S.C. § 1332(d) ................................................................................................... 4

Rules

Ninth Cir. R. 28-2.6 ................................................................................................. 59

Fed. R. App. P. 5 ........................................................................................................ 4

Fed. R Civ. P. 23 ...............................................................................................passim

Fed. R Civ. P. 23(a) .......................................................................................... 7, 8, 10

Fed. R Civ. P. 23(a)(3) ................................................................................. 23, 25, 26

Fed. R Civ. P. 23(b)(2) ....................................................................................... 6, 7, 8

Fed. R Civ. P. 23(b)(3) ......................................................................................passim

Fed. R. Civ. P. 23(b)(3)(D) ...................................................................................... 57

Fed. R. Civ. P 23(f) ............................................................................................ 1, 4, 7

Fed. R. Evid. 702 ............................................................................................... 50, 51


Ascertainability ■ Spivey ■ 17 -xi-

Other Authorities

7A Charles A. Wright et al., Federal Practice & Procedure § 1760 (3d ed. 2005 & Supp. 2015) .......................................................................... 13, 17

FDA, DRAFT Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering (Jan. 2001), available at http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm059098.htm (lastvisited Sept. 18, 2015) ........................................................................................ 43

Federal Judicial Center, Reference Manual on Scientific Evidence(3d ed. 2011) ....................................................................................................... 35

1 Joseph M. McLaughlin, McLaughlin on Class Actions § 4.2(11th ed. 2014) .................................................................................................... 16

Random House Webster’s College Dictionary 245 (2000) ..................................... 13

1 William B. Rubenstein, Newberg on Class Actions § 3.3(5th ed. 2015) ...................................................................................................... 17


18 ■ Class Actions ■ July 2017 -xii-

STATEMENT WITH RESPECT TO ORAL ARGUMENT

Pursuant to Federal Rule of Appellate Procedure 34(a), Defendant-Appellant

states that oral argument should be heard in this case. Argument would

significantly aid this Court’s decisional process because of the complex and

important issues this case presents.



INTRODUCTION

The Plaintiffs in this case are pursuing numerous state law claims on behalf

of classes of purchasers of certain varieties of Wesson brand cooking oils

manufactured by Defendant ConAgra Foods, Inc. (“ConAgra”). These cooking

oils contain the label statement “100% Natural,” and Plaintiffs contend this label is

misleading for one reason: the products are allegedly derived from genetically

modified organisms (“GMOs”). After initially denying certification, the district

court below certified damages classes of consumers in eleven different states. This

Court granted ConAgra’s petition for immediate review of this decision pursuant to

Federal Rule of Civil Procedure 23(f).

As ConAgra highlighted in that petition, the district court’s incorrect

application of the law governing class certification implicates several important

issues that continue to trouble district courts adjudicating the flood of food labeling

class actions in this Circuit.1 In many of these cases, the plaintiffs have been

unable to certify the proposed classes because their sweeping claims are inherently

incompatible with the strictures of Rule 23. This case, for example, involves all

purchasers of Wesson Oil since 2007 in eleven states, and attempts to prove that a

1 At least three other actions currently pending in this Court raise similar issues. See Jones v. ConAgra Foods, Inc. (No. 14-16327); Brazil v. Dole Packaged Foods, LLC (No. 14-17480); Bruton v. Gerber Products Co. (No. 15-15174).



word susceptible to a host of different meanings (“natural”) is misleading based on

one highly specific interpretation of that word (“no GMOs”).

Plaintiffs in these cases struggle to show that the classes they propose are

sufficiently cohesive to be good candidates for litigation as a class action. This

case presents claims that are uniquely poor candidates for certification. The

“100% Natural” label is very different from other labels whose meaning is facially

clear (like “no sugar added”) or well-defined by regulatory authorities (like

“organic”). Not only do Plaintiffs challenge a label whose variable meaning is

largely in the eye of the beholder, but they seek to attribute a precise meaning to

the word “natural.” Their claims depend on class members interpreting that word

to mean the absence of GMOs, an issue itself subject to debate and variation over

the course of the eight or more years covered by these class actions.

Thus unsurprisingly, Plaintiffs have failed twice to muster sufficient proof

that they could show the natural label was material or that damages could be

computed on a classwide basis, so that common issues would predominate over

individual ones. The district court rightly rejected their efforts the first time, but

wrongly allowed certification the second time even though Plaintiffs had added

very little to their first set of arguments and evidence. As to the materiality of the

natural label, Plaintiffs relied largely on third party generalized surveys that were

not tied to consumers of Wesson Oil. They also failed to present a single viable



method for demonstrating that class members factor a belief that the Wesson Oil

natural label means the absence of GMOs into their purchasing decisions. As to

damages, Plaintiffs first attempted to ignore the requirement of the Supreme

Court’s recent decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013), that a

damages model be tied to their specific theory of liability. When that was

unsuccessful, they hastily crafted an unreliable and untested “hybrid damages

model” that attempted to cure the deficiencies of two other models by simply

multiplying together their outputs.

Although Plaintiffs’ claims are uniquely problematic among food labeling

class actions, this case also raises the broadly applicable issue of ascertainability –

whether class members can be easily and reliably identified. Many courts have

required plaintiffs to propose both a clear definition and to show the definition can

be implemented in an administratively feasible manner, but the district court here

relied only on the class definition. Yet administrative feasibility is an important

procedural safeguard that protects the viability of the class action mechanism and

the due process rights of absent class members and defendants. While this Court

has already adopted this requirement in an unpublished decision, it should,

consistent with a number of its sister Circuits, hold that Plaintiffs must propose a

workable method of identification.



On these and other fronts, Plaintiffs have been entirely unable to propose a

suitable way to proceed as a class. The district court should have denied Plaintiffs’

amended motion for class certification, just as it did their original motion. Instead,

it allowed them to proceed on flimsy and generalized evidence, a result that if

affirmed, would effectively lower the bar for certification under Rule 23 in this

Circuit.

JURISDICTIONAL STATEMENT

The district court had subject matter jurisdiction under 28 U.S.C. § 1332(d)

because this is a consolidated class action in which (1) the matter in controversy

exceeds the sum or value of $5,000,000, (2) there are over 100 class members, and

(3) at least one member of the putative classes is a citizen of a state different from

the defendant. ER05868-69, ¶ 7. Defendant ConAgra is incorporated in Delaware

and headquartered in Nebraska. ER05883, ¶ 32. Plaintiffs are residents of eleven

different states: California, Colorado, Florida, Illinois, Indiana, Nebraska, New

York, Ohio, Oregon, South Dakota, and Texas. ER00139-140.

This Court has appellate jurisdiction under 28 U.S.C. § 1292(e). The district

court entered an order certifying the class in part on February 23, 2015. ER00136-

275. Pursuant to Federal Rule of Civil Procedure 23(f) and Federal Rule of

Appellate Procedure 5, ConAgra timely filed a petition for permission to appeal on



March 9, 2015. No. 15-80040, ECF No. 1 (9th Cir.). On May 13, 2015, this Court

granted the petition. Id. ECF No. 3.

STATEMENT OF THE ISSUES

1. Whether a class is ascertainable when there is no evidence that members’ identification would be administratively feasible.

2. Whether class representatives are typical when they and class members are each subject to unique defenses.

3. Whether the district court erred by failing to require persuasive evidence regarding materiality that specifically linked the class and its claims, when materiality must be shown to predominate on a classwide basis.

4. Whether the district court erred by relying on an untested “hybrid” damages method that failed to satisfy Comcast Corp. v. Behrend.

5. Whether a class action is superior where it would require eleven separate trials and where Plaintiffs have not shown how they will identify class members.

STATEMENT OF THE CASE

This case is a consolidation of putative class actions that consumers in

eleven different states brought against ConAgra. ConAgra manufactures and

markets numerous familiar and trusted food product brands sold across the United

States, such as Healthy Choice, Orville Redenbacher’s, Swiss Miss, and the subject

of this case, Wesson brand cooking oils.

Plaintiffs allege that they purchased Wesson Vegetable Oil, Canola Oil,

Corn Oil, and Best Blend beginning on June 27, 2007, and that such products were



labeled “100% Natural.” ER05866-883. Plaintiffs contend that this label is false

and misleading under the relevant state laws because the cooking oils contain

GMOs. Id. Plaintiff Robert Briseño first filed his class action complaint on behalf

of a nationwide class of consumers over four years ago. ER08343. Over the

following several months, the district court consolidated Briseño’s action with

seven other actions filed in federal district courts. ER00136 at n.2. Pursuant to

those consolidation orders, the district court directed Plaintiffs to file a

consolidated complaint, ER08348, which Plaintiffs did on January 12, 2012,

pursuing a nationwide class of consumers and fifteen state subclasses. Id.

After the district court granted in part ConAgra’s motion to dismiss,

ER08353, Plaintiffs filed their Second Consolidated Amended Complaint on

December 19, 2012, which remains the operative complaint in this action.

ER05862-5913. Plaintiffs sought certification of fifteen state classes and alleged

violations of each state’s consumer protection and other laws, including express

and implied warranty and unjust enrichment claims. ER05866. The district court

later allowed the dismissal of the named plaintiffs from four states, leaving the

eleven state classes now at issue. ER00137-138 & nn. 8, 12.

Plaintiffs filed their first class certification motion on May 5, 2014, seeking

certification of state classes pursuing both monetary damages pursuant to Rule

23(b)(3) and injunctive relief pursuant to Rule 23(b)(2). ER00276-316. On



August 1, 2014, the district court denied Plaintiffs’ motion without prejudice.

ER00040-105. It concluded that all Rule 23(a) requirements were met. ER00090.

However, it denied certification of the Rule 23(b)(2) injunctive relief classes

because it concluded that the named plaintiffs lacked standing as they had not

indicated that they would buy Wesson Oil in the future. ER00095. The district

court also denied certification of the Rule 23(b)(3) damages classes because

Plaintiffs did not show that common issues predominated over individual ones,

either as to reliance and causation or as to damages. ER00098, ER00101.

The district court allowed Plaintiffs a second opportunity to seek class

certification. ER00105. Plaintiffs filed an amended certification motion on

September 8, 2014. ER05228-5323. ConAgra opposed this motion and filed a

motion to strike various expert declarations that accompanied Plaintiffs’ amended

motion. ER05324-5407; ER08035-71. After holding a hearing, on February 23,

2015, the district court entered an order denying certification of the injunctive

relief classes but granting certification of the damages classes in eleven states

(although it denied certification of some individual state law claims). ER00136-

275. It also struck several of Plaintiffs’ expert opinions. Id.

ConAgra filed a petition for permission to appeal pursuant to Rule 23(f),

which this Court granted, and it now appeals the certification of the damages



classes. Plaintiffs did not appeal the district court’s refusal to certify classes

seeking injunctive relief pursuant to Rule 23(b)(2).

SUMMARY OF THE ARGUMENT

First, the district court required no proof that class members could be

ascertained in an administratively feasible manner. Though the district court

acknowledged that Plaintiffs had the burden to prove the administrative feasibility

of identifying class members according to their proposed class definition, Plaintiffs

offered no explanation for how they would identify class members. The district

court nonetheless held that because Plaintiffs’ proposed class definition was

“objective,” the class was per se ascertainable.

Second, although both the class representatives and class members are

subject to unique defenses, the district court held that the representatives satisfied

Rule 23(a)’s typicality requirement. But this decision was in the face of evidence

that (1) a substantial portion of class members likely did not understand the natural

label to mean the absence of GMOs and (2) class representatives’ claims of being

misled were inherently suspect in light of their own continued willingness to

purchase products containing GMOs.

Third, Plaintiffs failed to show that the natural label was a material factor in

class members’ purchases of Wesson Oils because they believed the label indicated

the absence of GMOs. Although the district court allowed Plaintiffs to rely upon a



“reasonable consumer” standard to show that common issues predominated,

Plaintiffs neglected to present evidence or methods to satisfy this standard. Even

after the district court gave them a second opportunity to present adequate

evidence, Plaintiffs relied heavily on generalized third-party surveys, none of

which specifically addressed Wesson Oils, and not one of which linked the

elements of Plaintiffs’ theory of liability together. Instead, these surveys reflect

the general disagreement among consumers as to the meaning of natural claims.

Fourth, the district court allowed similarly threadbare proof in the context of

Plaintiffs’ damages model, which the Supreme Court held in Comcast must be

closely linked to Plaintiffs’ theory of liability. At the last minute, one of

Plaintiffs’ experts opined that she could cobble together two divergent models to

satisfy the requirement that Plaintiffs isolate damages to their belief in the absence

of GMOs. But it is undisputed that the expert did not show that she had ever used

this “hybrid damages model” before, or that any other expert in her field had. And

with good reason – this hybrid damages model does not comply with Comcast

because it is unable to isolate the price premium associated with the believed

absence of GMOs.

Fifth, Plaintiffs did not demonstrate that the class action is a superior method

for adjudicating their claims. Because of differences in state law, the district court

would likely have to conduct eleven separate trials. Further, Plaintiffs have not



shown how or if they can identify class members, posing significant problems for

notice and damages allocation.

It is Plaintiffs’ burden to prove that all of the criteria for class certification

are met, and it is the district court’s duty to engage in a rigorous analysis of

Plaintiffs’ evidence and methods. Neither occurred here. Accordingly, the

decision to certify the damages classes was an abuse of discretion.

ARGUMENT

Because “Rule 23 does not set forth a mere pleading standard,” Plaintiffs

bear the burden of affirmatively demonstrating their compliance with Rule 23.

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). In order to maintain

a class action under Rule 23(b)(3), Plaintiffs must first satisfy the prerequisites set

forth in Rule 23(a) of numerosity, commonality, typicality, and adequacy. As

discussed below, Plaintiffs must also show that the putative class is ascertainable.

Finally, Plaintiffs must demonstrate that Rule 23(b)(3) itself is satisfied, which

imposes two additional criteria. The court must find that “questions of law or 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.” These two conditions are

known as predominance and superiority. In this appeal, ConAgra challenges the



district court’s findings regarding ascertainability, typicality, predominance, and

superiority.

I. Standard of review

This Court reviews a district court’s grant of class certification for abuse of

discretion. Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir.

2010). To the extent a ruling is premised on a finding of fact, that finding is

reviewed for clear error. Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1018 (9th

Cir. 2011). However, no deference is accorded to district courts when reviewing

questions of law which are subject to de novo review. Id. “‘The district court

abuses its discretion if its certification order is premised on impermissible legal

criteria.’” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011)

(citations omitted). Additionally, “[a] class certification order is an abuse of

discretion . . . if [the district court’s] application of the correct legal rule was based

on a ‘factual finding that was illogical, implausible, or without support in

inferences that may be drawn from facts in the record.’” Jimenez v. Allstate Ins.

Co., 765 F.3d 1161, 1164 (9th Cir. 2014) (citations omitted).



The district court also abuses its discretion where it “‘relies upon an

improper factor, omits consideration of a factor entitled to substantial weight, or

mulls the correct mix of factors but makes a clear error of judgment in assaying

them.’” Parra v. Bashas’, Inc., 536 F.3d 975, 977-78 (9th Cir. 2008) (citation

omitted). In conducting its “rigorous analysis” of whether the criteria for

certification are present, the district court may need to “probe behind the

pleadings” and may also be required to engage in inquiries that overlap with the

factual and legal merits of the plaintiffs’ underlying claims. Dukes, 131 S. Ct. at

2551-52. Reversible error occurs where the district court does not follow these

mandates. Ellis, 657 F.3d at 980.

II. The district court erroneously held that the putative classes are ascertainable.

Plaintiffs failed to meet their burden to demonstrate that the proposed class

was ascertainable, because they did not show that identifying class members was

administratively feasible. Although the district court correctly recognized that the

ability to accurately identify the members of a putative class in a feasible and

verifiable manner is a fundamental requirement, it failed to apply this threshold test

of ascertainability, holding that Plaintiffs had satisfied their burden simply by

offering an objective class definition. Id. Because Plaintiffs failed to put forward

any method of identifying class members, let alone propose a feasible and



verifiable method, the district court abused its discretion in concluding that the

putative classes are ascertainable.

A. Ascertainability is a threshold requirement for certification.

Although ascertainability is not explicitly mentioned in Rule 23, this Court

has referred to ascertainability as a “threshold” test for certification. Berger v.

Home Depot USA, Inc., 741 F.3d 1061, 1071 n.3 (9th Cir. 2014). See also 7A

Charles A. Wright et al., Federal Practice & Procedure § 1760 (3d ed. 2005 &

Supp. 2015) (noting that ascertainability is an “essential prerequisite” for

certification). The need to identify class members flows from the very concept of a

“class,” defined as “a number of persons or things regarded as belonging together

because of common attributes, qualities, or traits.” Random House Webster’s

College Dictionary 245 (2000).

Every Court of Appeals to consider the question has agreed that

ascertainability is a prerequisite for certification. See Byrd v. Aaron’s Inc., 784

F.3d 154, 161 n.4 (3d Cir. 2015) (collecting cases); Rikos v. Procter & Gamble

Co., --- F.3d ---, 2015 WL 4978712, at *22 (6th Cir. Aug. 20, 2015). Like the

court below, district courts throughout this circuit similarly require class action

plaintiffs to demonstrate ascertainability. See, e.g., Astiana v. Ben & Jerry’s

Homemade, Inc., No. C 10-4387-PJH, 2014 WL 60097, at *3 (N.D. Cal. Jan. 7,

2014).



In light of these authorities, it cannot be seriously disputed that

ascertainability is a prerequisite to certification, and Plaintiffs did not argue to the

contrary. It is simply common sense that to bring a class action, Plaintiffs must be

able to identify who the members of the class actually are. See Byrd, 784 F.3d at

162 (describing ascertainability as “grounded in the nature of the class-action

device itself”). As the Third Circuit has highlighted, “[t]he ascertainability

requirement serves several important objectives,” such as protecting both absent

class members and defendants. Marcus v. BMW of N. Am., LLC, 687 F.3d 583,

593 (3d Cir. 2012). In sum, “[w]ithout an objective, reliable way to ascertain class

membership, the class quickly would become unmanageable, and the preclusive

effect of final judgment would be easy to evade.” Xavier v. Philip Morris USA,

Inc., 787 F. Supp. 2d 1075, 1088-90 (N.D. Cal. 2011).

B. A class is only ascertainable where its members can be determined in an objectively verifiable and administratively feasible manner.

Despite this virtually uniform agreement that an ascertainability requirement

inheres in Rule 23, some disagreement has developed as to the precise meaning of

that requirement. Specifically, some Courts of Appeals differ as to whether

plaintiffs can satisfy their burden merely by coming up with a class definition that

is objective and clear on its face, or whether they must additionally demonstrate

that this method would be verifiable and administratively feasible in practice. See,



e.g., Mullins v. Direct Digital, 795 F.3d 654, 661-62 (7th Cir. 2015) (recognizing

disagreement and finding that a class was ascertainable because plaintiffs’ class

definition was neither vague nor based on subjective criteria).

This Court should follow the well-reasoned decisions of the Courts of

Appeals that require plaintiffs to show administrative feasibility. For example, the

Third Circuit recently stated that “[t]he ascertainability inquiry is two-fold,

requiring a plaintiff to 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.’” Byrd, 784 F.3d at 163 (citations omitted). In EQT Production Co. v.

Adair, the Fourth Circuit considered a class that was objectively defined but

remanded to the district court to reconsider ascertainability because the method of

identification—looking to land records—would likely be “a complicated and

individualized process.” 764 F.3d 347, 359 (4th Cir. 2014).

In fact, this Court has also required administrative feasibility, albeit in an

unpublished opinion. In Martin v. Pacific Parking Systems Inc., this Court held

that there was no ascertainability where membership turned on whether a putative

member had used a personal credit card for a parking transaction. 583 F. App’x

803 (9th Cir. 2014). It agreed with the district court that “there was no reasonably

efficient way to determine which of the hundreds of thousands of individuals who



used the parking lots” had used a personal card and that the plaintiff had “not

demonstrated that it would be administratively feasible” to make such a

determination. Id. at 804. See also Karhu v. Vital Pharm., Inc., --- F. App’x ---,

2015 WL 3560722 at *3 (11th Cir. June 9, 2015).

District courts both within and outside of this circuit have similarly held that

for a class to be ascertainable, the proposed class definition must be clear and

objective on its face and plaintiffs must have proposed a feasible and verifiable

method for applying that definition. Appeals from two such decisions are

currently pending in this Court. Bruton v. Gerber Prods. Co., No. 12-CV-02412-

LHK, 2014 WL 2860995, at *4 (N.D. Cal. June 23, 2014); Jones v. ConAgra

Foods, Inc., No. C 12-01633-CRB, 2014 WL 2702726, at *8-11 (N.D. Cal. June

13, 2014). 2

Treatises also endorse the administrative feasibility requirement. See 1

Joseph M. McLaughlin, McLaughlin on Class Actions § 4.2 (11th ed. 2014) (“[I]t

must be administratively feasible for the court to determine whether a given person

2 See also, e.g., In re WellPoint, Inc. Out-of-Network UCR Rates Litig., No. MDL 09-2074-PSG, 2014 WL 6888549, at *15 (C.D. Cal. Sept. 3, 2014); In re Clorox Consumer Litig., 301 F.R.D. 436, 441-42 (N.D. Cal. 2014); Algarin v. Maybelline, LLC, 300 F.R.D. 444, 455 (S.D. Cal. 2014); In re POM Wonderful LLC Mktg. & Sales Practices Litig., ML 10-02199-DDP, 2014 WL 1225184, at *6 (C.D. Cal. Mar. 25, 2014); Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC, 2014 WL 580696, at *4 (N.D. Cal. Feb. 13, 2014); Astiana, 2014 WL 60097, at *3, 2014).



fits within the class definition without effectively conducting a mini-trial of each

person’s claim.”); 7A Federal Practice & Procedure § 1760 (“[Ascertainability]

will not be deemed satisfied unless the class description is sufficiently definite so

that it is administratively feasible for the court to determine whether a particular

individual is a member.”); 1 William B. Rubenstein, Newberg on Class Actions §

3.3 (5th ed. 2015).

All of this authority is supported by sound reasoning. Most fundamentally,

it is difficult to see the value of a definition that is clear on paper but

inadministrable in practice. Such an approach contravenes the duty of a district

court at certification to “probe behind the pleadings” to determine if what plaintiffs

plead is actually so. Dukes, 131 S. Ct. at 2551-52. “[A] party cannot merely

provide assurances to the district court that it will later meet Rule 23’s

requirements.” Byrd, 784 F.3d at 164. Additionally, the “‘principal purpose’” of

the class action mechanism is “‘efficiency and economy of litigation.’” Gen. Tel.

Co. of Sw. v. Falcon, 457 U.S. 147, 159 (1982) (citation omitted). Administrative

feasibility serves this core function, and a class definition that is guaranteed to

swamp potential efficiencies should be rejected. Reliable identification also serves

res judicata, for if the “class wins, any relief must be reasonably limited to those

who are entitled to it, and if a plaintiff class loses, the preclusive effect of final



judgment must be enforced against all class members.” Xavier, 787 F. Supp. 2d at

1091 (emphasis omitted).

For these and numerous other reasons discussed by the relevant authorities,

this Court should affirm that in addition to proposing a suitable class definition,

Plaintiffs must propose an administratively feasible method of applying that

definition to identify the members of a class.

C. The district court abused its discretion by relying solely on the proffered class definition to hold that the classes’ members were ascertainable.

In this case, although the district court explicitly acknowledged that

administrative feasibility is required, it ultimately allowed Plaintiffs to rest solely

on their definition of the putative classes: “whether an individual purchased

Wesson Oils during the class period.” ER00182. It found that the class was

ascertainable despite Plaintiffs’ “inability to identify the specific members of a

putative class.” ER00183. Plaintiffs did not, in fact, propose any concrete method

for identifying class members.3 Instead, as the district court’s opinion reflects,

3 The closest they came was in their Reply in support of the original motion for class certification, where Plaintiffs briefly suggested a number of potential methods that would vary from consumer to consumer. ER6297-98. However, they did not propose any specific methods in connection with their amended class certification motion, and the district court neither relied on nor evaluated any such methods in either certification opinions. This court in Martin affirmed a denial of class certification on this exact basis – because the plaintiff “proposed no plan to



Plaintiffs’ amended motion for class certification rested solely on their “objective”

class definition. ER05256-57; ER05618-20. Because the district court did not

conduct any inquiry as to the feasibility of Plaintiffs’ class definition, it abused its

discretion by premising certification “‘on impermissible legal criteria.’” Ellis, 657

F.3d at 980 (citations omitted).

Although the district court did not rely upon any method for class member

identification, many of the authorities it cited discussed self-identification –

whether it is sufficient for putative class members to simply state that they

purchased the relevant product during the relevant timeframe, without

corroboration. ER00183-184. As these citations reflect, the underlying

disagreement regarding administrative feasibility often arises in cases involving

low-cost consumer goods. In such cases, class members would not have kept

receipts or other records of their purchases and defendants may not have records of

retail purchasers. The plaintiffs may propose that putative members can simply

state that they are members of a class, and the question of administrative feasibility

becomes conflated with whether a court is willing to accept putative members’

uncorroborated statements of what they remember as reliable proof of class

the district court for manageably determining which individuals are members.” 583 F. App’x at 804.



membership. Compare, e.g., Carrera v. Bayer Corp., 727 F.3d 300, 308-12 (3d

Cir. 2013), with Mullins, 795 F.3d at 662.

This Court need not engage in this debate here, because the district court did

not require any method of identification at all. Because the question of whether

Plaintiffs must show that member identification is feasible and verifiable is distinct

from which methods are in fact feasible and verifiable, this Court should reject the

misstep of the district court. It apparently failed to require administrative

feasibility because doing so would “effectively prohibit class actions involving low

priced consumer goods.” ER00184. Excusing Plaintiffs from providing an

acceptable identification method because a subsector of a portion of class actions

(consumer class actions involving low-priced goods) may be impacted throws the

baby out with the bathwater because many class actions do not involve such goods.

E.g., EQT Production, 764 F.3d at 358-60 (gas rights holders); see also Bakalar v.

Vavra, 237 F.R.D. 59, 64-66 (S.D.N.Y. 2006) (rights to valuable artwork).

Because administrative feasibility serves important purposes, it should be

addressed in every case.

Even within the subsector of low-cost consumer class actions, each case is

different and not all will be barred by the application of a proper ascertainability

test. Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-C, 2014 WL 580696,

at *5 (N.D. Cal. Feb. 13, 2014) (noting that cases like Carrera “do not bar



certification in consumer class actions altogether”). “Class actions, and consumer

class actions in particular, each fall on a continuum of ascertainability dependent

upon the facts of the particular case or product. . . . [R]elevant considerations

include the price of the product, the range of potential or intended uses of a product

and the availability of purchase records.” In re POM Wonderful LLC Mktg. &

Sales Practices Litig., ML 10-02199-DDP, 2014 WL 1225184, at *6 (C.D. Cal.

Mar. 25, 2014). In some instances, reliable records may exist, such as receipts,

consumers’ use of loyalty cards, Carrera, 727 F.3d at 308, or “retailer or banking

records [that] make it economically and administratively feasible to determine who

is in (and who is out) of a putative class.” Sethavanish, 2014 WL 580696, at *5.4

Plaintiffs here apparently made no attempt to obtain data from retailers. See

generally ER00276-353; ER06260-6312; ER05228-5323; ER05579-5629.

Even if this Court does address, in the first instance, whether consumer self-

identification without any form of corroborating information is administratively

feasible and objectively verifiable in this case, it should hold that it is not, as it has

previously recognized in an unpublished decision. Martin, 583 F. App’x at 804

(noting that the plaintiff had proposed no method of identification “beyond

4 Even when the only proof available is in fact consumers’ say-so, courts may draw nuanced distinctions based, for example, on how inherently reliable those memories are likely to be. Bruton, 2014 WL 2860995, at *5-10; Jones, 2014 WL 2702726, at *10.



suggesting that individuals self-identify themselves.”). Plaintiffs offered no reason

why putative members would be particularly likely to reliably remember whether

they bought a specific variety of Wesson Oil as opposed to one of many competing

brands of cooking oil as long as eight years ago.

Self-identifications also pose a fundamental constitutional problem: there is

no apparent way to protect ConAgra’s due process right to verify and challenge

such self-identifications in any administratively feasible manner. See, e.g.,

Marcus, 687 F.3d at 593. As the Supreme Court has recognized, “a class cannot be

certified on the premise that [the defendant] will not be entitled to litigate its . . .

defenses to individual claims.” Dukes, 131 S. Ct. at 2561. A defendant’s due

process rights cannot be sacrificed simply to provide class action plaintiffs a

damages remedy, particularly where injunctive or regulatory remedies may be

available to prevent mislabelings, and where the class action mechanism is already

an “‘exception to the usual rule’” that litigation is to be conducted only by

individual named parties. Dukes, 131 S. Ct. at 2550 (citation omitted). Rule

23(b)(3) is an “‘adventuresome innovation’” that carries special procedural

protections, id. at 2558 (citation omitted), and such protections should not be set

aside in order to provide plaintiffs one specific variety of available remedies.

Put simply, Plaintiffs’ prior emphasis on arguments that applying the

ascertainability requirement here would be the end of consumer class actions is



exaggerated hyperbole. Plaintiffs make this argument to be relieved of their

obligation to demonstrate administrative feasibility – an obligation that the district

court recognized but failed to apply. There are paths forward for plaintiffs in low-

cost class actions to meet this requirement, as district courts have found. See, e.g.,

Sethavanish, 2014 WL 580696, at *5; Red v. Kraft Foods, Inc., No. CV-10-1028-

GW, 2012 WL 8019257, at *5 (C.D. Cal. Apr. 12, 2012). Ultimately, there must

be a balancing of interests: while application of this requirement should not be so

strict as to eliminate all low-cost class actions, courts should not make the mistake

of completely ignoring the requirement or applying it half-heartedly at the expense

of defendants’ due process rights and Rule 23’s procedural protections.

The bottom line is this: the district court recognized correctly that

administrative feasibility is a requirement as part of the ascertainability inquiry.

Plaintiffs did not even attempt to meet this requirement. Their failure to do so

should have ended this inquiry, but the district court chose not to apply this

requirement. This is error, and this alone mandates reversal of the district court’s

grant of class certification.

III. The named representatives do not have claims and defenses that are typical of those of the putative class members.

Under Rule 23(a)(3), Plaintiffs must show that “the claims or defenses of the

representative parties are typical of the claims or defenses of the class.” “The

purpose of the typicality requirement is to assure that the interest of the named



representative aligns with the interests of the class.” Hanon v. Dataproducts Corp.,

976 F.2d 497, 508 (9th Cir.1992). “The test of typicality ‘is whether other

members have the same or similar injury, whether the action is based on conduct

which is not unique to the named plaintiffs, and whether other class members have

been injured by the same course of conduct.’” Id. (citation omitted).

The claims and defenses of the class representatives and class members

diverge from each other in two critical respects. First, the representatives have

alleged that they were deceived by the “100% Natural” label because they thought

that the label meant that the product was GMO-free. ER07873-75. But ConAgra

presented substantial evidence that the same does not hold true for the majority of

class members. Specifically, ConAgra’s expert Dr. Dominique Hanssens

conducted a survey of California cooking oil consumers who had purchased or

would consider purchasing Wesson Oil that showed:

The term “100% Natural” has no statistically measurable impact on consumers purchasing Wesson Oil.

Forty percent of consumers either did not know or were not sure what the “100% Natural” label meant.

Only 2.6% of consumers defined the “100% Natural” label as meaning GMO-free.

Sixty percent of consumers either did not believe that, or did not know whether, Wesson Oil was GMO-free.



ER05355-56 (citing ER00797-800, ¶¶ 52-53, 58, 61; ER00887). Even Plaintiffs’

evidence tends to show the same disparity. Although their surveys were highly

generalized and, unlike Dr. Hanssens’, not targeted to actual or potential Wesson

Oil consumers, they found that around sixty percent of consumers prefer natural

labels and that between under one-half and slightly more than two-thirds of

consumers generally associate natural labels with an absence of GMOs. See infra

Part IV.A.2.b. This evidence suggests that at least one-third of putative class

members will not share the class representatives’ experiences. Id.

The district court effectively declined to consider this evidence because it

held that all that matters is whether class representatives, not class members, are

subject to unique defenses. ER00189-190. It did not provide a citation for this

conclusion, however, and the text of Rule 23(a)(3) certainly does not contemplate

this lopsided requirement, but asks simply whether the representatives and class

members mirror each other. See Koos v. First Nat’l Bank, 496 F.2d 1162, 1164-65

(7th Cir. 1974) (“Where it is predictable that a major focus of the litigation will be

on an arguable defense unique to the named plaintiff or a small subclass, then the

named plaintiff is not a proper class representative.” (emphasis added)). Where

many class members may be subject to a rebuttal of an inference of materiality

based on the evidence discussed above, e.g., Wiener v. Dannon Co., 255 F.R.D.

658, 669 (C.D. Cal. 2009), it is likely that the representatives will not share



defenses unique to many class members and will accordingly not be “focused on

common concerns of the class.” Beck v. Maximus, Inc., 457 F.3d 291, 301 (3d Cir.

2006).

Second, the named representatives are in fact subject to unique defenses.

Attempting to prove standing for the purpose of certifying the injunctive classes,

ER00193-194, they inconsistently alleged (1) that the natural label made a

difference to them because they do not like GMOs and (2) that they would

consider buying Wesson Oils in the future even if they still contained GMOs. See,

e.g., ER07874-75; ER00189, n.174; ER00179-180. Further, after commencing this

litigation the named representatives continued to buy other food products labeled

natural but containing GMOs. ER05359. As the district court itself noted, “these

statements could support an inference that plaintiffs’ belief [that] Wesson Oils did

not contain GMOs was not material to their purchasing decision.” ER00253.

Even under the district court’s definition of typicality, this poses a problem for the

putative classes. See, e.g., Stearns, 655 F.3d at 1019 (representative atypical where

he “was not really deceived into joining the Entertainment Rewards program”).

Because both a substantial portion of class members and the class

representatives will each be subject to defenses that the other does not share, the

representatives do not satisfy Rule 23(a)(3), and the district court erred in finding

to the contrary.



IV. The district court erroneously held that common questions predominate over individual ones.

The district court further erred in concluding that common issues

predominated as to materiality and damages. As to both, Plaintiffs failed to satisfy

their demanding burden to demonstrate that these issues are susceptible to class

adjudication. Because they did not actually develop concrete methodologies tied

to their underlying theory of injury, Plaintiffs’ approach was to (1) patch together

questionable pieces of evidence as to materiality that failed to show a cohesive

view of the natural label, and (2) proffer untested expert opinions as to damages.

By not subjecting this deficient approach to sufficient scrutiny, the district court

neglected to apply a rigorous analysis.

Rule 23(b)(3) provides that in order for a class to be certified, the court must

find, among other criteria, that “the questions of law or fact common to class

members predominate over any questions affecting only individual members.”

Predominance is a “demanding” standard, Amchem Prods., Inc. v. Windsor, 521

U.S. 591, 624 (1997), and courts have a “duty to take a ‘close look’ at whether

common issues predominate over individual ones.” Comcast, 133 S. Ct. at 1432

(citation omitted). As with all aspects of a certification decision, courts must

“‘probe behind the pleadings’” and engage in a “‘rigorous analysis’” before

certifying a class. Id. (citations omitted).



The “predominance inquiry tests whether proposed classes are sufficiently

cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623.

When class members’ claims “require a fact-intensive, individual analysis,” then

certification is likely inappropriate. Vinole v. Countrywide Home Loans, Inc., 571

F.3d 935, 947 (9th Cir. 2009). The key concern in a predominance inquiry is “the

balance between individual and common issues.” Mevorah v. Wells Fargo Home

Mortgage (In re Wells Fargo Home Mortg.), 571 F.3d 953, 959 (9th Cir. 2009).

A. Individual issues predominate with respect to materiality because there is no reliable classwide method of proof.

Plaintiffs’ claims are inherently individualized because the putative class

members contend that they each were misled by the natural label in their individual

purchasing decisions. While the district court eased Plaintiffs’ burden in this

regard by concluding they were allowed to present classwide proof of materiality,

it failed to take the necessary next step of ensuring that such proof was actually

available. Plaintiffs submitted, and the district court relied upon, a hodgepodge of

various third-party generalized surveys and marketing data, most of which had

nothing to do with Wesson Oil consumers. Most importantly, there was no single

survey or method that addressed whether consumer beliefs regarding the absence

of GMOs were material to their purchases of Wesson cooking oils. Revealingly,

Plaintiffs did attempt to present such a survey, but the district court deemed it to be

inadmissible and did not consider it. That should have ended the matter.



1. Plaintiffs must show they can prove materiality to avoid individualized issues of reliance and causation.

Many of Plaintiffs’ causes of action require them to show reliance and

causation by proving that the alleged misrepresentation caused class members to

purchase the product. See, e.g., In re Tobacco II Cases, 207 P.3d 20, 39 (Cal.

2009). As the district court recognized, such issues are individualized and would

normally predominate over common ones. ER00096-97. Plaintiffs sought to cure

this problem by pointing to various state laws’ allowance for classwide proof of

materiality as a way to avoid proving individual reliance and causation at

certification. Accordingly, the district court considered whether Plaintiffs had

“demonstrate[ed] that the materiality of [the natural label] can be established by

common survey proof” on a classwide basis. ER00250.5 As an example of the

law of one of the state classes, California courts have held that “‘plaintiffs satisfy

their burden of showing causation as to each by showing materiality as to all.’”

Mass. Mut. Life Ins. Co. v. Superior Ct., 97 Cal. App. 4th 1282, 1292 (2002)

(citation omitted). Materiality, in turn, “is judged by a ‘reasonable man’ standard,”

5 It held that claims of nine of the eleven state classes allowed classwide proof of materiality. ER00201-250. Although the district court also certified Indiana and Nebraska classes, the claims of those classes do not involve materiality and therefore those two classes are not at issue in this claim of error. Because the district court subsequently treated materiality as a uniform issue for all nine classes without addressing any state law differences, ConAgra will do the same here using California law as a representative example, without conceding that there are no such differences.



such that “a misrepresentation is deemed material if a reasonable man would attach

importance to its existence or nonexistence in determining his choice of action in

the transaction in question.” Steroid Hormone Prod. Cases, 104 Cal. Rptr. 3d 329,

338 (Cal. Ct. App. 2010) (quotation marks and citations omitted).

In Stearns, this Court required plaintiffs seeking to establish predominance

through classwide methods to show that the alleged misrepresentation is “material

to all class members,” for if it is not, “the issue of reliance would ‘vary from

consumer to consumer’ and the class should not be certified.” 655 F.3d at 1022-23

(emphasis added) (citation omitted). Stearns emphasized that while the

“reasonable consumer” test does lessen this burden of proof, it does not mean that

“predominance would be shown in every . . . case.” Id. at 1020. Therefore,

Plaintiffs must first present evidence showing that, with respect to the label claim

at issue, materiality itself is a common issue among consumers. E.g., Webb v.

Carter’s, Inc., 272 F.R.D. 489, 502-03 (C.D. Cal. 2011). And even if Plaintiffs

establish a presumption of reliance and causation, ConAgra is entitled to offer

evidence to rebut it. E.g., Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644,

667-68 & n.20 (1993); Garcia v. Medved Chevrolet, Inc., 263 P.3d 92, 99 (Colo.

2011).



2. The district court erroneously relied on surveys that do not support a finding of classwide materiality.

The district court in its original decision denying class certification held that

“the evidence regarding the materiality of ‘100% Natural’ is in conflict” and “weak

at best.” ER00097. It found that “Plaintiffs adduce[d] no survey evidence

concerning the actual reaction of consumers to the ‘100% Natural’ label on

Wesson Oils specifically or the presence of such a label on cooking oils generally.”

Id. It also emphasized that Plaintiffs had not presented evidence directly related

“to the specific issue raised in this case—i.e., whether consumers believe the label

means the product contains no genetically modified organisms.” Id.

However, in its second order granting class certification, the district court

inexplicably reversed course and held that Plaintiffs were entitled to the classwide

inference of materiality, despite Plaintiffs’ failure to correct the deficiencies

initially identified. The new evidence Plaintiffs proffered in their amended

certification motion suffered from the same critical flaws as that in support of their

first motion. Plaintiffs still have not shown how they will prove that Wesson Oil

consumers believe that the 100% Natural label means that the product does not

contain GMOs and attach weight to this belief in their purchasing decisions. The

district court was right the first time, and it should not have accepted Plaintiffs’

still “weak” evidence as establishing materiality. The district court’s ruling was

therefore in error for at least two reasons.



a. Plaintiffs’ proffered method of proving materiality was not tailored to their theory that consumers factor a belief that the Wesson Oil natural label means the absence of GMOs into their purchasing decision.

Plaintiffs must proffer a method of proving materiality that targets their

theory of liability – that consumers believed the natural label meant the Wesson

Oils did not contain GMOs and factored this into their purchasing decision.

Amchem, 521 U.S. at 623 (noting that the predominance inquiry must “train[] on

the legal or factual questions that qualify each class member’s case as a genuine

controversy”). It is axiomatic that the common issues that must predominate are

the issues that actually matter in the case at hand. See EQT Production, 764 F.3d

at 366 (reversing on predominance grounds where the district court failed to

consider whether the plaintiffs’ evidence was “relevant to assessing the

defendants’ ultimate liability”); Forrand v. Federal Express Corp., No. CV 08-

1360-DSF, 2013 WL 1793951, at *3 (C.D. Cal. Apr. 25, 2013) (“[For the]

predominance requirement to be satisfied, a plaintiff must bring forth a . . . method

that can be applied classwide and that ties plaintiff’s legal theory to . . . the

defendant’s allegedly illegal conduct.”); Kosta v. Del Monte Foods, Inc., No. 12-

CV-1722 YGR, 2015 WL 4593175, at *12 (N.D. Cal. July 30, 2015) (“A fill-in-

the-blanks declaration from an expert, without any real consideration of the



specific product attributes at issue here, is not sufficient to establish that the

materiality of the label statements here is a common question.” (emphasis added)).

Plaintiffs’ evidence failed to comprehensively link (1) Wesson Oils, (2) a

natural claim, (3) the absence of GMOs and (4) consumers’ purchasing decisions.

The district court’s decision first cited highly generalized national surveys that

some consumers may prefer “natural” products when shopping for food generally

and that they might pay more for “some” unspecified types of natural products.

ER00250 (citing ER03680-3703; ER03726; ER03755). Then, it referenced data

showing that consumers find the natural label on Wesson products generally

favorable. ER00250-251. As the district court acknowledged, however, none of

this information “directly links consumers’ understanding of the ‘100% Natural’

label to the specific issue raised in this case – i.e., whether customers believe the

label means the product contains no . . . GMO ingredients.” ER00251.

Next, the district court turned to four generalized, third-party (and mostly

online) surveys showing “that consumers believe ‘natural’ means, among other

things, no GMOs.” Id. (citing ER03680-3703; ER03819-3928; ER03929-3962;

ER04931-4967). These surveys were the primary new evidence that Plaintiffs

presented in their amended motion, but they still suffered from the same flaw the

district court identified initially: they did not involve Wesson Oil products or

marketing, nor did they purport to describe consumers of Wesson Oil. See Kosta,



2015 WL 4593175, at *11 (rejecting “broad statements about why labels generally

matter to consumers of food products”). Instead, these surveys were conducted of

consumers of food generally, necessarily referring to an immense variety of

products with different labels, different ingredients, and sets of consumers. E.g.,

ER03688 (referring to packaged and processed foods); ER03862 (“[p]roduction

and [f]arming”); ER03947 (“food or beverage”). In this way, the surveys simply

failed to demonstrate that reasonable consumers shared a uniform understanding of

whether Wesson Oil contained GMOs.6

This failure to focus on the products at issue and accordingly, on the class

members who purchased them, is a fatal flaw in the surveys Plaintiffs presented.

The cases are legion that hold that “‘to be probative and meaningful surveys must

rely upon responses by potential consumers of the products in question.’”

Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 118 (2d Cir. 1984)

(punctuation and citation omitted) (emphasis added); see also Harolds Stores, Inc.

v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1544-46 (10th Cir. 1996); Exxon Corp.

v. Texas Motor Exch. of Houston, Inc., 628 F.2d 500, 506-07 (5th Cir. 1980);

6 The district court also referenced ConAgra’s receipt of complaints from individuals after they learned that the products contained GMOs. ER00251. This last piece of largely subjective and piecemeal evidence has little relevance for the reasonable consumer inquiry, little to say about consumers’ state of mind at the time of a purchase, and can hardly be a sufficient method of proof for millions of putative class members.



Fancaster, Inc. v. Comcast Corp., 832 F. Supp. 2d 380, 403 (D.N.J. 2011); THOIP

v. Walt Disney Co., 690 F. Supp. 2d 218, 236-37 (S.D.N.Y. 2010).

For instance, the Tenth Circuit upheld a district court’s finding that a survey

was “devoid of any probative value and therefore irrelevant” in part because it was

overinclusive. The respondents to the survey were potential purchasers of all sinus

remedies rather than of sinus-irrigation products in particular (which were at issue

in the suit and which formed a small percentage of sinus remedy sales). Water Pik,

Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1145 (10th Cir. 2013). See also Fractus,

S.A. v. Samsung, Civ. No. 6:09-cv-203-LED-JDL, 2011 WL 7563820, at *1 (E.D.

Tex. Apr. 29, 2011) (excluding survey evidence that was not sufficiently tied to the

patent at issue but addressed the market as a whole). Here, Plaintiffs’ surveys

required extrapolation from consumers of all foods or all packaged foods to

Wesson Oil consumers, supra, p.34; yet courts typically do not permit the results

of a survey of one group of people to be extrapolated as evidence for another group

of people. See, e.g., Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 734,

752-53 (E.D. Mich. 2003); Federal Judicial Center, Reference Manual on Scientific

Evidence 377-78 (3d ed. 2011) (“A survey that provides information about a

wholly irrelevant population is itself irrelevant. Courts are likely to exclude the

survey or accord it little weight.” (footnotes omitted)).



The district court was apparently aware of this body of law given its initial

critique of Plaintiffs’ original survey evidence—indeed, it stated in the first hearing

on class certification that “offering an opinion that across the surveys this is what

consumers think is just not appropriate.” ER00012. Yet the district court

abandoned this position to grant class certification even though it still lacked a

single method of proof tailored to Plaintiffs’ theory of materiality. Tellingly,

Plaintiffs attempted to present precisely such a study, but the district court

disregarded the study as inadmissible. ER00251, n.245 (referencing the Kozup

survey). That exclusion should have been the end of the matter, but the court

inexplicably combined inadequate surveys to make an unwarranted finding

regarding consumers’ understanding of Wesson Oil labels.

Not only did Plaintiffs’ evidence fail to establish Wesson Oil consumers’

understanding of the natural label, but it failed to link any such understanding with

actual purchasing decisions. A misrepresentation is only material “‘if a reasonable

man would attach importance to its existence or nonexistence in determining his

choice of action in the transaction in question.’” Stearns, 655 F.3d at 1022

(citation omitted) (emphasis added). See also Pizza Hut, Inc. v. Papa John’s Int’l,

227 F.3d 489, 502 (5th Cir. 2000) (requiring evidence that the misleading

statements “had a tendency to influence the purchasing decisions of . . . the

consumers to which they were directed”). However, the third-party surveys the



district court relied on to link consumers’ understanding of the word natural to the

absence of GMOs do not purport to tie consumers’ understandings to purchase

decisions but merely show “that consumers believe ‘natural’ means, among other

things, no GMOs.” ER00251.

For example, the “substantial majority” in the HealthFocus study the district

court cited was asked, “To what extent does [has not been genetically modified]

mak[e] you feel that a food or beverage is natural?”. ER03947. Exhibiting the

disconnect between abstract consumer preferences and their purchasing decisions,

that same study also found that less than 5% of consumers found “natural” to be

“most important when shopping.” ER00251, n.244; ER03952. In another survey

the district court cited, less than 40% of consumers found natural to be important to

their purchase decision of shelf-stable products. ER00251, n.242; ER03902. In

sum, the district court did not rely on evidence as to whether consumers might

change their purchase decisions if they were aware that products labeled as

‘natural’ contained GMOs – the critical question in this case.

It is not a difficult burden for Plaintiffs to isolate their theory of materiality

by creating admissible surveys asking Wesson Oil consumers whether they believe

Wesson Oils are GMO-free due to the natural label, and if so, whether that was a

material factor in their purchasing decisions. Indeed, Plaintiffs tried to do so (but

the district court rejected the Kozup survey) and ConAgra actually did so (but the



district court did not address the Hanssens survey). It is an insufficient substitute

to cobble together surveys or data targeting divergent sets of consumers, divergent

products, and divergent time periods, some of which show (at most) that Wesson

consumers like products labeled “natural,” and others of which show that some

consumers of food products generally associate “natural” with “no GMOs.” Thus,

the district court erred in permitting a classwide inference of materiality despite not

having a single method tailored to the classes’ theory of liability.

b. The district court erred in finding it appropriate to apply a classwide presumption of materiality when at least one-third of a proposed class does not find the label claim material.

To find materiality, the district court (1) noted that Plaintiffs’ surveys show

that between 59% and 65% of consumers like natural products, ER00250, and (2)

referenced surveys which show that somewhere between 46% and slightly over

two-thirds of consumers associate a natural claim with the absence of

GMOs. ER00250, nn.240-244; ER03689 (64%); ER03862 (61%); ER03947;

ER04952-53 (46%).7 Even assuming these two sets of surveys can reliably be

combined to create one “majority,” this means that approximately a third of

7 The second Hartman Group survey the district court referenced showed that 61% of 2010 consumers associate natural with no GMOs but that this fell to 46% in 2012. ER04953. Without explanation, the district court cherry-picked and mentioned only the less recent 61% figure. Compare id. with ER00250, nn.240 & 243.



consumers (at least) do not associate a natural claim with the absence of GMOs,

and that this number may actually be more than half of consumers. Finding that

materiality predominated among class members in the face of this evidence was

error.

This Court has recognized that “[i]f the misrepresentation or omission is not

material as to all class members, the issue of reliance ‘would vary from consumer

to consumer’ and the class should not be certified.” Stearns, 655 F.3d at 1022-23

(emphasis added) (citation omitted). To meet the “reasonable consumer” standard

under California law, a plaintiff is required to show that “‘a significant portion’ of

targeted consumers, acting reasonably in the circumstances, could be misled.’” In

re Celexa & Lexapro Mktg. & Sales Practices Litig., 291 F.R.D. 13, 20 (D. Mass.

2013) (citation omitted). Indeed, showing that more than “a handful of class

members” or that “numerous class members” would not find the alleged

misrepresentation material can mean that the element of materiality is not subject

to common proof on a classwide basis.8 In re Vioxx Class Cases, 180 Cal. App.

8 The district court cited a single district court decision for the proposition that even 24% would be sufficient to show materiality. ER00252 (citing Oshana v. Coca-Cola Co., No. 04 C 3596, 2005 WL 1661999 (N.D. Ill. July 13, 2005)). But Oshana noted that such a survey would be insufficient to rebut evidence of a single plaintiff’s own conduct to the contrary—it had nothing to say about proving materiality for a class of consumers. Id. at *8-9.



4th 116, 129 (2009); In re Countrywide Fin. Corp. Mortg. Mktg. & Sales Practices

Litig., Nos. 08md1988-DMS, 2011 WL 6325877, at *10 (S.D. Cal. Dec. 16, 2011).

A bare majority would not qualify as “classwide proof” under many, if not

all, of the state laws at issue. See, e.g., Fairbanks v. Farmers New World Life Ins.

Co., 197 Cal. App. 4th 544, 565-66 (2011) (no common proof where contrary

evidence as to “roughly half” of the putative class); Strawn v. Farmers Ins. Co. of

Oregon, 258 P.3d 1199, 1213 (Or. 2011) (to obtain a classwide inference, “the

misrepresentation must be of a nature that the class members logically would have

had a common understanding of the misrepresentation, and naturally would have

relied on it to the same degree and in the same way”); Henry Schein, Inc. v.

Stromboe, 102 S.W.3d 675, 694 (Tex. 2003) (no classwide proof where “there is

no evidence that purchasers actually did rely on [the challenged] statements so

uniformly that common issues of reliance predominate”).

The district court acknowledged that Plaintiffs had to show that “ConAgra’s

conduct is deceptive and misleads reasonable consumers and/or class members.”

ER00272 (emphasis added). Yet Plaintiffs’ own evidence shows that the

challenged statement would not be material for far more than a “handful” of

consumers. Vioxx, 180 Cal. App. 4th at 129. It can be said unequivocally that,

regardless of which third-party survey offered by Plaintiffs one considers,

“numerous class members” do not believe that natural means an absence of



GMOs. See Countrywide Fin. Corp. Mortg. Mktg. & Sales, 2011 WL 6325877 at

*10. Rule 23’s predominance requirement cannot be satisfied when a third to a

half of the proposed class would not find a label claim to be material. Thus, the

court erred in relying on these surveys to establish materiality for this reason as

well.9

3. The district court did not consider ConAgra’s own superior rebuttal evidence which shows that the term ‘natural’ holds so many different meanings for different consumers that materiality cannot be shown.

Not only did Plaintiffs’ own evidence point to a lack of predominance, but

ConAgra presented its own, and far superior, evidence that common

understandings did not exist in this case, but the district court did not address it in

its discussion of materiality. ER00250-256. Even if Plaintiffs raise an inference of

materiality, ConAgra is entitled to offer evidence to rebut it. E.g., Caro, 18 Cal.

App. 4th at 667 n.20; Johnson v. Harley-Davidson Motor Co. Group, LLC, 285

F.R.D. 573, 581 (E.D. Cal. 2012) (finding materiality not subject to common proof

where defendants offer persuasive evidence that there are numerous individualized

9 The district court also erred in relying on the surveys without adequately considering their methodologies. It could not have done so – these surveys included very limited information about their methodologies. The most Plaintiffs’ expert Dr. Howlett could say is, with little explanation, that they “appear[ed] valid and reliable.” ER05117.



issues as to whether the reasonable consumer would find the misconduct

complained of material). This is exactly what ConAgra did.

ConAgra’s survey suffered from none of the infirmities that plagued

Plaintiffs’ surveys. Dr. Hanssens’ consumer survey confirms that “100% Natural”

had no statistically measurable difference in purchase intent or consumer beliefs

about the presence of GMO ingredients between actual and potential Wesson Oil

consumers who were shown Wesson Oil labels with and without the natural

label. See supra Part III. There is no doubt that Dr. Hanssens’ survey was far

superior to the few generalized third-party surveys that Plaintiffs brought forth,

which did not measure the labels on Wesson Oil or even cooking oils

generally. When actual evidence exists as to consumers’ beliefs related to the

products at issue and how the alleged misrepresentation affects their purchase

decision, “the Court does not need to look to the hypothetical reasonable consumer

. . . and does not need to infer reliance given the evidence presented.” Algarin, 300

F.R.D. at 453; Astiana v. Kashi Co., 291 F.R.D. 493, 508 (S.D. Cal. 2013). The

district court found Hanssens’ survey reliable, ER00069; ER00140-141, and had

no apparent reason to ignore it in the predominance analysis.

The only contradictory evidence that the district court considered was that

the U.S. Food and Drug Administration (“FDA”) has never promulgated a formal

definition of the word “natural,” and has declined to require disclosure of a food



product’s use of bioengineered ingredients. ER05382-383; ER00253. Based in

part on consumer focus groups, the FDA has found that such information “is not a

material fact.” See FDA, DRAFT Guidance for Industry: Voluntary Labeling

Indicating Whether Foods Have or Have Not Been Developed Using

Bioengineering (Jan. 2001), available at

http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInf

ormation/LabelingNutrition/ucm059098.htm (last visited Sept. 18, 2015).

The district court found this evidence irrelevant, stating it did not have

anything to say about how a “reasonable consumer” would have understood the

natural label. ER00253. Numerous other courts have disagreed, holding that such

agency guidance is “relevant and informative” as it is based on extensive studies

and consumer data. Rubio v. Capital One Bank, 613 F.3d 1195, 1201-02 (9th Cir.

2010); see also Jones, 2014 WL 2702726, at *15; Rojas v. General Mills, Inc., No.

12-cv-05099-WHO, 2013 WL 5568389, at *4 (N.D. Cal. Oct. 9, 2013); Ivie v.

Kraft Foods Global, Inc., No. C-12-02554-RMW, 2013 WL 685372, at *12 (N.D.

Cal. Feb. 25, 2013).

The existence of this substantial rebuttal evidence is unsurprising.

Difficulties in pinning down the consumers’ common understanding of “all-

natural” or “100% Natural” labels have plagued food labeling class actions in this

circuit and across the country. In considering similar claims, district courts often



hold that the term “natural” carries so many different meanings for different

consumers that predominance cannot be shown. For example, in Jones, which is

currently pending on appeal, the district court concluded that there was a lack of

the requisite cohesion among class members because “there is no fixed meaning

for the word ‘natural.’” 2014 WL 2702726, at *14. Citing other district court

cases from this circuit as well as guidance from the FDA, Jones explained that

“there is no single, controlling definition of the word ‘natural,’” and that therefore

different customers will weigh the “natural” label in different ways in their

purchasing decisions. Id. at *15. See also, e.g., Allen v. Hyland’s, Inc., 300 F.R.D.

643, 668 (C.D. Cal. 2014); Kashi, 291 F.R.D. at 504-05; Thurston v. Bear Naked,

Inc., No. 3:11-cv-02890-H (BGS), 2013 WL 5664985, at *8 (S.D. Cal. July 30,

2013).

Similarly, in Randolph v. J.M. Smucker Co., a case involving an “all natural”

label on cooking oils, the court held there was no predominance where the plaintiff

had not shown that a reasonable consumer would agree that “all natural” meant a

product did not contain GMOs. 303 F.R.D. 679, 695-96 (S.D. Fla. 2014). The

facts of Randolph are almost identical to those here, and even involve a Florida

class, like this case. Yet the district court there denied certification based on

ascertainability and predominance. Id.

* * *



For all of the reasons above, the district court abused its discretion by

finding that Plaintiffs could show they were entitled to a classwide inference of

materiality. This holding was based on several findings that were “‘illogical,

implausible, or without support in inferences that may be drawn from facts in the

record,’” Leyva v. Medline Indus. Inc., 716 F.3d 510, 513 (9th Cir. 2013) (citation

omitted), and the district court should have adhered to its initial decision denying

certification. It did not conduct the required rigorous analysis, and its decision to

certify reduces the predominance requirement to a nullity.

B. Individual issues predominate with respect to damages.

The district court also failed to hold Plaintiffs to their burden of showing that

damages are calculable on a classwide basis. Rather, it allowed Plaintiffs to rely

upon little more than the mere assurances of an expert that damages could be

calculated. This expert proposed a facially suspect “hybrid damages model” that

has never been performed by others in the field and has never been used before by

the expert who proposed it. While Plaintiffs need not actually calculate damages at

the certification stage, they must at least proffer a damages model that is both

reliable and persuasive. The district court failed to conduct the rigorous analysis

necessary to ensure that Plaintiffs’ underdeveloped and last-minute model met

these criteria. Accordingly, it did not identify any single, tested model

demonstrably capable of linking Plaintiffs’ damages to their theory of liability.



1. Comcast requires a damages model linked to Plaintiffs’ theory of liability.

In Comcast Corp. v. Behrend, the Supreme Court emphasized that Rule

23(b)(3) requires plaintiffs, as part of predominance, to “establish[] that damages

are capable of measurement on a classwide basis.” 133 S. Ct. at 1433. Without

such a showing, “[q]uestions of individual damage calculations will inevitably

overwhelm questions common to the class.” Id. Importantly, “a model purporting

to serve as evidence of damages in [a] class action must measure only those

damages attributable to th[e] theory” of liability underlying the class claims. Id.

Simply put, at the class-certification stage, Plaintiffs’ proffered model for

calculating damages “must be consistent with its liability case,” id. (citation

omitted), and “courts must conduct a ‘rigorous analysis’ to determine whether that

is so.” Id. (quoting Dukes, 131 S. Ct. at 2551-52).

Because Plaintiffs’ theory of liability is tied specifically to the believed

absence of GMOs, the district court correctly held that Comcast requires Plaintiffs

to present a damages model capable of calculating not simply the injury resulting

from the natural label, but more specifically, the injury resulting from the portion

of the natural label attributable to the presence of GMOs. ER00257-258. As the

district court put it, Plaintiffs must “segregate the price premium attributable to a

consumer’s understanding that ‘100% Natural’ means the cooking oils contain no

genetically modified organisms.” ER00258.



While the district court correctly required Plaintiffs to proffer a damages

model tied to the value of the absence of GMOs, it erred in determining that

Plaintiffs’ proposed “model” met the requisite standard.

2. The district court twice rejected one of the models that formed the basis of the hybrid model.

In their initial class certification motion, Plaintiffs did not even attempt to

calculate the GMO “price premium.” Instead, they relied predominantly on their

expert witness, Dr. Colin Weir, who proposed a “hedonic regression” model to

calculate only the price premium attributable to the natural label, even though he

acknowledged that “100% Natural” and “non-GMO” are “not equivalent.”

ER00050, ER00100. In its order denying class certification, the district court

concluded that Dr. Weir’s model did not satisfy Comcast and therefore, that

Plaintiffs had not met their burden of showing the predominance of common issues

as to damages. ER00101. However, it gave Plaintiffs a second chance to present a

damages model that would be able to isolate GMO-specific damages.

Incredibly, once given this second opportunity, Plaintiffs’ primary argument

was that the district court had been incorrect that Comcast required them to isolate

the additional price premium attributable to GMOs. See, e.g., ER05251

(“Plaintiffs maintain that under Comcast . . . the appropriate measure of damages is

the percentage of Wesson Oils’ retail price attributable to the ‘100% Natural’

label.”). Perhaps recognizing the significant weaknesses in their proffered models,



Plaintiffs devoted the vast majority of their briefing on this issue to arguing that

they should be allowed to follow their original approach rather than on proffering

compliant models. See generally ER05302-5314. Even more tellingly, however,

Plaintiffs’ damages experts did the same. Dr. Weir again presented the same

hedonic regression model that calculated the price premium for all possible

meanings of the natural label. He opined, for instance, that the “economic harm

suffered by Plaintiffs and all other members of the proposed Class is the amount of

additional money they paid for Wesson Oil because of the presence of the ‘100%

Natural’ claim,” and testified that the district court’s analysis was incorrect “from

an economic perspective.” ER04996, ¶ 7 (emphasis added); ER07928-29.

Appropriately, the district court again rejected his model as insufficient to satisfy

Comcast.10 ER00259.

3. The district court erroneously accepted a “hybrid” model that was incapable of reliably or persuasively calculating classwide damages.

However, the district court erroneously proceeded to accept Plaintiffs’ last-

ditch attempt to calculate classwide damages, which took the form of a new

declaration by another expert, Dr. Elizabeth Howlett. She proposed multiplying

10 Dr. Weir’s regression model is also insufficient for other reasons identified by other courts that have recently rejected regression models almost identical to Dr. Weir’s. See, e.g., Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK, 2014 WL 5794873, at *11-14 (N.D. Cal. Nov. 6, 2014).



the number produced by Dr. Weir’s rejected model by the number produced by her

own model, producing a hybrid model that the district court found to satisfy

Comcast.

To explain why the district court erred, a brief explanation of Dr. Weir’s

hedonic regression model and Dr. Howlett’s conjoint analysis model is necessary.

As explained by Dr. Weir, regression analysis is a tool used by economists that

“identifies and quantifies the relationship between two or more variables.”

ER05010. It does so by comparing the values of a dependent variable—here, the

price of cooking oil—with the values of various independent variables—here, the

natural label, and other factors that might influence price. ER05010, ER05014.

Hedonic regression is a specific application of this analysis that attempts to

determine how much consumers pay for each feature of a product. ER05011. It

uses historic data—that is, information from past sales and pricing. ER05013.

Using this model, Dr. Weir said he could calculate a “percentage price premium”

that he concluded represented the portion of the price of oil attributable to the

natural label. ER05023 & n.53.

Dr. Howlett’s primary proposal was a conjoint analysis technique used in

marketing research to ascertain how much consumers prefer different features of a

product. ER05129. Unlike hedonic regression, which uses historic pricing data,

conjoint analysis conducts surveys of consumers’ present preferences. ER05024.



Survey participants are asked to choose between multiple iterations of a given

hypothetical product, each with different features. Repeating this process allows a

calculation of the “relative importance” of the tested features. ER05130-31. Dr.

Howlett proposed using six features that consumers might associate with the

natural label, one of which would be the absence of GMOs. ER05133. After

conducting the surveys, each feature would be assigned a percentage ranking.

ER05137.

Much of her declaration, like Dr. Weir’s, proposed calculating damages

resulting from the natural label as a whole, but Dr. Howlett further asserted that

she could simply layer her proposed “conjoint analysis” model onto Dr. Weir’s

hedonic regression to satisfy Comcast. She “propos[ed] to use consumer surveys

to segregate the percentage of the price premium specifically attributable to a

consumer’s belief that ‘100% Natural’ means ‘no GMOs’” and to multiply that

percentage by Dr. Weir’s figures. ER00259-260. This “hybrid damages model” is

what the district court exclusively and erroneously relied upon to find that Comcast

was satisfied. ER00259, ER00261.

The district court appeared to consider only the reliability of Dr. Weir’s and

Dr. Howlett’s models, which it addressed both in the portion of its opinion denying

ConAgra’s motion to strike the experts’ declarations under Federal Rule of

Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579



(1993), and in the portion of its opinion relating to Rule 23 predominance.

ER00145-152, ER00158-164, ER00257-270. However, the district court was

required to decide not only whether Plaintiffs’ experts were sufficiently reliable,

but also whether they were sufficiently persuasive. As this Court explained in

Ellis, the focus of Daubert and Rule 702 is whether an expert’s testimony is

sufficiently reliable to be admissible. 657 F.3d at 982. Under Rule 23, however,

the district court must additionally conduct a “rigorous analysis” to determine

whether that testimony is also persuasive. “[T]o the extent the district court

limited its analysis of whether there was [predominance] to a determination of

whether Plaintiffs’ evidence on that point was admissible, it did so in error.” Id.

The Third Circuit has similarly emphasized that a district court cannot

merely conclude that Rule 23 is satisfied because an expert’s opinion is sufficiently

reliable to be admissible.

Opinion testimony should not be uncritically accepted as establishing a Rule 23 requirement merely because the court holds the testimony should not be excluded, under Daubert or for any other reason. Under Rule 23 the district court must be ‘satisfied’ . . . or ‘persuaded’ . . . that each requirement is met before certifying a class. Like any evidence admissible expert opinion may persuade its audience, or it may not.

In re Blood Reagents Antitrust Litig., 783 F.3d 183, 188 n.10 (3d Cir. 2015)

(citations and quotation marks omitted). “[I]n order to certify a class, the damages

methodology must be ‘sound.’” Ludlow v. BP, P.L.C., --- F.3d ---, 2015 WL



5235010, at *5 (5th Cir. Sept. 8, 2015) (citation omitted). Dr. Howlett’s cursory

hybrid proposal was neither sound nor persuasive, for three reasons.

First, although Plaintiffs and their experts made much of the fact that

hedonic regression and conjoint analysis are each familiar and accepted methods

that are commonly used in their respective fields, ER00146, ER00261, Dr. Howlett

provided no evidence that it was common or accepted to combine the two analyses

in the manner she proposed. ER08057 (citing ER07989-90) (“Dr. Howlett . . . is

unaware of anyone else in a peer-reviewed article that has ever combined the

results of a conjoint analysis and a hedonic regression model in order to assign a

price premium to a sub-feature.”); ER05478 (“[Dr. Howlett is] unaware of anyone

that has exactly done this same thing.”). See Lust v. Merrell Dow Pharm., Inc., 89

F.3d 594, 597 (9th Cir. 1996) (terming it a “‘very significant fact’” that an expert

“failed to subject his method to peer-review and to develop his opinion outside the

litigation” (citation omitted)).

That Plaintiffs could not show that anyone besides Dr. Howlett has thought

to combine two methods that have apparently each been used for decades raises

inherent doubts about the viability of Dr. Howlett’s hybrid damages model, a

model developed expressly for this litigation. Perhaps because of this lack of

precedent in the relevant academic and research communities, this is also the first

time, to ConAgra’s knowledge, that a district court in a food labeling class action



has permitted this particular kind of hybrid damages model as a valid means of

measuring damages.

Not only did Plaintiffs fail to show that this hybrid damages method was

commonly used by others in the field, but perhaps more importantly, Dr. Howlett

freely admitted that she herself had never attempted or used this method, either.

ER00159; ER08116 (“I have not previously used choice-based conjoint analysis to

separate the elements of a price premium calculated with hedonic regression . . .

.”). Moreover, Dr. Howlett also explicitly acknowledged that she was not an

expert as to Dr. Weir’s hedonic regression, a critical component of her hybrid

model. ER08113 (“I readily admit that I am not an expert in hedonic regression

analysis.”). Courts regularly deny certification where plaintiffs offer nothing more

than mere assurances that their expert may be able to satisfy Rule 23, Comcast,

133 S. Ct. at 1434, or present hybrid models that have never before been

attempted. See Prism Techs. LLC v. AT&T Mobility, LLC, Case Nos. 8:12CV122-

126, LLC, 2014 U.S. Dist. LEXIS 132619, at *22 (D. Neb. Sept. 22, 2014).

Second, and as explained by ConAgra’s expert, Dr. Keith Ugone, there are

self-evident incompatibilities between conjoint analysis and hedonic regression

that also should have triggered the district court to conduct a more probing analysis

as to the two methods’ compatibility. The models combine apples and oranges:

hedonic regression measures a historical “price premium,” and conjoint analysis



measures the relative importance of current consumer preferences. Relative

importance is not synonymous with price premium, as courts have noted.11 In re

NJOY, Inc. Consumer Class Action Litigation, No. CV-14-00428-MMM, 2015 WL

4881091, at *42 (C.D. Cal. Aug. 14, 2015); Oracle Am., Inc. v. Google Inc., No.

10-CV-03561, 2012 WL 850705, at *9-11 (N.D. Cal. Mar. 13, 2012).12 These

cases reflect that consumers’ likings do not necessarily translate into increased

willingness to pay. For example one of Plaintiffs’ materiality surveys found that

well over half of the consumers surveyed state that “natural” or some variation is

an important statement on labels when shopping for foods and beverages.

ER03953. However, the same survey found that only about one third of consumers

11 Even the district court appeared to agree. At the hearing, it made a telling remark that goes to the heart of Comcast: when ConAgra’s counsel pointed out what the model needed to measure to satisfy Comcast but did not, the district court did not disagree but wondered “[g]ee, is there any way of doing that?” and asked if a plaintiff could “ever show that.” ER00117. This suggests that the district court believed Plaintiffs could not meet the Comcast standard here but excused the model’s deficiencies to allow certification nonetheless.

12 In concluding that the hybrid damages model satisfied Comcast, the district court incorrectly relied on Guido v. L’Oreal USA, Inc., Nos. 2:11-CV-01067 & -05465-CAS, 2014 WL 6603730 (C.D. Cal. Jul. 24, 2014) and Khoday v. Symantec Corp.,Civil No. 11-180 (JRT/TNL), 2014 WL 1281600 (D. Minn. Mar. 13, 2014).ER00262-263. Among other differences, neither case involved an attempt to segregate the price of only one of many potential meanings of a label claim. In Guido, unlike here, the damages expert testified that the proposed method in that case was well-accepted in his field, had been subject to peer review and was not developed primarily for the purposes of that litigation. 2014 WL 6603730, at *6.



would be willing to pay more for natural at all – concrete evidence that relative

importance does not translate to price premium. ER03939.

Additionally, Dr. Weir’s hedonic regression utilizes historic data on pricing,

while Dr. Howlett’s conjoint analysis calculates the value to consumers at the time

of the surveys. ER00148, ER00264. Combining these two datasets is problematic

given that consumers’ understanding and valuation of natural claims and the

importance of GMOs are not static over time. See, e.g., ER05449-50 (natural

products are priced 3.76% more than non-natural products in 2009, but 0.25%

more in 2010); ER04953 (natural signifies no GMOs to 46% of consumers in 2012

and 61% in 2010). The hybrid damages model would always yield a fictional

result that could not be accurate as to any one class member. Simply put,

multiplying the relative importance of Dr. Howlett’s “absence of GMOs”

interpretation by Dr. Weir’s price premium value for the natural label does not

magically result in the necessary price premium.

Third, Dr. Howlett’s explanation of the hybrid damages model was cursory

at best. As described above, the district court accepted the hybrid damages model

despite the undisputed fact that it had not been used by other researchers and that

she had never performed the method before. Even if these deficiencies were not

alone enough to render her declaration unpersuasive, they should have at least

alerted the district court to require a thorough explanation of why the untested



hybrid model would work. See, e.g., Clausen v. M/V New Carissa, 339 F.3d 1049,

1056 (9th Cir. 2003) (“‘Where peer review and publication are absent, the experts

must explain precisely how they went about reaching their conclusions . . . .’”

(citation omitted)).

While Dr. Howlett provided a detailed explanation of conjoint analysis, her

explanation of the hybrid damages model amounted to essentially just a paragraph

of her declaration. ER05138, ¶ 139. Her explanation was conclusory and

supported by little explanation or evidence showing why it was acceptable to

combine conjoint analysis and hedonic regression. ER05138. The district court

should have heeded its conclusion in its first order denying certification, where it

rejected Dr. Weir’s damages model because it was “left with only [the expert’s]

assurance that [they] can build a model to calculate damages.” ER00052-53. See

Randolph, 303 F.R.D. at 697 (“Plaintiff has simply stated, in a conclusory fashion,

that hedonic regression will be able to calculate the premium included in

Defendant's products . . . .”).

* * *

In sum, the district court entirely failed to conduct the requisite rigorous

analysis to determine that Dr. Howlett’s hybrid damages model—the only method

it considered to satisfy Comcast—was reliable and persuasive. The hybrid model

is not an accurate reflection of the market price, rendering it incapable of



calculating a GMO price premium. Worse, the model was untested, either by

general researchers or by Dr. Howlett herself, and insufficiently explained or

supported. Accordingly, the district court abused its discretion in relying upon this

model to show that damages could be calculated on a classwide basis, and it should

not have found that predominance was satisfied with respect to damages.

V. A class action is not a superior vehicle for adjudicating Plaintiffs’ claims because it is unmanageable.

In addition to predominance, Rule 23(b)(3) requires Plaintiffs to demonstrate

the superiority of the class action mechanism. To show superiority, Plaintiffs must

address several factors, one of which is “the likely difficulties in managing a class

action.” Fed. R. Civ. P. 23(b)(3)(D). They must not only identify the difficulties

likely to be encountered in the management of the action, but must also present the

court with some explanation as to how these difficulties will be addressed. Zinser

v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001). Here,

Plaintiffs’ explanations do not pass muster. In its initial decision denying

certification, the district court noted that “it ha[d] concerns about the manageability

of any trial proceeding” despite Plaintiffs’ various proposals. ER00103 & n.143.

Indeed, “if a class action…involve[s] the application of multiple states’ laws—

even if only on one claim—it is likely to be too unmanageable under Rule

23(b)(3)(D).” Gartin v. S&M NuTec LLC, 245 F.R.D. 429, 441 (C.D. Cal. 2007).

That is precisely the case here.



As the district court noted, the certification of eleven separate state classes

will “require proof of different elements” for the various state consumer protection

laws. ER00272. Even if some of these elements may “fall into consistent

patterns,” id., this does not alleviate the fact that different evidence, defenses, jury

instructions and verdict forms will be necessary for these claims. See, e.g.,

Gianino v. Alacer Corp., 846 F. Supp. 2d 1096, 1099 (C.D. Cal. 2012). The

district court’s proposed solution to this problem was to “sever the classes

following certification for separate adjudication of the claims of the state classes.”

ER00273. Yet eleven separate trials undermines the primary purposes of class

actions – to conserve judicial resources and prevent multiple trials on the same

liability issues. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446 (4th Cir.

2003).

The same reasons that make the classes unascertainable, supra Part II, also

make it unmanageable. ER05364, n.13. That Plaintiffs have failed to identify an

administratively feasible method for identifying class members demonstrates that

there are significant and unresolved manageability problems. Even courts that

(wrongly) reject the proposition that Plaintiffs must demonstrate that their class

definition is administratively feasible as part of the ascertainability analysis

consider it relevant to manageability. See, e.g., Mullins, 795 F.3d at 664.

Accordingly, even if this Court declines to consider administrative feasibility under



the rubric of ascertainability, it should hold that the class mechanism would be

unmanageable and therefore not superior.

* * *

If this Court concludes, as it should, that the district court abused its

discretion as to either ascertainability, typicality, predominance, or superiority, it

should reverse the decision below and order the district court to deny certification

of the putative classes.13 Plaintiffs have had numerous opportunities to file

complaints and class certification motions that would satisfy the strictures of Rule

23. They have failed to do so, and should not be granted yet another opportunity to

prolong this litigation.

CONCLUSION

For the foregoing reasons, this Court should reverse the decision of the

district court and remand with instructions to deny Plaintiffs’ amended motion for

class certification.

STATEMENT OF RELATED CASES

Under Ninth Circuit Rule 28-2.6, ConAgra is aware of three related cases

pending in this Court that come within the requirements of the Rule: Brazil v.

13 A ruling on materiality alone would affect only nine of the eleven classes. Seesupra note 5.



Dole Packaged Foods, LLC, No. 14-17480, Jones v. ConAgra Foods, No. 14-

16327, and Bruton v. Gerber Products Co., No. 15-15174.

Dated: September 21, 2015 Respectfully submitted,

MCGUIREWOODS LLP

/s/ A. Brooks Gresham A. Brooks Gresham Angela M. Spivey R. Trent Taylor Laura E. Coombe E. Rebecca Gantt




CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) because it contains 13,881 words,

excluding the parts of the brief exempted by Federal Rule of Appellate

Procedure 32(a)(7)(B)(iii).

2. This brief complies with the typeface and type-style requirements of Federal

Rule of Appellate Procedure 32(a)(5) and Federal Rule of Appellate

Procedure 32(a)(6) because it has been prepared in proportionally-spaced

typeface using Microsoft Word, in 14-point size.

Dated: September 21, 2015 /s/ A. Brooks Gresham A. Brooks Gresham




CERTIFICATE OF SERVICE

I hereby certify that on September 21, 2015, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals for

the Ninth Circuit using the appellate CM/ECF system. All participants in the

case are registered CM/ECF users and will be served by the system.

Dated: September 21, 2015 /s/ A. Brooks GreshamA. Brooks Gresham




III. Briseño v. Conagra Foods, Inc., U.S. Court of Appeals for the Ninth Circuit. Answering Brief of Plaintiffs-AppelleesNo. 15-55727

In the

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


v.

CONAGRA FOODS, INC., Defendant-Appellant.


(The Honorable Margaret M. Morrow) Case No. 2:11-cv-05379

ANSWERING BRIEF OF PLAINTIFFS-APPELLEES David E. Azar MILBERG LLP 10866 Wilshire Blvd, Suite 600 Los Angeles, California 90024 Telephone: (213) 617-1200 Ariana J. Tadler Henry J. Kelston Meagan Keenan Carey Alexander MILBERG LLP One Pennsylvania Plaza New York, New York 11030 Telephone: (212) 594-5300

Adam J. Levitt Edmund S. Aronowitz GRANT & EISENHOFER P.A. 30 North LaSalle Street Suite 2350 Chicago, Illinois 60605 Telephone: (312) 214-0000 Mary S. Thomas GRANT & EISENHOFER P.A. 123 Justison Street 7th Floor Wilmington, Delaware 19801 Telephone: (302) 622-7000

Class Counsel for Plaintiffs-Appellees Robert Briseño, et al.


82 ■ Class Actions ■ July 2017 i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................. i

TABLE OF AUTHORITIES ...................................................................... iv

STATEMENT WITH RESPECT TO ORAL ARGUMENT ..................... xii

INTRODUCTION ....................................................................................... 1

JURISDICTIONAL STATEMENT ............................................................ 3

STATEMENT OF THE ISSUES ................................................................ 3

STATEMENT OF THE CASE ................................................................... 3

SUMMARY OF ARGUMENT .................................................................... 6

ARGUMENT ............................................................................................... 9

I. The District Court’s class certification decision is subject to an abuse of discretion standard of review. ............................................ 9

II. The District Court did not abuse its discretion in holding that the eleven certified classes are ascertainable. ....................................... 9

A. The District Court applied the correct legal standard in evaluating the “definiteness” or “ascertainability” of the classes certified. ...................................................................... 11

B. Where the challenged misrepresentation appeared on every unit sold, class member self-identification satisfies ascertainability. ...................................................................... 14

C. Imposing a heightened ascertainability standard would not protect defendants’ due process rights but would imperil the viability of low-dollar value consumer class actions. ..... 21

III. The District Court correctly determined that Plaintiffs satisfied Rule 23(a)(3)’s typicality requirement and Rule 23(b)(3)’s predominance and superiority requirements. ................................ 31


Ascertainability ■ Spivey ■ 83ii

A. The class representatives’ claims are typical of other class members’ claims because they all arise from ConAgra’s common course of conduct. ..................................................... 32

1. Like the class representatives, all class members purchased Wesson Oils and paid more for them as a result of the “100% Natural” label. .............................. 33

2. Varying understandings of the term “100% Natural” among class members are irrelevant to typicality. ..... 34

3. That some class representatives might consider purchasing Wesson Oils in the future if ConAgra makes true disclosures is irrelevant to typicality. ...... 36

B. Plaintiffs’ claims are susceptible to classwide proof, satisfying Rule 23’s predominance requirement. ................. 38

1. Whether the “100% Natural” claim on Wesson Oils was false, misleading, and material to a reasonable consumer are inherently common, classwide questions. ....................................................................... 40

2. ConAgra’s demand that this Court reweigh common evidence and find Plaintiffs failed to demonstrate materiality goes far beyond the probing of merits allowed at the class certification stage. ....................... 45

3. Classwide evidence suggests ConAgra’s “100% Natural” claim on Wesson Oils is material to a reasonable consumer. .................................................... 48

C. The class action mechanism is superior to any other available method for adjudicating Plaintiffs’ claims concerning a uniformly labeled, low-dollar value consumer product. .................................................................. 58

1. Without the class action device, no individual purchaser of Wesson Oils could reasonably afford to seek a legal remedy. ...................................................... 59


84 ■ Class Actions ■ July 2017 iii

2. There is no reason that the factual issues in this case could not be adjudicated in a single trial. .................... 60

3. Eleven trials are superior to separate individual trials for each of the tens of millions of Wesson Oils purchasers. .................................................................... 60

IV. Plaintiffs’ damages methodology satisfies Comcast. ....................... 62

A. Plaintiffs’ proposed hedonic regression methodology reliably isolates the percentage “price premium” specifically and solely attributable to the presence of a “natural” label claim on cooking oils. .................................... 68

B. Analysis of choice-based conjoint survey results reliably isolates the percentage “relative importance” of the “no-GMO” portion of a “natural” claim. ....................................... 69

C. Combining the percentage yielded by hedonic regression with the percentage yielded by conjoint analysis is proper. ..................................................................................... 71

CONCLUSION .......................................................................................... 75

STATEMENT OF RELATED CASES ..................................................... 75

CERTIFICATE OF COMPLIANCE ......................................................... 76


Ascertainability ■ Spivey ■ 85iv

TABLE OF AUTHORITIES

Page(s) CASES

Alcantar v. Hobart Serv., 800 F.3d 1047 (9th Cir. 2015) .............................................................. 45

Algarin v. Maybelline, 300 F.R.D. 444 (S.D. Cal. 2014) ........................................................... 19

Allapattah Servs. v. Exxon Corp., 333 F.3d 1248 (11th Cir. 2003) ............................................................ 67

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ........................................................................ 29, 59

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) .................................................................. passim

Astiana v. Ben & Jerry’s Homemade, Inc., No. C 10-4387, 2014 WL 60097 (N.D. Cal. Jan. 7, 2014) ................... 17

Astiana v. Kashi Co., 291 F.R.D. 493 (S.D. Cal. 2013) ............................................... 15, 29, 37

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) ................................................................ 47

Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831, 2014 WL 2466559 (N.D. Cal. May 30, 2014) ........ 26

Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831, 2014 WL 5794873 (N.D. Cal. Nov. 6, 2014) .......... 68

Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015) ................................................................... 21

Bruton v. Gerber Products Co., No. 12-CV-02412, 2014 WL 2860995 (N.D. Cal. June 23, 2014) ....... 17


86 ■ Class Actions ■ July 2017 v

Busey v. Macon County Greyhound Park, Inc., 562 F. App’x 782 (11th Cir. 2014) ........................................................ 22

Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013) ................................................................ 38

Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015) ........................................................... 21, 25

Carnegie v. Household Int’l, Inc., 376 F.3d 656 (7th Cir. 2004) ................................................................ 59

Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) ......................................................... passim

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) .................................................................. passim

Daar v. Yellow Cab Co., 433 P.2d 732 (Cal. 1967) ................................................................ 12, 28

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) .............................................................................. 66

Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304 (9th Cir. 1977) .............................................................. 13

Edwards v. First Am. Corp., 798 F.3d 1172 (9th Cir. 2015) .............................................................. 38

Edwards v. Ford Motor Co., 603 F. App’x 538 (9th Cir. 2015) .......................................................... 41

Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ................................................................ 46

EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014) .......................................................... 22, 53

Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 131 S. Ct. 2179 (2011) ................................................... 39


Ascertainability ■ Spivey ■ 87vi

Estrella v. Freedom Fin. Network, LLC, No. C 09-03156, 2010 WL 2231790 (N.D. Cal. June 2, 2010) ............ 35

Exxon Corp. v. Texas Motor Exch. of Houston, Inc., 628 F.2d 500 (5th Cir. 1980) ................................................................ 54

Fairbanks v. Farmers New World Life Ins. Co., 197 Cal. App. 4th 544 (2011) ............................................................... 56

Fancaster, Inc. v. Comcast Corp., 832 F. Supp. 2d 380 (D.N.J. 2011) ...................................................... 54

Forcellati v. Hyland’s, Inc., No. CV 12–1983, 2014 WL 1410264 (C.D. Cal. Apr. 9, 2014) 15, 26, 30

Forrand v. Federal Exp. Corp., No. CV 08-1360, 2013 WL 1793951 (C.D. Cal. Apr. 15, 2013) ........... 53

Fractus, S.A. v. Samsung, No. 6:09-cv-203, 2011 WL 7563820 (E.D. Tex. Apr. 29, 2011) ........... 55

Frey v. First Nat’l Bank Sw., 602 F. App’x 164 (5th Cir. 2015) .......................................................... 22

Guido v. L’Oreal, USA, Inc., Nos. CV CV 11–1067, CV 11–5465, 2013 WL 3353857 (C.D. Cal. July 1, 2013) ................................................................................... 15, 70

Halperin v. Nichols, Safina, Lerner & Co., No. 94 C 6960, 1996 WL 634037 (N.D. Ill. Oct. 29, 1996) .................. 35

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ........................................................ 32, 38

Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) ................................................................ 32

Harold’s Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533 (10th Cir. 1996) .............................................................. 54

Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2003) ................................................................. 57


88 ■ Class Actions ■ July 2017 vii

Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) ................................................................ 30

Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir.2013) ............................................................... 41

In re Celexa v. Lexapro Mktg. & Sales Practices Litig., 291 F.R.D. 13 (D. Mass. 2013) ............................................................. 56

In re Clorox Consumer Litig., 301 F.R.D. 436 (N.D. Cal. 2014) .......................................................... 18

In re Countrywide Fin. Corp. Mortg. & Sales Practices Litig., Nos. 08md1988, 10cv0257, 2011 WL 6325877 (S.D. Cal. Dec. 16, 2011) ...................................................................................................... 56

In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015) .................................................................... 21

In re NJOY Consumer Class Action Litig., No. CV 14-00428, 2015 WL 4881091 (C.D. Cal. Aug. 14, 2015) (Morrow, J.) .......................................................................................... 26

In re POM Wonderful, LLC, No. ML10-02199, 2014 WL 1225184 (C.D. Cal. Mar. 25, 2014) ........ 18

In re Prempro Prods. Liab. Litig., 514 F.3d 825 (8th Cir.2008) ................................................................. 72

In re Tobacco II Cases, 207 P.3d 20 (Cal. 2009) ........................................................................ 42

In re Vioxx Class Cases, 180 Cal. App. 4th 116 (2009) ............................................................... 56

In re Visa Check/Mastermoney Antitrust Litig. v. Visa, U.S.A., Inc., 280 F.3d 124 (2d Cir. 2001) ................................................................. 60

In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953 (9th Cir. 2009) .................................................................. 9


Ascertainability ■ Spivey ■ 89viii

Int’l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401 (9th Cir. 1985) .............................................................. 43

Jones v. ConAgra Foods, Inc., No. C 12-01633, 2014 WL 2702726 (N.D. Cal. June 13, 2014) .............. ................................................................................................... 17, 19, 58

Khoday v. Symantec Corp., 93 F. Supp. 3d 1067, 1082 (D. Minn. 2015) ........................................ 70

Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) ............................................................ 61

Kosta v. Del Monte Foods, Inc., 308 F.R.D. 217 (N.D. Cal. 2015) .................................................... 52, 53

Krueger v. Wyeth, Inc., No. 03CV2496, 2015 WL 5839197 (S.D. Cal. Oct. 7, 2015) .......... 15, 26

Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011) ...................................................................... 74

Lilly v. Jamba Juice Co., 308 F.R.D. 231 (N.D. Cal. 2014) (Tigar, J.) ................................... 26, 29

Mailloux v. Arrow Fin. Servs., LLC, 204 F.R.D. 38 (E.D.N.Y. 2001) ............................................................. 35

Marsu, B.V. v Walt Disney Co., 185 F.3d 932 (9th Cir. 1999) ................................................................ 67

Martin v. Pacific Parking Sys. Inc., 583 F. App’x 803 (9th Cir. 2014) .......................................................... 16

McCrary v. Elations Co., LLC, No. EDCV 13-00242, 2014 WL 1779243 (C.D. Cal. Jan. 13, 2014) .......................................................................................... 15, 24, 29

Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., No. CV 12-3224, 2015 WL 7422597 (C.D. Cal. Nov. 16, 2015) .......... 11


90 ■ Class Actions ■ July 2017 ix

Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) ........................................................ passim

O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311 (C.D. Cal. 1998) .......................................................... 11

O’shana v. Coca-Cola Co., No. 04 C 3596, 2005 WL 1661999 (N.D. Ill. July 13, 20) ................... 56

Pizza Hut, Inc. v. Papa John’s Int’l, 227 F.3d 489 (5th Cir. 2000) ................................................................ 55

Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015) .......................................................... 41, 67

Rahman v. Mott’s LLP, No. 13-cv-03482, 2014 WL 6815779 (N.D. Cal. Dec. 3, 2014) ............ 26

Red v. Kraft Foods, Inc., No. CV 10-1028, 2012 WL 8019257 (C.D. Cal. Apr. 12, 2012) ........... 37

Ries v. AriZona Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) .......................................................... 15

Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015) .......................................................... 22, 25

Sanchez-Knutson v. Ford Motor Co., No. 14-61344, 2015 WL 6395040 (S.D. Fla. Oct. 6, 2015) .................. 70

Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907, 2014 WL 580696 (N.D. Cal. Feb. 13, 2014) ............. 18, 26

Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011) ...................................................... passim

Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931) .............................................................................. 67

Strawn v. Farmers Ins. Co. of Oregon, 258 P.3d 1199 (Or. 2011) ..................................................................... 57


Ascertainability ■ Spivey ■ 91x

THOIP v. Walt Disney Co., 690 F. Supp. 2d 218 (S.D.N.Y. 2010) ................................................... 54

Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112 (2d Cir. 1984) ................................................................. 54

Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136 (10th Cir. 2013) ............................................................ 54

Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 734 (E.D. Mich. 2003) ............................................... 55

Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168 (9th Cir. 2010) ................................................ 9, 32

Xavier v. Philip Morris USA Inc., 787 F. Supp. 2d 1075 (N.D. Cal. 2011) ................................................ 19

Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) .............................................................. 42

Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012) ................................................................ 22

RULES

Central District of California L.R. 7-6 ..................................................... 27

Federal Rule of Civil Procedure 23 .................................................. passim

OTHER AUTHORITIES

Charles Alan Wright et al., 7A Fed. Prac. & Proc. Civ. § 1760 (3d ed. 2015) ................................................................................................ 23

Geoffrey C. Shaw, Note, Class Ascertainability, 124 Yale L.J. 2354 (2015) .................................................................................................... 28


92 ■ Class Actions ■ July 2017 xi

Jerold S. Solovy et al., 5-23 Moore’s Federal Practice - Civil § 23.21 (2015) ....................................................................................... 23

Joseph M. McLaughlin, 1 McLaughlin on Class Actions § 4:2 (12th ed. 2015) ................................................................................................ 23

MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.222 (2004) ................ 24

Shari S. Diamond, Reference Guide on Survey Research, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (Federal Judicial Center 3d ed. 2011) .............................................................................. 51

William B. Rubenstein, Newberg on Class Actions § 3:1 (5th ed. 2015) ...................................................................................................... 23


Ascertainability ■ Spivey ■ 93xii

STATEMENT WITH RESPECT TO ORAL ARGUMENT

Pursuant to Federal Rule of Appellate Procedure 34(a), Plaintiffs-

Appellees state that oral argument should be heard in this case because

of the importance of this Court’s decision to the ability of consumers to

bring class actions involving low-priced consumer goods.


94 ■ Class Actions ■ July 2017 1

INTRODUCTION

The District Court properly exercised its discretion in certifying

eleven statewide classes and 22 class claims under Rule 23(b)(3).

This is a straightforward consumer case based on a uniform “100%

Natural” misrepresentation on the label of all Wesson brand cooking

oils (“Wesson Oils”). Class certification under Rule 23(b)(3) is

particularly appropriate in this type of case, and Appellees Robert

Briseño, Michele Andrade, Jill Crouch, Julie Palmer, Pauline Michael,

Cheri Shafstall, Dee Hopper-Kercheval, Kelly McFadden, Necla Musat,

Maureen Towey, Erika Heins, Rona Johnston, and Anita Willman

(“Plaintiffs”) satisfied all certification requirements. Appellant

ConAgra Foods, Inc. (“ConAgra”) incorrectly contends that the District

Court erred in its analysis of ascertainability, typicality, predominance,

superiority, and Plaintiffs’ damages methodology.

The classes are ascertainable because they are defined by

objective criteria so that class members can self-identify through

declarations or claim forms under the facts of this case. Plaintiffs’

claims are typical of, and, indeed, identical to, the claims of the classes

they represent. Common liability questions (including the falsity and



materiality of the common “100% Natural” representation, and its

ability to cause economic harm) predominate over any individualized

questions. Class adjudication is the superior method for fairly and

efficiently adjudicating the claims of the millions of purchasers of

Wesson Oils. Finally, Plaintiffs’ proposed damages methodology (a

combination of hedonic regression and conjoint analysis) translates

ConAgra’s act of misrepresenting Wesson Oils as “100% Natural” into

its economic impact on the classes.

For all of these reasons, the decision below should be affirmed.



JURISDICTIONAL STATEMENT

ConAgra’s jurisdictional statement is accurate.

STATEMENT OF THE ISSUES

1. Whether the District Court properly exercised its discretion in holding ascertainability is satisfied because the class definition is based on objective criteria and because self-identification through claim forms is a valid method for determining individual class members’ identities under the facts of this case.

2. Whether the District Court properly exercised its discretion in certifying classes of purchasers of Wesson brand cooking oils in eleven states with respect to 22 specifically enumerated state law claims under Federal Rule of Civil Procedure 23(b)(3).

3. Whether the District Court properly exercised its discretion in

holding Plaintiffs’ proposed methodology for calculating classwide damages translates their theory of liability into its economic impact in satisfaction of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).

STATEMENT OF THE CASE

ConAgra represented that every container of Wesson Oils was

“100% Natural” on the front label every unit sold throughout the class

period. (ER00138.) There are no consumer “varieties” of Wesson Oil on

which the “100% Natural” claim did not appear. (ER00149.)

When Plaintiffs purchased Wesson Oils, they reasonably believed

that Wesson Oils were made from natural ingredients because ConAgra

had labeled them “100% Natural.” (ER003452-ER003485.) Plaintiffs



later learned that ConAgra made Wesson Oils from genetically modified

organisms (“GMOs”), specifically GMO corn, soy, and canola. (Id.)

Plaintiffs alleged ConAgra’s “100% Natural” label is fraudulent,

deceptive, and misleading to reasonable consumers because products

derived from GMOs, like Wesson Oils, cannot honestly be labeled as

“natural.” (ER05866-ER05867; see also ER06044-ER06094.) Plaintiffs

alleged ConAgra’s “100% Natural” label harmed all purchasers of

Wesson Oils because that label created a retail price premium they all

paid. (See, e.g., ER05899.) Plaintiffs asserted state law claims for

breach of consumer protection statutes, breach of express or implied

warranty, and unjust enrichment. (ER05895-ER05906.)

On July 14, 2014, Plaintiffs moved for certification of twelve

statewide classes. (ER05932-ER06020.)

On August 1, 2014, the District Court denied class certification,

without prejudice, for three reasons. First, the District Court struck the

opening expert report of economist Colin Weir because the Court

considered some of Mr. Weir’s supporting information to have been

untimely provided. (ER00047-ER00053; ER00098-99.) Second, the

District Court found that Plaintiffs (having presented state-specific



information in an appendix) had not shown whether the substantive

laws of states other than California required “individualized proof of

reliance and/or causation.” (ER00096-ER00097.) Third, the District

Court held that Plaintiffs’ proposed damages methodology did “not

suffice under Comcast” because Plaintiffs intended to calculate “the

price premium attributable to use of the term ‘100% Natural’ and all of

the meanings consumers ascribe to it,” without isolating the price

premium associated with the “no-GMO” meaning of “natural.”

(ER00101.)

On November 14, 2014, Plaintiffs filed their amended motion for

certification of eleven statewide classes and 34 state law claims.

(ER07766-ER07778.) In support, Plaintiffs submitted an amended

expert report from Mr. Weir that now included the necessary

supporting information and an expert report from Dr. Elizabeth

Howlett that described how a choice-based conjoint analysis survey

could isolate the relative value of a “no-GMO” meaning of the “natural”

claim on Wesson Oils. (ER04922-ER05227.) Plaintiffs also submitted

various internal ConAgra marketing studies and third-party surveys



regarding factors that motivated purchase of Wesson Oils and consumer

understandings of natural claims. (ER00250-ER00251.)

On February 23, 2015, the District Court granted, in part,

Plaintiffs’ amended class certification motion. The District Court

admitted the majority of Plaintiffs’ expert testimony, including Mr.

Weir’s hedonic regression report and Dr. Howlett’s conjoint analysis

report. The District Court analyzed the elements of all 34 claims.

(ER00201-ER00250.) The District Court weighed the evidence and held

Plaintiffs “made a sufficient showing for the purposes of class

certification that the ‘100% Natural’ claim is material and that

consumers generally understand it, inter alia, as a representation that

Wesson Oils do not contain GMOs.” (ER00252.) The District Court

certified all eleven statewide classes and the 22 claims in which

Plaintiffs could establish elements of reliance and/or causation from

classwide evidence. (ER00274-ER00275.)

SUMMARY OF ARGUMENT

First, the District Court properly found that Plaintiffs had

satisfied ascertainability because the classes are defined by objective

criteria (purchase of Wesson Oils during the class period) so that class



members can self-identify in a claims process. Self-identification is

reliable here because all units of Wesson Oils had the same “100%

Natural” claim on the label throughout the class period. Certification

does not deprive ConAgra of the ability to raise any defenses, nor is

there a danger of classwide judgment failing to achieve preclusive res

judicata effect, as final judgment will resolve any future claims

premised on the “100% Natural” label on Wesson Oils. Adopting the

view of ascertainability advanced by ConAgra—that sworn claims forms

attesting to purchase could not satisfy ascertainability here—would

effectively eliminate the entire category of low-dollar value consumer

class actions.

Second, the District Court correctly held that Plaintiffs satisfied

all Rule 23(a) prerequisites and the Rule 23(b)(3) predominance and

superiority requirements because (i) Plaintiffs’ certified consumer

protection, breach of warranty, and unjust enrichment claims are

identical to the claims of the other class members they seek to

represent, (ii) the answers to common classwide questions regarding

falsity, materiality, and damages predominate over any individualized

issues, and (iii) classwide adjudication of claims regarding the labeling



of Wesson Oils is superior to either millions of individual adjudications,

or, as would be more likely, no adjudication at all.

Third, Plaintiffs’ methodology for calculating classwide damages—

a combination of (i) the results of a hedonic regression of historical sales

data to determine the “natural” label price premium percentage on

cooking oils, and (ii) the results of a conjoint analysis of survey

responses to determine the relative value consumers assign to a “no

GMO” interpretation of a “natural” claim—aligns with Plaintiffs’

liability theory. Plaintiff’s liability theory is that ConAgra misled

reasonable consumers by labeling GMO-derived Wesson Oils as 100%

Natural. This 100% Natural label created a price premium all Wesson

Oils purchasers had to pay. Plaintiffs damages methodology measures

this “100% Natural” price premium and then subdivides it by the

relative importance of “no-GMO” meaning of “natural.” Thus, Plaintiffs’

damages methodology satisfies Comcast, because it translates

Plaintiffs’ liability theory into its economic impact.

For all these reasons, the District Court’s certification order

should be affirmed.



ARGUMENT

I. The District Court’s class certification decision is subject to an abuse of discretion standard of review.

This Court reviews class certification decisions for abuse of

discretion. In re Wells Fargo Home Mortg. Overtime Pay Litig., 571

F.3d 953, 957 (9th Cir. 2009). “When reviewing a grant of class

certification, we accord the district court noticeably more deference than

when we review a denial of class certification.” Wolin v. Jaguar Land

Rover N. Am., LLC, 617 F.3d 1168, 1171 (9th Cir. 2010) (citation and

internal quotation omitted).

II. The District Court did not abuse its discretion in holding that the eleven certified classes are ascertainable.

Accepting Plaintiffs’ proposed definitions, the District Court

defined the eleven statewide classes as “[a]ll persons who reside in the

[class states] who have purchased Wesson Oils within the applicable

statute of limitations periods established by the laws of their state of

residence (the ‘Class Period’) through the final disposition of this and

any and all related actions.” (ER00139; ER00274-ER00275.) In both its

August 1, 2014 and February 2, 2015 Orders, the District Court

analyzed whether these classes were sufficiently definite and thus



ascertainable, and held that they were. (ER00075-ER00081; ER00181-

ER00185.)

The District Court did not err. (Cf. Appellant’s Br. 12-23.) First,

the District Court applied the correct legal standard in evaluating the

“definiteness” or “ascertainability” of the classes. Second, the District

Court appropriately exercised its discretion in holding that, where the

alleged misrepresentation consistently appeared on the label of every

unit of the product throughout the class period, class member self-

identification through declarations or claim forms is a manageable and

reliable method for determining the identities of individual class

members. Third, allowing this case to proceed as a class action for

damages and equitable monetary relief does not imperil ConAgra’s due

process right to present its defenses. Adopting ConAgra’s

“ascertainability” interpretation—that claims forms are insufficient as a

matter of law—“would effectively prohibit class actions involving low

priced consumer goods (the very type of claims that would not be filed

individually) thereby upending ‘[t]he policy at the very core of the class

action mechanism.’” (ER00184 (citation omitted).)



A. The District Court applied the correct legal standard in evaluating the “definiteness” or “ascertainability” of the classes certified.

“Ascertainability” is not explicitly mentioned in Rule 23. See Fed.

R. Civ. P. 23. Instead, “ascertainability” is a court-constructed doctrine

that confirms “a class does in fact exist” and “the description of the class

is definite enough so that it is administratively feasible for the court to

ascertain whether an individual is a member.” O’Connor v. Boeing N.

Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998) (emphasis added); see

also Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., No. CV 12-3224,

2015 WL 7422597, at *15 (C.D. Cal. Nov. 16, 2015) (“[C]ourts should

‘take notice’ of whether the class definition is ‘precise, objective, and

presently ascertainable[,]’ but they need not address such issues

directly ‘unless they pose a problem in the context of the particular case

at hand.’”)(citations omitted).

The ability of the class proponent or the court to identify every

person who falls within the class definition with perfect accuracy is not

a proper component of the ascertainability analysis, nor is it a

prerequisite to certification. See Mullins v. Direct Digital, LLC, 795

F.3d 654, 657-658 (7th Cir. 2015) (noting some “courts have imposed a



new requirement that plaintiffs prove at the certification stage that

there is a ‘reliable and administratively feasible’ way to identify all who

fall within the class definition” and rejecting it because “[n]othing in

Rule 23 mentions or implies this heightened requirement under Rule

23(b)(3), which has the effect of skewing the balance that district courts

must strike when deciding whether to certify classes”); see also Daar v.

Yellow Cab Co., 433 P.2d 732, 740 (Cal. 1967) (“Defendant apparently

fails to distinguish between the necessity of establishing the existence

of an ascertainable class and the necessity of identifying the individual

members of such class as a prerequisite to a class suit.”). Thus,

ConAgra’s contention that the administrative feasibility of individually

identifying class members in an “objectively verifiable” manner is a

standalone requirement of the ascertainability doctrine is incorrect.

(Appellant’s Br. 14-23.)

Here, the District Court held that (i) Plaintiffs’ proposed class

definition “identifies putative class members by objective

characteristics; this is the mark of an ascertainable class,” and (ii)

under the circumstances here, class member self-identification through



a claim form or declaration is a sufficiently reliable method for

determining class membership at the appropriate time, explaining:

While it is true that identifying class members may well require the creation of a claim form or declaration that those asserting membership in the class must submit (likely under penalty of perjury), courts have concluded that such a procedure makes the class ascertainable, at least where the alleged mislabeling occurred throughout the class period, and on a single product or narrow group of products.

(ER00078-ER00079 (citations omitted); see also ER00185.) The district

court’s factual determination regarding ascertainability is entitled to

deference, as ConAgra itself acknowledges in its answering brief in

Jones v. ConAgra. See Jones v. ConAgra Foods, Inc., No. 14-16327,

Appellee’s Answering Brief at 25 (9th Cir. Jan. 21, 2015) (“the district

court’s purely factual (not to mention discretionary) determination” of

the labeling and ingredient facts that relate to ascertainability

“commands this Court’s deference.”); see also Doninger v. Pac. Nw. Bell,

Inc., 564 F.2d 1304, 1309 (9th Cir. 1977) (“[T]he judgment of the trial

court should be given the greatest respect and the broadest discretion

. . . because the district court is in the best position to consider the most

fair and efficient procedure for conducting any given litigation.”)

(quotation and citation omitted).



Thus, the District Court did not fail to apply the correct legal

standard or fail to consider “administrative feasibility” at all. (Cf.

Appellant’s Br. 3, 8, 12, 18-20, and 23.) The record also shows Plaintiffs

proposed self-identification as a method for identifying class members

at the appropriate time, ConAgra’s contention to the contrary

notwithstanding. (Compare Appellant’s Br. 8, 12, 18, and 23 with

ER06297-ER06298 (Plaintiffs’ reply brief proposing self-identification).)

B. Where the challenged misrepresentation appeared on every unit sold, class member self-identification satisfies ascertainability.

Self-identification is sufficiently reliable (and administratively

feasible) in this case because the “100% Natural” claim appears on the

front label of every unit of Wesson Oils sold during the class period.

The class period is from 2007 through final disposition of this action,

plus or minus 2-3 years to account for differences in applicable statutes

of limitations.

All class members were exposed to the same “100% Natural” label

claim regardless of the size of the bottle, the variety of oil, or where they

made their Wesson Oils purchase. (ER00138.) A person need only

remember and attest that they purchased a “Wesson” branded cooking



oil since 2007 in one of eleven states to accurately self-identify as a class

member. (ER00184.) Under such circumstances, self-identification

satisfies ascertainability. See Krueger v. Wyeth, Inc., No. 03CV2496,

2015 WL 5839197, at *6 (S.D. Cal. Oct. 7, 2015) (“[C]ourts in this circuit

have found proposed classes ascertainable even when the only way to

determine class membership is with self-identification through

affidavits.”) (emphasis in original, citations omitted); Forcellati v.

Hyland’s, Inc., No. CV 12–1983, 2014 WL 1410264, at *5 (C.D. Cal. Apr.

9, 2014) (holding self-identification proper even when “there are no

records that could confirm class membership”); McCrary v. Elations Co.,

LLC, No. EDCV 13-00242, 2014 WL 1779243, at *8 (C.D. Cal. Jan. 13,

2014) (holding class ascertainable where “class definition clearly

define[d] the characteristics of a class member by providing a

description of the allegedly offending product and the eligible dates of

purchase”); Astiana v. Kashi Co., 291 F.R.D. 493, 500 (S.D. Cal. 2013)

(same); Guido v. L’Oreal, USA, Inc., Nos. CV CV 11–1067, CV 11–5465,

2013 WL 3353857, at *18 (C.D. Cal. July 1, 2013) (same); Ries v.

AriZona Beverages USA LLC, 287 F.R.D. 523, 535 (N.D. Cal. 2012)

(same).



That all Wesson Oils purchasers were exposed to the same “100%

Natural” claim and need only recall that they purchased Wesson Oils to

self-identify as a class member distinguishes this case from Martin v.

Pacific Parking Sys. Inc., 583 F. App’x 803 (9th Cir. 2014)

(unpublished), on which ConAgra relies. (Appellant’s Br. 15, 18, 21.)

The class definition in Martin featured multiple criteria that could

confound the memory of potential class members. Specifically, the

proposed class in Martin included only individuals who (i) used their

personal, not business, credit cards to pay for parking at defendant’s lot,

(ii) received parking permits with expiration dates printed on them, and

(iii) did not suffer identity theft. The Court noted, “Martin presented

little persuasive, admissible evidence that all of the machines at issue

in this case printed expiration dates uniformly from 2008 to 2011.”

Martin, 583 F. App’x. at 804. In the present case, by contrast,

“[t]hroughout the proposed class period every bottle of Wesson Oil

carried a front label stating that the product was ‘100% Natural’” and

“ConAgra’s conduct was indisputably uniform with respect to all

members of the putative class.” (ER00138; ER00227.) In addition,

here, all Plaintiffs and other class members were harmed because they



all paid a “price premium” for Wesson Oils caused by ConAgra’s

uniform “100% Natural” labeling claim. (See ER00179-ER00181;

ER00259-ER00260.)

In the cases on which ConAgra relies, variations in the array of

products at issue, variations in labeling during the class period, or the

inability of class members to remember whether they even bought the

product in question—all circumstances that are absent in this case—

rendered self-identification by class members so unreliable as to be

administratively infeasible. See Bruton v. Gerber Products Co., No. 12-

CV-02412, 2014 WL 2860995, at *9 (N.D. Cal. June 23, 2014) (“the fact

that the same products were sold with and without the challenged label

statements simultaneously make Plaintiff’s proposed class

identification method administratively unfeasible”); Jones v. ConAgra

Foods, Inc., No. C 12-01633, 2014 WL 2702726, at *10 (N.D. Cal. June

13, 2014) (defendant sold multiple versions of each of the contested

product labels during the class period, some bearing the allegedly

misleading statements and others not); Astiana v. Ben & Jerry’s

Homemade, Inc., No. C 10-4387, 2014 WL 60097, at *3 (N.D. Cal. Jan.

7, 2014) (no method to determine which ice creams were made with



synthetic alkali versus natural alkali); In re Clorox Consumer Litig.,

301 F.R.D. 436, 441 (N.D. Cal. 2014) (record demonstrated consumers

could not “necessarily remember when they bought cat litter, or which

sizes, types, or even brands of cat litter they purchased”); see also In re

POM Wonderful, LLC, No. ML10-02199, 2014 WL 1225184, at *6 (C.D.

Cal. Mar. 25, 2014) (noting that “[n]o bottle, label, or package included

any of the alleged misrepresentations”).

In one outlier case on which ConAgra relies, a district court denied

certification on ascertainability grounds because the plaintiff did not

“present any method for determining class membership, let alone an

administratively feasible method,” even though all the nutrition bars at

issue were labeled the same way throughout the class period. See

Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907, 2014 WL

580696, at *6 (N.D. Cal. Feb. 13, 2014). That case depended on

adoption of a “heightened” ascertainability doctrine, which, as explained

below, this Court should not impose.

In another case on which ConAgra relies, the court noted that it

would be difficult for class members to self-identify even when there

was no evidence of labeling variation but also held that “a lack of



ascertainability alone will not defeat class certification” and that the

challenges entailed in administration were not so burdensome as to

defeat certification. See Algarin v. Maybelline, 300 F.R.D. 444, 456

(S.D. Cal. 2014) (citations omitted).

Here, because every unit of Wesson branded cooking oils sold

contained the misleading “100% Natural” label, the product array,

labeling variation, and memory issues as to specific products that

inhibited ascertainability in other cases are not at issue, thus the class,

defined as all persons who bought Wesson Oils, satisfies

ascertainability. See Jones, 2014 WL 2702726, at *10 (“[T]his Court

might be persuaded that a class of ‘all people who bought Twinkies,’ for

example, during a certain period, could be ascertained—one would at

least have more confidence in class members' ability to accurately self-

identify[.]”).

Additionally, this is not a case where the class definition depends

on an individual’s state of mind; an individual simply must have

purchased Wesson Oils during the multi-year class period. See Xavier

v. Philip Morris USA Inc., 787 F. Supp. 2d 1075, 1089 (N.D. Cal. 2011)

(denying certification where “[t]he question” of class membership



“would come down to the state of mind of the putative class member,

and it would be easy to fade in or out of the class depending on the

outcome.”). In addition, “ConAgra may also be able to test an

individual’s claim that he or she is a class member by comparing

information about the individual’s purchase with information it

maintains concerning the retailers that sold its products during the

class period or other similar information.” (ER00079.)

Moreover, ConAgra’s own marketing expert relied on the ability of

consumers to self-identify as Wesson Oils purchasers by answering the

following online screening question—“Which of the following brands of

vegetable oil have you personally purchased in the past 12 months?”—

as part of his attempt to generate survey results that would aid

ConAgra in this case. (See ER00792-ER00793 and ER00850 (emphasis

in original).) ConAgra cannot legitimately contend self-identification is

only reliable when it serves ConAgra’s own interests.

Given these facts, the District Court did not abuse its discretion in

holding self-identification sufficient here.



C. Imposing a heightened ascertainability standard would not protect defendants’ due process rights but would imperil the viability of low-dollar value consumer class actions.

Every Circuit that has addressed the basic contours of the

ascertainability doctrine agrees that “objective criteria” or

“definiteness” is the overarching standard. See In re Nexium Antitrust

Litig., 777 F.3d 9, 19 (1st Cir. 2015) (“[T]he definition of the class must

be ‘definite,’ that is, the standards must allow the class members to be

ascertainable . . . The class definition here satisfies these standards by

being defined in terms of purchasers of Nexium during the class

period”) (citations omitted); Brecher v. Republic of Argentina, 806 F.3d

22, 24-25 (2d Cir. 2015) (“A class is ascertainable when defined by

objective criteria that are administratively feasible and when

identifying its members would not require a mini-hearing on the merits

of each case.”) (citation and quotation omitted); Byrd v. Aaron’s Inc.,

784 F.3d 154, 163 (3d Cir. 2015) (“The ascertainability inquiry is two-

fold, requiring a plaintiff to 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.’”) (internal citations



omitted); EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014)

(“However phrased, the [ascertainability] requirement is the same.”)

(citations omitted); Frey v. First Nat’l Bank Sw., 602 F. App’x 164, 168

(5th Cir. 2015) (“We have stated that ‘in order to maintain a class

action, the class sought to be represented must be adequately defined

and clearly ascertainable.’”) (citation omitted); Rikos v. Procter &

Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (“‘For a class to be

sufficiently defined, the court must be able to resolve the question of

whether class members are included or excluded from the class by

reference to objective criteria.’”) (quoting Young v. Nationwide Mut. Ins.

Co., 693 F.3d 532, 538 (6th Cir. 2012)); Mullins, 795 F.3d at 657 (“We

and other courts have long recognized an implicit requirement under

Rule 23 that a class must be defined clearly and that membership be

defined by objective criteria rather than by, for example, a class

member’s state of mind.”); Busey v. Macon County Greyhound Park,

Inc., 562 F. App’x 782, 787 (11th Cir. 2014) (“An identifiable class exists

if its members can be ascertained by reference to objective criteria. The

analysis of the objective criteria also should be administratively

feasible.”) (citations and quotations omitted).



Leading treatises and other secondary sources are in accord. See

William B. Rubenstein, Newberg on Class Actions § 3:1 (5th ed. 2015)

(“Although formulations of this doctrine vary, all essentially require a

putative class to be ascertainable with reference to objective criteria.”)

(footnotes omitted); Joseph M. McLaughlin, 1 McLaughlin on Class

Actions § 4:2 (12th ed. 2015) (“[A] long-implicit requirement of Rule 23

and due process is that plaintiffs propose a class that is presently

ascertainable based on objective criteria that do not require the court to

delve into the merits of the claims.”); Charles Alan Wright et al., 7A

Fed. Prac. & Proc. Civ. § 1760 (3d ed. 2015) (“[T]he class does not have

to be so ascertainable that every potential member can be identified at

the commencement of the action . . . [but] the class description [must be]

sufficiently definite so that it is administratively feasible for the court

to determine whether a particular individual is a member.”); Jerold S.

Solovy et al., 5-23 Moore’s Federal Practice - Civil § 23.21 (2015) (“For a

class to be sufficiently defined, the court must be able to resolve the

question of whether class members are included or excluded from the

class by reference to objective criteria.”); MANUAL FOR COMPLEX



LITIGATION (FOURTH) § 21.222 (2004) (“The definition must be precise,

objective, and presently ascertainable.”).

Where courts diverge is on the narrow question of whether a class

defined as all purchasers of a particular low-value consumer product

within a defined period of time is “ascertainable” when it is unlikely

that there are written records that identify the purchasers, leaving self-

identification through claim forms or declarations as the most practical

way of determining the identities of individual class members.

Under the so-called “Carrera rule,” self-identification in such

circumstances does not satisfy ascertainability. See Carrera v. Bayer

Corp., 727 F.3d 300, 306-308 (3d Cir. 2013); see also McCrary, 2014 WL

1779243, at *8 (“It appears that pursuant to Carrera in any case where

the consumer does not have a verifiable record of its purchase, such as a

receipt, and the manufacturer or seller does not keep a record of buyers,

Carrera prohibits certification of the class.”).

However, the “Carrera rule” is contrary to better-reasoned

opinions that hold self-identification, under appropriate circumstances,

satisfies ascertainability. See Mullins, 795 F.3d at 658 (“The policy

concerns motivating the heightened ascertainability requirement are



better addressed by applying carefully the explicit requirements of Rule

23(a) and especially (b)(3). These existing requirements already

address the balance of interests that Rule 23 is designed to protect.”);

Rikos, 799 F.3d at 525 (holding there is “no reason to follow Carrera,

particularly given the strong criticism it has attracted from other

courts”); see also Byrd, 784 F.3d at 172 (Rendell, J., concurring) (“[T]he

time has come to do away with this newly created aspect of Rule 23 in

the Third Circuit. Our heightened ascertainability requirement defies

clarification. Additionally, it narrows the availability of class actions in

a way that the drafters of Rule 23 could not have intended.”).

Indeed, the ultimate resolution of Carrera itself effectively

repudiated the Third Circuit’s holding: the district certified a

settlement class under Rule 23(b)(3), defined as all purchasers of the

product in the State of Florida, in which class members could receive a

cash payment from the settlement fund by submitting a claim form

with no additional proof of purchase. See Carrera v. Bayer, No. 2:08-cv-

04716, Final Approval Order and Judgment (Document 147) (D.N.J.

Apr. 27, 2015).



The overwhelming majority of district judges within this Circuit

that have confronted the issue have rejected the Carrera rule. See, e.g.,

Krueger, 2015 WL 5839197, at *7 (Houston, J.); In re NJOY Consumer

Class Action Litig., No. CV 14-00428, 2015 WL 4881091, at * 24 (C.D.

Cal. Aug. 14, 2015) (Morrow, J.); Rahman v. Mott’s LLP, No. 13-cv-

03482, 2014 WL 6815779, at *10 (N.D. Cal. Dec. 3, 2014) (Illston, J.)

(“In light of the precedent set by many other district courts in this

Circuit, the Court declines to follow Carrera.”); Lilly v. Jamba Juice Co.,

308 F.R.D. 231, 240 (N.D. Cal. 2014) (Tigar, J.); Forcellati, 2014 WL

1410264, at *5 (King, J.); Brazil v. Dole Packaged Foods, LLC, No. 12-

CV-01831, 2014 WL 2466559, at *6 (N.D. Cal. May 30, 2014) (Koh, J.);

but see Sethavanish, 2014 WL 580696, at *6 (Conti, J.).

The reasons for rejecting the Carrera rule are sound. As the

Seventh Circuit explained in Mullins, none of the policy concerns

described in Carrera warrant imposing a heightened bar to class

actions. Mullins, 795 F.3d at 663-672.

First, “the due process question is not whether the identity of class

members can be ascertained with perfect accuracy at the certification

stage but whether the defendant will receive a fair opportunity to



present its defenses when putative class members actually come

forward.” Mullins, 795 F.3d at 670. While a defendant may argue that

challenging the claims of individual class members can be cost-

prohibitive, “[a] district court can tailor fair verification procedures to

the particular case, and a defendant may need to decide how much it

wants to invest in litigating individual claims.” Id. at 670.

Moreover, there is no bona fide reason to deem class member

affidavits as insufficient evidentiary proof of product purchase given

their regular use as sometimes the only proof in other significant court

proceedings:

If not disputed, self-serving affidavits can support a defendant’s motion for summary judgment, for example, and defendants surely will be entitled to a fair opportunity to challenge self-serving affidavits from plaintiffs. We are aware of only one type of case in American law where the testimony of one witness is legally insufficient to prove a fact. See U.S. Const., Art. III, § 3 (“No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”). There is no good reason to extend that rule to consumer class actions.

Mullins, 795 F.3d at 669; see also Central District of California L.R. 7-6

(establishing default rule that “declarations” “alone” are used to

establish “[f]actual contentions involved in any motion and opposition to



motions”). ConAgra’s demand that it must be able to cost-effectively

cross-examine each individual who claims class membership to ask

them whether they really purchased Wesson Oils turns the entire

purpose of class litigation on its head.

ConAgra’s additional argument that its due process rights are

threatened by the use of affidavits in this case because “the preclusive

effect of final judgment would be easy to evade” is baseless.

(Appellant’s Br. 14.) Because the class here is defined by objective

criteria (the purchase of Wesson Oils in certain states during a certain

time period), claim preclusion can be determined by reference to the

facts alleged in the complaint in any future action. If some hypothetical

future complaint challenges a “natural” claim on the label of a Wesson

cooking oil, purchased during the class period and in one of the eleven

states, that claim would be precluded by a class judgment in this case.

It does not matter whether that future plaintiff was specifically

identified as a class member in this litigation earlier. See Geoffrey C.

Shaw, Note, Class Ascertainability, 124 Yale L.J. 2354, 2375-78 (2015);

see also Daar, 433 P.2d at 740 (“If the existence of an ascertainable



class has been shown, there is no need to identify its individual

members in order to bind all members by the judgment.”).

The Carrera rule also has the “effect of barring class actions

where class treatment is often most needed: in cases involving

relatively low-cost goods or services, where consumers are unlikely to

have documentary proof of purchase.” Mullins, 795 F.3d at 658

(quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997)).

“These are cases where the class device is often essential ‘to overcome

the problem that small recoveries do not provide the incentive for any

individual to bring a solo action prosecuting his or her rights.’” Id.

(citation omitted); see also Astiana v. Kashi Co., 291 F.R.D. at 500 (“If

class actions could be defeated because membership was difficult to

ascertain at the class certification stage, there would be no such thing

as a consumer class action.”) (citation and internal quotation omitted);

McCrary, 2014 WL 1779243, at *8 (holding that the effect of Carrera is

to “eviscerate[] low purchase price consumer class actions.”); Lilly, 308

F.R.D. at 238 (“Adopting the Carrera approach would have significant

negative ramifications for the ability to obtain redress for consumer

injuries.”).



“Given the significant harm caused by immunizing corporate

misconduct,” the Seventh Circuit reasoned that “a district judge has

discretion to allow class members to identify themselves with their own

testimony and to establish mechanisms to test those affidavits as

needed.” Mullins, 795 F.3d at 669.

Additionally, ConAgra cannot (and does not) claim it has a due

process interest in how damages are distributed amongst class

members or that the number of class members who self-identify makes

a difference to ConAgra’s aggregate liability (two policy arguments set

forth in Carrera), as neither argument is valid. See Hilao v. Estate of

Marcos, 103 F.3d 767, 786 (9th Cir. 1996) (noting that a defendant’s

interest is “only in the total amount of damages for which it will be

liable,” not “the identities of those receiving damage awards”);

Forcellati, 2014 WL 1410264, at *6 (“because Defendants’ liability will

be determined in the aggregate, and they will have no claim to any

leftover damages, whether any given individual is or is not a rightful

class member is entirely immaterial to Defendants’ monetary liability

in this case.”); cf. Carrera, 727 F.3d at 309-310.



The “no receipt, no recovery” effect of the so-called “Carrera rule”

does not protect any legitimate due process right, is fatal to low-dollar

value consumer class actions, and should be rejected.

III. The District Court correctly determined that Plaintiffs satisfied Rule 23(a)(3)’s typicality requirement and Rule 23(b)(3)’s predominance and superiority requirements.

The District Court did not abuse its discretion in concluding that

Plaintiffs satisfied Rule 23’s typicality, predominance, and superiority

requirements. (Cf. Appellant’s Br. 8-10.)

First, Plaintiffs satisfied the typicality requirement by presenting

evidence that the class representatives’ claims against ConAgra arise

out of the exact same course of conduct as the claims of the other class

members they seek to represent. (ER00188-ER00191.)

Second, Plaintiffs satisfied Rule 23(b)(3)’s predominance

requirement by establishing that the main liability issues for all claims

certified, including materiality and proximate cause, can be determined

using the classwide evidence reviewed by the District Court. (ER00199-

ER00270.)

Third, Plaintiffs satisfied Rule 23(b)(3)’s superiority requirement

by demonstrating that class adjudication is superior to the other



available alternatives of either no litigation at all, or millions of

individual adjudications in small-claims courts around the country.

(ER00270-ER00273.)

A. The class representatives’ claims are typical of other class members’ claims because they all arise from ConAgra’s common course of conduct.

Rule 23(a)(3) requires that “the claims or defenses of the

representative parties are typical of the claims or defenses of the class.”

Fed R. Civ. P. 23(a)(3). Typicality is a “permissive” requirement,

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998), designed

to “assure that the interest of the named representative aligns with the

interests of the class.” Wolin, 617 F.3d at 1174-75 (quoting Hanon v.

Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Accordingly, the

typicality inquiry asks courts to consider whether class members “have

the same or similar injury, whether the action is based on conduct

which is not unique to the named plaintiffs, and whether other class

members have been injured by the same course of conduct.” Id. at

1175. That is the case here.



1. Like the class representatives, all class members purchased Wesson Oils and paid more for them as a result of the “100% Natural” label.

Here, the class representatives’ claims are identical to the claims

of the other class members. All of these consumer protection, breach of

warranty, and unjust enrichment claims arise from ConAgra’s false and

deceptive labeling of Wesson Oils as “100% Natural,” even though they

are made from GMO ingredients. The class representatives and the

other class members were all injured in the same way: they all paid

more for Wesson Oils because ConAgra’s “100% Natural” label created a

retail price premium.

Plaintiffs established typicality through evidence. Each bottle of

Wesson Oil “carried a front label stating that the product was ‘100%

Natural.’” (ER00138.) The material inside each bottle of Wesson Oil is

made from GMO crops. (ER05921; ER06026-ER06027; ER06086.)

Common evidence shows whether “there is a price premium associated

with the ‘100% Natural’ label on Wesson Oils.” (ER00268-ER00269.)

Under these circumstances, the District Court correctly concluded

that the class representatives’ claims and injuries are typical of the



claims and injuries of the other class members they seek to represent.

(ER00084-ER00089; ER00188-ER00191.)

2. Varying understandings of the term “100% Natural” among class members are irrelevant to typicality.

ConAgra argues that the District Court abused its discretion by

purportedly ignoring “substantial evidence” that some class members

“will not share the class representatives’ experiences” of being “deceived

by the “100% Natural” as meaning the product was not made from

GMOs. (Appellant’s Br. 24, 25.)

ConAgra is wrong. ConAgra’s “substantial evidence” on this issue

was a survey conducted for this litigation by Dr. Dominique Hanssens,

purporting to show that the “100% Natural” claim has no statistically

measurable impact on consumers purchasing Wesson Oil. (Appellant’s

Br. 24.) The District Court did not “ignore” the Hanssens survey, but

instead, considered it within the total mix of evidence, including Dr.

Howlett’s direct criticism of it, contrary third-party surveys, and

ConAgra’s own marketing research documents “demonstrat[ing] that

pure and natural claims play a significant role in consumer purchasing

decisions.” (ER00068-ER00069; ER00086; ER00190.)



That some consumers might not have interpreted the “100%

Natural” claim to mean “no-GMOs” does not destroy typicality for the

specific claims certified by the District Court, as Rule 23 typicality does

not depend on whether the class representatives and class members

shared the same subjective experience. See, e.g., Estrella v. Freedom

Fin. Network, LLC, No. C 09-03156, 2010 WL 2231790, at *10 (N.D.

Cal. June 2, 2010) (“[B]ecause plaintiffs’ allegations are amenable to

proving reliance on a classwide basis, and because [defendant] does not

argue that any of its customers received disclosure statements that

were materially different from those received by the named plaintiffs,

[the class representatives] are typical of the proposed class.”); Mailloux

v. Arrow Fin. Servs., LLC, 204 F.R.D. 38, 42 (E.D.N.Y. 2001) (“Since the

‘least sophisticated consumer’ standard is an objective standard, . . . the

court will not have to make an individual determination of each

potential class member’s subjective understanding of the letter in

question. . . . Consequently, the typicality requirement has been

satisfied.”); Halperin v. Nichols, Safina, Lerner & Co., No. 94 C 6960,

1996 WL 634037, at *6 (N.D. Ill. Oct. 29, 1996) (holding

representative’s “subjective understanding” had “nothing whatever to



do with the typicality of his claim.”). Typicality is not destroyed simply

because people are different from one another in legally irrelevant

ways.

3. That some class representatives might consider purchasing Wesson Oils in the future if ConAgra makes true disclosures is irrelevant to typicality.

Nine of the class representatives submitted declarations stating

that if ConAgra stopped falsely claiming Wesson Oils were “100%

Natural,” then they would consider purchasing Wesson Oils in the

future. (ER00167; ER07869-ER07910.) The class representatives also

continue to buy all manner of food products other than Wesson Oils.

ConAgra contends that some of these other products were labeled

“natural” but may also have been made from GMO ingredients.

(Appellant’s Br. 26.) ConAgra contends that these two facts render the

class representatives atypical and subject to unique defenses. (Id.)

Again, typicality only requires that the class representatives

suffered similar injuries (here, payment of a price premium) from the

same course of conduct (here, ConAgra’s false “100% Natural” labels on

Wesson Oils) as the other class members. Whether the class

representatives purchased other foods containing GMOs, or would



consider purchasing Wesson Oils should ConAgra change its conduct, is

not relevant to Rule 23 typicality. See Astiana v. Kashi, 291 F.R.D. at

503 (noting representative’s purchase of “unhealthy or otherwise

artificial foods says nothing about whether they purchased Kashi

products specifically because they were supposedly healthy and

natural.”) (citation omitted); Red v. Kraft Foods, Inc., No. CV 10-1028,

2012 WL 8019257, at *12 n.17 (C.D. Cal. Apr. 12, 2012) (holding that

whether plaintiffs “purchase and consume other foods with the same

ingredients they allege to be unhealthy in this suit . . . is wholly

irrelevant.”).

Neither do the class representatives’ eating habits impact

materiality. The relevant materiality inquiry is whether ConAgra’s

claim that Wesson Oils are “100% Natural” was material to the

reasonable consumer, not to particular individuals. As the District

Court explained in its extensive analysis of Stearns v. Ticketmaster

Corp., 655 F.3d 1013 (9th Cir. 2011), the class representatives will

establish reliance and causation through classwide evidence, not

individualized evidence. Id. at 1022 (citation omitted). (ER00254-

ER00257.)



Accordingly, the class representatives are not subject to unique

defenses and satisfy typicality.

B. Plaintiffs’ claims are susceptible to classwide proof, satisfying Rule 23’s predominance requirement.

Rule 23(b)(3) requires 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). “Common issues predominate over

individual issues when the common issues ‘represent a significant

aspect of the case and they can be resolved for all members of the class

in a single adjudication.’” Edwards v. First Am. Corp., 798 F.3d 1172,

1182 (9th Cir. 2015) (citation omitted); see also Hanlon, 150 F.3d at

1022 (“In contrast to Rule 23(a)(2), Rule 23(b)(3) focuses on the

relationship between the common and individual issues.”). The mere

existence of individualized questions does not preclude a predominance

finding. See Edwards, 798 F.3d at 1183-84; Amgen Inc. v. Conn. Ret.

Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013); Butler v. Sears,

Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013), cert denied, 134 S. Ct.

1277 (2014) (predominance is not determined “simply by counting

noses: that is, determining whether there are more common issues or

more individual issues”).



“Considering whether ‘questions of law or fact common to class

members predominate’ begins, of course, with the elements of the

underlying cause[s] of action.” Erica P. John Fund, Inc. v. Halliburton

Co., 563 U.S. 804, 131 S. Ct. 2179, 2184 (2011). Plaintiffs here moved to

certify eleven single-state classes asserting 34 separate causes of action.

(ER07770-ER07771.) The District Court held that for all 22 causes of

action certified, common questions susceptible to common proof

predominated over any individualized questions. Those common

questions include: (i) whether the “100% Natural” claim was false or

misleading to a reasonable person; (ii) whether the claim is material to

a reasonable consumer, which would entitle Plaintiffs to a classwide

inference of reliance and causation; and (iii) whether the claim created

a price premium all class members had to pay, thus establishing injury

and damages. (ER00201-00250; see also ER00254 (“Because plaintiffs

have adduced sufficient evidence that the ‘100% Natural’ label is

material to a reasonable consumer and that the consumer would

understand it to mean, inter alia, that a product labeled in this fashion

contains no GMOs, the court concludes that materiality can be proved

on a classwide basis.” (footnote omitted).) Accordingly, the District



Court was within its discretion holding that common questions of law

and fact predominate.

1. Whether the “100% Natural” claim on Wesson Oils was false, misleading, and material to a reasonable consumer are inherently common, classwide questions.

Here, the overarching predominant liability question for all of the

certified claims is whether ConAgra’s “100% Natural” claim on a food

product made from GMOs is objectively true, as ConAgra claims, or

false, deceptive, or misleading, as Plaintiffs claim, and the District

Court would have been within its discretion to certify classes in order to

determine the answer to this “falsity” question on its own. See Amgen,

133 S.Ct. at 1196 (holding Rule 23(b)(3) “does not require a plaintiff

seeking class certification to prove that each element of her claim is

susceptible to classwide proof.”) (emphasis in original).

ConAgra contends that, regardless of this common “falsity”

question, individualized questions would overwhelm because proof of

individual reliance and/or causation is required, and thus the certified

claims turn on whether each and every person who purchased Wesson

Oils (i.e., each individual member of the classes certified by the District

Court) was individually “misled by the natural label in their individual



purchasing decisions.” (Appellant’s Br. 28.) ConAgra’s statement of the

underlying law is incorrect. As this Court recently confirmed:

To state a claim under the UCL or the FAL “based on false advertising or promotional practices, it is necessary only to show that members of the public are likely to be deceived.” This inquiry does not require “individualized proof of deception, reliance and injury.” “[I]n effect, California has created what amounts to a conclusive presumption that when a defendant puts out tainted bait and a person sees it and bites, the defendant has caused an injury; restitution is the remedy.”

Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 985-86 (9th

Cir. 2015) (citations and footnotes omitted).

ConAgra’s attempt to graft an individualized inquiry onto the

materiality determination is contrary to law. See Edwards v. Ford

Motor Co., 603 F. App’x 538, 541 (9th Cir. 2015) (“Because materiality

is governed by an objective ‘reasonable person’ standard under

California law, an inquiry that is the same for every class member, a

finding that the defendant has failed to disclose information that would

have been material to a reasonable person who purchased the

defendant’s product gives rise to a rebuttable inference of reliance as to

the class.”) (citation omitted); Hinojos v. Kohl’s Corp., 718 F.3d 1098,

1107 (9th Cir.2013) (“representation is ‘material’ . . . if a reasonable



consumer would attach importance to it or if ‘the maker of the

representation knows or has reason to know that its recipient regards

or is likely to regard the matter as important in determining his choice

of action.’”) (citation omitted); Stearns, 655 F.3d at 1022 (holding that

materiality is established “if a reasonable man would attach importance

to its existence or nonexistence in determining his choice of action in

the transaction in question”) (citation omitted); Yokoyama v. Midland

Nat’l Life Ins. Co., 594 F.3d 1087, 1092-93 (9th Cir. 2010) (concluding

that the district court erred in denying class certification when it held

Hawaii statute required individualized showings of reliance because

Hawaii “look[ed] to a reasonable consumer, not the particular

consumer” and thus the liability portion would be uniform, as it “will

focus on the standardized written material given to all plaintiffs to

determine whether those materials are likely to mislead consumers

acting reasonably under the circumstances.” ); In re Tobacco II Cases,

207 P.3d 20, 29-30 (Cal. 2009) (“to state a claim under either the UCL

or the false advertising law . . . it is necessary only to show that

members of the public are likely to be deceived.”).



ConAgra incorrectly asserts that the District Court “treated

materiality as a uniform issue for all nine classes without addressing

any state law differences[.]” (Appellant’s Br. 29 n.5.) The District

Court, however, analyzed the elements of each particular state law

claim and only certified claims where the “reasonable consumer”

standard applied. (ER00201-ER00250.) Furthermore, ConAgra failed

to argue in its opening brief how differences between the certified

California consumer protection claims and any of the other certified

claims made a difference in the predominance analysis, thereby waiving

any argument that differences between the claims certified make a

difference in this appeal. See Int’l Union of Bricklayers & Allied

Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752

F.2d 1401, 1404 (9th Cir. 1985) (holding that the Court “will not

ordinarily consider matters on appeal that are not specifically and

distinctly raised and argued in appellant’s opening

brief”) (citation omitted).

ConAgra’s argument that materiality is an individualized inquiry

is premised on a flawed reading of this Court’s decision in Stearns.

Most fundamentally, ConAgra ignores that, in Stearns, this Court



remanded the California UCL claim to the district court for

reconsideration because “individualized proof of reliance and causation”

was not required. Stearns, 655 F.3d. at 1020 (“[R]elief under the UCL

is available without individualized proof of deception, reliance and

injury. Thus, the district court’s concerns about reliance and causation

were not well taken.”) (internal citations and quotations omitted).

As the District Court recognized, Stearns also turned on the

plaintiffs’ failure to adduce any evidence regarding materiality. Here,

by contrast, Plaintiffs did adduce evidence (including third-party

surveys and ConAgra’s internal marketing materials) sufficient to

demonstrate that Plaintiffs can prove materiality on a classwide basis.

(ER00254-ER00257; see also ER00086 (“Plaintiffs proffer documents

detailing the results of ConAgra’s marketing research; they contend

that this research demonstrates that pure and natural claims play a

significant role in consumer purchasing decisions. Because the

documents were filed under seal, the court does not detail the findings

here. It concurs, however, in plaintiffs’ description of the documents.”)

(footnotes omitted).)



Thus, as the District Court properly held, “Plaintiffs need not

prove at this stage that every ConAgra customer would find the ‘100%

Natural’ claim material or would believe that it meant the products

contained no GMOs.” (ER00252.) “Rather, they need only demonstrate

that a reasonable consumer would understand it that way and find it

material.” (Id.)

2. ConAgra’s demand that this Court reweigh common evidence and find Plaintiffs failed to demonstrate materiality goes far beyond the probing of merits allowed at the class certification stage.

A district court’s inquiry on class certification should not devolve

into a mini-trial on the merits of the case. Amgen, 133 S. Ct. at 1194-95

(Rule 23 “grants courts no license to engage in free-ranging merits

inquiries at the certification stage,” instead “[m]erits questions may be

considered … only to the extent … relevant to determining whether the

Rule 23 prerequisites for class certification are satisfied.”).

As this Court recently confirmed, it is reversible error when a

district court “evaluate[s] the merits rather than focusing on whether

the questions presented—meritorious or not—were common to the

class.” Alcantar v. Hobart Serv., 800 F.3d 1047, 1053 (9th Cir. 2015);



see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir.

2011).

Thus, “whether class members could actually prevail on the merits

of their claims” is not a proper inquiry in determining the preliminary

question “whether common questions exist.” Ellis, 657 F.3d at 983 n.8.

“To hold otherwise would turn class certification into a mini-trial,” id.,

when the purpose of class certification is merely “to select the ‘metho[d]’

best suited to adjudication of the controversy ‘fairly and efficiently’.”

Amgen, 133 S. Ct. at 1191 (alteration in original).

Despite these clear guidelines, ConAgra asks this Court to second-

guess the District Court and conduct exactly the type of mini-trial that

is inappropriate at the class certification stage. (See Appellant’s Br. 32-

45.) In doing so, ConAgra misstates both the proper scope of the class

certification inquiry and the substance of the District Court’s

materiality findings.

The District Court did not make “a finding of classwide

materiality” or “h[o]ld that Plaintiffs were entitled to the classwide

inference of materiality.” (Appellant’s Br. 31.) Rather, the District

Court held that Plaintiffs adduced sufficient evidence to show that



materiality is susceptible to classwide proof. (See, e.g., ER00236 (“The

court considers below whether plaintiffs have adduced sufficient

evidence that the “100% Natural” claim was material such that it is

appropriate to certify the class because plaintiffs may be able to prove

that ‘a reasonable consumer could have been misled’ by the label

claim.”); ER00247 (“[T]he court concludes that plaintiffs may be able to

show on a classwide basis that the ‘100% Natural’ label had a common

meaning that was material to members of the putative class.”).)

Whether the evidence Plaintiffs adduced is sufficient to ultimately

prevail on the materiality issue is irrelevant at the class certification

stage. The law has long been clear that “neither the possibility that a

plaintiff will be unable to prove his allegations, nor the possibility that

the later course of the suit might unforeseeably prove the original

decision to certify the class wrong, is a basis for declining to certify a

class which apparently satisfies [Rule 23].” Blackie v. Barrack, 524

F.2d 891, 901 (9th Cir. 1975). Similarly:

Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class. Because materiality is judged according to an objective standard, the materiality of Amgen’s alleged misrepresentations and omissions is a question common to all members of the class



… As to materiality, therefore, the class is entirely cohesive: It will prevail or fail in unison. In no event will the individual circumstances of particular class members bear on the inquiry … [T]he office of a Rule 23(b)(3) certification ruling is not to adjudicate the case[.]

Amgen, 133 S. Ct. at 1191 (citations omitted); see also id. at 1204 (“just

as a plaintiff class’s inability to prove materiality creates no risk that

individual questions will predominate, so even a definitive rebuttal on

the issue of materiality would not undermine the predominance of

questions common to the class.”).

Here, the District Court properly avoided transforming class

certification into a mini-trial on whether “100% Natural” is material to

a reasonable consumer and did not abuse its discretion in finding that

the evidence adduced was sufficient to show that materiality is

susceptible of classwide proof.

3. Classwide evidence suggests ConAgra’s “100% Natural” claim on Wesson Oils is material to a reasonable consumer.

Even if the ultimate materiality of the “100% Natural” claim to a

reasonable consumer were a relevant class certification question—

which, as a merits question, it is not—ConAgra distorts the evidence on

this issue.



Classwide proof demonstrating that the “100% Natural” claim on

Wesson Oils is material to a reasonable consumer, and that reasonable

consumers interpret that “natural” claim to mean “no-GMOs,” is

actually available and the District Court considered it in rendering its

certification decision. This common proof includes:

• Dr. Charles Benbrook’s expert opinion testimony that “foods

that contain genetically engineered ingredients are not

natural” (ER00057);

• ConAgra’s internal marketing research showing that

“consumers exposed to a ‘100% Natural’ or ‘Natural’ claim on

ConAgra product labels generally consider the

representation a significant factor in their purchasing

decisions.” (ER00250; see also ER00086, ER00190, and

ER05257-ER5260); and,

• Third-party surveys that “tend to show that, however they

interpret it, consumers find the “100% Natural claim

material to their purchasing decisions” and that “consumers

generally understand it, inter alia, as a representation that



Wesson Oils do not contain GMOs.” (ER00251-ER00252; see

also ER05261-ER05262.)

ConAgra’s attack on this common evidence has nothing to do with

whether common questions predominate over individualized questions.

ConAgra contends that this evidence is not sufficiently connected to

Wesson Oils, but, instead, only has to do with unrelated products.

(Appellant’s Br. 32-38.) ConAgra is wrong.

The third-party surveys specifically pertained to natural claims on

food products and the relationship between natural claims and GMOs.

(ER00250-ER00251; see also ER00256 (“[P]laintiffs have adduced

substantial evidence that a ‘100% Natural’ claim on a food product is

material to consumers; the industry studies and surveys they proffer

indicate that a majority of consumers consider the claim material to

their purchasing decision, and that consumers of Wesson Oils

understand that “100% Natural” means, inter alia, that Wesson Oils do

not contain GMOs.”).) The internal ConAgra documents concerned the

materiality of “natural” claims to consumers of Wesson Oils specifically.

(ER00250.)



ConAgra’s contention that Plaintiffs failed to provide any survey

evidence “tied to consumers of Wesson Oil” because the District Court

excluded an additional survey (the “Kozup survey”) on procedural

grounds is also incorrect. (See Appellant’s Br. 2, 9, 25, 28, 33-39.) The

purpose of the Kozup survey was not to establish materiality; rather, it

was to establish actual falsity of the “100% Natural” claim on the

merits. (ER05262-ER05263.) Further, Plaintiffs submitted the Kozup

survey in response to ConAgra’s survey (the “Hanssens survey”), which

purported to show that consumers were not misled by the “100%

Natural” claim, notwithstanding Plaintiffs’ assertion, then and now,

that the Hanssens survey is not relevant to class certification. Indeed,

that ConAgra seeks to rely on survey evidence confirms that the key

issues in this case can be proven or disproven by classwide evidence.

See Shari S. Diamond, Reference Guide on Survey Research, in

REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 361 (Federal Judicial

Center 3d ed. 2011), available at 2011 WL 7724258, at * 2 (“When

properly designed, executed, and described, surveys (1) economically

present the characteristics of a large group of respondents or other

units and (2) permit an assessment of the extent to which the measured



respondents or other units are likely to adequately represent a relevant

group of individuals or other units.”).

ConAgra’s contention that the District Court ignored the

Hanssens survey is also inaccurate. (Appellant Br. 41-45.) As already

noted, the District Court specifically considered the Hanssens survey,

as well as Dr. Howlett’s criticisms of it, third-party surveys, and

ConAgra’s own contradictory internal market research showing that the

“100% Natural” claim on Wesson Oils is a significant driver of sales.

(ER00189-190; see also ER00286-ER00289; ER05258-ER05260.)

ConAgra’s claim that the District Court abused its discretion by failing

to consider the Hanssens survey is simply ConAgra’s demand that this

Court review and reweigh the factual evidence, disregard Plaintiffs’

evidence, and overrule the District Court’s factual determination that

materiality can be determined by classwide evidence.

The cases on which ConAgra relies provide no support for its

extraordinary request. For example, in Kosta v. Del Monte Foods, Inc.,

class certification was denied in a food labeling case where the expert

opined on the materiality of food labels generally, with no focus on the

label claims at issue in the case. See Kosta v. Del Monte Foods, Inc.,



308 F.R.D. 217, 229-30 (N.D. Cal. 2015) (expert offered opinion on

materiality of food labels generally without any focus on the particular

“antioxidant,” “natural source,” “no artificial flavors and preservatives,”

“must be refrigerated,” and “fresh” label claims at issue). Here, in

contrast, the evidence deals directly with “natural” claims, “natural”

claims on ConAgra products, and whether consumers interpret

“natural” claims to mean “no-GMOs.”

Other cases on which ConAgra relies are wholly unrelated to

consumer claims or the relevance of survey evidence. See EQT Prod.

Co. v. Adair, 764 F.3d at 366-67 (remanding to determine whether

defendants’ common practices were relevant to alleged coalbed methane

gas royalty underpayments); Forrand v. Federal Exp. Corp., No. CV 08-

1360, 2013 WL 1793951, at *3 (C.D. Cal. Apr. 15, 2013) (denying

certification of claims that required individualized worker-by-worker

inquiries to determine whether workers were in fact unpaid for on-the-

clock work).

The trademark, patent, and Lanham Act cases on which ConAgra

relies are even farther afield, having nothing to do with either the type

of consumer survey evidence at issue here (regarding labeling terms



and purchase intent) or the relevant class certification predominance

inquiry of whether common evidence can answer whether the “100%

Natural” claim is material to the reasonable consumer. See Universal

City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 118-19 (2d Cir.

1984) (holding survey failed to demonstrate arcade owner confusion

between King Kong and Donkey Kong due to poor design); Harold’s

Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.

1996) (affirming admission of survey regarding “whether and to what

degree Dillard’s infringement and sale of Harold’s copyrighted fabric

designs damaged Harold’s future clothing sales”); Exxon Corp. v. Texas

Motor Exch. of Houston, Inc., 628 F.2d 500, 507 (5th Cir. 1980)

(trademark case involving survey evidence regarding confusion between

competing marks); Fancaster, Inc. v. Comcast Corp., 832 F. Supp. 2d

380 (D.N.J. 2011) (same); THOIP v. Walt Disney Co., 690 F. Supp. 2d

218, 236-37 (S.D.N.Y. 2010) (excluding survey regarding consumer

confusion over mark on t-shirts where survey failed to replicate manner

in which consumers encountered products in the marketplace); Water

Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1145 (10th Cir. 2013)

(affirming exclusion of survey regarding likelihood of confusion between



marks on sinus irrigation products); Fractus, S.A. v. Samsung, No. 6:09-

cv-203, 2011 WL 7563820, at *1 (E.D. Tex. Apr. 29, 2011) (excluding

surveys that “do not measure the value of Plaintiff’s technology, but

merely measure the perceived consumer value of cell phones with any

internal antennas”); Wells Fargo & Co. v. WhenU.com, Inc., 293 F.

Supp. 2d 734, 752-53 (E.D. Mich. 2003) (excluding survey concerning

likelihood of confusion over different pop-ads from prior cases involving

completely different claims and parties); Pizza Hut, Inc. v. Papa John’s

Int’l, 227 F.3d 489, 504 (5th Cir. 2000) (reversing denial of summary

judgment for defendant where plaintiff failed to introduce any evidence

demonstrating that the “Better Ingredients. Better Pizza” slogan “had

the tendency to deceive consumers”).

Plaintiffs’ survey evidence demonstrates that between two-thirds

and one half of all consumers consider “natural” claims on food labels

“material” to their purchasing decisions and believe, among other

things, that “natural” means “no-GMOs.” (Appellant’s Br. 40-41.) As

the District Court acknowledged, other courts have found statements

material to the reasonable consumer even when they deceive as few as

20% of survey respondents. (ER00252 (citing Oshana v. Coca-Cola Co.,



No. 04 C 3596, 2005 WL 1661999, at *9 (N.D. Ill. July 13, 2005) (“Coca-

Cola provides no authority that a misrepresentation is immaterial if

only 24% of consumers would behave differently . . . [T]here is sufficient

evidence to raise a genuine issue of fact as to whether the alleged

misrepresentations are material to a reasonable consumer.”)); see also

ER05261.)

None of the cases ConAgra cites require 100% agreement in

surveys in order for a misleading claim to be legally material to the

reasonable consumer and each of those cases involves a factual scenario

distinguishable from the present case. In re Celexa v. Lexapro Mktg. &

Sales Practices Litig., 291 F.R.D. 13, 20 (D. Mass. 2013) (denying

certification where “plaintiff-specific inquiries would need to be made to

satisfy the exposure requirement”); In re Vioxx Class Cases, 180 Cal.

App. 4th 116, 134 (2009) (materiality individualized because “patient-

specific factors are part of the prescribing decision”); In re Countrywide

Fin. Corp. Mortg. & Sales Practices Litig., Nos. 08md1988, 10cv0257,

2011 WL 6325877, at *2 (S.D. Cal. Dec. 16, 2011) (denying certification

where challenged transactions involved individualized transactions);

Fairbanks v. Farmers New World Life Ins. Co., 197 Cal. App. 4th 544,



564 (2011) (affirming denial of certification “in the absence of a common

marketing scheme”); Strawn v. Farmers Ins. Co. of Oregon, 258 P.3d

1199, 1215 (Or. 2011) (affirming denial of defendant’s motion for

directed verdict in class trial because “a jury could infer from evidence

common to the class that the individual class members relied on

[defendant’s] misrepresentation”); Henry Schein, Inc. v. Stromboe, 102

S.W.3d 675, 684 (Tex. 2003) (no classwide proof because “there was no

evidence that all purchasers relied on the same or even similar

representations” by defendant).

Finally, ConAgra argues that the “natural” label claim is

susceptible to “so many different meanings” as to preclude

predominance. (Appellant’s Br. 44.) The District Court previously held

that there is “a common sense definition of ‘natural’—i.e., existing in

nature, and nothing artificial or synthetic.” (ER00057.) Furthermore,

Plaintiffs submitted evidence showing how the bioengineering process

and the GMOs resulting therefrom are not natural, let alone “100%

Natural.” (See ER00061-ER00063; ER05253; see also ER07799-

ER07830 (expert declaration describing how and why genetically

engineered crops, and the foods made from them, cannot be considered



natural).) The District Court further found that Plaintiffs “proffered

sufficient evidence that reasonable consumers associate the claim

[“100% Natural”], with the fact that the products contain no GMOs,”

and explicitly distinguished this case from precedent on which ConAgra

relies. (ER00254 (distinguishing Jones v. ConAgra, 2014 WL 2702726,

on basis of evidence presented by Plaintiffs here).) Thus, ConAgra’s

arguments do not defeat predominance but rather go to the ultimate

merits issue in this case concerning whether Wesson Oils are, or are

not, “100% Natural” because they are made from GMOs.

For these reasons, the District Court acted within its discretion

when it held the materiality of a “natural” claim to a reasonable

consumer predominates and is not overwhelmed by any individualized

questions.

C. The class action mechanism is superior to any other available method for adjudicating Plaintiffs’ claims concerning a uniformly labeled, low-dollar value consumer product.

The District Court properly held that a class action is the superior

method for adjudicating this controversy. (ER00273.)



1. Without the class action device, no individual purchaser of Wesson Oils could reasonably afford to seek a legal remedy.

The Supreme Court has declared that the “policy at the very core

of the class action mechanism is to overcome the problem that small

recoveries do not provide the incentive for any individual to bring a solo

action prosecuting his or her rights.” Amchem, 521 U.S. at 617 (citation

omitted). But for class actions, groups of harmed individuals “would be

without effective strength to bring their opponents into court at all.” Id.

Given the “low average price of a bottle of Wesson Oil,” each class

member’s individual maximum recovery in this case is relatively small.

(ER00271; see also ER00102 (showing average retail cooking oil prices

generally in the $3-5 range).) As courts have recognized, the “realistic

alternative to a class action is not [millions of] individual suits, but zero

individual suits, as only a lunatic or a fanatic sues for $30.” Carnegie v.

Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004). Accordingly, “a

class action has to be unwieldy indeed before it can be pronounced an

inferior alternative—no matter how massive the fraud or other

wrongdoing that will go unpunished if class treatment is denied—to no

litigation at all.” Id.



2. There is no reason that the factual issues in this case could not be adjudicated in a single trial.

ConAgra identifies no reason the District Court could not

adjudicate the disputed factual issues in a single trial for all eleven

certified classes. Whether ConAgra’s claim was false, misleading, and

material to the reasonable consumer are questions that will be resolved

by reference to survey evidence, expert testimony, and ConAgra’s own

records. All of this evidence is common to all class members. Similarly,

each class’s damages are based on the same damages methodology.

There is no reason these issues need to be separately determined eleven

times.

3. Eleven trials are superior to separate individual trials for each of the tens of millions of Wesson Oils purchasers.

The District Court found, and ConAgra does not now dispute, that

three of the four Rule 23(b)(3) factors favor a superiority finding.

(ER00270-ER00271.) ConAgra contends the District Court erred in

assessing the “likely difficulties in managing a class action,” because

each certified class needs its own merits trial. (Appellant’s Br. 58.)

District Courts have “a number of management tools” at their

disposal to address manageability concerns. In re Visa



Check/Mastermoney Antitrust Litig. v. Visa, U.S.A., Inc., 280 F.3d 124,

140-42 (2d Cir. 2001) (enumerating five tools and noting that

manageability determinations are “particularly within” a trial court’s

discretion). Courts must consider whether a class action will create

“relatively more management problems than any of the alternatives

(including, most notably, [hundreds of thousands of] separate lawsuits

by the class members).” Klay v. Humana, Inc., 382 F.3d 1241, 1272-76

(11th Cir. 2004) (“[W]here a court has already made a finding that

common issues predominate over individualized issues, we would be

hard pressed to conclude that a class action is less manageable than

individual actions.”).

Even if eleven trials or a bellwether approach were necessary,

which is not the case, the specter of eleven trials does not threaten to

consume judicial resources, especially when weighed against the

alternative of millions of lawsuits brought by individual consumers.

Indeed, class actions were designed for a case like this, where a

defendant, through a uniform course of conduct, harmed millions of

individual consumers in relatively small amounts. Because the damage

inflicted on any individual consumer does not justify the cost of an



individual lawsuit, the group’s collective rights will be vindicated only if

consumers can band together through a class action. On these facts,

the District Court properly determined that a class action is superior to

ConAgra’s demand for a free pass for its bad behavior.

IV. Plaintiffs’ damages methodology satisfies Comcast.

In Comcast, the Supreme Court held that district courts must

determine whether a class plaintiff’s damages model can translate the

“legal theory of the harmful event into an analysis of the economic

impact of that event.” Comcast, 133 S. Ct. at 1435 (citation and

emphasis omitted). The Court reasoned that “a model purporting to

serve as evidence of damages in [a] class action must measure only

those damages attributable to that theory.” Id. at 1433. Here, the

District Court properly concluded that Plaintiffs’ damages methodology

met this test.

Plaintiffs’ liability theory is that ConAgra misled the class

representatives specifically, and reasonable consumers generally, into

believing that Wesson Oils are “100% Natural,” when, in fact, Wesson

Oils are not “100% Natural” because they are made from GMO

ingredients. (See, e.g., ER00260, ER05249-ER05252, ER05305,



ER05866-ER05867.) ConAgra harmed the class representatives and

the other class members by causing them to pay more than they

otherwise would have had to pay for Wesson Oils (i.e., charging them a

“price premium”) and by failing to provide them with the benefit of their

bargain: a cooking oil that was, in fact, “100% Natural.” (ER00180-

ER00181; ER00307-ER00311; ER05251-ER05252; ER05309-ER05314.)

Plaintiffs proposed, and the District Court accepted, a damages

methodology that reliably measures the amount of price premium

specifically attributable to ConAgra misleading class members into

believing Wesson Oils were not made from GMOs by using the “100%

Natural” claim. (ER00270.) Under this methodology, the ultimate

amount of money Plaintiffs would ask a jury to award can be calculated

using three different numbers:

(a) The total amount the class members paid at retail,

in dollars, for Wesson Oils (an amount well in excess of $1

billion over the course of the class period (ER05253));

(b) The percentage “price premium” caused by the “100%

Natural” label claim on Wesson Oils as determined by

hedonic regression analysis of actual historical retail prices



and actual product attributes (including “natural” label

claims) for thousands of different shortening/oil products

sold in the United States (including Wesson Oils), that

Plaintiffs preliminarily calculated as 2.28% (ER00147-

ER00149, ER05020-ER05024); and

(c) The percentage relative value (sometimes referred to as

a “partworth”) of the “no-GMO” understanding of a

“natural” label claim on cooking oils, to be determined by

an analysis of choice-based conjoint survey responses.

(ER05129-ER05138.)

(See also ER05314 (summarizing Plaintiffs’ methodology).) Stated as a

formula, Plaintiffs’ damages methodology is:

(a) * (b) * (c) = Total $ amount of damages or restitution1

1 Certified Indiana, New York, and Oregon consumer protection claims also support an award of statutory damages on a per-violation basis and no specific methodology is required to calculate such damages. At trial, Plaintiffs intend to seek all applicable statutory damages.

In addition, Plaintiffs argued in the District Court, and preserve for appeal following final judgment, that ConAgra is liable for the entirety of the “100% Natural” price premium. (ER05306-ER5309.) The District Court disagreed with Plaintiffs’ arguments, holding that the “natural” price premium was not sufficiently tied to Plaintiffs’ liability theory under Comcast because it did “not isolate the price premium



ConAgra contends that Plaintiffs’ damages methodology fails to

comply with Comcast because “it is unable to isolate the price premium

associated with the believed absence of GMOs.” (Appellant’s Br. 9.)

ConAgra further contends that the District Court “failed to conduct the

rigorous analysis necessary[.]” (Appellant’s Br. 45.) ConAgra is wrong

on both counts. Plaintiffs’ damages methodology isolates the amount of

economic harm attributable to the false “no-GMO” interpretation of

ConAgra’s “100% Natural” claim and the District Court rigorously

analyzed Plaintiffs’ proposed methodology. (ER00145-ER00164 and

ER00257-ER00270.)

While ConAgra quibbles with certain minor aspects of Plaintiffs’

proposed hedonic regression and conjoint analysis methodologies,

ConAgra’s real concern appears to be that the two methods have not

previously been combined “in order to assign a price premium to a sub-

feature.” (Appellant’s Br. 52.) However, none of the “natural” labeling

decisions since Comcast required a damages model to isolate that

attributable to consumers’ belief that ConAgra’s products did not contain GMOs,” but when the “natural” price premium was subdivided by multiplying it with the “no-GMO” relative importance of the natural claim, the damages model did sufficiently isolate the price premium attributable to consumers’ no-GMO belief. (ER00259.)



portion of the “natural” label price premium solely attributable to the

ingredient or process that made the natural representation false, so the

lack of case law on the subject is unsurprising. (See ER05306-ER5309.)

Moreover, that a methodology has not previously been used is not a

reason to reject it. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 593 (1993) (holding austere “general acceptance” standard

incompatible with permissive backdrop of Federal Rules of Evidence

and noting that publication “is not the sine qua non of admissibility; it

does not necessarily correlate with reliability, and in some instances

well-grounded but innovative theories will not have been published”)

(internal citations omitted). Multiplying three numbers—a dollar

value, a “natural claim” price premium percentage, and a “no-GMO”

interpretation relative value percentage—to output a final classwide

dollar damages figure, as Plaintiffs and their experts proposed, is a

proper damages methodology for this case, especially considering the

lack of substantive challenge to any one of these three figures on its

own.

Furthermore, despite ConAgra’s contention that Plaintiffs’

damages methodology “would always yield a fictional result that could



not be accurate as to any one class member,” (Appellant’s Br. 55), it is

well established in this Circuit—and in other Circuits across the United

States—that “individualized damages calculations alone cannot defeat

class certification,” Pulaski & Middleman, LLC, 802 F.3d at 987; see

also Mullins, 795 F.3d at 671 (“the need for individual damages

determinations at this later stage of the litigation does not itself justify

the denial of certification.”); Allapattah Servs. v. Exxon Corp., 333 F.3d

1248, 1261 (11th Cir. 2003) (“numerous courts have recognized that the

presence of individualized damages issues does not prevent a finding

that the common issues in the case predominate”), aff'd, 545 U.S. 546

(2005). A valid methodology for calculating damages need not yield a

result that is precise to the penny. See Story Parchment Co. v.

Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931); see also

Marsu, B.V. v Walt Disney Co., 185 F.3d 932, 939 (9th Cir. 1999) (“The

fact that the amount of damage may not be susceptible of exact proof or

may be uncertain, contingent, or difficult of ascertainment does not bar

recovery.”).



Because Plaintiffs’ damages methodology translates their theory

of liability into its economic impact, the District Court properly

concluded Plaintiffs’ methodology satisfies the Comcast standard.

A. Plaintiffs’ proposed hedonic regression methodology reliably isolates the percentage “price premium” specifically and solely attributable to the presence of a “natural” label claim on cooking oils.

As ConAgra itself acknowledges, hedonic regression and conjoint

analysis are both well-accepted methodologies used in economics and

marketing research. (Appellant’s Br. 49-50.) ConAgra further concedes

that Mr. Weir’s hedonic regression methodology calculates the

“percentage price premium” of cooking oil “attributable to the natural

label” from actual, historical price and attribute data. (Appellant’s Br.

49.)

ConAgra suggests in a footnote that Mr. Weir’s regression model

is insufficient for “other reasons identified by other courts” that have

rejected other regression models ConAgra claims to be “almost

identical” to Mr. Weir’s, citing Brazil v. Dole Packaged Foods, LLC, No.

12-CV-01831, 2014 WL 5794873, at *11-14 (N.D. Cal. Nov. 6, 2014).

ConAgra is incorrect. Mr. Weir’s regression model is not “almost

identical” to the rejected regression proposed by Dr. Oral Capps in



Brazil. Unlike Dr. Capps, Mr. Weir controlled for price and the

presence or absence of various label claims (including the “natural”

label claim at issue here) by collecting data from Nielsen and IRI data

sets obtained through discovery and inputting that data into his

hedonic regression model. (ER05004-ER05010.) Also, unlike Dr.

Capps, Mr. Weir did not depend on a single instance of Internet

research to determine which products contained a “natural” label claim

and which did not; rather, Mr. Weir relied on Nielsen’s comprehensive

collection of data. (ER05008-ER05009.) ConAgra’s vague suggestion

that Mr. Weir’s regression is “insufficient for other reasons” is no basis

for reversing the District Court’s careful determination of the propriety

of Mr. Weir’s analysis and methodology. (ER00145-ER00152.)

B. Analysis of choice-based conjoint survey results reliably isolates the percentage “relative importance” of the “no-GMO” portion of a “natural” claim.

ConAgra also concedes that Dr. Howlett’s conjoint analysis is

capable of calculating a percentage representing the “relative

importance” of the “absence of GMO” portion of a “natural” claim and

that Dr. Howlett “provided a detailed explanation of conjoint analysis”

to the District Court. (Appellant’s Br. 50, 56.)



ConAgra nonetheless contends that it “is problematic” that any

conjoint analysis performed today would calculate the value of a “no-

GMO” interpretation of a natural claim “at the time of the surveys” and

that “consumers’ understanding and valuation of natural claims and

the importance of GMOs are not static over time.” (Appellant’s Br. 55.)

But conjoint analysis is routinely accepted as a proper methodology for

calculating past harm. See Sanchez-Knutson v. Ford Motor Co., No. 14-

61344, 2015 WL 6395040, at *7 (S.D. Fla. Oct. 6, 2015) (rejecting as

‘unfounded” argument “that conjoint analysis, an analytic survey

method used to measure customer preferences for specific features of

products, is an improper damages theory post-Comcast”); Guido, 2014

WL 6603730, *4-14 (holding that plaintiff's expert’s proposed conjoint

analysis damages theory was not junk science, could be applied on a

classwide basis for predominance purposes under Comcast, and was

consistent with plaintiff’s theory of liability); Khoday v. Symantec

Corp., 93 F. Supp. 3d 1067, 1082 (D. Minn. 2015) (“The Court finds that

Gaskin’s conjoint analysis is generally a permissible method for

calculating damages.”). Moreover, Mr. Weir, who is also an expert in

conjoint analysis, rebutted ConAgra’s arguments on this point, and



explained how survey data from the present is routinely used to assess

the past. (ER05655-ER05656.)

C. Combining the percentage yielded by hedonic regression with the percentage yielded by conjoint analysis is proper.

Unable to show how or why either hedonic regression or conjoint

analysis is insufficient on its own, ConAgra instead contends that the

District Court did not rigorously analyze whether it could multiply the

two resulting percentages together with the total paid by consumers for

Wesson Oils to support its holding that “[s]uch a calculation would

necessarily produce a damage figure attributable solely to ConAgra’s

alleged misconduct – i.e., misleading consumers to believe that Wesson

Oils contain no GMOs by placing a ‘100% Natural’ label on the

products.” (ER00260.)

As Plaintiffs acknowledge, “natural” on a food product means not

only “no GMOs,” but also “no artificial flavors,” “no artificial colors,” and

“no artificial preservatives.” (ER05132-ER05133.) As Plaintiffs further

acknowledge, their case theory is that Wesson Oils are not “100%

Natural” because they are made from GMO ingredients. (ER00013-

ER00017.) Accordingly, complying with the directives set forth in the



District Court’s August 1, 2014 Order, Plaintiffs proposed a conjoint

analysis methodology that would segregate the relative value of the “no-

GMO” interpretation of “natural” from the relative value of all the other

possible interpretations of what “natural” means on a bottle of cooking

oil. (ER05129-ER05138; ER05312-ER05314.) As ConAgra concedes,

conjoint analysis is well suited to this task. (Appellant Br. 50, 56.)

ConAgra argues that “Dr. Howlett provided no evidence that it

was common or accepted to combine” the output of the hedonic

regression analysis (a percentage price premium for a natural claim)

and the output of the conjoint analysis (a percentage relative

importance of a “no-GMO” understanding of a natural claim) in the

manner proposed, that is, through multiplication. (Appellant’s Br. 52.)

But there was and is no need to present extensive proof that two

percentages of the type at issue can be combined through multiplication

in order to factor both results into a logical conclusion. See In re

Prempro Prods. Liab. Litig., 514 F.3d 825, 831 (8th Cir.2008) (allowing

expert testimony that was “an exercise in basic math using simple

deductive reasoning”). Dr. Howlett opined how this combination

isolates the specific portion of the “natural” price premium on Wesson



Oils specifically attributable to consumer understanding that “natural”

means “no-GMO.” (See ER05138.) As Mr. Weir explained, “Dr.

Howlett’s proposed conjoint methodology, which is a standard

application of basic, time-tested conjoint methodology, would function

no differently if the starting price premium were calculated using

hedonic regression, another conjoint methodology, any other empirical

technique, or a value not calculated in any way, such as a market price

premium agreed upon by the parties, or prescribed by the court.”

(ER05655.)

Thus, combining the hedonic regression result and the conjoint

analysis result does not mix “apples and oranges,” as ConAgra

contends, (Appellant’s Br. 53), or improperly “translate” relative value

into price premium. (Appellant’s Br. 54-55.) Instead, because these

results are bare numbers with no physical dimension, combining them

with multiplication is mathematically proper. Furthermore, the

hedonic regression price premium and conjoint analysis relative value

are both determined specifically with respect to Wesson Oils and the

issues in this case. Thus, Plaintiffs’ combination does not use “magic[]”



to arrive at the necessary price premium, (Appellant’s Br. 55), it uses

arithmetic, and use of arithmetic is not an abuse of discretion.

To the extent ConAgra argues that the District Court abused its

discretion by failing to “rigorously analyze” the combination of the

hedonic regression and conjoint analysis methodologies in order to

determine whether it accords with Comcast, the District Court’s multi-

page analysis of exactly this topic, in which it carefully considered all of

ConAgra’s substantive arguments and case law belies this argument.

(ER00260-ER0270.)

Where plaintiffs are “deceived by misrepresentations into making

a purchase, the economic harm is the same: the consumer has

purchased a product that he or she paid more for than he or she

otherwise might have been willing to pay if the product had been

labeled accurately.” Kwikset Corp. v. Superior Court, 246 P.3d 877, 890

(Cal. 2011) (emphasis in original). By combining the results of the

hedonic regression and conjoint analysis, Plaintiffs present a damages

methodology that measures only those damages attributable to

ConAgra’s misleading labeling of GMO-containing Wesson Oils as

“100% Natural.



CONCLUSION

For the foregoing reasons, the District Court’s order granting in

part Plaintiffs’ amended class certification motion, certifying eleven

state classes of purchasers of Wesson brand cooking oils, and certifying

22 claims for classwide resolution, should be affirmed.

STATEMENT OF RELATED CASES

Pursuant to Fed. R. App. P. 28 and Ninth Circuit Rule 28-2.6,

Respondents are not aware of any related cases pending in this Court

that have not already been identified by Appellant.

Dated: December 18, 2015

Respecftully submitted, MILBERG LLP /s/ Ariana J. Tadler Ariana J. Tadler David E. Azar Henry J. Kelston Meagan Keenan Carey Alexander

Respectfully submitted, GRANT & EISENHOFER P.A. /s/ Adam J. Levitt Adam J. Levitt Mary S. Thomas Edmund S. Aronowitz

Class Counsel for Plaintiffs-Appellees Robert Briseño et al.




1. This brief complies with the type-volume limitation of Federal

Rule of Appellate Procedure 32(a)(7)(B) because it contains 13,885

words, excluding the parts of the brief exempted by Federal Rule of

Appellate Procedure 32(a)(7)(B)(iii).

2. This brief complies with the typeface and type styles limitations

of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6) because it

has been prepared in proportionally-spaced typeface using 14-point

Century font in Microsoft Word.

Dated: December 18, 2015 /s/ Edmund S. Aronowitz Edmund S. Aronowitz Counsel for Plaintiffs-Appellees




I hereby certify that on December 18, 2015, I electronically filed

the foregoing with the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit using the appellate CM/ECF system. All

participants in the case are registered CM/ECF users and will be served

by the system.

Dated: December 18, 2015 /s/ Edmund S. Aronowitz Edmund S. Aronowitz Counsel for Plaintiffs-Appellees



IV. Briseño v. Conagra Foods, Inc., U.S. Court of Appeals for the Ninth Circuit. Appellant’s Reply BriefNo. 15-55727

In the

United States Court of Appeals For the Ninth Circuit

__________________


v.

CONAGRA FOODS, INC., Defendant-Appellant._________________


(The Honorable Margaret M. Morrow) Case No. 2:11-cv-05379

__________________

APPELLANT’S REPLY BRIEF__________________

A. Brooks GreshamLaura E. Coombe MCGUIREWOODS LLP 1800 Century Park East, 8th Floor Los Angeles, CA 90067 Telephone: (310) 315-8291

Angela M. SpiveyMCGUIREWOODS LLP 1230 Peachtree St, NE, Suite 2100 Atlanta, GA 30309 Telephone: (404) 443-5720

R. Trent Taylor MCGUIREWOODS LLP Gateway Plaza 800 E. Canal St. Richmond, VA 23219 Telephone: (804) 775-1182

E. Rebecca Gantt MCGUIREWOODS LLP World Trade Center 101 W. Main St., Suite 9000 Norfolk, VA 23510 Telephone: (757) 640-3731



172 ■ Class Actions ■ July 2017i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

I. Plaintiffs’ claim that they need not demonstrate administrative feasibility is wrong and belied by the authorities they cite. ................................................. 2

A. A class is not ascertainable if potential class members cannot be identified in an administratively feasible fashion. ................................ 3

B. Plaintiffs fail to rebut ConAgra’s argument that they have not proposed an administratively feasible plan for identifying potential class members. ....................................................................................... 4

C. Plaintiffs’ discussion of the Carrera rule and the ability to self-identify through affidavits is a red herring. ........................................... 7

II. The district court erred in holding that common questions predominate over individual ones. ................................................................................................ 9

A. Individual issues predominate with respect to materiality because Plaintiffs did not establish that it is susceptible to classwide proof. ..... 9

1. Plaintiffs and the district court rely on a patchwork of unpersuasive and ultimately inadmissible evidence that lacks a sufficient nexus to Plaintiffs’ theory of liability while overlooking contrary, probative, and admissible evidence. ..... 11

2. The district court and Plaintiffs ignored probative, admissible evidence demonstrating that materiality is not susceptible to classwide proof. ........................................................................ 14

3. The issue of materiality and reliance varies among consumers in this case because there is no uniform understanding of “natural” or “GMO.” ................................................................. 16


Ascertainability ■ Spivey ■ 173ii

4. ConAgra does not ask this Court to unnecessarily delve into the merits of this case but to engage in the rigorous analysis required by Rule 23. .................................................................. 17

B. Individual issues predominate with respect to damages. .................... 18

1. Plaintiffs’ argument that its hybrid damages model meets Comcast because “use of arithmetic is not an abuse of discretion” is unsupported. ........................................................ 18

2. Plaintiffs’ insistence that the two damage models can be combined simply defies logic. .................................................. 23

3. Plaintiffs’ reliance on Guido and related cases is misplaced. ... 25

III. This Court should remand with instructions to dismiss Plaintiffs’ amended complaint with prejudice. .................................................... 27

CONCLUSION ........................................................................................................ 29

CERTIFICATE OF COMPLIANCE ....................................................................... 30

CERTIFICATE OF SERVICE ................................................................................ 31


174 ■ Class Actions ■ July 2017 iii

TABLE OF AUTHORITIES Page(s)

Cases

Allen v. ConAgra Foods, Inc.,No. 13-cv-01279, ECF No. 150 at 1 (N.D. Cal. Jan. 9, 2015) ............................. 5

Apple, Inc. v. Samsung Electronics Co.,No. 11-cv-01846, 2014 WL 976898 (N.D. Cal. Mar. 6, 2014) .......................... 25

Brecher v. Republic of Arg.,806 F.3d 22 (2d Cir. 2015) ................................................................................... 3

Briseno v. ConAgra Foods, Inc.,No. 11-cv-05379, ECF No. 1 (C.D. Cal. June 28, 2011) ................................... 28

Byrd v. Aaron’s Inc.,784 F.3d 154 (3d Cir. 2015) ................................................................................. 3

Carijano v. Occidental Petroleum Corp.,643 F.3d 1216 (9th Cir. 2011) ............................................................................ 23

Chapman v. Maytag Corp.,297 F.3d 682 (7th Cir. 2002) .............................................................................. 22

Clausen v. M/V New Carissa,339 F.3d 1049 (9th Cir. 2003) ................................................................ 20, 21, 23

In re Clorox Consumer Litig.,301 F.R.D. 436 (N.D. Cal. 2014) .......................................................................... 4

Comcast v. Behrend,133 S. Ct. 1426 (2013) .................................................................................passim

Destfino v. Reiswig,630 F.3d 952 (9th Cir. 2011) ........................................................................ 28, 29

In re Dial Complete Mktg. and Sales Practice Litig.,312 F.R.D. 36 (D.N.H. 2015) ............................................................................. 21

Domingo v. T.K.,289 F.3d 600 (9th Cir. 2002) .............................................................................. 19


Ascertainability ■ Spivey ■ 175iv

EQT Prod. Co. v. Adair,764 F.3d 347 (4th Cir. 2014) ................................................................................ 3

Faulk v. Sears Roebuck & Co.,No. 11-cv-02159, 2013 WL 1703378 (N.D. Cal. Apr. 19, 2013) ...................... 10

Guido v. L’Oreal USA, Inc.,No. 11-cv-01067, 2014 WL 6603730 (C.D. Cal. Jul. 1, 2014) .............. 25, 26, 27

Hawkins v. Comparet-Cassani,251 F.3d 1230 (9th Cir. 2001) .......................................................................... 5, 6

Hayes v. Wal-Mart Stores, Inc.,725 F.3d 349 (3d Cir. 2013) ................................................................................. 4

Housing Works, Inc. v. Turner,362 F. Supp. 2d 434 (S.D.N.Y. 2005) ................................................................ 24

Karhu v. Vital Pharm., Inc.,621 F. App’x 945 (11th Cir. 2015) ................................................................... 3, 4

Kosta v. Del Monte Foods, Inc.,308 F.R.D. 217 (N.D. Cal. 2015) ........................................................................ 10

Larin v. Bank of Am., NA,617 F. App’x 651 (9th Cir. 2015) ....................................................................... 28

Lilly v. Jamba Juice Co.,308 F.R.D. 231 (N.D. Cal. 2014) ...................................................................... 4, 5

Lust v. Merrell Dow Pharm., Inc.,89 F.3d 594 (9th Cir. 1996) ................................................................................ 20

Marcus v. BMW of N. Am., LLC,687 F.3d 583 (3d Cir. 2012) ................................................................................. 8

Martin v. Pac. Parking Sys. Inc.,583 F. App’x 803 (9th Cir. 2014) ................................................................. 3, 4, 5

McCanic v. City of Long Beach,993 F.2d 883, 1993 WL 171470 (9th Cir. 1993) ................................................ 28


176 ■ Class Actions ■ July 2017 v

Meadows v. Anchor Longwall & Rebuild, Inc.,306 F. App’x 781 (3d Cir. 2009) ........................................................................ 19

Mike’s Train House, Inc. v. Lionel, LLC,472 F.3d 398 (6th Cir. 2006) .............................................................................. 22

Miller v. Fuhu, Inc.,No. 14-cv-06119, 2015 WL 7776794 (C.D. Cal. Dec. 1, 2015) ........................ 21

Mullins v. Direct Digital, LLC,795 F.3d 654 (7th Cir. 2015) ............................................................................ 3, 8

In re Mushroom Direct Purchaser Antitrust Litig.,No. 06-cv-00620, 2015 WL 5766929 (E.D. Pa. Aug. 27, 2015) ........................ 19

In re Nexium Antitrust Litig.,777 F.3d 9 (1st Cir. 2015) ..................................................................................... 3

In re NJOY, Inc. Consumer Class Action Litig.,No. 14-cv-00428, 2015 WL 4881091 (C.D. Cal. Aug. 14, 2015) .......... 25, 26, 27

Prism Techs. LLC v. AT&T Mobility, LLC,No. 12-cv-12201, 2014 U.S. Dist. LEXIS 132619 (D. Neb. Sept. 22, 2014) ............................................................................................................. 20

Pulaski & Middleman, LLC v. Google, Inc.,802 F.3d 979 (9th Cir. 2015) .......................................................................... 9, 10

Randolph v. J.M. Smucker Co.,303 F.R.D. 679 (S.D. Fla. 2014) ............................................................. 12, 13, 21

Rikos v. Procter & Gamble Co.,799 F.3d 497 (6th Cir. 2015) ................................................................................ 3

Saavedra v. Eli Lilly & Co.,No. 12-cv-09366, 2014 WL 7338930 (C.D. Cal. Dec. 18, 2014) ...................... 25

Sethavanish v. ZonePerfect Nutrition Co.,No. 12-cv-02907, 2014 WL 580696 (N.D. Cal. Feb. 13, 2014) ....................... 4, 5

Stearns v. Ticketmaster Corp.,655 F.3d 1013 (9th Cir. 2011) ............................................................................ 15


Ascertainability ■ Spivey ■ 177vi

Steroid Hormone Prod. Cases, 104 Cal. Rptr. 3d 329 (Cal. Ct. App. 2010) ......................................................... 9

Ventress v. Japan Airlines,747 F.3d 716 (9th Cir. 2014) ................................................................................ 8

In re Vioxx Class Cases,180 Cal. App. 4th 116 (2009) ....................................................................... 10, 12

Wal-Mart Stores, Inc. v. Dukes,131 S. Ct. 2541 (2011) .......................................................................................... 2

Young v. Nationwide Mut. Ins. Co.,693 F.3d 532 (6th Cir. 2012) ................................................................................ 3

Zinser v. Accufix Research Inst., Inc.,253 F.3d 1180 (9th Cir. 2001) .............................................................................. 5

Rules

FED. R. CIV. P. 15(a) ................................................................................................. 27

FED. R. CIV. P. 23 ..............................................................................................passim

Other Authorities

Use of the Term “Natural” in the Labeling of Human Food Products: Request for Information and Comments, 80 Fed. Reg. 69,905 (Nov. 12, 2015) .................................................................................................................. 16

U.S. Food & Drug Administration, Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Derived from Genetically Engineered Plants (Nov. 2015), available at http://ow.ly/Yxg4Z ............................................................................................. 16, 17



INTRODUCTION

In their Answering Brief, Plaintiffs ask to be exempted from no fewer than

four separate, well-established class-certification requirements. They essentially

request that their multiple attempts to meet these requirements be graded on a

curve and that they be rewarded with certification for their efforts alone. Both they

and the district court apparently believe that the class certification requirements

that have been forged by the U.S. Supreme Court and lower courts over the course

of a number of years are simply too difficult to be met and that the bar should be

lowered for Plaintiffs.

But neither Rule 23 nor the extensive case law interpreting it permit courts

to relax standards on an ad hoc basis. Thus, this Court should reject Plaintiffs’

attempt to end-run around the ascertainability requirement’s mandate that they

submit an administratively feasible plan for identifying potential class members.

Similarly, Plaintiffs cannot show that common issues predominate as to materiality

with generalized survey evidence that is not tied to their precise legal theory.

Moreover, there are not one but two fatal flaws with Plaintiffs’ hybrid damages

model: (1) it fails to meet the requirement that it be scientifically reliable, and (2)

it fails to meet the requirement that it measure “damages attributable to th[e]

theory” of liability underlying the class claims. Comcast v. Behrend, 133 S. Ct.

1426, 1433 (2013). Each of these flaws on its own is sufficient to require reversal.



Nonetheless, the district court succumbed to Plaintiffs’ repeated requests to

relax the class certification standards, reversing course after initially holding

Plaintiffs to these requirements. Indeed, the district court even openly asked at the

hearing “is there any way of doing that” and could a plaintiff “ever show that” in

response to ConAgra counsel’s assertion of what Comcast required Plaintiffs to

show. ER00117.

This Court should not make the same mistake. If the district court’s order is

allowed to stand, it would dramatically lower the bar for class certification in the

Ninth Circuit. Reversal of the district court’s class certification decision is

necessary to ensure that Rule 23’s requirements do not become “mere pleading

standard[s].” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).

ARGUMENT

I. Plaintiffs’ claim that they need not demonstrate administrative feasibility is wrong and belied by the authorities they cite.

Plaintiffs argue that a class is ascertainable even if there is no

administratively feasible plan to identify potential class members. Answering Br.

11–12. They also claim that even if administrative feasibility is required, they

have met their burden because potential class members can self-identify through

affidavits. Id. at 14. Plaintiffs are wrong on both counts.



A. A class is not ascertainable if potential class members cannot be identified in an administratively feasible fashion.

Plaintiffs suggest that few courts consider administrative feasibility to be

part of deciding whether a class is ascertainable. Id. at 11–12. That is not true –

the overwhelming majority of federal appellate courts have held that a class is not

ascertainable if members cannot be identified in an administratively feasible

manner. See Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015); Brecher v.

Republic of Arg., 806 F.3d 22, 24 (2d Cir. 2015); Karhu v. Vital Pharm., Inc., 621

F. App’x 945, 947 (11th Cir. 2015); In re Nexium Antitrust Litig., 777 F.3d 9, 19–

20 (1st Cir. 2015); EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014).1

Strangely, Plaintiffs cite these cases in arguing that administrative feasibility is not

part of deciding whether a class is ascertainable. Answering Br. 21–22. That

claim is belied by the fact that all of these courts explicitly referenced

administrative feasibility when deciding whether the class was ascertainable.

This Court has already addressed whether class representatives must submit

an administratively feasible plan for identifying potential class members. See

Martin v. Pac. Parking Sys. Inc., 583 F. App’x 803 (9th Cir. 2014). In Martin, this

1 The Seventh Circuit has taken the contrary position. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 657–58 (7th Cir. 2015). There is also a split in the Sixth Circuit as to whether administrative feasibility is required to show that a class is ascertainable. Compare Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015), with Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537–38 (6th Cir. 2012).



Court held that the class was not ascertainable because the plaintiff “has not

demonstrated that it would be administratively feasible to determine which

individuals used personal, and not business, credit cards to purchase parking.” Id.

at 804 (emphasis added). Plaintiffs have no answer to the point that this Court

explicitly referenced administrative feasibility as an element of deciding whether a

class was ascertainable.

Additionally, numerous district courts in this Circuit have also held that

administrative feasibility is part of deciding whether a class is ascertainable. The

district court in this case is one example. ER00075. Other examples abound. See,

e.g., Lilly v. Jamba Juice Co., 308 F.R.D. 231, 236–37 (N.D. Cal. 2014);

Sethavanish v. ZonePerfect Nutrition Co., No. 12-cv-02907, 2014 WL 580696, at

*4 (N.D. Cal. Feb. 13, 2014); In re Clorox Consumer Litig., 301 F.R.D. 436, 441–

42 (N.D. Cal. 2014); see also Opening Br. 16 & n.2.

B. Plaintiffs fail to rebut ConAgra’s argument that they have not proposed an administratively feasible plan for identifying potential class members.

Because ascertainability is required for class certification, Plaintiffs bear the

burden of establishing this element. Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349,

356 (3d Cir. 2013); Karhu, 621 F. App’x at 948. Indeed, this Court has repeatedly

held that plaintiffs bear the burden of submitting plans or proposals to the district

court that demonstrate a class action is warranted. See Martin, 583 F. App’x at



804; Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001); Zinser v.

Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001). In Martin, this

Court held that the mere suggestion that class members could self-identify through

affidavits, without more, is not an administratively feasible plan. See Martin, 583

F. App’x at 804 (“[The plaintiff] has pointed this court to no place in the record

where he proposed even a general plan” for identifying potential class members

“beyond suggesting that individuals self-identify.”).

District courts in this Circuit have applied this requirement specifically in

the context of ascertainability. In one case, the court certified the proposed class in

part because the plaintiffs submitted a “plan to identify class members.” Lilly, 308

F.R.D. at 239. The court in Lilly thought it was especially important that the

plaintiffs’ plan was “detailed” and “aimed at providing notice to other potential

class members.” Id. at 238–39. By contrast, class certification has been denied in

cases when the class representatives have not presented an administratively

feasible plan for pinpointing class members. See, e.g., Allen v. ConAgra Foods,

Inc., No. 13-cv-01279, ECF No. 150 at 1 (N.D. Cal. Jan. 9, 2015) (holding that the

plaintiff “[did] not satisfy the ascertainability requirement” because she did not

“present a plan for how the class members will be identified”); Sethavanish, 2014

WL 580696, at *6 (similar).



There is no dispute that Plaintiffs have never submitted a plan or proposal

for identifying potential class members. The district court twice noted that

Plaintiffs defended ascertainability solely on the ground that the class was

objectively defined. See ER00182; ER00076. Plaintiffs’ only response on appeal

is to note that the district court speculated about how class members could be

identified in the future. Answering Br. 13. True, the district court said that

“identifying class members may well require the creation of a claim form or

declaration.” ER00078 (emphasis added). But the court’s statement that such

forms may well be required highlights that there is nothing in the record at this

time that resembles an administratively feasible plan for identifying class members.

The Plaintiffs cannot satisfy their burden to submit a plan by relying on the district

court to create one. That would run headfirst into this Court’s holding that “[t]he

district court is not to bear the burden of … correcting Rule 23(a) problems; rather,

the burden is on Plaintiffs to submit proposals to the court.”2 Hawkins, 251 F.3d at

1238 (quotation marks omitted).

2 This reasoning also undermines the district court’s speculation that “ConAgra may [] be able to test an individual’s claim that he or she is a class member” by looking to retail information. ER00079. Although Plaintiffs reference this statement on appeal, Answering Br. 20, this comes from the district court’s original order denying class certification. Plaintiffs never proposed looking to retail records in the district court, and they cannot meet their burden to propose an administratively feasible plan by pointing to indeterminate proposals that the district court offered. See Opening Br. 21.



The district court did not require the Plaintiffs to submit a plan because it

thought that doing so “would effectively prohibit class actions involving low

priced consumer goods.” ER00184. That is not true. See Opening Br. 20–21.

And regardless, concern over a subset of class actions is not a license to

unilaterally adjust burdens of proof. After all, “a party seeking to maintain a class

action must affirmatively demonstrate his compliance with Rule 23.” Comcast,

133 S. Ct. at 1432 (quotation marks omitted; emphasis added). The district court

committed legal error when it failed to hold the Plaintiffs to their burden and

instead lowered the bar for the ascertainability requirement.

C. Plaintiffs’ discussion of the Carrera rule and the ability to self-identify through affidavits is a red herring.

Plaintiffs use more than ten pages in their brief to explain why this Court

should not adopt the Carrera rule. See Answering Br. 21–31. But ConAgra does

not urge this Court to adopt that rule. Rather, ConAgra believes that the district

court erred by not requiring Plaintiffs to submit an administratively feasible plan

for identifying potential class members.

Plaintiffs also claim that the absence of a plan is not a problem because the

district court “can tailor fair verification procedures to the particular case[s].”

Answering Br. 27 (quotation marks omitted). Plaintiffs make this point for the first

time on appeal. Nevertheless, while the district court can create special procedures

for a certain case, it cannot do so until the Plaintiffs have submitted a plan for



identifying potential class members. That principle follows ineluctably not only

from the burden of proof, but also from basic principles of our adversarial system.

Our legal process “rel[ies] on the parties to frame the issues for decision and

assign[s] to courts the role of neutral arbiter.” Ventress v. Japan Airlines, 747 F.3d

716, 724 (9th Cir. 2014). In this context, that means Plaintiffs should submit a

plan for identifying class members in an administratively feasible manner. Once

they do, ConAgra can contest their proposal and explain its flaws, if appropriate.

After both sides have presented their arguments, the district court can decide

whether to “tailor fair verification procedures to the particular case[].” Mullins,

795 F.3d at 670. But the use of tailoring after the district court has evaluated the

parties’ arguments is not a substitute for requiring the Plaintiffs to present a plan

that ConAgra can contest. Relying on the district court to tailor verification

procedures is an end-run around the administrative feasibility requirement.3

3 Plaintiffs also claim that because ConAgra relied on self-identification to conduct a survey in this case, it cannot object to using affidavits for identifying class members. Answering Br. 20. This argument is made for the first time on appeal. Nevertheless, it is a false equivalence. There are significant due process concerns with establishing class membership—and therefore the right to recovery—through affidavits alone. See Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 594 (3d Cir. 2012). ConAgra’s request for individuals to self-identify in a survey does not pose similar problems.



II. The district court erred in holding that common questions predominate over individual ones.

Plaintiffs claim that common questions predominate as to the materiality of

the “100% Natural” label and as to the class members’ damages. They are wrong

on both counts.

A. Individual issues predominate with respect to materiality because Plaintiffs did not establish that it is susceptible to classwide proof.

Contrary to Plaintiffs’ argument, ConAgra does not contend that

“individualized questions would overwhelm because proof of individual reliance

and/or causation is required” as a matter of law. Answering Br. 40. Rather,

ConAgra argues that absent classwide proof of materiality, individualized inquiries

regarding reliance and causation would be required, and therefore predominate.

See Opening Br. 29. It is undisputed that “a misrepresentation is deemed material

if a reasonable man would attach importance to its existence or nonexistence in

determining his choice of action in the transaction in question.” Steroid Hormone

Prod. Cases, 104 Cal. Rptr. 3d 329, 338 (Cal. Ct. App. 2010) (quotation marks

omitted); Answering Br. 41. Likewise, it is well-settled that in order to certify a

class and satisfy the predominance requirement, Plaintiffs must offer some way of

proving materiality and reliance by a reasonable consumer on a classwide basis.4

4 Plaintiffs’ reliance on Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015), does not negate this. See Answering Br. 41. In Pulaski, this Court stated that “restitution is [not] available on a classwide basis [until] the class



See, e.g., In re Vioxx Class Cases, 180 Cal. App. 4th 116, 133 (2009); Faulk v.

Sears Roebuck & Co., No. 11-cv-02159, 2013 WL 1703378, at *9 (N.D. Cal. Apr.

19, 2013).

Plaintiffs’ theory of liability here “is that ConAgra misled reasonable

consumers by labeling GMO-derived Wesson Oils as 100% Natural.” Answering

Br. 8. Accordingly, as Plaintiffs acknowledge, they were required to point to

evidence demonstrating that a reasonable consumer of Wesson Oil not only

attached significance to the 100% Natural label in making his or her purchasing

decision but that he or she also understood 100% Natural to mean that the product

did not contain GMOs. See Answering Br. 45.

None of the evidence relied upon by the district court nor the evidence to

which Plaintiffs refer in their Answering Brief actually addresses this critical

question. See Kosta v. Del Monte Foods, Inc., 308 F.R.D. 217, 229–30 (N.D. Cal.

2015) (“While materiality and reliance for purposes of UCL, FAL and CLRA

claims can be subject to common proof on a classwide basis under some

circumstances, Plaintiffs here have offered no valid means by which such

classwide proof would be made.”).

representative makes the threshold showing of liability under the UCL and FAL.”Id. at 986. In other words, the class representative has to offer common evidence demonstrating that the public would likely be deceived because that is an elementof a UCL or FAL claim. Id. Plaintiffs fail in this regard.



1. Plaintiffs and the district court rely on a patchwork of unpersuasive and ultimately inadmissible evidence that lacks a sufficient nexus to Plaintiffs’ theory of liability while overlooking contrary, probative, and admissible evidence.

Plaintiffs need not prove their case during class certification, and ConAgra

does not contend otherwise. But Plaintiffs must do more than present a patchwork

of unsponsored, inadmissible surveys from which they cobble together conclusions

that do not meet the standards of Rule 23. Notably, Plaintiffs offer no response to

the detailed breakdown in ConAgra’s Opening Brief of the deficiencies in the

survey evidence they submitted in support of materiality. See Opening Br. 32–38.

Rather, they continue to cite evidence that does not target their theory of liability.

See Answering Br. 48–52. First, they cite Dr. Charles Benbrook’s statement that

foods containing GMOs are not natural. Id. at 49. But that says nothing about

whether the “100% Natural” label on Wesson cooking oils was material to class

members or whether they equated the natural representation with no GMOs in

making their purchasing decisions. Likewise, Plaintiffs cite a bevy of studies

relied upon by the district court allegedly showing that consumers think natural

means GMO-free. Id. at 50; ER00251. Not one of those surveys relates

specifically to Wesson Oil or whether such a belief played a role in a consumer’s

purchasing decision.

Plaintiffs also relied on unsupported, inapplicable, and likely inadmissible

third-party surveys in the district court. They cited one survey where a majority of



consumers said that they “look for a ‘natural’ claim when shopping.” ER00250;

ER03682. But looking for a label on an item is not the same as purchasing an item

because of the label. See In re Vioxx Class Cases, 180 Cal.App.4th at 129 (a

representation is material only “if it induced the consumer to alter his position to

his detriment”)(emphasis added). What’s more, that survey focused on “packaged

or processed foods” generally rather than Wesson cooking oil specifically.

ER03682–3703. To be meaningful, a survey must focus on the precise products

that form the basis of Plaintiffs’ legal theory.5 See Comcast, 133 S. Ct. at 1433.

Plaintiffs also relied on a survey that demonstrated a majority of respondents “were

‘somewhat interested’ or ‘very interested’ in purchasing natural products.”

ER00250; ER03726; ER03755. This survey is triply flawed: (1) it does not

indicate whether consumers think natural means GMO-free; (2) it does not indicate

whether natural is material to consumers; and (3) it is not limited to Wesson

cooking oils. This problem was endemic to Plaintiffs’ evidence of predominance.

In fact, at least two of these exact surveys have been previously rejected as

insufficient to support this precise theory of liability. See Randolph v. J.M.

5 ConAgra cited a panoply of cases holding that to be meaningful, surveys must rely upon responses by potential consumers of the products in question. Opening Br. 34–35. Plaintiffs respond by noting that the cases cited by ConAgra do not relate to “the type of consumer survey evidence at issue here” or the predominance inquiry. Answering Br. 53–55. But Plaintiffs miss the point – that general surveys not tied to the products in question are simply not probative evidence in anycontext.



Smucker Co., 303 F.R.D. 679, 695–96 (S.D. Fla. 2014). In Randolph, the plaintiff

sought to certify a class based on the allegation that J.M. Smucker Co.

misrepresented “to consumers that Crisco oils are ‘All Natural,’” even though they

were made with GMOs. Id. at 682–83. The plaintiffs in that case sought to rely on

both the Consumer Reports National Research Center survey from 2014 and the

Mintel survey from 2010 to establish the materiality of the “no GMOs”

interpretation of the “natural” label. Randolph v. J.M. Smucker Co., 303 F.R.D.

679 (S.D. Fla. 2014), Reply Brief for Plaintiff at 4–6, No. 13-cv-80581, 2014 WL

5365765 (S.D. Fla. Sept. 29, 2014). These are two of the surveys on which

Plaintiffs here rely to establish materiality. ER03680–3818. The district court in

Smuckers concluded that the predominance requirement was not satisfied because

“Plaintiff has not [] established whether the use of the term ‘All Natural’ in this

context would deceive an objectively reasonably consumer.” 303 F.R.D. at 696.

Moreover, the court held that “Plaintiff’s evidence supports the assertion that the

use of GMOs is a widely disputed issue; however, this evidence, in and of itself,

demonstrates the uncertainty with this question, and unequivocally exposes the fact

that there is a lack of consensus on the use of such products.” Id. at 695 (emphasis

added).

Plaintiffs also try to bolster their case by pointing to internal ConAgra

marketing research. Answering Br. 49. This evidence, however, suffers from the



same flaws as the surveys discussed above. The district court noted this point

explicitly: “None of the three [internal ConAgra] surveys plaintiffs cite directly

links consumers’ understanding of the ‘100% Natural’ label to the specific issue

raised in this case.” ER00251. Rather than address the flaws in their survey

evidence on appeal, Plaintiffs resort to simply parroting the district court’s

conclusion that they adduced sufficient evidence to show that materiality is

susceptible to classwide proof. Answering Br. 49–50. But ConAgra has

demonstrated above that this is not the case. At no point in the district court or on

appeal have the Plaintiffs tied their evidence of predominance to the precise theory

of liability in this case. The district court’s failure to enforce this requirement was

a legal error that constitutes a per se abuse of discretion.

2. The district court and Plaintiffs ignored probative, admissible evidence demonstrating that materiality is not susceptible to classwide proof.

Probative evidence also demonstrates that materiality is not susceptible to

classwide proof. For example, Dr. Hanssens’ survey focused on Plaintiffs’ theory

of liability and confirmed that “100% Natural” had no statistically measurable

difference in purchase intent or consumer beliefs about the presence of GMO

ingredients. ER05355–56. Additionally, Dr. Hanssens’ survey was limited to

actual and potential Wesson Oil consumers who were shown Wesson Oil labels

with and without the natural representation. Id. Plaintiffs offer no explanation on



appeal for how it could possibly be proper for the district court to rely on

generalized survey evidence while ignoring Dr. Hanssens’ specific survey

evidence.

In addition, the district court and Plaintiffs ignored ConAgra’s marketing

research indicating that only 42% of respondents even view or notice the 100%

natural statement at all. ER01688, ER00735. Logically, if a consumer does not

even notice a claim, not only can it not be material to his purchasing decision, but

it necessarily follows that he cannot be misled by it.6

ConAgra is not arguing that the district court should delve into whether

every consumer was misled. Rather, ConAgra’s argument is that there cannot be

classwide proof of materiality when the best survey evidence Plaintiffs have

demonstrates that the issue of reliance “var[ies] from consumer to consumer.”

Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1023 (9th Cir. 2011). While

Plaintiffs need not prove their case and rebut all of the contrary evidence, the

district court was required to consider the evidence before it, decide the issues

based upon the admissible evidence, and rule accordingly. Had the court done so,

6 Indeed, the results of this study should be taken into account when examining the third-party surveys relied on by Plaintiffs. Even if 61% of consumers associate a natural claim with the absence of GMOs, ER03862, but only 42% of those consumers even notice the claim, then at most 25% of consumers could possibly find it to be material.



the renewed motion for class certification, like the original motion, would have

been found equally deficient.

3. The issue of materiality and reliance varies among consumers in this case because there is no uniform understanding of “natural” or “GMO.”

It is no surprise that Plaintiffs cannot show that a reasonable class member

bought Wesson cooking oil because they thought the “100% Natural” label meant

GMO-free. The Food and Drug Administration (FDA) recently reiterated that the

meaning of “natural” on food products is far from clear. In a notification of

request for comments, the FDA said that “the term ‘natural’ is used on a variety of

products to mean a variety of things.” Use of the Term “Natural” in the Labeling

of Human Food Products; Request for Information and Comments, 80 Fed. Reg.

69,905, 69,906 (Nov. 12, 2015). The “widespread use” of natural makes it difficult

to pin down exactly what it conveys to consumers. Id. Additionally, the agency

remarked that there is “evidence that consumers regard many uses of this term

[“natural”] as non-informative.” Id. (emphasis added).

Moreover, the FDA issued additional policy guidance regarding GMOs in

November of 2015. U.S. Food & Drug Administration, Guidance for Industry:

Voluntary Labeling Indicating Whether Foods Have or Have Not Been Derived

from Genetically Engineered Plants (Nov. 2015), available at http://ow.ly/Yxg4Z.

Significantly, the guidance notes that there is “potential confusion regarding the



meaning of the acronym ‘GMO’” and “[b]ecause the term ‘genetically modified’

can encompass any alteration to the genetic composition of a plant, including

alterations achieved through traditional hybridization or breeding techniques, that

term could apply to most cultivated food crops since most food crops are the

product of selective breeding.” Id. In addition, the FDA reaffirmed its 1992 policy

which made two key points: (1) there is generally no difference between GMO

foods and non-GMO foods, and (2) whether a plant is genetically engineered “is

generally not material information.” Id.

These findings by the federal agency charged with administering and

enforcing food-label regulations are significant. They underscore that consumers

do not have any uniform understanding of “natural” or “GMO” and that their

beliefs on this issue are generally not material to their purchasing decisions. This

renders classwide proof of materiality and reliance even less likely.

4. ConAgra does not ask this Court to unnecessarily delve into the merits of this case but to engage in the rigorous analysis required by Rule 23.

When faced with arguments that the evidence they produced to support

classwide proof of materiality and reliance is flawed, Plaintiffs do not attempt to

address or rebut these flaws. Instead, they argue that ConAgra’s arguments go to

the merits and should therefore not be considered by the court. Answering Br. 45–

48. They further urge this Court not to “second guess” the district court’s decision,



id. at 46, but in doing so they are asking the Court not to engage in the very

rigorous analysis that it is required to undertake. As Plaintiffs concede, the Court

should consider merits questions when they are relevant to determining whether

the Rule 23 prerequisites for class certification have been satisfied. Id. at 45. The

evidence or lack thereof that ConAgra addresses is the evidence and record on

which the district court based its decision. Certainly, if the district court

considered and relied on it to certify the class, it is fair game for ConAgra to

demonstrate that the conclusions reached by the district court cannot be drawn

from the evidence relied upon. See Comcast, 133 S. Ct. at 1432.

B. Individual issues predominate with respect to damages.

1. Plaintiffs’ argument that its hybrid damages model meets Comcast because “use of arithmetic is not an abuse of discretion” is unsupported.

ConAgra argued that Plaintiffs failed to adequately explain why the hybrid

damages model they proposed passes muster under both Comcast and Daubert.

Plaintiffs’ response on appeal is telling. Instead of relying on case law or their

expert reports, they flippantly assert that “because these results [from each of the

two models] are bare numbers with no physical dimension, combining them with

multiplication is mathematically proper.” Answering Br. 73. They further argue

that “it uses arithmetic, and use of arithmetic is not an abuse of discretion.” Id. at

74. To top it off, Plaintiffs summarily declare that “there was and is no need to



present extensive proof that two percentages of the type at issue can be combined

through multiplication in order to factor both results into a logical conclusion.” Id.

at 72.

This is classic ipse dixit—essentially arguing that their experts can combine

these two models because they say they can. It is of course axiomatic that such

ipse dixit testimony is properly excluded and cannot form the basis for a crucial,

required underpinning for an eleven-state class action. See, e.g., In re Mushroom

Direct Purchaser Antitrust Litig., No. 06-cv-00620, 2015 WL 5766929, at *3–5

(E.D. Pa. Aug. 27, 2015); see also Meadows v. Anchor Longwall & Rebuild, Inc.,

306 F. App’x 781, 790 (3d Cir. 2009); Domingo v. T.K., 289 F.3d 600, 607 (9th

Cir. 2002). This is especially true when Plaintiffs concede that this methodology

has never before been used by anyone, including Plaintiffs’ expert Dr. Howlett.

Answering Br. 65–66. Nowhere—not in their Answering Brief, not in their

experts’ declarations, not in their multiple motions and replies in support of class

certification—do Plaintiffs cite a single source that permits the outcomes of these

two different models that measure two different things to be combined in the way

that they propose. Indeed, as ConAgra noted in its Opening Brief, Dr. Howlett’s

explanation of the hybrid damages model amounted to a single paragraph and

provided no supporting authorities. Opening Br. 56.



It cannot be the case that a party can meet the “rigorous analysis” required

by Comcast for damage models with such flimsy support. If an expert can rely on

a brand-new hybrid model that no one has ever attempted before and do so without

any citation or barely any discussion at all of why it is appropriate to combine the

outcomes of two models—and justify it by backhandedly arguing that it is

“mathematically proper” (once again without any citation)—then there is nothing

left to Comcast. Any expert and any model could meet such a low threshold.

Plaintiffs attempt to defend the district court’s acceptance of this hybrid

model by asserting “that a methodology has not previously been used is not a

reason to reject it.” Answering Br. 66. While this is technically true, it does not

mean that an expert’s ipse dixit and completely new model should be accepted with

virtually no consideration of its reliability or whether it meets Comcast (and

Daubert). Indeed, the fact that it has never before been used logically suggests that

the scrutiny of the model should be more rigorous than it otherwise would be, not

less. Simply put, the cases are legion that hold that a damages model that is

untested and/or fails to adequately explain why or how it is able to reach its

conclusions cannot support class certification. See, e.g., Clausen v. M/V New

Carissa, 339 F.3d 1049, 1056 (9th Cir. 2003); Lust v. Merrell Dow Pharm., Inc.,

89 F.3d 594, 597–98 (9th Cir. 1996); Prism Techs. LLC v. AT&T Mobility, LLC,

No. 12-cv-12201, 2014 U.S. Dist. LEXIS 132619, at *21–22 (D. Neb. Sept. 22,



2014); Randolph, 303 F.R.D. at 697–98; In re Dial Complete Mktg. and Sales

Practice Litig., 312 F.R.D. 36, 79–80 (D.N.H. 2015); Miller v. Fuhu, Inc., No. 14-

cv-06119, 2015 WL 7776794, at *21–22 (C.D. Cal. Dec. 1, 2015). ConAgra

discussed many of these cases in its Opening Brief, Opening Br. 52–56, but

Plaintiffs declined to rebut any of them.

This Court has previously confronted experts who have little experience

with their proposed models and who developed them solely for litigation. See

Clausen, 339 F.3d at1049. In Clausen, the Court noted that a “very significant fact

to be considered” is whether experts are testifying about “research they have

conducted independent of the litigation, or whether they have developed their

opinions expressly for purposes of testifying.” Id. at 1056. If the model has been

developed solely for litigation, then the expert must demonstrate that the “analysis

supporting the proffered conclusions have been subjected to normal scientific

scrutiny through peer review and publication.” Id. (emphasis added).

It is undisputed that Dr. Howlett did not combine hedonic regression and

conjoint analysis as part of genuine scientific research. Indeed, she combined

those models solely for purposes of this litigation. Consequently, she and the

Plaintiffs were obligated to present evidence demonstrating that her analysis had

been scrutinized through “peer review and publication.” Clausen, 339 F.3d at

1056. But Dr. Howlett confessed that this was not true—she was “unaware of



anyone else in any peer-reviewed article that has ever combined the results of a

conjoint analysis and a hedonic regression model.” ER08057 (citing ER07989–

90). Plaintiffs cannot be excused from showing that a model is scientifically

reliable simply because it is novel. “[T]he novelty of a theory does not shield

an expert’s testimony from judicial scrutiny.” Mike’s Train House, Inc. v. Lionel,

LLC, 472 F.3d 398, 407 (6th Cir. 2006).

Chapman v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002), provides an even

closer analogue for Dr. Howlett’s shortcomings in this case. There, the court had

to decide whether the analysis and conclusions of the plaintiff’s expert were

scientifically reliable. The court held they were not because the expert’s

“theory is novel and unsupported by any article, text, study, scientific literature or

scientific data produced by others in his field.” Id. at 688. Moreover, it was

particularly important to the court that “by his own admission, [the expert] has

not published any writings or studies concerning his [] theory.” Id. The absence of

scientific validation meant that the expert’s theory amounted to “[u]nsubstantiated

testimony.” Id.

Chapman’s reasoning applies directly to this case. Like the theory there, Dr.

Howlett’s novel combination of hedonic regression and conjoint analysis is not

supported in the scientific literature. Plaintiffs bore the burden to show that Dr.

Howlett’s model was “subjected to normal scientific scrutiny through peer review



and publication.” Clausen, 339 F.3d at 1056. They did not meet that burden, and

the district court’s failure to hold them to it was an abuse of discretion. Carijano v.

Occidental Petroleum Corp., 643 F.3d 1216, 1236 (9th Cir. 2011).

2. Plaintiffs’ insistence that the two damage models can be combined simply defies logic.

Even if Plaintiffs here were permitted to pass the Comcast hurdle with the

vague and unsupported assertion that the hybrid model is “mathematically proper,”

this assertion is demonstrably incorrect – it is in no way “mathematically proper”

to multiply the outcomes of the regression model and the conjoint analysis model

together. This is because the two models measure two different things – a fact that

even Plaintiffs concede. Answering Br. 71–72. The regression model measures

the price premium, and the conjoint analysis purports to measure the relative

importance of a single trait of the product.

While no one disputes that two numbers in the abstract can be multiplied

together (as Plaintiffs apparently argue), what matters here is whether these two

particular numbers can be multiplied. It literally is mixing “apples and oranges”

as ConAgra argued in its Opening Brief because the two models do not share the

same unit of measurement. Plaintiffs’ argument here is the equivalent of

suggesting that if you add one child’s seven (7) apples with another child’s three

(3) oranges, then you get ten (10) apples. Plaintiffs ignore the fact that the second

child did not have apples at all—just oranges. Similarly, Plaintiffs gloss over the



fact that the conjoint analysis does not measure a premium, but just the relative

importance of current consumer preferences, which is an altogether different

concept. Even the trial court recognized this distinction when it noted “[t]he

assertedly imperfect correlation between the relative importance of a product

feature to consumers and the price premium attributable to that feature.”

ER00263.

Plaintiffs incorrectly argue that there was a “lack of substantive challenge to

any one of the[] three figures” including the price premium, the dollar value, and

the relative value percentage. Answering Br. 66. ConAgra submitted an 81-page

declaration from its expert, Dr. Keith Ugone, as an exhibit to its Opposition to

Class Certification and cited and quoted from it extensively in the briefing both at

the trial court and this Court. See ER00889–01171; ER01172–01248; ER05408–

05578; Opening Br. 53. This declaration attacked Plaintiffs’ two models over the

course of multiple pages.

Accordingly, the district court erred when it ignored ConAgra’s detailed

criticisms and permitted such an illogical damages model to pass muster under

Comcast. See, e.g., Housing Works, Inc. v. Turner, 362 F. Supp. 2d 434, 447–48

(S.D.N.Y. 2005) (excluding illogical expert report that failed to address facts that

would, by common sense, dictate different conclusions from those reached by the

expert).



3. Plaintiffs’ reliance on Guido and related cases is misplaced.

Plaintiffs rely on several cases that permitted conjoint analysis, such as

Guido v. L’Oreal USA, Inc, No. 11-cv-01067 et al., 2014 WL 6603730 (C.D. Cal.

July 1, 2014). Answering Br. 70. The district court in its order certifying eleven

classes also relied on these cases. ER00262–65. But there are important

distinctions between the circumstances here and the circumstances in Guido.

Indeed, the district court judge that certified the classes in this case rejected

a conjoint analysis model that is almost identical to the one here in In re NJOY,

Inc. Consumer Class Action Litig., No. 14-cv-00428, 2015 WL 4881091, at *42

(C.D. Cal. Aug. 14, 2015). There, the court held that the conjoint analysis “does

not satisfy Comcast” because “it does not permit the court to turn the relative

valuation into an absolute valuation to be awarded as damages.” Id. (alteration

omitted). The court explained that the model looked “only to the demand side of

the market equation, converting what is properly an objective evaluation of relative

fair market values into a seemingly subjective inquiry of what an average

consumer wants.” Id. (quotation marks and alterations omitted). Other courts have

also criticized conjoint analysis for this very same reason. See Saavedra v. Eli

Lilly & Co., No. 12-cv-09366, 2014 WL 7338930, at *4 (C.D. Cal. Dec. 18, 2014);

Apple, Inc. v. Samsung Elec. Co., No. 11-cv-01846, 2014 WL 976898, at *11

(N.D. Cal. Mar. 6, 2014). The In re NJOY court noted conjoint analysis was



permitted in Guido because the defendant failed to raise concerns regarding market

supply there. 2015 WL 4881091, at *42–43. The In re NJOY court also

distinguished the result in this case, stating that the hybrid damage model’s use of

hedonic regression accounted for the supply and market factors, and thus could

properly be relied upon to permit certification. Id. at *44.

However, the result in In re NJOY highlights a critical flaw in the district

court’s reasoning in this case. The conjoint analysis here does not account for the

supply and market factors specific to Plaintiffs’ theory of liability – that “100%

Natural” means no GMOs. The In re NJOY decision makes clear that conjoint

analysis does not take into account market supply factors. Id. Though the

regression analysis here does take into account market supply factors, it only does

so for the “natural” label claim as a whole, not for the particular “no GMO”

portion of the “natural” label claim that Plaintiffs challenge in this lawsuit. In this

way, the hybrid damages model suffers from the same deficiency identified by the

district court in its decision on Plaintiffs’ first motion for class certification – it is

not tied to Plaintiffs’ theory of liability. ER00100–01.

If a conjoint analysis that isolates the relative valuation of a particular

feature does not satisfy Comcast by itself, multiplying it by the outcome of a

different model does not magically make it satisfy Comcast. In other words, in

Plaintiffs’ hybrid damages model here, there is no consideration at all of market



supply factors specific to the “no GMO” interpretation of the “natural” label claim.

Multiplying it by the price premium—that allegedly did take into account the

supply and demand features—does not cure the original defect of the conjoint

model. This is why Plaintiffs’ hybrid damages model does not meet Comcast—it

does not measure only those damages attributable to the theory of liability.7 There

is simply no way to square the result in In re NJOY with the result here. The

absence of the market supply factors from the conjoint analysis should be fatal to

the hybrid damages model here. Thus, the circumstances of this case are more

similar to In re NJOY than to Guido and the related cases relied on by Plaintiffs

and the district court.8

III. This Court should remand with instructions to dismiss Plaintiffs’ amended complaint with prejudice.

Under the Federal Rules of Civil Procedure, the Plaintiffs “may amend

[their] pleading once as a matter of course.” FED. R. CIV. P. 15(a). After that, they

may file an amended complaint with the court’s leave “when justice so requires.”

Id. Justice does not demand that Plaintiffs get endless chances to make their case

after they have already filed multiple complaints and multiple motions for class

7 Even the district court below apparently agreed. As noted in ConAgra’s opening brief, the district court wondered whether the Plaintiffs could “ever” satisfy Comcast given their legal theory. Opening Br. 54 n.11. Plaintiffs fail to rebut this point in their answering brief, which underscores that the district court deviated from the appropriate standard under Rule 23(b)(3) and Comcast.8 ConAgra relies on the arguments it made in its Opening Brief regarding typicality and superiority.



certification. This Court has recognized that it is appropriate to dismiss a “second

amended complaint with prejudice … in light of plaintiffs’ repeated failure to cure

the deficiencies in their pleadings.” Destfino v. Reiswig, 630 F.3d 952, 959 (9th

Cir. 2011) (alterations omitted; some emphasis added); see also Larin v. Bank of

Am., NA, 617 F. App’x 651, 652 (9th Cir. 2015) (similar); McCanic v. City of Long

Beach, 993 F.2d 883, 1993 WL 171470, at *3 (9th Cir. 1993) (Table) (similar).

Plaintiffs filed their original complaint on June 28, 2011. Briseno v.

ConAgra Foods, Inc., No. 11-cv-05379, ECF No. 1 (C.D. Cal. Jun. 28, 2011).

They subsequently filed two amended complaints. Id. ECF Nos. 80 & 143. After

that, the Plaintiffs filed two motions for class certification. Id. ECF Nos. 241 &

363. After three complaints and two motions for class certification, this Court will

decide whether the class was properly certified nearly five years after Plaintiffs

filed their original complaint.

This case has gone on long enough. The district court gave Plaintiffs several

opportunities to comply with Rule 23. If this Court were to hold that Plaintiffs’

class was improperly certified, it should not give them “yet another opportunity to

prolong this litigation.” Opening Br. 59. Dismissal with prejudice is appropriate

“in light of plaintiffs’ repeated failure to cure the deficiencies in their pleadings”

and their motions for class certification. Destfino, 630 F.3d at 959 (alterations

omitted).



CONCLUSION

For the foregoing reasons, this Court should reverse the decision of the

district court and remand with instructions to deny Plaintiffs’ amended motion for

class certification.

Dated: March 2, 2016 Respectfully submitted,

MCGUIREWOODS LLP

/s/ A. Brooks Gresham A. Brooks Gresham Angela M. Spivey R. Trent Taylor Laura E. Coombe E. Rebecca Gantt





1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) because it contains 6,981 words, excluding

the parts of the brief exempted by Federal Rule of Appellate Procedure

32(a)(7)(B)(iii).

2. This brief complies with the typeface and type-style requirements of Federal

Rule of Appellate Procedure 32(a)(5) and Federal Rule of Appellate

Procedure 32(a)(6) because it has been prepared in proportionally-spaced

typeface using Microsoft Word, in 14-point size.

Dated: March 2, 2016 /s/ A. Brooks Gresham A. Brooks Gresham





I hereby certify that on March 2, 2016, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit using the appellate CM/ECF system. All participants in the case are

registered CM/ECF users and will be served by the system.

Dated: March 2, 2016 /s/ A. Brooks Gresham A. Brooks Gresham




V. Briseño v. Conagra Foods, Inc., U.S. Court of Appeals for the Ninth Circuit. Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

ROBERT BRISENO, individually and on behalf of all others similarly situated,

Plaintiff-Appellee,

v.

CONAGRA FOODS, INC.,Defendant-Appellant.

No. 15-55727

D.C. No.2:11-cv-05379-

MMM-AGR

OPINION

Appeal from the United States District Courtfor the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted September 12, 2016San Francisco, California

Filed January 3, 2017

Before: William A. Fletcher, Morgan B. Christen,and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland


2 BRISENO V. CONAGRA FOODS

SUMMARY*

Class Certification

The panel affirmed the district court’s class certification in putative class actions brought against ConAgra Foods in eleven states by consumers who purchased Wesson-brand cooking oil products labeled “100% Natural” during the relevant period.

Plaintiffs argued that the “100% Natural” label was false or misleading because Wesson oils are made from bioengineered ingredients that plaintiffs contend are “not natural.” ConAgra manufactures, markets, distributes, and sells Wesson products. Defendant urged reversal of the district court’s class certification because the district court did not require Plaintiff-Appellee Robert Briseno and the other named class representatives to proffer an administratively feasible way to identify members of the certified classes.

The panel held that the language of Federal Rule of Civil Procedure 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification. The panel therefore joined the Sixth, Seventh, and Eighth Circuits in declining to adopt an administrative feasibility requirement.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.


BRISENO V. CONAGRA FOODS 3

COUNSEL

Angela Spivey (argued), McGuireWoods LLP, Atlanta, Georgia; R. Trent Taylor, McGuireWoods LLP, Richmond, Virginia; E. Rebecca Gantt, McGuireWoods LLP, Norfolk, Virginia; A. Brooks Gresham and Laura E. Coombe, McGuireWoods LLP, Los Angeles, California; for Defendant-Appellant.

Adam Levitt (argued) and Edmund S. Aronowitz, Grant & Eisenhofer P.A., Chicago, Illinois; Mary S. Thomas, Grant & Eisenhofer P.A., Wilmington, Delaware; Ariana J. Tadler, Henry J. Kelston, Meagan Keenan, and Carey Alexander, Milberg LLP, New York, New York; David E. Azar, Milberg LLP, Los Angeles, California; for Plaintiff-Appellee.

OPINION

FRIEDLAND, Circuit Judge:

This appeal requires us to decide whether, to obtain class certification under Federal Rule of Civil Procedure 23, class representatives must demonstrate that there is an “administratively feasible” means of identifying absent class members. Defendant-Appellant ConAgra Foods, Inc. (“ConAgra”) urges us to reverse class certification because the district court did not require Plaintiff-Appellee Robert Briseno and the other named class representatives (collectively, “Plaintiffs”) to proffer a reliable way toidentify members of the certified classes here—consumers



in eleven states who purchased Wesson-brand cooking oils labeled “100% Natural” during the relevant period.1

We have never interpreted Rule 23 to require such a showing, and, like the Sixth, Seventh, and Eighth Circuits, we decline to do so now. See Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992, 995–96 (8th Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015), cert. denied, 136 S. Ct. 1161 (2016). Aseparate administrative feasibility prerequisite to class certification is not compatible with the language of Rule 23. Further, Rule 23’s enumerated criteria already address thepolicy concerns that have motivated some courts to adopt a separate administrative feasibility requirement, and do so without undermining the balance of interests struck by the Supreme Court, Congress, and the other contributors to the Rule. We therefore affirm.

I

Plaintiffs are consumers who purchased Wesson-brand cooking oil products labeled “100% Natural.” The “100% Natural” label appeared on every bottle of Wesson-brand oil throughout the putative class periods (and continues to appear on those products). Plaintiffs argue that the “100% Natural” label is false or misleading because Wesson oils are made from bioengineered ingredients (genetically modified organisms, or GMOs) that Plaintiffs contend are “not

1 We address ConAgra’s other challenges to the district court’s class certification order in a concurrently filed memorandum disposition.



natural.” ConAgra manufactures, markets, distributes, and sells Wesson products.

Plaintiffs filed putative class actions asserting state-law claims against ConAgra in eleven states, and those cases were consolidated in this action. Plaintiffs moved to certify eleven classes defined as follows:2

All persons who reside in the States of California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, or Texas who have purchased Wesson Oils within the applicable statute of limitations periods established by the laws of their state of residence (the “Class Period”) through the final disposition of this and any and all related actions.

As relevant here, ConAgra opposed class certification on the ground that there would be no administratively feasible way to identify members of the proposed classes because consumers would not be able to reliably identify themselves as class members. As a result, ConAgra argued that the class was not eligible for certification.3

2 We refer to Plaintiffs’ amended motion for class certification, which is the subject of this appeal.

3 ConAgra called this a failure of “ascertainability.” We refrain from referring to “ascertainability” in this opinion because courts ascribe widely varied meanings to that term. For example, some courts use the word “ascertainability” to deny certification of classes that are not clearly or objectively defined. See, e.g., Brecher v. Republic of Argentina, 806 F.3d 22, 24–26 (2d Cir. 2015) (holding that a class



The district court acknowledged that the Third Circuit and some district courts have refused certification in similar circumstances, but it declined to join in their reasoning. Instead, the district court held that, at the certification stage, it was sufficient that the class was defined by an objective criterion: whether class members purchased Wesson oil during the class period.

The district court ultimately granted Plaintiffs’ motion in part and certified eleven statewide classes to pursue certain claims for damages under Federal Rule of Civil Procedure 23(b)(3). ConAgra timely sought and obtained permission to appeal pursuant to Rule 23(f).

II

Federal Rule of Civil Procedure 23 governs the maintenance of class actions in federal court. Parties seeking class certification must satisfy each of the four requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy—and at least one of the requirements of Rule 23(b). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–80 (9th Cir. 2011).

defined as all owners of beneficial interests in a particular bond series, without reference to the time owned, was too indefinite); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (affirming denial of class certification because a class composed of state residents “active in the ‘peace movement’” was uncertain and overbroad). Others have used the term in referring to classes defined in terms of success on the merits. See, e.g., EQT Prod. Co. v. Adair, 764 F.3d 347, 360 n.9 (4th Cir. 2014) (remanding and instructing the district court to consider, “as part of its class-definition analysis,” inter alia, whether the proposed classes could be defined without creating a fail-safe class). Our court does not have its own definition. See infra note 4.



ConAgra argues that, in addition to satisfying these enumerated criteria, class proponents must also demonstrate that there is an administratively feasible way to determine who is in the class.4 ConAgra claims that Plaintiffs did not propose any way to identify class members and cannot prove that an administratively feasible method exists because consumers do not generally save grocery receipts and are unlikely to remember details about individual purchases of a low-cost product like cooking oil. We have not previously interpreted Rule 23 to require such a demonstration, and, for the reasons that follow, we do not do so now.

A

We employ the “traditional tools of statutory construction” to interpret the Federal Rules of Civil

4 On appeal, ConAgra continues to present administrative feasibility as part of a threshold “ascertainability” prerequisite to certification. ConAgra relies on a footnote in Berger v. Home Depot USA, Inc.,741 F.3d 1061 (9th Cir. 2014), to argue that our court has recognized such a requirement. But in that footnote we explicitly declined to decide whether the district court abused its discretion by denying certification based on a “threshold ascertainability test.” Id. at 1071 n.3. ConAgra cites no other precedent to support the notion that our court has adopted an “ascertainability” requirement. This is not surprising because we have not. Instead, we have addressed the types of alleged definitional deficiencies other courts have referred to as “ascertainability” issues, see supra note 3, through analysis of Rule 23’s enumerated requirements. See, e.g., Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136–39 (9th Cir. 2016) (addressing claim that class definition was overbroad—and thus arguably contained some members who were not injured—as a Rule 23(b)(3) predominance issue); Probe v. State Teachers’ Ret. Sys.,780 F.2d 776, 780 (9th Cir. 1986) (recognizing that a class must not be vaguely defined and must be “sufficiently definite to conform to Rule 23”). Although the parties here use the word “ascertainability,” they dispute only whether a class proponent must proffer an administratively feasible way to identify class members. That is therefore the only issue we decide.



Procedure. Republic of Ecuador v. Mackay, 742 F.3d 860, 864 (9th Cir. 2014) (quoting United States v. Petri, 731 F.3d 833, 839 (9th Cir. 2013)). In construing what Rule 23 requires, our “‘first step’” is thus “‘determin[ing] whether the language at issue has a plain meaning.’” Id. (quoting McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir. 2008)); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988) (noting that interpretation of the federal rules “begin[s] with the language of the Rule itself”). “When interpreting [the Rule], words and phrases must not be read in isolation, but with an eye toward the ‘purpose and context of the statute.’” Petri, 731 F.3d at 839 (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)). “An interpretation that gives effect to every clause is generally preferable to one that does not.” Mackay, 742 F.3d at 864.

Beginning then with the plain language, Rule 23(a) is titled “Prerequisites” and provides:

One or more members of a class may sue or be sued as representative parties on behalf of all members only 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). This provision identifies the prerequisites to maintaining a class action in federal court. It does not mention “administrative feasibility.”

Traditional canons of statutory construction suggest that this omission was meaningful. Because the drafters specifically enumerated “[p]rerequisites,” we may conclude that Rule 23(a) constitutes an exhaustive list. See Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (explaining that, under the doctrine of expressio unius estexclusio alterius, the enumeration of certain criteria to the exclusion of others should be interpreted as an intentional omission). We also take guidance from language used in other provisions of the Rule. In contrast to Rule 23(a), Rule 23(b)(3) provides, “The matters pertinent to these findings include,” followed by four listed considerations. FED. R.CIV. P. 23(b)(3) (emphasis added). If the Rules Advisory Committee had intended to create a non-exhaustive list in Rule 23(a), it would have used similar language. See Russello v. United States, 464 U.S. 16, 23 (1983) (“‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” (alteration in original) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam))). Moreover, Rule 23(b)(3) requires a court certifying a class under that section to consider “the likely difficulties in managing a class action.” FED. R. CIV. P. 23(b)(3)(D). Imposing a separate administrative feasibility requirement would render that manageability criterion largely superfluous, a result that contravenes the familiar preceptthat a rule should be interpreted to “give[] effect to every clause.” Mackay, 742 F.3d at 864.



Supreme Court precedent also counsels in favor of hewing closely to the text of Rule 23. In Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the Court considered whether a settlement-only class could be certified without satisfying the requirements of Rule 23. In holding that it could not,5 the Court underscored that the Federal Rules of Civil Procedure result from “an extensive deliberative process involving . . . a Rules Advisory Committee, public commenters, the Judicial Conference, [the Supreme] Court, [and] Congress.” Id. at 620. The Court warned that “[t]he text of a rule thus proposed and reviewed limits judicial inventiveness” and admonished that “[c]ourts are not free to amend a rule outside the process Congress ordered.” Id. The lesson of Amchem Products is plain: “Federal courts . . .lack authority to substitute for Rule 23’s certification criteria a standard never adopted.” Id. at 622.

In sum, the language of Rule 23 does not impose a freestanding administrative feasibility prerequisite to class certification. Mindful of the Supreme Court’s guidance, we decline to interpose an additional hurdle into the class certification process delineated in the enacted Rule. SeeSandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016) (declining to recognize a “separate, preliminary” requirement and, instead, “adher[ing] to a rigorous analysis of the Rule 23 requirements”).

5 The Court recognized, however, that a settlement-only class—which by definition will not proceed to trial—can be certified without consideration of potential trial-management challenges under Rule 23(b)(3)(D). See Amchem Prods., 521 U.S. at 620.



B

We recognize that the Third Circuit does require putative class representatives to demonstrate “administrative feasibility” as a prerequisite to class certification.6 See Byrd

6 Other circuits have cited the Third Circuit’s administrative feasibility standard but have not actually imposed the standard in the same manner as has the Third Circuit. The First Circuit has cited Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), for the proposition that at the class certification stage, it must be anticipated that, by the time a case reaches the liability and claims administration stages, there will be an administratively feasible way to distinguish injured from uninjured class members. See In re Nexium Antitrust Litig., 777 F.3d 9, 19–20 (1st Cir. 2015). Requiring plaintiffs to propose a mechanism for eventually determining whether a given class member is entitled to damages is different from requiring plaintiffs to demonstrate an administratively feasible way to identify all class members at the certification stage. In Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015), the Second Circuit mentioned administrative feasibility and cited Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012), but administrative feasibility played no role in the court’s decision, which instead turned on the principle that a class definition must be objective and definite. Brecher,806 F.3d at 24–26. The Fourth Circuit has reversed class certification based in part on potential “administrative barrier[s]” to ascertaining class members and cited the Third Circuit in doing so. See EQT Prod. Co. v. Adair, 764 F.3d 347, 358–60 (4th Cir. 2014). But the “administrative barriers” identified by the court in EQT sounded in definitional deficiencies, numerosity questions, predominance problems, and management difficulties, see id.—issues that all implicate other class certification criteria. It is thus far from clear that the Fourth Circuit requires an affirmative demonstration of administrative feasibility as a separate prerequisite to class certification. Even the Third Circuit has cabined its administrative feasibility rule in recent cases. See In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380, 396–97(3d Cir. 2015) (distinguishing Carrera as addressing particular “evidentiary problems”), cert. denied sub nom. PNC Bank v. Brian W.,136 S. Ct. 1167 (2016); Byrd, 784 F.3d at 164 (clarifying that Carreradid not create a “records requirement” at the class certification stage and instead “only requires the plaintiff to show that class members can be identified” (quoting Carrera, 727 F.3d at 308 n.2 (emphasis added))).



v. Aaron’s Inc., 784 F.3d 154, 162–63 (3d Cir. 2015); Carrera v. Bayer Corp., 727 F.3d 300, 306–08 (3d Cir. 2013). The Third Circuit justifies its administrative feasibility requirement not through the text of Rule 23 but rather as a necessary tool to ensure that the “class will actually function as a class.” Byrd, 784 F.3d at 162. The Third Circuit suggests that its administrative feasibility prerequisite achieves this goal by (1) mitigating administrative burdens; (2) safeguarding the interests of absent and bona fide class members; and (3) protecting the due process rights of defendants. See Carrera, 727 F.3d at 307, 310. The Seventh Circuit soundly rejected those justifications in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), and the Sixth Circuit followed suit, see Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (citing Mullins in declining to follow Carrera). We likewise conclude that Rule 23’s enumerated criteria already address the interests that motivated the Third Circuit and, therefore, that an independent administrative feasibility requirement is unnecessary.

1

One rationale the Third Circuit has given for imposing an administrative feasibility requirement is the need to mitigate the administrative burdens of trying a Rule 23(b)(3) class action. Courts adjudicating such actions must provide notice that a class has been certified and an opportunity for absent class members to withdraw from the class. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011); accordFED. R. CIV. P. 23(c)(2)(B). The Third Circuit largely justifies its administrative feasibility prerequisite as necessary to ensure that compliance with this procedural requirement does not compromise the efficiencies Rule



23(b)(3) was designed to achieve.7 See Shelton v. Bledsoe,775 F.3d 554, 562 (3d Cir. 2015); Carrera, 727 F.3d at 307.

But Rule 23(b)(3) already contains a specific, enumerated mechanism to achieve that goal: the manageability criterion of the superiority requirement. Rule 23(b)(3) requires that a class action be “superior to other available methods for fairly and efficiently adjudicating the controversy,” and it specifically mandates that courts consider “the likely difficulties in managing a class action.” FED. R. CIV. P. 23(b)(3)(D).

Moreover, as the Seventh Circuit has observed, requiring class proponents to satisfy an administrative feasibility prerequisite “conflicts with the well-settled presumption that courts should not refuse to certify a class merely on the basis of manageability concerns.” Mullins, 795 F.3d at 663; see also In re Visa Check/MasterMoney Antitrust Litig.,280 F.3d 124, 140 (2d Cir. 2001) (Sotomayor, J.) (holding that refusal to certify a class “on the sole ground that it would be unmanageable is disfavored and ‘should be the exception rather than the rule’” (quoting In re S. Cent. States Bakery Prods. Antitrust Litig., 86 F.R.D. 407, 423 (M.D. La. 1980))), overruled on other grounds by In re IPO Sec. Litig.,471 F.3d 24 (2d Cir. 2006), and superseded by statute on other grounds as stated in Attenborough v. Constr. & Gen. Bldg. Laborers’ Local 79, 238 F.R.D. 82, 100 (S.D.N.Y. 2006). This presumption makes ample sense given the variety of procedural tools courts can use to manage the

7 Because the notice requirement is mandatory only for Rule 23(b)(3) classes, the Third Circuit has declined to extend its “ascertainability” prerequisite, which includes its administrative feasibility requirement, to Rule 23(b)(2) classes. See Shelton, 775 F.3d at 562–63. We understand ConAgra’s arguments here to be similarly limited to Rule 23(b)(3) class actions.



administrative burdens of class litigation. For example, Rule 23(c) enables district courts to divide classes into subclasses or certify a class as to only particular issues. FED. R. CIV. P.23(c)(4), (5); see also In re Visa Check/MasterMoney,280 F.3d at 141 (listing “management tools available to” district courts).

Adopting a freestanding administrative feasibility requirement instead of assessing manageability as one component of the superiority inquiry would also have practical consequences inconsistent with the policies embodied in Rule 23. Rule 23(b)(3) calls for a comparative assessment of the costs and benefits of class adjudication, including the availability of “other methods” for resolving the controversy. By contrast, as the Seventh Circuit has emphasized, a standalone administrative feasibility requirement would invite courts to consider the administrative burdens of class litigation “in a vacuum.” See Mullins, 795 F.3d at 663. That difference in approach would often be outcome determinative for cases like this one, in which administrative feasibility would be difficult to demonstrate but in which there may be no realistic alternative to class treatment. See id. at 663–64. Class actions involving inexpensive consumer goods in particular would likely fail at the outset if administrative feasibility were a freestanding prerequisite to certification.

The authors of Rule 23 opted not to make the potential administrative burdens of a class action dispositive and instead directed courts to balance the benefits of class adjudication against its costs. We lack authority to substitute our judgment for theirs. See Amchem Prods., 521 U.S. at 620 (“[T]he Rule as now composed sets the requirements [courts] are bound to enforce.”).



2

The Third Circuit has also justified its administrative feasibility requirement as necessary to protect absent class members and to shield bona fide claimants from fraudulent claims.

A

With respect to absent class members, the Third Circuit has expressed concern about whether courts would be able to ensure individual notice without a method for reliably identifying class members. See Byrd, 784 F.3d at 165; Carrera, 727 F.3d at 307. We believe that concern is unfounded, because neither Rule 23 nor the Due Process Clause requires actual notice to each individual class member.

Rule 23 requires only the “best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” FED. R. CIV. P. 23(c)(2)(B) (emphasis added). In other words, “[t]he rule does not insist on actual notice to all class members in all cases” and “recognizes it might be impossibleto identify some class members for purposes of actual notice.” Mullins, 795 F.3d at 665. And courts have long employed cy pres remedies when some or even all potential claimants cannot be identified. See Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1306 (9th Cir. 1990) (“In a majority of class actions at least some unclaimed damages or unlocated class members remain. The existence of a large unclaimed damage fund, while relevant to the manageability determination, does not necessarily make a class action ‘unmanageable.’” (citation omitted)). The notion that an inability to identify all class members



precludes class certification cannot be reconciled with our court’s longstanding cy pres jurisprudence. See id.

Likewise, the Due Process Clause does not require actual, individual notice in all cases. See Silber v. Mabon,18 F.3d 1449, 1453–54 (9th Cir. 1994); see also Mullins,795 F.3d at 665 (explaining that when individual notice by mail is “not possible, courts may use alternative means such as notice through third parties, paid advertising, and/or posting in places frequented by class members, all without offending due process”). Courts have routinely held that notice by publication in a periodical, on a website, or even at an appropriate physical location is sufficient to satisfy due process. See, e.g., Hughes v. Kore of Ind. Enter., Inc.,731 F.3d 672, 676–77 (7th Cir. 2013) (holding that sticker notices on two allegedly offending ATMs, as well as publication in the state’s principal newspaper and on a website, provided adequate notice to class members in an action challenging ATM fees); Juris v. Inamed Corp.,685 F.3d 1294, 1319 (11th Cir. 2012) (holding that notice to unidentified class members by periodical and website satisfied due process).

Moreover, the lack-of-notice concern presumes that some harm will inure to absent class members who do not receive actual notice. In theory, inadequate notice might deny an absent class member the opportunity to opt out and pursue individual litigation. But in reality that risk is virtually nonexistent in the very cases in which satisfying an administrative feasibility requirement would prove most difficult—low-value consumer class actions. Such cases typically involve low-cost products and, as a result, recoveries too small to incentivize individual litigation. At the same time, an administrative feasibility requirement like that imposed by the Third Circuit would likely bar such actions because consumers generally do not keep receipts or



other records of low-cost purchases. Practically speaking, a separate administrative feasibility requirement would protect a purely theoretical interest of absent class members at the expense of any possible recovery for all class members—in precisely those cases that depend most on the class mechanism. Justifying an administrative feasibility requirement as a means of ensuring perfect recovery at the expense of any recovery would undermine the very purpose of Rule 23(b)(3)—“vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.’” Amchem Prods.,521 U.S. at 617 (quoting Benjamin Kaplan, A Prefatory Note, 10 B.C. INDUS. & COM. L. REV. 497, 497 (1969)).

B

The Third Circuit has also expressed concern that without an administrative feasibility requirement, individuals will submit illegitimate claims and thereby dilute the recovery of legitimate claimants. See Carrera, 727 F.3d at 310.

The fraud concern may be valid in theory, but “in practice, the risk of dilution based on fraudulent or mistaken claims seems low, perhaps to the point of being negligible.” Mullins, 795 F.3d at 667. This is especially true in class actions involving low-cost consumer goods. Why would a consumer risk perjury charges and spend the time and effort to submit a false claim for a de minimis monetary recovery? And even if consumers might do so, courts “can rely, as they have for decades, on claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court” to avoid or minimize fraudulent claims. Id.



As to the dilution concern specifically, consistently low participation rates in consumer class actions make it very unlikely that non-deserving claimants would diminish the recovery of participating, bona fide class members.8 See id.“It is not unusual for only 10 or 15% of the class membersto bother filing claims.” Christopher R. Leslie, The Significance of Silence: Collective Action Problems and Class Action Settlements, 59 FLA. L. REV. 71, 119 (2007). Moreover, if certification is denied to prevent dilution, deserving class members “will receive nothing, for they would not have brought suit individually in the first place.” Mullins, 795 F.3d at 668. As the Seventh Circuit put it, “[w]hen it comes to protecting the interests of absent class members, courts should not let the perfect become the enemy of the good.” Id. at 666.

3

Finally, the Third Circuit has characterized its administrative feasibility requirement as necessary to protect the due process rights of defendants “to raise individual challenges and defenses to claims.” Carrera, 727 F.3d at 307. The gravamen of this due process concern seems to be

8 Theoretically, if there were non-legitimate claimants, they would dilute a cy pres fund. But that outcome would not impact bona fide claimants, who would have already received distributions. See Nachshin v. AOL, LLC, 663 F.3d 1034, 1036 (9th Cir. 2011) (explaining that, after distributions have been made to any claimants, “[t]he cy pres doctrine allows a court to distribute unclaimed or non-distributable portions of a class action settlement fund to the ‘next best’ class of beneficiaries” (emphasis added)). Nor would it affect the defendant, whose liability will already have been determined. See Six (6) Mexican Workers,904 F.2d at 1307 (“The use of cy pres or fluid recovery to distribute unclaimed funds may be considered only after a valid judgment for damages has been rendered against the defendant.”).



that defendants must have an opportunity to dispute whether class members really bought the product or used the service at issue.9 See id. (stating that a defendant has a “due process right to challenge the proof used to demonstrate class membership”); Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 594 (3d Cir. 2012) (“Forcing [defendants] to accept as true absent persons’ declarations that they are members of the class, without further indicia of reliability, would have serious due process implications.”).

As an initial matter, defendants plainly can mount such challenges as to the named class representatives. Class representatives must establish standing by, for example, showing that they bought the product or used the service at issue. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 595 (9th Cir. 2012) (holding that class representatives who allegedly paid more for or purchased a product due to a defendant’s deceptive conduct have suffered an “injury in fact” that establishes Article III standing); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (stating that “[t]he plaintiff class bears the burden of showing” that “at least one named plaintiff” meets the Article III standing requirements). At the class certification stage, the class

9 Relatedly, ConAgra argues that an administrative feasibility requirement would protect its ability to meaningfully assert a res judicata defense in future actions asserting the same claims. But determining whether a plaintiff in that future action was a member of this class precluded from relitigating would be possible so long as the class definition in this action was clear (and ConAgra does not dispute that it is). If a future plaintiff were to assert a claim challenging the “100% Natural” label on Wesson oil purchased during the class period in one of the eleven states at issue, that would show that she was a member of theclass bound by the judgment. This would be so regardless of how “administratively feasible” it was to prove the entirety of the membership at the class certification stage in this action. See Geoffrey C. Shaw, Note, Class Ascertainability, 124 YALE L.J. 2354, 2374–78(2015).



representatives bear the burden of demonstrating compliance with Rule 23. See Wal-Mart Stores, 564 U.S. at 350 (“A party seeking class certification must affirmatively demonstrate his compliance with the Rule.”). And if the case proceeds past the certification stage, the plaintiff class must carry the burden of proving every element of its claims to prevail on the merits. See id. at 351 n.6 (observing that, in a securities fraud class action, “plaintiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, an issue that they will surely have to prove again at trial in order to make out their case on the merits” (citation omitted)); id. at 367 (“[T]he Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or modify any substantive right.’” (quoting 28 U.S.C. § 2072(b))); Shady Grove Orthopedic Assocs., P.A., v. Allstate Ins. Co.,559 U.S. 393, 408 (2010) (“A class action. . . . leaves the parties’ legal rights and duties intact and the rules of decision unchanged.”). Defendants can oppose the class representatives’ showings at every stage. Indeed, in litigating class certification, ConAgra took discovery of the class representatives, challenged whether they bought Wesson oil products, attacked their credibility, and disputed whether they relied on the label at issue. As the case proceeds, ConAgra will have further opportunities to contest every aspect of Plaintiffs’ case.

Defendants will have similar opportunities to individually challenge the claims of absent class members if and when they file claims for damages. At the claims administration stage, parties have long relied on “claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court” to validate claims. Mullins, 795 F.3d at 667. Rule 23 specifically contemplates the need for such individualized



claim determinations after a finding of liability. See FED. R.CIV. P. 23 advisory committee’s note to 1966 amendment (explaining that certification may be proper “despite the need, if liability is found, for separate determinations of the damages suffered by individuals within the class”); see also Levya v. Medline Indus. Inc., 716 F.3d 510, 513–14 (9th Cir. 2013) (reaffirming, after Comcast Corp. v. Behrend,133 S.Ct. 1426 (2013), that the need for individualized damages determinations after liability has been adjudicated does not preclude class certification). ConAgra does not explain why such procedures are insufficient to safeguard its due process rights.10

Given these existing opportunities to challenge Plaintiffs’ case, it is not clear why requiring an administratively feasible way to identify all class members at the certification stage is necessary to protect ConAgra’s due process rights. As the Seventh Circuit put it, “[t]he due process question is not whether the identity of class members can be ascertained with perfect accuracy at the certification stage but whether the defendant will receive a fair opportunity to present its defenses when putative class members actually come forward.” Mullins, 795 F.3d at 670. ConAgra may prefer to terminate this litigation in one fell swoop at class certification rather than later challenging each individual class member’s claim to recovery, but there is no due process right to “a cost-effective procedure for challenging every individual claim to class membership.” Id. at 669.

10 District courts also have discretion to allow limited discovery from absent class members if the particular circumstances of a specific case justify it. See WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 9:13 (5th ed. 2013) (“[C]ertain forms of limited discovery from absent class members may be permitted in certain circumstances.”).



If the concern is that claimants in cases like this will eventually offer only a “self-serving affidavit” as proof of class membership, it is again unclear why that issue must be resolved at the class certification stage to protect a defendant’s due process rights. If a Wesson oil consumer were to pursue an individual lawsuit instead of a class action, an affidavit describing her purchases would create a genuine issue if ConAgra disputed the affidavit, and would prevent summary judgment against the consumer. See Mullins,795 F.3d at 669; accord FED. R. CIV. P. 56(c)(1)(A). Given that a consumer’s affidavit could force a liability determination at trial without offending the Due Process Clause, we see no reason to refuse class certification simply because that same consumer will present her affidavit in a claims administration process after a liability determination has already been made.

Moreover, identification of class members will not affect a defendant’s liability in every case. For example, in this case, Plaintiffs propose to determine ConAgra’s aggregate liability by (1) calculating the price premium attributable to the allegedly false statement that appeared on every unit sold during the class period, and (2) multiplying that premium by the total number of units sold during the class period. We agree with the Seventh Circuit that, in cases in which aggregate liability can be calculated in such a manner, “the identity of particular class members does not implicate the defendant’s due process interest at all” because “[t]he addition or subtraction of individual class members affects neither the defendant’s liability nor the total amount of damages it owes to the class.” Mullins, 795 F.3d at 670; see also Six (6) Mexican Workers, 904 F.2d at 1307 (“Where the only question is how to distribute damages, the interests affected are not the defendant’s but rather those of the silent class members.”). The defendant will generally know how



many units of a product it sold in the geographic area in question, and if the defendant is ultimately found to have charged, for example, 10 cents more per unit than it could have without the challenged sales practice, the aggregate amount of liability will be determinable even if the identity of all class members is not. The Third Circuit recognized as much in Carrera. See Carrera, 727 F.3d at 310 (acknowledging but not addressing the argument that “[the defendant’s] total liability” would not be “affected by unreliable affidavits”).

For these reasons, protecting a defendant’s due process rights does not necessitate an independent administrative feasibility requirement.

C

In summary, the language of Rule 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification, and the policy concerns that have motivated the Third Circuit to adopt a separately articulated requirement are already addressed by the Rule. We therefore join the Sixth, Seventh, and Eighth Circuits in declining to adopt an administrative feasibility requirement. See Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992, 995–96 (8th Cir. 2016) (recognizing that some courts have imposed an administrative feasibility requirement, but declining to do so); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (“We see no reason to follow Carrera.”); Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015) (rejecting the administrative feasibility requirement as incompatible with Rule 23 and “the balance of interests that Rule 23 is designed to protect”).



III

For the forgoing reasons, the district court did not err in declining to condition class certification on Plaintiffs’ proffer of an administratively feasible way to identify putative class members.

AFFIRMED.

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