Allen v. ConAgra Foods, Inc.

CLASS CERTIFICATION ORDER

Re: Dkt. Nos. 242, 244, 245, 252, 260

Plaintiffs in this case bring various claims against defendant Conagra Brands, Inc., on the grounds that the Parkay Spray label misrepresents its true fat and calorie contents. They now seek to certify a nationwide class along with various subclasses of consumers who purchased Parkay Spray in states across the country. Their showing succeeds in part and fails in greater part. I will grant their request as to a significantly narrowed set of subclasses.

The parties are familiar with the lengthy history of this case, which I summarized in part in my Order on Conagra's motion to dismiss. See 2018 Motion to Dismiss Order ("2018 MTD Order") [Dkt. No. 231]. I will include here only what is necessary for purposes of resolving the present motion.

Plaintiffs Erin Allen, Ofelia Frechette, Shelley Harder, Deana Marr, Tammie Shawley, Brian Smith, and Betty Vazquez bring this proposed class action against Conagra (formerly known as ConAgra Foods, Inc.) alleging unjust enrichment, violations of various states' consumer protection laws, and violations of California law.¹ They argue that Conagra incorrectly and

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misleadingly labels Parkay Spray as "Fat Free • Zero Calories" and "0g Fat • 0 Calories . . . per serving"² and charges a premium price based on those misrepresentations. Plaintiffs seek certification of various classes to pursue both damages and injunctive relief.

On January 8, 2015, the Honorable Vince Chhabria denied without prejudice plaintiff Allen's motion for class certification on four grounds. Order Denying Class Certification ("2015 Cert. Order") [Dkt. No. 150]. First, Allen had failed to present a plan for identifying class members in order to satisfy the ascertainability requirement recognized by some courts at that time.³ Id. at 1-2. Second, she was not an adequate class representative because there was no evidence that she had purchased Parkay Spray with both labels. Id. at 2. Third, damages expert Colin Weir did not explain with enough detail how he would apply the damages methodology to the facts of the case. Id. Finally, Allen had not shown that common questions would predominate over the variations in consumer protection laws recognized by the Ninth Circuit in Mazza v. Am. Honda Motor Co., 666 F.3d 581, 590-91 (9th Cir. 2012). Id.

After that, the case was stayed and then reassigned to me, new individuals joined Allen as named plaintiffs, and Conagra filed a renewed motion to dismiss, which I granted in part and denied in part. See generally 2018 MTD Order. Plaintiffs again seek certification, arguing they can overcome the deficiencies Judge Chhabria previously found. Second Amended Motion for Class Certification ("Mot.") [Dkt. No. 245-3]. In their reply brief, plaintiffs responded to Conagra's arguments about differences among state consumer protection laws in the proposed subclasses by eliminating the first proposed subclass and altering some others.⁴ Reply [Dkt. No.

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260-4] 14 n.14; see Modified Subclasses, Reply App'x 3 ("Modified Subclasses") [Dkt. No. 256-1]. With these modifications, they seek certification of the following classes:

Nationwide: All natural persons who purchased Parkay Spray in the United States, at any time from January 1, 2008 to the present and subject to the applicable statutes of limitations (the "Class Period"). The Class will pursue common law unjust enrichment claims.⁵

Subclass #2: All class members who purchased the product in the following states: Alabama, Alaska, Michigan, Minnesota, Mississippi, and Ohio, subject to the applicable statutes of limitations. Subclass #2 will pursue claims arising under the following consumer protection statutes: Ala. Code § 8-19-5(27); Alaska Stat. § 45.50.471(a); Mich. Comp. Laws Ann. § 445.903(c), (e), (g); Minn. Stat. § 325D.44(5), (7), (10); Miss. Code § 75-24-5(2)(e), (g), (i); and Ohio Rev. Code § 4165.02(A)(7), (9), (11).

Subclass #3: All class members who purchased the product in the following states: District of Columbia, Florida, Missouri, Montana, New Jersey, New York, Rhode Island, Vermont, and Washington, subject to the applicable statutes of limitations. Subclass #3 will pursue claims arising under the following consumer protection statutes: D.C. Code § 28-3904; Fla. Stat. Ann. § 501.204; La. Rev. Stat. Ann. § 51:1405(A); Mo. Rev. Stat. § 407.020(1); Mont. Code § 30-14-103; N.H. Rev. Stat. § 358-A; N.J. Stat. Ann. § 56:8-2; N.Y. Gen. Bus. Law § 349(a); R.I. Gen. Laws § 6-13.1-1(6)(xiii), 6-13.1-2; Vt. Stat. Ann. tit. 9, § 2453(a); and Wash. Rev. Code § 19.86.020.

Subclass #4: All class members who purchased the product in the following states: California, Georgia, Maryland, Massachusetts, North Carolina, Virginia, and West Virginia, subject to the applicable statutes of limitations. Subclass #4 will pursue claims arising under the following consumer protection statutes: Cal. Bus. & Prof. Code § 17200⁶; Ga. Code. Ann. § 10-1-

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393(a), (b); Md. Code Com. Law § 13-301(1); Mass. Gen. L. ch. 93A, § 2(a); N.C. Gen. Stat. § 75-1.1(a)*; Va. Code § 59.1-200(A)(14); and W. Va. Code §§ 46A-6-102(7), 46A-6-104.

Subclass #5: All class members who purchased the product in the following states: California, Georgia, Maryland, Virginia, and West Virginia, subject to the applicable statutes of limitations. Subclass #5 will pursue claims arising under the under the following consumer protection statutes: Cal. Civil Code § 1770(a)(5), (7), (9); Ga. Code. Ann. § 10-1-393(b)(5), (7), (9); Md. Code Com. Law § 13-301(1); Va. Code § 59.1-200(A)(5), (6), (8); and W. Va. Code § 46A-6-102(7)(E), (G), (I).

Subclass #6: All class members who purchased the product in the following states: Arkansas, Indiana, and Wyoming, subject to the applicable statutes of limitations. Subclass #6 will pursue claims arising under the following consumer protection statutes: Ark. Code § 4-88-107(a); § 4-88-108(a)(1), (3), (10); Ind. Code § 24-5-0.5-3(a); Ind. Code § 24-5-0.5-3(b)(1), (2), (11); Wyo. Stat. Ann. § 40-12-105(a)(xv); and Wyo. Stat. Ann. § 40-12-105(a)(i), (iii), (x).

California Subclass: All class members who purchased the product in California at any time from March 21, 2009 to the present. The California Subclass will pursue claims arising under the False Advertising Law (Bus. & Prof. Code § 17500 et seq.), and as well as common law claims of fraud, breach of express warranty, and misrepresentation.

In the event that I deny any multistate subclass, plaintiffs proposed additional subclasses for those states in which a named plaintiff has purchased the product (i.e., Florida, Georgia, Illinois, Indiana, Michigan, Ohio, and Wisconsin).⁷ Each State Subclass shall include all class members who purchased the product in that respective state, subject to the applicable statutes of limitations.

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"Before certifying a class, the trial court must conduct a rigorous analysis to determine whether the party seeking certification has met the prerequisites of Rule 23." Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (internal quotation marks omitted). The party seeking certification has the burden to show, by a preponderance of the evidence, that certain prerequisites have been met. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-50 (2011); Conn. Ret. Plans & Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011).

Certification under Rule 23 is a two-step process. The party seeking certification must first satisfy the four threshold requirements of Rule 23(a). Specifically, Rule 23(a) requires a showing that: (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).

Next the party seeking certification must establish that one of the three grounds for certification applies. See FED. R. CIV. P. 23(b). Plaintiffs seek certification under Rule (b)(3), which requires them to establish 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." Fed. R. Civ. P. 23(b)(3). They also seek certification under Rule 23(b)(2) for injunctive relief.

In the process of class-certification analysis, there "may entail some overlap with the merits of the plaintiff's underlying claim." Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 465-66(2013) (internal quotation marks omitted). However, "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage." Id. at 466. "Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id.

As set forth below, Conagra raises numerous challenges to plaintiffs' showing. Plaintiffs have not met their Rule 23 burden with respect to the nationwide unjust enrichment class, but they

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have met their burden for certification of certain subclasses and individual state classes for purposes of pursuing consumer protection claims.

I. STANDING

"The core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). There are three requirements for standing: (1) "the plaintiff must have suffered an injury in fact;" (2) "there must be a causal connection between the injury...