# Sunderland v. PharmaCare U.S., Inc.

> District Court, S.D. California · September 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11137693

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 12, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
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12 LINDA SUNDERLAND and BENJAMIN Case No.: 3:23-cv-01318-JES-AHG
BINDER, individually and on behalf of all
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those similarly situated, ORDER:
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Plaintiffs,
(1) GRANTING IN PART AND
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v. DENYING IN PART MOTION FOR
16 CLASS CERTIFICATION; and
PHARMACARE U.S., INC.,

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Defendant. (2) DENYING MOTION TO
18 EXCLUDE TESTIMONY OF J.
MICHAEL DENNIS AND COLIN
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WEIR; and
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(3) GRANTING PLAINTIFFS
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MOTION TO FILE DOCUMENTS
22 UNDER SEAL

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[ECF Nos. 68, 84, 95]
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25 Before the Court are several motions filed by the parties: (1) Plaintiffs’ motion for
26 class certification (“Motion;” ECF No. 68); (2) Defendant’s motion to exclude the
27 testimony of Plaintiffs’ experts J. Michael Dennis and Colin Weir (ECF No. 84); and (3)
28 Plaintiffs’ motion to file documents under seal (ECF No. 95). Given the various related
1 and overlapping issues raised in these motions, the Court granted the parties’ request for
2 consolidated briefing. ECF No. 67. Per the consolidated schedule, the parties filed
3 respective oppositions and replies to these motions. ECF Nos. 84, 94, 97. On January 15,
4 2025, the Court held oral arguments. After due consideration, and for the reasons stated
5 below, the Court GRANTS IN PART AND DENIES IN PART the motion for class
6 certification and DENIES Defendant’s motion to exclude Plaintiffs’ experts.
7 I. BACKGROUND
8 On July 18, 2023, Plaintiffs filed this putative class action against Defendant
9 PharmaCare U.S., Inc. (“Defendant” or “PharmaCare”)1, asserting consumer protection
10 and breach of warranty claims based on its Sambucol product, a dietary supplement that is
11 alleged to contain a proprietary extract of black elderberry. ECF No. 1. The claims are as
12 follows: (1) California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §
13 17200 et seq.; (2) California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §
14 17500 et seq.; (3) California’s Consumer Legal Remedies Act, Cal. Civ. Code § 1750 et
15 seq.; (4) New York’s General Business Law (“GBL”), N.Y. Gen. Bus. Law §§ 349, 350;
16 and (5) Breach of Express Warranties. Id.
17 A. The Products
18 Black elderberry is a flowering plant that produces clusters of black berries. ECF
19 No. 68-1 at 11. Elderberry has become a popular dietary supplement in recent years,
20 partially due to increased popularity of “natural remedies” in the marketplace. ECF No. 1
21 at ¶ 2. A method of producing elderberry extract is described in U.S. Patent No. 4,742,046,
22 filed by Madeline Bliah, also known as Madeline Mumcuoglu (“Dr. Mumcuoglu”). ECF
23 No. 68-3 at ¶¶ 6-7, Exs. A, B. Dr. Mumcuoglu started an Israeli company to market her
24 elderberry extract product and trademarked the name “Sambucol” for use with her
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26

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1 The Court previously granted Defendant PharmaCare Laboratories Pty Ltd.’s motion to dismiss for lack
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1 company. ECF No. 68-3, Ex. C; Ex. F at ¶ 4. The Sambucol trademark eventually became
2 owned by Defendant’s parent company. ECF No. 147-3, Exs. D, E.
3 Each of Defendant’s products at issue in this case contain black elderberry extract.
4 Specifically, the following eight products are at issue:
5 1. Elderberry Original Syrup
6 2. Sambucol Black Elderberry Sugar Free
7 3. Sambucol Black Elderberry Syrup for Kids
8 4. Sambucol Black Elderberry Effervescent Tablets
9 5. Sambucol Black Elderberry Chewable Tablets
10 6. Sambucol Black Elderberry Pastilles
11 7. Sambucol Black Elderberry Daily Immune Drink Powder
12 8. Sambucol Black Elderberry Advance Immune Syrup
13 (collectively, the “Products”). ECF No. 79 at 11.
14 Plaintiffs’ claims arise from allegations regarding statements made on the labels of
15 the Products, which they allege to be false and misleading. The labels on the Products vary,
16 but include some combination of the following statements:
17 - “Virologist Developed”
18 - “Developed by Dr Madeleine Mumcuoglu”
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- “Developed by a world-renowned virologist, Sambucol® is the unique black
20 elderberry extract that has been used in scientific studies. By using a proprietary
method of extraction, only Sambucol® can guarantee consistent, immune
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supporting properties in every serving.”
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- “Developed by a world-renowned virologist, Sambucol®’s unique
23 manufacturing process preserves and maximizes the naturally occurring health
24 benefits of the Black Elderberry.”
25 - “Developed by a world-renowned virologist, Sambucol® has been trusted by
millions worldwide. Sambucol can be taken every day for continuous immune
26
support.”
27

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1 (collectively, “Challenged Misrepresentations”). These statements are made on the labels
2 of the Products at differing locations. See ECF No. 68-12 to 68-14, Exs. CC-RRR.
3 B. Plaintiffs’ Allegations
4 Plaintiffs allege Defendant, through the Challenged Misrepresentations, falsely
5 advertised the Products as “unique,” “proprietary,” and “virologist developed” to increase
6 demand, build brand trust, and gain a competitive advantage, causing economic harm to
7 consumers. ECF No. 1 at ¶¶ 25-40. Plaintiffs allege the Products refer to Dr. Mumcuoglu
8 and her patented elderberry extract formula, but the extract used in the Products was not
9 derived from her formula. ECF No. 68-1 at 14. Instead, Plaintiffs allege the Products are
10 based on elderberry juice. Id. Further, Plaintiffs allege Defendant originally included Dr.
11 Mumcuoglu’s name on some of the Products’ labels, but this reference was removed and
12 “there is currently no connection between Dr. Mumcuoglu and Defendant[] or the current
13 version of the Elderberry Products.” ECF No. 1 at ¶ 32.
14 C. Named Plaintiffs and Proposed Classes
15 There are two named Plaintiffs in the class. Plaintiff Binder is a resident and citizen
16 of California. Id. at ¶ 15. He claims to have purchased the Original Syrup over a four-year
17 stretch, with his last purchase in June 2023. Id. at ¶ 16. Plaintiff Sunderland is a resident
18 and citizen of New York. Id. at ¶ 10. She claims to have purchased the Chewable Tablets
19 over a two-year stretch, with her last purchase in March 2023. Id. at ¶ 11. Both Plaintiffs
20 Binder and Sunderland allege they saw and relied on the Challenged Misrepresentations
21 that the elderberry ingredient was unique, proprietary, and developed by a virologist. Id. at
22 ¶¶ 12, 17. They both claim to wish to continue purchasing the Products in the future but
23 are unable to rely on Defendant’s representations in deciding whether to do so. Id. at ¶¶ 14,
24 19.
25 Plaintiffs seek to certify two classes: (1) a California class of all “persons in
26 California who, before March 31, 2023, purchased the Products for personal or household
27 use and not for resale;” and (2) a New York class of all “persons in New York who, before
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1 March 31, 2023, purchased the Products for personal or household use and not for resale.”
2 ECF No. 68-1 at 11.
3 II. MOTION TO EXCLUDE EXPERTS
4 Concurrent with the pending motion for class certification, Defendant filed a motion
5 to exclude experts that Plaintiffs rely upon in their class certification argument. Since
6 resolution on this motion affects the evidence that the Court will rely upon in deciding the
7 motion for class certification, the Court addresses this motion first, as a threshold matter.
8 A. Legal Standard
9 Federal Rule of Evidence 702 allows admission of “scientific, technical, or other
10 specialized knowledge” by a qualified expert if it will “help the trier of fact to understand
11 the evidence or to determine a fact in issue.” Fed. R. Evid. 702. Expert testimony is
12 admissible pursuant to Rule 702 if it is both relevant and reliable. Daubert v. Merrell Dow
13 Pharms., Inc., 509 U.S. 579, 589 (1993). An expert witness may provide opinion testimony
14 if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product
15 of reliable principles and methods; and (3) the expert has reliably applied the principles
16 and methods to the facts of the case. Fed. R. Evid. 702.
17 Generally, district courts have a duty to “act as a gatekeeper to exclude junk science
18 that does not meet Federal Rule of Evidence 702’s reliability standards.” Ellis v. Costco
19 Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011). However, the duty is to evaluate “not
20 the correctness of the expert’s opinions but the soundness of his methodology.” Primiano
21 v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). Moreover, the inquiry into admissibility of
22 expert opinion is a “flexible one,” where “[s]haky but admissible evidence is to be attacked
23 by cross examination, contrary evidence, and attention to the burden of proof, not
24 exclusion.” Id. (citing Daubert, 509 U.S. at 594, 596).
25 The Ninth Circuit has stated that district courts should apply Daubert and Rule 702
26 standards at the class certification stage. See, e.g., Grodzitsky v. Am. Honda Motor Co.,
27 957 F.3d 979, 984 (9th Cir. 2020). However, at this stage, there is no jury to gatekeep and
28 the judge is the sole arbiter, so “admissibility must not be dispositive.” Sali v. Corona Reg’l
1 Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018). “Instead, an inquiry into the evidence’s
2 ultimate admissibility should go to the weight that evidence is given at the class
3 certification stage.” Id. Thus, many district courts in this circuit view expert admissibility
4 issues raised by parties during class certification as a determination of weight rather than
5 admissibility. See, e.g., Painters & Allied Trades Dist. Council 82 Health Care Fund v.
6 Takeda Pharm. Co. Ltd., No. 2:17-CV-07223-JWH-AS, 2023 WL 4190553, at *2 (C.D.
7 Cal. May 22, 2023) (Daubert is to be used as a “guide to determine the weight that evidence
8 receives at the class certification stage”); Aberin v. Am. Honda Motor Co., Inc., No. 16-
9 CV-04384-JST, 2021 WL 1320773, at *4 (N.D. Cal. Mar. 23, 2021) (a “lower Daubert
10 standard should be employed at the class certification stage of the proceedings,” denying
11 motion to strike, and considering arguments as to reliability of expert testimony to “assist
12 in evaluating the weight of the evidence as it relates to class certification”); Bally v. State
13 Farm Life Ins. Co., 335 F.R.D. 288, 297 (N.D. Cal. 2020) (“Sali forecloses this
14 interpretation by explicitly instructing that a Daubert analysis alone, while relevant, should
15 not prevent a court from considering expert testimony at the class certification stage.”).
16 B. Discussion
17 Defendant’s motion is to exclude Plaintiffs’ experts, Dr. J. Michael Dennis (“Dr.
18 Dennis”) and Mr. Colin Weir (“Mr. Weir”). ECF No. 84 at 46-58. Dr. Dennis performed a
19 consumer perception survey, a materiality survey, and opined on damages. Id. at 46. Mr.
20 Weir helped to design and support Dr. Dennis’ methodology on damages. Id. Defendant
21 raises several grounds for why these experts’ opinions should be excluded. First, Defendant
22 argues that Dr. Dennis’ consumer perception survey is unreliable, biased, and misleading
23 because the statements used in the survey did not match the Products’ labels (i.e., “this is
24 the unique black elderberry extract” as opposed to “Sambucol is the unique black
25 elderberry extract”). Id. at 47-52. Thus, Defendant argues the questions posed to survey
26 participants do not match Plaintiffs’ theory of liability. Id. Second, Defendant argues that
27 Dr. Dennis’ materiality survey is similarly unreliable because the design shown to the
28 survey participants was manufactured for the survey and not an image of the actual product
1 or packaging. Id. at 52-54. Third, Defendant argues that Dr. Dennis’ damages model is
2 irrelevant and unreliable because it is based on the tested claim, not the class claims. Id. at
3 54. Finally, Defendant argues that Dr. Dennis’ price premium model is irrelevant because
4 it fails to distinguish between injured and uninjured class members, it is not sufficiently
5 defined, and it is based on a “willingness-to-pay” benchmark rather than measuring an
6 actual price premium. Id. at 55-57.
7 After reviewing the parties’ arguments and briefing on these issues, the Court agrees
8 with the many district courts in this circuit that the more appropriate place to consider these
9 arguments is on how much weight to give to the competing expert testimony, rather than
10 their admissibility. Sali, 909 F.3d at 1006; Painters, 2023 WL 4190553, at *2; Aberin, 2021
11 WL 1320773, at *4; Bally, 335 F.R.D. at 297. This is particularly appropriate where, as
12 here, many of the arguments for exclusion of the testimony is not on whether the types of
13 surveys are acceptable, but whether certain criteria used in the respective surveys pass
14 muster. However, the Ninth Circuit has stated that as a general matter, “[c]hallenges to
15 survey methodology go to the weight given the survey, not its admissibility.” Wendt v. Host
16 Int’l, Inc., 125 F.3d 806, 814 (9th Cir. 1997); see also Microsoft Corp. v. Motorola, Inc.,
17 904 F. Supp. 2d 1109, 1120 (W.D. Wash. 2012) (Criticisms “go to issues of methodology,
18 survey design, reliability . . . [and] critique of conclusions, and therefore go to the weight
19 of the survey rather than its admissibility.”) (internal quotation marks omitted).
20 Accordingly, the Court DENIES Defendant’s motion to exclude expert testimony
21 under Daubert.
22 Defendant also filed numerous evidentiary objections on the grounds that certain
23 evidence is irrelevant, lacking foundation, constitutes inadmissible hearsay, misstates
24 testimony, not based on personal knowledge, and contains inadmissible lay opinion. In
25 determining whether class certification is appropriate under FRCP 23, courts “may
26 consider all material evidence submitted by the parties … and need not address the ultimate
27 admissibility of evidence proffered by the parties.” Blair v. CBE Group, Inc., 309 F.R.D.
28 621, 627 (S.D. Cal. 2015) (internal quotations and citations omitted); see also Sali v.
1 Corona Regional Medical Center, 909 F.3d 996, 1005 (9 Cir. 2018) (“[A] district court
2 is not limited to considering only admissible evidence in evaluating whether Rule 23’s
3 requirements are met.”) In light of the lenient evidentiary standard that applies at the
4 certification stage, the Court OVERRULES Defendant’s evidentiary objections for
5 purposes of this motion. To the extent that any evidence proffered by the parties constitutes
6 a legal conclusion or lacks foundation, the Court will not consider such material. Blair, 309
7 F.R.D. at 627.
8 III. MOTION TO CERTIFY CALIFORNIA CLASS
9 As an initial matter, Plaintiff Binder and the proposed California class cannot be
10 certified because their claims are barred. Under res judicata, “a final judgment on the merits
11 bars further claims by parties or their privies based on the same cause of action.” Tahoe-
12 Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064,
13 1077 (9th Cir. 2003) (internal quotation marks and citations omitted). Res judicata applies
14 when there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity
15 between parties. Id. Identity of claims exists when “two suits arise from the same
16 transactional nucleus of facts” and “[n]ewly articulated claims . . . could have been brought
17 in the earlier action.” Id. at 1078 (internal quotation marks omitted). Summary judgment
18 is a final judgment on the merits. Fed. R. Civ. P. 56. Privity between parties exists when
19 there is substantial identity between parties, even when the parties are not identical. Tahoe-
20 Sierra Preservation Council, Inc., 322 F.3d at 1081.
21 Plaintiffs concede that identity of claims exists because this suit arises from the same
22 nucleus of facts as Corbett.2 See ECF No. 68-1 at 11 (“this Court has already certified a
23 parallel class action, in Corbett, which involves the same product labels, similar legal
24 claims, and theories of recovery”). Final judgment on the merits occurred in Corbett when
25 the Court granted summary judgment in favor of PharmaCare. Privity between parties
26

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2 Corbett v. PharmaCare U.S., Inc., No. 3:21-cv-00137-JES-AHG, 2025 WL 1746308 (S.D. Cal. June 24,
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1 exists because in Corbett, the Court certified two California classes that included the
2 following individuals:
3 All persons who, from January 21, 2017 to March 29, 2024, while in
California, purchased Defendant’s Sambucol Black Elderberry Original
4
Syrup, Sambucol Black Elderberry Advanced Immune Syrup, Sambucol
5 Black Elderberry Sugar Free Syrup, Sambucol Black Elderberry Syrup for
Kids, Sambucol Black Elderberry Gummies, Sambucol Black Elderberry
6
Gummies for Kids, Sambucol Black Elderberry Advanced Immune Capsules,
7 Sambucol Black Elderberry Effervescent Tablets, Sambucol Black Elderberry
Chewable Tablets, Sambucol Black Elderberry Pastilles (Throat Lozenges),
8
Sambucol Black Elderberry Daily Immune Drink Powder, and Sambucol
9 Black Elderberry Infant Drops for personal or household use and not for
resale.
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11 See Corbett Dkt. 276. PharmaCare was the defendant in Corbett and Plaintiff Binder and
12 the proposed California class are members of the certified Corbett classes. See supra §§ I-
13 A, I-C. Therefore, all three elements of res judicata are satisfied here and the California
14 claims are barred. Accordingly, the Court DENIES certification of the proposed California
15 class.
16 IV. MOTION TO CERTIFY NEW YORK CLASS
17 Federal Rule of Civil Procedure 23 governs class actions. Under Rule 23(a),
18 plaintiffs must establish numerosity, commonality, typicality, and adequacy. Wal-Mart
19 Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). Once Rule 23(a) is satisfied, then plaintiffs
20 must meet one of the limitations under Rule 23(b). Here, Plaintiffs rely on Rule 23(b)(3),
21 requiring them to show that “the questions of law or fact common to class members
22 predominate over any questions affecting only individual members, and that a class action
23 is superior to other available methods for fairly and efficiently adjudicating the
24 controversy.” Fed. R. Civ. P. 23(b)(3).
25 “Rule 23 does not set forth a mere pleading standard.” Wal-Mart, 564 U.S. at 350.
26 Rather, “[a] party seeking class certification must affirmatively demonstrate his
27 compliance with the Rule—that is, he must be prepared to prove that there are in fact
28 sufficiently numerous parties, common questions of law or fact, etc.” Id. “In determining
1 the propriety of a class action, the question is not whether the plaintiff or plaintiffs have
2 stated a cause of action or will prevail on the merits, but rather whether the requirements
3 of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (internal
4 quotations omitted). However, proof to establish that Rule 23 requirements have been met
5 often “overlap with the merits of plaintiff’s underlying claim.” Wal-Mart, 564 U.S. at 351.
6 A weighing of competing evidence, however, is inappropriate at this stage of the litigation.
7 Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003).
8 A. Rule 23(a) Requirements
9 1. Numerosity
10 Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is
11 impracticable.” Fed. R. Civ. P. 23(a)(1); Staton, 327 F.3d at 953. The plaintiff need not
12 state the exact number of potential class members; nor is a specific minimum number
13 required. Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal.
14 1994). Rather, whether joinder is impracticable depends on the facts and circumstances of
15 each case. Id.
16 Plaintiffs state that more than 49 million packages of the Products were sold
17 nationally. ECF No. 79 at 22. The Court may infer that this suffices to establish numerosity.
18 See Clay v. CytoSport, Inc., No. 3:15-CV-00165-L-AGS, 2018 WL 4283032, at *3 (S.D.
19 Cal. Sept. 7, 2018) (numerosity satisfied based on “several million” of products sold in
20 California); In re Hitachi Television Optical Block Cases, No. 08CV1746 DMS NLS, 2011
21 WL 9403, at *3 (S.D. Cal. Jan. 3, 2011) (sales of more than 100,000 products satisfy
22 numerosity).
23 Defendant argues the proposed class is not sufficiently numerous because Plaintiffs
24 fail to offer affirmative evidence of numerosity. ECF No. 84 at 35-36. Defendant relies on
25 Diacakis3 for the proposition that relying solely on product sales figures is insufficient to
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1 establish numerosity. Id. Diacakis however, involved a plaintiff who was subject to oral
2 misrepresentations by the defendant that were inapplicable to the proposed class. Diacakis,
3 2013 WL 1878921, at *1. Here, Plaintiffs allege the Products’ labeling created the
4 misrepresentations, and the proposed class was uniformly exposed to those
5 misrepresentations. ECF No. 94 at 14-15.
6 Given the distinction between Diacakis and these facts, the Court rejects
7 Defendant’s argument and finds that Plaintiffs have satisfied their burden to establish
8 numerosity.
9 2. Commonality
10 Rule 23(a)(2) requires the existence of “questions of law or fact common to the
11 class.” Fed. R. Civ. P. 23(a)(2). This requirement can be met with just a single common
12 question. Wal-Mart, 564 U.S. at 359.
13 This requirement overlaps with a part of Rule 23(b)(3)’s requirement that the court
14 must find that “questions of law or fact common to class members predominate over any
15 questions affecting only individual members.” The Supreme Court held that the
16 commonality requirement is “subsumed, or superseded by, the more stringent Rule
17 23(b)(3) [predominance] requirement.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 610-
18 612 (1997). Thus, for the sake of efficiency, courts often analyze these two requirements
19 together, focusing on the predominance question because it is the more demanding inquiry.
20 See, e.g., Johnson v. R&L Carriers Shared Servs., LLC, No. 222CV01619MCSJPR, 2023
21 WL 3299709, at *3 (C.D. Cal. Apr. 10, 2023).
22 Accordingly, the Court will defer ruling on this Rule 23(a)(2) requirement and merge
23 its discussion with the Rule 23(b)(3) requirement below.
24 3. Typicality
25 Rule 23(a)(3) requires that the claims or defenses of the representative parties to be
26 typical to those of the rest of the class. Fed. R. Civ. P. 23(a)(3). “[R]epresentative claims
27 are ‘typical’ if they are reasonably co-extensive with those of absent class members; they
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1 need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th
2 Cir. 1998). Like commonality above, typicality is a “permissive standard.” Id.
3 Plaintiffs contend their claims and defenses are typical of the class because members
4 of the class suffer the same injury, resulting from a substantially similar theory of liability.
5 ECF No. 68-1 at 24-25. In support, Plaintiffs cite various cases that hold that typicality is
6 routinely met in consumer protection cases that arise from alleged misrepresentations on
7 product labels. Id.
8 Defendant argues Plaintiff Sunderland is not a typical representative because she is
9 not a member of the proposed class. ECF No. 84 at 30. Generally, Defendant asserts
10 Plaintiff Sunderland is making an implied disease claim, whereas the proposed class claims
11 revolve around deceptive labeling through the Challenged Misrepresentations. Id. at 15-
12 16; 29-31. Defendant offers little support of this argument, outside of an incomplete or
13 mischaracterized reading of Plaintiff Sunderland’s deposition testimony. Id. at 16; see, e.g.,
14 ECF No. 88-2 at 40:9-22 (Sunderland stating that “virologist developed” was “a major
15 reason” why she purchased the Products); 63:22-64:24 (Sunderland stating that she
16 believed Sambucol was developed by a virologist because of the writing on the box and
17 had no reason to believe the label was false); 106:8-13 (Sunderland stating she believed
18 the product packaging, it influenced her to purchase the Products, and it was better than
19 other elderberry products because it was tested and produced by a virologist).
20 To defeat typicality, Defendant needs to show that it has a defense against the
21 particular representative that it does not have against other plaintiffs. In re ConAgra Foods,
22 Inc., 90 F. Supp. 3d 919, 974 (C.D. Cal. 2015) (“To be typical, a class representative need
23 not prove that she is immune from any possible defense, or that her claim will fail only if
24 every other class member’s claim also fails. Instead, she must establish that she is not
25 subject to a defense that is not ‘typical of the defenses which may be raised against other
26 members of the proposed class.’”). Here, the Court finds that Defendant’s arguments raised
27 as to Sunderland are not necessarily atypical of arguments they may raise against any other
28
1 member of the class. The Court agrees with Plaintiffs that Defendant concedes that its
2 defenses would be based on the reasonable consumer standard. ECF No. 94 at 16 n.5.
3 Accordingly, the Court finds that Plaintiffs have satisfied their burden to establish
4 typicality for Plaintiff Sunderland.
5 4. Adequacy of Representation
6 The last Rule 23(a) factor looks to make sure the representative parties will fairly
7 and adequately protect the interests of the class. Fed. R. Civ. P 23(a)(4). The root concern
8 this factor seeks to address is a constitutional due process concern to make sure absent class
9 members are afforded adequate representation in the action before there is an entry of a
10 judgment that would bind them. Hanlon, 150 F.3d at 1020. Thus, this factor focuses on two
11 questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with
12 other class members and (2) will the named plaintiffs and their counsel prosecute the action
13 vigorously on behalf of the class?” Id. (citing Lerwill v. Inflight Motion Pictures, Inc., 582
14 F.2d 507, 512 (9th Cir.1978)).
15 Plaintiffs state in their motion that the named class representatives share common
16 interests with the other class members and there is no conflict that would cause them to not
17 adequately represent their interests. ECF No. 68-1 at 25-26. Similarly, Plaintiffs argue that
18 they—along with their counsel—have shown the requisite vigor in prosecuting the case to
19 date and will continue to do so. Id. at 26. Further, Plaintiffs’ counsel provides information
20 regarding their experience with such class action cases in the past, and a description of the
21 work they have done so far in the case. Id. at 27-28.
22 Other than the arguments as to Plaintiff Sunderland that the Court addressed above
23 in typicality, the only other argument that Defendant raises related to this factor is with
24 regards to a conflict of interest with Plaintiffs’ counsel. ECF No. 84 at 32-34. Specifically,
25 Defendant argues that there is a conflict of interest in acting as counsel in this case and
26 Corbett, supra § III. Id. However, this argument is moot because Corbett reached a final
27 judgment and that case is closed.
28
1 Accordingly, the Court finds that Plaintiffs have satisfied their burden to establish
2 adequate representation of both the class representatives and class counsel.
3 B. Rule 23(b)(3) Requirements
4 Rule 23(b)(3) requires that “the questions of law or fact common to class members
5 predominate over any questions affecting only individual members, and that a class action
6 is superior to other available methods for fairly and efficiently adjudicating the
7 controversy.” Fed. R. Civ. P. 23(b)(3). This requirement is more stringent than
8 commonality and requires that “common questions present a significant aspect of the case
9 and they can be resolved for all members of the class in a single adjudication.” Hanlon,
10 150 F.2d at 1022.
11 1. Predominance
12 To address whether common issues predominate, the inquiry begins “with the
13 elements of the underlying causes of action.” Erica P. John Fund, Inc. v. Halliburton Co.,
14 563 U.S. 804, 809 (2011). Plaintiffs allege violation of the GBL based on the statements
15 made on the Products. The GBL prohibits deceptive acts or practices, as well as false
16 advertising, “in the conduct of any business, trade or commerce or in the furnishing of any
17 services in [New York].” N.Y. Gen. Bus. Law §§ 349, 350. There are three elements to a
18 § 349 claim: “(1) the defendant’s challenged acts or practices must have been directed at
19 consumers, (2) the acts or practices must have been misleading in a material way, and (3)
20 the plaintiff must have sustained injury as a result.” Cohen v. JP Morgan Chase & Co., 498
21 F.3d 111, 126 (2d Cir. 2007). The elements for a § 350 claim are essentially the same. See
22 Pelman v. McDonald’s Corp., 237 F. Supp. 2d 512, 525 (S.D.N.Y. 2003). “Misleading” is
23 defined objectively as “likely to mislead a reasonable consumer acting reasonably under
24 the circumstances.” Cohen, 498 F.3d at 126 (internal quotation marks and citation omitted).
25 Reliance is not required to state a claim under either §§ 349 or 350. DeCoursey v. Murad,
26 LLC, 673 F. Supp. 3d 194, 221 (N.D.N.Y. 2023). Injury under §§ 349 and 350 may be
27 alleged under a price premium theory, which means a plaintiff “paid a premium for a
28
1 product based on [the] defendants’ inaccurate representations.” Id. at 216 (internal
2 quotation marks and citations omitted).
3 Plaintiffs also assert a claim for breach of express warranty. There are four elements
4 to a New York breach of express warranty claim: “(1) the existence of a material statement
5 amounting to a warranty, (2) the buyer's reliance on this warranty as a basis for the contract
6 with the immediate seller, (3) breach of the warranty, and (4) injury to the buyer caused by
7 the breach.” Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d 562, 589 (S.D.N.Y. 2021)
8 (citation omitted). In warranty cases, reliance “relates to the first element of proof,
9 existence of the contract” and “whether [the consumer] believed he is purchasing the
10 promise.” Ainger v. Michigan General Corp., 476 F. Supp. 1209, 1225 (S.D.N.Y. 1979).
11 “Thus, a claim for relief in breach of warranty is complete upon proof of the warranty as
12 part of a contract and proof of its breach.” Id.
13 Defendant makes several arguments against predominance. First, Defendant relies
14 upon Diacakis to assert the proposed class is overbroad and individual fact-specific
15 inquiries will be required. ECF No. 84 at 36-39. The Court, supra § IV-A, previously
16 explained why Diacakis is distinguishable from these facts. For those reasons, the Court
17 rejects Defendant’s argument regarding standing.
18 Next, Defendant argues that damages cannot be calculated on a class-wide basis.
19 ECF No. 84 at 41-44. Defendant proffers the same arguments as in its motion to exclude
20 Plaintiffs’ expert testimony, including that Dr. Dennis’ damage model does not measure
21 the class claims, the model fails to distinguish between injured and uninjured class
22 members, the price-premium model is insufficiently defined, and individualized economic
23 inquiries are required. The Court, supra § II-B, rejects these arguments and concludes that
24 criticisms of Plaintiffs’ damages models are more appropriate when considering their
25 weight, not admissibility.
26 The Court agrees with Plaintiffs that their GBL and express warranty claims use an
27 objective standard that require no individualized inquiries. The Court also agrees that
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1 Plaintiffs’ damages models are appropriate at the class certification stage. Therefore, the
2 Court finds that predominance is met for both the GBL and express warranty claims.
3 2. Superiority
4 Beyond predominance, the second requirement of Rule 23(b)(3) is that the class
5 action must be “superior” to other available methods to fairly and efficiently adjudicate the
6 controversy. Fed. R. Civ. P 23(b)(3). Factors to consider include “A) the class members’
7 interests in individually controlling the prosecution or defense of separate actions; (B) the
8 extent and nature of any litigation concerning the controversy already begun by or against
9 class members; (C) the desirability or undesirability of concentrating the litigation of the
10 claims in the particular forum; and (D) the likely difficulties in managing a class action.”
11 Id.
12 Plaintiffs argue that these factors weigh for finding the class action vehicle to be
13 superior because the amounts to be recovered are modest for individuals and so they are
14 individually unlikely to bring suit. ECF No. 68-1 at 43. Plaintiffs assert that they are not
15 aware of any other litigation involving the Products, other than Corbett. Id. Plaintiffs also
16 assert that this District is the appropriate forum given its substantial ties to Defendant. Id.
17 Defendant challenges superiority because the class is not manageable and individual
18 factual questions predominate. ECF No. 84 at 45. The Court finds these arguments
19 meritless. The Court concludes that Plaintiffs have met their burden to show that a class
20 action is the superior method to adjudicate the class members’ claims.
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
l Vv. CONCLUSION
2 After due consideration and for the reasons discussed above, the Court GRANTS
3 || IN PART AND DENIES IN PART the motion for class certification and DENIES the
4 ||respective Daubert motion. Only the New York class is certified. Certification of the
5 || proposed California class is DENIED because those claims are barred. Plaintiffs’ motion
6 || to file documents under seal is GRANTED.
7 IT IS SO ORDERED.
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9 Dated: September 11, 2025 = oa Se 4,
10 Honorable James E. Sunmons Jr.
11 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11137693. Public record. Not legal advice.