defendants' response

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Date Filed: 12/30/2013

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT GABRIEL JOSEPH CARRERA, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED,

Plaintiff-Appellee, V.

BAYER CORPORATION; BAYER HEALTHCARE, LLC, Defendants-Appellants.

Case No. 12-2621 Appeal from an Order of the United States District Court for the District of New Jersey in Case No. 2:08-cv-4716 (JLL)(MAH), Honorable Jose L. Linares APPELLANTS BAYER CORPORATION’S AND BAYER HEALTHCARE, LLC’S OPPOSITION TO APPELLEE’S PETITION FOR REHEARING AND REHEARING EN BANC

Christopher D. Landgraff Rebecca Weinstein Bacon Matthew R. Ford BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 54 W. Hubbard Street, Suite 300 Chicago, IL 60654 Tel: (312) 494-4400 Attorneys for Defendants-Appellants Bayer Corporation and Bayer HealthCare, LLC

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TABLE OF CONTENTS Introduction ................................................................................................................ 1 Argument.................................................................................................................... 3 I.

The Panel Decision Reflects Carrera’s Complete Failure To Satisfy Established Evidentiary Burdens ..................................................................... 3 A.

This Court’s Precedents Require Evidence Of Ascertainability At The Class Certification Stage ........................................................... 4

B.

The Panel Correctly Held That Carrera’s Failure To Provide Any Evidence Of Ascertainability Required Vacating The Class Certification Order ................................................................................ 8 1.

Carrera And Amici Mischaracterize The Court’s Holding – The Court Does Not Require Identification Of All Class Members ............................................................................ 9

2.

Carrera’s Own Testimony Justifies The Panel’s Suspicion Of Affidavits As Proof Of Class Membership Without Screening..................................................................... 10

3.

Carrera Failed To Prove (Or Even Try To Prove) That Third-Party Records Exist To Show Class Membership .......... 15

4.

The Panel Was Right To Reject Carrera’s Aggregate Proof Theory ............................................................................. 16

C.

The Panel Decision Did Not Create A Circuit Split Or Tension With Third Circuit Precedent .............................................................. 21

D.

The Panel Decision Did Not Create A “New” Due Process Right .................................................................................................... 24

E.

Angeion Group’s Brief Is Irrelevant Given Its Focus On Settlements And The Court’s Judgment In This Case ........................ 25

F.

The Amici Argue Against The Ascertainability Requirement Generally, Not Its Application In This Case ....................................... 26

Conclusion ............................................................................................................... 29

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TABLE OF CITATIONS Cases Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437 (D.N.J. 2009) ................................................................................7 Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) .........................................................................................19 Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975)................................................................................19 Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998)................................................................................24 Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013)................................................................................20 Carrera v. Bayer Corp., 727 F.3d 300 (3rd Cir. 2013) ....................................................................... passim Driver v. AppleIllinois, LLC, No. 06 C 6149, 2012 WL 689169 (N.D. Ill. Mar. 2, 2012)...........................................................20 Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179 (2011) .........................................................................................19 Fitzpatrick v. General Mills, Inc., 263 F.R.D. 687 (S.D. Fla. 2010) ................................................................... 22, 23 Fitzpatrick v. General Mills, Inc., 635 F.3d 1279 (11th Cir. 2011) .................................................................... 22, 23 George v. Nat'l Water Main Cleaning Co., 286 F.R.D. 168 (D. Mass. 2012) ..........................................................................20 Hernandez v. Chipotle Mexican Grill, Inc., No. CV 12–5543 DSF (JCx), 2013 WL 6332002 (C.D. Cal. Dec. 2, 2013) .....................................................7, 8

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In re Baby Prods. Antitrust Litig., 708 F.3d 163 (3d Cir. 2013)...................................................................................8 In re Dry Max Pampers Litig., 724 F.3d 713 (6th Cir. 2013)..................................................................................8 In re Glaceau Vitaminwater Mktg. & Sales Practice Litig., 11-MD-2215 (DLI)(RML), 2013 WL 3490349 (E.D.N.Y. July 10, 2013) ......................................................23 In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) ...............................................................................4, 5 In re IPO, 471 F.3d 24 (2d Cir. 2006) .....................................................................................6 In re Pet Food Prods. Liab. Litig., 629 F.3d 333 (3d Cir. 2010)...................................................................................8 In re Pharm. Indus. AWP Litig., 588 F.3d 24 (1st Cir. 2009) ....................................................................................8 In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., MDL-1703, 2012 WL 1015806 (N.D. Ill. Mar. 22, 2012).......................................................23 In re Vitamins Antitrust Class Actions, 215 F.3d 26 (D.C. Cir. 2000) .................................................................................8 In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838 (6th Cir. 2013)................................................................................20 Jim Ball Pontiac-Buick-GMC, Inc. v. DHL Exp. (USA), Inc., No. 08-CV-761C, 2012 WL 370319 (W.D.N.Y. Feb. 3, 2012) ..........................................................6 Johnson v. Geico Cas. Co., 673 F. Supp. 2d 255 (D. Del. 2009) .......................................................................7 Kemblesville HHMO Ctr., LLC v. Landhope Realty Co., CIV.A. 08-2405, 2011 WL 3240779 (E.D. Pa. July 28, 2011)..........................................................6

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Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) ......................................................................... passim McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008).................................................................................24 Morrow v. Washington, 277 F.R.D. 172 (E.D. Tex. 2011).........................................................................20 Nelson v. Mead Johnson & Johnson Co., 484 F. App’x 429 (11th Cir. 2012) ........................................................................8 Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. Dist. Ct. App. 2006) ...........................................................18 Simer v. Rios, 661 F.2d 655 (7th Cir. 1981)..................................................................................6 State of Arizona v. Shamrock Foods Co., 729 F.2d 1208 (9th Cir. 1984) ...............................................................................8 Sullivan v. DB Invest., Inc., 667 F.3d 273 (3rd Cir. 2011) (en banc) ........................................................ 21, 23 Wal-Mart Stores, Inc. v. Dukes et al., 131 S.Ct. 2541 (2011) .................................................................................. passim Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir. 2000) ................................................................................20 Weiner v. Snapple Beverage Co., No. 07 Civ. 8742 (DLC), 2010 WL 3119452 (S.D.N.Y. Aug. 5, 2010) .................................................. 6, 26 Statutes Florida Deceptive and Unfair Trade Practices Act ........................................... 18, 23 Rules Fed. R. App. P. 35 ....................................................................................................27 Fed. R. Civ. P. 23 ............................................................................................. passim

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Other Authorities Bruce Greenberg, A Mixed Bag on Class Certification From the Third Circuit, NEW JERSEY APPELLATE LAW BLOG (Aug. 20, 2012), http://appellatelaw-nj.com/a-mixed-bag-on-class-certification-from-thethird-circuit/. .......................................................................................................... 9 Greenberg, Class Ascertainability—The Third Circuit Approaches the Precipice, Aug. 22, 2013, http://bit.ly/14w6hGW ................................................. 9 THE GOOD MEN PROJECT, http://goodmenproject.com/author/greg-ryan/ (last visited Dec. 27, 2013) .................................................................................... 4

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INTRODUCTION Plaintiff Carrera bases his petition for rehearing on a faulty leap of logic: because the Panel found that he failed to offer any evidence that class members are ascertainable in this case, all small-value consumer class actions will fail. Carrera ignores that he – as the named class representative – could not reliably identify WeightSmart. Carrera ignores the Panel’s invitation on remand for him to attempt to present an adequate screening method to protect against the unreliability demonstrated by his own testimony. And Carrera ignores the Panel’s care to distinguish Carrera’s evidentiary failure from other plaintiffs’ proffers. Instead Carrera declaims that the Panel has “erect[ed] an unprecedented hurdle that . . . will effectively wipe out class actions involving small-dollar consumer products.” (Pet. 4 (capitalization omitted)) Amici parrot this argument, misreading the Court’s decision to accuse the Panel of “threatening all small-value consumer class actions” or making small-value class actions “impossible.” (See, e.g., Professors of Civil Procedure and Complex Litigation Amici Curiae Brief in Support of Petition for Rehearing En Banc 10 (hereinafter Law Profs. (capitalization omitted)); Brief Amicus Curiae of Public Citizen, Inc., In Support of Petition for Rehearing or Rehearing En Banc 7) But the Panel did no such thing. The Panel did not hold that affidavits were unacceptable forms of proof. To the contrary, the Panel said affidavits were

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permissible if Carrera could provide some reliable screening method that accounted for his own testimonial shortcomings. Carrera v. Bayer Corp., 727 F.3d 300, 311-312 & n.9 (3rd Cir. 2013) (Op. 20 & n.9). Likewise, the Panel did not hold that a plaintiff must identify all class members in advance, but rather stated that this was not the standard. Id at 308 n.2 (Op. 12 n.2). And the Panel did not gut the class mechanism for defendants who do not possess records identifying the purchasers of small-value items. Instead, the Panel pointed to alternatives to purchase records that Carrera chose not to pursue during discovery. Id. at 308-09 (Op. 14) The Court’s decision holds only that a plaintiff must provide sufficient evidence that it will be possible to identify unnamed class members in an administratively feasible way. Id. at 307 (Op. 11). Under that standard, a plaintiff must prove that he will be able to identify class members in a manner that does not defeat the efficiencies of the class action or violate a defendant’s due process rights. Id. If a plaintiff offers insufficient or unreliable evidence of ascertainability, class certification is improper. That is how Carrera fell short here. He merely offered (i) the promise of unchallenged affidavits even though his own testimony as class representative was unreliable; (ii) an undisclosed expert opinion regarding settlement administration; and (iii) a press release from the FTC about the potential existence of loyalty-card

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records for an unrelated product from one retailer. Id. at 308, 310-11 (Op. 12-13, 18). As the Court stated, “[t]he type of challenge to the reliability of the evidence that is required will vary based on the nature of the evidence.” Id. at 308 (Op. 12). Carrera’s proffered evidence is insufficient to show that any class member could actually be reliably ascertained in an administratively feasible way in this case. The Court did not require that Carrera identify all class members; Carrera’s problem is that he was unable to reliably identify a single class member. The Panel has no reason to revisit its decision. ARGUMENT I.

The Panel Decision Reflects Carrera’s Complete Failure To Satisfy Established Evidentiary Burdens Carrera, relying on journalists’ overblown commentaries about the meaning

of the Panel’s decision, calls it a “body blow to consumer class actions,” “game changing” and “unprecedented.” (Pet. 1, 4-5) Those commentaries are wrong. The Panel evaluated Carrera’s complete and undisputed failure to offer any evidence of ascertainability through the lens of established precedent and correctly vacated the district court’s order certifying the class. Indeed, the Panel invited Carrera to try again to prove ascertainability in light of the Marcus decision. 727 F.3d at 311-312 (Op. 20) But Carrera’s petition all but admits that he cannot put forth any evidence of ascertainability and pivots to attack the premise that ascertainability needs to be 3

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established at all in cases like this one.1 (Pet. 6) Carrera’s evidentiary failures and contention that ascertainability can be assumed away at the class certification stage underscore the soundness of the Court’s decision. Under the principles explained in Hydrogen Peroxide and Marcus, Carrera’s petition for rehearing and rehearing en banc should be denied. A.

This Court’s Precedents Require Evidence Of Ascertainability At The Class Certification Stage

Contrary to Carrera’s contentions, the Panel did not create new law and the holding was not “unprecedented.” (Pet. 5) As the Panel stated, “the sole issue on appeal is whether the class members are ascertainable.” (Op. 3) The decision – based on Carrera’s extraordinary failure of proof, including Carrera’s inability to even support his claim that he was a class member – found that Carrera failed to carry his burden of showing ascertainability. 727 F.3d at 311 & n.9 (Op. 20 & n.9) The Panel’s holding was “based on the evidence produced below.” Id. at 308 (Op. 13) Far from being “unprecedented,” the Court applied the Hydrogen Peroxide,

1

Carrera cites for this proposition (and several others) an article written by Greg Ryan for Law360.com. (Pet. at Ex. B) Mr. Ryan is a reporter and has written on a variety of subjects for publications including Men’s Health Magazine, Hudson Valley Magazine and Boston Magazine. Although he may be a fine journalist, Mr. Ryan’s legal predictions and analysis are those of a journalist, not a lawyer. See THE GOOD MEN PROJECT, http://goodmenproject.com/author/greg-ryan/ (last visited Dec. 27, 2013). 4

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Marcus and Dukes teachings to the record before it and concluded that Carrera failed to offer sufficient (or any) evidence of ascertainability. Id.at 307. First, there is no dispute that at the class certification stage Carrera bears the evidentiary burden of showing that the requirements of class certification have been met. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 318 (3d Cir. 2008) (“The evidence and arguments a district court considers in the class certification decision call for rigorous analysis. A party’s assurance to the court that it intends or plans to meet the requirements is insufficient.”); Wal-Mart Stores, Inc. v. Dukes et al., 131 S.Ct. 2541, 2551 (2011) (noting that the plaintiff must “affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” (emphasis in original)). Second, there is no dispute that as part of this evidentiary showing, Carrera must demonstrate that the class is ascertainable. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 594 (3d Cir. 2012). Carrera cannot meet this burden through unsupported aspirational statements or suspect evidence. Id. In assessing ascertainability, the district court “must resolve the critical issue of whether the defendants’ records can ascertain class members and, if not, whether there is a reliable, administratively feasible alternative.” Id. With respect to the contours of the “reliable, administratively feasible alternative,” the Marcus Court warned that

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it would be improper for the alternative to “amount to no more than ascertaining by potential class members’ say so,” such as through affidavits insulated from adversarial review. Id. Marcus is consistent with cases in other circuits and earlier cases from courts within the Third Circuit. Id. at 592-93 (“Many courts and commentators have recognized that an essential prerequisite of a class action, at least with respect to actions under Rule 23(b)(3), is that the class must be currently and readily ascertainable based on objective criteria.”); see also In re IPO, 471 F.3d 24, 45 (2d Cir. 2006) (noting that ascertainability is distinct from predominance but would also not be met in a case where assessing the class requires “individualized determinations”); Jim Ball Pontiac-Buick-GMC, Inc. v. DHL Exp. (USA), Inc., No. 08-CV-761C, 2012 WL 370319, at *2 (W.D.N.Y. Feb. 3, 2012) (“Rule 23 contains an implicit requirement that the proposed class be precise, objective and presently ascertainable. Thus, a proposed class must be clearly defined so that it is administratively feasible for a court to determine whether a particular individual is a member.”) (internal citations omitted) (A0052); Simer v. Rios, 661 F.2d 655, 670 (7th Cir. 1981) (examining ascertainability as an implicit prerequisite to a Rule 23 class); Kemblesville HHMO Ctr., LLC v. Landhope Realty Co., CIV.A. 08-2405, 2011 WL 3240779, at *4 (E.D. Pa. July 28, 2011) (ascertainability is a prerequisite to Rule 23 analysis) (A0058); Weiner v. Snapple Beverage Co., No. 07 Civ. 8742

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(DLC), 2010 WL 3119452, at *12 (S.D.N.Y. Aug. 5, 2010) (noting that ascertainability is related but distinct from manageability) (A0067); Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 478-79 (D.N.J. 2009) (finding that ascertainability is an implicit requirement of Rule 23); Johnson v. Geico Cas. Co., 673 F. Supp. 2d 255, 268 (D. Del. 2009) (same). And other courts have employed the Panel’s rationale when presented with similar facts. Recently, in Hernandez v. Chipotle Mexican Grill, Inc., No. CV 12– 5543 DSF (JCx), 2013 WL 6332002, at *1 (C.D. Cal. Dec. 2, 2013) (Ex. A), the court denied certification of a small-dollar purchase class action because class membership could not be identified in a way that the defendant could confirm. The language in Hernandez could just as easily apply to Carrera: Most fundamentally, the questions of when a class member ate at Chipotle, the exact location where he ate, and which meat (if any) he ate are all not subject to class treatment. In some consumer class actions, these types of issues will exist, but be of limited importance because either the defendant or the class members have or could be expected to have records of the purchase of the good or service or to have retained the purchased item. In other cases, the class will be all purchasers of a particular product within some reasonably large time period, so the details of the purchase are not significant. Here, the dispute concerns a very low price transaction that neither the class members nor Chipotle maintain any specific record of or could be expected to recall. More importantly, the alleged misconduct took place only with regard to varying products at varying locations within limited time frames. In many class actions the specific date of a transaction or its particular location might not be very important . . . . Therefore, a class member needs to know with some certainty – and Chipotle should be allowed some mechanism for confirming or contesting that certainty – the date, location, and particular meat 7

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purchased. That kind of certainty in a class action that encompasses purchases of burritos (for example) between June 2008 – more than five years ago – and now is not practical. 2013 WL 6332002, at *1. Carrera string cites cases claiming that the Panel decision “conflicts with decisions upholding classes of purchasers of over-the-counter products – classes that could never exist under the decision.” (Pet.9 (citing cases)) But those cases do not bear on ascertainability; most involve settlement classes where class membership was not at issue. E.g., In re Vitamins Antitrust Class Actions, 215 F.3d 26, 28 (D.C. Cir. 2000) (settlement class); In re Pharm. Indus. AWP Litig., 588 F.3d 24 (1st Cir. 2009) (settlement class); In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 336 (3d Cir. 2010) (settlement class); In re Baby Prods. Antitrust Litig., 708 F.3d 163, 170 (3d Cir. 2013) (settlement class); In re Dry Max Pampers Litig., 724 F.3d 713, 716 (6th Cir. 2013); Nelson v. Mead Johnson & Johnson Co., 484 F. App’x 429, 431 (11th Cir. 2012) (settlement class); see also State of Arizona v. Shamrock Foods Co., 729 F.2d 1208, 1210 (9th Cir. 1984) (analysis unrelated to Rule 23). B.

The Panel Correctly Held That Carrera’s Failure To Provide Any Evidence Of Ascertainability Required Vacating The Class Certification Order

Carrera claims that the Panel decision abrogates (or “come[s] perilously close” to abrogating) class certification cases involving consumer products. (Pet.

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6)2 It does not. Here again, Carrera relies on commentators’ misreading of the decision, as opposed to its application by jurists. Carrera’s arguments do not justify rehearing. 1.

Carrera And Amici Mischaracterize The Court’s Holding – The Court Does Not Require Identification Of All Class Members

Carrera says that the “panel . . . held that the class here is insufficiently ascertainable because the plaintiff cannot prove that he could identify every class member – not because the class definition is subjective or unclear.” (Pet. 8 (emphasis in original); see also Pet. 10 (Panel’s opinion says that “a district court cannot certify a class unless the plaintiff can show that each class members will be able to prove to a certainty that he or she is entitled to damages”)). Amici repeat the error. (See, e.g., Law Profs. 4 (“The Panel’s decision offers no explanation for why the identity of individual class members must be ascertainable before the class is certified.”) (emphasis in original) But these characterizations of the Court’s holding fly in the face of what the Court actually wrote, which is what governs future cases:

2

Plaintiff’s citation is to a commentary by a New Jersey lawyer. (Pet. 5 citing to Greenberg, Class Ascertainability—The Third Circuit Approaches the Precipice, Aug. 22, 2013, http://bit.ly/14w6hGW). Mr. Greenberg is of course entitled to his views, but his fundamental disagreement appears to be with Marcus, stating elsewhere that “the court plowed new and potentially questionable ground.” Bruce Greenberg, A Mixed Bag on Class Certification From the Third Circuit, NEW JERSEY APPELLATE LAW BLOG (Aug. 20, 2012), http://appellatelaw-nj.com/amixed-bag-on-class-certification-from-the-third-circuit/. 9

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Although some evidence used to satisfy ascertainability, such as corporate records, will actually identify class members at the certification stage, ascertainability only requires the plaintiff to show that class members can be identified. Carrera, 727 F.3d at 308 n.2 (Op. 12 n.2). A plaintiff does not have to “identify every class member” in advance for a class to be ascertainable. (Pet. 8) But a plaintiff must prove that class members “can be identified” in an administratively feasible way. 727 F.3d at 307 (Op. 10) The plaintiffs must have some plan to identify class members and prove that the plan will work in a reliable and administratively feasible way. Id. at 304 (Op. 12). The inability to show whether even a single class member “can be identified” is Carrera’s failure of proof. 2.

Carrera’s Own Testimony Justifies The Panel’s Suspicion Of Affidavits As Proof Of Class Membership Without Screening

The Panel’s reasoning regarding the inadequacy of affidavits in this case proceeds in two steps. First, unchallenged affidavits are suspect in this case given that Carrera’s own testimony “suggested that individuals will have difficulty accurately recalling their purchases of WeightSmart.” 727 F.3d at 309 (Op. 15). Second, Carrera can only rely on affidavits in this case if he can supply a reliable and administratively feasible screening method on remand. 727 F.3d at 311-312 (Op. 20). The abysmal evidence in this particular case demands both conclusions and belies the end-of-days predictions by Carrera and amici regarding future cases.

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Carrera’s testimony in support of ascertainability was appallingly weak. Carrera cannot even establish that he himself is a member of the class. As the record demonstrates, Carrera could not provide evidence about the basic facts necessary to establish that (1) he purchased WeightSmart; (2) in Florida; (3) within the limitations period.3 727 F.3d at 309 & n.5 (Op. 15 & n.5) (“core concern” of ascertainability is that “a defendant must be able to challenge class membership . . . especially . . . where the named plaintiff’s deposition testimony suggested that individuals will have difficulty accurately recalling their purchases of WeightSmart.”)

3

That Carrera could not establish that he or others were identifiable members of the class is not surprising given the circumstances of his arrival in the case. Two years into the case, he replaced Diane Gray as the named plaintiff after Ms. Gray withdrew from the litigation rather than answer discovery. Carrera learned about the WeightSmart litigation when he received a mass electronic message asking: “has anybody ever used this [WeightSmart] product.” (A2361-62, A2364 (Carrera Dep. Tr. 16:8-17:14; 19:21-24)) The mass message came from Ben Lopatin, an employee of Howard Rubinstein, one of the class action lawyers involved in this litigation. (A2364 (Carrera Dep. Tr. 19:9-14, 21-24)) Carrera knew Lopatin because they went to law school together and Lopatin worked on more than 20 legal projects for Carrera’s firm. (A2376-79 (Carrera Dep. Tr. 31:20-32:2; 32:2233:2; 34:7-9)) Carrera had his first-ever concerns about WeightSmart after talking to Lopatin. (A2430 (Carrera Dep. Tr. 85:11-25)) Carrera called Lopatin after receiving the message because Carrera thought Lopatin needed instruction on briefs or legal research. (A2362-64 (Carrera Dep. Tr. 17:19-19:4)) Lopatin told Carrera: “there was some problem with” the medicine, that plaintiff’s did not have a class representative, and that a scientific expert had “made a study and that his conclusions were that the product doesn’t work.” (A2369, A2366, A2371-72 (Carrera Dep. Tr. 24:9-20; 21:22-25; 26:23-27:3)) Carrera agreed to be the class representative a few months before he filed his complaint. (A2361 (Carrera Dep. Tr. 16:2-7)) 11

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For example, • Carrera could not identify WeightSmart or its packaging. (A2451-52, A2461 (Carrera Dep. Tr. 106:10-107:21; 116:13-19)) • Carrera could not recall the approximate dates of his purchases. (A2440, Carrera Dep. Tr. 95:1-23) • Carrera could not quantify his alleged purchases. (e.g., A2460-61, (Carrera Dep. Tr. 115:14-116:7)) • Carrera’s testimony changed between his complaint and his deposition regarding the location of his purchases. (A0466 (complaint); A244066 (Carrera Dep. Tr 95:1-121:1.) • Carrera could not remember how much he allegedly paid for WeightSmart. (A2468, (Carrera Dep. Tr. 123:16-24)) • Carrera was unaware that there was another WeightSmart product on the market that is not at issue here and did not know that there were WeightSmart knock-offs. (A2539-40 (Carrera Dep. Tr. 194:11-195:1; A2465, (Carrera Dep. Tr. 120:16-23))) • Carrera could not remember the details of other multivitamins or medication that he had taken, blaming the passage of time for his inability to remember. (A2441-42, (Carrera Dep. Tr. 96:25– 97:20)) In light of Carrera’s failed recollections about his own purchase – the sole class representative’s testimony – the Panel discounted the use of unchallenged affidavits as the basis for establishing class membership. 727 F.3d at 309 & n.5 (Op. 15 & n.5). The alternative to the Panel’s holding would be to assume that unchallenged affidavits from unnamed class members can reliably prove membership even though the sworn testimony of the class representative was

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unreliable. That option is untenable because a “defendant must be able to challenge class membership,” which is “especially true where the named plaintiff’s deposition testimony suggested that individuals will have difficulty accurately recalling purchases of WeightSmart.” 727 F.3d at 309 (Op. 15). Carrera sought to overcome the inadequacies of his own testimony through a declaration from James Prutsman. 727 F.3d at 310-11 (Op. 18-19). The Panel was right to discount this evidence. 727 F.3d at 311 (Op. 19). Prutsman did not provide a case-specific methodology to correct for the proven unreliability of Carrera’s testimony. Id. And he testified only in general terms about settlement classes – not ascertainability. (A0992) In addition, Prutsman’s declaration is an improper basis for affirmance or revisiting the Panel’s decision because it is a late-disclosed expert opinion.4 Carrera openly characterizes Prutsman’s “method” for screening fraudulent affidavits as an “expert model.” (Pet. 12) Carrera first offered this declaration in his reply brief in support of class certification after fact and expert discovery had closed. (A0457 (8/10/10 Pretrial Scheduling Order indicating expert disclosures due months before declaration submitted)) Bayer moved to strike the declaration 4

Because the Court determined that Prutsman’s Declaration “does not show the affidavits will be reliable,” the Court held that it did not need to reach the issue of whether the Declaration was a late-disclosed expert disclosure, improperly considered by the District Court. 727 F.3d at 311 & n.8 (Op. 19 & n.8) If the Panel reconsiders or the Court were to take reconsider the case en banc, Bayer would revive its argument as set out above. 13

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of Mr. Prutsman as a late-disclosed expert opinion. (A0038) In response, Carrera said he was “not offering Mr. Prutsman’s declaration as expert testimony but as fact testimony. . . .” (A0962) (emphasis added) Now, Carrera blames the Panel for not crediting the evidence of his professed “expert model” – notwithstanding his previous denial that it was an “expert model” and Bayer’s inability to challenge Mr. Prutsman’s conclusions in the district court. Carrera’s proffered evidence does not prove that the class is ascertainable or that Carrera can correct for the unreliability of his own testimony. That is Carrera’s burden. The obvious unreliability of Carrera’s testimony demands greater procedural safeguards against proving class membership based on class members’ say-so, but that does not mean that affidavits are per se unavailable. 727 F.3d at 311 n.9 (Op. 20 n.9). In fact, the Court invited Carrera on remand to develop a screening method to account for the unreliability demonstrated by his own testimony: [W]e will afford Carrera the opportunity to submit a screening model specific to this case and prove how the model will be reliable and how it would allow Bayer to challenge the affidavits. 727 F.3d at 311-12 (Op. 20). The Panel was right to find that Carrera’s evidence of ascertainability using unchallenged affidavits was inadequate.

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Carrera Failed To Prove (Or Even Try To Prove) That ThirdParty Records Exist To Show Class Membership

Affidavits were not the only avenue available to Carrera to prove ascertainability. The Panel considered another: third-party retailer records. “Depending on the facts of the case, retailer records may be a perfectly acceptable method of proving class membership.” 727 F.3d at 308 (Op. 14). In this case, Carrera chose not to seek this evidence. To prove that third-party retailer records exist, Carrera instead offered only an FTC “settlement with CVS regarding the sale of a supplement that was falsely advertised as boosting immune systems.” 727 F.3d at 308 (Op. 13). This settlement agreement had nothing to do with WeightSmart. Carrera first pulled this settlement agreement from the internet and submitted it as part of a reply brief in support of class certification. (A0885-91) Prior to that, he had not conducted any third-party retailer discovery. He did not subpoena the documents or testimony of any third-party retailers. Actual third-party discovery would have proven whether this evidence exists and for what timeframe (if any). Carrera cannot even show that retailers kept records of consumers’ WeightSmart purchases – let alone that they retained them for the proper class period. Carrera’s burden was not to demonstrate the existence of every individual listed in third-party retailers’ loyalty-card or purchase records, as he and amici claim this Court has required. (Pet. 6-7; (Brief of Public Justice, P.C. as Amicus 15

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Curiae in Support of Plaintiff-Appellee Carrera’s Petition for Rehearing and Rehearing En Banc 15)) But he did have to show that third-party retailer records could provide an administratively feasible way to identify WeightSmart purchasers. 727 F.3d at 309 (Op. 14) He chose not to seek the information, offering instead an FTC settlement agreement about an unrelated product in a reply brief. This single irrelevant document is insufficient to undo his neglect during the discovery phase. Therefore, on the facts before it, the Panel found “retailer records in this case [could not] be used to identify class members” and thus did not carry the burden to show ascertainability. 727 F.3d at 308 (Op. 14) (emphasis added) (“[T]here is no evidence that a single purchaser of WeightSmart could be identified using records of customer membership cards or records of online sales.”); id. at 309 (Op. 14). The Panel was right to reject Carrera’s meager evidence as proof of ascertainability by a preponderance of the evidence. 4.

The Panel Was Right To Reject Carrera’s Aggregate Proof Theory

Carrera advanced an “aggregate proof” theory to dodge his burden of proving ascertainability. (Pet. 14-15) He assumes the amount of damages is established and contends that Bayer has no interest in how those proceeds are distributed. (Id.) But in making this aggregate proof contention, Carrera and amici conflate two concepts. Whether a case is amenable to aggregate proof of damages

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is distinct from whether the Court can use aggregate proof to deny the class defendant the ability to challenge individual recoveries, as Carrera proposes.5 First, determining aggregate damages “without further individualized proceedings” raises the same concerns as the “Trial by Formula” that the Supreme Court rejected in Dukes. Dukes, 131 S. Ct. at 2561. “[A] class cannot be certified on the premise that [the class defendant] will not be entitled to litigate its statutory defenses to individual claims.” Id. Although Carrera does not propose determining liability based on a sample of the class as in Dukes, an aggregate damages determination for a class that is not reliably ascertainable raises the same concerns noted by the Supreme Court. The only way for Bayer to challenge individualized recoveries is if unnamed class members are in fact ascertainable. Otherwise, whose recovery would Bayer be challenging? But under Carrera’s proposal, class certification and trial would commence despite the lack of any evidence that Bayer could identify the unnamed class members to challenge their recoveries. That inability denies Bayer the right to “litigate its statutory defenses to individual claims.” Dukes, 131 S. Ct. at 2561. A plaintiff does not have to identify every unnamed class member before class 5

Both amici and Carrera quote the Court’s summary of his damages argument as though the Court adopted the finding that damages were amenable to aggregate proof. (Compare 727 F.3d at 309 (Op. 15) (“Carrera also argues . . .”) with Pet. 14 (“As the panel acknowledged . . .”); Brief of Public Justice, P.C. as Amicus Curiae in Support of Plaintiff-Appellee Carrera’s Petition for Rehearing and Rehearing En Banc 2 (same language)). 17

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certification is appropriate, as the Panel recognized. But a court cannot certify a class without some proof that identification will in fact be possible at some point.6 Second, Carrera and amici assume that identifying unnamed class members is unnecessary because it will not affect Bayer’s total liability. (E.g., Pet. 14-15; Law Profs. 5-6) They are wrong. Bayer is only liable to those individuals who can establish a violation of FDUTPA – including proof that the individual suffered “actual damages” by in fact purchasing WeightSmart. Rollins, Inc. v. Butland, 951 So. 2d 860, 873 (Fla. Dist. Ct. App. 2006) (“The members of the putative class who experienced no actual loss have no claim for damages under FDUTPA.”). Further, even for those individuals who did purchase WeightSmart, Bayer would only be liable to people in the class – namely those that purchased within the statute of limitations period and within Florida. 727 F.3d at 304 & 305 n.1 (Op. 5 & n.1). The determination of Bayer’s total liability (if any) depends on resolving issues regarding its liability for valid claims for actual class members. That resolution is only possible if the parties can identify class members in a reliable and administratively feasible way. Carrera has provided no method to do so. Further, the only basis for Carrera’s claim that damages can be determined on an aggregate basis is attorney argument. Carrera’s legal team did not submit

6

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any economic or other expert testimony establishing how Carrera’s “overpayment” theory would be applied to aggregate proof to determine Bayer’s total liability. The “overpayment” rationale is based on spreadsheets that counsel prepared and submitted as part of class-certification briefing. (A2296) There is no evidence in the record that an “overpayment” theory is sound economics or that it could resolve Bayer’s class-wide liability. Third, the cases that Carrera and amici cite regarding aggregate proof do not establish that such proof is proper where it denies defendant the ability to challenge individual recoveries. For example, Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) concerns the rebuttable presumption of class-wide reliance in securities class actions. “[T]he presumption” however, is “just that, and [can] be rebutted by appropriate evidence.” Id. at 1193 (quoting Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2185 (2011)). And Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir. 1975) – far from proving the fairness of Public Justice’s “aggregate proof” rationale – supports the Panel’s rationale. (Brief of Public Justice, P.C. as Amicus Curiae in Support of Plaintiff-Appellee Carrera’s Petition for Rehearing and Rehearing En Banc 4) In Blackie, the Court endorsed the rebuttable nature of the fraud-on-the-market presumption of reliance based on a need to “limit[] recoveries to those who are in fact injured, and excluding those whom a defendant proves has not been injured.” 524 F.2d at 906 n.22. That is the

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precise purpose served by ascertainability and that Public Justice asks the Court to ignore in favor of aggregate proof. All of the other cases cited in support of aggregate proof are either inapposite or envision subsequent proceedings whereby the class defendant can challenge the aggregate proof. See Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296-97 & n.6 (1st Cir. 2000) (holding out the option of decertification if individualized statute-of-limitations issues prove intractable); George v. Nat'l Water Main Cleaning Co., 286 F.R.D. 168, 182 (D. Mass. 2012) (“[A]s required, the defendants are entitled to any additional proceedings required to ensure that their due process rights are protected.”); Morrow v. Washington, 277 F.R.D. 172, 177 (E.D. Tex. 2011) (cases involving certification under 23(b)(2), not 23(b)(3)); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 860 (6th Cir. 2013) (“This case is different from Comcast Corp. Here the district court certified only a liability class and reserved all issues concerning damages for individual determination.”); Butler v. Sears, Roebuck & Co., 727 F.3d 796, 800 (7th Cir. 2013) (“[T]he district court in our case, unlike Comcast, neither was asked to decide nor did decide whether to determine damages on a class-wide basis.”); Driver v. AppleIllinois, LLC, No. 06 C 6149, 2012 WL 689169 *2-3 (N.D. Ill. Mar. 2, 2012) (ascertainability not at issue; court upheld certification after examining “more than 100 declarations” noting that, as a wage and hours case, “it

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is the employer’s duty to keep proper records” so “there is a centralized source of information about the time and wage records for the class members”). Carrera and amici propose a different use of aggregate proof: the conclusive determination of class-wide damages followed by a third-party claimsadministration process that would not allow Bayer to challenge individual claims for relief. They cite no case in support of that proposition, and as discussed such an approach would undermine both the values protected by Rule 23 and Bayer’s due-process rights. Ascertainability is essential to the ability to subsequently raise individual challenges. Proceeding with the class without any indication that class members can be reliably identified presages “serious administrative burdens that are incongruous with the efficiencies expected in a class action. . . .” Marcus, 687 F.3d at 593 (citation omitted). Aggregate proof of damages with no ability to challenge those recoveries does not serve the purpose of ascertainability. C.

The Panel Decision Did Not Create A Circuit Split Or Tension With Third Circuit Precedent

Continuing its misreading of the Panel decision, Carrera claims that the decision is inconsistent with the law of other circuits and in “substantial tension” with this Court’s decision in Sullivan v. DB Invest., Inc., 667 F.3d 273 (3rd Cir. 2011) (en banc) (Pet. 8-10). He is wrong.

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First, as noted above, the Court’s findings are consistent with Dukes, Marcus and decisions throughout other circuits. Supra at 4-8. And as explained above, the supposed conflicting decisions in other circuits are inapposite because they relate to settlement classes. Second, Carrera’s citation to the Eleventh Circuit’s Fitzpatrick decision does not help his cause with respect to ascertainability. (Pet. 8-9, citing Fitzpatrick v. General Mills, Inc., 635 F.3d 1279 (11th Cir. 2011)) The plaintiff’s evidence in Fitzpatrick did not suffer from the inadequacies that plague Carrera’s evidence here. While the district court stated there that identifying class members would “not be an easy process,” the court did not have to contend with a named plaintiff who could not identify the product at issue with any measure of reliability. Instead, the named plaintiff could recount the basic details necessary to determine class membership. Fitzpatrick v. General Mills, Inc., 263 F.R.D. 687, 691, 702 (S.D. Fla. 2010). Thus, the application of the evidence here to the facts is

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consistent with the thrust of Fitzpatrick; it just happens that the Fitzpatrick plaintiff was able to muster stronger evidence of class membership.7 Carrera’s attempt to manufacture “tension” between the Panel decision and this Court’s holding in Sullivan fares no better. In Sullivan, this Court rejected the notion that, at the class certification stage, “a district court must ensure that each class member possesses a viable claim or ‘some colorable legal claim.’” 667 F.3d at 285. The Court’s decision here, as discussed above, does not require that Carrera prove all claims are viable or even identify all claimants at this time. Instead, it requires Carrera to show that there is an administratively reliable method for assuring ascertainability. He failed to do so. The Court’s evidentiary conclusions here do not create “tension” with Sullivan.

7

Carrera’s use of Fitzpatrick as support for the proposition that individualized hearings on causation would not be required under FDUTPA is not controlling or even consistent with how Florida courts have addressed the issue. As courts have noted since Fitzpatrick, “there appears to be a split in the Florida courts regarding the interaction of the reliance and causation elements of a FDUTPA claim, and some Florida courts have required that plaintiffs present individualized proof in order to satisfy the FDUTPA’s causation element.” In re Glaceau Vitaminwater Mktg. & Sales Practice Litig., 11-MD-2215 (DLI)(RML), 2013 WL 3490349, at *7 (E.D.N.Y. July 10, 2013) (Ex. B). At least one federal court has rejected the conclusion that causation and reliance are amenable to class-wide proof, concluding that “[t]o do otherwise in the name of the general principle that the FDUTPA does not require reliance would, in effect, remove its causation requirement.” In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., MDL-1703, 2012 WL 1015806, at *11 (N.D. Ill. Mar. 22, 2012) (Ex. C) (“[T]he great weight of recent authority in those courts, as set forth above, supports Sears's position and holds that causation typically requires individualized proof.”) Id. at 10. 23

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The Panel Decision Did Not Create A “New” Due Process Right

Carrera claims that the Panel decision “adopts a troubling new interpretation of the Due Process Clause that cannot be reconciled with Supreme Court precedent.” (Pet. 1; 13-15) Here again, Carrera distorts the decision. The decision here is consistent with Dukes, Marcus and other circuit court cases finding that theories of “aggregate proof,” like those advanced by Carrera, cannot be used to deprive a defendant of its right to challenge evidence. In Dukes, the Supreme Court rejected a proposal to try Wal-Mart’s defenses regarding a sample set of class members with the results extrapolated to the remaining class members. Dukes, 131 S.Ct. at 2562. The Supreme Court held that under the Rules Enabling Act “a class cannot be certified on the premise that WalMart will not be entitled to litigate its statutory defenses to individual claims.” Id. at 2561. See also McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 232 (2d Cir. 2008) (refusing to approve recovery system that would aggregate claims, noting that under that system “the right of defendants to challenge the allegations of individual plaintiffs is lost, resulting in a due process violation.”); Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 345 (4th Cir. 1998) (reversing certification where court evaded class differences by fashioning a “fictional composite” plaintiff).

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Consistent with these precedents, Marcus recognized that “[f]orcing [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.” Marcus, 687 F.3d at 594. Marcus and the Panel decision both recognized that while aggregate proof might be appropriate in certain circumstances, the efficiencies to be gained through aggregate proof must be balanced against the defendant’s due process rights. 727 F.3d at 308 (Op. 12) (“The type of challenge to the reliability of evidence that is required will vary based on the nature of the evidence.”). Here, because there was no indicia of reliability to Carrera’s assertion that even he purchased WeightSmart, the Panel properly recognized that Carrera had to present a more reliable model to pass muster under Rule 23. 727 F.3d at 311 n.9 (Op. 20 n.9). E.

Angeion Group’s Brief Is Irrelevant Given Its Focus On Settlements And The Court’s Judgment In This Case

Carrera and amici propose that, in place of Carrera providing evidence of ascertainability, the Court should outsource the determination of class membership at a later date to a third-party claims administrator. Carrera and amici assert that claims administrators can determine class membership and detect fraud. (E.g., Brief Amicus Curiae of Angeion Group, LLC In Support of Petition for Rehearing or Rehearing En Banc).

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But assurances from claims administrators that they can determine class membership in the future is not enough. These companies profit from administering settlement classes where the parties agree that class certification is appropriate and the class ascertainable. Claims administrators cannot protect Bayer’s right to challenge individual recoveries or to “litigate its statutory defenses to individual claims.” Dukes, 131 S. Ct. at 2561. Instead, their use would involuntarily substitute the adversarial truth-seeking function of the federal judiciary with the judgment of a private company. Claims administration is ministerial in nature and does not indicate that a class is ascertainable. This is why courts have determined that testimony about claims administration “is itself irrelevant to the issue of class certification.” Weiner, 2010 WL 3119452, at *13 n.22. The claims administrator “opines only that notification would be feasible if a class were to be certified, but offers no opinion as to whether the requirements for class certification have been met.” Id. F.

The Amici Argue Against The Ascertainability Requirement Generally, Not Its Application In This Case

As illustrated above, the ruling here does not spell the end of small-value consumer class actions. Carrera and amici throw several arguments out in favor of rehearing, but they all depend on mischaracterizing the decision or just flat disagreement that ascertainability should be a requirement.

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The facts of this case – not every case – required vacating the class certification. The Panel recognized that, “[d]epending on the facts of a case, retailer records may be a perfectly acceptable method of proving class membership.” 727 F.3d at 308 (Op. 14). Faced with the complete failure of proof in this record, the decision here is consistent with established precedent and does not raise a question of exceptional importance as required by Fed. R. App. P. 35. Rather than provide such an administratively feasible method, Carrera essentially claims he need do nothing at this stage. He made no effort to develop proof that third-party retailers maintain purchase records; he has suggested no method (whether feasible or not) for identifying class members at this stage; and he even did not muster evidence – with the benefit of leading questions posed by his counsel – to prove that he himself is a member of the class. (A2558) Requiring the identification of a single member of the class before certification is not too much to ask. Rather than provide a reliable method of ascertaining the class, Carrera and amici seek to abrogate the ascertainability requirement altogether. They assert that a workable class definition alone should be enough to satisfy Rule 23. (E.g., Pet. 7-8) A clear class definition is necessary for class certification, but it is not sufficient. This Court has recognized that class definition and ascertainability are separate requirements. (“Before turning to the explicit requirements of Rule 23 in

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Marcus, we addressed two ‘preliminary matters’: first, whether the class was clearly defined, and second, ‘whether the class must be (and, if so, is in fact) objectively ascertainable.’”) 727 F.3d at 305 (Op. 6-7 (quoting Marcus, 687 F.3d at 591) (emphasis added)). The Panel decision serves Rule 23’s purposes. As the Panel stated if “a class cannot be ascertained in an economical and ‘administratively feasible’ manner, significant benefits of a class action are lost.” 727 F.3d at 307 (Op. 10, quoting Marcus). Ascertainability vindicates due process because 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.” Marcus, 687 F.3d at 594. And – even if Carrera’s unsupported economic model had merit, which it does not – ascertainability prevents the dilution of valid claims by fraudulent or inaccurate claims. 727 F.3d at 310 (Op. 17). In the face of this precedent, Carrera relies on non-lawyers’ characterizations of the Panel’s decision to claim that it is “game changing” and creates an “‘unheard of’ barrier to class certification.” (Pet. 4) These characterizations are false. The Panel stated that the “sole issue” was whether Carrera carried his evidentiary burden in showing ascertainability. The Panel arrived at the unsurprising conclusion that Carrera failed to show ascertainability and that the

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district court failed to conduct a rigorous analysis when it certified the class. Such a straightforward application of facts to established law is hardly “unprecedented.” The Panel decision does not foreclose consumer class actions in general; indeed, even here, the Panel invites Carrera to provide a feasible method for showing ascertainability. 727 F.3d at 311-12 (Op. 20-21). And the Panel decision recognizes that, while defendants must be able to challenge the plaintiffs’ evidence, “[t]he type of challenge to the reliability of evidence that is required will vary based on the nature of the evidence.” 727 F.3d at 308 (Op. 12). Carrera’s tacit admission that he cannot meet his burden – and his failure below to seek potential discovery to support his claim – does not spell the end of small-value class actions. In other cases, class representatives may be able to recall purchasing the product at issue. And in other cases, class counsel may explore the possibilities of third-party records or otherwise present a feasible plan for determining ascertainability. Carrera’s failure to put forth any evidence of ascertainability does not mean that all future plaintiffs will do the same. CONCLUSION Because the Panel’s decision was consistent with Supreme Court, Third Circuit and other precedents and because the decision correctly applied the requirements of Rule 23, Carrera’s petition for rehearing should be denied.

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Dated: December 30, 2013

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Respectfully submitted, s/ Matthew Ford Christopher D. Landgraff (IL 6225411) Rebecca Weinstein Bacon (IL 6257492) Matthew R. Ford (IL 6292833) BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 54 W. Hubbard Street, Suite 300 Chicago, IL 60654 (312) 494-4400

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CERTIFICATE OF SERVICE The undersigned attorney certifies that, on December 30, 2013, he caused to be served, via CM/ECF, the foregoing APPELLANTS BAYER CORPORATION’S AND BAYER HEALTHCARE, LLC’S OPPOSITION TO APPELLEE’S PETITION FOR REHEARING AND REHEARING EN BANC upon the counsel below. James E. Cecchi Lindsey H. Taylor Donald A. Ecklund Caroline F. Bartlett CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, PC 5 Becker Farm Road Roseland, NJ 07068 (973) 994-1700

Joe R. Whatley Patrick J. Sheehan WHATLEY DRAKE & KALLAS, LLC 380 Madison Avenue New York, NY 10017 (212) 447-7070

John Beisner SKADDEN, ARPS, SLATE, MEAGHER & FLOM 1440 New York Avenue, N.W. Washington, DC 20005 (202) 371-7410

Richard H. Frankel LAW PROF. OF CIV. PROCEDURE AND COMPLEX LITIGATION Earle Mack School of Law 3320 Market Street Philadelphia, PA 19104 (215) 571-4807

Brian S. Wolfman PUBLIC CITIZEN, INC. 600 New Jersey Avenue, N.W. Suite 312 Washington, DC 20001 (202) 661-6582

Allison M. Zieve PUBLIC CITIZEN, INC. Public Citizen Litigation Group 1600 20th Street, N.W. Washington, DC 20009 (202) 588-1000

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F. Paul Bland, Jr. PUBLIC JUSTICE 1825 K Street, N.W. Suite 200 Washington, DC 20006 (202) 797-8600

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James C. Haggerty HAGGERTY, GOLDBERG, SCHLEIFER & KUPERSMITH 1835 Market Street Suite 2700 Philadelphia, PA 19103 (267) 350-6633

s/ Matthew Ford Christopher D. Landgraff (IL 6225411) Rebecca Weinstein Bacon (IL 6257492) Matthew R. Ford (IL 6292833) BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 54 W. Hubbard Street, Suite 300 Chicago, IL 60654 (312) 494-4400

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EXHIBIT A


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Page 1 Not Reported in F.Supp.2d, 2013 WL 6332002 (C.D.Cal.) (Cite as: 2013 WL 6332002 (C.D.Cal.)) Only the Westlaw citation is currently available. United States District Court, C.D. California. Alan HERNANDEZ v. CHIPOTLE MEXICAN GRILL, INC. No. CV 12–5543 DSF (JCx). Dec. 2, 2013. Andre Sherman, John A. Girardi, Girardi Keese, Los Angeles, CA, Arby Aiwazian, Jill Jessica Parker, Edwin Aiwazian, Lawyers for Justice P.C., Glendale, CA, for Alan Hernandez. Charles C. Cavanagh, Messner and Reeves LLC, Denver, CO, Sascha V. M. Henry, Sheppard Mullin Richter and Hampton, Los Angeles, CA, for Chipotle Mexican Grill, Inc. MEMORANDUM Proceedings: (In Chambers) Order DENYING Motion for Class Certification (Dkt. No. 84) DALE S. FISCHER, District Judge. *1 Debra Plato Deputy Clerk This proposed class action is based on Chipotle Mexican Grill, Inc.'s alleged practice of serving conventionally raised meats on occasions when “naturally raised” meats were not available, though it had heavily advertised its use of “naturally raised” meats.FN1 While the case was initially broader, Plaintiff's allegations now center on the representations made in Chipotle's in-store menu signboards and Chipotle's paper menus. FN1. According to Chipotle, “naturally raised” means “coming from animals that are

fed a pure vegetarian diet, never given antibiotics or hormones, and raised humanely.” (Parker Decl., Ex. K (2010 Annual Report) at p. 3.) The proposed class action fails to satisfy the requirements of Rule 23(b)(3). Rule 23(b)(3) focuses on the relationship between the common and individual issues. Class certification under Rule 23(b)(3) is proper when common questions present a significant portion of the case and can be resolved for all members of the class in a single adjudication. The predominance inquiry under Rule 23(b) “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (citation omitted). Rule 23(b) (3) also requires the Court to find “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). Here, common questions do not predominate over individual issues, and the class action device is not a fair and efficient way to provide a fair opportunity for class members to obtain relief or for Chipotle to defend itself against claims. While there are some common questions, many key issues can only be handled individually. Most fundamentally, the questions of when a class member ate at Chipotle, the exact location where he ate, and which meat (if any) he ate are all not subject to class treatment. In some consumer class actions, these types of issues will exist, but be of limited importance because either the defendant or the class members have or could be expected to have records of the purchase of the good or service or to have retained the purchased item. In other cases, the class will be all purchasers of a particular product within some reasonably large time period, so the details of the purchase are not significant. Here, the dispute concerns a very low

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Date Filed: 12/30/2013 Page 2

Not Reported in F.Supp.2d, 2013 WL 6332002 (C.D.Cal.) (Cite as: 2013 WL 6332002 (C.D.Cal.)) price transaction that neither the class members nor Chipotle maintain any specific record of or could be expected to recall. More importantly, the alleged misconduct took place only with regard to varying products at varying locations within limited time frames. In many class actions the specific date of a transaction or its particular location might not be very important. Here it is critical because certain stores were serving certain conventional meats only at certain times. Therefore, a class member needs to know with some certainty—and Chipotle should be allowed some mechanism for confirming or contesting that certainty—the date, location, and particular meat purchased. That kind of certainty in a class action that encompasses purchases of burritos (for example) between June 2008—more than five years ago—and now is not practical. Credit card records could provide some evidence of class members' purchases, but credit card records would not provide the critical detail of which meat was purchased in any given transaction. At best, there may be some class members who regularly eat—i.e., weekly or more often—at the same Chipotle location and always order the same thing, but presumably this is a relatively small subgroup of the proposed class. *2 Further, the important question of whether a class member saw a so-called pointof-purchase (POP) sign when a particular purchase was made cannot be handled on a classwide basis.FN2 For each purchase when naturally raised meat was not being served, there are at least four possibilities: (1) the sign was there and the class member saw it, (2) the sign was there and the class member did not see it due to Chipotle's negligence, (3) the sign was there and the class member did not see it due to the class member's negligence, and (4) the sign was not there. Plaintiff suggests that the Court can skip over this issue, contening that the signs were insufficient to inform consumers that conventionally raised meat was being served. But even if the sufficiency of the POP signs were an issue that could be handled on a classwide basis, it does not negate the existence of the further critical issue of whether a class

member saw the sign on a particular occasion—an issue that cannot be handled on a classwide basis. FN2. According to Chipotle, restaurants experiencing supply shortages were emailed instructions to post POP signs informing customers of a temporary shortage of naturally raised meats. (Chrisman Decl. ¶¶ 12 et seq.) Chipotle does not contend, and there is no record evidence that, it ever changed the menu board or paper menus to inform customers of supply shortages. Chipotle often instructed employees to post the signs at the tortilla station. (See, e.g., Chrisman Decl., Ex. A–M.) The tortilla station is located at the beginning of the line where a customer first orders food. (Parker Decl., Ex. E (Chrisman Depo. Tr.), 130:7–9.) Many of the individual issues regarding liability are also reasons why the class action mechanism is not fair and efficient in this case. Even if the Court were to assume that after certification the parties would reach a classwide settlement and obviate some of the problems of trying the case, there is no reason to believe that class members could be compensated appropriately. Presumably, the claims administrator would have to seek claims from everyone who ate meat at Chipotle during the class period. The claims would require the claimants to list every time they ate at Chipotle, the date—at least month and year, the specific location—“San Francisco” is not going to be good enough, and the specific item purchased. The Court is confident that very few people will be able to provide that information. People will either (1) lie, (2) attempt to fill out the claim form as best they can but be unable to do so accurately, or, most likely, (3) not bother. Money would be given out basically at random to people who may or may not actually be entitled to restitution. This is unfair both to legitimate class members and to Chipotle. The motion for class certification is DENIED.


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Not Reported in F.Supp.2d, 2013 WL 6332002 (C.D.Cal.) (Cite as: 2013 WL 6332002 (C.D.Cal.))

IT IS SO ORDERED. C.D.Cal.,2013. Hernandez v. Chipotle Mexican Grill, Inc. Not Reported in F.Supp.2d, 2013 WL 6332002 (C.D.Cal.) END OF DOCUMENT


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EXHIBIT B


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Page 1 Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) Only the Westlaw citation is currently available. United States District Court, E.D. New York. In re GLACEAU VITAMINWATER MARKETING AND SALES PRACTICE LITIGATION. Scott Cook, individually and on behalf of those similarly situated, and Nicholas Armada, Plaintiffs, v. The Coca–Cola Company, and Energy Brands, Inc., Defendants. Vivian E. St. Juste, Tasha M. Johnson, Jacklyn Francis, Michelle Woodley, Angelina Feola, and John Feola, Plaintiffs, v. The Coca–Cola Company, Energy Brands, Inc., Coca–Cola Bottling Co. of the Virgin Islands, Culusvi, Inc. d/b/a Cost–U–Less, Psmt, LLC DBA Pricesmart, and World Fresh Market, LLC, Defendants. David Volz, and Tim Vandercook, Plaintiffs, v. Coca Cola Company, and Energy Brands Inc., Defendants. Ahmed Khaleel, individually and on behalf of those similarly situated, Plaintiff, v. Coca Cola Company, and Energy Brands Inc., doing business as Glaceau, Defendants. Nos. 11–md–2215 (DLI)(RML), 11–cv–00925 (DLI)(RML), 11–cv–00926 (DLI)(RML), 11–cv–00927 (DLI)(RML), 11–cv–00996 (DLI)(RML). July 10, 2013. SUGGESTION OF REMAND DORA L. IRIZARRY, District Judge. *1 On February 8, 2011, the Judicial Panel on Multidistrict Litigation (the “Panel”) designated this Court as the transferee court for federal cases alleging deceptive labeling and marketing of defendants' product, “vitaminwater.” There are no pending federal claims in any of the

consolidated cases. Pursuant to Rule 10.1(b) of the Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation, the undersigned transferee judge submits this Suggestion of Remand, recommending that the Panel remand the cases listed below to the indicated courts of proper jurisdiction (the “transferor courts”), and providing information of potential assistance to the transferor courts. I. Procedural History In January 2009, plaintiff Batsheva Ackerman (“Ackerman”), a New York resident, commenced a purported class action in this district, alleging the deceptive labeling and marketing of vitaminwater, which defendants promote as a “nutrient-enhanced water beverage.” On May 26, 2009, Ackerman filed an amended complaint, adding as named plaintiffs Ruslan Antonov, James Koh, and Jerrad Pelkey,FN1 all California residents, and contending, inter alia, that defendants' alleged deceptive practices violate California and New York consumer protection laws.FN2 FN1. By stipulation dated March 15, 2010, Mr. Pelkey voluntarily dismissed his claims with prejudice. FN2. Upon learning of defendants' intent to seek MDL consolidation in the Northern District of California, the California plaintiffs voluntarily dismissed their three separate cases, which were then pending in the Northern and Eastern Districts of California, and joined the existing Ackerman case in this Court. Thus, in September 2009, the Panel denied defendants' motion for pretrial consolidation in the Northern District of California. In October 2009, plaintiffs again amended their complaint to, inter alia, add as named plaintiffs two New Jersey residents, as well as the claim that defendants' practices violated New Jersey law. The New Jersey plaintiffs are no


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) longer involved in this action. On June 22, 2009, defendants moved to dismiss the complaint on the grounds of federal preemption and failure to state a claim. On July 21, 2010, after full briefing and oral argument, this Court granted in part and denied in part defendants' motion. See Ackerman v. Coca–Cola Co., No. 09 CV 0395, 2010 WL 2925955 (E.D.N.Y. July 21, 2010).FN3 On August 27, 2010, defendants answered plaintiffs' Second Amended Complaint. FN3. The Court identified the open question in this case as whether a reasonable consumer would find vitaminwater's labeling and marketing misleading or deceptive under state law. Ackerman, 2010 WL 2925955, at *16.

been resolved.FN4 FN4. This Court has made a significant number of rulings throughout the course of this MDL. This Order does not attempt to mention or detail all of those rulings, or suggest the extent to which any particular ruling is applicable to future proceedings in these cases. *2 The parties completed briefing of plaintiffs' motions for class certification in September 2012, and the Court heard oral argument on October 11, 2012.FN5 (See Transcript of Oral Argument, dated Oct. 11, 2012 (“Tr.”), ECF No. 131.) The parties have since filed numerous supplemental submissions regarding class certification. FN5. Oral argument took place before United States Magistrate Judge Robert M. Levy, to whom the class certification motions were referred for a report and recommendation.

In November 2010, with the Ackerman plaintiffs' support, defendants moved the Panel for pre-trial consolidation of this case with two other vitaminwater cases: one that was filed in the Southern District of Florida and a second that was filed in the Superior Court of the Virgin Islands and then removed to federal court. On February 8, 2011, the Panel granted that motion pursuant to 28 U.S.C. § 1407 and transferred the Florida and Virgin Islands cases to this Court for coordinated or consolidated pre-trial proceedings. On February 25 and March 2, 2011, the Panel granted defendants' request for transfer of two additional vitaminwater cases: one from the Northern District of Illinois and one from the Southern District of Ohio that had been removed from Ohio state court. The Florida, Virgin Islands, Illinois, and Ohio plaintiffs all have opposed consolidation.

Having reviewed the parties' submissions thoroughly and having considered their arguments carefully, this Court concludes that the transferor courts would be uniquely well-suited to rule on the issues presented in the class certification motions, and that resolving those issues in this Court would not advance the efficiencies sought by the Panel. Many of the issues require an interpretation or analysis of state law, which, in some instances, is unsettled. Indeed, all of the claims in these cases arise under state law, and conduct that would justify class certification under one state's consumer protection law may, or may not, support class certification under another state's law.

Once the cases were consolidated, all the parties agreed to be bound by a Stipulated Protective Order, originally entered on December 3, 2010. The parties also agreed to a case management order and proceeded to engage in extensive discovery related to class certification, including the depositions of the named plaintiffs and the exchange of expert reports. The parties fully litigated several discovery disputes in this Court, each of which has

DISCUSSION I. Pending Motions For Class Certification As background, the plaintiffs collectively identify the “central issue” in this case as “whether Defendants' uniform labeling of vitaminwater products—including the name ‘vitaminwater’—is deceptive to a reasonable consumer.” (Master Mem. of Law in Support of Pls.' Motion for Class Certification, dated June 29, 2012, ECF No. 71,


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) at 1–2.) More specifically, plaintiffs contend that: Defendants deceptively promote vitaminwater as an alternative beverage to water and soft drinks that will assist consumers in maintaining healthy dietary practices. The product name (vitaminwater), description (Nutrient Enhanced Water Beverage), and slogans such as “vitamins+water=all you need” and “vitamins+water =what's in your hand” that appear on all vitaminwater labels, FN6 together with flavor names that are associated with specific purported health benefits, mislead consumers to believe that vitaminwater is simply water fortified with nutrients that will provide certain stated health benefits rather than just another sugary soft drink. FN6. The name “vitaminwater” appeared on the label of every vitaminwater product sold to consumers during the relevant class periods, as did the description of vitaminwater as a “Nutrient Enhanced Water Beverage.” (Stipulation of Certain Marketing Statements, dated Feb. 17, 2012, Ex. B, ECF No. 50.) The phrase “vitamins+water =what's in your hand” appeared on vitaminwater product labels until 2004. (Id.) It appears that the phrase “vitamins + water = all you need” only appeared on certain flavors. (Id. at 2–3.) It is undisputed that all vitaminwater bottles have a three-part label. The left panel discloses each product's sugar and vitamin content, among other information, and the right panel contains the ingredient list, which also discloses the amount of sugar and the various included vitamins for each flavor. (See Nesser Decl., Ex. B.) Plaintiffs do not claim that any of the ingredient or nutritional information on the vitaminwater labels has ever been inaccurate or incomplete. In its decision on defendants' motion to dismiss, this Court stated that “[t]he fact that the actual sugar content of vitaminwater was accurately stated in an FDA—mandated

label on the product does not eliminate the possibility that reasonable consumers may be misled.” Ackerman, 2010 WL 2925955, at *16. The Court explained that “the presence of a nutritional panel, though relevant, does not as a matter of law extinguish the possibility that reasonable consumers could be misled by vitaminwater's labeling and marketing” and that “even reasonable consumers may not read the nutritional label prior to every purchase of a new product.” Id. *3 All of the plaintiffs have moved for class certification, which of course necessitates an analysis of each of the threshold requirements of Rule 23(a): (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)(1)-(4). In addition, plaintiffs seeking certification of claims for injunctive relief pursuant to Fed.R.Civ.P. 23(b)(2) must demonstrate that “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.” Fed.R.Civ.P. 23(b)(2). Plaintiffs seeking monetary relief, on the other hand, must satisfy the prerequisites of both subsection (a) and (b)(3) of Rule 23 by demonstrating that questions of law or fact common to the members of the proposed class “predominate over any questions affecting only individual members,” and that a class resolution is “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b) (3). Whether seeking certification under Rule 23(b)(2) or 23(b) (3),FN7 the plaintiffs bear the initial burden of proving that their putative class action meets Rule 23's requirements. Fed.R.Civ.P. 23. Under the Supreme Court's recent decision in Wal–Mart Stores, Inc. v. Dukes, –––U.S. ––––,


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) ––––, 131 S.Ct. 2541, 2556, 180 L.Ed.2d 374 (2011), a plaintiff must provide “significant” and “convincing” proof that satisfies the Rule 23 requirements. Once the plaintiffs have made such a showing, the burden of proof is on the defendants to demonstrate otherwise. See Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.2010) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202–03 (2d Cir.2008). FN7. Where a class is certified pursuant to Rule 23(b)(2), no notification is required for absent class members; however, such notice is required if certification occurs under subsection (b)(3). Fed.R.Civ.P. 23(c)(2). Defendants naturally argue that there is “wide variation in consumer expectations and understanding” (Defs.' Mem. of Law in Opposition to Pls.' Master Motion for Class Cert., dated Aug. 24, 2012, ECF No. 92, at 2), and that, therefore, plaintiffs' claims of reliance, causation, and injury are not susceptible to generalized, class-wide proof. In response, each of the purported plaintiff classes maintains that the record demonstrates a uniformity of consumer experience, and that, under their respective state laws, they need only show that the alleged misrepresentations would be materially misleading to a reasonable consumer. Thus, the class certification motions hinge, at least in part, on whether each substantive state law supplies an objective or subjective consumer standard. Other state-specific concerns have been raised as well. I will outline each transferor case, and the outstanding state law issues, in turn. A. Ohio *4 The proposed Ohio class consists of all consumers who purchased vitaminwater in the state of Ohio between June 7, 2007 and the present. FN8 The Ohio plaintiffs allege claims for violations of the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Rev.Code Ann. §§

1345.01–1345.13, FN9 and the Ohio Deceptive Trade Practices Act (“ODTPA”), Ohio Rev.Code Ann. §§ 4165.01–4165.04, and for unjust enrichment, promissory estoppel, and negligent misrepresentation under Ohio law. FN8. I note that the Ohio Consumer Sales Practices Act (“OCSPA”) typically does not apply to consumers who reside outside the state of Ohio. Loreto v. Procter & Gamble Co., 737 F.Supp.2d 909, 917 (S.D.Ohio 2010). It will be for the transferor court to decide whether to limit the class accordingly. FN9. The OCSPA provides that “[n]o supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction.” Ohio Rev.Code Ann. § 1345.02(A) (West 2007). “Plaintiffs bringing OCSPA claims must allege that the defendant performed an act or omission that was unfair or deceptive, and that the alleged act ‘impacted [the plaintiffs'] decision to purchase the item at issue.’ “ In re Porsche Cars N. Am., Inc., 880 F.Supp.2d 801, 868 (S.D.Ohio 2012) (quoting Temple v. Fleetwood Enters., Inc., 133 F. App'x 254, 265 (6th Cir.2005). Plaintiffs bringing class actions under the OCSPA are subject to the statute's class action notice requirement. Under the OCSPA, consumers may seek relief in a class action only if the defendant was sufficiently on notice that its conduct was deceptive or unconscionable under the statute at the time it committed the alleged acts. Ohio Rev.Code Ann. § 1345.09(B) (West 2012); Marrone v. Phillip Morris USA, Inc., 110 Ohio St.3d 5, 2006–Ohio–2869, 850 N.E.2d 31, at ¶ 1. Plaintiffs bringing claims on behalf of a class must demonstrate that either: (1) the alleged violation is an act or practice that was declared to be deceptive or unconscionable by a rule adopted by the Attorney General before the consumer transaction on which the action is based, or (2) the alleged violation is an act or practice that was determined by a court to violate the OCSPA and the court's decision was available for inspection before the transaction took place.


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) Ohio Rev.Code Ann. § 1345.09(B). The alleged conduct must be “substantially similar” to an act or practice previously declared to be deceptive under the OCSPA in order for the action to proceed as a class. Marrone, 110 Ohio St.3d at ¶ 2.FN10 FN10. Specifically, a claim may be asserted under the OCSPA on behalf of a class of consumers only: Where the violation was an act or practice declared to be deceptive or unconscionable by rule adopted [by the Ohio Attorney General] before the consumer transaction on which the action is based, or an act or practice determined by a court of this state to violate section 1345.02, 1345.03, or 1345.031 of the Revised Code and committed after the decision containing the determination has been made available for public inspection under division (A)(3) of section 1345.05 of the Revised Code.... Ohio Rev.Code Ann. § 1345.09(B) (West 2012). Ohio courts have held that, in order to bring a claim on behalf of a putative class, a plaintiff must identify in his or her complaint the rule or case that satisfies section 1345.09(B)'s notice requirement. See Johnson v. Microsoft Corp., 155 Ohio App.3d 626, 2003–Ohio–7153, 802 N.E.2d 712, at ¶ 20 (1st Dist.) (dismissing a plaintiff's OCSPA class action because she failed to plead the requisite notice elements under section 1345.09(B)), aff'd on other grounds, 106 Ohio St.3d 278, 2005–Ohio–4985, 834 N.E.2d 791. If a plaintiff fails to identify a rule or case in his or her complaint that satisfies section 1345.09(B), dismissal of the claim as a class action is proper and the plaintiff may proceed in his or her individual capacity. See In re Porsche Cars N. Am., Inc., 880 F.Supp.2d 801, 869 (S.D.Ohio 2012); St. Clair v. Kroger Co., 581 F.Supp.2d 896, 901 (N.D.Ohio 2008); Volbers—Klarich v. Mid-

dletown Mgmt., Inc., 125 Ohio St.3d 494, 2010–Ohio–2057, 929 N.E.2d 434, at ¶ 33. Federal district court cases cannot supply the requisite notice under section 1345.09(B). See Kline v. Mortg. Elec. Sec. Sys., No. 3:09 CV 408, 2010 WL 6298271, at *6 (S.D.Ohio Dec. 30, 2010) (“[T]he Court cannot logically conclude that by referring to decisions of ‘a court of this state,’ the Ohio legislature intended to allow a federal court sitting in Ohio to define the parameters of ‘deceptive or unconscionable’ practices under Ohio's Consumer Sales Practices Act.”). *5 In their complaint, the Ohio plaintiffs do not identify any rule or decision finding the defendants' conduct, or similar conduct, deceptive. Rather, they maintain that the OCSPA does not mandate a pleading requirement, and, in their memoranda of law in support of their motion for class certification, the Ohio plaintiffs cite two cases that they claim demonstrate prior notice: Brown v. Am. Health Institute, Franklin App. No. 78 CV 0401926, Ohio Atty. Gen. P.I.F. No. 10000175 (Nov. 5, 1978), and Cordray v. The Dannon Co., Franklin Cty. Common Pleas Court, No. 10 12–18225, Ohio Atty. Gen. P.I.F. No. 10002919 (Dec. 22, 2010). According to defendants, these two case citations do not satisfy OCSPA's notice requirements. Whether or not they do, and whether any deficiency could be corrected, is a question best left to the transferor court, with its superior expertise and familiarity in the application of Ohio law and precedent. The other Ohio statute at issue, the ODTPA, proscribes certain “deceptive trade practices” such as passing off goods or services as those of another and causing likelihood of confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services. Ohio Rev.Code Ann. § 4165.02(A)(1)-(2) (West 2011). Section 4165.03 of the ODTPA confers standing on a “person who is likely to be damaged by a person who commits a deceptive trade practice” or a “person who is injured by a person who commits a deceptive trade practice.” Id. § 4165.03(A)(1) & (2). Despite this language, there is a split of authority on the question of consumer standing to bring a claim under the ODTPA. See In re Porsche Cars N. Am., Inc., 880 F.Supp.2d at 873–74 (in-


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) terpreting the ODTPA as prohibiting consumers from bringing a private cause of action) (citing Dawson v. Blockbuster, Inc., 8th Dist. No. 86451, 2006 WL 1061769, at *4 (Ohio Ct.App. Mar. 16, 2006), cert. denied, 110 Ohio St.3d 1442, 2006–Ohio–3862, 852 N.E.2d 190 (Ohio 2006)); Bower v. Int'l Bus. Machs., Inc., 495 F.Supp.2d 837, 843 (S.D.Ohio 2007) (holding that individual consumers have standing under the ODTPA); Glassner v. R.J. Reynolds Tobacco Co., No. 5:99 CV 0796, 1999 WL 33591006, at *6 (N.D.Ohio June 29, 1999) (explaining that the ODTPA “governs conduct between commercial entities, not between a commercial entity and a consumer.”). The Ohio Supreme Court has not ruled on this issue.FN11 Given the unsettled state of Ohio law, and the fact that this case will return to Ohio for final resolution at any rate, it would make little sense for this Court to weigh in on the question of whether an Ohio class may be certified under the ODTPA. FN11. In McKinney v. Bayer Corp., 744 F.Supp.2d 733, 752 (N.D.Ohio 2010), the court certified this issue to the Ohio Supreme Court, explaining that it was “particularly difficult to discern what that high Court would do.” However, the plaintiff voluntarily dismissed his ODTPA claim and the issue never reached to the Ohio Supreme Court. B. The Virgin Islands The proposed Virgin Islands class consists of all residents of the United States Virgin Islands who purchased vitaminwater since its distribution in the Virgin Islands.FN12 The Virgin Islands plaintiffs' claims arise under the Virgin Islands Unfair and Deceptive Trade Practices Act, V.I.Code Ann. tit. 12A §§ 101–110 (1973), the Virgin Islands Consumer Fraud and Deceptive Business Practices Act,FN13 V.I.Code Ann. tit. 12A §§ 301–335 (2006), and Virgin Islands common law. FN12. I note, however, that the statute of limitations for claims under the Virgin Islands Unfair and Deceptive Trade Practices Act is two years. See V.I.Code Ann. tit. 12A § 108(j) (2012) (“An

action under this section must be brought within two years after the occurrence of a violation of this chapter....”). FN13. This statute expressly provides that courts construing it must give consideration to case law interpreting the Federal Trade Commission Act, 15 U.S.C. § 45: It is unlawful for any person to engage in unfair methods of competition or unfair or deceptive trade acts or practices in the conduct of any trade or commerce. In construing this chapter, consideration must be given to the interpretations of the Federal Trade Commission and the federal courts relating to 15 U.S.C. 45 at the time of enactment of this chapter. V.I. Code Ann. § 304. *6 “Under the Virgin Islands deceptive trade practices law, ‘no person shall engage in any deceptive or unconscionable trade practice in the sale ... of any consumer goods or services....' “ Knox v. Quest Diagnostics, Inc., No.2006–97, 2012 WL 426726, at *5 (D.Vi. Feb.10, 2012) (quoting Island Insteel Sys. v. Waters, 296 F.3d 200, 212 (3d Cir.2002) (citing V.I.Code Ann. tit. 12A § 101)). In non-class actions, a consumer who suffers a loss as a result of a violation of § 101 may recover actual damages or $250, whichever is greater. V.I.Code Ann. tit. 12A § 108(b). However, under § 108(c), “[w]hether a consumer seeks or is entitled to recover damages or has an adequate remedy at law, he may bring a class action for declaratory judgment, an injunction, and appropriate ancillary relief, except damages, against an act or a practice that violates this chapter.” V.I.Code Ann. tit. 12A § 108(c) (emphasis added).FN14 The statute also requires a showing of an impact on the public interest. See Four Winds Plaza Corp. v. Caribbean Fire & Assocs., Inc., No.2005–201, 2007 WL 1795734, at *2 (D.Vi. Apr.18, 2007) (citing V.I.Code Ann. tit. 12A, § 108).


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) FN14. It thus appears that the purported Virgin Islands class would only be entitled to declaratory and injunctive relief under this statute. As the Virgin Islands plaintiffs note, the Supreme Court of the Virgin Islands first started issuing opinions in 2007. See History of the Court, Supreme Court of the United States Virgin Islands, http://www.visuprem ecourt.org/Know_Your_ Court/History_of_the_Court/index.asp (last visited July 10, 2013). Therefore, the Virgin Islands does not have a large body of precedent, and, to date, there has not been one opinion on class certification. Nor is there any case law interpreting the Virgin Islands Unfair and Deceptive Trade Practices Act so as to indicate whether individual reliance is a necessary element of a consumer protection claim,FN15 or whether deceptive labeling of a beverage would satisfy the “impact on the public interest” requirement. In other words, this case appears to raise issues of first impression under Virgin Islands law. The Virgin Islands plaintiffs, therefore, have proposed certifying unspecified questions of law to the Virgin Islands Supreme Court.FN16 FN15. The statute defines a “deceptive trade practice” as “any false or misleading oral or written statement, visual description or other representation of any kind made in connection with the same of consumer goods or services which has the capacity, tendency or effect of deceiving or misleading consumers.” V.I.Code Ann. tit. 12A § 102(a). According to the Virgin Islands plaintiffs, this is an objective “reasonable consumer” standard. (Tr. at 137.) However, there is no case law interpreting this section of the statute in the class action context or otherwise. FN16. Where the outcome of a suit in federal court turns on an unresolved issue of local law, the United States Supreme Court has encouraged federal courts to seek guidance from the highest court of the appropriate jurisdiction, if that court has adopted procedures for accepting certified questions of law. See Lehman Bros. v. Schein, 416

U.S. 386, 390–91, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). See also Banks v. Int'l Rental & Leasing Corp., 680 F.3d 296, 299 (3d Cir.2012) (certifying unsettled question of local law to the Virgin Islands Supreme Court). The Supreme Court of the Virgin Islands has adopted rules establishing a procedure to decide certified questions of Virgin Islands law. See V.I. S.Ct. R. 38. The Supreme Court of the Virgin Islands may answer questions of law certified to it by a court of the United States if there is involved in any proceeding before the certifying court a question of law which may be determinative of the cause then pending in the certifying court and concerning which it appears there is no controlling precedent in the decisions of the Supreme Court. While answering a certified question is not an adjudicative function, this Court possesses the inherent power to answer certified questions as the highest local court in this jurisdiction. Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 972 (2011) (citing the Rules of the Virgin Islands Supreme Court, V.I. S.Ct. R. 38(a).) Defendants object to certification and argue that the Virgin Islands plaintiffs cannot satisfy the elements of Rule 23. However, whether the Virgin Islands plaintiffs can satisfy the requirements of local law, and whether certification is advisable in order to reach that determination, are questions best left to the transferor court. See Conner v. Alfa Laval, Inc., 842 F.Supp.2d 791, 794 n. 4 (E.D.Pa.2012) (“When state law is unsettled and the Court is unable to predict its resolution with reasonable certainty, the Court typically remands to the transferor court for a ruling under the particular state's law.”) C. Florida


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) The purported Florida class consists of all Florida residents who purchased vitaminwater at any time during the applicable statute of limitations. The Florida plaintiffs bring their claims under the Florida Deceptive and Unfair Trade Practices Act (the “FDUTPA”), Fla. Stat. § 501.202. “[A] consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla.Dist.Ct.App.2006) (citing Chicken Unlimited, Inc. v. Bockover, 374 So.2d 96, 97 (Fla.Dist.Ct.App.1979)). *7 According to the Court of Appeals for the Eleventh Circuit, the FDUTPA does not require individualized proof of subjective reliance. See Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1283 (11th Cir.2011) (explaining that a plaintiff asserting a FDUTPA claim “need not show actual reliance on the representation or omission at issue”) (citation omitted); see also State v. Commerce Commercial Leasing, LLC, 946 So.2d 1253, 1258 (Fla.Dist.Ct.App.2007) (“A deceptive or unfair trade practice constitutes a somewhat unique tortious act because, although it is similar to a claim of fraud, it is different in that, unlike fraud, a party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue.”) (quotation omitted); Davis v. Powertel, Inc., 776 So.2d 971, 973 (Fla.Dist.Ct.App.2000) (“A party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue.”). Thus, in Fitzpatrick, the court upheld class certification for claims about the alleged digestive health benefits of Yo–Plus yogurt. The court held that, under the FDUTPA, “ ‘whether that allegedly deceptive conduct would deceive an objective reasonable consumer [was a] common issue[ ] for all the putative class members, amenable to classwide proof.’ “ Fitzpatrick, 635 F.3d at 1283 (quoting Fitzpatrick v. General Mills, Inc., 263 F.R.D. 687, 699 (S.D.Fla.2010)). It went on to explain that, “should the class prevail on the liability issue, each putative class member would only need to show that he or she paid a premium for YoPlus to be entitled to damages under the

FDUTPA.” Id. However, there appears to be a split in the Florida courts regarding the interaction of the reliance and causation elements of an FDUTPA claim, and some Florida courts have required that plaintiffs present individualized proof in order to satisfy the FDUTPA's causation element. See, e.g., Miami Auto. Retail, Inc. v. Baldwin, 97 So.3d 846, 857 (Fla.Dist.Ct.App.2012) (noting that the “FDUTPA requires proof of each individual plaintiff's actual (not consequential) damage and defendant's causation of damage”); Rollins, Inc., 951 So.2d at 871–75 (reversing the trial court's certification of a class of purchasers of termite-extermination services and finding that class-wide proof of causation would be impossible; rejecting plaintiff's argument that the “diminished market value” of the service due to false advertising could be proven on a class-wide basis); Hutson v. Rexall Sundown, Inc., 837 So.2d 1090, 1092–93 (Fla.Dist.Ct.App.2003) (holding that the typicality requirement was not satisfied where some putative class members had no FDUTPA claims because they were not deceived and, therefore, suffered no damages).FN17 FN17. The defendants also rely heavily on Tire Kingdom, Inc. v. Dishkin, 81 So.3d 437, 446–47 (Fla.Dist.Ct.App.2011). (See Defs.' Mem. of Law in Opposition to Florida Pls.' Motion for Class Certification, dated Aug. 2012.) I note that the decision in Dishkin was quashed by the Florida Supreme Court in Soper v. Tire Kingdom, Inc., ––– So.3d ––––, 2013 WL 264441, 38 Fla. L. Weekly S37 (Fla. Jan 24, 2013), on grounds unrelated to an interpretation of the FDUPTA, and is no longer good law. The Florida Supreme Court has not addressed this issue directly, but at least one federal court recently disagreed with Fitzpatrick's interpretation of the FDUTPA on the ground that “causation typically requires individualized proof.” In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., Nos. 05 C 4742, 05 C 4744, 2012 WL 1015806, at *10 (N.D.Ill. Mar.22, 2012) . FN18 Rather


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) than engage in the risky exercise of predicting whether the Florida Supreme Court would adopt the approach of Fitzpatrick or that of Sears, this Court finds that this issue is best left to the transferor court, with superior expertise and familiarity in the application of Florida law.FN19 FN18. The court in Sears distinguished Fitzpatrick from the case before it—which involved “thousands of different Craftsman tools” and many different advertisements—on the ground that “Fitzpatrick involved one product, Yo—Plus, and the allegedly false claim that Yo–Plus had a unique digestive health benefit was ‘communicated in one way or another to every purchaser of Yo–Plus in Florida.’ “ Sears, 2012 WL 1015806, at *10 (quoting Fitzpatrick v. Gen. Mills, Inc., 263 F.R.D. 687, 694 (S.D.Fla.2011)). Nevertheless, it concluded that: It is our view that the Florida Supreme Court would take the same approach as recent Florida appellate court decisions and require a plaintiff to show that the alleged misrepresentation actually caused him harm. To do otherwise in the name of the general principle that the FDUTPA does not require reliance would, in effect, remove its causation requirement. Each plaintiff in [the] putative class will have to show that the alleged “Made in USA” misrepresentation caused him or her damage, which would necessitate individualized proof. Accordingly, the proposed Florida class suffers from the same problems we previously identified. It is overbroad because it contains a great many individuals who were not deceived and could not have been injured, and plaintiff has not shown that his claim is typical of those of the putative class. In addition, individual questions of causation will continue to predominate despite the FDUTPA's lack of a reliance requirement. Id. at *11.

FN19. Whether or not it would be advisable to certify this question to the Florida Supreme Court is also an issue best reserved for the transferor court. D. Illinois *8 The Illinois class consists of all Illinois residents who purchased vitaminwater at any time from December 2007 to the present. The Illinois class brings its claims under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 Ill. Comp. Stat. Ann., 505/2 (1993), which makes it unlawful to use deception or fraud in the conduct of trade or commerce, FN20 and for unjust enrichment under Illinois law. FN20. The statute provides: Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of [specified practices] in the conduct of any trade or commerce are hereby declared unlawful ....“ 815 Ill. Comp. Stat. Ann. 505/2 (footnotes omitted). The ICFA provides a right of action for a person who suffers “actual damage” as a result of a violation. 815 Ill. Comp. Stat. Ann. 505/10a(a). The actual damage element of a private ICFA action requires that the plaintiff suffer “actual pecuniary loss.” Mulligan v. QVC, Inc., 382 Ill.App.3d 620, 321 Ill.Dec. 257, 888 N.E.2d 1190, 1197 (Ill.App.Ct.2008). Actual loss may occur if the seller's deception deprives the plaintiff of “the benefit of her bargain” by causing her to pay “more than the actual value.”


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) Id. at 1197–98. FN21

under the ICFA. Clark, 256 Fed. App'x at 822–23.

FN21. In Mulligan, defendant QVC listed its actual sales prices next to substantially higher but allegedly fictitious “retail values,” creating the false impression that customers were getting a better deal than they really were. Mulligan, 321 Ill.Dec. 257, 888 N.E.2d at 1192–93. A customer lured in by this comparative pricing sued QVC under the ICFA, but the Illinois Appellate Court concluded that she had not suffered actual damages. The plaintiff “agreed to purchase ... items for a certain price” and could not show “that the value of what she received was less than the value of what she was promised.” Id. at 1197. It is well-established that a claim under the ICFA contains five elements: “(1) a deceptive act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and actual damage to the plaintiff (5) proximately caused by the deception.” Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 296 Ill.Dec. 448, 835 N.E.2d 801, 856 (Ill.2005) (citation omitted). Furthermore, “in a case alleging deception under the [Consumer Fraud] Act, it is not possible for a plaintiff to establish proximate causation unless the plaintiff can show that he or she was, ‘in some manner, deceived’ by the misrepresentation.” Id. at 861 (citation omitted). “Satisfaction of this element requires individualized proof.” Clark v. Experian Information Solutions, Inc., 256 Fed. App'x 818, 821 (7th Cir.2007) (upholding denial of class certification because of the need for individualized findings under the IFCA).FN22 FN22. The plaintiffs in Clark claimed that an online credit protection service concealed the need to timely cancel long-term contracts if a subscriber wished to discontinue service. The court held that, while the notice was not prominently displayed, there was some disclosure on the Internet website, necessitating individual proofs of deceptiveness, reliance and damages

In Oshana v. Coca—Cola Co., 472 F.3d 506 (7th Cir.2006), the court considered and rejected the argument that per se deceptiveness absolves a plaintiff from making individualized proof of proximate cause under the ICFA. See id. at 513–15. It also concluded that a class of consumers who bought fountain Diet Coke was not ascertainable. Id. at 514–15 (citing 815 Ill. Comp. Stat. 505/10a; Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (Ill.2002)). See also Siegel v. Shell Oil Co., 612 F.3d 932, 935–36 (7th Cir.2010) (individualized inquiries regarding “why a particular plaintiff purchased a particular brand of [the product]” were necessary to establish harm to each class member under the ICFA and, thus, common issues could not predominate); Lipton v. Chattem, No. 11–C–2952, 2013 WL 489147, at *5 (N.D.Ill. Feb.8, 2013) (deceptive labeling and resulting damages could not be proved on a classwide basis where proposed class included individuals who were not deceived, or were deceived but would have purchased the product anyway); Korsmo v. Am. Honda Motor Co., No. 11 C 1176, 2012 WL 1655969, at *5 (N.D.Ill. May 10, 2012) (allegedly misleading and deceptive use of the phrase “Honda Certified Used Cars” did not support class certification because “individual inquiries would be necessary to determine each buyer's motivations for buying a Honda Certified Used Vehicle and which buyers, if any, were deceived by the use of the phrase[.]”); Kitzes v. Home Depot U.S.A., Inc., 374 Ill.App.3d 1053, 313 Ill.Dec. 293, 872 N.E.2d 53, 61–62 (Ill.App.Ct.2007) (denying class certification on the ground that individual inquiries were necessary to identify whether proposed class members actually purchased the product at issue from Home Depot); Barbara's Sales, Inc. v. Intel Corp., 227 Ill.2d 45, 316 Ill.Dec. 522, 879 N.E.2d 910, 927 (Ill.App.Ct.2007) (explaining that plaintiffs in a class action brought under the ICFA must prove that “each and every consumer who seeks redress actually saw and was deceived by the statements in question” and reversing class certification because the plaintiffs could not demonstrate that they were, as a class, deceived by defendants' representations concerning their computers).


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*9 The Illinois plaintiffs reject the notion that individual reliance is a necessary element of their ICFA claim. In fact, Illinois courts have certified classes asserting violations of the ICFA, where the defendant engaged in “uniform” conduct toward the class, and the successful adjudication of the named plaintiff's claims would establish a right to recovery for all class members. See, e.g., S37 Mgmt., Inc. v. Advance Refrigeration Co., 356 Ill.Dec. 172, 961 N.E.2d 6, 16 (Ill.App.Ct.2011) (defendant's uniform collection of a “government processing” charge in every invoice justified class certification); P.J.'s Concrete Pumping Serv., Inc. v. Nextel W. Corp., 345 Ill.App.3d 992, 281 Ill.Dec. 399, 803 N.E.2d 1020, 1030 (Ill.App.Ct.2004) (“The primary factual issue in this case is a uniform billing practice that allegedly violated the Consumer Fraud Act in the same manner as to all class members. The propriety of such a uniform practice is amendable to being resolved in a class action.”). See also Phillips v. Ford Motor Co., No. 99–L–1041, 2003 WL 23353492, at *5 n. 7 (Ill.Cir.Ct. Sept.15, 2003) (explaining that, although causation is one of the elements of a claim under the ICFA, there is no mandate “that every attempt to certify a consumer fraud class must fail due to the need for individualized proximate cause hearings” and “innumerable ICFA class actions have been certified (and upheld) without requiring individualized showings of proximate causation.”) Moreover, courts are to liberally construe the ICFA. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584, 594 (Ill.1996). In short, whether or not the alleged misrepresentations in this case were sufficiently uniform to satisfy Illinois law is a question best reserved for the transferor court. II. Pending Motions Regarding Expert Reports The plaintiffs have moved to exclude the expert reports of Stephen G. Swisdak, Carol A. Scott, Ph.D., and Elizabeth Applegate, Ph.D., submitted in opposition to plaintiffs' motions for class certification. Mr. Swisdak is a historian who was asked to conduct research into “knowledge widely available to the public in certain media areas concerning the sugar content, calorie content, and

recommended serving size of vitaminwater.” FN23 (See Expert Report of Stephen G. Swisdak, attached as Ex. N to the Declaration of Isaac Nesser, Esq., dated Aug. 24, 2012 (“Nesser Decl.”).) Dr. Scott is an expert on consumer surveys, who was asked to conduct research into commercial information about vitaminwater and consumers' reasons for purchasing it.FN24 (See Expert Report of Carol A. Scott, Ph.D., attached as Ex. L to the Nesser Decl.) Dr. Applegate is an expert on nutrition and is a tenured faculty member at the University of California, Davis.FN25 (See Expert Report of Elizabeth Applegate, Ph.D., attached as Ex. K to the Nesser Decl.) Whether or not these reports are relevant to the motions for class certification, or should be excluded for other reasons,FN26 can be determined by each of the transferor courts. FN23. In his report, Mr. Swisdak concludes that, in his “expert historical opinion,” the “average consumer had multiple opportunities, through multiple media formats in both national and local media sources, to be exposed to information about the sugar and caloric content of vitaminwater, as well as the fact that a bottle of vitaminwater contained 2 1/2 servings. (Nesser Decl., Ex. N.) FN24. Dr. Scott's survey sought to determine why consumers purchase vitaminwater, what attributes about the product are most important to them, and consumers' perceptions of marketing on the label and in other promotional materials. The survey also obtained information on vitaminwater pricing and consumers' awareness of the prevalence of vitaminwater advertising on television, magazines, newspapers, and on social media such as Facebook. (Nesser Decl., Ex. L.) FN25. Dr. Applegate offers the opinions that: (1) the “majority of individuals seeking healthier food and beverage choices utilize the Nutrition Facts Panels and ingredients lists on product labels,” and (2) notions of what is “healthy” vary, and what can be healthy for one person might not


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.)) be for another. (Nesser Decl., Ex. L.) FN26. Plaintiffs' primary argument, at least with respect to Dr. Scott, is that this expert evidence goes to the merits of this case and should not be considered on a motion for class certification. If the Court intends to consider it, plaintiffs request further discovery. (See, e.g., Tr. at 170–80.) CONCLUSION *10 In sum, the pending motions confirm that a suggestion of remand is appropriate at this time. While the substance of the motions undeniably overlaps in some respects, the motions raise many case specific state law issues, which can best be resolved by courts in the states where plaintiffs' claims arose.FN27 The fact that the plaintiffs' claims have some degree of commonality is not a sufficient reason to keep the tag-along actions here. This Court does not believe it has obtained “any particular expertise ... from supervising this litigation” that would render it more capable than the transferor courts of disposing of the pending motions. See In re Air Crash Disaster Near Dayton, Ohio, 386 F.Supp. 908, 909 (J.P.M.L.1975) (per curiam); accord, e.g., In re King Res. Co. Sec. Litig., 458 F.Supp. 220, 221 (J.P.M.L.1978) (per curiam). FN27. The defendants raise numerous additional issues with respect to the plaintiffs' various state law claims. This suggestion of remand does not purport to identify all of them.

Moreover, while the pending motions for class certification have been fully briefed and argued, “it is not contemplated that a Section 1407 transferee judge will necessarily complete all pre-trial proceedings in all actions transferred and assigned to him [or her] by the Panel.” In re State St. Bank & Trust Co. Fixed Income Funds Inv. Litig., MDL No.1945, 2011 WL 1046162, at *4 (S.D.N.Y. Mar.22, 2011) (suggesting remand of actions transferred from Texas where remaining issues involved only application of Texas law.). FN28 FN28. In fact, courts routinely suggest remand even where there are pending dispositive motions, see, e.g., In re State St., 2011 WL 1046162, at *4–6 (suggesting remand notwithstanding pending motions for summary judgment); In re Ford Motor Co. Bronco II Prod. Liab. Litig., MDL No. 991, 1998 WL 308013, at *2 & n. 11 (E.D.La. June 8, 1998) (same). The Panel has repeatedly remanded cases under such circumstances. See, e.g., In re Baseball Bat Antitrust Litig., 112 F.Supp.2d 1175, 1177 (J.P.M.L.2000) (remanding cases despite pending motions to dismiss in transferee court); In re Evergreen Valley Project Litig., 435 F.Supp. 923, 924 (J.P.M.L.1977) (per curiam) (same). Based on the foregoing, and all the files, records, and proceedings herein, the undersigned respectfully suggests to the Panel that the below-listed actions be remanded to their original courts:

Case Name

EDNY Case No.

Transferor Court

Cook, et al. v. Coca–Cola Co., et al.

11–cv–925

S.D. Fla.

St. Juste, et al. v. Coca–Cola Co., et al.

11–cv–926

D. Virgin Islands

Volz, et al. v. Coca–Cola Co., et al.

11–cv–927

S.D. Ohio


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Slip Copy, 2013 WL 3490349 (E.D.N.Y.) (Cite as: 2013 WL 3490349 (E.D.N.Y.))

Khaleel v. Coca–Cola. Co., et al.

11–cv–996

N.D. Ill.

E.D.N.Y.,2013. In re Glaceau Vitaminwater Marketing and Sales Practice Litigation Slip Copy, 2013 WL 3490349 (E.D.N.Y.) END OF DOCUMENT


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EXHIBIT C


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Page 1 Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.))

Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division. In re SEARS, ROEBUCK & CO. TOOLS MARKETING AND SALES PRACTICES LITIGATION. Jeffrey Greenfield, individually and on behalf of all others similarly situated, Plaintiff, v. Sears, Roebuck & Co., Defendant. No. MDL–1703. Nos. 05 C 4742, 05 C 4744. March 22, 2012. MEMORANDUM OPINION JOHN F. GRADY, District Judge. *1 Before the court are two motions: (1) the motion of defendant Sears, Roebuck & Company to dismiss Count II of plaintiff Jeffrey Greenfield's first amended class action complaint; and (2) the motion of plaintiff for certification of a Florida class. For the reasons discussed below, defendant's motion is granted, and plaintiff's motion is denied. BACKGROUND In this multidistrict litigation (“MDL”), plaintiffs claim that defendant Sears, Roebuck & Company (“Sears”) deceptively advertised its line of “Craftsman” tools as manufactured in the United States when in fact many of the tools are foreign-made or contain significant foreign parts. This is the last remaining member case of the MDL pending before this court. The procedural history of these cases is as follows: There are seven “member cases” that are or were part of this multidistrict litigation filed in or trans-

ferred to this court for pretrial proceedings. Four of them—Cyr (05 CV 2627), Chatham (05 CV 2852), Hutson (05 CV 4745), and Tidwell (05 CV 5881)—were voluntarily dismissed. We remanded another—Santamarina (05 CV 4743)—to the California state court. Most of the rulings we have issued have been in Anderson (05 CV 2623). In December 2007, we issued an opinion denying plaintiffs' first motion for class certification. In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., Nos. 05 CV 4742 & 05 CV 2623, 2007 WL 4287511 (N.D.Ill.Dec.4, 2007). Plaintiffs defined the putative class as “[a]ll persons and entities throughout the United States” who purchased one or more Craftsman tools that were not all or virtually all made in the United States. They sought certification of a nationwide class for their unjust enrichment claims and an undefined set of classes or subclasses under the laws of seven states-Alabama, Ohio, Pennsylvania, Indiana, Connecticut, Texas, and Minnesota-for their consumer fraud claims. We denied certification for a number of reasons, including the overbreadth of the proposed classes, lack of typicality, and lack of predominance. Subsequently, plaintiffs again amended their complaint, and after some of the named plaintiffs were dismissed, the remaining plaintiffs were Stephen Jolley, a Pennsylvania citizen, and Curtis Oates, an Indiana citizen. Jolley moved for certification of a Pennsylvania class, and Oates moved for certification of an Indiana class. In October 2009, we issued an opinion denying those motions. In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., Nos. 05 CV 4742 & 05 CV 2623, 2009 WL 3460218 (N.D.Ill. Oct.20, 2009). We rejected the proposed classes because they were materially identical to the classes plaintiffs had previously proposed, plaintiffs made no attempt to distinguish our prior ruling, and none of plaintiffs'


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) new arguments were persuasive. Some months later, Jolley and Oates reached a settlement with Sears, and by agreement of the parties, we entered an order on August 16, 2010 dismissing those two plaintiffs' claims with prejudice. *2 Plaintiffs' counsel then shifted their efforts to Greenfield (05 CV 4744), the seventh case pending in the MDL; it had been dormant since its filing in 2005. Greenfield, who seeks to represent classes of Florida purchasers of Craftsman tools, filed an amended complaint on August 18, 2010. In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., No. 05 CV 4742, 2011 WL 2745772, at *3 (N.D.Ill. July 11, 2011) (footnotes omitted). Greenfield's complaint is titled “First Amended Class Action Complaint.” Greenfield is a Florida resident who alleges that in 2004, he bought a Craftsman ratcheting screwdriver from the Sears store in Aventura, Florida that “did not qualify to be marketed as Made in the USA.” (Am.Compl.¶¶ 6–7, 64.) He alleges that “[s]urrounding the tool was in-store signage which [he] recalls stated the following: Craftsman Quality, Guaranteed for life, Made in the USA, only $19.95.” He also alleges that he “saw print advertisements, in-store signage, television commercials (including ones with Bob Vila and AJ Foyt) and markings on Craftsman tools, all of which stated that Craftsman products are ‘made in the U.S.A.’ “ and that he purchased his tool believing that all Craftsman tools were made in the U.S.A. (Am.Compl.¶ 6.) The complaint further alleges that in the year 2000, approximately 20 percent of Craftsman products were not made in the United States, and by 2005, this number had increased to 70 percent. (Am.Compl.¶ 41.) Sears had conducted and was aware of research showing that consumers believed that “Made in USA” was a significant attribute of Craftsman tools. (Am.Compl.¶¶ 42–44.) In addition:

Sears knew that if it became known that its Craftsman products were not made in the U.S.A., then it would be forced to reduce its prices and profit margins on Craftsman to be in line with other manufacturers. Sears decided not to correct the misconception its customers had about the origin of its Craftsman products because such a disclosure would cost it money. Sears chose not to make it known that such a high percentage of its tools were not made in the U.S.A., despite the actual knowledge that its customers believed Craftsman products were made in the U.S.A., because such a disclosure would force Sears to reduce the profit margin on its Craftsman line of products. (Am.Compl.¶¶ 47–49.) Greenfield asserts claims for violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Count I), breach of warranty under the Magnuson–Moss Warranty Act (Count II), and unjust enrichment (Count III). He seeks certification of a class of Florida plaintiffs. Sears moves for dismissal of Count II. DISCUSSION A. Defendant's Motion to Dismiss Count II In Count II, Greenfield alleges that Sears made false “express warranties” and “express representations” in its advertising and on some of its Craftsman packaging that Craftsman tools were “Made in the USA.” (Am.Compl.¶¶ 111–114.) According to Greenfield, these “Made in USA” representations “constituted warranties that because the Craftsman tools were made in America and by American workers, they were of higher quality than tools made outside America,” Am. Compl. ¶ 117, and because they


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) were false, violated the MagnusonMoss Warranty Act, 15 U.S.C. § 2301 et seq. (the “Act”). The Act provides that “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief.” 15 U.S.C. § 2310(d) (1). *3 In Anderson (to which we have also referred as Chatham ), 05 C 2623, we issued an opinion granting Sears's motion to dismiss, among other claims, the plaintiffs' Magnuson–Moss claim. In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., Nos. 05 CV 4742 & 05 CV 2623, 2006 WL 1443737, at *3–4 (N.D.Ill. May 17, 2006). We agreed with Sears that the “Made in USA” representation does not meet the Act's definition of a “written warranty,” which is as follows: A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or (B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product. 15 U.S.C. § 2301(6). In our opinion, we held: Sears maintains that the phrase “Made in USA”

does not constitute a “written warranty” because it does not affirm or promise that the material or workmanship is defect-free or will perform at a specified level over a specified time. We agree. The phrase is a product description that does not inform consumers that the tools are defect-free or make any representation about performance at a specified level over a specified time. We are unpersuaded by plaintiffs' curious (and unsupported) argument that “Made in USA” is a representation that the tool will have a “lifetime level of performance.” Although the phrase does arguably relate to the “nature” of the material or workmanship, it fails to satisfy the defect-free/performance prong of § 2301(6)(A). 2006 WL 1443737, at *4 (citation omitted). In his brief in response to the instant motion, plaintiff persists in maintaining that the “ ‘specified level of performance over a specified period of time’ is that the Craftsman products are ‘Made in America’ which must be a lifetime level of performance, as the American workmanship of a product cannot change over time from American made to made in China.” (Pl.'s Opp'n to Def.'s Mot. to Partially Dismiss the Am. Compl. at 4.) We remain unpersuaded. Plaintiff would have us ignore the plain language of the Act, which requires an affirmance of a specified level of performance and a specified period of time. “Made in the USA” is not a representation that satisfies this subsection (A) requirement. Nor does it meet subsection (B)'s requirement of a written “undertaking ... to refund, repair, replace, or take other remedial action.” No action whatsoever is promised. *4 Plaintiff contends that even if the phrase “Made in USA” does not constitute a written warranty, he “should be allowed to pursue a claim for breach of implied warranty under the Act.” (Pl.'s Opp'n at 6.) This argument strikes us as deliberately vague. It is unclear whether it is an assertion that the complaint adequately alleges a breach of implied warranty, or, rather, a concession that it does not al-


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) lege such a breach, coupled with a request to amend the complaint. Plaintiff does not explicitly seek to amend the complaint. Either way, the argument fails. In his response brief, plaintiff maintains that Sears breached the implied warranty of merchantability arising under Florida law, but nowhere in the complaint is this breach of implied warranty alleged. And it is far too late in this litigation to permit an amendment to the complaint. In 2006, plaintiffs made the same argument that the phrase “Made in USA” constitutes an “implied” warranty, and we rejected it, stating that we did not understand how the phrase could be both an express and an implied warranty. Black's Law Dictionary defines an “implied warranty” as “[a]n obligation imposed by the law when there has been no representation or promise.” Black's Law Dictionary 1725 (9th ed.2009). Plaintiff's claim is based on an express representation, and he makes no effort to address our prior ruling. Even if Greenfield's complaint adequately alleged a breach of an implied warranty under the Act, the claim would nonetheless fail because plaintiff has not alleged that he provided Sears with the requisite “reasonable opportunity to cure” the alleged failure to comply with a warranty obligation. The Act provides in pertinent part: No action (other than a class action or an action respecting a warranty to which subsection (a)(3) of this section applies) may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty or service contract, and a class of consumers may not proceed in a class action under such subsection with respect to such a failure except to the extent the court determines necessary to establish the representative capacity of the named plaintiffs, unless the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure to comply. In the case of such a class action (other than a class action respecting a warranty to which subsection (a)(3) of this section

applies) brought under subsection (d) of this section for breach of any written or implied warranty or service contract, such reasonable opportunity will be afforded by the named plaintiffs and they shall at that time notify the defendant that they are acting on behalf of the class. In the case of such a class action which is brought in a district court of the United States, the representative capacity of the named plaintiffs shall be established in the application of rule 23 of the Federal Rules of Civil Procedure. *5 15 U.S.C. § 2310(e) (emphasis added); see also Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d 611, 618 (11th Cir.2001) (“[P]rior to bringing suit for breach of warranty [under the Act], a consumer must give persons obligated under the warranty a reasonable opportunity to ‘cure’ the failure to comply with the obligations at issue.”). Plaintiff argues that pursuant to the language of § 2310(e), “a class action may be filed without notice and opportunity to cure.” (Pl.'s Opp'n at 8.) That is true; the statute allows a Magnuson–Moss class action to be brought before the defendant is given an opportunity to cure (only to the point of establishing the named plaintiffs' representative capacity), but plaintiff did not file a Magnuson–Moss class action, which requires at least one hundred named plaintiffs. 15 U.S.C. § 2310(d). As Sears points out, Count II is brought as an individual-consumer claim, which must comply with the pre-filing opportunity to cure requirement. Plaintiff submits that even if he was not exempted from having to afford Sears a reasonable opportunity to cure, he satisfied this requirement by sending Sears a letter on February 28, 2006, four years before he amended his complaint to add the Magnuson–Moss claim. (Pl.'s Opp'n at 10 & Ex. 1.) The letter is attached to plaintiff's brief. This argument misses the mark. The complaint fails to allege that plaintiff provided Sears with an opportunity to cure, and it does not mention the letter. We will not permit amendments


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) to the complaint at this juncture. Moreover, plaintiff cannot rely on the letter to demonstrate notice because it did not comply with the notice requirements of Fla. Stat. Ann. § 672.607(3)(a), which the parties agree is applicable. The statute, a UCC provision, provides that the “buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” This provision is supplemented by a comment 4, which states: “The content of the notification need merely be sufficient to let the seller know that the transaction is still troublesome and must be watched.... The notification which saves the buyer's rights under this Article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation.” The letter plaintiff relies upon does not meet even this minimum standard because it fails to identify any “transaction” or product that allegedly involved a breach. The purportedly defective Craftsman tool that Greenfield bought is not identified in the letter, and the complaints on file at the time did not identify any particular tool that Greenfield had bought. Because plaintiff has failed to state a claim for breach of warranty under the Magnuson–Moss Warranty Act, Count II will be dismissed. B. Plaintiff's Motion for Class Certification Federal Rule of Civil Procedure 23 allows a member of a class to sue as a representative of the class only if (1) joinder of all members is impractical because the class is so numerous, (2) questions of law or fact are common to the class, (3) the representative's claims are typical of those of the class, and (4) the representative will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). “All of these elements are prerequisites to certification; failure to meet any one of them precludes certification as a class.” Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). *6 The plaintiff also must show that the action is

maintainable under one of the three categories of Rule 23(b). Here, class certification is sought under Rule 23(b)(3), which requires that common questions of law or fact predominate over questions affecting only individual members and that a class action is the best method for fairly and efficiently adjudicating the controversy. The movant bears the burden of proving that all of Rule 23's requirements are satisfied. Trotter v. Klincar, 748 F.2d 1177, 1185 (7th Cir.1984). That is, “he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). “Class certification requires a rigorous investigation into the propriety of proceeding as a class....” Livingston v. Associates Fin., Inc., 339 F.3d 553, 558 (7th Cir.2003); see also Dukes, 131 S.Ct. at 2551. On a motion for class certification, we need not necessarily accept the plaintiff's allegations as true. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675–76 (7th Cir.2001). A court “may not refuse to certify a class on the ground that it thinks the class will eventually lose on the merits,” Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 480 (7th Cir.2002), but where a question of suitability for class treatment overlaps with a merits question, we must “make a preliminary inquiry into the merits,” Szabo, 249 F.3d at 676. See also Dukes, 131 S.Ct. at 2551 (“Frequently [the required] ‘rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.”). As explained above, we denied plaintiffs' previous motions for class certification. In their first motion, plaintiffs defined the putative class as “[a] ll persons and entities throughout the United States” who purchased one or more Craftsman tools that were not all or virtually all made in the United States. They sought certification of a nationwide class for their unjust enrichment claims and an undefined set of classes or subclasses under the laws of seven states for their consumer fraud claims. 2007 WL 4287511, at *4.


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) In the second and third motions, plaintiffs used largely the same definition with geographical and temporal limitations, defining the putative classes as “all persons” who purchased one or more Craftsman tools in Pennsylvania or Indiana between January 1, 2000 and December 2, 2004, that were not all or virtually all made in the United States. 2009 WL 3460218, at *4. In both of our decisions on plaintiffs' motions, we held that class treatment was not appropriate for several reasons. The proposed classes were wildly overbroad; they included persons who could not prove deception due to the fact that they (1) bought Craftsman tools but never saw any Craftsman advertising; (2) bought the tools but never saw Craftsman “Made in USA” advertising; or (3) bought the tools with the knowledge that they were not made in the United States. We followed the reasoning of Oshana v. Coca–Cola Co., 472 F.3d 506 (7th Cir.2006), in which the plaintiff brought unjust enrichment and statutory consumer fraud claims based on the Coca–Cola Company's alleged failure to disclose that fountain Diet Coke and bottled Diet Coke were not identical products. The Seventh Circuit noted that both of these claims required proof that the plaintiff was deceived. Id. at 513–15. Because plaintiff's class definition required only the purchase of a fountain Diet Coke and therefore could include millions of people who were not deceived and could not show any damage, let alone damage proximately caused by the alleged deception, the Seventh Circuit affirmed the district court's holding that the proposed class was improper. Here, as in Oshana, plaintiffs' proposed class definition was improper; it included many class members who were not deceived and therefore could not have suffered any damage. Another reason for denying class certification was plaintiffs' failure to demonstrate that their claims were sufficiently typical of the putative class. The evidence is that advertising for Craftsman tools varies greatly and is disseminated through a host of different media; plaintiffs themselves alleged that they saw or heard a number of different Craftsman advertisements. The putative class

was exposed to a varied mix of representations, communicated through different channels and absorbed in different ways and to different degrees, and causation would also be different for each plaintiff; therefore, typicality was lacking. We also held that plaintiffs failed to satisfy the predominance requirement because the bulk of the proof on both the consumer fraud and unjust enrichment claims would relate to individual factual issues such as reliance and causation. *7 Greenfield now seeks certification of a Florida class. The proposed class consists of “[a]ll persons in Florida who, between May 2000 and the present, purchased in Florida one or more Craftsman tool(s) that were not all or virtually all ‘Made in USA.’ “ (Pl.'s Mem. in Supp. of Mot. for Class Certification at 1.) FN1 Except for the geographical limitation and the expanded time frame, this class definition is identical to the definition we previously rejected in our 2009 opinion. But plaintiff maintains that the landscape has changed: “[B]ecause reliance is not an element of a claim under FDUTPA, and because Florida common law regarding breach of warranty and unjust enrichment claims also eliminate issues of reliance, the concerns expressed by this Court regarding the scope of the class, typicality, predominance and superiority in previous rulings on class certification of related litigations are not at issue here.” (Pl.'s Mem. at 1.) FN1. This definition is for “Class 1” as set forth in paragraph 83 of the amended complaint. Excluded from the class are Sears, its subsidiaries, parents, divisions, or affiliates, and its officers and directors. Paragraph 83 of the amended complaint also defines a “Class 2”: “All persons in Florida who, between May of 2000 and the present, purchased in Florida one or more Craftsman tool(s) and who paid more than the price Sears would have charged had it been known that Craftsman tools were not


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) all or substantially all Made in the USA.” In an order entered on September 23, 2011, we granted Sears's motion to strike the Class 2 allegations from the complaint because plaintiff declined our invitation to file an amended class certification motion that would include a request to certify Class 2, and we will not permit any further motions for class certification in these proceedings. We will begin, then, with an analysis of the FDUTPA and the case law interpreting the statute. The FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla. Stat. Ann. § 501.204. It provides: “In any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages, plus attorney's fees and court costs ....“ Fla. Stat. Ann. § 501.211. The parties agree that there are three elements of a claim for damages under the FDUTPA: 1) a deceptive act or unfair practice; 2) causation; and 3) actual damages. See, e.g., Wright v. Emory, 41 So.3d 290, 292 (Fla.Dist.Ct.App.2010); Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1140 (Fla.Dist.Ct.App.2008). They disagree, however, about what Florida law requires a plaintiff to prove in order to satisfy these elements-most importantly, causation. Plaintiff maintains that “subjective individualized proof of reliance and causation is not required under FDUTPA” (Pl.'s Mem. at 16), relying on a line of cases holding that plaintiffs need not prove actual reliance on an allegedly deceptive act or practice, but merely that the practice was “likely to deceive a consumer acting reasonably in the same circumstances.” See Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla.Dist.Ct.App.2000).FN2 According to plaintiff, the class members can also prove causation collectively by making this same showing that the alleged deceptive conduct “would in theory deceive an objective

reasonable consumer.” (Pl.'s Mem. at 24.) Sears, on the other hand, contends that because the circumstances of the alleged deception are not the same for all putative class members, collective proof cannot be used to demonstrate causation. FN2. In Davis, a Florida state appellate court reversed the trial court's denial of certification of a class of plaintiffs who alleged that the defendant, a cellular-phone company, sold phones without disclosing the fact that they had been modified to work only on the company's network. 776 So.2d at 972–73. The appellate court held that proof of reliance was unnecessary under the FDUTPA and that because the alleged deceptive practice reduced the phones' value, issues of causation and damages would be common to all members of the class. Id. at 974–75. Each party can find support for its position in relevant case law .FN3 Plaintiff relies primarily on federal-court decisions interpreting the FDUTPA: Fitzpatrick v. General Mills, Inc., 635 F.3d 1279 (6th Cir.2011) ( “Fitzpatrick II” ); Fitzpatrick v. General Mills, Inc., 263 F.R.D. 687 (S.D.Fla.2010) (“Fitzpatrick I”); and Nelson v. Mead Johnson Nutrition Co., 270 F.R.D. 689 (S.D.Fla.2010). FN3. In his opening brief, plaintiff fails to acknowledge the split in authority; he states that “Florida law is clear that reliance it [sic] not an element of a claim and causation is judged on an objective standard with regard to the entire class.” (Pl.'s Mem. at 23.) *8 In Fitzpatrick I, the district court granted class certification on an FDUTPA claim that was based on the allegation that General Mills falsely claimed that its yogurt, Yo–Plus, aided in promoting digestive health in ways that other yogurt did not. The district court held that “to satisfy the FDUTPA's causation


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) requirement, each plaintiff is required to prove only that the deceptive practice would-in theory-deceive an objective reasonable consumer,” acknowledging case law to the contrary but explaining that it was bound by an earlier Eleventh Circuit ruling. 263 F.R.D. at 694–95 (citing Cold Stone Creamery, Inc. v. Lenora Foods I, LLC, 332 F. App'x 565, 567 (11th Cir.2009)). In Fitzpatrick II, the Eleventh Circuit agreed with the district court's analysis. 635 F.3d at 1283.FN4 FN4. The Court of Appeals vacated the district court's class certification order only because the definition of the class the district court certified appeared to erroneously require a showing of individual reliance. 635 F.3d at 1283. In Nelson, plaintiff claimed that defendant Mead Johnson & Company had violated the FDUTPA by falsely claiming that Enfamil Lipil infant formula was the only baby formula that contained two nutrients essential to brain and eye development. The district court granted the plaintiff's motion for class certification, and on the issue of causation, held that the class members would not be required to “submit individualized proof to establish causation.” 270 F.R.D. at 697. In a footnote, the court noted the split in the Florida courts regarding the interaction of the reliance and causation elements of an FDUTPA claim, but concluded that in some instances, a plaintiff could prove causation without having relied on the deceptive practice: Some Florida District Courts of Appeal have determined that causation is an element of a consumer FDUTPA action for damages. See, e.g., Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla.Dist.Ct.App.2006). Because those cases identify a causation element, they appear to be at odds with Davis and Latman [v. Costa Cruise Lines, N.V., 758 So.2d 699 (Fla.Dist.Ct.App.2000) ]. FN5 Indeed, the concepts of causation and reliance can be deeply intertwined, for a deceptive practice

seemingly cannot have caused an aggrieved party damages unless the aggrieved party relied on the deceptive practice. Upon closer inspection, however, a deceptive practice can cause a consumer damages even if the consumer does not rely on the deceptive practice when purchasing a particular product. Ostensibly, a deceptive practice allows a manufacturer or vendor to charge a premium for a product that the manufacturer would not be able to command absent the deceptive practice. Thus, even if an individual consumer does not rely on a deceptive practice when deciding to purchase that product, the consumer will have paid more for the product than she otherwise would have. Consequently, the consumer suffers damages. FN5. The plaintiffs alleged in Latman that the defendant cruise line violated the FDUTPA by falsely labeling a fare mark-up that was not wholly a pass-through charge as a “port charge.” 758 So.2d at 701. The appellate court reversed the trial court's denial of class certification, holding that the plaintiffs were not required to show that they were misled by the label and that they could show damages by proving “that the passenger parted with money for what should have been a ‘pass-through’ port charge, but the cruise line kept the money.” Id. at 703. 270 F.R.D. at 692 n. 2. Greenfield quotes from this passage and invokes a similar damages theory, arguing that “Sears' misrepresentation that Craftsman products are Made in the USA allowed Sears to charge a premium price for foreign-made products that was not warranted ..., and consumers paid that unwarranted premium (regardless of what they subjectively believed or what ads they saw).” (Pl.'s Mem. at 24.) *9 Sears contends that unlike Fitzpatrick and Nelson, the instant case “involves tens of thousands of different products, each of which were individually advertised, marketed and labeled differently” and


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) “more than ten years of differing advertisements, marketing and labeling,” much of which did not mention or reference the United States, as well as different communications between some putative class members and Sears salespeople. (Def.'s Resp. at 21.) Sears relies on a number of Florida state appellate court decisions that have retreated from and/or distinguished Davis and Latman and required that plaintiffs present individualized proof in order to satisfy the FDUTPA's causation element. See, e.g., Tire Kingdom, Inc. v. Dishkin, ––– So.3d ––––, 2011 WL 3311742, at *7–9 (Fla.Dist.Ct.App. July 6, 2011) (distinguishing Latman as a “rare exception to the general rule that collective proof of individualized transactions cannot be used to prove the indispensable element of causation in an FDUTPA class action” and rejecting plaintiffs' argument that all putative class members who received an allegedly deceptive coupon for automotive repair services were “misled as a matter of law”); Miami Auto. Retail, Inc. v. Baldwin, ––– So.3d ––––, 2011 WL 2496609, at *6 (Fla.Dist.Ct.App. June 15, 2011) (distinguishing Latman on the basis that “in this case each plaintiff will have received a different communication and may have reacted differently” and noting that the “FDUTPA requires proof of each individual plaintiff's actual (not consequential) damage and defendant's causation of damage”); Philip Morris USA Inc. v. Hines, 883 So.2d 292, 294–95 (Fla.Dist.Ct.App.2003) (questioning “whether Davis gives fair consideration to the principle of causation” in the FDUTPA and distinguishing it on the basis that the putative class members had different reasons for purchasing the product at issue and some suffered no damages caused by the alleged deceptive practices); Hutson v. Rexall Sundown, Inc., 837 So.2d 1090, 1092–93 (Fla.Dist.Ct.App.2003) (distinguishing Davis and holding that the typicality requirement was not satisfied where some putative class members had no FDUTPA claims because they were not deceived and therefore suffered no damages); Egwuatu v. South Lubes, Inc., 976 So.2d 50, 53–54 (Fla.Dist.Ct.App.2008) (where plaintiffs alleged that

defendant misrepresented a markup as a tax, affirming trial court's denial of class certification and distinguishing Davis and Latman because individualized inquiries would be required to determine whether customers knew the fee was not a tax); Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1140–41 (Fla.Dist.Ct.App.2008) (reversing trial court's certification of class of automobile purchasers because, among other reasons, individual inquiries regarding alleged brake defect would be necessary to determine liability and damages); Rollins, Inc. v. Butland, 951 So.2d 860, 871–75 (Fla.Dist.Ct.App.2006) (reversing the trial court's certification of a class of purchasers of termite-extermination services and finding that class-wide proof of causation would be impossible; rejecting plaintiff's argument that the “diminished market value” of the service due to false advertising could be proven on a class-wide basis). In Tire Kingdom, the court explained that to make a determination that a plaintiff paid more than was bargained for, “it follows that each class member's Tire Kingdom experience-including the precise language of each advertisement, the class member's awareness of Tire Kingdom's shop-fee signage, and the class member's conversations with Tire Kingdom employees-would have to be explored to determine Tire Kingdom's liability to each class member.” 2011 WL 3311742, at *8. *10 There are two reasons why we disagree with plaintiff's assertion that the Fitzpatrick decisions and Nelson (to which we will refer as the “federal decisions”) are “controlling.” (Pl.'s Mem. at 13.) The first stems from our responsibility to ascertain Florida law; we must apply the FDUTPA as we believe the Florida Supreme Court would apply it. See West v. AT & T, 311 U.S. 223, 236–37, 61 S.Ct. 179, 85 L.Ed. 139 (1940). That court has not spoken on the issue of the interaction between the reliance and causation elements of an FDUTPA claim, but Florida appellate courts have. Those decisions control, unless there are persuasive indications that the Florida Supreme Court would decide the issue differently. See id. at 237.


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) Although there is conflicting precedent in the Florida state appellate courts (Davis and Latman and their progeny), the great weight of recent authority in those courts, as set forth above, supports Sears's position and holds that causation typically requires individualized proof. The federal decisions do not persuade us otherwise. To the extent that they can be read to relieve plaintiffs of their obligation to show that the alleged deceptive practice caused them harm, those decisions neglect the plain language of the FDUTPA, which states that “anyone aggrieved by a violation” of the statute may bring an action, and that actual damages are recoverable by “a person who has suffered a loss as a result of a violation” of the statute. Fla. Stat. Ann. § 501.211(1), (2) (emphasis added). Second, the federal decisions are factually distinguishable. Fitzpatrick involved one product, Yo–Plus, and the allegedly false claim that Yo–Plus had a unique digestive health benefit was “communicated in one way or another to every purchaser of Yo–Plus in Florida.” Fitzpatrick I, 263 F.R.D. at 694 (emphasis added). The district court found that the “digestive health benefit of YoPlus is a common and conspicuous theme found in every Yo–Plus advertisement that the Court has reviewed,” noting that the message regarding digestive health was consistently used by defendant in all of its various advertising media. Id. at 700. Likewise, Nelson involved one product, Enfamil Lipil infant formula, and advertisements with the consistent message that Enfamil Lipil uniquely provided certain nutrients that improve brain and eye development. 270 F.R.D. at 695 n. 4, 697 n. 6. In contrast, in the instant case, there are thousands of different Craftsman tools at issue. And we have previously found that “there was and is a large amount of advertising for Craftsman tools that varies greatly” and that “[o]nly a portion of Craftsman advertising and marketing contained “Made in USA”-type representations.” 2007 WL 4287511, at *6. That finding will stand. Like other plaintiffs in these MDL proceedings, Greenfield persists in arguing that Sears had a “systematic, uniform and perva-

sive marketing scheme” for Craftsman tools that represented that the tools were made in the United States. (Pl's Mem. at 23.) That argument is simply not borne out by the evidence. Many of Sears's advertisements did not contain a “Made in USA” claim; instead, they featured other themes, such as the durability and reliability of Craftsman tools. (E.g., Pl.'s Exs. 33, 35.) FN6

FN6. A bit of a sideshow developed regarding plaintiff's evidence of Sears's television commercials for Craftsman tools. A couple of weeks after plaintiff filed his reply brief, he submitted a DVD that the reply described as “containing a copy of all commercials referenced” therein. (Pl.'s Reply at 2 n. 4.) The DVD, Exhibit 69, contains video of twelve commercials. Sears subsequently moved for leave to file a sur-reply in which it argues that plaintiff's reply misrepresents the content of the commercials as well as the content of three other exhibits, Exhibits 66–68. Plaintiff then filed a motion to strike the affidavit of Maria Scavo, the paralegal who filed an affidavit in support of Sears's motion for leave to file a surreply. In the alternative, plaintiff sought leave to depose Ms. Scavo in relation to her affidavit. (In her affidavit, Ms. Scavo states that she has viewed the commercials contained on Exhibit 69, and she describes them briefly.) At the hearing on the two motions, we granted Sears leave to file the surreply, considering the motion itself to be Sears's surreply, and stated that we did not want to take any further briefs on the subject. We took plaintiff's motion to strike under advisement and indicated to plaintiff's counsel that if we ultimately concluded that the affidavit would bear upon our decision on class certification, we would either strike it (after giving Sears an opportunity to respond) or allow the deposition of Ms. Scavo.


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The affidavit does not factor into our decision, and the motion to strike is therefore denied as moot. The court is quite capable of reviewing the Craftsman commercials and other advertisements and determining what they say. Whether they actually contain misrepresentations is beside the point on a motion for class certification. What matters is whether there is evidence of, as plaintiff puts it, a “ubiquitous ‘Made in USA’ branding campaign.” (Pl.'s Mem. at 2.) We have previously found, and find yet again, that there is not, despite plaintiffs' continued insistence to the contrary. Only a portion of Craftsman advertising contained “Made in USA” representations, and only a portion of the putative class viewed those representations. In our 2007 opinion, we rejected as conclusory plaintiffs' argument that the “total mix” of information had the “overriding message” that Craftsman products are American-made. 2007 WL 4287511, at *7. Greenfield attempts to bolster the argument by pointing to an online survey conducted for Sears in 2006, which found that “nearly 90% of consumers believe that Craftsman hand tools and power tools are made in the USA.” (Pl.'s Ex. 17.) According to plaintiff, this research demonstrates that “Sears' extensive and deceptive efforts to brand Craftsman as all ‘Made in USA’ succeeded.” (Pl.'s Mem. at 6.) Plaintiff conveniently overlooks his own allegations. He does not allege that Sears's “Made in USA” claim was always deceptive, but that it became deceptive at some point in the year 2000 because Sears began outsourcing the production of Craftsman products. The researcher did not trace the origin of the consumers' belief or link it to any particular point in time. It is quite

possible that many of those research subjects had formed their belief about the place of manufacture of Craftsman tools well before the class period. It does not follow that the consumers' belief is evidence of, and must have been caused by, a pervasive “false branding” campaign. In his reply brief, plaintiff raises another evidentiary dispute concerning Sears's submission of the declarations of Tom Arvia, a Sears employee who discusses Sears's Craftsman advertising and pricing (Def.'s Ex. 2), and Arthur McKeague, a Sears employee who discusses Sears's CORE database system for product data (Def.'s Ex. 12). Plaintiff argues in footnote 3 that we should strike these declarations because “Sears never previously identified” them in its interrogatory responses as persons with knowledge, and therefore plaintiff never deposed Arvia or McKeague. We decline to strike the declarations because we did not find it necessary to rely on either of them to decide this motion. *11 It is our view that the Florida Supreme Court would take the same approach as recent Florida appellate court decisions and require a plaintiff to show that the alleged misrepresentation actually caused him harm. To do otherwise in the name of the general principle that the FDUTPA does not require reliance would, in effect, remove its causation requirement. Each plaintiff in Greenfield's putative class will have to show that the alleged “Made in USA” misrepresentation caused him or her damage, which would necessitate individualized proof. Accordingly, the proposed Florida class suffers from the same problems we previously identified. It is overbroad because it contains a great many individuals who were not deceived and could not have been injured, and plaintiff has not shown that his claim is typical of those of the


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) putative class. In addition, individual questions of causation will continue to predominate despite the FDUTPA's lack of a reliance requirement. Putting to one side the problem that the class includes plaintiffs who could not have suffered injury, plaintiff has also failed to demonstrate that there is a reasonable methodology for proving causation and damages on a class-wide basis. Plaintiff's theory is that common issues predominate as to damages because Sears “is charging a premium that it would not have charged for [Craftsman tools] had it disclosed that the products were not ‘Made in USA.’ “ (Pl.'s Reply at 23.) The “evidence” of this purported premium is addressed at pages 9 through 11 of plaintiff's opening brief. Plaintiff first points out that Sears commissioned marketing research in the years 2003–2005 showing that if it became known among Craftsman customers that Craftsman products were made overseas, nearly half of those customers “would expect to pay 10% to 25% less for such products,” and 25 percent would not buy the products at all. (Pl.'s Mem. at 9–10.) In the absence of evidence that the Sears buyers—employees who set the prices for Craftsman tools—took this market research into account when doing their work (or even knew about it), the results of the marketing research-what some customers said they would expect to pay-are not relevant to Sears's actual pricing practices. Plaintiff has no evidence (and Sears's witnesses deny) that the buyers knew about or considered the research. Plaintiff mischaracterizes and significantly overstates the remainder of the evidence he relies upon. He asserts that Sears employed a “merchandising plan” for Craftsman that it described as “Good, Better, Best” and that it placed Craftsman at the “Better”, or middle, level. (Pl.'s Mem. at 10.) The evidence cited by plaintiff does not support the conclusion that there was an overarching “merchandising plan” or that such a “plan” affected pricing. Nor does the cited evidence

support plaintiff's next contention-that “Sears' business records consistently frame [Good, Better, Best] as pricing categories.” But plaintiff's most serious overstatement is that “Sears' business records provide specific evidence that, within the ‘Good’ to ‘Better’ and/or ‘Best’ price differential, 10% to 25% of the premium is attributable to Craftsman's positioning as a ‘Made in USA’ brand.” (Pl.'s Mem. at 11.) Plaintiff cites an e-mail between a Sears buyer of “stationary power tools and accessories” and a vendor wherein the buyer states that a hypothetical domestically-made “tap and die” set could command a $10 (or 20%) higher “target price” as a Craftsman tool. (Pl.'s Ex. 46.) The other two documents plaintiff (conclusorily) relies on contain more general discussion of Craftsman pricing (as compared with Sears's “Companion” tools) (Pl .'s Ex. 63) or profit margins that differ depending on place of manufacture (Pl.'s Ex. 47) and are similarly not “specific evidence” of a 10 to 25 percent across-the-board markup on Craftsman tools due to its position as an American-made brand. *12 In support of its position that plaintiff's “premium” theory of damages is fatally flawed, Sears submits the expert report of Stephen D. Prowse, who holds a Ph.D. in economics. Dr. Prowse prepared his report in connection with the Santamarina case and declares that it applies equally to Greenfield's theory. (Def.'s Ex. 32.) In the report, Dr. Prowse opines that impact and damages in this case cannot be determined by generalized proof and that each individual putative class member's claim would have to be examined on a product-by-product basis. Greenfield objects to Dr. Prowse's analysis and argues that it should be “given little to no weight” because, among other things, Dr. Prowse “does not have ... experience regarding the calculation of damages in actions involving consumer fraud, deceptive practices, and/or false advertising or regarding the valuation of retail goods.” (Pl.'s Reply at 29–30 n. 29.) FN7 FN7. On February 10, 2012, plaintiff filed a motion to exclude Dr. Prowse's report. Three


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Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) days later, plaintiff filed a motion to exclude another expert report submitted by Sears, that of Dr. Yoram Wind, which is Exhibit 27 to Sears's response. Sears then moved to strike both motions. In an order dated February 15, 2012, we granted Sears's motion and struck plaintiff's motions for three reasons: (1) plaintiff's motions were untimely; (2) they constituted improper additional briefs on class certification; and (3) neither report is critical to our class-certification decision. It does not require much “experience regarding the calculation of damages in actions involving consumer fraud” to conclude that plaintiff's attempt to demonstrate a likely class-wide damages methodology is a wholesale failure. Because plaintiff's presentation is so conclusory, we did not find it necessary to rely on Dr. Prowse's report; we do, however, agree with him that plaintiff's attempt to show a likely methodology is seriously flawed. Plaintiff's opening memorandum states simply that “[t]he pricing studies and Sears' data reflecting the actual differentials between Sears' Companion brand and the Craftsman brand for substantially similar products provides a basis to measure damages” and that “evidence from Sears' consumer research and pricing data will establish that everyone in the class paid prices for foreignmade Craftsman products that included a premium attributable to Craftsman's falsely achieved status as a ‘Made in USA’ brand.” (Pl .'s Mem. at 11, 25.) It is difficult to gather from the conclusory presentation, but evidently plaintiff is offering two alternative proposed methodologies: one that relies on Sears's pricing studies and historical profit margins on Craftsman tools, and one that relies on the differences between Craftsman pricing and Companion pricing. As discussed above, plaintiff's evidence of a premium, which consists of bits and pieces of items cobbled together, is so weak it is virtually nonexistent. His theory rests on a host of baseless assumptions: that Sears's Companion brand of tools is comparable to the

Craftsman brand; that there is a 10 to 25 percent premium for Craftsman tools over Companion tools; that the premium applies to all Craftsman tools; and that the premium is attributable to market perception of the country of origin of Craftsman tools and not to some other product attribute. Simply adopting plaintiff's assumptions would not be compatible with the “rigorous analysis” that the Supreme Court in Dukes instructs us to undertake. See 131 S.Ct. at 2551. *13 The putative class of Florida purchasers suffers from a number of the same fatal problems identified in our previous opinions; those problems persist despite the fact that this case involves a different consumer fraud statute. The proposed class is overbroad, and plaintiff has failed to satisfy the typicality and predominance requirements of Rule 23. Although plaintiff contends that “Florida legal precedent regarding substantive liability [for] unjust enrichment claims and the suitability of such claims for class certification ... differentiate this proposed class action from previous actions,” Pl.'s Mem. at 13, these problems apply equally to the unjust enrichment claim. Plaintiffs will have to prove that they conferred a benefit on Sears and that Sears appreciated, accepted and retained the benefit under circumstances that make it inequitable to retain that benefit without paying fair value for it. See Florida Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 (Fla.2004). These “circumstances” involve the alleged “Made in USA” deception. As we found in our 2007 and 2009 opinions, the bulk of the proof on the unjust enrichment claim will relate to individual factual issues relating to the deception, as well as causation. Plaintiff Greenfield has failed to establish that the prerequisites of Rule 23 are satisfied, and his motion for class certification will be denied. CONCLUSION The motion of defendant Sears, Roebuck & Company to dismiss plaintiff's claim in Count II for violation of the Magnuson–Moss Act [7] is granted.


Case: 12-2621

Document: 003111494816

Page: 71


Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 (Cite as: 2012 WL 1015806 (N.D.Ill.)) Count II is dismissed with prejudice. Plaintiff Jeffrey Greenfield's motion for certification of a Florida class [25] is denied. Plaintiff's motion to strike the affidavit of Maria Scavo, or in the alternative for leave to depose her, [54] is denied. A status hearing is set for April 28, 2012, at 11:00 a.m. N.D.Ill.,2012. In re Sears, Roebuck & Co. Tools Marketing and Sales Practices Litigation Not Reported in F.Supp.2d, 2012 WL 1015806 (N.D.Ill.), 2012-1 Trade Cases P 77,861 END OF DOCUMENT
