Moore v. Mars Petcare US, Inc.

1

2

3

4 IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 TAMARA MOORE, et al., Case No. 16-cv-07001-MMC

8 Plaintiffs,

ORDER DENYING MOTIONS FOR

9 v. CLASS CERTIFICATION

10 MARS PETCARE US, INC., et al., Re: Doc. Nos. 261, 262, 264

11 Defendants.

12

13 Before the Court are three motions, filed May 17, 2023: (1) plaintiff Greta L. Ervin’s

14 (“Ervin”) “Motion for Class Certification” as to claims against defendant Royal Canin

15 U.S.A., Inc. (“Royal Canin”) (see Doc. No. 261), (2) plaintiffs Tamara Moore (“Moore”),

16 Nichols Smith (“Smith”), and Cynthia Welton’s (“Welton”) “Motion for Class Certification”

17 as to claims against defendant Hill’s Pet Nutrition, Inc.’s (“Hill’s”) (see Doc. No. 262), and

18 (3) plaintiff Renee Edgren’s (“Edgren”) “Motion for Class Certification” as to claims

19 against defendant Mars Petcare US, Inc. (“Mars”) (see Doc. No. 264). Each motion has

20 been fully briefed. Having read and considered the papers filed in support of and in

21 opposition to the motions, the Court rules as follows.

22 BACKGROUND

23 In the operative complaint, the Second Amended Class Action Complaint (“SAC”),

24 plaintiffs allege Royal Canin, Hill’s, and Mars “created and enforced upon retailers and

25 consumers the mandatory use of a prescription, issued by a veterinarian, as a condition

26 precedent to the purchase of certain cat and dog foods” (hereinafter, “the prescription

27 requirement”). (See Doc. No. 116 (“SAC”) ¶ 1.) Specifically, plaintiffs allege, Royal Canin

1 (“VD”), Hill’s manufactures and markets a line of pet food in packaging labeled

2 “Prescription Diet” (“PD”), and Mars manufactures and markets a line of pet food in

3 packaging labeled “Veterinary Formula” (“VF”). (See SAC ¶ 87a, b, d, Exhibit A.)

4 According to plaintiffs, by creating and enforcing the prescription requirement as to PD,

5 VD, and VF, defendants are leading reasonable consumers to believe, incorrectly, that

6 said pet food “is approved by the FDA, has been subject to government inspection and

7 testing, and has medicinal and drug properties that legally require a prescription for sale.”

8 (See SAC ¶ 11.) As a result, plaintiffs allege, consumers “expect to and do pay a

9 premium” for those products. (See SAC ¶ 36.)

10 Based on the above allegations, plaintiffs assert, individually and on behalf of

11 three putative classes, the following state law causes of action: “Violation of California’s

12 Unfair Competition Law (‘CA UCL’) (Bus. & Prof. Code § 17200, et seq.)”; “Violation of

13 California’s False Advertising Law (‘CA FAL’) (Bus. & Prof. Code § 17500 et seq.)”; and

14 “Violation of California’s Consumer Legal Remedies Act (‘CA CLRA’) (Civil Code

15 § 1750).” (See SAC at 70:19-21, 72:1-3, 73:9-11.)

16 LEGAL STANDARD

17 A plaintiff, to be entitled to an order certifying a class, “must establish the four

18 prerequisites of [Rule] 23(a)” of the Federal Rules of Civil Procedure, see Valentino v.

19 Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996), which are as follows: “(1) the

20 class is so numerous that joinder of all members is impracticable; (2) there are questions

21 of law or fact common to the class; (3) the claims or defenses of the representative

22 parties are typical of the claims or defenses of the class; and (4) the representative

23 parties will fairly and adequately protect the interests of the class,” see Fed. R. Civ. P.

24 23(a). In addition, the plaintiff must establish “at least one of the alternative requirements

25 of [Rule] 23(b).” See Valentino, 97 F.3d at 1234. Rule 23(b) provides for certification of a

26 class where “the court finds that the questions of law or fact common to class members

27 predominate over any questions affecting only individual members, and that a class

1 controversy.” See Fed. R. Civ. P. 23(b)(3).

2 “The party seeking certification . . . bears the burden of showing that each of the

3 four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b) are

4 met.” See Nghiem v. Dick's Sporting Goods, Inc., 318 F.R.D. 375, 379 (C.D. Cal. Dec. 1,

5 2016); see also Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31

6 F.4th 651, 665 (9th Cir. 2022) (holding plaintiff “must . . . carry the burden of establishing

7 that the prerequisites of Rule 23 are satisfied by a preponderance of the evidence”). “If a

8 court concludes that the moving party has met its burden of proof, then the court has

9 broad discretion to certify the class.” See Hadley v. Kellogg Sales Co., 324 F. Supp. 3d

10 1084, 1093 (N.D. Cal. 2018) (citing Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180,

11 1186 (9th Cir. 2001)).

12 DISCUSSION

13 A. Royal Canin

14 Ervin alleges she “has a dog named Teddy,” and that “[w]hen Teddy became ill

15 with giardia,” she “received a prescription from Teddy’s primary-care veterinarian, located

16 in California, for, and purchased, Royal Canin Veterinary Diet Gastrointestinal Puppy dry

17 and wet dog food,” and “also received a prescription from Teddy’s specialty veterinarian,

18 located in California, for, and purchased, Royal Canin Veterinary Diet Selected Protein

19 Adult PV dry and wet dog food.” (See SAC ¶ 103.) Ervin alleges she “was told by her

20 veterinarian that these pet foods required a prescription to purchase” (see id.) and, at her

21 deposition, confirmed that allegation (see Doc. No. 320-1 (“Ervin Dep.”) at 15:22-24

22 (testifying that “[she] know[s] it’s called prescription dog food when discussed with the

23 vet” and that “[i]t was referred to as prescription dog food”)).

24 Ervin seeks to represent a class of “all California residents who purchased Royal

25 Canin’s Veterinary Diet pet foods from any retailer in California” within the relevant class

26 period, specifically, from December 7, 2012, to the present for the UCL claim and from

27 December 7, 2013, to the present for the CLRA and FAL claims. (See Doc. No. 261-1

1 The Court first addresses Ervin’s showing under Rule 23(a), which Royal Canin

2 does not challenge.

3 1. Rule 23(a)(1): Numerosity

4 “[C]ourts . . . have concluded that the numerosity requirement is usually satisfied

5 where the class comprises 40 or more members.” Zeiger v. WellPet LLC, 526 F. Supp.

6 3d 652, 690 (N.D. Cal. 2021) (internal quotation and citation omitted).

7 Here, Ervin has provided evidence, specifically, “sales data,” demonstrating “there

8 were thousands of VD purchasers throughout California during the class period.” (See

9 Doc. No. 320-27, Exhibit 27 to Mot. re: Royal Canin)

10 Given such showing, the Court finds the numerosity requirement is satisfied.

11 2. Rule 23(a)(2): Commonality

12 The commonality requirement of Rule 23(a)(2) is satisfied where “plaintiffs . . .

13 show that their claims ‘depend upon a common contention’ that is capable of classwide

14 resolution—which means that determination of its truth or falsity will resolve an issue that

15 is central to the validity of each one of the claims in one stroke.” See A. B. v. Hawaii

16 State Dep't of Educ., 30 F.4th 828, 839 (9th Cir. 2022) (quoting Wal-Mart Stores, Inc. v.

17 Dukes, 564 U.S. 338, 350 (2011)). “[F]or purposes of Rule 23(a)(2) even a single

18 common question will do.” See Wal-Mart, 564 U.S. at 359 (internal quotation, citation,

19 and alterations omitted).

20 Here, Ervin contends “[c]ommon questions, the answers to which will resolve

21 issues that are central to the validity of [her] (and the [c]lass’) claims, include:”

22 (1) Whether Royal Canin engaged in deceptive or fraudulent conduct under the

UCL, CLRA, and/or FAL by marketing and selling “Veterinary Diet” labeled

23

products pursuant to its prescription requirement and without disclosing that

24 the products are not legally required to be sold by prescription and do not

contain medicine[;]

25 (2) Whether Royal Canin’s representations and omissions regarding VD products

are literally false and/or likely to deceive a reasonable consumer;

26 (3) Whether Royal Canin’s representations and omissions regarding VD products

are material to a reasonable consumer; and

27

(4) Whether the amount of damages or restitution due to the [c]lass as a result of

1 (See Mot. re: Royal Canin at 9:16-23.)

2 Courts in this district have found such questions sufficient for purposes of

3 satisfying the commonality requirement. See Fitzhenry-Russell v. Dr. Pepper Snapple

4 Grp., Inc., 326 F.R.D. 592, 607 (N.D. Cal. 2018) (finding question whether allegedly

5 deceptive label was “likely to deceive reasonable consumers” was question common to

6 class) (collecting cases); Zeiger, 526 F. Supp. 3d at 691 (finding “whether reasonable

7 consumers would be misled by” allegedly “misleading marketing claims” was question

8 common to class); Kumar v. Salov N. Am. Corp., 2016 WL 3844334, at *5 (N.D. Cal. July

9 15, 2016) (holding “[w]hether the label statement violates [various] laws, and therefore

10 establishes a predicate for a UCL, FAL or CLRA claim, is a common question, both

11 factually and legally”).

12 In light of the above, the Court finds the commonality requirement is satisfied.

13 3. Rule 23(a)(3): Typicality

14 “The test of typicality is whether other members have the same or similar injury,

15 whether the action is based on conduct which is not unique to the named plaintiffs, and

16 whether other class members have been injured by the same course of conduct.” See

17 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation and

18 citation omitted).

19 Here, Ervin asserts that “[she] and the Class have suffered the same injury,”

20 namely, “overpa[yment] for VD products based on Royal Canin’s deceptive conduct,”

21 (see Mot. re: Royal Canin at 9:13-14), that her claims and the proposed class members’

22 claims are based on the same conduct, namely, “Royal Canin’s business practice of

23 requiring a veterinary ‘prescription’ as a mandatory prerequisite to purchase any VD

24 product, which Royal Canin imposes on all VD resellers and enforces” (see id. at 10:14-

25 16 (emphasis omitted)), and that “[p]urchasers of all VD products suffered a substantially

26 similar harm” from said business practice (see id. at 10:19-20).

27 In light of the above, the Court finds the typicality requirement is satisfied.

1 4. Rule 23(a)(4): Adequacy

2 “To determine adequacy of representation under Rule 23(a)(4), the Court must

3 consider: ‘(1) whether the representative plaintiffs and their counsel have any conflicts of

4 interest with other class members, and (2) [whether] the representative plaintiffs and their

5 counsel will prosecute the action vigorously on behalf of the class.’” See Kumar, 2016

6 WL 3844334, at *2 (quoting Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003))

7 (alteration omitted).

8 Ervin contends “[t]here are no conflicting or antagonistic interests” where, as here,

9 “the representative [plaintiffs] seek damages under the same California statutes” (see

10 Mot. re: Royal Canin at 11:3-4), and that she, “as a conscientious representative, fully

11 participated in discovery” and is “represented by local and national counsel with

12 experience in consumer class actions and complex litigation” (see id. at 11:5-7).

13 In light of such circumstances, the Court finds the adequacy requirement is

14 satisfied.

15 5. Rule 23(b)(3): Predominance

16 As noted, Rule 23(b)(3) requires, in addition to the prerequisites of Rule 23(a), a

17 showing that “questions of law or fact common to class members predominate over any

18 questions affecting only individual members, and that a class action is superior to other

19 available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ.

20 P. 23(b)(3). “The predominance inquiry asks whether the common, aggregation-

21 enabling, issues in the case are more prevalent or important than the non-common,

22 aggregation-defeating, individual issues.” See Tyson Foods, Inc. v. Bouaphakeo, 577

23 U.S. 442, 453 (2016) (internal quotation and citation omitted). “In order for the plaintiffs

24 to carry their burden of proving that a common question predominates, they must show

25 that the common question relates to a central issue in the plaintiffs' claim.” See Olean,

26 31 F.4th at 665.

27 Here, Ervin argues, common questions as to the likelihood of deception,

1 Canin at 1:19-23.)

2 a. Likelihood of Deception

3 Ervin contends “[c]ommon questions regarding whether Royal Canin’s

4 representations and omissions regarding VD products are literally false, and/or likely to

5 mislead reasonable consumers are central to [her] UCL, FAL, and CLRA claims.” (See

6 Mot. re: Royal Canin at 12:18-20.)

7 The UCL, FAL, and CLRA “prohibit not only advertising which is false, but also

8 advertising which, although true, is either actually misleading or which has a capacity,

9 likelihood or tendency to deceive or confuse the public.” See Moore v. Mars Petcare US,

10 Inc., 966 F.3d 1007, 1017 (9th Cir. 2020) (emphasis in original) (internal quotation,

11 citation, and alteration omitted). Claims under those three “California statutes are

12 governed by the reasonable consumer test,” see Williams v. Gerber Prod. Co., 552 F.3d

13 934, 938 (9th Cir. 2008) (internal quotation and citation omitted), which requires a plaintiff

14 to “show that members of the public are likely to be deceived,” see id. (internal quotation

15 and citation omitted), specifically, “that a significant portion of the general consuming

16 public or of targeted consumers, acting reasonably in the circumstances, could be

17 misled,” see Moore, 966 F.3d at 1017 (internal quotation and citation omitted). Ordinarily,

18 “[t]his objective test renders claims under the UCL, FAL, and CLRA ideal for class

19 certification because they will not require the court to investigate class members’

20 individual interaction with the product.” See Tait v. BSH Home Appliances Corp., 289

21 F.R.D. 466, 480 (C.D. Cal. 2012) (internal quotation and citation omitted). “[T]he question

22 of likely deception,” however, “does not automatically translate into a class-wide

23 question.” See Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068 (9th Cir. 2014)

24 (affirming denial of class certification where customers’ experiences as to challenged

25 contract terms varied).

26 Here, Royal Canin contends Ervin’s proposed class should not be certified

27 because there were “no uniform ‘prescription’ representations [made] to class members.”

1 inter alia, “pet owners encounter a variety of circumstances when it comes time to buy

2 [VD]” (see id. at 14:3). As set forth below, the Court finds Royal Canin’s argument

3 persuasive.

4 (i) Exposure

5 Although Ervin asserts the prescription requirement is “the core, uniform

6 deception, which universally applies to all VD purchasers” (see Doc. No. 301 (“Reply re:

7 Royal Canin”) at 4:19-20; see also SAC ¶ 1), Ervin has not shown all purchasers are

8 exposed to this requirement nor that those who are exposed have uniform experiences.

9 While Ervin has provided evidence that “every VD product and purchase is subject to

10 Royal Canin’s universal [p]rescription [r]equirement” (see Reply re: Royal Canin at 9:7-8;

11 see also Doc. No. 320-8 (“Royal Canin VD Distribution Statement”) (“Our [c]ompany’s

12 distribution policy ensures that [VD] products are sold only by licensed veterinarians or

13 pursuant to prescriptions written by licensed veterinarians”); Doc. No. 261-7 (Royal Canin

14 Marketing Director Dep.) at 17:17-20 (testifying VD pet foods “have to be prescribed by

15 [a] vet before the pet parent can purchase them”)), the fact that a product is universally

16 subject to a requirement does not mean the purchasers of such product are made aware

17 of the requirement or, for those who do learn of it, that they do so in a uniform manner.

18 Here, defendants have submitted evidence that pet owners can purchase

19 prescription pet foods without ever learning a prescription is required. In particular, pet

20 owners can only obtain Royal Canin VD after first having an appointment with a

21 veterinarian, and veterinarians are not required, either by Royal Canin or otherwise, to

22 use any uniform script or materials when discussing the food with pet owners. (See Doc.

23 No. 261-11 (“Royal Canin Direct Buy Agreement”) at ¶ 4.D (stating veterinarians at

24 partner animal clinics need only “provide accurate, prompt and competent technical

25 advice” regarding Royal Canin products)). Indeed, based upon a survey of veterinarians,

26 defendants’ expert Sarah Butler (“Butler”) found “the majority of veterinarians [who sell

27 prescription pet food in their clinics] do not provide a written prescription and thus most

1 Rep.”) ¶¶ 101 n.108, 196.) In other words, pet owners may visit a veterinarian, discuss

2 the recommendation that their pet be put on a prescription pet food diet, and buy the

3 prescription pet food directly from the veterinarian’s clinic without ever hearing about a

4 prescription requirement or seeing a written prescription.

5 Moreover, even when purchasing prescription food from an outside provider,

6 purchasers may not be alerted to the existence of the prescription requirement.

7 Defendants require prescription pet food retailers to confirm pet owners have a

8 veterinarian’s prescription, but, for purposes of such confirmation, some retailers only ask

9 a customer to provide his or her veterinarian’s contact information and never alert the

10 customer to the prescription requirement during the purchasing process. (See e.g., Doc.

11 No. 261-6 (“Chewy Prescription Approval Process Flow Chart”) (showing customer must

12 “provide vet information at checkout,” after which Chewy confirms veterinarian approval

13 directly with veterinarian and “prescription [is] created and recorded in backoffice”).)

14 As Royal Canin points out, the Ninth Circuit has found class certification

15 inappropriate where not all putative class members were exposed to the deceptive

16 practice. See Berger, 741 F.3d at 1069 (finding common questions did not predominate

17 where plaintiff “ha[d] not alleged that all of the members of his proposed class were

18 exposed to [defendant]'s alleged deceptive practices”); see also Mazza v. Am. Honda

19 Motor Co., 666 F.3d 581, 596 (9th Cir. 2012) overruled on other grounds by Olean

20 Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022)

21 (vacating class certification where “it [was] likely that many class members were never

22 exposed to the allegedly misleading advertisements”).

23 In response, Ervin, citing In re Tobacco II Cases (“Tobacco II”), 46 Cal. 4th 298

24 (2009), argues reliance, and impliedly exposure, can be presumed. In Tobacco II,

25 however, “evidence was admitted to prove the decades-long campaign of the tobacco

26 industry to conceal the health risks of its product while minimizing the growing consensus

27 regarding the link between cigarette smoking and lung cancer and, simultaneously,

1 smokers must come.” Tobacco II, 46 Cal. 4th at 327 (internal quotation and citation

2 omitted).

3 Here, by contrast, Ervin points to no evidence of marketing materials aimed at

4 consumers beyond a “consumer-facing video” by the “Pet Food Institute, a trade group

5 that counts RC as a member of its Board of Directors,” in which a veterinarian states

6 “[y]our veterinarian may prescribe a therapeutic pet food” (see Pls.’ Supp. Brief re: Royal

7 Canin at 3:1-5 (quoting Exhibit 81 thereto)), a “Royal Canin[] consumer-facing website”

8 which included the statement "Royal Canin veterinary diets are available by prescription

9 only” (see id. at 3:7-8 (quoting Exhibit 128 thereto)), and a 2001 "Royal Canin Cat

10 Encyclopedia" that discussed "Prescription Foods" (see id. at 3:24-4:4 (quoting Exhibit 8

11 thereto)). Such evidence falls far short of the widescale advertisement campaign in

12 Tobacco II, and, consequently, does not support a finding of classwide exposure. See,

13 e.g., Todd v. Tempur-Sealy Int’l, Inc., 2016 WL 5746364, at *10 (N.D. Cal. Sept. 30,

14 2016) (holding 300 million pages of direct mail advertisement and 25 million website

15 views “failed to demonstrate the marketing at issue was sufficiently extensive such that

16 one can infer exposure on a class-wide basis”).

17 In further response, Ervin proposes the use of “a claim form or questionnaire” for

18 purposes of self-identifying those individuals who were exposed. (See Doc. No. 407

19 (“Supp. Sur-reply re: Royal Canin”) at 3:9-13.) The use of a claims form, however, is not

20 appropriate where the form seeks to elicit recall of events prone to “subjective memory

21 problems.” See In re Hulu Priv. Litig., No. C 11-03764 LB, 2014 WL 2758598, at *16

22 (N.D. Cal. June 17, 2014) (holding self-reporting by affidavit inappropriate when form

23 asked questions about customers’ web-browser use and settings). Here, Ervin proposes

24 asking putative class members to recall specific details of how they learned of the

25 prescription requirement from conversations or other events that occurred almost twelve

26 years ago. (See Mot. re: Royal Canin (defining class period as encompassing December

27 2012 to present); Supp. Sur-reply re: Royal Canin at 3:10-13 (setting forth proposed

1 *13 (N.D. Cal. Dec. 8, 2023) (holding self-identification of putative class members through

2 use of affidavits inappropriate where “affidavit would require a putative class member to

3 attest to not seeing one of several potential disclosures more than two years ago”).

4 Accordingly, as to the likelihood of deception, given the above discussed failure to

5 show classwide exposure, Ervin has not met her burden of showing common questions

6 predominate, and, consequently, class certification is not appropriate. Moreover, as set

7 forth below, even for those purchasers who were exposed to the prescription

8 requirement, Ervin has not shown common questions as to the likelihood of deception

9 predominate.

10 (ii) Circumstances of Exposure

11 Even where pet owners are apprised of the prescription requirement, Royal Canin

12 has provided evidence that their experiences can vary markedly, thereby causing those

13 class members’ understanding of the prescription requirement, i.e. whether a class

14 member is likely to be deceived, to vary as well.

15 As noted, every pet owner, in order to obtain prescription pet food, must meet with

16 a veterinarian. In that regard, defendants’ expert Butler, based on her survey, found

17 veterinarians “communicate an array of information to pet [owners]” and “what vets say is

18 a function of their individual practices, experience, and the questions consumers ask.”

19 (See Butler Rep. at 109-10, tbls.7 & 8.) Plaintiffs’ experts are in accord. Plaintiffs’ expert

20 Rebecca Reed-Arthurs, PhD (“Dr. Reed-Arthurs”) acknowledged that “a consumer's

21 exposure to information about prescription pet foods differs over time, place, [and] by

22 content” (see Doc. No. 285-2 (“Reed-Arthurs Dep.”) at 191:25–192:7), and plaintiffs’

23 expert Thomas Maronick, DBA (“Dr. Maronick”) agreed that “the vet,” “the pet,” “the pet's

24 condition,” and “what's . . . available” are “all factors that will come into discussion” (see

25 Doc. No. 285-3 (“Maronick Dep.”) at 96:16-24). Consistent therewith, Steven Hill, DMV

26 (“Dr. Hill”), Ervin’s veterinarian, testified that the information he conveys to pet owners

27 “var[ies] based on the individual case and the diagnosis” (see Doc. No. 261-24 (“Hill

1 was a medication in food” and that he has “never had a client indicate to [him] that they

2 thought there was a medication in the food.” (See id. Hill Dep. at 23:25-24:3.). In sum,

3 what one veterinarian conveys to a pet owner who buys prescription pet food may be

4 markedly different from what is conveyed to another, and given such variation, the Court,

5 as discussed below, finds Ervin has failed to meet her burden to show common questions

6 as to the likelihood of deception predominate.

7 At the outset, the Court notes that Ervin is not relying on the product’s label as the

8 means by which the prescription requirement is communicated. (See Doc. No. 368

9 (“Class Cert. Tr.”) at 62:22-63:2 (responding “no” when asked if “plaintiffs [are] bringing a

10 freestanding mislabeling case”).) Indeed, the VD label bears the phrase “veterinary diet,”

11 and Ervin concedes that nothing in the packaging or label says the pet food is a

12 “prescription product” or “prescription medication.” (See Doc. No. 261-3 (“Ervin Dep.”) at

13 123:19-124:1, 126:4-10.) Consequently, Ervin is, in essence, relying on verbal

14 communications from a variety of sources, resulting in contexts that, as noted, can vary

15 markedly even if the requirement is conveyed in the course thereof. See Fairbanks v.

16 Superior Ct., 197 Cal. App. 4th 544, 556, 561-64 (2011) (affirming denial of class

17 certification where plaintiffs did not rely solely on challenged policy language but, rather,

18 on the “combination of [death benefit] illustration, policy design, annual statements[,]

19 agent training, and marketing materials”) (emphasis in original) (internal quotation and

20 citation omitted). Even where purchasers have been exposed to uniform written

21 materials, courts have found predominance is not satisfied where putative class

22 members’ experiences varied. See Kaldenbach v. Mut. of Omaha Life Ins. Co., 178 Cal.

23 App. 4th 830, 841-42, 847 (2009) (affirming denial of class certification where plaintiff

24 “primarily relied upon uniformity in [defendant]’s sales materials, training, and

25 illustrations,” but “there was no evidence that uniform training or sales materials were

26 used with each putative class member”; finding “individualized issues predominated”);

27 see also id. at 845 (citing In re LifeUSA Holding Inc., 242 F.3d 136, 145-148 (3d Cir.

1 presentations”)).

2 Accordingly, Ervin has failed to show common questions predominate as to the

3 central issue, likelihood of deception.

4 b. Materiality and Damages

5 The UCL, FAL, and CLRA all “allow[] plaintiffs to establish materiality and reliance

6 (i.e., causation and injury) by showing that a reasonable person would have considered

7 the defendant's representation material.” See Fitzhenry-Russell, 326 F.R.D. at 612. In

8 the absence of a uniform representation having been conveyed to the putative class,

9 however, the question of materiality will depend, as here, on the circumstances particular

10 to the individual consumer, thus precluding a finding of predominance as to materiality.

11 Lastly, in light of the Court’s finding that Ervin has failed to meet her burden of

12 showing predominance as to the likelihood of deception and materiality, the Court does

13 not address herein the question of predominance as to damages, other than to note that

14 the same reasons why likelihood of deception and materiality are not susceptible to class

15 certification are equally appliable to the issue of damages as well.

16 6. Conclusion: Royal Canin

17 Ervin having failed to show common questions of fact predominate, Ervin’s motion

18 for class certification will be denied.

19 B. Hill’s

20 Welton alleges she “has a dog named Kodiak,” and that when “Kodiak became ill

21 with a kidney problem, [she] received a Prescription from Kodiak’s veterinarian, located in

22 Menlo Park, [California,] for, and purchased, Hill’s Prescription Diet k/d wet and dry dog

23 food.” (See SAC ¶ 106.) Welton further alleges “[t]he veterinarian told her that a

24 prescription was required before she could purchase the product, which she purchased

25 from the veterinarian.” (See id.; see also Doc. No. 322-1 (“Welton Dep.”) at 62:24-25

26 (testifying, regarding PD k/d, “it was a prescription like any other prescription that we get

27 there”).) “From August 2014 through at least November 16, [Welton] purchased [PD k/d]

1 in non-prescription dog food.” (See Doc. No. 322-2 (“Welton’s Resp. to Hill’s First Set of

2 Interrogs.”) at Resp. 6(f).)

3 Smith alleges he “has a cat named Mimi, and . . . also had a cat named Neichi,”

4 and that “[w]hen Mimi and Neichi became overweight, [he] received a prescription from

5 the cats’ veterinarian, located in Sonoma County, [California,] for, and purchased Hill’s

6 Prescription Diet Glucose/Weight Management m/d cat food from the veterinarian’s

7 clinic.” (See SAC ¶ 104.) Smith further alleges he “was told by the veterinarian that a

8 prescription was required for [said] cat food.” (See id.; see also Doc. No. 322-3 at 80:6-8

9 (“Smith Dep.”) (testifying that “when [vet] said it was a prescription diet, [he] just assumed

10 that there was medication”).) Smith “is without knowledge of the date of each purchase”

11 but states under oath that he purchased PD m/d “believ[ing] that he was receiving a

12 product that could, by law, only be obtained by prescription and that had medicinal

13 qualities not found in non-prescription foods.” (See Doc. No. 322-5 (“Smith’s Am. and

14 Restated Resp. to Hill’s First Set of Interrogs.”) at Resp. 6.)

15 Moore alleges she “has a dog named Pugalicious,” and that “[w]hen Pugalicious

16 had to undergo surgery to remove kidney stones, [she] received a prescription from

17 Pugalicious’s veterinarian, located in Santa Clara County, [California,] for Hill’s

18 Prescription Diet u/d dog food, which she purchased first from a VCA Animal Hospital

19 and subsequently from PetSmart.” (See SAC ¶ 101.) Moore further alleges that she

20 “was told by her veterinarian that a prescription was required before she could purchase

21 the product” (see id.; see also Doc. No. 322-7 (“Moore Dep.”) at 241:12-14 (testifying that

22 she “was given a prescription on a prescription pad when [she] was first prescribed this

23 [product]”)) and that “[s]he tried to purchase the product at another VCA Animal Hospital,

24 but was refused because she failed to present a prescription” (see SAC ¶ 101). Given

25 such circumstances, Moore avers, she “purchased [PD u/d] from approximately 2011 to

26 approximately 2017, . . . believ[ing] that she was receiving a product that could only be

27 obtained by prescription and that had medicinal qualities not found in non-prescription

1 6(a), (i); see also Moore Dep. at 92:25-93:5 (testifying that “a prescription in [her] opinion

2 is generally what is used when you have a condition that requires some sort of medicine

3 or something that is going to make that condition better”).)

4 Welton, Smith, and Moore (collectively, “Hill’s Plaintiffs”) seek to represent a class

5 of “all California residents who purchased Hill’s Prescription Diet pet foods from any

6 retailer in California.” (See Doc. No. 262-1 (“Mot. re: Hill’s”) at 14:1-3.)

7 The Court first addresses the Hill’s Plaintiffs’ showing under Rule 23(a)(1) and

8 (a)(2), which Hill’s does not challenge.

9 1. Rule 23(a)(1): Numerosity; Rule 23(a)(2): Commonality

10 As to numerosity, the Hill’s Plaintiffs provide evidence that “Vetsource’s sales data,

11 which reflects sales by just one of many PD retailers, demonstrates that there were

12 thousands of PD purchasers throughout California during the class period.” (See Mot. re:

13 Hill’s at 14:11-13.) As to commonality, the Hill’s Plaintiffs contend that “[c]ommon

14 questions, the answers to which will resolve issues that are central to the validity of

15 [p]laintiffs’(and the [c]lass’) claims, include”:

16 (1) Whether Hill’s engaged in deceptive or fraudulent conduct under the

UCL, CLRA, and/or FAL by marketing and selling “Prescription Diet”

17

labeled products pursuant to the prescription requirement and without

18 disclosing that the products are not legally required to be sold by

prescription and do not contain medicine;

19 (2) Whether Hill’s representations and omissions regarding PD products are

literally false and/or likely to deceive a reasonable consumer;

20 (3) Whether Hill’s representations and omissions regarding PD products are

material to a reasonable consumer; and

21

(4) Whether the amount of damages or restitution due to the Class as a

22 result of Hill’s deceptive conduct can be measured on a classwide basis.

23 (See id. at 15:2-11.)

24 For the same reasons as discussed above with respect to Ervin’s motion, the

25 Court finds the numerosity and commonality requirements are satisfied.

26

27 2. Rule 23(a)(3): Typicality; Rule 23(a)(4): Adequacy

1 products suffered a substantially similar harm” resulting from “Hill’s business practice of

2 requiring a veterinary ‘prescription’ as a mandatory prerequisite to purchase any PD

3 product” (see Mot. re: Hill’s at 16:1-6), and that there is adequacy of representation, in

4 that they have “no conflicting or antagonistic interests” and “have demonstrated

5 knowledge of the claims” (see id. at 16:19-20.) In response, Hill’s contends “[p]laintiffs are

6 atypical and inadequate representatives of the proposed class.” (See Doc. No. 276

7 (“Opp’n re: Hills”) at 3:19-20.)

8 First, Hill’s argues, Smith “lacks standing” to bring his claims “because [those]

9 claims belong to his bankruptcy estate.” (See Opp’n re: Hill’s at 24:11-12.) Specifically,

10 Hill’s asserts, “Smith filed for Chapter 7 bankruptcy in 2018 and received an order of

11 discharge later that year, yet never disclosed his interest in this litigation (in which he has

12 been a plaintiff since 2016).” (See id. at 24:16-17.) In response, the Hill’s Plaintiffs note

13 that Smith subsequently “re-opened his bankruptcy case, properly scheduled (i.e.,

14 disclosed) his cause of action here as an asset, and that asset was not otherwise

15 administered prior to the re-closing of the bankruptcy case,” with the result that,

16 according to the Hill’s Plaintiffs, “Smith is, again, the rightful owner of his claim here.”

17 (See Doc. No. 396 (“Pls’ Mot. for Leave to File Order of Discharge”) at 4:19-22.)

18 “In the Ninth Circuit, when an individual files bankruptcy, all causes of action that

19 accrued before the filing generally become the property of the bankruptcy estate.”

20 Alakozai, 2014 WL 5660697, at *12 (internal quotation and citation omitted); see also

21 Kingsbury v. U.S. Greenfiber, LLC, 2014 WL 12567838, at *2 (C.D. Cal. Aug. 5, 2014)

22 (noting “[w]here . . . a debtor fails properly to schedule an asset, including a cause of

23 action, that asset continues to belong to the bankruptcy estate and does not revert to the

24 debtor” (internal quotation, citation, and alterations omitted)). “As a result, the individual

25 lacks standing to bring an action based on the claim because the claim has become the

26 property of the bankruptcy estate.” See Alakozai, 2014 WL 5660697, at *12.

27 The subsequent abandonment of such interest, however, “may constitute the

1 problem so long as the debtor had made an ‘understandable mistake’ by proceeding in

2 his own name, as opposed to some sort of strategic manipulation. See Cullen v. Bank

3 One Corp., 145 F. App'x 192, 193 (9th Cir. 2005).

4 Here, Smith reopened his bankruptcy case and amended his schedules to

5 disclose his causes of action in the instant case, which interest was not administered by

6 the trustee prior to the re-closing of the bankruptcy case (see Doc. No. 396; see also

7 Doc. No. 397-9 (Decl. of Hannah Chanoine Ex. H (Debtors’ Ex Parte Motion to Reopen

8 Bankruptcy Case) at 1-4); Doc. No. 397-2 (Decl. of Hannah Chanoine Ex. A (In re Smith,

9 No. 9:18-bk-10495-RC (C.D. Cal.) Docket) at 3)), and, consequently, has been

10 “abandoned to the debtor” (see 11 U.S.C. § 554(c)).

11 Next, the Court must determine whether Smith made an “understandable mistake”

12 by initially proceeding here in his own name. In that regard, Smith plausibly has explained

13 that he did not disclose his interest in the instant case to the bankruptcy court because,

14 as of the date he filed his bankruptcy petition, the case had been dismissed, and,

15 although on appeal, he did not consider it an asset. (See Doc. No. 397-9 (Decl. of

16 Hannah Chanoine, Ex. H (Smith Decl.) at 5).)

17 Accordingly, as to Smith, the Court finds the typicality and adequacy requirements

18 are satisfied.

19 As to Welton and Moore, Hill’s, citing Faulk v. Sears Roebuck & Co., 2013 WL

20 1703378 (N.D. Cal. Apr. 19, 2013), argues they “cannot represent the proposed class

21 because they continued to buy therapeutic foods after becoming aware that PD

22 contained no medicine and is not legally required to be sold by prescription.” (See Hill’s

23 Opp’n at 24:22-25); see also Faulk, 2013 WL 1703378 at *9 (holding named plaintiff who

24 “continued to purchase” product “even after he became aware” of alleged deception

25 “show[ed] . . . materiality may not be susceptible to proof by objective criteria”).

26 In that regard, Hill’s argues, “Welton’s husband is a physician, and she understood

27 from the outset that PD was not medicine but a ‘therapeutic formulation’” (see Opp’n re:

1 formulation [Kodiak] was given for his medical issue is my understanding”))), apparently

2 implying Welton’s husband must have known PD contained no medicine and passed on

3 that information to his spouse. The Court finds Hills’ double speculation, first as to

4 Welton’s husband’s knowledge and then as to what he conveyed, insufficient to support a

5 finding of inadequacy.

6 As to Moore, the Hill’s Plaintiffs provide evidence that she first purchased PD

7 believing “it would have some sort of medicinal content” (see Moore Dep. at 94:14-15)

8 and that it “mattered to [her]” that “[i]t was a prescription” (see id. at 302:9-12). Although

9 the Hill’s Plaintiffs concede “Moore bought PD a few times after she filed suit,” they point

10 to evidence that she stopped buying it once she felt she was able to do so without

11 jeopardizing her pet’s health. (See Doc No. 302 (“Reply re: Hill’s”) at 15:4-7 (citing Moore

12 Dep. at 84:18-21 (“It took [Pugalicious] probably a good three weeks maybe, maybe four,

13 before he was able to fully transition without getting sick or having diarrhea”).)

14 Accordingly, as to Moore and Welton, the Court finds the typicality and adequacy

15 requirements are satisfied.

16 3. Rule 23(b)(3): Predominance

17 The Hill’s Plaintiffs, like Ervin, contend common questions as to the likelihood of

18 deception, materiality, and damages predominate over individual questions. (See Mot.

19 re: Hill’s at 6:20-23.) In that regard, they make essentially the same arguments as made

20 in Ervin’s motion for class certification, with some differences as to evidentiary support,

21 which differences the Court addresses below.

22 a. Likelihood of Deception

23 As to likelihood of deception, the Hill’s Plaintiffs, much like Ervin, argue “[c]ommon

24 questions regarding whether Hill’s representations and omissions regarding PD products

25 are literally false, and/or likely to mislead reasonable consumers are central to [Hill’s]

26 Plaintiffs’ UCL, FAL, and CLRA claims.” (See Mot. re: Hills at 18:8-10.)

27 (ii) Exposure

1 cite to support the contention that reliance, and impliedly exposure, can be presumed,

2 their argument likewise is unavailing. In particular, they cite a “2011 book for pet parents”

3 that “discusses ‘veterinary prescription diets’” (see Pls.’ Supp. Brief re: Hill’s at 3:26-27

4 (citing Exhibit 3 thereto)), “a 2017 email to millions of PetSmart customers marketing

5 ‘veterinary diets’ as requiring a prescription” (see id. at 4:4-6 (citing Exhibit 15 thereto)

6 (emphasis added)), and a reference to a Hill’s YouTube channel that “includes

7 commercials such as [a] 2023 spot featuring pet parents discussing the ‘prescription diet

8 food’” (see id. at 7:24-8:2.) As discussed above, such evidence continues to fall far short

9 of the widescale advertisement campaign in Tobacco II. See, e.g., Todd v. Tempur-Sealy

10 Int’l, Inc., 2016 WL 5746364, at *10 (N.D. Cal. Sept. 30, 2016). Moreover, the first of the

11 above three citations is a critical evaluation of prescription pet foods in which the author

12 questions the efficacy of such formulations, describes how and why they are being

13 marketed, and makes clear they differ from other pet foods as to their nutrient content,

14 not by the addition of drugs. (See, e.g., Pls.’ Supp. Brief re: Hills, Ex. 3 at 5 (concluding

15 “these foods . . . . are likely to do less harm than prescription drugs”; observing, “the

16 ingredient list . . . looked much like that of any other premium pet food.”)

17 Accordingly, for the same reasons as discussed above as to Royal Canin, the

18 Hill’s Plaintiffs have failed to show classwide exposure to the challenged requirement,

19 and, consequently, class certification is not appropriate. Moreover, as set forth below,

20 even for those purchasers who were exposed to the prescription requirement, the Hill’s

21 Plaintiffs have not shown common questions as to the likelihood of deception

22 predominate.

23 (ii) Circumstances of Exposure

24 As noted earlier herein, Hill’s, unlike Royal Canin, uses the word

25 “prescription” on its PD pet food labels. As further noted, however, the Hill’s Plaintiffs are

26 not bringing a freestanding labeling case. (See Class Cert. Tr. at 62:22-63:2.) As alleged

27 in the SAC, the label comprises only part of the purported deceptive conduct (see e.g.,

1 “misrepresent[ations] through the Prescription [Requirement], its advertising and

2 marketing statements, and its failure to include any adequate disclaimer on Prescription

3 Pet Food labels”)), and, as the majority of consumers’ first knowledge of and decision to

4 purchase this type of pet food is at the time it is recommended by their veterinarian, they

5 are unlikely to see the packaging until after that decision is made. Consequently, the

6 difference in labeling has little bearing on the Court’s analysis. Rather, for the reasons

7 discussed above, the prescription requirement is not conveyed to all pet owners, and

8 those who do learn of it do so in varying ways. Thus, the same reasons why likelihood of

9 deception is not susceptible to class certification as to Royal Canin are equally appliable

10 to Hill’s.

11 b. Materiality and Damages

12 In light of the Court’s finding that the Hill’s Plaintiffs have failed to meet their

13 burden of showing predominance as to the likelihood of deception, the Court does not

14 address again herein the question of predominance as to materiality and damages, other

15 than to note again that the same reasons why likelihood of deception is not susceptible to

16 class certification are appliable to these two issues as well.

17 4. Conclusion: Hill’s

18 The Hill’s Plaintiffs having failed to show common questions of fact predominate,

19 the Hill’s Plaintiffs’ motion for class certification will be denied.

20 C. Mars

21 Edgren alleges she “has a dog named Barkley,” and that “[w]hen Barkley

22 experienced skin and coat problems, [she] received a prescription from Barkley’s

23 veterinarian, located in San Mateo County, [California,] for, and purchased, Iams

24 Veterinary Skin & Coat Plus Response KO dog food.” (See SAC ¶ 105.) Edgren further

25 alleges she “understood from her veterinarian that a prescription was required in order to

26 purchase” said pet food (see id.) and, at deposition, testified that “the way that [she]

27 bought this food, which was through a prescription,” and the name “veterinary formula,”

1 Edgren seeks to represent a class of “all California residents who purchased Mars’

2 Veterinary Formula pet foods from any retailer in California” within the relevant class

3 period, specifically, from December 7, 2012, to the present for the UCL claim and from

4 December 7, 2013, to the present for the CLRA and FAL claims. (See Doc. No. 264-1

5 (“Mot. re: Mars”) at 7:13-16.)

6 1. Rule 23(a)(1): Numerosity; Rule 23(a)(2): Commonality; Rule 23(a)(4):

Adequacy

7

Mars does not challenge Edgren’s showing as to numerosity or adequacy, each of

8

which is essentially the same as that made by Ervin, and for the reasons discussed

9

above, the Court finds those requirements of Rule 23(a) are satisfied. As to

10

commonality, Mars appears to reserve its arguments for its challenge to predominance,

11

which issue will be addressed later herein. The Court thus turns to Mars’s arguments with

12

regard to typicality.

13

2. Rule 23(a)(3): Typicality

14

Mars, asserting “Edgren did not read the label before purchasing IAMS Veterinary

15

Formula,” argues “Edgren’s claims are not typical of the claims of class members who

16

allegedly were deceived by and relied on the product label.” (See Doc. No 283 (“Opp’n.

17

re: Mars”) at 20:11-16 (citing Doc. No. 319-5 (“Edgren Dep.”) at 106:6-9).) As Edgren

18

points out, however, “Mars’ business practice of requiring a veterinary ‘prescription’ as a

19

mandatory prerequisite to purchase any VF product, which Mars imposed and enforced

20

as to all VF resellers, is at the heart of [her] UCL, CLRA, and FAL claims” (see Mot. re:

21

Mars at 9:19-21 (emphasis omitted)), and, as noted, she testified the “way” she

22

purchased the food, signified to her that it contained “drugs” (see Edgren Dep. at 115:22-

23

25). Additionally, Edgren provides evidence that Mars, like Royal Canin and Hill’s,

24

imposed the prescription requirement as to every purchase of VF. (See, e.g., Doc. No.

25

319-4 (Mars Veterinary Director, stating “IAMS® Veterinary Formula products are

26

restricted for resale to consumers only through licensed veterinarians and veterinary

27

1 In light of the above, the Court finds the typicality requirement is satisfied.

2 3. Rule 23(b)(3): Predominance

3 a. Likelihood of Deception

4 Much like Royal Canin’s challenge to Ervin’s showing as to predominance, Mars

5 challenges Edgren’s showing on the ground that there were “[n]o uniform ‘prescription’

6 representations [made] to class members” (see Opp’n re: Mars at 11:21), specifically,

7 that “there is no evidence that class members were uniformly exposed to a deceptive

8 label” (see id. at 12:9-10), that the prescription requirement “is communicated to pet

9 owners by their veterinarians” and “[t]he pet owner’s understanding of the prescription

10 requirement thus depends on what is said” (see id. at 13:7-8 (internal quotation and

11 citation omitted)), and that “pet owners encounter a variety of circumstances when it

12 comes time to buy the food” (see id. at 14:3). In sum, as discussed above, the

13 prescription requirement is not conveyed to all pet owners, and those who do learn of it,

14 do so in varying ways.

15 (i) Exposure

16 In support of her argument that reliance, and impliedly exposure, can be

17 presumed, Edgren cites to evidence that Mars spent large sums of money on educating

18 veterinarians, a 2016 “pet food blog[,] ‘Dogs Naturally[,]’” which “posted about

19 ‘Prescription Diet Pet Food,’” the “language ‘prescribed and sold only by veterinarians’”

20 on VF packaging, and a sign referencing “veterinary prescription diets” at the office of

21 Edgren’s veterinarian. (See Pls.’ Supp Brief re: Mars at 4:3-11). Such evidence, as with

22 that submitted by Ervin and the Hill’s Plaintiffs, falls far short of the widescale

23 advertisement campaign in Tobacco II. See, e.g., Todd v. Tempur-Sealy Int’l, Inc., 2016

24 WL 5746364, at *10 (N.D. Cal. Sept. 30, 2016).

25 Accordingly, for the same reasons as discussed above as to Royal Canin and

26 Hill’s, Edgren has failed to show classwide exposure to the challenged requirement, and,

27 consequently, class certification is not appropriate. Moreover, as set forth below, even for

1 shown common questions as to the likelihood of deception and materiality predominate.

2 (ii) Circumstances of Exposure

3 While Edgren points out the “label of every VF product states: “dog [or cat] food

4 prescribed and sold only by veterinarians” (See Mot. re: Mars at 21:15-16 (emphasis

5 added by Edgren)), a label’s inclusion of the word “prescription,” or a variation thereof,

6 has only limited significance here, as no plaintiff is bringing a freestanding mislabeling

7 claim. Additionally, as discussed above, the prescription requirement is not conveyed to

8 all pet owners, and those who do learn of it, do so in varying ways. Consequently, the

9 same reasons why likelihood of deception and materiality are not susceptible to class

10 certification as to Royal Canin and Hill’s, are equally appliable to Mars.

11 b. Damages

12 Mars argues Edgren’s class should not be certified for the independent reason that

13 “she has not presented any method—much less a valid method—for calculating damages

14 for the class of IAMS Veterinary Formula purchasers she seeks to certify.” (See Doc. No.

15 374 (“Defs’ Supp. Brief re: Mars Damages”) at 1:13-15.) Edgren concedes she “ha[s] not

16 presented a classwide damages model for Mars’ VF sales to the Class” (see Mot for

17 Class Cert: re Mars at 15:15-16) but argues “there is no need for a damages model to

18 obtain certification of a Fed. R. Civ. P. 23(c)(4) issues class as to liability only.” (See

19 Doc. No. 385 (“Pls’ Supp. Brief re: Mars Damages”) at 1:5-6.) Issue certification does not

20 solve Edgren’s predominance problem, however, because a Rule 23(c)(4) liability-only

21 class still requires a showing of predominance as to questions of liability, which, for the

22 reasons stated above, Edgren has failed to meet her burden of showing.

23 4. Conclusion: Mars

24 Edgren having failed to show common questions of fact predominate, Edgren’s

25 motion for class certification will be denied.

26 CONCLUSION

27 For the reasons discussed herein:

4 2. Moore, Smith, and Welton’s motion for class certification is hereby DENIED;

2 3. Edgren’s motion for class certification is hereby DENIED.

3

4 IT IS SO ORDERED.

5

6 || Dated: September 27, 2024 .

MAXINE M. CHESNEY

7 Untted States District Judge

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