Prescott v. Reckitt Benckiser LLC

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STEVEN ROBERT PRESCOTT, et al., Plaintiffs, v. RECKITT BENCKISER LLC, Defendant.

No. 20-cv-02101-BLF

United States District Court, N.D. California, San Jose Division

July 14, 2022

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

[RE: ECF 111]

BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE

Plaintiffs bring this putative class action against Defendant Reckitt Benckiser LLC (“Reckitt”) on behalf of consumers who purchased Woolite laundry detergent labeled with the phrases “COLOR RENEW” and/or “revives colors” (collectively, “the color renew/revive representation”). Plaintiffs assert that the color renew/revive representation was false or misleading, because Woolite laundry detergent does not renew or revive color in clothing. They assert consumer claims on behalf of the residents of three states, California, New York, and Massachusetts.

Plaintiffs move for certification of a California class, a New York class, and a Massachusetts class of consumers. Reckitt opposes certification. The motion is GRANTED for the reasons discussed below.

I. BACKGROUND

In 2017, Reckitt launched a new marketing campaign for its Woolite brand laundry detergents. See Kafka Decl ¶ 3 and Exh. 1; Exh. 7, Fuentes Dep. 33:18-24. Reckitt changed the formula of its Woolite Gentle Cycle detergent and Woolite Darks detergent, and it began marketing those products by representing that the reformulated detergent would “renew” and “revive” color in clothing. See Kafka Decl. ¶ 3 and Exh. 1; Exh. 7, Fuentes Dep. 33:18-24. On 100% of those detergent bottles, the back label displayed the phrase “revives colors” as part of a prominent graphic showing that the reformulated detergent “smooths rough fibers” and “removes pilling and fuzz” with the end result that it “revives colors.” See Henry Exh. 14, Tyrell Decl. ¶¶ 510. On approximately 57% of the bottles, the back label also displayed the phrase “HOW COLOR RENEW WORKS” inside a rainbow-colored hexagon. See id. Finally, on approximately 55% of the bottles, the front label displayed the phrase “COLOR RENEW” inside a rainbow-colored hexagon. See id.

In conjunction with the new marketing campaign, Reckitt implemented a H% increase in its wholesale prices for all sizes of Woolite Gentle Cycle detergent and Woolite Darks detergent, with the exception of the See Kafka Decl. Exh. 3, Tedesco Dep. 90:23-91:3. Although it did not increase the wholesale price for the Reckitt cancelled a previously-planned decrease in the wholesale price for those bottles. See Kafka Exh. 20, Pinsonneault Report ¶¶ 60-61.

A competitor in the detergent market, Procter & Gamble, initiated a challenge to Reckitt's advertising with the National Advertising Division (“NAD”) of the Council of Better Business Bureaus.^[1] See Kafka Exh. 37, Procter & Gamble's Challenge. Among other things, Procter & Gamble asserted that Reckitt's claim that Woolite detergent “revives color” is misleading because Woolite detergent does not add color back to fabrics. See Kafka Exh. 37, Procter & Gamble's Challenge at 14. In August 2019, the NAD issued a decision recommending that Reckitt discontinue its claim that Woolite detergent “revives color.” See Kafka Exh. 41, NAD Recommendation at 16. Reckitt voluntarily agreed to discontinue the “revives color” claim. See id. Reckitt stopped distributing Woolite bottles with the allegedly misleading labels in April 2021. See Kafka Decl. Exh. 2.

Plaintiff Steven Robert Prescott, a California resident, filed this putative class action in March 2020 on behalf of a California class of consumers. See Compl., ECF 1. He filed a first amended complaint (“FAC”) in May 2020. See FAC, ECF 24. The Court granted in part and denied in part Reckitt's motion to dismiss the FAC, without leave to amend. See Order, ECF 70. The Court thereafter granted Prescott's unopposed motion for leave to file a second amended complaint (“SAC”) adding additional named plaintiffs from California, New York, Massachusetts, and Washington, and additional state law claims. See Order, ECF 90; SAC, ECF 91. Pursuant to stipulation, the only named plaintiff from Washington and the only claim under Washington state law were voluntarily dismissed on July 19, 2021. See Stip., ECF 98.

The operative SAC now contains the following claims, asserted by named plaintiffs Steven Robert Prescott, Donovan Marshall, Maria Christine Anello, Darlene Kittredge, Treahanna Clemmons, and Susan Elizabeth Graciale, on behalf of the residents of California, New York, and Massachusetts: (1) violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; (2) violation of California's Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq.; (3) Quasi-Contract Claim for Restitution under California Law; (4) violation of New York General Business Law § 349 et seq.; (5) violation of New York General Business Law § 350 et seq.; (6) [dismissed]; and (7) violation of Massachusetts General Law Chapter 93A.

Plaintiffs seek certification of three classes:

California Class: All residents of California who purchased Woolite laundry detergent with a label bearing the phrases “Color Renew” and/or “revives colors” from February 1, 2017 to the present.

New York Class: All residents of New York who purchased Woolite laundry detergent with a label bearing the phrases “Color Renew” and/or “revives colors” from February 22, 2018 to the present.

Massachusetts Class: All residents of Massachusetts who purchased Woolite laundry detergent with a label bearing the phrases “Color Renew” and/or “revives colors” from February 22, 2017 to the present.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 23 governs class certification. “The party seeking class certification has the burden of affirmatively demonstrating that the class meets the requirements of [Rule] 23.” Stromberg v. Qualcomm Inc., 14 F.4th 1059, 1066 (9th Cir. 2021) (internal quotation marks and citation omitted). “As a threshold matter, a class must first meet the four requirements of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.” Id.

“In addition to Rule 23(a)'s requirements, the class must meet the requirements of at least one of the three different types of classes set forth in Rule 23(b).” Stromberg, 14 F.4th at 1066 (internal quotation marks and citation omitted); see also Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 664 (9th Cir. 2022). “To qualify for the third category, Rule 23(b)(3), the district court must find 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.'” Olean, 31 F.4th at 664 (quoting Rule 23(b)(3)).

“Before it can certify a class, a district court must be satisfied, after a rigorous analysis, that the prerequisites of both Rule 23(a) and 23(b)(3) have been satisfied.” Olean, 31 F.4th at 664 (internal quotation marks and citation omitted). “[P]laintiffs must prove the facts necessary to carry the burden of establishing that the prerequisites of Rule 23 are satisfied by a preponderance of the evidence.” Id. at 665. “In carrying the burden of proving facts necessary for certifying a class under Rule 23(b)(3), plaintiffs may use any admissible evidence.” Id.

III. DISCUSSION

Plaintiffs assert that that all four requirements of Rule 23(a) are satisfied in this case, and that certification of a damages class is appropriate under Rule 23(b)(3). Reckitt argues that Plaintiffs have not satisfied the requirements of either Rule 23(a) or Rule 23(b)(3).

A. Rule 23(a) Requirements

1. Numerosity

Rule 23(a)(1) requires that the size of the proposed class be “so numerous that joinder of all the class members is impracticable.” Fed.R.Civ.P. 23(a)(1). “No exact numerical cut-off is required; rather, the specific facts of each case must be considered.” Litty v. Merrill Lynch & Co., No. CV 14-0425 PA (PJWx), 2015 WL 4698475, at *3 (C.D. Cal. Apr. 27, 2015). “[N]umerosity is presumed where the plaintiff class contains forty or more members.” Id.

Plaintiffs submit evidence that between February 1, 2017 and September 30, 2020, Reckitt sold approximately bottles of Woolite laundry detergent labeled with the phrases “revives colors” and/or “Color Renew,” and that additional bottles bearing one or both of those phrases were sold between October 1, 2020 and April 4, 2021. See Kafka Decl. ¶ 5 & Exh. 2. Based on the 2020 United States Census populations of California, New York, and Massachusetts, those states' proportional shares of the Woolite products at issue are approximately bottles for California, approximately bottles for New York, and approximately bottles for Massachusetts. See Kafka Decl. ¶ 6.

While Reckitt does not dispute Plaintiffs' sales figures, Reckitt argues that Plaintiffs have not shown that all putative class members were exposed to the color renew/revive representation. Only 55% of the subject bottles displayed the phrase “COLOR RENEW” on the front label, and Reckitt asserts that Plaintiffs have not shown that purchasers of the other 45% of the bottles looked at the back label. Reckitt's argument regarding classwide exposure to the color renew/revive representation is addressed below in the context of other Rule 23 requirements. For purposes of the numerosity requirement, it is clear that each of the proposed classes would contain thousands of members, even if the classes were limited to consumers who purchased Woolite bottles bearing the phrase “COLOR RENEW” on the front label.

The Court finds that the numerosity requirement is satisfied.

2. Commonality

Rule 23(a)(2) requires the...