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In re Simply Orange Orange Juice Marketing and Sales Practices Litigation

United States District Court, W.D. Missouri, Western Division

July 24, 2017

IN RE SIMPLY ORANGE ORANGE JUICE MARKETING AND SALES PRACTICES LITIGATION This Document Relates To: ALL CASES No. 4:12-md-02361-FJG

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge.

         Pending before the Court is Plaintiffs' Motion for Class Certification (Doc. No. 280). For the reasons stated below, the motion is granted in part, and the Court certifies an issues class pursuant to Fed.R.Civ.P. 23(c)(4).

         I. Background

         Plaintiffs in this action assert that defendant, The Coca-Cola Company (“Coca-Cola”), sells millions of containers of Simply Orange, Minute Maid Pure Squeezed, and Minute Maid Pure Premium (the “orange juice products”) to consumers each year throughout the seven states at issue in this matter. Plaintiffs assert that defendant has failed to disclose its use of added flavors in these products, consisted with federal labeling regulations. Plaintiffs further assert that defendant omits the proper disclosures regarding added flavors, so that consumers are deceived into paying a price premium for these products. Named Plaintiffs are consumers from seven states (Alabama, California, Florida, Illinois, Missouri, New Jersey, and New York) who seek to certify a class. Each Named Plaintiff purchased one or more of the orange juice products between March 10, 2006 and the present and based their purchasing decisions, at least in part, on Coca-Cola's representations (on product labels and advertising) omitting any disclosure of any added flavors. Plaintiffs move to certify classes of purchasers of the orange juice products under (i) Rule 23(b)(3) for damages and relief, and (ii) Rule 23(b)(2) for injunctive relief. Plaintiffs alternatively seek certification under Rule 23(c)(4) on the issue of whether the added flavoring substances are “flavors” requiring disclosure and whether Coca-Cola's omissions are unlawful.

         Defendant denies that it adds flavoring which must be disclosed under the federal regulations, as the add-backs it uses are 100% made-from-the-orange products. Defendant further argues that both Simply Orange and Minute Maid Pure Squeezed (“MMPS”) do not consistently use add-backs year round.[1] Defendant argues this means tens of thousands of consumers suffered no injury and lack Article III standing. Defendant also argues that only 1 in 25 consumers care about the add backs, according to its survey expert, and therefore plaintiffs cannot demonstrate reliance on a class-wide basis. Defendant further argues the class is not ascertainable, and individual questions predominate over class issues. Finally, defendant argues that plaintiffs' proposed damages model is faulty under the Comcast v. Behrend framework. In reply, plaintiffs suggest that they meet class certification requirements, as (1) common questions, such as whether defendant violated federal law and unlawfully profited from class members, will predominate; (2) plaintiffs' claims are typical because they depend on defendants' common policies; (3) the proposed classes are ascertainable; and (4) their damages theory is consistent with their theory of liability.

         In the present motion, plaintiffs seek Rule 23 certification of three classes: (1) all purchasers of Simply Orange orange juice in Alabama, California, Florida, Illinois, Missouri, New Jersey, and New York during the class periods defined in note 2, below (hereinafter “Class Periods”)[2]; (2) all purchasers of Minute Maid Premium from concentrate orange juice in Alabama from March 10, 2008 to the present; and (3) all purchasers of Minute Maid Pure Squeezed Never From Concentrate orange juice in Alabama from January 1, 2011 to the present.

         In the alternative, Plaintiffs move to certify the following three Classes: (1)(i)Plaintiffs, (ii) purchasers of Simply Orange orange juice with proof of purchase during the Class Periods; or (iii) purchasers of Simply Orange orange juice who purchased through specified channels (namely, “member-only” retailers Costco Wholesale, Sam's Club, or BJ's Wholesale Club) or using a retailer loyalty card during the Class Periods; (2)(i) Plaintiff Albert J. Veal; (ii) purchasers of Minute Maid Premium from concentrate orange juice in Alabama from March 10, 2008 to the present with proof of purchase; (iii) purchasers of Minute Maid Premium From Concentrate orange juice in Alabama from March 10, 2008 to the Present who purchased through specified channels (namely, “member-only” retailers Costco Wholesale, Sam's Club, or BJ's Wholesale Club) or using a retailer loyalty card; and (3)(i) Plaintiff Albert J. Veal; (ii) purchasers of Minute Maid Pure Squeezed Never From Concentrate Orange Juice in Alabama from January 1, 2011 to the present with proof of purchase; and (3) purchasers of Minute Maid Pure Squeezed Never From Concentrate Orange Juice in Alabama from January 1, 2011 to the present who purchased through specified channels (namely, “member-only” retailers Costco Wholesale, Sam's Club, or BJ's Wholesale Club) or using a retailer loyalty card.[3]

         For each of the classes, Plaintiffs seek certification under Rule 23(b)(2) and (b)(3), or in the alternative, for certification of an issue class under Rule 23(c)(4). Plaintiffs also seek appointment of the named Plaintiffs as representatives of their respective classes and appointment of Norman E. Siegel as Liaison Class Counsel and Stephen A. Weiss, James E. Cecchi, and Kim Richman as Class Counsel under Rule 23(g).

         II. Standard

         Under Federal Rule of Civil Procedure Rule 23(a), the Court considers the following prerequisites and certifies a class 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.

         Additionally, the Court considers whether one of the three Rule 23(b) requirements justify certification. Here, plaintiffs move for certification under Fed.R.Civ.P. 23(b)(2) and 23(b)(3). Under Rule 23(b)(2), a class action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Under Rule 23(b)(3), a class may be maintained if: “the court finds that the 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.” Plaintiffs also argue, in the alternative, for certification under Rule 23(c)(4), which provides: “Where appropriate, an action may be brought or maintained as a class action with respect to particular issues.”

         “The decision whether or not to certify a class is not a reflection of the merits of the case.” Casey v. Coventry HealthCare of Kansas, Inc., No. 08-0201-CV-W-DGK, 2010 WL 3636140, at *2 (W.D. Mo. Sept. 10, 2010). However, the Supreme Court has explained that a class should not be certified until the district court concludes, “after a rigorous analysis, ” that the four prerequisites of Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338. 350-51 (2011).

         III. Analysis

         A. Standing

         Initially in its opposition, defendant argues that plaintiffs' proposed classes contain members who lack standing, and argue that the Eighth Circuit has held that such classes cannot be certified. Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010). Rather, defendant argues, “each member” of a proposed class “must have standing and show an injury in fact.” Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773, 778 (8th Cir. 2013) (emphasis added). Defendant argues that its own inconsistent and un-labelled use of add-backs means that certain consumers purchased orange juice not containing add-backs, and those consumers were not injured. See Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1031 (8th Cir. 2014) (involving “100% Kosher” hot dogs which may have been tainted; a case in which the allegations did not establish that all or even most of the products were not kosher, and likely most of the packages of hot dogs were prepared in accordance with minimum kosher standards).

         The Court, however, finds Wallace to be distinguishable from the facts in the present case. For one, even under defendant's theory, Minute Maid Premium purchasers all have standing to sue, as every container of Minute Maid Premium contains add-backs. Furthermore, the facts as pled in Wallace did not establish that most of the hot dogs were not kosher. Here, the discovery to-date provides that approximately 70 percent of the time, purchasers of Simply Orange and MMPS would be receiving drinks that included add-back; for certain years, nearly every container sold included add-back. Given the alleged purchasing practices of the Named Plaintiffs, who each assert that they are regular purchasers of juice throughout the year (at least, up until the year in which they each filed their suits), the Court agrees with Named Plaintiffs that they would have undoubtedly purchased juice containing add-backs. Moreover, recent Supreme Court decisions have shown that Article III standing does not need to be shown for every potential class member; instead, Article III standing requires that the “named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.'” Spokeo v. Robins, 136 S.Ct. 1540, 1547 n.6 (2016) (citation omitted). Furthermore, plaintiffs argue that defendant has mis-stated their theory of the case, which is that the labels on Simply Orange and MMPS are unreliable as to whether flavors have been added to the orange juice, causing plaintiffs and other putative class members to pay a price premium for these products.

         Upon considering the parties' arguments, the Court finds that plaintiffs have sufficiently demonstrated Article III standing.

         B. Ascertainability

         Courts are also asked to determine ascertainability, that is, whether the class “is capable of definition, ” Vietnam Veterans Against the War v. Benecke, 63 F.R.D. 675, 679 (W.D. Mo. 1974), and therefore “readily identifiable.” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014). However, “[t]he ascertainability inquiry is narrow, ” and “only requires the plaintiff to show that class members can be identified.” Byrd v. Aaron's, Inc., 784 F.3d 154, 165 (3rd Cir. 2015). In other words, the class definitions must be drafted such that “membership is ascertainable by some objective standard.” Huyer v. Wells Fargo & Co., 295 F.R.D. 332, 336 (S.D. Iowa 2010). In this Circuit, the ascertainability determination is not a threshold inquiry. Rather, it is simply one part of a court's rigorous analysis of the Rule 23 requirements. Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016) (“[T]his court has not addressed ascertainability as a separate, preliminary requirement.”).

         Plaintiffs argue the classes are ascertainable. Each of the proposed classes includes “all purchasers” of the specified products within the specified statutes of limitation under each state's laws. Plaintiffs note that in a case such as this, where the object of the suit is a low-value consumer product, lack of proofs of purchase will necessitate the use of self-identification of class members through affidavits.[4] Plaintiffs argue that in this case, where only three products are at issue and all three were labelled in the same way throughout the class periods, plaintiffs should be able to self-identify based on the “simple, objective criterion of whether consumers purchased one of the orange juice products at issue during the time periods specified in Plaintiffs' Motion for Class Certification.” Doc. No. 281, pp. 31-32. In the alternative, plaintiffs suggest that another means of identifying consumers who did not retain proof of purchase would be to obtain information from merchants and other third parties from customer loyalty cards.[5]

         Defendant, on the other hand, argues that the proposed classes are not ascertainable. Defendant argues that inconsistent use of add-back defeats ascertainability. However, the Court finds that plaintiffs have sufficiently asserted at this time that they may be injured through a price premium charged by defendant, and moreover, depending on purchase practices, odds are that most class members have purchased an orange juice product containing add-back. (For those consumers in the proposed Minute Maid Premium class, all consumers have purchased a product containing add-back.) Defendant also argues that self-identification is not a workable means of identifying class members, noting that no court in this Circuit has ever accepted self-identification as a means of identifying members of a proposed class. However, this Court is sympathetic to plaintiffs' argument that in low-value consumer cv-04387, 2015 WL 10786035, at *12 (C.D. Cal. June 23, 2015); McCrary v. Elations Co., 13-cv-00242, 2014 WL 1779243, at *7 (C.D. Cal. Jan. 13, 2014). goods cases, there may be no better means of identifying members of a class in circumstances such as these. As noted by the First Circuit, if unrebutted consumer testimony “would be sufficient to establish injury in an individual suit, it follows that similar testimony in the form of an affidavit or declaration would be sufficient in a class action. There cannot be a more stringent burden of proof in class actions than in individual actions.” In re Nexium Antitrust Litig., 777 F.3d 9, 20 (1st Cir. 2015).

         Accordingly, the Court finds plaintiffs' proposed classes to be ascertainable. The ...


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