2014 12-17 rahman v motts petition for permission to appeal … · 2019-12-18 · in the united...

IN THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Docket No. ___-___________

MOHAMMED RAHMAN, an individual, and on behalf of other members of the general public similarly situated

Plaintiff-Petitioner,

v.

MOTT’S LLP, Defendant-Respondent.

APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

PETITION TO NINTH CIRCUIT FOR PERMISSION TO APPEAL ORDER DENYING MOTION FOR CLASS CERTIFICATION

PURSUANT TO RULE 23(f)

CAPSTONE LAW APC JORDAN L. LURIE (SBN 130013) GLENN DANAS (SBN 270317)

ROBERT K. FRIEDL (SBN 134947) LIANA CARTER (SBN 201974)

1840 CENTURY PARK EAST, STE. 450 LOS ANGELES, CALIFORNIA 90067

TELEPHONE: (310) 556-4811 FACSIMILE: (310) 943-0396

Attorneys for Plaintiff-Petitioner MOHAMMED RAHMAN

Case: 14-80183, 12/17/2014, ID: 9354470, DktEntry: 1-2, of 141

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................................................ ii

I. INTRODUCTION ................................................................................................................................. 1

II. FACTS AND PROCEDURE ............................................................................................................. 3

III. STATEMENT OF ISSUES PRESENTED ................................................................................. 5

IV. THIS COURT HAS WIDE DISCRETION TO PERMIT AN INTERLOCUTORY APPEAL ......................................................................................................... 6

V. THE QUESTIONABLE CLASS CERTIFICATION RULING MAKES IT IMPRACTICABLE FOR PETITIONER TO CONTINUE THE LITIGATION .................................................................................................. 7

A. The Denial of Class Certification Effectively Ends The Litigation For Petitioner ............................................................................................................ 9

B. The District Court's Ruling Was Questionable As It Erroneously Interjected Damages Into its Predominance Analysis and Rule 23(c)(4) Analysis Even Though Petitioner Sought a “Liability Only” Class ....................................................................... 10

1. Rule 23(b)(3) ................................................................................................................. 10

2. Rule 23(c)(4) ................................................................................................................. 11

C. The District Court's Ruling Was Questionable As It Was Predicated On The Striking of Injunctive Relief Based On A Diverse Split Of Authority ................................................................................................ 14

VI. THIS COURT SHOULD EXERCISE PENDENT APPELLATE JURISDICTION OVER THE DISTRICT COURT'S SUMMARY JUDGMENT RULING, WHICH IS INEXTRICABLY INTERTWINED WITH AND NECESSARY TO ENSURE MEANINGFUL REVIEW OF THE CLASS CERTIFICATION ORDER ................................................................................ 18

VII. CONCLUSION ..................................................................................................................................... 20


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TABLE OF AUTHORITIES

FEDERAL CASES

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184 (2013) ................................. 10

Bates v. UPS, 511 F.3d 974 (9th Cir. 2007) ..................................................................................................... 15

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975, cert. denied, 429 U.S. 816 (1976)) ................................ 10

Butler v. Sears, Roebuck and Co., 727 F.3d 796 (7th Cir. 2013) .............................................................. 12, 13

Chamberlan v. Ford, 402 F.3d 952 (9th Cir. 2005) ............................................................................... 2, 6, 7, 9

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ...................................................................................... 12, 13

Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000) ..................................................................................... 18

Ham v. Hain Celestial Group, Inc., No. 14-cv-02044-WHO, 214 U.S. Dist. LEXIS 141157 (N.D. Cal. Oct. 3, 2014) .................................................................................................................. 16

Henderson v. Gruma Corp., No. CV 10-04173 AHM (AJWx), 2011 U.S. Dist. LEXIS 41077 (C.D. Cal. April 11, 2011) .................................................................................................................. 15

Hendricks v. Bank of America, 408 F.3d 1127 (9th Cir. 2005) ..................................................................... 18

Houser v. Pritzker, 2014 U.S. Dist. LEXIS 91451 (S.D.N.Y. July 1, 2014) ........................................... 13

In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014) ........................................................................... 13, 14

In re Motor Fuel Temperature Sales Practices Litig., 292 F.R.D. 562 (D. Kan. 2013) ............ 11, 12, 14, 19

In re Paxil Litig., 212 F.R.D. 539 (C.D. Cal. 2003) ........................................................................................ 11

In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838 (6th Cir. 2013) ...................................................................................................................................................................... 12

Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014) ............................................................................ 12

Jones v. Conagra Foods, Inc., No. C 12-01633 CRB, 2014 U.S. Dist. LEXIS 81292 (N.D. Cal. June 13, 2014) ............................................................................................................................... 17

Jou v. Kimberly-Clark Corp., No. C-13-03705 JSC, 2013 U.S. Dist. LEXIS 173216


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(N.D. Cal. Dec. 10, 2013) ........................................................................................................................ 15, 17

Lanovaz v. Twinings N. Am., Inc., No. 12-cv-2646-RMW, 2014 U.S. Dist. LEXIS 1639 (N.D. Cal. Jan. 6, 2014) ......................................................................................................................... 15

Mason v. Nature’s Innovation, Inc., No. 12cv3019 BTM (DHB), 2013 U.S. Dist. LEXIS 68072 (S.D. Cal. May 13, 2013) .................................................................................................... 17

Meredith v. State of Oregon, 321 F.3d 807 (9th Cir. 2003), amended by 326 F.3d 1030 (9th Cir. 2003) ..................................................................................................................................................... 18

Morgan v. Wallaby Yogurt Co., No. 13-cv-00296-WHO, 2014 U.S. Dist. LEXIS 34548 (N.D. Cal. March 13, 2014) .............................................................................................................. 16

Paige v. State of California, 102 F.3d 1035 (9th Cir. 1996) .............................................................................. 19

Scott v. Family Dollar Store, 733 F.3d 105 (4th Cir. 2013) ............................................................................. 20

Swint v. Chambers County Commission, 514 U.S. 35 (1995) ............................................................................ 18

United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) .................................................................................. 10

Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996) ....................................................................... 8

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) ............................................................... 7

FEDERAL STATUTES

21 C.F.R. § 101.60(c)(2) .................................................................................................................................... 4, 11

21 C.F.R. § 101.60(c)(2)(iv) .................................................................................................................................... 1

28 U.S.C. § 1292(b) ................................................................................................................................................... 6

Fed. R. App. P. 5 ....................................................................................................................................................... 2

Fed. R. Civ. P. 23(a) .................................................................................................................................. 1, 5, 7, 11

Fed. R. Civ. P. 23(b) ..................................................................................................................................... 1, 7, 11

Fed. R. Civ. P. 23(b)(2) ................................................................................................................................... passim

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

Fed. R. Civ. P. 23(c)(4) .................................................................................................................................... passim


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Fed. R. Civ. P. 23(f) ...................................................................................................................................... 2, 6, 20

STATE STATUTES

Cal. Bus. & Prof. Code §§ 17200 et seq. (Unfair Comp. Law (UCL)) ............................................. passim

Cal. Bus. & Prof. Code §§ 17500 et seq. (False Advertising Law (FAL)) ................................................. 3

Cal. Civ. Code §§ 1750 et seq. (Cons. Legal Remedies Act (CLRA)) ........................................................ 3

Cal. Health and Safety Code §§ 109875 et seq. (Sherman Food, Drug and Cosmetic Law) .......................................................................................................................................................................... 3


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I. INTRODUCTION

This case arises out of the Defendant-Respondent Mott’s L.L.P. (“Mott’s”) business

practice of manufacturing Mott’s 100% Apple Juice with a label that states “No Sugar Added.”

FDA regulations prohibit using the “No Sugar Added” statement unless “[t]he food that it

resembles and for which it substitutes normally contains added sugars.” 21 C.F.R.

§ 101.60(c)(2)(iv). Mott’s label violates this regulation because apple juice does not normally

contain added sugars. Petitioner Mohammed Rahman (“Petitioner”) seeks to certify a “liability

only” class (under Federal Rule of Civil Procedure 23(c)(4)) of California residents who

purchased the juice, with the main objective of obtaining injunctive relief requiring Mott’s to

change its label to comply with the law.

The district court denied Petitioner’s motion to certify a “liability only” class under both

Rule 23(b)(2) and Rule 23(b)(3), effectively ending the litigation for Petitioner. While Petitioner

sought to certify a “liability only” class, not a “damages” class, the district court nonetheless

interjected an erroneous damages requirement into its predominance analysis and its analysis of

Rule 23(c)(4), even though for particular issues to be certified using Rule 23(c)(4), the

requirements of Rule 23(a) and (b) must be satisfied only with respect to those issues. Thus,

because Petitioner sought to certify the class only with respect to liability issues, there are no

issues of individual damages that can predominate. Clear authority provides that Petitioner was

well within the confines of Rule 23(c)(4) to proceed in this manner and seek certification of a

liability-only class under Rule 23(b)(3). Further, the district court rejected a liability-only class

under Rule 23(b)(2) based on a prior summary judgment order (entered after the motion for


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class certification was filed) finding Petitioner lacked standing to seek injunctive relief under

Article III. In reaching its conclusion on standing, the district court acknowledged a stark split of

authority among the federal district courts within the Ninth Circuit regarding how a plaintiff may

satisfy standing requirements for injunctive relief in consumer cases including those involving

food labeling. The district court ultimately sided with the minority position, which holds that a

consumer lacks Article III standing to seek injunctive relief after she brings a lawsuit, since the

consumer can no longer be deceived by the complained-of misrepresentations or omissions in

the future now that she “knows” the true attributes of the product. The district court’s

reasoning is incorrect, but, for purposes of this petition, it demonstrates the need for appellate

guidance on this frequently-litigated issue. Moreover, the district court’s summary judgment

ruling is reviewable as part of this Rule 23(f) petition because it was expressly incorporated by the

district court into its class certification analysis, played a pivotal role in the district court’s ultimate

class certification ruling, and is thus inextricably intertwined, with the district court’s denial of

class certification under Rule 23(b)(2).

The district court’s questionable order concerning class certification in these respects is

virtually certain to be reversed on appeal from final judgment, thus warranting interlocutory

review under Chamberlan v. Ford, 402 F.3d 952, 959 (9th Cir. 2005). Pursuant to Federal Rules of

Civil Procedure, Rule 23(f) and Federal Rules of Appellate Procedure, Rule 5, Petitioner requests

permission to appeal the December 3, 2014 Order of the district court denying Petitioner’s

Motion for Class Certification (“Class Cert. Order”) (attached hereto as Exhibit 1). Petitioner

also requests that this Court exercise pendent appellate jurisdiction to review the October 15,


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2014 Order Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment

(“MSJ Order,” attached as Exhibit 2) with respect to its ruling on Petitioner’s lack of Article III

standing to pursue injunctive relief.

II. FACTS AND PROCEDURE

Petitioner’s original class action complaint filed June 13, 2013, was based on the theory

that Mott’s labeling of a variety of Mott’s food products with the statement “No Sugar Added”

violated FDA regulations, California’s Sherman Food, Drug, and Cosmetic Law [“Sherman

Law”] (Cal. Health and Safety Code § 109875 et seq.), and California consumer protection laws.

After removal of this action to federal court, Petitioner filed a First Amended Complaint, for

which the district court subsequently granted Mott’s motion to dismiss in part with leave to

amend. (Class Cert. Order at 2; Plaintiff’s Notice of Motion and Motion for Class Certification

and For Appointment of Class Counsel [“Motion for Class Cert.”], Exhibit 3, at 8.)

Petitioner filed the operative Second Amended Complaint (“SAC”) on February 24,

2014, based solely on the “No Sugar Added” statement on the Mott’s 100% Apple Juice label.

Petitioner alleged violations of the Unfair Competition Law [“UCL”] (California Business &

Professions Code §§ 17200 et seq.), the False Advertising Law [“FAL”] (Cal. Business &

Professions Code §§ 17500 et. seq.), and the Consumer Legal Remedies Act [“CLRA”] (Cal. Civil

Code §§ 1750 et seq.), negligent misrepresentation and breach of quasi-contract. (Class Cert.

Order at 2; Motion for Class Cert. at 8.) The SAC alleges that Petitioner bought more of Mott’s

Original 100% Apple Juice after reading and relying on the juice’s “No Sugar Added” label and

after observing that a competitor’s 100% apple juice did not have a claim of “No Sugar Added.”


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(Cert. Order at 2.) Petitioner further alleged that he would not have purchased as much Mott’s

apple juice as he did but for the “No Sugar Added” statement. (Id.)

On August 8, 2014, Petitioner moved for class certification pursuant to Federal Rule of

Civil Procedure, Rule 23(c)(4), seeking an order certifying a liability issue class under Rule

23(b)(2) and 23 (b)(3), defined as “[a]ll California residents who, from June 13, 2009, until the

date of the preliminary approval order, purchased Mott’s 100% Apple Juice bearing the

statement ‘No Sugar Added’ on the label or package.” (Motion for Class Cert. at 9.) Petitioner

contended that the inclusion of the “No Sugar Added” statement on the label for apple juice,

which is a product that does not normally contain added sugar, is both illegal and deceptive.

Petitioner particularly argued that the label violates the unlawful prong of the UCL because it

violates the applicable FDA regulation, 21 C.F.R. section 101.60(c)(2), and thereby the Sherman

Law. (Motion for Class Cert. at 1.) On August 12, 2014, Mott’s moved for summary judgment.

(Class Cert. Order at 2.) On October 15, 2014, the district court granted in part and denied in

part summary judgment, denying summary judgment only as to Petitioner’s cause of action

under the UCL’s unlawful prong and for breach of quasi-contract. (Id.) Within its order, the

district court found that Petitioner did not have Article III standing to pursue injunctive relief,

premising its decision on a split of authority with respect to the requirements for standing in

consumer cases involving food and other products. (MSJ Order at 7-11.)

On December 3, 2014, the district court issued an order denying class certification and

denying a motion brought by Mott’s for leave to file a motion for reconsideration. Based on its

prior MSJ Order, the district court reviewed the class certification motion on the remaining


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claims, which it noted were Petitioner’s claim under the UCL’s unlawful prong and for breach of

quasi-contract. (Class Cert. Order at 2: 23-24.) While the district court found the requirements

of Rule 23(a) were satisfied, and Rule 23(b)(3)’s predominance requirement was satisfied as to

liability, it found that Petitioner failed to show predominance as to damages, despite the fact that

he moved to certify a liability-only class. The district court also found that its MSJ Order mooted

any claims under Rule 23(b)(2). (Class Cert. Order at 11, 13.) The district court therefore

declined to certify a liability-only class under Rule 23(c)(4), finding that it would not materially

advance the resolution of the case. (Class Cert. Order at 16.)

III. STATEMENT OF ISSUES PRESENTED

1) Whether this Court should permit Petitioner to appeal from the Class Certification

Order that effectively ended the litigation for Petitioner and is “questionable” due to

the district court’s erroneous focus on damages in its predominance and Rule 23(c)(4)

analyses when case law provides that certifying a liability-only class under Rule

23(b)(3) is a proper approach for proceeding under Rule 23(c)(4)?

2) Whether this Court should permit Petitioner to appeal from the Class Certification

Order that effectively ended the litigation for Petitioner and is “questionable” because

it was predicated on the preclusion of injunctive relief stemming from a diverse split

of authority in which Petitioner meets Article III standing requirements under the

analysis of other district courts in this Circuit?

3) Whether this Court should exercise pendent appellate jurisdiction to review the MSJ

order with respect to Petitioner’s Article III standing to pursue injunctive relief


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because this ruling is inextricably intertwined with, and necessary to ensure

meaningful review of, the class certification order?

IV. THIS COURT HAS WIDE DISCRETION TO PERMIT AN INTERLOCUTORY APPEAL

This Court has broad discretion to allow interlocutory appeals of class certification

decisions under Federal Rule of Civil Procedure 23(f). Rule 23(f) provides that a “court of

appeals may permit an appeal from an order granting or denying class-action certification,”

without providing any criteria that would limit this discretion. Fed. R. Civ. P. 23(f); see also Id.

(Advisory Committee Notes to 1998 amendment) (Rule 23(f) departs from the interlocutory

appeal requirements of 28 U.S.C. § 1292(b) as “it does not include the potentially limiting

requirements of § 1292(b).”). Indeed, the Advisory Committee’s Notes state that the drafters

intended to give the court of appeals “unfettered discretion whether to permit the appeal, akin to

the discretion exercised by the Supreme Court in acting on a petition for certiorari.” Fed. R. Civ.

P. 23(f) (Advisory Committee Notes to 1998 amendments).

In Chamberlan, 402 F.3d 952, this Court described the standards used to authorize

discretionary appeals under Rule 23(f) and adopted three factors as guidelines for consideration

of Rule 23(f) petitions:

Review of class certification decisions will be most appropriate when: (1) there is a death-knell situation for either the plaintiff or defendant that is independent of the merits of the underlying claims, coupled with a class certification decision by the district court that is questionable; (2) the certification decision presents an unsettled and fundamental issue of law relating to class actions, important both to the specific litigation and generally, that is likely to evade end-of-the-case review; or (3) the district court’s class certification decision is manifestly erroneous.


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Chamberlan, 402 F.3d at 959. In discussing the applicable factors, the Court was careful to note

that they “are merely guidelines, not a rigid test” and “are not intended to circumscribe the broad

discretion granted the courts of appeal by Rule 23(f).” Id. at 960. The Court further elaborated

that a case warranting review ordinarily would fall within one of the specified categories,

although it acknowledged the possibility that a case failing to fit within these parameters may

nonetheless “be worthy of interlocutory appeal.” Id. The Court underscored that this is based

on the decision to permit interlocutory appeal being, at bottom, a discretionary one. Id. This

discretion should be applied to find that Petitioner satisfies the criteria for interlocutory appeal,

including the first Chamberlan factor regarding a death-knell situation coupled with a questionable

class certification decision.

V. THE QUESTIONABLE CLASS CERTIFICATION RULING MAKES IT IMPRACTICABLE FOR PETITIONER TO CONTINUE THE LITIGATION

To certify a class, a party must meet the four requirements of Federal Rule of Civil

Procedure, Rule 23(a), which are numerosity, commonality, typicality, and adequacy of

representation, along with one requirement from Rule 23(b). See Zinser v. Accufix Research Inst.,

Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Pursuant to Rule 23(c)(4), which states that "[w]hen

appropriate, an action may be maintained as a class action with respect to particular issues,"

Petitioner sought to certify a liability issue class under Rule 23(b)(2) and 23(b)(3). Fed. R. Civ. P.

32(c)(4). Rule 23(b)(2) provides that a case may be certified as a class action if “the party

opposing the class has acted or refused to act on grounds that apply generally to the class, so that

final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a


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whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) requires that the common questions of law or

fact predominate over any individual questions. Fed. R. Civ. P. 23(b)(3).

In order for particular issues to be certified through Rule 23(c)(4), the requirements of

Rule 23(a) and (b) must be met only with respect to those issues. See Fed. R. Civ. P. 23(c)(4)

Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). The district court concluded

that the requirements of numerosity, ascertainability, commonality, typicality, and adequacy were

satisfied. (Certification Order at 5-10.) However in a footnote, the court denied as moot

Petitioner’s motion for class certification to the extent it was made pursuant to Rule 23(b)(2),

based on the court’s ruling on the summary judgment motion that Petitioner lacked Article III

standing for injunctive relief. (Certification Order at 11, n. 3.) With respect to Rule 23(b)(3), the

court found that Petitioner satisfied the predominance requirement as to issues of liability

(Certification Order at 12:17-18). It went on, however, to find that Petitioner failed to show

predominance as to damages and ruled that the class may not be certified for purposes of

seeking damages. (Id.at 13:20-24.) With Petitioner's viable claims and forms of relief

“significantly winnowed down in the wake of the Court's summary judgment order,” with

respect to certification of a liability-only class under Rule 23(c)(4), the court found that this would

not materially advance the resolution of the case and denied certification. (Certification Order at

15-16:20-3.)

As discussed below, this ruling effectively ended the litigation for Petitioner and was

questionable as it was based on the court's erroneous requirement of damages in its

predominance analysis for a liability only class, and was based on the unavailability of injunctive


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relief, a decision that itself stems from a diverse split of authority. This satisfies the first criteria

under Chamberlan and thus interlocutory appeal is warranted.

A. The Denial of Class Certification Effectively Ends The Litigation For Petitioner

Pursuant to the first factor discussed in Chamberlan, there must be a “death-knell

situation” for interlocutory appeal of a class certification order. Chamberlan, 402 F.3d at 959.

Chamberlan finds that this occurs “when denial of certification effectively ends the litigation for

the plaintiff,” as this plaintiff “might be left with only one path to appellate review: proceeding to

a final judgment on the merits of an individual claim that, without the class, is worth far less than

the cost of litigation.” Id. at 957.

That situation is present here. Without certification, Petitioner can only appeal by

pursuing his individual claims for violation of the unlawful prong of the UCL and for breach of

quasi contract to judgment. Equitable remedies are not available following the MSJ Order,

which renders injunctive relief and declaratory relief impossible based on the district court

finding that Petitioner lacks Article III standing. (MSJ Order 7-10.) These remaining individual

claims support, at most, very limited monetary damages based on the purchase of multiple

bottles of apple juice bearing a “No Sugar Added” label that Petitioner would not have

otherwise bought.1 Such a small monetary claim would render an individual suit uneconomical

1 As the district court noted that Petitioner alleged he bought more quantities of the

product based on the “No Sugar Added” label, the extra bottles of juice purchased over the applicable time period would be a measure of damages. (Certification Order at 2:4; see also Motion For Class Cert. at 4:17-24 (noting that Petitioner purchased three to four bottles every


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and impracticable to proceed. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 388 n. 4 (1977)

(noting death knell doctrine situation occurs “where the claims are so small that individual suits

are uneconomical.”)

B. The District Court's Ruling Was Questionable As It Erroneously Interjected Damages Into its Predominance Analysis and Rule 23(c)(4) Analysis Even Though Petitioner Sought a “Liability Only” Class

1. Rule 23(b)(3)

The predominance inquiry of Rule 23(b)(3) requires that “the questions of law or fact

common to class members predominate over any questions affecting only individual members.”

Fed. R. Civ. P. 23(b)(3). “Rule 23(b)(3) requires a showing that questions common to the class

predominate, not that those questions will be answered, on the merits, in favor of the class.”

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184, 1191 (2013). When

plaintiffs allege a common course of conduct or misrepresentations, omissions and other

wrongdoing that affects all class members in the same or similar manner, questions common to

the class predominate. See Blackie v. Barrack, 524 F.2d 891, 905-908 (9th Cir. 1975, cert. denied, 429

U.S. 816 (1976).

Petitioner met the requirements of predominance as his UCL claim does not require

individual inquiries on liability. Common issues predominate as to whether the juice label is

unlawful, and if a liability class were certified, the unlawfulness issue could be resolved by

summary adjudication based on undisputed facts as to whether or not the label violates 21

two weeks rather than two to three bottles every two weeks based on the "No Sugar Added" label).)


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C.F.R. § 101.60(c)(2) and the ruling would be binding on the class. A finding that the label is

illegal would also support the quasi-contract claim. Indeed, the district court concluded that

Petitioner satisfied the predominance requirement as to issues of liability. (Certification

Order at 12:17-18.)

However, the district court went on to find that Petitioner failed to show predominance

as to damages (Certification Order at 13:20-21) even though “[f]or particular issues to be certified

using Rule 23(c)(4), the requirements of Rule 23(a) and (b) must be satisfied only with respect to

those issues.” In re Motor Fuel Temperature Sales Practices Litig., 292 F.R.D. 562, 674 (D. Kan. 2013);

see also In re Paxil Litig., 212 F.R.D. 539, 543 (C.D. Cal. 2003) (“[C]lass certification solely with

respect to liability requires that the issues and the class certified meet the requirements of Rule 23;

that other non-certified issues or classes would violate Rule 23 is irrelevant.”). As Petitioner

sought to certify the class only as to liability issues, there are no issues of individual damages that

can predominate over the common liability issues. The district court’s two page discussion and

conclusion that “Plaintiff has failed to show predominance as to damages” would at first glance

appear to be superfluous since Petitioner sought to certify a “liability only” class. (Certification

Order at 12:19-14:7.)

2. Rule 23(c)(4)

Yet, the issue of proving damages also informed the district court’s analysis of whether to

certify a liability only class.

The district court first recognized cases that allow liability only classes. (Certification

Order at 14.) For example, the district court found that “[i]n the wake of Comcast [Corp. v.


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Behrend, 133 S. Ct. 1426 (2013)], a number of other circuits have held that a liability-only class

may be certified even in the absence of a showing of predominance on the issue of damages,

while the Ninth Circuit appears to have implicitly endorsed this approach.” Certification Order

at 14:13-16.) In Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1168 (9th Cir. 2014), the Ninth Circuit

found “compelling” several cases from other circuits that found certification of liability issues

appropriate while reserving discussion of damages for subsequent proceedings. See, e.g., In re

Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 854 (6th Cir. 2013) (finding

“determination of damages may be reserved for individual treatment with the question of liability

tried as a class action”); Butler v. Sears, Roebuck and Co., 727 F.3d 796, 800 (7th Cir. 2013) (Rule

23(c)(4) permits a class action limited to determining liability on a class-wide basis with separate

hearings for determining the damages of individual class members if liability is established).

“‘Liability’ does not include questions of remedy, e.g. damages, injunctive relief and restitution.”

In re Motor Fuel, 292 F.R.D. at 666. The Ninth Circuit has concluded that such reasoning is

“consistent with our circuit precedent.” Jimenez, 765 F.3d at 1168.

Despite this, the district court questionably focused on the ability to prove damages in

determining whether certifying a liability-only class would materially advance the litigation.

(Certification Order at 15:7-15.) The district court requested, and Petitioner filed, supplemental

briefing demonstrating the benefits in terms of judicial economy in proceeding in this manner in

his briefing, and described how the issue of damages may be resolved following a determination

of liability class-wide. (See Plaintiff’s Response To Order Re: Class Certification, Exhibit 6, at 1-


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4.) This was technically not required for certification.2 Despite Plaintiff’s submission of

additional briefing, the district court made the questionable determination at the class

certification stage that a liability class would not materially advance the litigation, and even

erroneously suggested that Petitioner might “intend[] to later certify a damages class.”

(Certification Order at 15:8.)

The district court also found that Petitioner had “ample opportunity” to present evidence

to satisfy Comcast and certify a class as to both liability and damages, but “chose not to.”

(Certification Order at 15-16:23-1.) Yet, Petitioner was well within the parameters of Rule

23(c)(4) to choose to proceed in this manner and seek certification of a liability-only class under

Rule 23(b)(3). See id. at 665 (“Certifying a class to determine defendant’s liability, while leaving

the class members to pursue their individual damages claims, is a common example of partial

certification.”).3

2 See Houser v. Pritzker, 2014 U.S. Dist. LEXIS 91451, *84 (S.D.N.Y. July 1, 2014)

(certifying a liability only class) (“If and when the litigation reaches that [remedies] stage, the Court will have a number of management tools at its disposal . . . the court could appoint a special master to preside over individual damages proceedings, or could decertify the class after the liability phase and provide notice to plaintiffs as to how to proceeds to prove damages”). As the court noted in Houser, “there is no need to decide at this time [of class certification] which avenue to pursue. What is important is that the Court has the tools to handle any management difficulties that may arise at the remedial phase of this litigation.” Id.

3 “Even after Comcast, the predominance inquiry can still be satisfied under Rule 23(b)(3) if the proceedings are structured to establish liability on a class-wide basis, with separate hearings to determine—if liability is established—the damages of individual class members.” In re Deepwater Horizon, 739 F.3d 790, 817 (5th Cir. 2014) (quoting Butler, 727 F.2d at 800). Court have found that under Rule 23(c)(4), this “will often be the sensible way to proceed.” Butler, 727 F.2d at 800. This is because “the rule of Comcast is largely irrelevant ‘[w]here determinations on liability and damages have been bifurcated’ in accordance with Rule 23(c)(4).” In re Deepwater Horizon,


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C. The District Court's Ruling Was Questionable As It Was Predicated On The Striking of Injunctive Relief Based On A Diverse Split Of Authority

Key to the district court’s decision to deny certification under Rule 23(c)(4) based on Rule

23(b)(2) and (b)(3), was the unavailability of injunctive relief. This is a result of the district court’s

prior ruling finding Petitioner lacked standing to seek such relief. (See MSJ Order at 7-11.) Due

to its MSJ Order precluding injunctive relief, the district court entirely ignored Petitioner’s

arguments for certification under Rule 23(b)(2) and dismissed them in a brief footnote

(Certification Order at 11, n. 3.) The MSJ Order also clearly impacted the district court’s

decision to overall deny certification under Rule 23(c)(4) as the court noted that the MSJ Order

significantly “winnowed down” Petitioner’s viable claims and forms of relief, and based on this

declined to follow authority allowing certification of a liability class under Rule 23(c)(4) where

there was no evidence on how damages could be calculated on a class-wide basis.4 (Certification

Order at 15:16-23.)

739 F.3d at 817. Petitioner did not attempt to certify a damages class and therefore did not need a damages model or to prove predominance on damages for the liability class he sought to certify.

4 Further, the absence of injunctive relief impacted the district court’s determination that a liability only class would not materially advance the litigation, as the availability of injunctive relief would have made it eminently clear that Petitioner could move the case forward. Where injunctive relief is the “centerpiece” of the case, certifying a liability class and then having the court determine whether injunctive relief is appropriate is key to advancing the case, as “[b]y quantum leaps, this approach will advance the resolution of plaintiff’s core claims on a class-wide basis.” In re Motor Fuel, 292 F.R.D. at 667. Indeed, in In re Motor Fuel, the court rejected a similar claim “that certifying Rule 23(c)(4) classes as to ‘liability’ would not materially advance the litigation” and rejected the idea that “the remaining individual issues make the case unmanageable.” Id. In contrast, the district court here inexplicably found that addressing such damages issues subsequently would not be an efficient alternative. (Certification Order at 15:13-14.)


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The district court’s ruling striking injunctive relief stems from a split in authority on

when Article III standing is satisfied in cases involving alleged violations of California’s unfair

competition laws by purveyors of food and other consumer products. For prospective

injunctive relief, a plaintiff “must demonstrate that he has suffered or is threatened with a

‘concrete and particularized’ legal harm . . . coupled with ‘a sufficient likelihood that he will again

be wronged in a similar way.’” Bates v. UPS, 511 F.3d 974, 985 (9th Cir. 2007) (citations omitted).

Courts in this Circuit differ on when a plaintiff has met this standing requirement in such

consumer cases.

For example, there are several diverse lines of cases addressing this issue. In the first line

of cases, court have found that a plaintiff can satisfy the standing requirements for injunctive

relief without alleging an intent to purchase the mislabelled product in the future. See, e.g.,

Henderson v. Gruma Corp., No. CV 10-04173 AHM (AJWx), 2011 U.S. Dist. LEXIS 41077 (C.D.

Cal. April 11, 2011) (“While Plaintiffs may not purchase the same . . . products as they purchased

during the class period, because they are now aware of the true content of the products, to

prevent them from bringing suit on behalf of a class in federal court would surely thwart the

objective of California’s consumer protection laws.”); Lanovaz v. Twinings N. Am., Inc., No. 12-cv-

2646-RMW, 2014 U.S. Dist. LEXIS 1639, *29-31 (N.D. Cal. Jan. 6, 2014) (agreeing with the

reasoning in Henderson). A second line of cases requires that a plaintiff allege an intent to

purchase the challenged product in the future in order to have standing. See, e.g., Jou v. Kimberly-

Clark Corp., No. C-13-03705 JSC, 2013 U.S. Dist. LEXIS 173216, *13 (N.D. Cal. Dec. 10, 2013)

(for purposes of Article III standing, the court declined to find it is “unnecessary for [plaintiffs]


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to maintain any interest in purchasing the products in the future”). A third line of cases finds

that a plaintiff’s knowledge of the allegedly unlawful or misleading conduct precludes standing

for injunctive relief under Article III. See, e.g., Ham v. Hain Celestial Group, Inc., No. 14-cv-02044-

WHO, 214 U.S. Dist. LEXIS 141157, *15 (N.D. Cal. Oct. 3, 2014) (“Consumers who were

misled by deceptive food labels lack standing for injunctive relief because there is ‘no danger that

they will be misled in the future.’”); Morgan v. Wallaby Yogurt Co., No. 13-cv-00296-WHO, 2014

U.S. Dist. LEXIS 34548, *21 (N.D. Cal. March 13, 2014) (finding that the court was limited to

granting damages because the plaintiffs were now aware of what evaporated cane juice was,

unambiguously stated they would not have purchased the product had they know it contained

added sugar, and could not “plausibly allege that they would purchase the challenged products in

the future if they were properly labeled”).

Noting this split of authority, the district court found that “[a]bsent showing a likelihood

of future harm, a plaintiff may not manufacture standing for injunctive relief by expressing an

intent to purchase the challenged product in the future.” (MSJ Order at 10:7-8.) The district

court focused on the fact that “Rahman is now fully aware that ‘No Sugar Added’ simply means

that no sugar was added to a product, not that the product does not contain sugar or is a good

beverage for a Type 2 diabetic.” (Id. at 10:2-4.) The district court found that “he cannot

plausibly prove that he will, in the future, rely on the ‘No Sugar Added’ statement to his

detriment. He therefore lacks Article III standing for injunctive relief.” (Id. at 10:24-25.)

Had this case been decided under the second line of cases, the outcome here would have

been different. Petitioner alleged he would like to purchase the product in the future if the label


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is changed to remove the “No Sugar Added” statement. (MSJ Order at 10:4-5.) Had the district

court followed cases that focus on an intent to buy the product in the future, then Petitioner

would be able to seek injunctive relief here. See, e.g., Jou, 2013 U.S. Dist. LEXIS at *13 (“Placing

this requirement [of an interest in purchasing the product in the future] on Plaintiffs does not

thwart the objective of California consumer protection laws since it is not impossible that a

consumer would be interested in purchasing the products at issue if they were labeled correctly.”)

In fact, “[c]ourts have rejected the argument that a plaintiff cannot establish standing if he has

learned a label is misleading and therefore will not be fooled by it again.” Jones v. Conagra Foods,

Inc., No. C 12-01633 CRB, 2014 U.S. Dist. LEXIS 81292, *46 (N.D. Cal. June 13, 2014).

Contrary to the district court’s ruling, plaintiffs such as Petitioner maintain standing for injunctive

relief even if fully aware a label is deceptive when such consumers “would still be interested in

purchasing the product if it were labeled properly – for example, if a food item accurately stated

its ingredients.” Mason v. Nature’s Innovation, Inc., No. 12cv3019 BTM (DHB), 2013 U.S. Dist.

LEXIS 68072, *13 (S.D. Cal. May 13, 2013); see also Jou, 2013 U.S. Dist. LEXIS at *13 (rejecting

the defendant’s contention that “harm to Plaintiffs cannot continue to the extent they have

already discovered the alleged deception”). Had the district court followed such cases, it would

not have found standing lacking, as Petitioner alleged just this. (See MSJ Order at 10:4-5.)

Given that the district court’s Class Certification Order was predicated on Petitioner

having no standing to pursue injunctive relief, the ruling was questionable. It is based on the

district court’s decision to choose the most stringent test for standing on a divergent split of

authority where a resolution of that split may demonstrate that Petitioner in fact does have


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standing to pursue injunctive relief. Moreover, if Petitioner has standing to pursue injunctive

relief, his proposed liability only class would indisputably advance the litigation.

VI. THIS COURT SHOULD EXERCISE PENDENT APPELLATE JURISDICTION OVER THE DISTRICT COURT'S SUMMARY JUDGMENT RULING, WHICH IS INEXTRICABLY INTERTWINED WITH AND NECESSARY TO ENSURE MEANINGFUL REVIEW OF THE CLASS CERTIFICATION ORDER

“Pendent appellate jurisdiction refers to the exercise of jurisdiction over issues that

ordinarily may not be reviewed on interlocutory appeal, but may be reviewed on interlocutory

appeal if raised in conjunction with other issues properly before the court.” Meredith v. State of

Oregon, 321 F.3d 807, 812 (9th Cir. 2003), amended by 326 F.3d 1030 (9th Cir. 2003) (quoting

Cunningham v. Gates, 229 F.3d 1271, 1282 (9th Cir. 2000). In determining whether to exercise

pendent appellate jurisdiction, courts examine “whether an otherwise non-appealable ruling is

‘inextricably intertwined’ with or ‘necessary to ensure meaningful review of’ the order properly

before [the court] on interlocutory appeal.” Id. at 813 (quoting Swint v. Chambers County

Commission, 514 U.S. 35 (1995)).

For two issues to be inextricably intertwined, “the legal theories on which the issues

advance must either (a) be so intertwined that [the court] must decide the pendent issue in order

to review the claims properly raised on interlocutory appeal, . . . or (b) resolution of the issue

properly raised on interlocutory appeal necessarily resolves the pendent issue.” Cunningham, 229

F.3d at 1285 (citations omitted). “Necessary to ensure meaningful review” requires “much more

than a tangential relationship to the decision properly before [the court] on interlocutory appeal.”

Hendricks v. Bank of America, 408 F.3d 1127, 1134 (9th Cir. 2005).


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Here, both criteria for pendent appellate jurisdiction are met, although only one need be

demonstrated. The ruling on Petitioner’s Article III standing for injunctive relief is inextricably

bound up with the certification order. Effective review of the class certification order requires

review of the MSJ Order and its striking of injunctive relief because the district court relied on

this order in making its class certification ruling. See Paige v. State of California, 102 F.3d 1035,

1039-40 (9th Cir. 1996) (finding certification of a class inextricably intertwined with the issuance

of an interim injunction “because effective review of the injunction requires review of the class

certification”). The district court summarily denied class certification with respect to Rule

23(b)(2) based on the MSJ Order finding that Petitioner lacked standing to pursue injunctive

relief. (Class Cert. Order at 11, n. 3.) The district court’s Rule 23(b)(3) analysis only covered the

claims surviving the MSJ order, Petitioner’s claim under the UCL unlawful prong and for breach

of quasi-contract. (Class Cert. Order at 11-14.) The district court further denied certification

under Rule 23(c)(4) based on the fact that Petitioner’s viable claims and forms of relief had

already been winnowed down in the MSJ Order. (Id. at 15.)

As injunctive relief is the “centerpiece” of this case and the main relief that Petitioner

sought to achieve, having the Court review whether injunctive relief is appropriate is central to

moving the case forward and advancing the resolution of Petitioner’s core claims on a class-wide

basis. In re Motor Fuel, 292 F.R.D. at 667. Any review of the class certification ruling will

essentially involve the district court’s decision to preclude injunctive relief for Petitioner as a

“necessary predicate.” Paige, 102 F.3d at 1040. As the denial of class certification was based on

the fact that standing to pursue injunctive relief had been precluded, review of the MSJ order is


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necessary to ensure “meaningful review of the class certification decision.” Scott v. Family Dollar

Store, 733 F.3d 105, 111 (4th Cir. 2013) (accepting pendent appellate jurisdiction to review the

denial of a motion for leave to amend because it would ensure meaningful review of the class

certification decision on interlocutory appeal under Rule 23(f)).

VII. CONCLUSION

For the foregoing reasons, the Court should grant Petitioner leave pursuant to Rule 23(f)

to file an immediate appeal of the December 3, 2014 Order denying Petitioner’s Motion For

Class Certification. In conjunction therewith, the Court should also allow an immediate appeal

of the October 15, 2014 Order granting in part Mott's Motion For Summary Judgment with

respect to the ruling on Petitioner’s Article III standing to pursue injunctive relief.

Dated: December 17, 2014 Respectfully submitted,

Capstone Law APC

By:

Jordan L. Lurie Glenn Danas Robert K. Friedl Liana Carter Attorneys for Plaintiff-Petitioner Mohammed Rahman


CERTIFICATE OF SERVICE

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I hereby certify that I electronically filed the foregoing PETITION TO NINTH CIRCUIT FOR PERMISSION TO APPEAL & EXHIBITS 1-7 with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 17, 2014.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system. I further certify that some of the participants in the case are not registered

CM/ECF users. I have mailed the foregoing documents by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: Van H. Beckwith [email protected] Ryan L. Bangert [email protected] BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 600 Dallas, TX 75201-2980 Facsimile: (214) 953-6503

Kevin Marshall Sadler [email protected] BAKER BOTTS L.L.P. 1001 Page Mill Road Building One, Suite 200 Palo Alto, CA 94304 Facsimile: 650-739-7618

[X] (FEDERAL) I declare that I am employed in the office of a member of the

bar of this court at whose direction the service was made. I am employed in the State of California, County of Los Angeles. I am over

the age of 18 and not a party to the within suit; my business address is 1840 Century Park East, Suite 450, Los Angeles, California 90067.

I declare under penalty of perjury under the laws of the State of California

and the laws of the United States of America that the foregoing is true and correct.

Executed this 17th Day of December, 2014, at Los Angeles, California. Suzanne Levenson /s/ Suzanne LevensonType or Print Name Signature


EXHIBIT 1 Case: Rahman, Mohammed v. Mott's LLP et al

District Court Case No. 3:13-cv-03482-SI

Exhibit 1 ‐ ORDER DENYING MOTION FOR CLASS CERTIFICATION AND DENYING MOTION FOR RECONSIDERATION

Filed 12/03/2014


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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MOHAMMED RAHMAN,

Plaintiff,

v.

MOTT'S LLP,

Defendant.

Case No. 13-cv-03482-SI

ORDER DENYING MOTION FOR CLASS CERTIFICATION AND DENYING MOTION FOR RECONSIDERATION

Re: Dkt. Nos. 75, 84

Now before the Court is plaintiff Rahman’s motion for class certification and defendant

Motts’ motion for leave to file a motion for reconsideration, both scheduled for hearing on

December 5, 2014. Docket Nos. 75, 84. Pursuant to Civil Local Rule 7-1(b), the Court

determines that this matter is appropriate for resolution without oral argument and VACATES the

hearing. For the reasons stated below, the Court DENIES plaintiff’s motion to certify the class,

and DENIES defendant’s motion to reconsider.

I. Procedural Background

This is a consumer class action. Defendant Mott’s is the manufacturer of various food

products containing the statement “No Sugar Added” on their labels and/or packaging. Docket

No. 48, Second Amended Complaint (“SAC”) ¶¶ 1-2, 6. Plaintiff Mohammed Rahman alleges

that the use of the statement “No Sugar Added” on Mott’s 100% Apple Juice does not comply

with applicable Food and Drug Administration (“FDA”) regulations, specifically 21 C.F.R.

§ 101.60(c)(2). Id. ¶¶ 2, 8-12.

Plaintiff further alleges that defendant’s failure to comply with the FDA regulations

violates California’s Sherman Law (“Sherman Law”), California Health and Safety Code

Case3:13-cv-03482-SI Document90 Filed12/03/14 Page1 of 17 Case: 14-80183, 12/17/2014, ID: 9354470, DktEntry: 1-2, of 141

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?268601

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§ 109875 et seq. Id. ¶¶ 2, 13-16. Plaintiff alleges that he purchased Mott’s Original 100% Apple

Juice after reading and relying on the product’s “No Sugar Added” labeling and after observing

that a competitor’s 100% apple juice did not contain a “No Sugar Added” claim. Id. ¶ 31.

Plaintiff alleges that he would not have purchased as much of the product as he did if it did not

contain the “No Sugar Added” label. Id. ¶ 59.

On June 13, 2013, plaintiff filed a class action complaint in San Francisco County Superior

Court against defendants Mott’s and Dr. Pepper Snapple Group, Inc. (“Dr. Pepper”). Docket No.

1-1, Compl. ¶¶ 67-76. On July 26, 2013, defendants removed the action to this Court pursuant to

28 U.S.C. § 1441(b), based on the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).

Docket No. 1, Notice of Removal. On August 30, 2013, plaintiff voluntarily dismissed Dr.

Pepper. Docket No. 21. On August 30, 2013, defendant Mott’s filed a motion to dismiss, Docket

No. 22, and on September 30, 2013, plaintiff filed a first amended complaint (“FAC”), mooting

the motion to dismiss. Docket No. 29. Defendant Mott’s then moved to dismiss the FAC, Docket

No. 31, and on January 29, 2014, the Court granted the motion in part, with leave to amend.

Docket No. 46.

On February 24, 2014, plaintiff filed a second amended class action complaint (“SAC”),

alleging causes of action for: (1) violation of California’s Unfair Competition Law (“UCL”),

California Business and Professions Code § 17200 et seq; (2) violation of California’s False

Advertising Law (“FAL”), California Business and Professions Code § 17500 et seq; (3) violation

of California’s Consumers Legal Remedies Act (“CLRA”), California Civil Code § 1750 et seq;

(4) negligent misrepresentation; and (5) breach of quasi-contract. Docket No. 48, SAC. Mott’s

moved to dismiss the SAC, Docket. No. 49, and on April 8, 2014, the Court denied the motion.

Docket No. 54. On August 12, 2014, Mott’s moved for summary judgment. Docket No. 68. On

October 15, 2014, the Court largely held in Mott’s favor, denying summary judgment only as to

plaintiff’s cause of action under the UCL’s unlawful prong and for breach of quasi-contract.

Now before the Court is plaintiff’s motion for class certification, and defendant’s motion

to reconsider the issue of restitution damages in the Court’s summary judgment order. Docket

Nos. 75, 84.


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II. Plaintiff’s Mislabeling Allegations

All of Rahman’s claims are premised on his contention that, by including “No Sugar

Added” on the product label, Mott’s 100% Apple Juice is mislabeled under California’s Sherman

Law and FDA regulations. FAC ¶¶ 55, 63-64, 76-78, 85, 90. California’s Sherman Law broadly

prohibits the misbranding of food. Farm Raised Salmon Cases, 42 Cal. 4th 1077, 1086 (2008)

(citing Cal. Health & Safety Code § 110765). The Sherman Law incorporates all food labeling

regulations and any amendments to those regulations adopted pursuant to the Food, Drug, and

Cosmetic Act of 1938 (“FDCA”) as the food labeling regulations of California. Id. at 1087; Cal.

Health & Safety Code § 110100(a); see also Cal. Health & Safety Code §§ 110665, 110670. The

relevant FDCA labeling regulation, 21 C.F.R. § 101.60(c)(2), provides:

The terms “no added sugar,” “without added sugar,” or “no sugar added” may be used only if: (i) No amount of sugars, as defined in § 101.9(c)(6)(ii), or any other ingredient that contains sugars that functionally substitute for added sugars is added during processing or packaging; and (ii) The product does not contain an ingredient containing added sugars such as jam, jelly, or concentrated fruit juice; and (iii) The sugars content has not been increased above the amount present in the ingredients by some means such as the use of enzymes, except where the intended functional effect of the process is not to increase the sugars content of a food, and a functionally insignificant increase in sugars results; and (iv) The food that it resembles and for which it substitutes normally contains added sugars; and (v) The product bears a statement that the food is not “low calorie” or “calorie reduced” (unless the food meets the requirements for a “low” or “reduced calorie” food) and that directs consumers’ attention to the nutrition panel for further information on sugar and calorie content.

Plaintiff alleges that Mott’s fails to comply with section 101.60(c)(2)(v) because Mott’s

100% Apple Juice does not state on its labels that it is not “low calorie” or “calorie reduced,” as

defined by 21 C.F.R. §§ 101.60(b)(2)(i)(A) and 101.60(b)(4)(i). SAC ¶ 12. Plaintiff further alleges

that Mott’s fails to comply with section 101.60(c)(2)(iv) because Mott’s 100% Apple Juice does

not resemble or substitute for any foods that typically contain added sugars. Id. ¶ 11.

Rahman alleges that because the labels of competing apple juices did not contain a “No


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Sugar Added” statement, he concluded that this differentiated Mott’s 100% Apple Juice from the

competition as a less sugared, healthier product. Id. ¶¶ 31, 33, 35. Rahman alleges that if Mott’s

100% Apple Juice had been labeled in accordance with FDA regulations, he would not have been

misled as to its sugar content, and as a result would have purchased smaller quantities of it. Id.

¶ 59.

LEGAL STANDARD

Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs

bear the burden of showing that they have met each of the four requirements of Rule 23(a) and at

least one subsection of Rule 23(b). Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1067 (9th

Cir. 2014), citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). The

plaintiff “must actually prove – not simply plead – that their proposed class satisfies each

requirement of Rule 23, including (if applicable) the predominance requirement of Rule 23(b)(3).”

Halliburton Co. v. Erica P. John Fund, Inc., --- S.Ct. ---, 2014 WL 2807181 (June 23, 2014),

citing Comcast Corp v. Behrend, 133 S.Ct. 1426, 1431-32 (2013); Wal-Mart Stores, Inc. v. Dukes,

131 S.Ct. 2541, 2551-52 (2011).

The Court’s “class certification analysis must be rigorous and may entail some overlap

with the merits of the plaintiff’s underlying claim.” Amgen Inc. v. Connecticut Retirement Plans

and Trust Funds, 133 S.Ct. 1184, 1194 (2013), quoting Dukes, 131 S.Ct. at 2551 (internal

quotation marks omitted). These analytical principles govern both Rule 23(a) and 23(b).

Comcast, 133 S.Ct. at 1342. However, “Rule 23 grants courts no license to engage in free-ranging

merits inquiries at the certification stage.” Amgen, 133 S.Ct. at 1194-95. “Merits questions may

be considered to the extent – but only to the extent – that they are relevant to determining whether

Rule 23 prerequisites for class certification are satisfied.” Id.

Under Rule 23(a), the class may be certified only if: (1) the class is so numerous that

joinder of all members is impracticable, (2) questions of law or fact exist that are 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. See Fed. R. Civ. P. 23(a). “While it is not an enumerated requirement of Rule 23[(a)],


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courts have recognized that ‘in order to maintain a class action, the class sought to be represented

must be adequately defined and clearly ascertainable.’” Vietnam Veterans of Am. v. C.I.A., 288

F.R.D. 192, 211 (N.D. Cal. 2012), quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th

Cir.1970); see also Marcus v. BMW of North America, LLC, 687 F.3d 583, 592–93 (3d Cir.2012);

Werdebaugh v. Blue Diamond Growers, No. 12-CV-2724-LHK, 2014 WL 2191901, at *4 (N.D.

Cal. May 23, 2014). A plaintiff must also establish that one or more of the grounds for

maintaining the suit are met under Rule 23(b): (1) that there is a risk of substantial prejudice from

separate actions; (2) that declaratory or injunctive relief benefitting the class as a whole would be

appropriate; or (3) that common questions of law or fact predominate and the class action is

superior to other available methods of adjudication. See Fed. R. Civ. P. 23(b).

DISCUSSION

Plaintiff proposes to certify a class defined as: “All California residents who, from June 13,

2009, until the date of the preliminary approval order, purchased Mott’s 100% Apple Juice bearing

the statement “No Sugar Added” on the label or package (the “Class”).” Docket No. 75, Pl. Mot.

at 9.

I. Rule 23(a)

A. Numerosity

In order to certify, the class must be so numerous that joinder of all members individually

is “impracticable.” See Fed. R. Civ. P. 23(a)(1). “[I]mpracticability does not mean impossibility”

but rather speaks to “the difficulty or inconvenience of joining all members of the class.” Harris v.

Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964). “[C]ourts generally find

that the numerosity factor is satisfied if the class comprises 40 or more members, and will find that

it has not been satisfied when the class comprises 21 or fewer.” In re Facebook, Inc., PPC Adver.

Litig., 282 F.R.D. 446, 452 (N.D. Cal. 2012). Here it is uncontroverted that Mott’s sold millions of

units of the challenged product during the class period. Defendant does not argue that the

numerosity requirement has not been met. Accordingly, the Court finds that the numerosity


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requirement is satisfied. See Gay v. Waiters' & Dairy Lunchmen's Union, 549 F.2d 1330, 1332 nt.

5 (9th Cir. 1977) (“In ruling on a class action a judge may consider reasonable inferences drawn

from facts before him at that stage of the proceedings and an appellate court will generally defer to

the district court's determination that the class is sufficiently numerous as to make joinder

impractical.”).

B. Ascertainability

“A class is ascertainable if the class is defined with ‘objective criteria’ and if it is

‘administratively feasible to determine whether a particular individual is a member of the class.’”

Werdebaugh v. Blue Diamond Growers, No. 12-CV-2724-LHK, 2014 WL 2191901, at *9 (N.D.

Cal. May 23, 2014), citing Wolph v. Acer America Corp., No. 09–1314, 2012 WL 993531, at *1–2

(N.D.Cal. Mar. 23, 2012). Mott’s objects to finding the class ascertainable on two grounds.

First, Mott’s argues that the proposed class is not ascertainable because Mott’s does not

keep records to identify individuals who have purchased 100% Apple Juice, and because

consumers are unlikely to have kept purchase receipts. Docket No. 74, Def. Opp’n at 13.

Defendant relies in part on Carrera v. Bayer Corp., 727 F. 3d 300 (3d Cir. 2013), a case in which

the Third Circuit found a proposed class to be unascertainable because the use of affidavits to

identify class membership would deprive the defendant of due process rights, and because it

would be impracticable to assure the accuracy of the claims. Id. 309-10. “While this may now be

the law in the Third Circuit, it is not currently the law in the Ninth Circuit… In this Circuit, it is

enough that the class definition describes a set of common characteristics sufficient to allow a

prospective plaintiff to identify himself or herself as having a right to recover based on the

description.” McCrary v. Elations Co., LLC, No. EDCV 13-00242 JGB OP, 2014 WL 1779243, at

*8 (C.D. Cal. Jan. 13, 2014); see also Werdebaugh, No. 12-CV-2724-LHK, 2014 WL 2191901, at

*11; Astiana v. Kashi Co., 291 F.R.D. 493, 500 (S.D. Cal. 2013), citing Ries v. Arizona Beverages

USA LLC, 287 F.R.D. 523, 536 (N.D.Cal.2012) (“If class actions could be defeated because

membership was difficult to ascertain at the class certification stage, there would be no such thing

as a consumer class action.”). In light of the precedent set by many other district courts in this


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Circuit, the Court declines to follow Carrera. See Lilly v. Jamba Juice Co., No. 13-CV-02998-

JST, 2014 WL 4652283, at *4 (N.D. Cal. Sept. 18, 2014) (“Yet it is precisely in circumstances

like these, where the injury to any individual consumer is small, but the cumulative injury to

consumers as a group is substantial, that the class action mechanism provides one of its most

important social benefits.”).

Mott’s second argument is more persuasive. Mott’s notes that because the “No Sugar

Added” label did not appear on Mott’s 100% Apple Juice between roughly late 2010 to early

2012, plaintiff will not be able to distinguish consumers who purchased the product with the label

from those who purchased it without the label. Def. Opp’n at 14. Mott’s further notes that it has no

way of accurately assessing when the product with the challenged label actually appeared in retail

stores given that it would depend on each individual retailer’s inventory of Mott’s 100% Apple

Juice and when they decided to place new orders. Docket No. 87; see also Docket No. 87-1,

Blackwood Dep. Defendant relies on Astiana v. Ben & Jerry's Homemade, Inc., No. C 10-4387

PJH, 2014 WL 60097, (N.D. Cal. Jan. 7, 2014). In Astiana, plaintiffs claimed that the “all natural”

statement on the ice cream label was misleading because the product contained a synthetic

ingredient. However, only one out of as many as fifteen suppliers used the synthetic ingredient,

and the label did not denote whether the ingredient was present. Because it was impossible to

identify which consumers had consumed the ice cream containing the synthetic ingredient, the

Court found the class to be unascertainable. Id. at *3.

The Court agrees that defining the class period to include long stretches of time when the

challenged statement did not appear on the label would raise ascertainability concerns. However,

unlike Astiana, these issues can be cured by redefining the class to exclude any individuals who

purchased Mott’s between dates when "No Sugar Added" certainly did not appear on the label,

and by defining the class as only those persons who bought the juice with the challenged

statement.1 In Astiana, putative class members would have no way of knowing whether they

1 Rahman’s current proposed class definition already addresses this concern by limiting the

class to persons who “purchased Mott’s 100% Apple Juice bearing the statement ‘No Sugar Added’ on the label or package.”


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purchased ice cream with the synthetic ingredient, since it did not appear on the label. Here,

putative class members could know whether or not the challenged statement appeared on the label

when they purchased apple juice. Accordingly, the Court finds that the ascertainability concerns

raised by Mott’s do not require denying certification.

C. Commonality

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members

have suffered the same injury,” not “merely that they have all suffered a violation of the same

provision of law.” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011), quoting Falcon,

457 U.S. at 157 (internal quotation mark omitted). Plaintiffs’ claims “must depend on a common

contention,” and that common contention “must be of such a nature that it is capable of classwide

resolution – which means that determination of its truth or falsity will resolve an issue that is

central to the validity of each other of the claims in one stroke.” Id.

Here, plaintiff has demonstrated that there are significant questions common to the

proposed class, including whether the challenged statement violates relevant FDA regulations as

incorporated in the Sherman Law, and whether the challenged statement constitutes an “unlawful

practice” under the UCL. These questions are likely to “generate common answers apt to drive the

resolution of the litigation.” Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original) (internal

citations omitted).

D. Typicality

Rule 23(a)(3) requires the named plaintiffs to show that their claims are typical of those of

the class. To satisfy this requirement, the named plaintiffs must be members of the class and must

"possess the same interest and suffer the same injury as the class members." Falcon, 457 U.S. at

156 (quotation marks and citation omitted). The typicality requirement "is satisfied when each

class member's claim arises from the same course of events, and each class member makes similar

legal arguments to prove the defendant's liability." Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th


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Cir. 2010) (citation omitted). Rule 23(a)(3) is "permissive" and only requires that the named

plaintiffs' claims be "reasonably co-extensive with those of absent class members." Hanlon v.

Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).

Mott’s makes three arguments for why plaintiff is not typical of the class. The first two

arguments are (1) that reliance is an element of all of plaintiff’s claims, and that plaintiff did not

actually rely on the challenged label, and (2) that in his deposition testimony plaintiff disclaimed

any desire to obtain damages. Def. Opp’n 15-17. Both of these issues were addressed in the

Court’s summary judgment order, wherein the Court found that there is a triable issue of fact as to

whether plaintiff relied on the challenged statement, and that plaintiff did not affirmatively waive

his claim to damages through his deposition testimony. Moreover, these arguments are directed

more at the merits of the underlying case than Rahman’s typicality. “Merits questions may be

considered to the extent—but only to the extent—that they are relevant to determining whether the

Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans &

Trust Funds, 133 S. Ct. 1184, 1195 (2013). Neither of these two theories is sufficient to render

Rahman atypical.

Finally, Mott’s argues that Rahman is atypical of the class because he is a Type 2 diabetic

and closely reads nutrition labels. Def Opp’n 17-18. Setting aside the unfortunate reality that a

large and increasing proportion of Americans are afflicted with diabetes, hypertension, cancer, or

other diseases that would cause them to closely monitor their sugar consumption, Rule 23(a)(3) is

not concerned with every possible idiosyncrasy which may distinguish a class representative from

the class. Rather, “Rule 23(a)(3) focuses on the defendants' conduct and plaintiff's legal theory.”

Sisley v. Sprint Commc'ns Co., L.P., 284 F. App'x 463, 468 (9th Cir. 2008)(internal quotations

omitted). “Moreover, individual experience with a product is irrelevant because the injury under

the UCL… is established by an objective test. Specifically, this objective test states that injury is

shown where the consumer has purchased a product that is marketed with a material

misrepresentation…That Plaintiffs may have considered other factors in their purchasing decisions

does not make them atypical.” Werdebaugh, No. 12-CV-2724-LHK, 2014 WL 2191901, at *16

(internal citations omitted).


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Plaintiff’s claims are therefore typical of the class. Like all the members of the class,

plaintiff’s legal claims arise out of the harm resulting from the purchase of Mott’s 100% Apple

Juice with an allegedly unlawful statement on the label. Furthermore, Mott’s has identified no

“unique defenses” that would render Rahman atypical by “threaten[ing] to become the focus of the

litigation.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

E. Adequacy

Rule 23(a)(4) permits the certification of a class action only if “the representative parties

will fairly and adequately protect the interests of the class.” Representation is adequate if: (1) the

class representative and counsel do not have any conflicts of interest with other class members;

and (2) the representative plaintiff and counsel will prosecute the action vigorously on behalf of

the class. See Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003).

Mott’s arguments for why Rahman and his counsel are inadequate largely track its

arguments for why Rahman is atypical. While this is not surprising given that “[t]he adequacy-of-

representation requirement ‘tend[s] to merge’ with the commonality and typicality criteria of Rule

23(a),”Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626, nt. 20 (1997) (internal citations

omitted), the Court finds Mott’s arguments no more availing than it did under its typicality

analysis.

Rahman does not seek to prosecute any claims that are unique to him and there appears to

be no conflict of interest between Rahman, his counsel, or the class. There is also no basis for

determining that class counsel will not prosecute the action vigorously.

Mott’s urges the Court to find Rahman’s counsel inadequate under Ries v. Arizona

Beverages USA LLC, No. 10-01139 RS, 2013 WL 1287416 (N.D. Cal. Mar. 28, 2013). In Ries, the

plaintiffs’ counsel failed to appoint a damages expert by the deadline set by the Court, asked for an

extension to reopen expert discovery five months after the deadline had passed, and later withdrew

their deposition notice for defendants’ expert. The Court found plaintiffs’ counsel to be inadequate

because they “[had] been dilatory and [had] failed to prosecute [the] action adequately.” Id. at * 9.

Here, plaintiff’s counsel has not caused the type of undue delay that would warrant a finding of


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inadequacy. While Rahman has failed to articulate a methodology for calculating damages on a

class-wide basis, this appears to be a tactical choice rather than a symptom of inadequacy2.

Accordingly, the Court finds that the adequacy requirement is satisfied.

II. Rule 23(b)(3)

Along with the requirements of Rule 23(a), a plaintiff must also establish that one or more

of the grounds for maintaining the suit are met under Rule 23(b). Here, plaintiffs seek certification

under Rule 23(b)(3)3, which provides that a case may be certified as a class action if “the questions

of law or fact common to class members predominate over any questions affecting only individual

members, and that a class action is superior to other available methods for fairly and efficiently

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

The predominance requirement of Rule 23(b) “is far more demanding” than the

commonality requirement of Rule 23(a). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24

(1997). This inquiry “tests whether proposed classes are sufficiently cohesive to warrant

adjudication by representation.” Id. at 623. See also Wang v. Chinese Daily News, Inc., 737 F.3d

538, 545 (9th Cir. 2013), quoting Hanlon, 150 F.3d at 1022 (internal quotation mark omitted) (The

predominance analysis “focuses on the relationship between the common and individual issues in

the case and tests whether proposed classes are sufficiently cohesive to warrant adjudication by

representation.”). The Rule requires “that common questions ‘predominate over any questions

affecting only individual [class] members.’” Amgen, 133 S.Ct. at 1196 (quoting Fed. R. Civ. P.

23(b)(3)) (emphasis in original).

As noted above, plaintiff has shown commonality as to issues arising under the unlawful

prong of the UCL. Plaintiff further argues that these issues will predominate over issues unique to

individual class members. Plaintiff has made a prima facie showing that the “No Sugar Added”

2 As discussed below, Rahman seeks to certify a liability-only class under Rule 23(c)(4),

which would potentially obviate the need for a damages expert. 3 To the extent Rahman continues to move for certification pursuant to Rule 23(b)(2), his

motion is denied as moot. In its summary judgment order, the Court held that Rahman did not have Article III standing for injunctive relief. Docket No. 83 at 7-11.


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statement constitutes a violation of California’s Sherman Law, and is thus independently

actionable under the unlawful prong of the UCL. Such a showing gives rise to a presumption of

materiality. Hinojos v. Kohl's Corp., 718 F.3d 1098, 1107 (9th Cir. 2013), citing Kwikset Corp. v.

Superior Court, 120 Cal.Rptr.3d 741, 246 P.3d at 892–93. (“[T]he legislature's decision to prohibit

a particular misleading advertising practice is evidence that the legislature has deemed that the

practice constitutes a ‘material’ misrepresentation, and courts must defer to that determination.”).

Furthermore, “[a] presumption, or at least an inference, of reliance arises wherever there is a

showing that a misrepresentation was material.” Tobacco II Cases, 46 Cal. 4th 298, 327 (2009).

Mott’s argument that reliance is not subject to common proof because “Rahman has no evidence

that consumers would rely on ‘No Sugar Added’ in the same idiosyncratic way that Rahman did,”

Def. Opp’n at 21, is inapposite in light of this objective standard. See Lilly, No. 13-CV-02998-

JST, 2014 WL 4652283, at *8 (“proving the ‘unfair’ and ‘unlawful’ prongs of the UCL also do not

depend upon any issues specific to individual consumers.”); see also Mass. Mutual Life Ins. Co. v.

Superior Court, 97 Cal.App.4th 1282, 1292, 119 Cal.Rptr.2d 190 (2002) (internal citations

omitted) (holding that under the CLRA, “if the trial court finds material misrepresentations were

made to the class members, at least an inference of reliance would arise as to the entire class.”).

Therefore, the Court finds that Rahman has satisfied the predominance requirement as to issues of

liability.

Mott’s also argues that Rahman has failed to “satisfy the predominance requirement

because he has not presented a damages model that is attributable to Mott’s alleged misconduct, or

demonstrated how damages can be shown on a class-wide basis using collective evidence.” Def

Opp’n at 20. To satisfy the predominance requirement, Rahman must show (1) that “damages are

capable of measurement on a classwide basis,” Comcast, 133 S. Ct. at1433, and (2) that there is a

nexus between his theory of liability and his method of proving damages. Id. (“If respondents

prevail on their claims, they would be entitled only to damages resulting from reduced overbuilder

competition, since that is the only theory of antitrust impact accepted for class-action treatment by

the District Court. It follows that a model purporting to serve as evidence of damages in this class

action must measure only those damages attributable to that theory. If the model does not even


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attempt to do that, it cannot possibly establish that damages are susceptible of measurement across

the entire class for purposes of Rule 23(b)(3).”).

So long as plaintiff has satisfied these two prongs, in the Ninth Circuit, predominance will

not be defeated merely because individualized damages calculations may ultimately be necessary

in the event plaintiffs prevails. Leyva v. Medline Indus. Inc., 716 F.3d 510, 513 (9th Cir. 2013)

(“In this circuit, however, damage calculations alone cannot defeat certification.”)(internal

citations omitted); Munoz v. PHH Corp., No. CV 08–00759 AWI, 2013 WL 2146925, at *24

(E.D.Cal. May 15, 2013) (“The Comcast decision does not infringe on the long-standing principle

that individual class member damage calculations are permissible in a certified class under Rule

23(b)(3)”); Astiana v. Kashi Co., 291 F.R.D. 493, 506 (S.D. Cal. 2013) (“Plaintiffs represent that

they can calculate the total restitutionary damages…If individual issues as to how much reward

each class member is entitled [to] later predominate, the Court can address such concerns at that

time.”).

Under plaintiff’s UCL and quasi-contract claims, the proper measure of damages is

restitution. Vicuna v. Alexia Foods, Inc., No. C 11-6119 PJH, 2012 WL 1497507, at *3 (N.D. Cal.

Apr. 27, 2012) (holding that restitution is a proper measure of damages for breach of quasi-

contract); Gustafson v. BAC Home Loans Servicing, LP, 294 F.R.D. 529, 539 (C.D. Cal. 2013)

(“Plaintiffs under the UCL can recover only restitution and injunctive relief.”). This will likely

involve demonstrating what portion of the sale price was attributable to the value consumers

placed on the “No Sugar Added” statement. Plaintiff has failed to show predominance as to

damages because he has introduced no evidence showing that restitution “damages [can] feasibly

and efficiently be calculated once the common liability questions are adjudicated.” Leyva, 716

F.3d at 514. Accordingly, the Court finds that the class may not be certified for purposes of

seeking damages. See Lilly, No. 13-CV-02998-JST, 2014 WL 4652283, at *10 (holding that where

damage calculations are likely to be complex, “expert reports or at least some evidentiary

foundation may have to be laid to establish the feasibility and fairness of damage assessments.”);

Werdebaugh, No. 12-CV-2724-LHK, 2014 WL 2191901, at *22 (holding that plaintiff “must

present a damages methodology that can determine the price premium attributable to Blue


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Diamond's use of the [challenged] labeling statements.”); In re POM Wonderful LLC, No. ML 10-

02199 DDP RZX, 2014 WL 1225184, at *5 (C.D. Cal. Mar. 25, 2014) (“Plaintiffs must

demonstrate, therefore, that Defendant's alleged misrepresentations caused Plaintiffs to pay a

‘price premium’ of $290 million more than Plaintiffs otherwise would have paid for Defendant's

products in the absence of the misrepresentations.”); In re Rail Freight Fuel Surcharge Antitrust

Litig.-MDL No. 1869, 725 F.3d 244, 253 (D.C. Cir. 2013) ( summarizing the holding of Comcast

as “[n]o damages model, no predominance, no class certification.”).

III. Rule 23(c)(4)

Acknowledging his failure to provide evidence sufficient to demonstrate predominance as

to damages, Rahman asks the Court to certify a liability-only class under Rule 23(c)(4), which

provides that “[w]hen appropriate, an action may be brought or maintained as a class action with

respect to particular issues.” Fed. R. Civ. P. 23(c)(4). In the wake of Comcast, a number of other

circuits have held that a liability-only class may be certified even in the absence of a showing of

predominance on the issue of damages, while the Ninth Circuit appears to have implicitly

endorsed this approach. In re Deepwater Horizon, 739 F.3d 790, 817 (5th Cir. 2014), citing In re

Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 860 (6th Cir. 2013)

(“[T]he rule of Comcast is largely irrelevant [w]here determinations on liability and damages have

been bifurcated in accordance with Rule 23(c)(4) and the district court has reserved all issues

concerning damages for individual determination. Even after Comcast, the predominance inquiry

can still be satisfied under Rule 23(b)(3) if the proceedings are structured to establish liability on a

class-wide basis, with separate hearings to determine—if liability is established—the damages of

individual class members.”); Butler v. Sears, Roebuck & Co., 727 F.3d 796, 800 (7th Cir. 2013)

(“a class action limited to determining liability on a class-wide basis, with separate hearings to

determine—if liability is established—the damages of individual class members, or homogeneous

groups of class members, is permitted by Rule 23(c)(4) and will often be the sensible way to

proceed.”); see also Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1168 (9th Cir. 2014) (holding that

Butler, Whirlpool, and Deepwater Horizon “are compelling. And their reasoning is consistent with


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our circuit precedent.”).

However, a district court is not bound to certify a liability class merely because it is

permissible to do so under Rule 23(b)(3). The language of Rule 23(c)(4) speaks of certifying as to

particular issues “when appropriate,” meaning that “[c]ourts should use Rule 23(c)(4) only where

resolution of the particular common issues would materially advance the disposition of the

litigation as a whole.” Jacob v. Duane Reade, Inc., 293 F.R.D. 578, 589 (S.D.N.Y. 2013) (internal

citations omitted). Rahman has failed to articulate why a bifurcated proceeding would be more

efficient or desirable. In his briefs, he has been vague as to whether he intends to later certify a

damages class, allow class members to individually pursue damages, or has some other

undisclosed plan for resolving this case.4 In any event, none of these options is particularly

desirable. Should Rahman prevail on the issue of liability, certifying a second class on the issue of

damages would in essence amount to prosecuting two trials when one would have done just as

well. Alternatively, allowing myriad individual damages claims to go forward hardly seems like a

reasonable or efficient alternative, particularly in a case such as this where the average class

member is likely to have suffered less than a hundred dollars in damages.

In Lilly, the Court certified a liability class under Rule 23(c)(4) where the plaintiff had

presented no evidence on how damages could be calculated on class-wide basis, reasoning that

“[s]ome of the difficulties in determining individual damages may fall away after liability is

determined, depending upon which claims (if any) are successful, and which type [of] relief the

class is entitled to.” No. 13-CV-02998-JST, 2014 WL 4652283, at * 11. However this rationale is

not instructive in the present case, as plaintiff’s viable claims and forms of relief have already

been significantly winnowed down in the wake of the Court’s summary judgment order.5 Plaintiff

had ample opportunity to produce evidence necessary to satisfy the requisites of Comcast and

4 In response to a Court order directing Rahman to reply to supplemental questions on this

issue, he appears to assume that once he proves liability, he will be able to reach a damages settlement with Mott’s. Docket No. 88. However, proof of liability would not automatically provide a legal entitlement to damages, and Mott’s has expressed an unwillingness to engage in such a settlement. Docket No. 89.

5 In Lilly the parties had yet to file motions for summary judgment at the time the Court

ruled on plaintiffs’ motion to certify.


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certify a class as to both liability and damages. He chose not to.

The Court finds that certifying a liability only class under Rule 23(c)(4) will not materially

advance the resolution of this case. Accordingly, plaintiff’s motion to certify is DENIED.

IV. Motion for Reconsideration

Mott’s brings a motion for leave to file a motion for reconsideration, contending “manifest

failure by the Court to consider material facts or dispositive legal arguments which were presented

to the Court.” See Civil L.R. 7-9(b)(3). Mott’s argues that the Court erred in its summary

judgment order in finding that Rahman had presented sufficient evidence to show restitution

damages. While Mott’s concedes that the Court properly considered whether Rahman had

introduced sufficient evidence of damages to confer statutory standing under the UCL, it contends

that the Court did not adequately consider the question of whether Rahman had introduced

sufficient evidence to establish “actual damages.” Docket No. 84, Def. Mot. at 2.

Under the UCL, a plaintiff is entitled to restitution damages. Gustafson, 294 F.R.D. at 539

(“Plaintiffs under the UCL can recover only restitution and injunctive relief.”). “The difference

between what the plaintiff paid and the value of what the plaintiff received is a proper measure of

restitution. In order to recover under this measure, there must be evidence of the actual value of

what the plaintiff received.” In re Vioxx Class Cases, 180 Cal. App. 4th 116, 131 (2009). “The

amount of restitution awarded under the…Unfair Competition Laws…must be supported by

substantial evidence.” Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 700 (2006).

In its summary judgment order, the Court held that “Rahman [had] provided an estimate

of how much he spent on Mott's 100% Apple Juice (three to five dollars per bottle), as well as the

incremental increase in his expenditures that [were] attributable to the allegedly misleading

labeling (approximately one additional bottle every two weeks).” Docket No. 83 at 6-7. In other

words, holding price and supply constant, Rahman’s demand for Mott’s 100% Apple Juice

increased solely on account of the allegedly deceptive statement on the label. This is competent

evidence of restitution damages because it isolates the incremental value associated with the

challenged statement and thereby allows for disaggregation of the “value of what plaintiff

received” from what he paid.


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Mott’s relies heavily on Ogden v. Bumble Bee Foods, LLC, No. 5:12-CV-01828-LHK,

2014 WL 27527 (N.D. Cal. Jan. 2, 2014), a case in which the Court found that plaintiff had

introduced adequate evidence of damages to confer statutory standing, but had not introduced

sufficient evidence of restitution damages to survive summary judgment. In Ogden, the Court held

that the plaintiff had failed to meet her evidentiary burden because she had not introduced

“evidence of the value of Bumble Bee's products without the allegedly unlawful label statements.”

Id. at * 13. The plaintiff in Ogden ultimately failed to meet her evidentiary burden because she

could not divine the value of the product in a hypothetical world where the challenged statement

did not appear on the label.

In the present case, Rahman need not employ an econometric model or a hedonic

regression analysis to estimate the value of Mott’s 100% Apple Juice without the “No Sugar

Added” statement on the label. As noted above, the product was on store shelves without the

challenged statement for over a year. Rahman has testified that, holding all other relevant factors

constant, he demanded more of the product when its label bore the allegedly offending statement,

and provided the Court with evidence of precisely how much more he demanded. The Court

therefore found that he met his evidentiary burden. Accordingly, defendant’s motion for leave to

file a motion for reconsideration is DENIED.

IT IS SO ORDERED.

Dated: December 3, 2014

______________________________________

SUSAN ILLSTON United States District Judge




Exhibit 2 ‐ ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Filed 10/15/2014


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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MOHAMMED RAHMAN, individually, and onbehalf of other members of the general publicsimilarly situated,

Plaintiff,

v.

MOTT’S LLP, a Delaware limited liabilitypartnership; and DOES 1 through 10, inclusive,

Defendants. /

No. CV 13-3482 SI

ORDER GRANTING IN PART ANDDENYING IN PART DEFENDANT’SMOTION FOR SUMMARY JUDGMENT

Now before the Court is defendant Mott’s LLP’s motion for summary judgment, scheduled for

hearing on October 17, 2014. Docket No. 68. Pursuant to Civil Local Rule 7-1(b), the Court determines

that this matter is appropriate for resolution without oral argument and VACATES the hearing. For the

reasons below, the Court GRANTS in part and DENIES in part Mott’s motion to dismiss.

BACKGROUND

I. Procedural Background

This is a consumer class action. Defendant Mott’s is the manufacturer of various food products

containing the statement “No Sugar Added” on their labels and/or packaging. Docket No. 48, Second

Amended Complaint (“SAC”) ¶¶ 1-2, 6. Plaintiff Mohammed Rahman alleges that the use of the

statement “No Sugar Added” on Mott’s 100% Apple Juice does not comply with the applicable Food

and Drug Administration (“FDA”) regulations, specifically 21 C.F.R. § 101.60(c)(2). Id. ¶¶ 2, 8-12.


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2

Plaintiff further alleges that defendant’s failure to comply with the FDA regulations violates

California’s Sherman Law (“Sherman Law”), California Health and Safety Code § 109875 et seq. Id.

¶¶ 2, 13-16. Plaintiff alleges that he purchased Mott’s Original 100% Apple Juice after reading and

relying on the product’s “No Sugar Added” labeling and after observing that a competitor’s 100% apple

juice did not contain a “No Sugar Added” claim. Id. ¶ 31. Plaintiff alleges that he would not have

purchased as much of the product as he did if it did not contain the “No Sugar Added” label. Id. ¶ 59.

On June 13, 2013, plaintiff filed a class action complaint in San Francisco County Superior Court

against defendants Mott’s and Dr. Pepper Snapple Group, Inc. (“Dr. Pepper”). Docket No. 1-1, Compl.

¶¶ 67-76. On July 26, 2013, defendants removed the action to this Court pursuant to 28 U.S.C.

§ 1441(b), based on the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Docket No. 1,

Notice of Removal. On August 30, 2013, plaintiff voluntarily dismissed Dr. Pepper. Docket No. 21.

On August 30, 2013, defendant Mott’s filed a motion to dismiss, Docket No. 22, and on September 30,

2013, plaintiff filed a first amended complaint (“FAC”), mooting the motion to dismiss. Docket No. 29.

Defendant Mott’s then moved to dismiss the FAC, Docket No. 31, and on January 29, 2014, the Court

granted the motion in part, with leave to amend. Docket No. 46.

On February 24, 2014, plaintiff filed a second amended class action complaint (“SAC”), alleging

causes of action for: (1) violation of California’s Unfair Competition Law (“UCL”), California Business

and Professions Code § 17200 et seq; (2) violation of California’s False Advertising Law (“FAL”),

California Business and Professions Code § 17500 et seq; (3) violation of California’s Consumers Legal

Remedies Act (“CLRA”), California Civil Code § 1750 et seq; (4) negligent misrepresentation; and (5)

breach of quasi-contract. Docket No. 48, SAC. Mott’s moved to dismiss the SAC, Docket. No. 49, and

on April 8, 2014, the Court denied the motion. Docket No. 54. Now before the Court is defendant’s

motion for summary judgment. Docket No. 68.

II. Plaintiff’s Mislabeling Allegations

All of Rahman’s statutory and common law claims are premised on his contention that, by

including “No Sugar Added” on the product label, Mott’s 100% Apple Juice is mislabeled under

California’s Sherman Law and FDA regulations. FAC ¶¶ 55, 63-64, 76-78, 85, 90. California’s


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1Rahman asks the Court to take judicial notice of the fact that (1) Mott’s 100% Apple Juice“resembles and substitutes for” apple juice from concentrate, and (2) that apple juice from concentratedoes not “normally contain added sugar.” Docket No. 78. The Court declines to take judicial notice ofthese facts because they are subject to “reasonable dispute,” Fed. R. Evid. 201(b), and in fact involve“central and disputed issues” in this case. Cactus Corner LLC v. U.S. Dep’t of Agriculture, 346 F. Supp.2d 1075, 1098 (E.D. Cal. 2004), citing U.S. v. Baker, 641 F. 2d 1311, 1316 (9th Cir. 1981) (“A matteris not properly subject to judicial notice by the court if it involves a central and disputed issue.”).

3

Sherman Law broadly prohibits the misbranding of food. Farm Raised Salmon Cases, 42 Cal. 4th 1077,

1086 (2008) (citing Cal. Health & Safety Code § 110765). The Sherman Law incorporates all food

labeling regulations and any amendments to those regulations adopted pursuant to the Food, Drug, and

Cosmetic Act of 1938 (“FDCA”) as the food labeling regulations of California. Id. at 1087; Cal. Health

& Safety Code § 110100(a); see also Cal. Health & Safety Code §§ 110665, 110670. The relevant

FDCA labeling regulation, 21 C.F.R. § 101.60(c)(2), provides:

The terms “no added sugar,” “without added sugar,” or “no sugar added” may be usedonly if:

(i) No amount of sugars, as defined in § 101.9(c)(6)(ii), or any other ingredient thatcontains sugars that functionally substitute for added sugars is added during processingor packaging; and

(ii) The product does not contain an ingredient containing added sugars such as jam,jelly, or concentrated fruit juice; and

(iii) The sugars content has not been increased above the amount present in theingredients by some means such as the use of enzymes, except where the intendedfunctional effect of the process is not to increase the sugars content of a food, and afunctionally insignificant increase in sugars results; and

(iv) The food that it resembles and for which it substitutes normally contains addedsugars; and

(v) The product bears a statement that the food is not “low calorie” or “calorie reduced”(unless the food meets the requirements for a “low” or “reduced calorie” food) and thatdirects consumers’ attention to the nutrition panel for further information on sugar andcalorie content.

Plaintiff alleges that Mott’s fails to comply with section 101.60(c)(2)(v) because Mott’s 100%

Apple Juice does not state on its labels that it is not “low calorie” or “calorie reduced,” as defined by

21 C.F.R. §§ 101.60(b)(2)(i)(A) and 101.60(b)(4)(i). SAC ¶ 12. Plaintiff further alleges that Mott’s fails

to comply with section 101.60(c)(2)(vi) because Mott’s 100% Apple Juice does not resemble or

substitute for any foods that typically contain added sugars.1 Id. ¶ 11.


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Rahman alleges that because the labels of competing apple juices did not contain a “No Sugar

Added” statement, he concluded that this differentiated Mott’s 100% Apple Juice from the competition

as a less sugared, healthier product. Id. ¶¶ 31, 33, 35. Rahman alleges that if Mott’s 100% Apple Juice

had been labeled in accordance with FDA regulations, he would not have been misled as to its sugar

content, and as a result would have purchased smaller quantities of it. Id. ¶ 59.

LEGAL STANDARD

Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled

to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). The moving party, however, has no burden to disprove matters on which the non-moving

party will have the burden of proof at trial. The moving party need only demonstrate to the Court that

there is an absence of evidence to support the non-moving party’s case. Id. at 325.

Once the moving party has met its burden, the burden shifts to the non-moving party to “set out

‘specific facts showing a genuine issue for trial.’” Id. at 324 (quoting then Fed. R. Civ. P. 56(e)). To

carry this burden, the non-moving party must “do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence . . . will be insufficient; there

must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

In deciding a summary judgment motion, the Court must view the evidence in the light most

favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.” Id.

However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise

genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d

730, 738 (9th Cir. 1979). The evidence the parties present must be admissible. Fed. R. Civ. P. 56(c)).


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DISCUSSION

Defendant moves for summary judgement on four grounds: (1) Rahman did not suffer damages

as a result of purchasing and consuming Mott’s 100% Apple Juice; (2) Rahman lacks Article III

standing to seek injunctive relief; (3) Rahman did not rely on the words “No Sugar Added” when

choosing to purchase and consume Mott’s 100% Apple Juice; (4) Rahman has failed to introduce

evidence showing that the words “No Sugar Added” on the label are misleading to a reasonable

consumer. Each argument is addressed in turn.

I. Damages

Mott's argues that Rahman's claims should be dismissed because he has failed to articulate a

theory of damages, and because in his testimony Rahman disclaimed any desire to receive monetary

relief in this lawsuit. Docket No. 68 at 7-12.

To establish statutory standing under the UCL, FAL, and CLRA, a plaintiff must demonstrate

that he has suffered monetary damages. Under the UCL, a litigant must have "suffered injury in fact and

. . . lost money or property as a result of the unfair competition" in order to have statutory standing. Cal.

Bus. & Prof. Code § 17204. The FAL requires that a litigant have "suffered injury in fact and has lost

money or property as a result of a violation of this chapter." Cal. Bus. & Prof. Code § 17535. The

CLRA confers standing on "[a]ny consumer who suffers any damage as a result of the . . . act, or

practice declared to be unlawful." Cal. Civ. Code § 1780; Aron v. U-Haul Co. of California, 143 Cal.

App. 4th 796, 802, (2006).

The California Supreme Court has explained that "[t]here are innumerable ways in which

economic injury from unfair competition may be shown. A plaintiff may (1) surrender in a transaction

more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future

property interest diminished; (3) be deprived of money or property to which he or she has a cognizable

claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise

have been unnecessary." Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 323 (2011). Specifically, in

Kwikset the California Supreme Court held that "a consumer who relies on a product label and

challenges a misrepresentation contained therein can satisfy the standing requirement of section 17204


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by alleging . . . that he or she would not have bought the product but for the misrepresentation." Id. at

330; see also Hinojos v. Kohl's Corp., 718 F.3d 1098, 1107 (9th Cir. 2013) ("[W]hen a consumer

purchases merchandise on the basis of false price information, and when the consumer alleges that he

would not have made the purchase but for the misrepresentation, he has standing to sue under the UCL

and FAL because he has suffered an economic injury.").

Rahman alleges that he suffered damages because the "No Sugar Added" statement caused him

to purchase more of the product than he otherwise would have. SAC ¶ 59. In response, Mott's argues

"[e]ven if that were true, simply buying more of a product that one 'enjoyed,' 'wanted,' and fully

consumed, see id. at 121:22-123:4, is not a valid theory of damages." Docket No. 68 at 9. This Court

previously rejected that argument:

. . . Plaintiff alleges that he would not have purchased as much of the product as he didbut for the misrepresentations. Thus, plaintiff alleges that he entered into moretransactions and parted with more money than he would have absent themisrepresentations. “That increment, the extra money paid, is economic injury andaffords the consumer standing to sue.” Kwikset, 51 Cal. 4th at 330. Accordingly,plaintiff's allegations are sufficient to plead economic injury, and the Court deniesdefendant's motion to dismiss these claims for failure to adequately allege injury anddamages.

Docket No. 54 at 9.

Rahman has testified that after seeing the "No Sugar Added" statement he began to increase his

purchases of Mott's 100% Apple Juice. Docket No. 68-3 at 210, 212. More specifically, he testified that

he was buying two to three bottles of Mott's 100% Apple Juice every two weeks, but began purchasing

three to four bottles every two weeks upon noticing the "No Sugar Added" statement on the label. Id.

at 213-15. Rahman further testified that he typically paid between three to five dollars per bottle. Id. at

166. Testimony from the plaintiff as to how much he spent on the product is competent evidence of

damages; he need not furnish sales receipts or other extrinsic evidence. See Ogden v. Bumble Bee Foods,

LLC, 5:12-CV-01828-LHK, 2014 WL 27527 at *13 (N.D. Cal. Jan. 2, 2014). Rahman has provided an

estimate of how much he spent on Mott's 100% Apple Juice (three to five dollars per bottle), as well as

the incremental increase in his expenditures that are attributable to the allegedly misleading labeling


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2 The Court finds unpersuasive Mott's argument that summary judgment should be grantedbecause Rahman testified that the only thing he wants "out of the lawsuit [is] for Mott's to change theirlabeling," and that he does not personally “want” any money from Mott's. Docket No. 68-3 at 119.

3 Plaintiff alleges that he has “Type 2 Diabetes.” SAC, ¶ 29.

7

(approximately one additional bottle every two weeks). This evidence is sufficient to establish damages

for purposes of statutory standing under the UCL, CLRA, and FAL.2

II. Article III Standing for Injunctive Relief

Mott’s argues that Rahman lacks Article III standing to seek injunctive relief. Docket No. 68 at

12-15. Rahman alleges, at SAC ¶ 32, that he has developed a liking for and interest in Mott’s Apple

Juice and accordingly “intends to purchase Mott’s 100% Apple Juice in the future, but only in reduced

amounts consistent with his dietary restrictions.”3

As discussed above, the UCL, CLRA, and FAL require a plaintiff to show he has suffered injury

and incurred damages in order to confer statutory standing (Section I. Damages, supra). Passed by the

voters in 2004, Proposition 64 put these standing requirements in place in order to curtail frivolous

lawsuits under California’s unfair competition laws. “The California voters identified the gateway for

these abuses as the unaffected plaintiff, which was often the sham creation of attorneys, and expressed

their intent to prohibit private attorneys from filing lawsuits for unfair competition where they have no

client who has been injured in fact under the standing requirements of the United States Constitution.”

Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133, 1138-39 (C.D. Cal. 2005) (internal citations

omitted). Prop 64 was also aimed at preventing individual citizens from bringing suits on behalf of the

public at large, and thus declares that “only the California Attorney General and local public officials

[are] authorized to file and prosecute actions on behalf of the general public.” Prop. 64 §1(f); Profant v.

Have Trunk Will Travel, CV 11-05339-RGK OPX, 2011 WL 6034370 at * 2 (C.D. Cal. Nov. 29, 2011)

(“To the extent Plaintiffs attempt to bring their claims on behalf of the public, their claims are barred by

Proposition 64.”); see also Californians For Disability Rights v. Mervyn's, LLC, 39 Cal. 4th 223, 228

(2006).

In the wake of Prop 64, in order to have statutory standing to complain about unlawful or

deceptive behavior under the UCL, CLRA, and FAL, a plaintiff must demonstrate some causal nexus


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between the unlawful or deceptive act and damages incurred by the plaintiff. Meyer v. Sprint Spectrum

L.P., 45 Cal. 4th 634, 641(2009) (“Thus, the statute provides that in order to bring a CLRA action, not

only must a consumer be exposed to an unlawful practice, but some kind of damage must result.”).

Rahman’s attempt to rely on past injury to provide statutory standing for injunctive relief (without

showing a likelihood of future harm) is inconsistent with Prop 64's prohibition on the ability of

individuals to file lawsuits “on behalf of the public.” However, even if the UCL, CLRA, and FAL can

be read to confer statutory standing for injunctive relief on a plaintiff, suing in state court, who suffers

no risk of future harm, this federal Court, as a court of limited jurisdiction, must ensure strict compliance

with the requirements of Article III. Lee v. Am. Nat. Ins. Co., 260 F.3d 997, 1001-02 (9th Cir. 2001) (“a

plaintiff whose cause of action is perfectly viable in state court under state law may nonetheless be

foreclosed from litigating the same cause of action in federal court, if he cannot demonstrate the requisite

injury.”).

To have standing to obtain injunctive relief, a plaintiff must allege that a “real or immediate

threat” exists that he will be wronged again. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); see

also Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 946 (9th Cir. 2011) (“[T]o establish standing

to pursue injunctive relief, . . . [plaintiff] must demonstrate a ‘real and immediate threat of repeated

injury’ in the future.”). The “threatened injury must be certainly impending to constitute injury in fact,

and allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int'l USA, 133 S. Ct.

1138 (2013) (internal citations omitted). The alleged threat cannot be “conjectural” or “hypothetical.”

Lyons, 461 U.S. at 101-02. “Past exposure to illegal conduct does not in itself show a present case or

controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”

O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974).

Courts in this circuit have taken different approaches to standing analysis in cases involving

alleged violations of California’s unfair competition laws by purveyors of food and other consumer

products. Some courts have held, on public policy grounds, that a plaintiff need not even allege that he

intends to purchase the mislabeled product in the future in order to have standing for injunctive relief.

Henderson v. Gruma Corp., CV 10-04173 AHM AJWX, 2011 WL 1362188 at * 8 (C.D. Cal. Apr. 11,

2011). (“While Plaintiffs may not purchase the same Gruma products as they purchased during the class


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period, because they are now aware of the true content of the products, to prevent them from bringing

suit on behalf of a class in federal court would surely thwart the objective of California's consumer

protection laws.”).

Other courts have taken the position that a plaintiff must allege an intent to purchase the

challenged product in the future in order to have standing for injunctive relief. See Jou v. Kimberly-Clark

Corp., 2013 U.S. Dist. LEXIS 173216, at *13 (N.D. Cal. Dec. 10, 2013) (rejecting “Plaintiffs’ contention

that it is unnecessary for them to maintain any interest in purchasing the products in the future” in order

to establish Article III standing for injunctive relief); see also Ries v Arizona Beverages USA LLC, 287

F.R.D. 523, 533-34 (N.D. Cal. 2012) (finding that plaintiffs had standing to pursue injunctive relief

where they alleged that they intended to purchase the products in the future).

Finally, some courts have held that the plaintiff’s knowledge of the allegedly unlawful or

misleading conduct precludes standing for injunctive relief under Article III. Morgan v. Wallaby Yogurt

Co., 13-CV-00296-WHO, 2014 WL 1017879 at * 6 (N.D. Cal. Mar. 13, 2014) (“Here, I am limited to

only granting damages since the plaintiffs now know what evaporated cane juice is and have

unambiguously stated that they would not have purchased the product had they known it contained added

sugar. They cannot plausibly allege that they would purchase the challenged products in the future if they

were properly labeled.”); Garrison v. Whole Foods Mkt. Grp., Inc., 13-CV-05222-VC, 2014 WL

2451290 at * 5 (N.D. Cal. June 2, 2014) (“The named plaintiffs in this case allege that had they known

the Whole Foods products they purchased contained SAPP, they would not have purchased them. Now

they know. There is therefore no danger that they will be misled in the future.”); Ham v. Hain Celestial

Grp., Inc., 14-CV-02044-WHO, 2014 WL 4965959 at * 6 (N.D. Cal. Oct. 3, 2014)(finding the plaintiff

did not have standing for injunctive relief “[b]ecause [plaintiff] is now aware that the products use

SAPP, she cannot allege that she would be fraudulently induced to purchase the products in the future.”);

Algarin v. Maybelline, LLC, 300 F.R.D. 444, 458 (S.D. Cal. 2014) (“These consumers will not benefit

from the injunctive relief as they cannot demonstrate a probability of future injury; if they know the

‘truth’ they cannot be further deceived.”).

Rahman has testified that he was misled by the “No Sugar Added” statement into thinking that

Mott’s 100% Apple Juice was lower in sugar and calories than comparable brands. He further testified


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that, but for having been misled, he would have purchased less of the product. However, whatever his

prior state of knowledge, Rahman is now fully aware that “No Sugar Added” simply means that no sugar

was added to a product, not that the product does not contain sugar or is a good beverage for a Type 2

diabetic to drink. Rahman testified that despite being misled in the past, he wishes to purchase Mott’s

Apple Juice again in the future if the challenged statement is removed from the label, even though the

apple juice would have as much natural sugar as ever.

Absent showing a likelihood of future harm, a plaintiff may not manufacture standing for

injunctive relief simply by expressing an intent to purchase the challenged product in the future. The

future harm required is defined by California’s unfair competition laws. Those laws require, among other

things, that the plaintiff prove that he relied on the unlawful or deceptive act, and that he suffered

damages as a result. Kane v. Chobani, Inc., 973 F. Supp. 2d 1120, 1138 (N.D. Cal. 2014) (“Plaintiffs

must allege that they relied on Defendant's alleged misrepresentations in order to demonstrate standing

under the FAL, CLRA, and the UCL.”). Merely being exposed to an allegedly unlawful label is not a

cognizable harm. Meyer v. Sprint Spectrum L.P., 45 Cal. 4th 634, 641(2009) (“Thus, the statute provides

that in order to bring a CLRA action, not only must a consumer be exposed to an unlawful practice, but

some kind of damage must result.”). Similarly, merely feeling that one cannot trust defendant’s future

representations is not sufficient harm to confer standing for injunctive relief. Profant v. Have Trunk Will

Travel, CV 11-05339-RGK OPX, 2011 WL 6034370 at * 5 (C.D. Cal. Nov. 29, 2011) (“Plaintiffs allege

that they will face future harm by not being able to trust Defendants . . .. This future harm is conjectural

and too speculative to satisfy the standing requirements to seek injunctive and declaratory relief in federal

court.”). To have standing for injunctive relief, a plaintiff must show he “suffered or is threatened with

a concrete and particularized legal harm [and] a sufficient likelihood that he will again be wronged in a

similar way.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (internal citations

omitted). Rahman cannot plausibly prove that he will, in the future, rely on the “No Sugar Added”

statement to his detriment. He therefore lacks Article III standing for injunctive relief. “[T]he power of

federal courts is limited, and that power does not expand to accommodate the policy objectives


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4In ruling on defendant’s motion to dismiss Rahman’s First Amended Complaint, this Courtheld, at the motion to dismiss stage, that pleading an intent to purchase the challenged product in thefuture was necessary to confer standing for injunctive relief. Docket No. 46. However, upon reviewingall the evidence presented on this motion for summary judgment, the Court finds that introducingevidence which merely shows an intent to purchase the product in the future, where the product itselfremains the same, is not sufficient to confer standing for injunctive relief.

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underlying state law.” Garrison v. Whole Foods Mkt. Grp., Inc., 13-CV-05222-VC, 2014 WL 2451290

at * 5 (N.D. Cal. June 2, 2014).4

III. Reliance

Mott’s argues that it is entitled to summary judgment because actual reliance is an element of all

of Rahman’s claims, and that he has failed to introduce evidence showing that he relied on, or was misled

by, the statement “No Sugar Added.” Docket No. 68 at 18-20.

The California Supreme Court has held that the UCL “imposes an actual reliance requirement on

plaintiffs prosecuting a private enforcement action under the UCL’s fraud prong.” In re Tobacco II

Cases, 46 Cal. 4th 298, 326 (2009). The California Supreme Court subsequently held that the actual

reliance requirement also applies to claims under the unlawful prong of the UCL where – as is the case

here – the alleged unlawful conduct is that the defendant engaged in misrepresentations and consumer

deception. Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 326 n.9 (2011) (citing Durell, 183 Cal.

App. 4th at 1363 (“[T]he reasoning of Tobacco II [concerning the actual reliance requirement] applies

equally to the ‘unlawful’ prong of the UCL when, as here, the predicate unlawfulness is

misrepresentation and deception.”); Hale v. Sharp Healthcare, 183 Cal. App. 4th 1373, 1385 (2010)

(“[W]e conclude the reasoning of Tobacco II applies equally to the ‘unlawful’ prong of the UCL, when,

as here, the predicate unlawful conduct is misrepresentation.”). The reliance requirement is also applied

to the UCL’s unfair prong, when – as is the case here – the underlying conduct is alleged to misrepresent

or deceive. In re Actimmune Mktg. Litigation, C 08-02376 MHP, 2010 WL 3463491 (N.D. Cal. Sept. 1,

2010) aff'd, 464 F. App'x 651 (9th Cir. 2011). Courts have also held that plaintiffs must prove reliance

under the FAL and CLRA. Kane v. Chobani, Inc., 973 F. Supp. 2d 1120, 1138 (N.D. Cal. 2014)

(“Plaintiffs must allege that they relied on Defendant's alleged misrepresentations in order to demonstrate


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standing under the FAL, CLRA, and the UCL.”). Justifiable reliance is also an element of

misrepresentation. Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1201, n. 2 (9th Cir. 2001).

In Tobacco II 46 Cal. 4th at 326, the California Supreme Court held that in order to prove

reliance, a plaintiff must show that the alleged misrepresentation played a “substantial part” in

influencing his conduct (“It is not . . . necessary that [the plaintiff's] reliance upon the truth of the

fraudulent misrepresentation be the sole or even the predominant or decisive factor influencing his

conduct . . . It is enough that the representation has played a substantial part, and so had been a

substantial factor, in influencing his decision.”).

Rahman concedes in his deposition testimony that taste and price are the two most important

factors he relies on when purchasing food and beverage products. Docket No. 68-3 at 71. He also admits

that he continued to purchase Mott’s even when the “No Sugar Added” statement was not present on the

label. Id. at 159-60 (“Q: In 1991, you were making a buying decision for Mott’s without considering on

the front of the label any reference to or words “No Sugar Added”? A: Correct.”). Rahman further notes

that he typically looks to a beverage’s nutrition facts to inform himself of its sugar and calorie content,

id. at 136-37, and that he did not rely on the “No Sugar Added” label to tell how many calories or sugar

were in the beverage, or how healthy it was. Id. at 194 (“Q: You can’t rely on the “No sugar added” to

tell you how many calories are in the apple juice; right? A: Correct.”).

However, Rahman also gave testimony tending to show he did in fact rely on the “No Sugar

Added” statement. For example, he testified that it caused him to believe there were fewer calories than

comparable apple juice products. Id. at 184. He testified that it caused him to believe that Mott’s 100%

Apple Juice had less sugar than similar products. Id. at 189 (“A: Well, I’m assuming– I’m assuming it

does have less sugar because of the label.”). Rahman also noted that the “No Sugar Added” statement

caused him to believe the product was healthier than other juices. Id. at 206-07. Finally, Rahman states

that the label caused him to purchase more of the product than he would have in the absence of the “No

Sugar Added” statement. Id. at 225 (“A: I purchased more because when I saw the label that said ‘No

sugar added,’ I thought it would be a less sugar content than the other apple juice products.”).

There is thus conflicting evidence on the issue of whether Rahman relied on the “No Sugar

Added” statement when making his purchasing decisions. On a motion for summary judgment, “all


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reasonable inferences that may be drawn from the facts placed before the court must be drawn in the light

most favorable to” the nonmoving party. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir.

2003) (internal quotations omitted).The Court therefore finds that there is a triable issue of fact, and that

summary judgment is not warranted on the question of reliance.

IV. The Reasonable Consumer Standard

Mott’s contends that Rahman has failed to introduce evidence showing that a reasonable

consumer would be misled by the “No Sugar Added” statement on the label of Mott’s 100% Apple Juice.

Docket No. 68 at 16-17.

California’s UCL prohibits unfair competition by means of any unlawful, unfair or fraudulent

business practice. Cal. Bus. & Prof. Code §§ 17200-17210. “Each prong of the UCL is a separate and

distinct theory of liability.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009). The UCL’s

fraud prong prohibits any “fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200.

California’s FAL prohibits any “unfair, deceptive, untrue, or misleading advertising.” Id. § 17500.

California’s Consumer Legal Remedies Act (“CLRA”) prohibits “unfair methods of competition and

unfair or deceptive acts or practices.” Cal. Civ. Code § 1770.

False advertising claims under the FAL, the CLRA, and the fraudulent and unfair prongs of the

UCL are governed by the reasonable consumer standard. Williams v. Gerber Products Co., 552 F.3d 934,

938 (9th Cir. 2008); Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 504 (2003); Kasky v. Nike,

Inc., 27 Cal. 4th 939, 951 (2002). The reasonable consumer standard also applies to claims for negligent

misrepresentation. Girard v. Toyota Motor Sales, U.S.A., Inc., 316 F. App'x 561, 562 (9th Cir. 2008)

(“Girard's negligent misrepresentation claim likewise hinges on the reasonable consumer standard since

justifiable reliance cannot be established if reasonable consumers would not rely on the purported

misrepresentation.”). Under the reasonable consumer standard, a plaintiff must show that members of

the public are likely to be deceived. Williams, 552 F.3d at 938 (“The California Supreme Court has

recognized that these laws prohibit not only advertising which is false, but also advertising which[,]

although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or

confuse the public.”) (internal quotation marks omitted). A likelihood of deception means that “it is


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5As one court noted, “case law is less than clear as to what a private plaintiff needs to prove tosuccessfully litigate a cause of action alleging misleading or deceptive practices” under the UCL andCLRA. Johns v. Bayer Corp., 09CV1935 AJB DHB, 2013 WL 1498965 (S.D. Cal. Apr. 10, 2013).

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probable that a significant portion of the general consuming public or of targeted consumers, acting

reasonably in the circumstances, could be misled.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th

at 508.

Courts have taken divergent approaches in describing the burden a plaintiff must meet at the

summary judgment stage in order to show a likelihood that a reasonable consumer would be deceived.5

Some have said that the “plaintiff must demonstrate by extrinsic evidence, such as consumer survey

evidence, that the challenged statements tend to mislead consumers.” Haskell v. Time, Inc., 965 F. Supp.

1398, 1407 (E.D. Cal. 1997); see also William H. Morris Co. v. Grp. W, Inc., 66 F.3d 255, 258 (9th Cir.

1995) (plaintiff failed to meet its burden of showing, under the Lanham Act, that “a significant portion”

of letter recipients were misled by defendant, where plaintiff’s evidence consisted of testimony of two

of 300 letter recipients, an employee who had received phone calls from confused recipients, and the

company president); Johnson & Johnson * Merck Consumer Pharm. Co. v. Smithkline Beecham Corp.,

960 F.2d 294, 297 (2d Cir. 1992) (“Where, as here, a plaintiff's theory of recovery is premised upon a

claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged

commercials tend to mislead or confuse consumers . . . . It is not for the judge to determine, based solely

upon his or her own intuitive reaction, whether the advertisement is deceptive.”).

Other courts have taken a less data-driven approach, requiring only that “reasonable minds could

differ” in order to find a triable issue of fact as to whether a reasonable consumer would be deceived.

Miletak v. Allstate Ins. Co., C 06-03778 JW, 2010 WL 809579 (N.D. Cal. Mar. 5, 2010); see also Park

v. Cytodyne Technologies, Inc., GIC 768364, 2003 WL 21283814 (Cal. Super. Ct. May 30, 2003) (“[T]o

establish that advertising is misleading under a reasonable consumer test should not require the use of

consumer surveys. Considering that the advertisement speaks for itself, the judge is in a position to

determine whether it is misleading, i.e. likely to deceive, under a ‘reasonable consumer’ standard.”);

Brockey v. Moore, 107 Cal. App. 4th 86, 99 (2003).


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This Court need not resolve the debate in order to rule on this motion. While Rahman contends

that he was misled by the “No Sugar Added” statement, Docket 68-3 at 207-08, he also readily conceded

on numerous occasions throughout his testimony that he would have no way of knowing whether other

consumers were similarly deceived, or more generally, what information they relied on when purchasing

Mott’s 100% Apple Juice. Id. at 205 (“Q: And what other consumers thought when they saw ‘No sugar

added’ on there, if they even saw it, is up to them; right? A: Correct. Q: We’d have to ask them? A:

Correct.”); Id. at 38, 52-53, 61, 72, 78, 121, 154, 169, 177, 180, 222, 228-29. The Court agrees with

Rahman that, standing alone, evidence of his experience with the Mott’s 100% Apple Juice product is

not sufficient to draw a conclusion as to whether a reasonable consumer would have been similarly

misled. This is especially true here, because the allegedly deceptive nature of the statement is not self-

evident (presumably both parties would agree that “No Sugar Added” is literally true, in that it accurately

reflects the ingredients used to make Mott’s 100% Apple Juice). Therefore the Court finds that Rahman

must introduce some additional evidence in order to raise a triable issue of fact as to whether a reasonable

consumer would be misled by the labeling on Mott’s 100% Apple Juice. The testimony of a single

consumer in a putative class of potentially millions is not enough to meet this burden.

Both parties have produced evidence on this issue. Mott’s has provided the expert testimony of

Dr. Kent Van Liere, who conducted a consumer survey of a few hundred people to ascertain whether

consumers relied on the “No Sugar Added” label when choosing to purchase Mott’s 100% Apple Juice.

Docket No. 68-6, Van Liere Dep. Dr. Van Liere concluded that “the presence of the ‘no sugar added’

label does not cause consumers to mention a low level of sugar as a reason for purchasing Mott’s over

other brands.” Id. at 43. Dr. Van Liere used a test group that was presented with the Mott’s 100% Apple

Juice label, and a control group that was presented with the same label except that it did not contain the

“No Sugar Added” statement. He found no significant difference in responses between the number of

respondents in each group who said they chose to purchase Mott’s because it was lower in sugar than

other brands. Id. at 79.

Plaintiff has produced the expert report of Professor Michael Belch, PhD. Docket No. 77-1, Exh.

E. Prof. Belch concludes, based on his “analysis of the materials provided” and his “experience in

advertising and consumer behavior” that the “No Sugar Added” message has a “high likelihood” of


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misleading consumers into thinking that Mott’s 100% Apple Juice is healthier, lower in sugar, and lower

in calories than other brands. Id. ¶ 9. Prof. Belch’s report also criticizes perceived shortcomings in Dr.

Van Liere’s survey, Id. ¶¶ 16-20, and provides the general contours of a proposed alternative

methodology for conducting a consumer survey on the issue. Id. ¶¶ 14-15.

However, Prof. Belch did not conduct a survey of his own, he only stated that he could perform

such a survey. Id. A general description of the methodology of a proposed study, standing alone, is not

evidence of whether a reasonable consumer is likely to be deceived by the “No Sugar Added” statement.

Similarly, criticizing the methodology of a survey that tends to show a reasonable consumer would not

be deceived, is no substitute for introducing evidence which arrives at the opposite conclusion. Indeed,

Prof. Belch concedes that “the appropriate methodology for reaching valid and reliable answers to these

questions is to conduct a survey,” id. at ¶ 15, yet he has apparently failed to follow his own advice. Apart

from plaintiff’s own testimony, the only evidence advanced by plaintiff tending to show that a reasonable

consumer would be deceived is an assertion by Prof. Belch, unsupported by any independent facts or

data. “[C]onclusory, speculative testimony . . . is insufficient to raise genuine issues of fact and defeat

summary judgment.” Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

“Further, a motion for summary judgment may not be defeated by evidence that is ‘merely colorable’ or

‘not significantly probative.’” Ogden v. Bumble Bee Foods, LLC, 5:12-CV-01828-LHK, 2014 WL 27527

at * 6 (N.D. Cal. Jan. 2, 2014), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The

moving party may prevail on summary judgement by showing that “the nonmoving party does not have

enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion

at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1106 (9th Cir. 2000).

Here, plaintiff has failed to submit sufficient evidence to raise a genuine issue of fact as to whether a

reasonable consumer would be deceived by the “No Sugar Added” statement. Therefore, the Court grants

defendant’s motion for summary judgement as to plaintiff’s claims under the CLRA, FAL, the unfair and

fraud prongs of the UCL, and negligent misrepresentation.

CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part defendant’s motion


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for summary judgment. Docket No. 68. The Court GRANTS defendant’s motion for summary judgment

as to Rahman’s claims under the CLRA, FAL, the fraud and unfair prongs of the UCL, and for negligent

misrepresentation. The Court GRANTS defendant’s motion for summary judgment on whether Rahman

has Article III standing for injunctive relief. The Court DENIES defendant’s motion for summary

judgment as to Rahman’s claims under the unlawful prong of the UCL and for breach of quasi-contract.

This order resolves Docket Nos. 68 and 78.

IT IS SO ORDERED.

Dated: October 14, 2014

SUSAN ILLSTON United States District Judge




Exhibit 3 ‐ PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION AND FOR APPOINTMENT OF CLASS COUNSEL

Filed 8/22/2014


NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

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Jordan L. Lurie (SBN 130013) [email protected] Robert K. Friedl (SBN 134947) [email protected] Tarek H. Zohdy (SBN 247775) [email protected] Cody R. Padgett (SBN 275553) [email protected] Capstone Law APC 1840 Century Park East, Suite 450 Los Angeles, California 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Attorneys for Plaintiff Mohammed Rahman



MOHAMMED RAHMAN, individually, and on behalf of other members of the general public similarly situated, Plaintiff, vs. MOTT’S L.L.P. and DOES 1 through 10, Defendants.

Case No.: 3:13-cv-03482-SI CLASS ACTION PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION AND FOR APPOINTMENT OF CLASS COUNSEL Date: September 19, 2014 Time: 9:00 a.m. Ctrm: 10 Judge: The Hon. Susan Illston Notice of Removal: July 26, 2013



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TO DEFENDANT MOTT’S L.L.P. AND ITS ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on September 19, 2014, at 9:00 a.m., or as soon

thereafter as the matter may be heard before the Honorable Susan Illston in Courtroom 10 of

the above-referenced Court, Plaintiff Mohammed Rahman will move, and hereby respectfully

does move, this Court, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for an

order granting class certification. Specifically, pursuant to Rule 23(c)(4), Plaintiff seeks an

order certifying a liability issue class under Rule 23(b)(2) and 23(b)(3), defined as all

California residents who, from June 13, 2009, until the date of the preliminary approval order,

purchased Mott’s 100% Apple Juice bearing the statement “No Sugar Added” on the label or

package (the “Class”). Plaintiff seeks the appointment of Mohammad Rahman as Class

representative and the firm of Capstone Law APC as counsel for the Class.

The motion is made on the grounds that the above defined Class is so numerous that

joinder would be impracticable, there are common issue of law or fact among the Class

members, the claims of the representative Plaintiff are typical of those of the Class, and

Plaintiff and his counsel will fairly and adequately represent the interests of the Class.

Additionally, questions of law or fact common to Class members predominate over any

questions affecting only individual members, and a Class action is superior to other available

methods of fairly and efficiently adjudicating the controversy.

The motion is based on this notice of motion, the following points and authorities, the

Declaration of Mohammad Rahman, the Declaration of Robert K. Friedl and exhibits thereto,

the papers and pleadings on file in this action and such other matters as the Court may

consider.

Dated: August 1, 2014 Respectfully submitted, Capstone Law APC

By: /s/ Robert K. Friedl Jordan L. Lurie Robert K. Friedl Cody R. Padgett Attorneys for Plaintiff Mohammed Rahman


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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................... 1

II. FACTUAL BACKGROUND .......................................................................................... 4

A. Plaintiff’s Purchase of Mott’s “100% Apple Juice” With the “No Sugar

Added” Label .......................................................................................................... 4

B. Defendant’s Marketing of Mott’s “100% Apple Juice” With the “No Sugar

Added” Label .......................................................................................................... 5

III. PROCEDUAL HISTORY ............................................................................................... 8

IV. ARGUMENT .................................................................................................................. 9

A. The Certification Requirements Are Satisfied ......................................................... 9

1. The Class is Sufficiently Numerous and Ascertainable .................................. 9

2. There are Questions of Law and Fact Common to All Class Members ........ 10

3. Plaintiff’s Claims are Typical of Those of the Class .................................... 14

4. Plaintiff Will Adequately Represent the Interests of the Class ..................... 14

B. The Case Satisfies Rule 23(b)(2)’s Requirements ................................................. 15

C. The Case Satisfies Rule 23(b)(3)’s Requirements ................................................. 16

V. CONCLUSION ............................................................................................................. 18


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FEDERAL CASES

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184

(2013) ............................................................................................................................ 11, 14

Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) .............................................................. 7, 12

Astiana v. Kashi Co., 291 F.R.D. 493 (S.D. Cal. 2013) ............................................................. 8

Blackie v. Barrack, 524 F.2d 891, 905-908 (9th Cir. 1975), cert. denied, 429

U.S. 816 (1976) ................................................................................................................... 14

Brazil v. Dole Packaged Foods, LLC, 2014 U.S. Dist. LEXIS 74234 (N.D. Cal.

May 30, 2014) ....................................................................................................................... 8

Fulghum v. Embarq Corporation, 2011 U.S. Dist. LEXIS 1120 (D. Kan. 2009) .................... 14

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ......................................................... 8

Heighley v. J.C. Penney Life Ins. Co., 257 F. Supp. 2d 1241 (C.D. Cal. 2003) ....................... 11

Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013) ......................................................... 11

In Re Motor Fuel Temperature Sales Practices Litig., 292 F.R.D. 562 (D. Kan.

2013) ............................................................................................................................... 2, 14

In re Visa Checks/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001) ....................... 14

Johns v. Bayer Corp., 280 FRD 551 (S.D. Cal. 2012) ................................................... 7, 10, 12

Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005) ..................... 7

Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) ....................................... 12

McCrary v. Elations Co., 2014 U.S. Dist. LEXIS 8443 (C.D. Cal. Jan. 13, 2014) .................... 7

Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) ................................................................. 12

Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011) .......................................... 10, 14

Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996) ............................................ 14

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (S. Ct. 2011) ............................................ 8, 13

Werdebaugh v. Blue Diamond Growers, 2014 U.S. Dist. LEXIS 71575 (N.D.

Cal. May 23, 2014) ................................................................................................................ 8


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Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008) ............................................... 9

Yokoyama v. Midland National Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) .......................... 10

STATE CASES

Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.

4th 163 (1099) ....................................................................................................................... 9

In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ....................................................................... 10

In re Vioxx Class Cases, 180 Cal. App. 4th 116 (2009) .................................................... 10, 14

Kaske v. Nike, Inc., 27 Cal. 4th 939 (2002) ............................................................................... 9

Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) ........................................................ 11

Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003) ............................................... 10

FEDERAL STATUTES

21 C.F.R. § 101.60(c)(2) ........................................................................................................... 9

21 C.F.R. § 101.60(c)(2)(iv) ...................................................................................................... 6

21 C.F.R. § 101.60(c)(2)(v) ....................................................................................................... 6

Fed. R. Civ. P. 23 ...................................................................................................................... 6

Fed. R. Civ. P. 23(a) ...................................................................................................... 7, 12, 14

Fed. R. Civ. P. 23(a)(1) ....................................................................................................... 7, 13

Fed. R. Civ. P. 23(a)(2) ....................................................................................................... 8, 12

Fed. R. Civ. P. 23(a)(3) ........................................................................................................... 12

Fed. R. Civ. P. 23(a)(4) ..................................................................................................... 12, 14

Fed. R. Civ. P. 23(b) ............................................................................................................... 14

Fed. R. Civ. P. 23(b)(2) ........................................................................................................... 13

Fed. R. Civ. P. 23(b)(3) ..................................................................................................... 14, 15

Fed R. Civ. P. 23(b)(3)(A) ...................................................................................................... 15

Fed R. Civ. P. 23(b)(3)(B) ....................................................................................................... 15

Fed R. Civ. P. 23(b)(3)(C) ....................................................................................................... 15


Page iv


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Fed R. Civ. P. 23(b)(3)(D) ...................................................................................................... 15

Fed. R. Civ. P. 23(c)(4) ............................................................................................................. 1

STATE STATUTES

Cal. Bus & Prof Code § 17204 ................................................................................................ 13

Cal. Bus & Prof Code § 17535 ................................................................................................ 13

Cal. Bus. & Prof. Code §§ 17200 et seq. (Unfair Comp. Law (UCL)) ............................. passim

Cal. Bus. & Prof. Code §§ 17500 et seq. (False Adverting Law (FAL)) .......................... passim

Cal. Civ. Code §§ 1750 et seq. (Con. Legal Remedies Act (CLRA)) ............................... passim

Cal. Health & Safety Code §§ 109875 et seq ............................................................................ 1

SECONDARY AUTHORITIES

Manual for Complex Litigation, Fourth (2012) ....................................................................... 11



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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendant Mott’s LLP (“Defendant” or “Mott’s) manufactures Mott’s 100% Apple

Juice. Although apple juice does not normally contain added sugar, all Mott’s 100% Apple

Juice products have labels that state “No Sugar Added.”1 Mott’s includes the “No Sugar

Added” statement on its label specifically because Mott’s marketing research has determined

that it is an important selling point for its target consumers. Mott’s refers to the type of

consumer it targets for purchase of Mott’s 100% Apple Juice as the “Mott’s mom.”

(Blackwood Dep. at p. 106:10.)2

Plaintiff Mohamad Rahman (“Plaintiff” or “Mr. Rahman”) contends that the inclusion

of a “No Sugar Added” statement on the label for apple juice—a product that does not

normally contain added sugar—is both illegal and deceptive. The No Sugar Added label

violates the unlawful prong of the UCL because it violates applicable Food and Drug

Administration (“FDA”) regulations, specifically, 21 C.F.R. section 101.60(c)(2), and thereby

California’s Sherman Law (“Sherman Law”), California Health and Safety Code § 109875 et

seq. In order to use the term “No Sugar Added” on a label, section 101.60(c)(2)(iv) requires

that the food that the product resembles, and for which it substitutes, normally contain added

sugar. In the FAC, Plaintiff alleges that Mott’s apple juice does not resemble and substitute

for food that normally contains added sugars because other brands of apple juice do not

contain added sugar due to the substantial inherent sugar content of apple juice. The No Sugar

Added label also violates the fraudulent/deceptive prong of the UCL and violates the CLRA

and FAL3 because it is likely to cause members of the public to believe that Mott’s 100%

Apple Juice bearing the “No Sugar Added” statement on its label contains less sugar and is 1 As discussed below, for a short period of time during the class period Mott’s

mistakenly failed to include the “No Sugar Added” statement on its label. When the mistake was discovered, the “No Sugar Added” statement was put back on the label. The label states “No Sugar Added” to this day.

2 Friedl Decl. Ex. A. 3 California’s Unfair Competition Law (“UCL”), California Business and Professions

Code §§ 17200 et seq.; California’s False Advertising Law (“FAL”), California Business and Professions Code §§ 17500 et seq.; California’s Consumers Legal Remedies Act (“CLRA”), California Civil Code § 1750 et seq.



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healthier than competing apple juice products with labels that do not advertise their lack of

added sugar.

Pursuant to Rule 23(c)(4), Plaintiff seeks an order certifying a class of California

residents who have purchased Mott’s 100% Apple Juice bearing the “No Sugar Added”

statement on its label with respect to liability issues only. For purposes of certifying a liability

issue class, the “liability” aspects of Plaintiff’s claims include all substantive elements of the

claims. However, “liability” does not include questions of remedy, e.g. damages, injunctive

relief and restitution. In Re Motor Fuel Temperature Sales Practices Litig., 292 F.R.D. 652,

666 (D. Kan. 2013) (“In Re Motor Fuel”). Rather, the basic liability elements of Plaintiff’s

UCL claim are simply that defendant engaged in unfair competition (i.e., unlawful, unfair

and/or fraudulent business acts or practices); that Plaintiff suffered economic injury as a result

of defendant’s acts or practices; and that members of the public were likely deceived. Id. The

basic liability elements of Plaintiff’s CLRA claim are that Plaintiff is a “consumer” under the

CLRA; that defendant engaged in a transaction intended to result or which resulted in the sale

or lease of goods or services; that defendant used unfair methods of competition, or unfair or

deceptive acts or practices in violation of the CLRA. Id.4

The liability issues are eminently appropriate for class treatment because they present

common questions that will generate common answers apt to drive the resolution of this

litigation. The question of whether the “No Sugar Added” statement on Mott’s labels violates

the FDA regulations is a common issue of law that will determine on a class wide basis

whether Mott’s is liable for violating the “unlawful” prong of the UCL. The question of

whether the “No Sugar Added” statement on Mott’s label is deceptive is a common issue of

fact amenable to common proof that will determine on a class wide basis if Mott’s is liable for

violating the “fraudulent” prong of the UCL, the FAL and the CLRA.

The answers to these questions will drive the resolution of this lawsuit because they

4 Similar liability elements also bear on the Plaintiff’s negligent misrepresentation

claim. In addition, as the Court has already found, a determination that Mott’s 100% Apple Juice is illegally mislabelled would support’s Plaintiff’s claim for restitution under his claim for Breach of Quasi-Contract (Docket No. 46-16).



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will allow the parties to determine Mott’s liability before turning to the issue of remedies. If

Mott’s demonstrates the “No Sugar Added” statement is not unlawful or deceptive, it will

prevail on the UCL, FAL and CLRA claims. However, if Plaintiff establishes that the “No

Sugar Added” statement is either unlawful or deceptive, plaintiff can prove liability and the

case can then proceed to a remedies phase. As the underlying liability issues are amenable to

common proof, they should be adjudicated before any issue relating to remedies. A liability-

only class certification procedure avoids the distraction of ancillary issues such as whether or

how a plaintiff’s class can prove damages on a class wide basis. Accord In Re Motor Fuel,

292 F.R.D.at 667 (“If the Court certifies Rule 23(c)(4) classes as to Chevron's liability and

Chevron prevails, the class actions will end. If plaintiffs prevail, the Court can determine

whether injunctive relief is appropriate. By quantum leaps, this approach will advance the

resolution of plaintiffs’ core claims on a class-wide basis. The ‘liability’ aspects of plaintiffs’

claims are therefore appropriate for issue certification under Rule 23(c)(4).”).

Numerous courts endorse this approach, which defers any discussion of damages or

remedies until after liability is determined. See, e.g., Jacob v. Duane Reade, Inc., 293 F.R.D.

578, 588 (S.D.N.Y. 2013) (“Nothing in Comcast, however, vitiates the longstanding principle

in this Circuit that courts may certify a class as to liability, but not damages, utilizing Rule

23(c)(4), so long as the proposed liability class meets the requirements of Rule 23(a) and

(b)”); Houser v. Pritzker, 2014 U.S. Dist. LEXIS 91451 at *86 (S.D.N.Y. 2014) (“In this case,

certifying the Plaintiffs’ proposed liability and injunctive relief class will materially advance

the litigation and make the proceedings more manageable. By litigating these issues on a

classwide basis, both the parties and the Court can avoid the extreme time and expense

necessary to try each class member's claims individually.”); Ruiz v. Affinity Logistics Corp.,

2009 U.S. Dist. LEXIS130728 at 3 (S.D. Cal. 2009) (“certifying a class to determine the

defendant’s liability, while leaving the class members to pursue their individual damages

claims, is a common example of partial certification”).

If Plaintiff is successful in certifying the Class for purposes of liability, the remedy

will flow from that result. A determination that the label is illegal or deceptive, for example,



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is likely to result in a label change. The parties and the Court can address of the best method

of achieving other appropriate remedies, if necessary, after Plaintiff’s claims are adjudicated

as to liability on a class wide basis.

II. FACTUAL BACKGROUND


Added” Label

Plaintiff purchased Mott’s apple juice from 1991 to 2013 when he filed this lawsuit.

During that time he developed brand loyalty and a liking for the taste of the product.

(Rahman Dep. p. 157:4-15.)5

When Plaintiff purchased Mott’s 100% Apple Juice between 2009 and 2013, he saw

the “No Sugar Added” label and compared it to the label of a competitor apple juice brand that

did not have a “No Sugar Added” label, Tree Top apple juice. As a result of looking at the

labels, Plaintiff thought the Mott’s 100% Apple Juice had fewer calories. (Rahman Dep. pp.

183:15-184:6; 191:5-9.) He also thought the “No Sugar Added” label indicated that Mott’s

100% Apple Juice was a much healthier product and had less sugar. (Rahman Dep. pp. 188:4-

7, 189:18-24, 206:19-208:4.)

The “No Sugar Added” label caused Plaintiff to purchase more Mott’s 100% Apple

Juice than he otherwise would have. Plaintiff testified, “[A]fter I saw the “No Sugar Added,”

I bought more, because I thought with no sugar added, it would be beneficial to me.”

(Rahman Dep. p. 210:13-24.) Specifically, prior to seeing the “No Sugar Added” label, he

purchased two to three bottles every two weeks. After seeing the “No Sugar Added” label, he

purchased three to four bottles. (Rahman Dep. pp. 224:18-225:17.) He testified, “I purchased

more because when I saw the label that said “No Sugar Added,’ I thought it would be less

sugar than other apple juice products.” (Rahman Dep. p. 225:18-24.)

Plaintiff stopped buying Mott’s 100% Apple Juice after he filed this lawsuit.

(Rahman Dep. p. 114:9-14.) However, he still wants to buy Mott’s 100% Apple Juice in the

future. He likes Mott’s 100% Apple Juice, is loyal to the brand, and wants to buy it again

5 Friedl Decl. Ex. B.



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after it changes its label. (Rahman Dep. pp. 115:5-12; 157:4-15.) He testified, “The only

thing I’d want to get out of the lawsuit was for Mott’s to change their [] labeling.” (Rahman

Dep. p. 119:19-22.)


Added” Label

Mott’s 100% Apple Juice is a product made from three ingredients – water, apple juice

concentrate and Vitamin C. (Blackwood Dep. p. 69:23-70:8.) It has never had added sugar to

the knowledge of Mott’s corporate representative Eric Blackwood. (Blackwood Dep. p. 80:1-

20.) Although apple juice does not normally have added sugar, Mott’s 100% Apple Juice is

labeled “No Sugar Added.” A picture of Mott’s 100% Apple Juice bearing the “No Sugar

Added” label is attached. (Friedl Decl. Ex. C.)

During the period from June 15, 2012, through June 15, 2013, consumers purchased

over 2.4 million units of Mott’s 100% Apple Juice labeled “No Sugar Added” from grocery,

convenience and drug stores located in the Los Angeles, San Francisco, San Diego and

Sacramento markets alone, and paid over $6 million for those products. (See Notice of

Removal, Docket No 1 at p. 9; Blackwood Dec., Docket No 1-4 at ¶¶ 5, 7.) Separately, during

the same time period, consumers purchased over 1.2 million units of Mott’s 100% Apple Juice

with the “No Sugar Added” label from Wal-Mart stores in California and paid over $4 million

for those products. (Id.)

All Mott’s 100% Apple Juice sold in California during the approximate 2009 to 2011

period contained the “No Sugar Added” statement on the label or package. (Blackwood Dep.

pp. 25:3-26:6) In Q4 of 2010, Mott’s approved a new label for Mott’s 100% Apple Juice

products that did not contain the “No Sugar Added” statement. 6 This new label appeared on

the product in 2011. Then, in the first quarter of 2012, the “No Sugar Added” statement was

placed back onto the label. (Blackwood Dep. pp. 35:13-20; 37:14-38:21; 58:16-59:11; 69:1-

22.) The “No Sugar Added” statement remains on the label to this day. (Blackwood Dep. pp.

6 Mott’s was sold in California in eight different types of packages, although the vast

majority of the product was sold in 64-oz. plastic bottles such as the one pictured in Exhibit C. (Blackwood Dep. p 24:1-19; Blackwood Dep. Ex. 3.)



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47:5-15; 48:16-18; 78:11-13.)

Mott’s explanation as to why the “No Sugar Added” statement was removed is that it

was simply a mistake. Mott’s corporate representative testified, “It was a mistake. They were

left off accidentally. As we made a larger graphic’s change overall, they were simply left

off.” (Blackwood Dep. p. 59:12-23.) Mott’s was not happy about this mistake for (at least)

two reasons. First, Mott’s corporate representative explained:

No sugar added was something that had been on our label historically. It was something that moms tells us -- really shows that the product comes from real fruit, which in this case, it does, and so no sugar additive was indicative of that, and so that’s why the team would want to have it on there in the first place.

(Blackwood Dep. p. 115:14-23.)

Second, in 2009, Mott’s own research confirmed that the “No Sugar Added” statement

was important to consumers of apple juice because they scan for the words “No Sugar Added”

before putting any juice in their shopping cart. The question for Mott’s was not whether to

include the “No Sugar Added” statement, but how to best present it.

Specifically, Mott’s used Frank N. Magid Associates, Inc. (“Magid Associates”) to

perform marketing research in connection with the graphics design of the new label for Mott’s

100% Apple Juice that was implemented in 2011. (Blackwood Dep. pp. 116:24-117:24.)

Magid Associates did this by conducting six focus groups with women ages 25 to 40 that met

specific criteria qualifying them as “Mott’s Moms.” (Blackwood Dep. pp. 118:13-119:1;

Mott’s Document Prod.7 # M 003747.) As Mr. Blackwood put it, “Mott’s studies moms

because they are a primary target. They’re the most likely purchaser of this product. We want

to understand how moms feel about [the] product and what, what they tell us about the

product.” (Blackwood Dep. pp. 106:4-10.)

Magid Associates studied apple juice consumers by conducting focus groups to

determine the focus group participants’ impressions of the proposed new designs for the

Mott’s 100% Apple Juice label. (Mott’s Document Prod. # M 003346.) It presented its

findings in a March 2009 report called “Mott’s Base Juice Graphics Redesign Focus Group

7 Friedl Decl. Ex. D.



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Report.” In the “Executive Summary” portion of the report, one of the “Key Findings” is that

“[t]he prominent placement of “100% Apple Juice” and “No Sugar Added” are strong

positives for the labels as a whole.” (Mott’s Document Prod. # M 003349.) In the “Key

Elements” section of the report on a page entitled “Some Messaging is Confusing; Key

Elements Make an Impression,” the “No Sugar Added” statement is specifically discussed:

No Sugar Added

This is a big selling point for all participants – and something they say they scan for on the front of the bottle before they put any juice in their shopping cart [NO SUGAR ADDED]

Many say this is best communicated by Label B because it is show in white font, centered on a dark basket; many also say that Labels E & F communicate this well through their format.

(Mott’s Document Prod. # M 003367.)

The “No Sugar Added” statement on the label was highly important to Mott’s in 2009.

On September 23, 2009, the Brand Director for Mott’s Juice, Allison Methvin, wrote to Carlos

Anguizola, the Brand Manager for Mott’s Juice, “Please push on keeping the No Sugar Added

onpack (sic). As you know it is a HUGE deal.” (Mott’s Document Prod. # M 007094.)

When Mott’s managers found out that the “No Sugar Added” statement was left off the

new label in 2011, they were aghast. For example, on June 27, 2011, Brand Director Allison

Methvin, stated in an email to Mota Delana, Mott’s Activation Department Manager:

I am freaking our right now. Did we forget to put No Sugar Added on our new Mott’s 100% Original base juice graphics?!!!! We know this is one of the FIRST THINGS our moms look for. We are going to have to get it added. How did we miss this?


Accordingly, Mott’s corrected its mistake and added the “No Sugar Added” statement

back on the label, where it remains to this day, deceiving Mott’s moms and consumers like

Mohammad Rahman by implying that Mott’s 100% Apple Juice is healthier and contains less

sugar than its competitors’ apple juice products.



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III. PROCEDUAL HISTORY

Plaintiff’s original complaint alleged violations of the UCL, FAL and CLRA, as well

as negligent misrepresentation and breach of quasi-contract, against Defendants Mott’s LLP

and Dr. Pepper Snapple Group. The complaint was based on the theory that Defendants’

labeling of a variety of Mott’s food products with the statement “No Sugar Added” violated

FDA regulations, the Sherman Law and California consumer protection laws. Plaintiff

voluntarily dismissed Dr. Pepper Snapple Group (without prejudice) and filed a First

Amended Complaint.

Mott’s moved to dismiss the First Amended Complaint. The Court found that Plaintiff

sufficiently alleged that that the Mott’s 100% Apple Juice label fails to comply with 21 C.F.R.

§ 101.60(c)(2)(iv), that it thus violates the Sherman Law, and that Plaintiff therefore stated a

claim under the “unlawful” prong of the UCL. (Docket No. 46-9:3-10; 12:17-21.) However,

the Court also found that Plaintiff failed to adequately allege why the apple juice label is

misleading and dismissed Plaintiff’s allegations under the “fraudulent” prong of the UCL, the

FAL, and CLRA. (Docket No. 46 at 13:1-14:16.) The Court also dismissed all of Plaintiff’s

claims pertaining to the other Mott’s food products. (Docket No. 46-10:1-7.)

Plaintiff filed a Second Amended Complaint based solely on the “No Sugar Added”

statement on the Mott’s 100% Apple Juice label and Mott’s again moved to dismiss. The

Court found that Plaintiff had remedied his deception allegations by alleging that the label of

one of Mott’s competitor apple juices, Tree Top, did not contain the “No Sugar Added”

statement and that difference caused him to believe that Mott’s 100% Apple Juice contained

less sugar and was healthier. (Docket No. 54 at 7:20-8:7.) Defendant also argued that

Plaintiff failed to adequately allege injury and damages. The Court disagreed, finding that

Plaintiff’s allegations that he would not have purchased as much Mott’s 100% Apple Juice as

he did but for the “No Sugar Added” statement sufficiently alleged economic injury. (Docket

No. 54 at 9:8-16.)



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IV. ARGUMENT

A. The Certification Requirements Are Satisfied

Plaintiff proposes a simplified class definition that includes all California consumers

who purchased Mott’s 100% Apple Juice with the “No Sugar Added” statement during the

class period:

All California residents who, from June 13, 2009, until the date of the preliminary approval order, purchased Mott’s 100% Apple Juice bearing the statement “No Sugar Added” on the label or package (the “Class”).

The Class, as defined, Satisfies Rule 23(a)’s Requirements. 8

1. The Class is Sufficiently Numerous and Ascertainable

Rule 23(a)(1) requires that the class be so numerous that joinder of all class members

is “impracticable.” Fed. R. Civ. P. 23(a)(1). Because Mott’s has sold millions of units of

Mott’s 100% Apple Juice in California during the class period, joinder of all class members is

“impracticable.” Johns v. Bayer Corp., 280 FRD 551, 556 (S.D. Cal. 2012) (numerosity

requirement satisfied by net sales figures for men’s vitamins).

The Class is also ascertainable as defined by this Circuit. “In this Circuit, it is enough

that the class definition describes a set of common characteristics sufficient to allow a

prospective plaintiff to identify himself or herself as having a right to recover based on the

description.” McCrary v. Elations Co., 2014 U.S. Dist. LEXIS 8443, at *25 (C.D. Cal. Jan.

13, 2014). Here, Plaintiff has precisely defined the class based on three objective criteria:

Class members are: (1) California residents (2) who purchased Mott’s 100% Apple Juice

bearing the statement “No Sugar Added” on the label (3) since June 2009.

Consumers can determine if they are members of the class based on this definition.

8 The Second Amended Complaint proposed two classes of consumers who purchased

Mott’s 100% Apple Juice products. As originally expressed, the class definitions included technical terms that mirror Mott’s alleged violations of 21 C.F.R. § 101.60(c)(2) subdivisions (iv) and (v). (Docket No. 48-40:16-28.) The Court is not bound by the class definition in the complaint and it is appropriate to simplify the class definition to make the class more ascertainable. Rule 23 provides district courts with broad authority to redefine the class where appropriate. Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504-05, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005).



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The definition involves one product – Mott’s 100% Apple Juice. Although Mott’s 100%

Apple Juice was sold in a variety of packages (but mostly in 64-oz bottles) Mott’s has

confirmed that the labels were essentially uniform as to the presence of the “No Sugar Added”

statement across the board. Moreover, Mott’s own research has determined that the “No

Sugar Added” statement is important to consumers who buy this particular product. Finally,

the label for Mott’s 100% Apple Juice currently bears the “No Sugar Added” statement and

has done so for years.

Similar cases have recently found classes of consumers ascertainable based on the

same criteria presented here—that the class definition “simply identifies purchasers of

Defendant’s that included the allegedly material misrepresentations.” See Astiana v. Kashi

Co., 291 F.R.D. 493, 500 (S.D. Cal. 2013) (finding a class of customers who purchased Kashi

products labeled as containing “Nothing Artificial” during the class period to be

ascertainable); Werdebaugh v. Blue Diamond Growers, 2014 U.S. Dist. LEXIS 71575, *34-41

(N.D. Cal. May 23, 2014) (finding a class of consumers who purchased Blue Diamond

products labeled “All Natural” during the class period to be ascertainable); Brazil v. Dole

Packaged Foods, LLC, 2014 U.S. Dist. LEXIS 74234, *13-21 (N.D. Cal. May 30, 2014)

(finding a class of consumers who purchased Dole products labeled “All Natural Fruit” during

the class period to be ascertainable).

2. There are Questions of Law and Fact Common to All Class

Members

Rule 23(a)(2) requires a showing that there are questions of law or fact that are

common to the class. Fed. R. Civ. P. 23(a)(2). “All questions of fact and law need not be

common to satisfy the rule. The existence of shared legal issues with divergent factual

predicates is sufficient, as is a common core of salient facts coupled with disparate legal

remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019-20 (9th Cir.

1998).

The commonality requirement may be satisfied if the claims of the prospective class

have even one significant issue common to the class. See, e.g., Hanlon, 150 F.3d at 1019-



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1020. To satisfy this provision, a common question “must be of such a nature that it is

capable of class-wide resolution—which means that the determination of its truth or falsity

will resolve an issue that is central to the validity of each of the claims in one stroke.” Wal-

Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2545 (S. Ct. 2011) (“Dukes”). Here, there are at

least three significant issues that can be resolved on a classwide basis.

First, whether the “No Sugar Added” statement on the Mott’s 100% Apple Juice label

is illegal or unlawful presents a common legal issue. California’s UCL prohibits “any

unlawful … business act or practice.” Cal. Bus. & Prof. Code § 17200. “By proscribing ‘any

unlawful’ business practice, ‘section 17200 “borrows” violations of other laws and treats them

as unlawful practices’ that the unfair competition law makes independently actionable.” Cel-

Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 180

(1099). All Class members, by definition, purchased Mott’s 100% Apple Juice labeled “No

Sugar Added.” They all purchased the same apple juice, consisting of water, apple juice

concentrate and Vitamin C with a label that stated “No Sugar Added.” These labels are

governed by the same FDCA labeling regulation, 21 C.F.R. § 101.60(c)(2) which provides in

pertinent part:

The terms “no added sugar,” “without added sugar,” or “no sugar added” may be used only if: … (iv) The food that it resembles and for which it substitutes normally contains added sugars; and (v) The product bears a statement that the food is not “low calorie” or “calorie reduced” (unless the food meets the requirements for a “low” or “reduced calorie” food) and that directs consumers' attention to the nutrition panel for further information on sugar and calorie content.

Plaintiff contends that the food that Mott’s 100% Apple Juice “resembles and for

which it substitutes” is apple juice and that apple juice does not normally contain added

sugars. If Plaintiff is correct, all of Mott’s 100% Apple Juice labels violate the regulation and

the Sherman Law. Additionally, Plaintiff is unaware of any Mott’s 100% Apple Juice label

that bears a statement that it is not “low calorie” or “calorie reduced.” That would also be a

violation. Thus, the issue of whether Mott’s labels violate the law, and therefore the



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“unlawful” prong of the UCL, could be resolved on a classwide basis “in one stroke.”

Second, whether the “No Sugar Added” statement on the Mott’s 100% Apple Juice

label is “deceptive” presents a common factual issue. False advertising under the FAL, CLRA

and the “fraudulent” prong of the UCL is governed by the reasonable consumer standard.

Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008); Kaske v. Nike, Inc., 27

Cal. 4th 939, 951 (2002). Williams, 552 F.3d at 938 (“The California Supreme Court has

recognized that these laws prohibit advertising that is false, but also advertising which[,]

although true, is actually misleading or which has a capacity, likelihood or tendency to

deceive or confuse the public.” (internal quotation marks omitted)). “In order to obtain a

remedy for deceptive advertising, a UCL plaintiff need only establish that members of the

public were likely to be deceived by the advertising.” In re Vioxx Class Cases, 180 Cal. App.

4th 116, 130 (2009)).

“California consumer protection laws take an objective approach of the reasonable

consumer, not the particular consumer.” Johns, 280 FRD at 557 (original emphasis); see also

Yokoyama v. Midland National Life Ins. Co., 594 F.3d 1087, 1089, 1094 (9th Cir. 2010)

(“[T]here is no reason to look at the circumstances of each individual purchase in this case,

because the allegations of the complaint are narrowly focused on allegedly deceptive

provisions of Midland's own marketing brochures, and the fact-finder need only determine

whether those brochures were capable of misleading a reasonable consumer.”). “Moreover,

class reliance can be presumed under both the UCL and CLRA, although the latter requires

that a material misrepresentation was made to the class.” Johns, 280 FRD at 557.9

The law focuses on a reasonable consumer who is a member of the target population.

Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003). “Where the advertising

9As noted in Johns, “relief under the UCL is available without individualized proof

of deception, reliance and injury.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011) (quoting In re Tobacco II Cases, 46 Cal. 4th 298, 320 (2009)) (emphasis added). Likewise, under the CLRA, “[c]ausation on a class-wide basis may be established by materiality.” Stearns, 655 F.3d at 1022 (quoting In re Vioxx Class Cases, 180 Cal. App. 4th at 129). “If the trial court finds that material misrepresentations have been made to the entire class, an inference of reliance [under the CLRA] arises as to the class.” Id. (emphasis added).



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or practice is targeted to a particular group or type of consumers, either more sophisticated or

less sophisticated than the ordinary consumer, the question whether it is misleading to the

public will be viewed from the vantage point of members of the targeted group, not others to

whom it is not primarily directed.” Id. at 512. Here, the consumers in question are purchasers

of apple juice—a group that Mott’s has studied in detail as part of its decision to include the

“No Sugar Added” statement on the label. If the “No Sugar Added” statement is likely to

deceive apple juice consumers (as it clearly does), Mott’s is liable for violating the UCL on a

classwide basis. 10

That determination may be made by common proof such as sampling and survey

evidence. See Heighley v. J.C. Penney Life Ins. Co., 257 F. Supp. 2d 1241, 1260 (C.D. Cal.

2003) (consumer survey evidence can demonstrate challenged statements tend to mislead

consumers); Manual for Complex Litigation, Fourth (2012) § 11:493 (discussing the use of

sampling and opinion surveys). Both Plaintiff’s and Defendant’s experts agree that a valid

and reliable survey of putative class members is capable of determining whether a reasonable

consumer and the class is likely to be deceived by the “No Sugar Added” label. (See Expert

Report of Michael Belch, Ph.D. ¶ 13;11 Van Liere Dep. at pp. 24:5-26:9 [agreeing].12). Thus,

Mott’s concedes that whether the “No Sugar Added” statement on its apple juice label is

deceptive is susceptible to common proof.

Finally, the materiality of the statement is also a common issue susceptible to common

proof. “A representation is ‘material,’ . . . if a reasonable consumer would attach importance

to it or if ‘the maker of the representation knows or has reason to know that its recipient

regards or is likely to regard the matter as important in determining his choice of action.’”

Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1107 (9th Cir. 2013) (quoting Kwikset Corp. v.

10 Absent a perception by consumers that comparable products sometimes include

added sugar, it is difficult to conceive of a reason that Mott’s would have included the “No Sugar Added” statement at all.

11 “A valid and reliable survey of users of apple juice is capable of ascertaining consumer’s perceptions, and making a determination as to whether a reasonable consumer and the class as a whole is likely to be deceived by the No Sugar Added Label.” (Friedl Decl, Ex. E)

12 Friedl Decl, Ex. F



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Superior Court, 51 Cal. 4th 310, 330 (2011)) (emphasis in original). Moreover, the Supreme

Court in Amgen held that “[b]ecause materiality is judged according to an objective standard,

the materiality of [defendant’s] alleged misrepresentations and omissions is a question

common to all members of the class [plaintiff] would represent.” Amgen Inc. v. Connecticut

Retirement Plans and Trust Funds, 133 S. Ct. 1184, 1191 (2013). As materiality is an

objective inquiry, no individualized examination of materiality is necessary. To establish

materiality, Plaintiff need only prove that reasonable consumers would attach importance to

Mott’s “No Sugar Added” statement or are likely to regard the label statements as important in

making purchasing decisions. That question is common to the class and has already been

answered by Mott’s own marketing research. “No Sugar Added” is a big selling point with

apple juice consumers. (Mott’s Document Prod. # M 003367.)

Accordingly, Rule 23(a)(2)’s requirement that there are questions of law or fact that

are common to the class has been met.

3. Plaintiff’s Claims are Typical of Those of the Class

Rule 23(a)(3) requires that the claims or defenses of the representative parties be

typical of the claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). The typicality

requirement looks to whether “the claims of the class representatives [are] typical of those of

the class, and [is] ‘satisfied when each class member's claim arises from the same course of

events, and each class member makes similar legal arguments to prove the defendant's

liability.’” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (quoting Marisol A. by

Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997).)

Here, Plaintiff’s claims are typical of those of the Class because “Plaintiff[] and class

members . . . were all exposed to the same alleged misrepresentations on the packages and

advertisements.” Johns, 280 F.R.D. at 557. They all bought Mott’s 100% Apple Juice

bearing the statement “No Sugar Added” on the label or package.

4. Plaintiff Will Adequately Represent the Interests of the Class

Rule 23(a)(4) requires that the class representative “fairly and adequately represent the

interests of the class.” Fed. R. Civ. P. 23(a)(4). The Ninth Circuit has established a two-



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prong test for this requirement: “(1) Do the representative plaintiffs and their counsel have

any conflicts of interest with other class members, and (2) will the representative plaintiffs

and their counsel prosecute the action vigorously on behalf of the class?” Staton v. Boeing

Co., 327 F.3d 938, 957 (9th Cir. 2003).

The Rule 23(a) adequacy requirement is met here. Plaintiffs and the class have the

same claims and interest in obtaining relief. Therefore, there are no conflicts of interest. In

addition, Plaintiff has participated in this litigation from the inception, in reviewing the

complaints, answering discovery and preparing and sitting for his deposition. (See Rahman

Decl., ¶¶ 4.) Moreover, attorneys at Capstone have successfully certified numerous class

actions by way of contested motions in state and federal court, and have negotiated

settlements which were finally approved totaling tens of millions of dollars on behalf of

hundreds of thousands of class members. (See Friedl Decl.) Accordingly, the adequacy

requirement is met.

B. The Case Satisfies Rule 23(b)(2)’s Requirements

Under Rule 23(b)(2), Plaintiff requests class certification of the claim for injunctive

relief only. The gravamen of Plaintiff’s claim for injunctive relief is that Mott’s 100% Apple

Juice violates FDA regulations and is illegal and/or deceptive. Mott’s practice applied

uniformly to all class members and can be remedied by a single injunction applicable to all

class members.

To certify a class under Rule 23(b)(2), the Court must find 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(a)(1). Ordinarily, it follows that “[w]hen a class seeks an

indivisible injunction benefitting all its members at once, there is no reason to undertake a

case-specific inquiry into whether class issues predominate or whether class action is a

superior method of adjudicating the dispute. Predominance and superiority are self-evident.”

Dukes, 131 S. Ct. at 2557. See also In Re Motor Fuel, 292 F.R.D.at 673 (certifying a Rule

23(b)(2) class, even when the complaint also seeks damages, where plaintiff seeks



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certification of (b)(2) class for injunctive relief only and the (b)(2 class does not contain a

request for damages).

Here, Mott’s has acted on grounds that apply generally to the Class by producing and

distributing in California Mott’s 100% Apple Juice with the statement “No Sugar Added” on

the label. The primary relief that Plaintiff and the Class seek under Rule 23(b)(2) is injunctive

relief, namely, a change in the label to remove the words “No Sugar Added” (See SAC at p.

16:17-19, “Plaintiff and Class Members seek an order requiring Mott’s to immediately cease

such acts of unlawful, unfair and fraudulent business practices and requiring Mott’s to correct

its actions.”) If Plaintiff proves that Mott’s practice of putting the “No Sugar Added”

statement on its apple juice label is unlawful or deceptive, injunctive relief is appropriate

under the UCL and FAL (Cal. Bus & Prof Code §§ 17204 and 17535) and the CLRA (Cal.

Civ. Code § 1780(a)(2)). “This practice applied uniformly to all class members and could

therefore be remedied by a single injunction applicable to them all. In Re Motor Fuel, 293

F.R.D. at 673. Indeed, Plaintiff has testified that he wants to continue to purchase Mott’s

100% Apple Juice in the future so long as it is properly labeled. (Rahman Decl. ¶ 3; Rahman

Dep. at pp. 114:9-115:12.)

C. The Case Satisfies Rule 23(b)(3)’s Requirements

To certify a class under Rule 23(b)(3), the Court must find that “the questions of law

or fact common to class members predominate over any questions affecting only individual

members, and that a class action is superior to other available methods for fairly and

efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). For particular issues to be

certified using Rule 23(c)(4), the requirements of Rule 23(a) and (b) must be satisfied only

with respect to those issues. See Fed. R. Civ. P. 23(c)(4); Fulghum v. Embarq Corporation,

2011 U.S. Dist. LEXIS 1120 at *20-21 (D. Kan. 2009); Valentino v. Carter-Wallace, Inc., 97

F.3d 1227, 1234 (9th Cir. 1996).

“Rule 23(b)(3) requires a showing that questions common to the class predominate, not

that those questions will be answered, on the merits, in favor of the class. Amgen, Inc., 133 S.

Ct. at 1191 (emphasis in original). Questions that are common to the class predominate over



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individual questions where a plaintiff alleges a common course of conduct or

misrepresentations, omissions and other wrongdoing that affected all the class members in the

same or similar manner. See Blackie v. Barrack, 524 F.2d 891, 905-908 (9th Cir. 1975), cert.

denied, 429 U.S. 816 (1976). “The Rule 23(b)(3) predominance inquiry tests whether the

proposed classes are sufficiently cohesive to warrant adjudication by representation. In re

Visa Checks/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001).

Here, Plaintiff has met the requirements of predominance. As discussed above,

Plaintiff’s UCL, FAL and CLRA claims do not require and individual inquires as to liability.

“Relief under the UCL is available without individualized proof of deception, reliance and

injury.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011). Likewise, under

the CLRA, “[c]ausation on a class-wide basis may be established by materiality.” Id. at 1022

(quoting In re Vioxx Class Cases, 180 Cal. App. 4th at 129). A finding that the label is illegal

would support the quasi-contract claim. Moreover, because Plaintiff seeks to certify the class

only as to liability issues, there are no issues of individual damages that can predominate over

the common liability issues.

Plaintiff has also met the requirements for superiority. Class members have very little

interest in individually controlling the prosecution of the litigation. Fed R. Civ. P.

23(b)(3)(A). The liability issue that Plaintiff seeks to certify is intended to lead to injunctive

relief in the form of a label change – a remedy that would be impractical for individual class

members to seek on an individual basis. The other consideration in Rule 23(b)(3) likewise do

not apply. Plaintiff is not aware of any competing litigation. Fed R. Civ. P. 23(b)(3)(B).

Because only a California class is defined, there are presently no reasons why the case should

not be litigated in this Court. Fed R. Civ. P. 23(b)(3)(C). Moreover, there are no issues as to

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

Indeed, structuring the action in the way proposed by Plaintiff will reduce the range of

issues in dispute and promote judicial economy. If a liability class is certified, the

unlawfulness issue can be resolved by summary adjudication based on undisputed facts as to

whether or not the label violates 21 C.F.R. § 101.60(c)(2) and that ruling will be binding on



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the class. As discussed above, the Parties experts agree that the deceptive issue can be

resolved based on consumer survey evidence. A ruling as to certification for liability

purposes also may drive the parties to settlement.

In terms of a trial plan, Mott’s “liability” on Plaintiff’s claims would be determined in

Phase I of the trial. Any claim for relief or damages would be bifurcated and determined in

Phase II, as necessary.

V. CONCLUSION

For the foregoing reasons Plaintiff respectfully requests the motion be granted, the

Class be certified as to liability, and that the Court appoint Mohammad Rahman as Class


Dated: August 1, 2014 Respectfully submitted, Capstone Law APC

By: /s/ Robert K. Friedl Jordan L. Lurie Robert K. Friedl Cody R. Padgett Attorneys for Plaintiff Mohammed Rahman




Exhibit 4 ‐ PLAINTIFF’S REPLY TO MOTT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION AND FOR APPOINTMENT OF CLASS COUNSEL

Filed 9/5/2014


PLAINTIFF’S REPLY TO MOTT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION

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Case No.: 3:13-cv-03482-SI CLASS ACTION PLAINTIFF’S REPLY TO MOTT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION AND FOR APPOINTMENT OF CLASS COUNSEL Date: October 31, 2014 Time: 9:00 a.m. Ctrm: 10 Judge: The Hon. Susan Illston Notice of Removal: July 26, 2013


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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................... 1

II. CERTIFICATION OF A LIABILITY ONLY CLASS UNDER RULE

23(c)(4) WILL MATERIALLY ADVANCE THE LITIGATION AND

DOES NOT REQUIRE A DAMAGES MODEL ............................................................ 2

III. THE CERTIFICATION REQUIREMENTS ARE SATISFIED ...................................... 4

A. The Class is Ascertainable ...................................................................................... 4

B. Mott’s Does Not Dispute That There are Questions of Law and Fact

Common to All Class Members .............................................................................. 6

C. Plaintiff’s Claims are Typical of Those of the Class ............................................... 6

D. Plaintiff Will Adequately Represent the Interests of the Class ................................ 8

IV. PLAINTIFF HAS STANDING TO PURSUE INJUNCTIVE RELIEF

UNDER RULE 23(b)(2) .................................................................................................. 9

V. PLAINTIFF’S LIABILITY CLASS SATISFIES RULE 23(b)(3)’S

PREDOMINENCE REQUIREMENT BECAUSE THERE ARE

NUMEROUS COMMON ISSUES, NO INDIVIDUAL DAMAGES

ISSUES AND BECAUSE LIABILITY CAN BE ESTABLISHED BY

COMMON PROOF ....................................................................................................... 11

VI. PLAINTIFF’S LIABILITY CLASS IS SUPERIOR TO OTHER

METHODS OF ADJUDICATING THE CLASS CLAIMS .......................................... 15

VII. CONCLUSION ............................................................................................................. 15


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FEDERAL CASES

Astiana v. Ben & Jerry’s Homemade, Inc., 2014 U.S. Dist. LEXIS 1640 (N.D.

Cal. Jan. 7, 2014) ................................................................................................................... 5

Brazil v. Dole Packaged Foods, LLC, 2014 U.S. Dist. LEXIS 74234 (N.D. Cal.

May 30, 2014) ....................................................................................................................... 5

Carrera v. Bayer Corp, 727 F.3d 300 (3d. Cir. 2013) ........................................................... 4, 5

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ..................................................... 2, 3, 4, 11

Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) .................................................... 7

Heighley v. J.C. Penney Life Ins. Co., 257 F. Supp. 2d 1241 (C.D. Cal. 2003) ....................... 12

Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013) ......................................................... 13

Hodes v. Van’s Int’s Foods, 2011 U.S. Dist. LEXIS 60608 (C.D. Cal. July 23,

2009) ..................................................................................................................................... 6

Houser v. Pritzker, 2014 U.S. Dist. LEXIS 91451 (S.D.N.Y. July 1, 2014) ...................... 2, 3, 4

In re Conagra Foods, Inc., 2014 U.S. Dist. LEXIS 116103 (C.D. Cal. Aug. 1,

2014) ..................................................................................................................................... 5

In re Diasonics Sec. Litigation, 599 F. Supp. 447 (N.D. Cal. 1984) .......................................... 8


2013) ....................................................................................................................... 2, 3, 4, 11

In re Nexium Antitrust Litig., 297 F.R.D. 168 (D. Mass. 2013) ........................................... 3, 11

In re Paxil Litig., 212 F.R.D. 539 (C.D. Cal. 2003) ................................................................ 11

In re POM Wonderful LLC, 2014 U.S. Dist. LEXIS 40415 (C.D. Cal. Mar. 25,

2014) ..................................................................................................................................... 5

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838

(6th Cir. 2013) ....................................................................................................................... 3

Jacob v. Duane Reade, Inc., 293 F.R.D. 578 (S.D.N.Y. 2013) ............................................ 3, 11

Johns v. Bayer Corp., 280 FRD 551 (S.D. Cal. 2012) ............................................................... 6


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Jones v. Conagra Foods, Inc., 2014 U.S. Dist. LEXIS 81292 (N.D. Cal. Jun. 13,

2014) ............................................................................................................................. 10, 12

Jou v. Kimberly-Clark Corp., 2013 U.S. Dist. LEXIS 173216 (N.D. Cal. 2013) .................... 10

Mason v. Nature's Innovation, Inc., 2013 U.S. Dist. LEXIS 68072 (S.D. Cal.

May 13, 2013) ..................................................................................................................... 10

McCrary v. Elations Co., 2014 U.S. Dist. LEXIS 8443 (C.D. Cal. Jan. 13, 2014) .................... 5

Rahman v. Mott's LLP, 2014 U.S. Dist. LEXIS 11767 (N.D. Cal. Jan. 29, 2014) ................... 10

Ries v. Arizona Beverages, USA LLC, 2013 U.S. Dist. LEXIS 46013 (N.D. Cal.

Mar. 29, 2013) ....................................................................................................................... 9

Sethavanish v. ZonePerfect Nutrition Co., 2014 U.S. Dist. LEXIS 18600 (N.D.

Cal. Feb. 13, 2014) ................................................................................................................ 5

Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011) ................................................ 11

Sullivan v. Kelly Services, Inc., 268 F.R.D. 356 (N.D. Cal. 2010) ............................................. 9

Werdebaugh v. Blue Diamond Growers, 2014 U.S. Dist. LEXIS 71575 (N.D.

Cal. May 23, 2014) .......................................................................................................... 5, 13

Zeisel v. Diamond Foods, Inc., 2011 U.S. Dist. LEXIS 60608 (N.D. Cal. June 7,

2011) ..................................................................................................................................... 6

STATE CASES

Clemons v. Western Photo Camera Hut, 117 Cal. App. 3d 392 (1981) ................................... 15

In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ......................................................... 6, 7, 11, 14

In re Vioxx Class Cases, 180 Cal. App. 4th 116 (2009) .......................................................... 11

Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) ........................................................ 13

FEDERAL STATUTES

21 C.F.R § 101.60(c)(2) ................................................................................................ 7, 12, 13

Fed. R. Civ. P. 23 .................................................................................................................... 11

Fed. R. Civ. P. 23(a)(2) ............................................................................................................. 6


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Fed. R. Civ. P. 23(b)(2) ......................................................................................................... 2, 4

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

Fed. R. Civ. P. 23(c)(4) ............................................................................................................. 2

SECONDARY AUTHORITIES

Manual for Complex Litigation, Fourth (2012) ....................................................................... 12



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I. INTRODUCTION

Plaintiff’s Motion for Class Certification and For Appointment of Class Counsel

(“Motion”) proposes certification of a liability class that will significantly move this matter

forward to resolution. Common issues such as the unlawfulness of Mott’s “No Sugar Added”

statement on the label of its Mott’s 100% Apple Juice, whether the statement is likely to

deceive consumers, and the materiality of the statement can be resolved on a classwide basis

leading to a determination of Mott’s liability as to each of Plaintiff’s causes of action. That

determination will allow the Court to consider whether injunctive relief leading to a change in

Mott’s “No Sugar Added” label is appropriate. That is the main relief that Plaintiff

Mohammad Rahman (“Plaintiff”) seeks to achieve in this case.

Mott’s chiefly resists certification on the baseless ground that Plaintiff’s proposed

certification of a liability class does not include a damages model. However, the purpose of a

liability class is to determine defendant's liability, while leaving the class members to pursue

their individual damages, especially where it would be difficult to determine damages on a

classwide basis. Certification of a liability class does not require a damages model. Yet,

Mott’s insistence that a liability class requires a damages model is the main thrust of its

Opposition.

Mott’s remaining arguments against certification also lack merit. Mott’s argument that

the class is not ascertainable because consumers are not likely to keep their receipts for apple

juice has been rejected in this Circuit. Mott’s does not dispute that there are issues common to

the class, such as whether the “No Sugar Added” statement on its label is unlawful, deceptive

and material. Mott’s argument that Plaintiff is not typical of the class because he purchased

Mott’s 100% Apple Juice for a number of reasons in addition to the “No Sugar Added” label

is contrary to the law. No valid argument is advanced to demonstrate that either Plaintiff or

his counsel will not adequately represent the class.

Moreover, Mott’s attacks Plaintiff’s standing to pursue injunctive relief even though he

has expressed his intent to purchase Mott’s 100% Apple Juice in the future. Plaintiff’s desire



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to purchase the product in the future, after Mott’s changes its label, confers standing to pursue

injunctive relief as a matter of law. Finally, Mott’s discussion of predominance largely

ignores the common issues of unlawfulness and deception and misstates the law by arguing

that reliance in California consumer cases depends on individual inquires. It is basic to the

California’s consumer protection laws that reliance is proven on a classwide basis by

demonstrating that an unlawful or deceptive statement is material.

In sum, this case is well suited for certification of a liability class and doing so will

materially advance this litigation.

II. CERTIFICATION OF A LIABILITY ONLY CLASS UNDER RULE 23(c)(4)

WILL MATERIALLY ADVANCE THE LITIGATION AND DOES NOT

REQUIRE A DAMAGES MODEL

Pursuant to Rule 23(c)(4), Plaintiff seeks to certify a liability class under Rule 23(b)(2)

and 23(b)(3). This is not an uncommon procedure. “Certifying a class to determine

defendant's liability, while leaving the class members to pursue their individual damages

claims, is a common example of partial certification.” In Re Motor Fuel Temperature Sales

Practices Litig., 292 F.R.D. 652, 665 (D. Kan. 2013) (“In Re Motor Fuel”).

The benefits in terms of judicial economy of proceeding in this manner are clear.

First, if Plaintiff establishes liability, the Court can easily determine whether injunctive relief

is appropriate. Second, a liability class under Rule 23(c)(4) provides a viable solution where

damages cannot be determined on a classwide basis. Houser v. Pritzker, 2014 U.S. Dist.

LEXIS 91451, *84 (S.D.N.Y. July 1, 2014).

Mott’s chief objection to this procedure appears to be that under Comcast Corp. v.

Behrend, 133 S. Ct. 1426 (2013), Plaintiff is required to offer a damages model to explain

how damages could be measured using common proof. (Opp. at p. 11:5-7.) Mott’s is

incorrect. “The Supreme Court's primary concern in Comcast was the plaintiffs’ inability to

provide a damages model that would allow the district court to award damages on a classwide

basis.” Houser, 2014 U.S. Dist. LEXIS 91451, at * 84 emphasis added. That is not the

situation here. “Where determinations on liability and damages have been bifurcated, the



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decision in Comcast — to reject certification of a liability and damages class because

plaintiffs failed to establish that damages could be measured on a classwide basis — has

limited application.” In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722

F.3d 838, 860 (6th Cir. 2013) (internal citations omitted). Plaintiff does not need a damages

model to prove liability on a classwide basis.

Mott’s misconstrues cases cited by Plaintiff in order to suggest that lack of a damages

model is “fatal” to Plaintiff’s liability class. Mott’s cites Jacob v. Duane Reade, Inc., 293

F.R.D. 578, 588-89 (S.D.N.Y. 2013), for the proposition that a Plaintiff seeking to certify a

liability issue class must demonstrate a “linkage” between his theory of liability and damages.

However, the “linkage” referred to in Jacob is the linkage between a theory of liability and a

theory of damages required by Comcast. The next sentence in Jacob distinguishes Comcast

from cases where a liability class is sought: “Nothing in Comcast, however, vitiates the

longstanding principle in this Circuit that courts may certify a class as to liability, but not

damages, utilizing Rule 23(c)(4).” In re Nexium Antitrust Litig., 297 F.R.D. 168, 183 (D.

Mass. 2013), also cited for Mott’s “linkage” proposition, simply cites to Jacob’s discussion of

Comcast.

Mott’s then argues that In Re Motor Fuel and Houser “hold likewise.” (Opp. at p. 11

n. 3.) As demonstrated above, Jacob and In re Nexium by no stretch hold that Plaintiff needs

a damages model to prove liability. In Re Motor Fuel and Houser do not either. The source

of Mott’s apparent confusion is that Mott’s quotes In Re Motor Fuel for the proposition that

the “liability aspects of plaintiffs’ claims include all substantive elements of the claims,

including causation and injury.” (Opp. at p. 11 n. 3, original emphasis.) Mott’s mistakenly

equates “injury” with “damages” to argue that Plaintiff must present a damages model.

However, Mott’s ignores the next sentence in the case: “‘Liability’ does not include questions

of remedy, e.g. damages, injunctive relief and restitution.” In Re Motor Fuel, 292 F.R.D. at

666, emphasis added. Moreover, the “injury” referred to in In Re Motor Fuel is economic

injury to the named plaintiff, not to the class. In Re Motor Fuel, supra. Here, Plaintiff

sustained economic injury because the “No Sugar Added” statement caused him to buy more



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apple juice. (Rahman Dep. p 210:13-14; see also discussion of increased purchases, Motion at

p. 4:17-24.) Similarly, the liability class certified in Houser did not include damages.

Houser, 2014 U.S. Dist. LEXIS 91451, *87 (“The Plaintiffs’ class shall be certified under

Rule 23(b)(2) for purposes of determining liability and affording injunctive relief, but shall

not be certified for purposes of resolving damages.”) In short, to demonstrate liability on a

classwide basis, Plaintiff need prove only the “liability” aspects of his claims. “Liability”

does not include questions of remedy such as damages, injunctive relief and restitution.

Mott’s remaining arguments are easily addressed. Mott’s argues that it would be

“pointless” to certify a liability class under Rule 23(b)(2) because Plaintiff lacks standing to

seek injunctive relief. (Opp. at p. 8:25.) As discussed infra, Plaintiff has standing because he

testified that he would purchase Mott’s 100% Apple Juice in the future after it changes its

label. Mott’s argues that under Comcast, Plaintiff cannot certify a damages class under Rule

23(b)(3) without a damages model. (Opp. at p. 10:14-11:4.) Plaintiff is not attempting to do

so and does not need a damages model for the liability class he seeks to certify. Finally,

Mott’s argues that certifying a liability class would not advance the litigation with respect to

injunctive relief. In Re Motor Fuel found otherwise stating that where injunctive relief is the

“centerpiece” of the case (like here) “[b]y quantum leaps, this approach will advance the

resolution of plaintiffs’ core claims on a class-wide basis.” In Re Motor Fuel 292 F.R.D. at

667.

III. THE CERTIFICATION REQUIREMENTS ARE SATISFIED

A. The Class is Ascertainable

Mott’s presents three arguments as to why the clearly defined class in this case is not

ascertainable. None of them are supported by the law.

Relying on Carrera v. Bayer Corp, 727 F.3d 300 (3d. Cir. 2013), Mott’s first argues

that the class is not ascertainable because “there is no way to identify persons who bought

Mott’s in California since 2009.” That is to say, Mott’s purchasers are unlikely to have saved

their receipts. (Opp. at pp. 13-14.) The argument that consumers must have a verifiable

record of purchase in order for the class to be ascertainable has been rejected by courts in the



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Ninth Circuit. (See McCrary v. Elations Co., 2014 U.S. Dist. LEXIS 8443 *24-25 (C.D. Cal.

Jan. 13, 2014) (“While this may now be the law in the Third Circuit, it is not currently the law

in the Ninth Circuit.”);1

Second, Mott’s argues that the class is not ascertainable because there was a short

period of time when it produced labels that mistakenly omitted the “No Sugar Added”

statement. (Opp. at p. 14.) That period of time was from early 2011 until early 2012.

(Blackwood Dep. pp. 25:3-26:6; 37:14-20.) However, under the facts of this case consumers

will be able to reliably determine whether they are members of the class by simply looking at

the class definition and determining whether they purchased Mott’s 100% Apple Juice with

the “No Sugar Added” label. This case involves a single memorable product – Mott’s 100%

Apple Juice – not a plethora of different products that may test consumers’ memories. Also,

the “No Sugar Added” statement is important to consumers. As Mott’s Brand Director

Allison Methvin stated, “[w]e know this is one of the FIRST THINGS our moms look for.”

(Mott’s Document Prod. # M 004657.) Moreover, if the Court were to find that it is not

administratively feasible to allow putative class members who purchased juice during that

period to self-identify, that period could be excluded from the class definition.

Mott’s argues that Astiana v. Ben & Jerry’s Homemade, Inc., 2014 U.S. Dist. LEXIS

1640 (N.D. Cal. Jan. 7, 2014) “is instructive.” In Astiana, the class definition required

consumers to determine if they purchased ice cream products that were labeled “‘All Natural’

but contained alkalized cocoa processed with a synthetic ingredient.” Astiana at *7.

However, only one of the defendant’s fifteen suppliers used the ingredient, and the plaintiff in

Astiana could not provide a method of identifying consumers who purchased the ice cream

1 See also Werdebaugh v. Blue Diamond Growers, 2014 U.S. Dist. LEXIS 71575, *36

(N.D. Cal. May 23, 2014) (rejecting Blue Diamond’s argument that “the proposed class is not ascertainable because no company records exist to identify purchasers or which products they bought”); Brazil v. Dole Packaged Foods, LLC, 2014 U.S. Dist. LEXIS 74234, *18 (N.D. Cal. May 30, 2014) (rejecting Dole’s argument, based on Carrera and Sethavanish v. ZonePerfect Nutrition Co., 2014 U.S. Dist. LEXIS 18600 (N.D. Cal. Feb. 13, 2014) that “the proposed class is not ascertainable because no company records exist to identify purchasers or which products they bought”); In re Conagra Foods, Inc., 2014 U.S. Dist. LEXIS 116103 *66-70 (C.D. Cal. Aug. 1, 2014) (following McCrary and rejecting the reasoning in Carrera, Sethavanish and In re POM Wonderful LLC, 2014 U.S. Dist. LEXIS 40415 (C.D. Cal. Mar. 25, 2014).



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with that ingredient. Here, all Mott’s 100% Apple Juice is the same. Consumers can

determine if they are members of the class by looking at the product label.

Finally, based on Hodes v. Van’s Int’s Foods, 2011 U.S. Dist. LEXIS 60608 (C.D. Cal.

July 23, 2009) Mott’s argues that the class is unascertainable because there is no way to

identify consumers who relied on the “No Sugar Added” label. However, in Hodes “the court

did not conclude that the proposed class was not ascertainable. Rather, the court concluded

that the plaintiffs had not established the superiority and predominance requirements of Rule

23(b)(3). Hodes, 2009 U.S. Dist. LEXIS 72193 [], at *4.” Zeisel v. Diamond Foods, Inc.,

2011 U.S. Dist. LEXIS 60608, at *21 (N.D. Cal. June 7, 2011). As discussed infra, here those

requirements are easily met.

B. Mott’s Does Not Dispute That There are Questions of Law and Fact

Common to All Class Members

As discussed in Plaintiff’s Motion, the commonality requirement of Rule 23(a)(2) is

met in this case. The common questions that are capable of resolving this matter on a

classwide basis include whether Mott’s “No Sugar Added” statement is unlawful, whether it is

likely to deceive consumers and whether it is a material statement. Mott’s has not disputed –

and cannot dispute - that there are questions of law and fact common to the class.

C. Plaintiff’s Claims are Typical of Those of the Class

As discussed in Plaintiff’s Motion, Plaintiff’s claims are typical of those of the Class

because “Plaintiff[] and class members . . . were all exposed to the same alleged

misrepresentations on the packages and advertisements.” Johns v. Bayer Corp., 280 FRD 551,

557 (S.D. Cal. 2012). They all bought Mott’s 100% Apple Juice bearing the statement “No

Sugar Added” on the label or package. Mott’s presents three arguments as to why Plaintiff

lacks typicality. They are all without legal support.

Mott’s first argues that Plaintiff did not rely on the “No Sugar Added” statement on the

label of Mott’s 100% Apple Juice because he purchased the product for a number of reasons

in addition to the “No Sugar Added” label. (Opp. at p. 15:24-16:22.) The argument fails

under In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009) (“Tobacco II.”):



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While a plaintiff must show that the misrepresentation was an immediate cause of the injury-producing conduct, the plaintiff need not demonstrate it was the only cause. “‘It is not … necessary that [the plaintiff's] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct. … It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.’ [Citation.]

(Tobacco II, 46 Cal. 4th at 326, emphasis added.) Further, “a presumption, or at least an

inference, of reliance arises wherever there is a showing that a misrepresentation was

material.” (Tobacco II, 46 Cal. 4th at 327.) The “No Sugar Added” claim is clearly material.

Mott’s own research demonstrates that “is a big selling point … something [consumers] say

they scan for on the front of the bottle before they put any juice in their shopping cart.”

(Mott’s Doc. Prod # M 003367.) The FDA deemed the statement material by regulating its

use. (See 21 C.F.R § 101.60(c)(2).) The “No Sugar Added” statement was clearly material to

Plaintiff because he bought more of it after seeing the statement. (Rahman Dep. p. 210:13-

24.) Under Tobacco II that is more than sufficient to demonstrate reliance.

Mott’s second argument is that because Plaintiff wants Mott’s to change its label,

rather than pay him money, he is not typical of a “damages class.” (See Opp. at p. 17:1-9,

“Rahman cannot represent a damages class if he has no damages.”) First, Plaintiff has

damages. The fact that he is focussed on obtaining a label change rather than obtaining

damages does make him atypical of the class he seeks to represent – a liability class. Second,

presently and for purposes of this motion, Plaintiff does not seek to represent a “damages”

class. Accordingly, whether he wants to recover the monetary damages he himself suffered is

irrelevant to whether he is typical of the class.

Mott’s final argument is to colorfully call Plaintiff “a Type II Diabetic, a smoker and a

sugar-conscious label-reader” in order to portray him as a unique individual and therefore

atypical of the class. (Opp. at pp. 4:26; 17:10-18:5.) However, Mott’s does not and cannot

demonstrate that Plaintiff did not rely on the “No Sugar Added” label. Clearly he did.

Defenses unique to a class representative counsel against class certification only where they

“threaten to become the focus of the litigation.” Hanon v. Dataproducts Corp., 976 F.2d 497,



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508 (9th Cir. 1992) (internal quotation marks and citation omitted). Mott’s has not identified

any unique defenses. Accordingly, Mott’s has failed to demonstrate that Plaintiff is not

typical of the class.

D. Plaintiff Will Adequately Represent the Interests of the Class

Mott’s presents a number of specious arguments in order to insinuate inadequacy on

the part of Plaintiff and his counsel. (Opp. at p. 18:6-19:25.) All are transparently

disingenuous.

Mott’s first attacks Plaintiff by representing to the Court that Plaintiff’s statement in

his declaration – that as a result of the “No Sugar Added” label he bought more juice –

“contradicts his sworn testimony and renders him incapable of representing the class.” (Opp.

at p. 18:20-21.) Mott’s statement is false. Plaintiff’s declaration is consistent with his

deposition testimony. (See Motion at p. 4:17-24.) Mott’s knows its statement is false because

it urges the Court to disregard Plaintiff’s consistent deposition testimony. (Opp. at p. 18, n 5.)

Next, Mott’s turns its attention to the adequacy of Capstone Law APC, which was

amply evidenced by the seven-page Declaration of Robert K. Friedl filed in support of

Plaintiff’s Motion. In that regard, Mott’s has no occasion to challenge the qualifications or

competence of counsel and asserts no conflicts of interest. Instead, Mott’s asserts that counsel

has not been “zealous” in pursuing this litigation. The irony of a defendant in a class action

purporting to assist the court by commenting on the adequacy of the Plaintiff’s counsel is not

lost on the courts. (See, e.g. In re Diasonics Sec. Litigation, 599 F. Supp. 447 (N.D. Cal.

1984) “. . . it is a bit like permitting a fox, although with a pious countenance, to take charge

of the chicken house.”)

Here, Mott’s is the proverbial fox in the chicken house. This case was filed on July 26,

2013. Plaintiff’s counsel successfully opposed two motions to dismiss. (Dkt. # 46 (granted in

part and denied in part); Dkt. No. 54 (denying motion to dismiss).) Plaintiff’s counsel

completed precertification written discovery and all precertification expert discovery



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necessary for certification of a liability class.2 Delays were caused by Mott’s failure to timely

produce documents necessary for the noticed deposition of its corporate representative. (See

Dkt. # 62.) But when Mott’s produced its documents and representative, Plaintiff’s counsel

took his deposition in order to obtain evidence cited in the motion. (e.g. Blackwood Dep.)

Plaintiff’s counsel has acted with diligence.3

Mott’s argument for lack of vigor simply boils down to its own conclusions (in its role

as “the fox”) that Plaintiff and Plaintiff’s counsel should have litigated this case differently.

(Opp. at p. 19:133-25.) It contends that Plaintiff cannot certify a liability class without a

damages expert and damages model, which is incorrect. It contends that Plaintiff’s counsel

should have determined that Plaintiff’s testimony precludes certification, which is incorrect.

It contends that a trial plan is required for certification, which is incorrect. Sullivan v. Kelly

Services, Inc., 268 F.R.D. 356, 365 (N.D. Cal. 2010). In short, Mott’s argument ignores that

Plaintiff’s counsel is diligently pursuing a suitable plan to establish its liability on a classwide

basis in order to obtain the benefits of equitable relief and at the same time preserve class

members’ right to monetary relief. Mott’s presents no reason to find Plaintiff’s counsel

“inadequate” other than the unstated reason that Plaintiff’s plan might work.

IV. PLAINTIFF HAS STANDING TO PURSUE INJUNCTIVE RELIEF UNDER

RULE 23(b)(2)

Mott’s argues that Plaintiff does not have standing to pursue injunctive relief because

he is aware of the “No Sugar Added” label and testified that he will not purchase Mott’s 100%

Apple Juice again until the label is changed. (Opp. at p. 12:10-12.) Plaintiff’s testimony is

more nuanced than that and demonstrates he still wants to buy Mott’s 100% Apple Juice in the

future. Under examination by Mott’s counsel, Plaintiff testified that he likes Mott’s 100%

Apple Juice, is loyal to the brand, and wants to buy it again after it changes its label. (Rahman

2 Plaintiff retained a survey expert and obtained an admission from Mott’s own expert

at deposition that a survey can determine on a classwide basis whether the “No Sugar Added” statement is likely to deceive consumers. (Motion at p. 13:13-18.)

3 C.f. Ries v. Arizona Beverages, USA LLC, 2013 U.S. Dist. LEXIS 46013, *25-27 (N.D. Cal. Mar. 29, 2013) [case decertified after prior court order found that counsel was dilatory post-certification and counsel’s opposition to the motion to decertify itself demonstrated inadequacy].



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Dep. pp. 115:5-12; 157:4-15.) Plaintiff’s declaration is consistent with this testimony. (See

Rahman Decl. ¶¶ 2-3.)

To establish standing for prospective injunctive relief, Plaintiff must demonstrate that

“he has suffered or is threatened with a ‘concrete and particularized’ legal harm . . . coupled

with ‘a sufficient likelihood that he will again be wronged in a similar way.’” Mason v.

Nature's Innovation, Inc., 2013 U.S. Dist. LEXIS 68072, at *6 (S.D. Cal. May 13, 2013),

(citations omitted). Accordingly, this Court has held that “to establish standing, [a plaintiff]

must allege that he intends to purchase the products at issue in the future.” Rahman v. Mott's

LLP, 2014 U.S. Dist. LEXIS 11767, *35 (N.D. Cal. Jan. 29, 2014).

“Courts have rejected the argument that a plaintiff cannot establish standing if he has

learned that a label is misleading and therefore will not be fooled by it again.” Jones v.

Conagra Foods, Inc., 2014 U.S. Dist. LEXIS 81292, *46 (N.D. Cal. Jun. 13, 2014). In food

labeling cases, a plaintiff who is fully aware that a label is deceptive has standing for

injunctive relief “where a consumer would still be interested in purchasing the product if it

were labeled properly - for example, if a food item accurately stated its ingredients.” Mason,

2013 U.S. Dist. LEXIS 68072, at *13. “Placing this [standing] requirement on Plaintiffs does

not thwart the objective of California consumer protection laws since it is not impossible that

a consumer would be interested in purchasing the products at issue if they were labeled

correctly.” Jou v. Kimberly-Clark Corp., 2013 U.S. Dist. LEXIS 173216. *13 (N.D. Cal.

2013). For example, in Jones, the court remarked “Jones could have testified, if true, that he

bought the Hunt's products in reliance on the label because he seeks out natural products, but

that he might purchase Hunt's products in the future if they were properly labeled.” Jones, at

*48.

Here, Plaintiff has testified to a decade-long history of purchasing Mott’s 100% Apple

Juice, that he is loyal to the Mott’s brand, that he likes the taste of Mott’s 100% Apple Juice,

and that he is interested in again purchasing it after Mott’s corrects its label. Plaintiff has

standing to seek injunctive relief because he is interested in purchasing the product again after

Mott’s changes its label.



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V. PLAINTIFF’S LIABILITY CLASS SATISFIES RULE 23(b)(3)’S

PREDOMINENCE REQUIREMENT BECAUSE THERE ARE NUMEROUS

COMMON ISSUES, NO INDIVIDUAL DAMAGES ISSUES AND BECAUSE

LIABILITY CAN BE ESTABLISHED BY COMMON PROOF

Plaintiff has outlined in some detail the common issues in this case. (Motion at pp. 10-

14.) The common issues include: (1) whether the “No Sugar Added” statement on the Mott’s

100% Apple Juice label is unlawful; (2) whether the “No Sugar Added” statement on the label

is deceptive; and (3) whether the “No Sugar Added” statement on the label is a material

statement. As discussed in the Motion, all of these issues are susceptible to common proof

and predominate over individual issues. (Motion at pp. 16:17-7:15.)

Mott’s first argument against predominance is a non-starter. Mott’s simply repeats its

incorrect assertion that Comcast, Jacob and In re Nexium require Plaintiff to present a

damages model in order to certify a liability class under Rule 23(b)(3). (Opp. at pp. 20:12-

21:7; c.f. Opp. at p. 11.) Mott’s argument fails because “[f]or particular issues to be certified

using Rule 23(c)(4), the requirements of Rule 23(a) and (b) must be satisfied only with respect

to those issues.” In Re Motor Fuel, 292 F.R.D. at 674, emphasis added. The court in In re

Paxil Litig., 212 F.R.D. 539, 543 (C.D. Cal. 2003), explained, “[t]hus, for example, class

certification solely with respect to liability requires that the issues and the class certified meet

the requirements of Rule 23; that other non-certified issues or classes would violate Rule 23 is

irrelevant.” Because the issue of “liability” does not include the issue of “damages,” a lack of

a damages model is irrelevant to the issue of predominance.

Mott’s next argument is that common issues do not predominate because “reliance

requires individual proof.” Mott’s argument is legally incorrect. “Relief under the UCL is

available without individualized proof of deception, reliance and injury.” Stearns v.

Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011) (quoting In re Tobacco II Cases, 46

Cal. 4th 298, 320 (2009)) (emphasis added). Likewise, under the CLRA, “[c]ausation on a

class-wide basis may be established by materiality.” Stearns, 655 F.3d at 1022 (quoting In re

Vioxx Class Cases, 180 Cal. App. 4th 116, 129 (2009). “If the trial court finds that material



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misrepresentations have been made to the entire class, an inference of reliance [under the

CLRA] arises as to the class.” Id. (emphasis added). The cases cited by Mott’s do not hold

otherwise. For example, in Jones the court explained:

Under the CLRA, each class member must “have an actual injury caused by the unlawful practice,” see Stearns, 655 F.3d at 1022, but a plaintiff may demonstrate that a defendant's alleged deceptive conduct caused the same damage to the class by showing that the alleged misrepresentation would have been material to reasonable persons, see In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145, 156-57.

(Jones, 2014 U.S. Dist. LEXIS 81292, at *55.) Although Mott’s argument that there are

individual “reliance” issues that predominate is legally incorrect, there is a common issue –

materiality –that justifies class certification because a determination that the “No Sugar

Added” statement is material to will serve to prove reliance on a classwide basis.

Mott’s offers no response at all to Plaintiff’s argument that common issues

predominate as to whether its juice label is (1) unlawful, (2) deceptive and (3) material.

Mott’s fails to refute Plaintiff’s argument that the issue of whether Mott’s labels are unlawful

can be resolved on a classwide basis “in one stroke.” This is significant. Plaintiff has argued

“[i]f a liability class is certified, the unlawfulness issue can be resolved by summary

adjudication based on undisputed facts as to whether or not the label violates 21 C.F.R.

§ 101.60(c)(2) and that ruling will be binding on the class.” (Motion at pp. 17:26-18:1.) That

unlawfulness can be determined as a matter of law shows that common issues predominate.

Mott’s has also failed to respond to Plaintiff’s argument that case law (Heighley v. J.C.

Penney Life Ins. Co., 257 F. Supp. 2d 1241, 1260 (C.D. Cal. 2003)), the Manual for Complex

Litigation, Fourth (2012) § 11:493, Plaintiff’s expert and Mott’s expert all agree that whether

Mott’s “No Sugar Added” label is likely to deceive a reasonable consumer can be determined

on a classwide basis by survey evidence. (Motion at p. 13:9-18.) Mott’s attempts to

characterize its expert’s agreement with this fundamental principle as an “abstract

affirmation.” (Opp. at p. 22-23 n. 6.) However, the fact is that Mott’s expert cannot deny

that fact without disqualifying himself as a survey expert for all time and has not done so. In

fact, Mott’s expert conducted his own survey in this case, albeit one misinformed regarding



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the legal issues in this case, as discussed below. Thus, there is no dispute that the issue of

whether the label is likely to deceive members of the public is also a common issue

susceptible to common proof.

As for the issue of materiality, numerous cases hold that materiality is a question

common to the class. In E.g Werdebaugh v. Blue Diamond Growers, 2014 U.S. Dist. LEXIS

71575 (N.D. Cal. May 23, 2014). The court in Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1107

(9th Cir. 2013) citing Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 330 (2011) explained:

A representation is “material,” however, if a reasonable consumer would attach importance to it or if “the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action.” Id. at 892 (quoting Restatement (Second) of Torts, § 538, subd. (2)(b) (1977)). Moreover, the legislature's decision to prohibit a particular misleading advertising practice is evidence that the legislature has deemed that the practice constitutes a “material” misrepresentation, and courts must defer to that determination. See id.

In the present case, Plaintiff has presented a prima facie case of materiality. First,

Plaintiff has established through evidence that Mott’s knows that consumers attach significant

importance to its “No Sugar Added” label. As discussed more fully in Plaintiff’s motion,

Mott’s has historically included the statement on its label, conducted market research that the

“No Sugar Added” statement is “a big selling point” and something consumers “scan for on

the front of the bottle before they put any juice in their cart.” Further, when Mott’s left the

“No Sugar Added” statement off the label by mistake4 Mott’s was compelled to put it back on.

Second, as discussed more fully in Plaintiff’s motion, the “No Sugar Added” statement is

likely unlawful as it facially violates 21 C.F.R. § 101.60(c)(2).

Mott’s views the law differently. Instead of focusing on whether its “No Sugar

Added” statement is deceptive and material to a reasonable consumer, Mott’s predominance

argument focuses on whether consumers will all “rely” on the statement in the precise same

4 “I am freaking our right now. Did we forget to put No Sugar Added on our new

Mott’s 100% Original base juice graphics?!!!! We know this is one of the FIRST THINGS our moms look for. We are going to have to get it added. How did we miss this?” (Mott’s Document Prod. # M 004657.)



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manner as Plaintiff. It argues, “[c]ritically, there is no evidence that consumers would rely on

“No Sugar Added” in the same idiosyncratic way that Rahman did.” Mott’s view is that

because Plaintiff testified that he thought the statement means “healthier” and “less sugar,” he

has to show that consumers “would rely on that idiosyncratic meaning.” (Opp. at 21:20-27.)

Finally, Mott’s touts its expert’s “survey” as a challenge to predominance because he

concluded that “consumers purchase Mott’s 100% Apple Juice for many different reasons,

including taste, price and brand loyalty.” (Opp. at p. 23.) Whether consumers bought Mott’s

100% Apple Juice for “many reasons” is irrelevant. The survey of Mott’s expert, Dr. Van

Liere, is worthless because it is not informed by the law, but rather Mott’s incorrect view of

the law. Dr. Van Liere’s survey did not ask consumers what meaning they attached to the “No

Sugar Added” statement and did not ask consumers whether the “No Sugar Added” statement

was one of the reasons they bought product.

What Dr. Van Liere’s survey did do was show consumers who had purchased Mott’s

100% Apple Juice in the past a picture of the juice bottle and ask them for a list of reasons

why they bought it. When asked why he did not ask consumers the critical question of what

“No Sugar Added” conveyed to them he testified, “My understanding of the legal issue was

whether consumers in a putative class had the same reasons for making their purchase that

Mr. Rahman alleges was his reasons, and so that’s the way we did it that way.” (Van Liere

Dep. p. 83; Friedl Decl. Ex. A (sic.).) That is not the legal issue. Plaintiff’s expert has

explained why this approach does not work.5 Basically, a survey that does not ask those

critical questions is not going to result in answers about the meaning and import of “No Sugar

Added.” Predictably, the “No Sugar Added” statement that Mott’s considers critical to its

5 18. While Dr. Van Liere study’s attempt to determine the salience of the product

attributes in the consumers’ purchase decision process are inadequate, there appears to be no attempt to determine the key issue in this case—consumers’ perceptions of the “No Sugar Added” claim prominently displayed on the label. Asking consumers why they purchased a product or brand may provide insights into the decision making process. However, asking these questions (particularly as they were asked in this research study) provides no insight as to what consumers “take away” from the label and the meaning ascribed to the “No Sugar Added” claim. This research tells nothing about what consumers think the claim means, whether it is important, whether it equates to lower calories, whether it means there is little or no sugar content at all, whether it means the product is healthier, etc. (Friedl Decl. Ex. B.)



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marketing did not seem too important in Dr. Van Liere’s study, which declined to ask about it.

Dr. Van Liere’s testimony does confirm that survey evidence can generate common

answers to common questions. The experts simply disagree as to methodology. (“And just to

say Dr. Belch and I disagree on the proper way to do this.”(Van Liere Dep. p. 84.) The merits

question of whether Mott’s “No Sugar Added” statement is likely to deceive, however, is an

issue for the liability phase proposed by Plaintiff, not for class certification.

VI. PLAINTIFF’S LIABILITY CLASS IS SUPERIOR TO OTHER METHODS OF

ADJUDICATING THE CLASS CLAIMS

Mott’s arguments against superiority do not really address the factors in Rule 23(b)(3)

discussed by Plaintiff. Mott’s “manageability” argument simply reprises its assertion that

class members must have receipts for the class to be ascertainable. That is not the law in this

Circuit. Mott’s also argues a class action is not superior because Plaintiff cannot show that

common issues exist. Plaintiff has done so. Mott’s further argues that Plaintiff cannot show

that class members have valid damages claims. However, they have all been subjected to

uniform, material and illegal “No Sugar Added” labeling statements that would not appear on

Mott’s 100% Apple Juice if they did not affect consumer’s purchasing decisions.

Finally, Mott’s presents the argument that Plaintiff need not certify a class at all to

obtain injunctive relief. However, in a putative class action injunctive relief is not generally

available until after certification. See Clemons v. Western Photo Camera Hut, 117 Cal. App.

3d 392, 395 (1981). “Prior to the determination of any substantive issues, the beneficiaries of

the class action are entitled to know what is being done in their names and the defendant in

such action is entitled to know the potential consequences that may attach to such

determination.”

VII. CONCLUSION

For the foregoing reasons Plaintiff respectfully requests the motion be granted, the

Class be certified as to liability, and that the Court appoint Mohammad Rahman as Class




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Dated: September 5, 2014 Respectfully submitted, Capstone Law APC

By: /s/ Robert K. Friedl Jordan L. Lurie Robert K. Friedl Tarek H. Zohdy Cody R. Padgett Attorneys for Plaintiff Mohammed Rahman




Exhibit 5 ‐ ORDER RE: CLASS CERTIFICATION Filed 11/25/2014


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Uni

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MOHAMMED RAHMAN,

Plaintiff,

v.

MOTT'S LLP,

Defendant.

Case No. 13-cv-03482-SI ORDER RE: CLASS CERTIFICATION

Re: Dkt. No. 75

A hearing on plaintiff’s motion to certify is currently scheduled for December 5, 2014. Docket No.

75. The Court hereby ORDERS the parties to respond to the following questions no later than

December 2, 2014.

The following question is directed to both parties:

1. Since January 1, 2009, on what dates did the “No Sugar Added” statement not appear on Mott’s

100% Apple Juice labels?

The following questions are directed solely to plaintiff:

2. Should the Court certify a liability only class pursuant to Rule 23(c)(4)? Should the plaintiff

ultimately prevail at trial, how does plaintiff propose the issue of damages will be resolved?

3. Why has plaintiff opted not to employ a damages expert to calculate damages on a class-wide

basis?

4. How would certifying a liability only class materially advance the litigation?

IT IS SO ORDERED.

Dated: November 24, 2014

______________________________________ SUSAN ILLSTON United States District Judge

______________________




Exhibit 6 ‐ PLAINTIFF’S RESPONSE TO ORDER RE: CLASS CERTIFICATION Filed 12/2/2014


PLAINTIFF’S RESPONSE TO ORDER RE: CLASS CERTIFICATION

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Case No.: 3:13-cv-03482-SI PLAINTIFF’S RESPONSE TO ORDER RE: CLASS CERTIFICATION Re: Dkt. No. 75 Judge: The Hon. Susan Illston Notice of Removal: July 26, 2013



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Plaintiff respectfully responds to the following questions posed by the Court [Doc. 86]:

1. Since January 1, 2009, on what dates did the “No Sugar Added” statement

not appear on Mott’s 100% Apple Juice labels?

Plaintiff’s understanding is that Mott’s cannot state the precise dates that the “No

Sugar Added” statement did not appear on Mott’s 100% Apple Juice labels in stores. Mott’s

representative has testified that in his estimate the label that did not bear the “No Sugar

Added” statement was approved in late 2010 and transitioned during early 2011. (Blackwood

Dep. 25:11-24.) Then, in early 2012, the “No Sugar Added” statement was transitioned back

onto the label. (Blackwood Dep. pp. 35:13-36:3; 37:14-24.) There was no testimony

regarding how many labels did not have the “No Sugar Added” statement or where those

labels were distributed.

2. Should the Court certify a liability only class pursuant to Rule 23(c)(4)?

Should the plaintiff ultimately prevail at trial, how does plaintiff propose the issue of

damages will be resolved?

Yes, a liability only class should be certified pursuant to Rule 23(c)(4). Courts have

endorsed liability only classes, especially where damages are difficult to ascertain or cannot

be determined. See, e.g., Butler, v. Sears, Roebuck and Co., 727 F.3d 796, 801 (7th Cir. 2013)

(“a class action limited to determining liability on a class-wide basis, with separate hearings to

determine – if liability is established – the damages of individual class members . . . is

permitted by Rule 23(c)(4) and will often be the sensible way to proceed”). Similarly, in

Jacob v. Duane Reade, Inc., 293 F.R.D. 578, 588 (S.D.N.Y. 2013) the court stated that

“Commentators have suggested that the type of bifurcation employed in In re Motor Fuel and

Miri may become a common approach for courts grappling with the reach and effect of

Comcast . . .Bifurcation enables a court to certify a class action on the issue of liability only,

leaving the question of individual class members' damages to be tried separately. Class

certification may be proper even though individualized proof of impact or fact of damage is

required, particularly where such proof is simple or mechanical.”

If Plaintiff prevails at trial (i.e. establishes the liability issue that the label is unlawful),



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the class would be notified that liability has been established and that any class member who

wants to proceed to prove individual damages may do so. Plaintiff’s counsel would work with

Defendant’s counsel to establish a fair and workable procedure for submitting claims,

including the documentation that might be required to verify a claim. The same notice that

advises the class of the liability determination could also notify the claimant as to the

procedure for proving up damages.

The prove up would be simple and mechanical based on the purchase price and could

include a declaration by the claimant that he/she relied on the label and would not have

purchased the juice with an unlawful label. In a recent settlement in a consumer case

involving Kashi products, Judge Huff approved a claims procedure for a refund of up to a

maximum amount $25 per household based on claim forms submitted under penalty of

perjury, even without any supporting documentation. Astiana v. Kashi Co., 2014 U.S. Dist.

LEXIS 127624, *16 (S.D. Cal. Sept. 2, 2014). Frankly, given the relatively small amounts at

issue per individual claim in this case, Defendant may determine that it is more cost effective

to simply provide a refund or partial refund to each claimant with a legitimate claim, without

actually having to try or challenge each individual case.

For cases involving significant enough damages that would justify a more formal

judicial procedure (the parties could agree on the threshold amount), the claimant’s prove up

could be done in small claims court or the parties could agree to arbitrate the damages amount

or a Magistrate Judge could be appointed to preside over any individual damages proceedings.

See Houser v. Pritzker, 2014 U.S. Dist. LEXIS 91451, *84 (S.D.N.Y. July 1, 2014) (certifying

a liability only class) (“If and when the litigation reaches that [remedies] stage, the Court will

have a number of management tools at its disposal . . . the court could appoint a special master

to preside over individual damages proceedings, or could decertify the class after the liability

phase and provide notice to plaintiffs as to how to proceeds to prove damages”). As the court

noted in Houser, “there is no need to decide at this time [class certification] which avenue to

pursue. What is important is that the Court has the tools to handle any management

difficulties that may arise at the remedial phase of this litigation.” Id.



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3. Why has plaintiff opted not to employ a damages expert to calculate

damages on a class-wide basis?

The primary relief that Plaintiff seeks to achieve for the class is an adjudication that

the “No Sugar Added” statement is illegal and violates 21 C.F.R. § 101.60(c)(2). Such a

ruling likely would result in a labeling change to comply with the law. Certification of a

liability class only under Rule 23(c)(4) does not require employment of a damages expert.

Further, given the issues with certifying a damages class in certain types of consumer

labeling cases, Plaintiff determined that pursuing class-wide damages might not be an

economical use of judicial resources and, therefore, did not employ an expert to calculate

damages on a class-wide basis in this case. Indeed, courts in this District have rejected

various damages models for calculating damages on a class-wide basis in labeling cases. For

example, in Brazil v. Dole Packaged Food, LLC, 2014 U.S. Dist. LEXIS 74234 (N.D. Cal.

May 30, 2014) plaintiff’s expert proposed three damages models, two of which were rejected

at class certification during the Court’s “rigorous analysis.” On November 6, 2014, in the

context of a Motion to Decertify, Judge Koh conducted another rigorous analysis of the

expert’s remaining damages model, rejected that model as well, and decertified a damages

class. Brazil v. Dole Packaged Food, LLC, 2014 U.S. Dist. LEXIS 157575 (N.D. Cal. Nov. 6,

2014).

Accordingly, under the circumstances of Plaintiff’s specific case against Mott’s,

Plaintiff determined to focus on the liability aspects and to proceed under a theory that the

label is unlawful, with the result that class members ultimately will benefit from a labeling

change and the ability to pursue individual damages if and when the label is determined to be

illegal.

4. How would certifying a liability only class materially advance the

litigation?

Certifying the liability only class will materially advance the litigation because the

liability issue will be determined as to all class members. All class members will benefit from

the res judicata effect of the court’s ruling by not having to try the liability aspect in order to



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obtain relief. Defendant also will avoid the time and expense of having to try each class

member’s claim individually. A determination of class-wide liability also could lead to the

label change that Plaintiff seeks.

Once a liability class is certified, Defendant will be exposed to the possibility of

damages. “While damages may not be the most effective remedy to achieve the California

legislature's goals, the threat of damages and other available relief may also give businesses

pause should they decide not to abide by consumer protection laws.” Morgan v. Wallaby

Yogurt Co., 2014 U.S. Dist. LEXIS 34548, *21 (N.D. Cal. Mar. 13, 2014). If Plaintiff

establishes liability on a class-wide basis and class members are allowed to seek damages

based on Mott’s illegal label, this case effectively would be resolved.

Dated: December 2, 2014 Respectfully submitted, Capstone Law APC




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UNITED STATES DISTRICT COURT ) ) SS NORTHERN DISTRICT OF CALIFORNIA )

I am employed in the State of California, County of Los Angeles. I am over the age of 18 and not a party to the within suit; my business address is 1800 Century Park East, 2nd Floor, Los Angeles, California 90067.

On December 2, 2014, I served the documents described as:

- PLAINTIFF’S RESPONSE TO ORDER RE: CLASS CERTIFICATION on the interested parties in this action by sending [ ] the original [or] [] a true copy thereof [] to the interested parties as follows [or] [ ] as stated on the attached service list:

Van H. Beckwith [email protected] Ryan L. Bangert [email protected] BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 600 Dallas, TX 75201-2980 Facsimile: (214) 953-6503

Kevin Marshall Sadler [email protected] BAKER BOTTS L.L.P. 1001 Page Mill Road Building One, Suite 200 Palo Alto, CA 94304 Facsimile: 650-739-7618

[] BY CM/ECF: I hereby certify that this document was served through transmission to

the court’s CM/ECF system which electronically notifies parties listed herein at their e-mail of record in this action.

[] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed this December 2, 2014, at Los Angeles, California.

/s/_______________________________________

Elizabeth Dempsey




Exhibit 7 ‐ PLAINTIFF’S OPPOSITION TO MOTT’S MOTION FOR SUMMARY JUDGMENT Filed 9/9/2014


PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

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Case No.: 3:13-cv-03482-SI CLASS ACTION PLAINTIFF’S OPPOSITION TO MOTT’S MOTION FOR SUMMARY JUDGMENT Date: October 17, 2014 Time: 9:00 a.m. Ctrm: 10 Judge: The Hon. Susan Illston Notice of Removal: July 26, 2013


Page i


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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................... 1

II. FACTS THAT SUPPORT DENIAL OF SUMMARY JUDGMENT .............................. 2

A. Plaintiff’s Purchase of Mott’s “100% Apple Juice” With the “No

Sugar Added” Label ............................................................................................... 2

B. Defendant’s Marketing of Mott’s “100% Apple Juice” With the “No

Sugar Added” Label ............................................................................................... 3

III. ARGUMENT .................................................................................................................. 6

A. Mott’s Argument that Plaintiff Did Not Rely on the “No Sugar

Added” Label Fails as a Matter of Law Because the Statement Was

Material to the Purchase of Mott’s 100% Apple Juice and Fails

Factually Because the Evidence Shows That Plaintiff Did Rely on the

Statement ................................................................................................................ 6

B. Plaintiff Sustained Damages Because He Purchased More Mott’s

100% Apple Juice Than He Would Have in Reliance on the “No

Sugar Added” Statement ....................................................................................... 10

C. Plaintiff Has Standing to Seek Injunctive Relief Because He is

Interested In Purchasing Mott’s 100% Apple Juice in the Future

After Mott’s Changes Its Label ............................................................................. 12

D. Genuine Issues of Material Fact Preclude Partial Summary

Adjudication of the Core Issue of Whether “No Sugar Added” Label

Violates California’s Consumer Protection Laws ................................................. 14

IV. CONCLUSION ............................................................................................................. 18


Page ii


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FEDERAL CASES

Algarin v. Maybelline, LLC, 2014 U.S. Dist. LEXIS 65173 (S.D. Cal. May 12,

2014) ................................................................................................................................... 13

Carling Brewing Co. v. Philip Morris, Inc., 277 F. Supp. 326 (N.D. Ga. 1967) ...................... 16

Colourpicture Publishers, Inc. v. Mike Roberts Color Prods., Inc., 272 F. Supp.

280 (D. Mass. 1967), vacated on other grounds, 394 F.2d 431 (1st Cir. 1968) ................... 16

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ................................................................. 11

Dippin’ Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197 (11th Cir.

2004) ................................................................................................................................... 16

Eden Toys, Inc. v. Marshall Field & Co., 675 F. 2d 498 (2d Cir. 1982) .................................. 16

Figy v. Amy's Kitchen, Inc., 2013 U.S. Dist. LEXIS 167723 (N.D. Cal. Nov. 25,

2013) ................................................................................................................................... 17

First Nat'l Bank of South Carolina v. United States, 413 F. Supp. 1107 (D.S.C.

1976) ................................................................................................................................... 16

Friend v. Burnham & Morrill Co., 55 F.2d 150 (1st Cir. 1932) .............................................. 16

Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013) ........................................................... 6


2013) ................................................................................................................................... 11

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838

(6th Cir. 2013) ..................................................................................................................... 12

Jones v. Conagra Foods, Inc., 2014 U.S. Dist. LEXIS 81292 (N.D. Cal. Jun. 13,

2014) ............................................................................................................................. 13, 14

Jou v. Kimberly-Clark Corp., 2013 U.S. Dist. LEXIS 173216 (N.D. Cal.

Dec. 10, 2013) ..................................................................................................................... 13

Lozano v. AT&T Wireless Servs., 504 F.3d 718 (9th Cir. 2007) .............................................. 14


Page iii


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Mason v. Nature's Innovation, Inc., 2013 U.S. Dist. LEXIS 68072 (S.D. Cal.

May 13, 2013) ......................................................................................................... 12, 13, 14

Rahman v. Mott's LLP, 2014 U.S. Dist. LEXIS 11767 (N.D. Cal. Jan. 29, 2014) ............. 12, 15

Seminole Tribe of Fla. v. Butterworth, 491 F. Supp. 1015 (S.D. Fla. 1980) ............................ 16

STATE CASES

Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.

4th 163 (1999) ............................................................................................................... 14, 15

Daro v. Superior Court, 151 Cal. App. 4th 1079 (2007) ......................................................... 14

In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ................................................................. 6, 7, 8

Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) ................................................ 1, 6, 10

FEDERAL STATUTES

21 C.F.R. § 101.13(d) .............................................................................................................. 15

21 C.F.R. § 101.60(c)(2) ......................................................................................... 7, 15, 16, 17

Fed. R. Evid. 201(b) ................................................................................................................ 16

STATE STATUTES

Cal. Bus. & Prof. Code §§ 17200 et seq. (Unfair Comp. Law (UCL)) ............................. passim

Cal. Bus. & Prof. Code §§ 17500 et seq. (False Advertising Law (FAL) ................................ 12

Cal. Civ. Code §§ 1750 et seq. (Cons. Legal Remedies Act (CLRA)) .................................... 12



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I. INTRODUCTION

The Motion for Summary Judgment of Mott’s LLP (“Mott’s) should not divert the

Court from reaching and granting Plaintiff’s pending Motion for Class Certification and for

Appointment of Class Counsel. Each of Mott’s arguments fails as a matter of law or raises

triable issues of fact.

Mott’s argues that summary judgment should be granted because Plaintiff did not

“rely” on the “No Sugar Added” statement on Mott’s 100% Apple Juice when he purchased

the product because Plaintiff purchased the apple juice for a several reasons in addition to the

“No Sugar Added” statement. The argument fails in the first instance because the “No Sugar

Added” statement is a material statement and as such it may be presumed as matter of law that

Plaintiff relied on it. Indeed, Plaintiff’s deposition testimony confirms that fact. Further,

Mott’s reliance argument also fails because a plaintiff need not show that a representation is

the only cause, or even the predominant or decisive factor influencing his conduct in order to

show reliance. It need only be a substantial factor. Plaintiff’s deposition testimony

establishes that the “No Sugar Added” statement was a substantial factor in Plaintiff’s

purchase of Mott’s 100% Apple Juice.

Mott’s also argues that summary judgment should be granted because Plaintiff

sustained no damages. This argument also is untrue and, at a minimum, raises a triable issue

of fact. As this Court has already found at the pleading stage, relying on Kwikset Corp. v.

Superior Court, 51 Cal. 4th 310, 330 (2011), Plaintiff sustained harm or injury or “damages”

as a matter of law because he purchased more Mott’s 100% Apple Juice than he would have

but for the “No Sugar Added” statement. Plaintiff’s deposition testimony confirms this

conclusion. Thus, Plaintiff has sufficiently established economic injury and damages for

standing purposes and for the purposes of establishing the elements of his claim and should be

permitted to proceed to class certification. Whether or not damages can be sought or proven

on a class wide basis is a different issue and does not preclude certification because Plaintiff

has moved to certify a liability issue class only, so he can proceed to obtain injunctive and



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declaratory relief for the class. Certification of the liability issue will obviate the need for any

classwide damages determination and will leave class members, including Plaintiff, free to

pursue their individual damages claims, if they so wish.

Although Mott’s has moved for summary judgment, not partial summary judgment, it

also seeks to address discrete issues. First, it argues that Plaintiff does not have standing to

seek injunctive relief because he testified that he would purchase Mott’s 100% Apple Juice

again, but only after it changes its label to comply with the law. The argument ignores several

recent cases holding that such testimony is sufficient to demonstrate standing in order to

pursue injunctive relief.

Last, Mott’s asks the Court to determine, as a matter of law, that a “No Sugar Added”

label on a bottle of Mott’s 100% Apple Juice – a product that clearly “resembles and

substitutes” for apple juice from concentrate, a product that does not normally contain added

sugar – is not “likely to deceive members of the public” under the “fraud” prong of

California’s unfair competition law. That argument fails because the issue of whether or not a

label is deceptive raises obvious triable issues of fact. Moreover, even if the label is not

deceptive (which it is), Mott’s “No Sugar Added” statement is still unlawful, and thus violates

the “unlawful” prong of the UCL, thereby precluding summary adjudication as to the UCL

claim. Accordingly, Plaintiff respectfully submits the motion should be denied.

II. FACTS THAT SUPPORT DENIAL OF SUMMARY JUDGMENT


Added” Label

Plaintiff is a consumer who tries to avoid beverages with added sugar. (Rahman Dep.

p. 80:17-20.)1 He also likes Mott’s 100% Apple Juice. He purchased the product from 1991

until 2013 when he filed this lawsuit. During that time he developed brand loyalty and a

liking for the taste of the product. (Rahman Dep. pp. 156: 9-17; 157:4-15.) In 2005 Plaintiff

first noticed the “No Sugar Added” statement on the front label of Mott’s 100% Apple Juice.

(Rahman Dep. p. 201:1-5.)

1 Friedl Dec. Ex. B.



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Plaintiff compared Mott’s 100% Apple Juice with the “No Sugar Added” label to Tree

Top Apple Juice, which did not have a “No Sugar Added” statement on the label. As a result

of looking at the labels, Plaintiff thought Mott’s 100% Apple Juice had fewer calories.

(Rahman Dep. pp. 183:15-184:6; 191:5-9.) He also thought the “No Sugar Added” label

indicated that Mott’s 100% Apple Juice was a much healthier product and had less sugar.

(Rahman Dep. pp. 188:4-7, 189:18-24, 206:19-208:4.) Plaintiff testified he knew that Mott’s

100% Apple Juice did not have added sugar “because of that little label that says ‘No Sugar

Added.’” (Rahman Dep. at 124:19-25.) He testified, “I didn’t think of reading the back of the

label, since I saw the “No Sugar Added.” (Rahman Dep. p. 186:5-18.) He purchased Mott’s

because the “little label” said “No Sugar Added.” (Rahman Dep. p. 126:15-21.)

The “No Sugar Added” label caused Plaintiff to purchase more Mott’s 100% Apple

Juice than he otherwise would have. Plaintiff testified, “[A]fter I saw the “No Sugar Added,”

I bought more, because I thought with no sugar added, it would be beneficial to me.”

(Rahman Dep. p. 210:13-24.) Specifically, prior to seeing the “No Sugar Added” label, he

purchased two to three bottles every two weeks. After seeing the “No Sugar Added” label, he

purchased three to four bottles. (Rahman Dep. pp. 224:18-225:17.) He testified, “I purchased

more because when I saw the label that said “No Sugar Added,’ I thought it would be less

sugar than other apple juice products.” (Rahman Dep. p. 225:18-24.)

Plaintiff stopped buying Mott’s 100% Apple Juice after he filed this lawsuit. (Rahman

Dep. p. 114:9-14.) However, he still wants to buy Mott’s 100% Apple Juice in the future. He

likes Mott’s 100% Apple Juice, is loyal to the brand, and wants to buy it again after it changes

its label. (Rahman Dep. pp. 115:5-12; 157:4-15.) He testified, “The only thing I’d want to get

out of the lawsuit was for Mott’s to change their [] labeling.” (Rahman Dep. p. 119:19-22.)


Added” Label

Mott’s 100% Apple Juice is a product made from three ingredients – water, apple juice



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concentrate and Vitamin C. (Blackwood Dep. p. 69:23-70:8.)2 Therefore, the food that it

resembles and for which it substitutes is apple juice from concentrate. (See Request for

Judicial Notice, Fact No. 1.) Apple juice from concentrate does not normally contain added

sugar. (See Request for Judicial Notice, Fact No. 2.) Although apple juice does not normally

have added sugar, Mott’s 100% Apple Juice is labeled “No Sugar Added.” A picture of

Mott’s 100% Apple Juice bearing the “No Sugar Added” label is attached. (Friedl Dec.

Ex. C.)

All Mott’s 100% Apple Juice sold in California during the approximate 2009 to 2011

period contained the “No Sugar Added” statement on the label or package. (Blackwood Dep.

pp. 25:3-26:6.) In Q4 of 2010, Mott’s approved a new label for Mott’s 100% Apple Juice

products that did not contain the “No Sugar Added” statement. This new label appeared on

the product in 2011. Then, in the first quarter of 2012, the “No Sugar Added” statement was

placed back onto the label. (Blackwood Dep. pp. 35:13-20; 37:14-38:21; 58:16-59:11; 69:1-

22.) The “No Sugar Added” statement remains on the label to this day. (Blackwood Dep. pp.

47:5-15; 48:16-18; 78:11-13.)

Mott’s explanation as to why the “No Sugar Added” statement was removed is that it

was simply a mistake. Mott’s corporate representative testified, “It was a mistake. They were

left off accidentally. As we made a larger graphic’s change overall, they were simply left

off.” (Blackwood Dep. p. 59:12-23.) Mott’s was not happy about this mistake for (at least)

two reasons. First, Mott’s corporate representative explained:

No sugar added was something that had been on our label historically. It was something that moms tells us -- really shows that the product comes from real fruit, which in this case, it does, and so no sugar additive was indicative of that, and so that’s why the team would want to have it on there in the first place.

(Blackwood Dep. p. 115:14-23.)

Second, in 2009, Mott’s own research confirmed that the “No Sugar Added” statement

was important to consumers of apple juice because they scan for the words “No Sugar Added”

before putting any juice in their shopping cart. Specifically, Mott’s used Frank N. Magid

2 Friedl Dec. Ex. A.



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Associates, Inc. (“Magid Associates”) to perform marketing research in connection with the

graphics design of the new label for Mott’s 100% Apple Juice that was implemented in 2011.

(Blackwood Dep. pp. 116:24-117:24.) Magid Associates did this by conducting six focus

groups with women ages 25 to 40 that met specific criteria qualifying them as “Mott’s

Moms.” (Blackwood Dep. pp. 118:13-119:1; Mott’s Document Prod. # M 003747.) As

Mr. Blackwood put it, “Mott’s studies moms because they are a primary target. They’re the

most likely purchaser of this product. We want to understand how moms feel about [the]

product and what, what they tell us about the product.” (Blackwood Dep. pp. 106:4-10.)

Magid Associates studied apple juice consumers by conducting focus groups to

determine the focus group participants’ impressions of the proposed new designs for the

Mott’s 100% Apple Juice label. (Mott’s Document Prod. # M 003346.) It presented its

findings in a March 2009 report called “Mott’s Base Juice Graphics Redesign Focus Group

Report.” One of the “Key Findings” in the “Executive Summary” portion of the report is that

“[t]he prominent placement of “100% Apple Juice” and “No Sugar Added” are strong

positives for the labels as a whole.” (Mott’s Document Prod. # M 003349.) In the “Key

Elements” section of the report on a page entitled “Some Messaging is Confusing; Key

Elements Make an Impression,” the “No Sugar Added” statement is specifically discussed:

No Sugar Added

This is a big selling point for all participants – and something they say they scan for on the front of the bottle before they put any juice in their shopping cart [NO SUGAR ADDED]

Many say this is best communicated by Label B because it is show in white font, centered on a dark basket; many also say that Labels E & F communicate this well through their format.

(Mott’s Document Prod. # M 003367.)3

The “No Sugar Added” statement on the label was highly important to Mott’s in 2009.

On September 23, 2009, the Brand Director for Mott’s Juice, Allison Methvin, wrote to Carlos

Anguizola, the Brand Manager for Mott’s Juice, “Please push on keeping the No Sugar Added

3 Friedl Dec. Ex. D (Mott’s Document Prod.).



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onpack (sic). As you know it is a HUGE deal.” (Mott’s Document Prod. # M 007094.)

When Mott’s managers found out that the “No Sugar Added” statement was left off the

new label in 2011, they were aghast. For example, on June 27, 2011, Brand Director Allison

Methvin, stated in an email to Mota Delana, Mott’s Activation Department Manager:

I am freaking our right now. Did we forget to put No Sugar Added on our new Mott’s 100% Original base juice graphics?!!!! We know this is one of the FIRST THINGS our moms look for. We are going to have to get it added. How did we miss this?


Knowing the importance of the “No Sugar Added” statement, Mott’s corrected its

mistake and put it back on the label, where it remains to this day.

III. ARGUMENT

A. Mott’s Argument that Plaintiff Did Not Rely on the “No Sugar Added”

Label Fails as a Matter of Law Because the Statement Was Material to the

Purchase of Mott’s 100% Apple Juice and Fails Factually Because the

Evidence Shows That Plaintiff Did Rely on the Statement

Mott’s takes some liberties with its presentation of Plaintiff’s deposition testimony in

order to argue that there is no genuine dispute that Plaintiff did not rely on the “No Sugar

Added” label when he purchased Mott’s 100% Apple Juice. Both the applicable law and

Plaintiff’s actual deposition testimony invalidate that argument.

In the summary judgment context, Mott’s argument first fails as a matter of law

because the “No Sugar Added” statement is a material statement which gives rise to an

inference of Plaintiff’s reliance.4 The court in Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1107

(9th Cir. 2013) citing Kwikset, 51 Cal. 4th at 330 explained:

A representation is “material,” however, if a reasonable consumer would attach importance to it or if “the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action.” Id. at 892 (quoting

4 “A presumption, or at least an inference, of reliance arises wherever there is a

showing that a misrepresentation was material.” (Tobacco II Cases, 46 Cal. 4th 298, 327 (2009).)



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Restatement (Second) of Torts, § 538, subd. (2)(b) (1977)). Moreover, the legislature's decision to prohibit a particular misleading advertising practice is evidence that the legislature has deemed that the practice constitutes a “material” misrepresentation, and courts must defer to that determination. See id.

Plaintiff has presented a prima facie case of materiality. Plaintiff has established

through evidence that Mott’s knows that consumers attach significant importance to its “No

Sugar Added” label. Mott’s has historically included the statement on its label, conducted

market research that the “No Sugar Added” statement is “a big selling point” and something

consumers “scan for on the front of the bottle before they put any juice in their cart.” (Mott’s

Document Prod. # M 003367.) Further, when Mott’s left the “No Sugar Added” statement off

the label by mistake5 Mott’s was compelled by the importance of the statement to consumers

to put it back on. Finally, (as discussed infra), the “No Sugar Added” statement is unlawful as

it facially violates 21 C.F.R. § 101.60(c)(2). Because there is a legal inference of reliance,

there is at least a genuine dispute of material fact with respect Plaintiff’s reliance on the “No

Sugar Added” label.

Mott’s argument also fails factually because, contrary to Mott’s contention, the

evidence shows that Plaintiff did rely on the “No Sugar Added” statement. The court in In re

Tobacco II Cases, 46 Cal. 4th 298, 326 (2009) (“Tobacco II.”) explained what reliance means

in this context:

While a plaintiff must show that the misrepresentation was an immediate cause of the injury-producing conduct, the plaintiff need not demonstrate it was the only cause. “‘It is not … necessary that [the plaintiff's] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct. … It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.’ [Citation.]

Tobacco II, 46 Cal. 4th at 326 (emphasis added).

Plaintiff’s testimony establishes that the “No Sugar Added” statement on Mott’s label

5 “I am freaking our right now. Did we forget to put No Sugar Added on our new

Mott’s 100% Original base juice graphics?!!!! We know this is one of the FIRST THINGS our moms look for. We are going to have to get it added. How did we miss this?” (Mott’s Document Prod. # M 004657.)



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played a substantial part in his decision to purchase Mott’s 100% Apple Juice. Like the

consumers in Magid Associates’ focus groups, Plaintiff tries to avoid beverages with added

sugar. Plaintiff saw the “No Sugar Added” label on Mott’s 100% Apple Juice and compared

it to the label of a competitor that did not have a “No Sugar Added” statement on its label. He

concluded that the Mott’s 100% Apple Juice had less calories, was healthier and contained

less sugar than the competing brand. One of the reasons Plaintiff purchased Mott’s was

because of the “little label” that said “No Sugar Added.” He testified, “I purchased more

because when I saw the label that said “No Sugar Added,’ I thought it would be less sugar

than other apple juice products.” (Rahman Dep. p. 225:18-24.) Plaintiff estimated that after

he saw the label that stated Mott’s 100% Apple Juice had “No Sugar Added” his consumption

increased from 2-3 bottles to 3-4 bottles every two weeks.

Mott’s argument that Plaintiff did not rely on the “No Sugar Added” label is also

legally flawed because Mott’s does not acknowledge the legal standard for reliance in

Tobacco II., namely that a plaintiff can rely on multiple reasons for purchasing a product.

(Mot. at p. 19:1-22.) Under Tobacco II, Plaintiff does not have to show that the “No Sugar

Added” statement was “the only cause … or even the predominant or decisive factor” in

Plaintiff’s decision to purchase Mott’s 100% Apple Juice after he first saw the “No Sugar

Added” label in 2005. Accordingly, Mott’s argument that Plaintiff first began purchasing

Mott’s 100% Apple Juice in 1991 for other reasons – because of taste, price and a friend’s

recommendation – is totally irrelevant. (Mot. at p. 19:23-20:3.)

Mott’s related argument that Plaintiff would have bought some amount of Mott’s

100% Apple Juice anyway after 2005 even if it did not have the “No Sugar Added” label fails

for the same reasons. (Mot. at p. 20:11-17.) Plaintiff likes apple juice but, just like the

consumers to whom Mott’s markets its juice, he tries to avoid beverages with added sugar.

The illegal and deceptive “No Sugar Added” label had the precise effect on Plaintiff that it

was designed to have on Mott’s consumers. It caused him think he could consume more apple

juice because it was healthier and contained less sugar. As a result of his reliance on the label,

he bought a lot more Mott’s 100% Apple Juice.



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Mott’s next takes liberties with Plaintiff’s testimony in an attempt to show he did not

rely on the “No Sugar Added” label. Mott’s argues that, when Plaintiff first observed the “No

Sugar Added” label on Mott’s 100% Apple Juice, “those words did not change anything about

his view of the product.” (Mot. at p. 20:5.) Mott’s statement is inaccurate and unsupported

by the testimony that Mott’s cites. In fact, Plaintiff testified that the “No Sugar Added” label

did not change his view about the product’s “price” or “taste.” (Mot. at p. 20:6-10.) Mott’s

statement that Plaintiff has an “indifferent attitude toward ‘No Sugar Added’” is similarly

without support. (Mot. at p. 20:19.)

Finally, Mott’s cites to an excerpt from the 194th page of Mott’s tedious deposition of

Plaintiff to attempt to impeach him and assert that the “No Sugar Added” statement “does not

tell him anything about the sugar content.” (Mot. at p. 20:19-21:2.)6 Again, the reference is

misleading. Plaintiff simply agreed with Mott’s counsel that the “No Sugar Added” statement

on the front label of Mott’s 100% Apple Juice does not tell anyone “how much sugar is in

apple juice.” As Plaintiff testified, he would have to read the back label to determine that.

(Rahman Dep. at 194:2-11.) The testimony does not contradict Plaintiff’s testimony that he

thought the “No Sugar Added” statement indicated that Mott’s 100% Apple Juice was a much

healthier product and had less sugar than its competitors. In any event, the testimony, even if

it was susceptible to the meaning that Mott’s ascribes to it, does not show an absence of a

genuine disputed issue of material fact with respect to Plaintiff’s clear reliance on the “No

Sugar Added” statement. To the contrary, it confirms that, at best, there is a triable issue of

fact regarding Plaintiff’s reliance.

6 To put Mott’s excerpt in context, the colloquy continues: Q. You have to make your

own decision about how healthy apple juice is; right? A. Correct. Q. And you have to make up your own mind, you, Mr. Rahman, have to make up your own mind to determine whether something is healthy for you; correct? A. Correct. Q. Can't make it up for Bob, your roommate; correct? A. Correct. Q. Or Veronica; correct? A. Correct. Q. They have to make up their own decisions? A. Correct. Q. And they make their own buying decisions, don't they? A. Correct. (Rahman Dep. at 194:23-195:16.)



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B. Plaintiff Sustained Damages Because He Purchased More Mott’s 100%

Apple Juice Than He Would Have in Reliance on the “No Sugar Added”

Statement

Mott’s also argues that Plaintiff did not sustain any damages. The Court has already

determined that the facts to which Plaintiff now has testified and confirmed are sufficient to

show economic injury and damages in order to have standing and proceed with his claims.

Mott’s motion to dismiss his claims should be denied and Plaintiff should be allowed to

proceed to certify the liability class that he proposes which does not require any classwide

damages model, any classwide theory of damages or any damages expert.

As discussed above, as a result of Mott’s “No Sugar Added” label Plaintiff purchased

considerably more Mott’s 100% Apple Juice than he would have. Accordingly, Plaintiff has

sustained economic injury and damages. In its Order Denying Defendant’s Motion to

Dismiss, the Court stated:

Plaintiff alleges that he would not have purchased as much of the as he did but for the misrepresentations. Thus, plaintiff alleges that he entered into more transactions and parted with more money than he would have absent the misrepresentations. “That increment, the extra money paid, is economic injury and affords the consumer standing to sue.” Kwikset, 51 Cal. 4th at 330. Accordingly, Plaintiff’s allegations are sufficient to plead economic injury, and the Court denies defendant’s motion to dismiss these claims for failure to adequately allege injury and damages.

(Dkt. # 54-9:13-16.)

The Court was correct. The facts alleged by Plaintiff, to which he testified, confirm

that he has incurred sufficient injury and damages to proceed with this case. Mott’s disagrees

with Kwikset (and the Court) and argues “buying more of a product that one ‘enjoyed,

‘wanted’ and fully consumed [] is not a valid theory of damages.” (Mot. at 9:23-25.)

However, presenting no contrary authority, Mott’s position contravenes applicable law (see

Kwikset, 51 Cal. 4th at 330) and must be rejected. Under Kwikset and the Court’s reasoning

above, Plaintiff has clearly sustained economic injury and damages. He bought approximately

one extra bottle of Mott’s 100% Apple Juice every two weeks from the beginning of the class



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period until he filed this lawsuit because he was deceived by the “No Sugar Added” statement.

Mott’s argues that because Plaintiff testified that he wants this lawsuit to achieve a

label change, not provide him with money, his class action lawsuit should be dismissed. (Mot.

at p. 10:1-8.) Plaintiff’s selfless objective in filing and litigating this lawsuit does not doom

his class action. Plaintiff’s personal recovery of some amount of the money that he paid for

apple juice is not the purpose of this lawsuit. He has sustained harm, and thus is entitled to

attempt to proceed to achieve his intended purpose of compelling a label change, whether or

not he ever personally recovers damages.

The remainder of Mott’s arguments confuse the issue of whether Plaintiff is capable of

quantifying damages with an entirely separate issue regarding whether he sustained damages

and therefore has standing to proceed with his claims (chiefly for injunctive and equitable

relief). Mott’s states that to recover restitution, Plaintiff has to prove, for each class member,

the difference between what was paid and the value received. Mott’s argues that there is no

evidence that Mott’s 100% Apple juice was worth less than what Plaintiff paid and no

evidence that the price of Mott’s 100% Apple Juice is “driven” by the “No Sugar Added”

label.

Those all might be good arguments under Comcast Corp. v. Behrend, 133 S. Ct. 1426

(2013) if Plaintiff were attempting to certify a damages class. However, Plaintiff is only

attempting to certify a liability class. For purposes of certifying a liability issue class, the

“liability” aspects of Plaintiff’s claims include all substantive elements of the claims.

However, “liability” does not include questions of what remedy is to be awarded, e.g.

damages, injunctive relief and restitution. In Re Motor Fuel Temperature Sales Practices

Litig., 292 F.R.D. 652, 666 (D. Kan. 2013) (“In Re Motor Fuel”). This is not an uncommon

procedure. “Certifying a class to determine defendant's liability, while leaving the class

members to pursue their individual damages claims, is a common example of partial

certification.” In Re Motor Fuel at 665.

“Where determinations on liability and damages have been bifurcated, the decision in

Comcast — to reject certification of a liability and damages class because plaintiffs failed to



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establish that damages could be measured on a classwide basis — has limited application.” In

re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 860 (6th Cir.

2013) (internal citations omitted). Plaintiff does not need a damages model to prove liability

on a classwide basis.

In sum, Mott’s has not presented a damages argument that cuts to the heart of this case

and requires dismissal of any cause of action or claim. To the contrary, Plaintiff has

established economic injury and damages sufficient to confer standing. The causes of action

that he asserts under the UCL, FAL and CLRA permit multiple equitable remedies other than

restitution and damages and, therefore, should not be dismissed based on any perceived

difficulties in calculating damages. Thus, Mott’s summary judgment motion based on a

purported lack of damages should be denied.

C. Plaintiff Has Standing to Seek Injunctive Relief Because He is Interested

In Purchasing Mott’s 100% Apple Juice in the Future After Mott’s

Changes Its Label

Mott’s argues that Plaintiff does not have standing to pursue injunctive relief because

he is aware of the “No Sugar Added” label and testified that he will not purchase Mott’s 100%

Apple Juice again until the label is changed. (Mot. at p. 12:22-23.) Plaintiff’s testimony is

more nuanced than that and demonstrates he still wants to buy Mott’s 100% Apple Juice in the

future. Under examination by Mott’s counsel, Plaintiff testified that he likes Mott’s 100%

Apple Juice, is loyal to the brand, and wants to buy it again after it changes its label. (Rahman

Dep. pp. 115:5-12; 157:4-15.) These facts establish standing under settled law.

To establish standing for prospective injunctive relief, Plaintiff must demonstrate that

“he has suffered or is threatened with a ‘concrete and particularized’ legal harm . . . coupled

with ‘a sufficient likelihood that he will again be wronged in a similar way.’” Mason v.

Nature's Innovation, Inc., 2013 U.S. Dist. LEXIS 68072, at *6 (S.D. Cal. May 13, 2013),

(citations omitted). Accordingly, this Court has held that “to establish standing, [a plaintiff]

must allege that he intends to purchase the products at issue in the future.” Rahman v. Mott's

LLP, 2014 U.S. Dist. LEXIS 11767, *35 (N.D. Cal. Jan. 29, 2014).



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“Courts have rejected the argument that a plaintiff cannot establish standing if he has

learned that a label is misleading and therefore will not be fooled by it again.” Jones v.

Conagra Foods, Inc., 2014 U.S. Dist. LEXIS 81292, *46 (N.D. Cal. Jun. 13, 2014). In food

labeling cases, a plaintiff who is fully aware that a label is deceptive has standing for

injunctive relief “where a consumer would still be interested in purchasing the product if it

were labeled properly - for example, if a food item accurately stated its ingredients.” Mason,

2013 U.S. Dist. LEXIS 68072, at *13. In reaching this conclusion, the Mason court

distinguished food labeling cases from cases where a consumer learns that a product simply

does not work. It stated, “[i]n these types of cases that do not involve claims that a product

does not work or perform as advertised, injunctive relief may still be available.” Id. at *13.

This is one such case.7

“Placing this [standing] requirement on Plaintiffs does not thwart the objective of

California consumer protection laws since it is not impossible that a consumer would be

interested in purchasing the products at issue if they were labeled correctly.” Jou v. Kimberly-

Clark Corp., 2013 U.S. Dist. LEXIS 173216. *13 (N.D. Cal. Dec. 10, 2013). For example, in

Jones, the court remarked when it found a lack of standing, “Jones could have testified, if true,

that he bought the Hunt's products in reliance on the label because he seeks out natural

products, but that he might purchase Hunt's products in the future if they were properly

labeled.” Jones, at *48.

Here, Plaintiff has testified to a decade-long history of purchasing Mott’s 100% Apple

Juice, that he is loyal to the Mott’s brand, that he likes the taste of Mott’s 100% Apple Juice,

and that he is interested in again purchasing it after Mott’s corrects its label. Plaintiff has

standing to seek injunctive relief because he is interested in purchasing the product again after

Mott’s changes its label.

Perhaps unaware that there is authority on this point in Mason, Jou and (by

7 C.f. Algarin v. Maybelline, LLC, 2014 U.S. Dist. LEXIS 65173, at *32 (S.D. Cal.

May 12, 2014) [“Plaintiffs, and the portion of the class who purchased the Class [makeup and lipstick] Products expecting them to last 24 hours, are now well aware of the realities of the products”].



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implication) Jones, Mott’s presents a nonsensical argument:

By now stating that he will purchase Mott’s 100% Apple Juice again in the future if the label changes, Rahman is stating that he has no intent of purchasing the “class product” in the future, because the class product – by Rahman’s own definition – includes the “offending” “No Sugar Added” labeling. See ECF 48 ¶¶ 6, 40. As a result, there is no possibility that Rahman is threatened by any future harm …

(Mot. at 15:9-12.) This is a circular argument. Mott’s defines the “class product” as

including a “No Sugar Added” label in order to argue that Plaintiff does not want to buy the

“class product.” These semantics do not change the law that Plaintiff has standing because he

is interested in buying the apple juice product after the label is changed. See Mason, 2013

U.S. Dist. LEXIS 68072, at *13.

D. Genuine Issues of Material Fact Preclude Partial Summary Adjudication

of the Core Issue of Whether “No Sugar Added” Label Violates

California’s Consumer Protection Laws

Under Cal. Bus. & Prof. Code §17200, unfair competition includes any “unlawful,

unfair, or fraudulent business act or practice.” Therefore, there are three prongs under which a

claim may be established under §17200. Daro v. Superior Court, 151 Cal. App. 4th 1079,

1093 (2007) (“Because section 17200 is written in the disjunctive, a business act or practice

need only meet one of the three criteria—unlawful, unfair, or fraudulent—to be considered

unfair competition"); Lozano v. AT&T Wireless Servs., 504 F.3d 718, 731 (9th Cir. 2007)

(“[e]ach prong . . . is a separate and distinct theory of liability.”) This disjunctive definition

has profound ramifications. A practice violates section 17200 if it violates any one or more of

the prongs. Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.

4th 163, 180 (1999).

Mott’s seeks summary judgment based on an argument that there is no genuine dispute

of material fact as to whether its “No Sugar Added” statement is false or misleading. (Mot. at

pp. 15-18.) Mott’s is not entitled judgment because it does not attempt to negate all the



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pleaded theories under the UCL. In particular, Mott’s ignores the “unlawful” prong.8 There is

a genuine dispute of material fact as to whether Mott’s “No Sugar Added” label is unlawful.

Mott’s label is governed by the FDCA labeling regulation, 21 C.F.R. § 101.60(c)(2)

which provides in pertinent part:

The terms “no added sugar,” “without added sugar,” or “no sugar added” may be used only if:

…

(iv) The food that it resembles and for which it substitutes normally contains added sugars; and

(v) The product bears a statement that the food is not “low calorie” or “calorie reduced” (unless the food meets the requirements for a “low” or “reduced calorie” food) and that directs consumers' attention to the nutrition panel for further information on sugar and calorie content.

In Rahman v. Mott's LLP, 2014 U.S. Dist. LEXIS 11767, *17 (N.D. Cal. Jan. 29, 2014), the

Court pointed out that pursuant to 21 C.F.R. 101.13(d), “[a] ‘substitute’ food is one that may

be used interchangeably with another food that it resembles, i.e., that it is organoleptically,

physically, and functionally (including shelf life) similar to, and that it is not nutritionally

inferior to unless it is labeled as an ‘imitation.’” Additionally:

As an example, the FDA states that the food “no salt added” canned corn resembles and for which it substitutes is canned corn, not frozen corn. 58 Fed. Reg. at 2325; see also 56 Fed. Reg. 60421, 60432 (Nov. 27, 1991) (stating that “sodium free Italian bread” is a substitute for Italian bread).

(Rahman, 2014 U.S. Dist. LEXIS 11767, *17-18.)

Guided by this definition and example, Plaintiff proposes that it is beyond reasonable

dispute that the food that Mott’s 100% Apple Juice “resembles and for which it substitutes” is

apple juice from concentrate. (See Request for Judicial Notice, Fact No. 1.) Furthermore, it is

beyond reasonable dispute apple juice from concentrate does not normally contain added

sugar. (See Request for Judicial Notice, Fact No. 2.) Therefore, there is at least a genuine

8 “By proscribing ‘any unlawful’ business practice, ‘section 17200 “borrows”

violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable.” Cel-Tech, 20 Cal. 4th at180.



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dispute of material fact as to whether the Mott’s 100% Apple Juice label violates 21 C.F.R. §

101.60(c)(2) (iv). Because, as discussed above, the “No Sugar Added” label is also material,

it therefore violates the “unlawful” prong of the UCL and therefore the UCL itself.

The Court can take notice of these adjudicative facts in the summary judgment context.

For example, in Dippin’ Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197 (11th Cir.

2004) the court of appeal held that the district court properly took judicial notice of the fact

that color is indicative of flavor in ice cream. It stated, “[t]his fact is adjudicative in nature and

is generally known among consumers.”

The court explained that “[o]ne category of adjudicative facts subject to judicial notice

(and the only category relevant in this case) is facts that are “generally known within the

territorial jurisdiction of the trial court.” Fed. R. Evid. 201(b). Such judicially-noticed facts

are of breathtaking variety.” Dippin’ Dots, Inc.¸ 369 F.3d at 1204. Citing cases, the court

gave many examples.9 Plaintiff would add one more example. Eden Toys, Inc. v. Marshall

Field & Co., 675 F. 2d 498, 500 (2d Cir. 1982) [the “traditional features of a snowman”].

Accordingly, the Court can take notice of the adjudicative facts that (1) the food

Mott’s 100% Apple Juice resembles and for which it substitutes is apple juice from

concentrate and (2) whether apple juice from concentrate normally contains added sugars.

Even if Mott’s vigorously disputes these patently obvious facts, there are at least genuine

disputes of material fact precluding summary judgment.

Although the Court need not reach the issue, Mott’s apparently seeks an adjudication

that its “No Sugar Added” label is not deceptive.10 Plaintiff respectfully submits that if the

9 See, e.g., Friend v. Burnham & Morrill Co., 55 F.2d 150, 151-52 (1st Cir. 1932)

(noting the method for canning baked beans in New England); Seminole Tribe of Fla. v. Butterworth, 491 F. Supp. 1015, 1019 (S.D. Fla. 1980), (noting that bingo is largely a senior citizen pastime); First Nat'l Bank of South Carolina v. United States, 413 F. Supp. 1107, 1110 (D.S.C. 1976), (noting that credit cards play vital role in modern American society); Carling Brewing Co. v. Philip Morris, Inc., 277 F. Supp. 326, 330 (N.D. Ga. 1967) (noting that most establishments that sell beer also sell tobacco products); Colourpicture Publishers, Inc. v. Mike Roberts Color Prods., Inc., 272 F. Supp. 280, 281 (D. Mass. 1967), vacated on other grounds, 394 F.2d 431 (1st Cir. 1968) (noting that calendars have long been affixed to walls by means of a punched hole at the top of the calendar).

10 Plaintiff does not claim the statement is literally untrue – i.e. that Mott’s adds sugar to its apple juice.



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Court reaches the issue, and determines that there is a genuine dispute of material fact as to

whether the “No Sugar Added” statement violates 21 C.F.R. § 101.60(c)(2) (iv), it should also

conclude that there is a genuine dispute as to whether the statement is deceptive since the

statement is regulated by legislation enacted to prohibit consumer deception. See Figy v.

Amy's Kitchen, Inc., 2013 U.S. Dist. LEXIS 167723, *9 (N.D. Cal. Nov. 25, 2013) [“the

statutes relied on by plaintiff prohibit a particular type of consumer deception, the mislabeling

of food products”].

In any event, to the extent Mott’s argues that its expert’s report negates the issue of

whether the “No Sugar Added” statement is “misleading” Mott’s argument is misguided. Dr.

Van Liere’s survey did not ask consumers what meaning they attached to the “No Sugar

Added” statement and did not ask consumers whether the “No Sugar Added” statement was

one of the reasons they bought the product.

What Dr. Van Liere’s survey did do was show consumers who had purchased Mott’s

100% Apple Juice in the past a picture of the juice bottle and ask them for a list of reasons

why they bought it. When asked why he did not ask consumers the critical question of what

“No Sugar Added” conveyed to them he testified, “My understanding of the legal issue was

whether consumers in a putative class had the same reasons for making their purchase that

Mr. Rahman alleges was his reasons, and so that’s the way we did it that way.” (Van Liere

Dep. p. 83 (sic.)11.) That is not the legal issue. Plaintiff’s expert, who is capable of

conducting a proper survey to establish deception, has explained why this approach does not

work.12 Accordingly, there are genuine issues of material fact that preclude both summary

judgment and partial summary judgment.

11 Friedl Dec. Ex. F. 12 18. While Dr. Van Liere study’s attempt to determine the salience of the product

attributes in the consumers’ purchase decision process are inadequate, there appears to be no attempt to determine the key issue in this case—consumers’ perceptions of the “No Sugar Added” claim prominently displayed on the label. Asking consumers why they purchased a product or brand may provide insights into the decision making process. However, asking these questions (particularly as they were asked in this research study) provides no insight as to what consumers “take away” from the label and the meaning ascribed to the “No Sugar Added” claim. This research tells nothing about what consumers think the claim means, whether it is important, whether it equates to lower calories, whether it means there is little or no sugar content at all, whether it means the product is healthier, etc. (Friedl Decl. Ex. E.)



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IV. CONCLUSION

For the foregoing reasons Plaintiff respectfully submits that the Motion should be

denied. In addition, should the Court determine that Plaintiff lacks standing or any other

prerequisite to pursue his claims, then Plaintiff respectfully requests an opportunity to

intervene a new plaintiff to carry the class claims forward to certification.

Dated: September 9, 2014 Respectfully submitted, Capstone Law APC



2014 12-17 rahman v motts petition for permission to appeal … · 2019-12-18 · in the united...

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