# In re Conagra Foods, Inc.

> District Court, C.D. California · February 23, 2015 · 90 F. Supp. 3d 919

URL: https://www.frixlaw.com/law-library/cases/7230224

## Case

- **Full name:** In re CONAGRA FOODS, INC.
- **Court:** District Court, C.D. California
- **Decided:** February 23, 2015
- **Citations:** 90 F. Supp. 3d 919; 2015 U.S. Dist. LEXIS 24971; 2015 WL 1062756
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Morrow
- **Judges:** Morrow
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7230224

## How later opinions describe it (automated extraction)

- stating that, for an express warranty claim, "[p]roof of reliance on specific promises or representations is not required”; acknowledging some case law to the contrary but finding such case law unpersuasive, especially because the Uniform Commercial Code commentary provides th…
- holding that plaintiffs’ lack of 7 receipts “does not deprive them of standing” and that “named plaintiffs’ failure to produce 8 evidence of the specific price that each paid does not compel the conclusion that they cannot show 9 injury in fact and lack Article III standing”
- noting that “the exception to privity available for breach of 12 express warranty claims is not available for breach of implied warranty claims”
- holding that plaintiffs expert’s proposed conjoint analysis damages model satisfied Comcast, was tied to plaintiffs theory of liability, and met Rule 23(b)(3)’s predominance element
- finding that plaintiffs had “submitted substantial evidence demonstrating that the materiality of ConAgra’s misrepresentation can be established by common survey proof’

## Opinion text

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AMENDED MOTION FOR CLASS CERTIFICATION
MARGARET M. MORROW, District Judge.
On June 28, 2011, Robert Briseno filed a complaint against ConAgra; 1 between Oc *938 tober and December 2011, the court consolidated several cases filed against ConA-gra under the caption above. 2
On January 12, 2012, plaintiffs filed a First Consolidated Amended Complaint. 3 On February 24, 2012, ConAgra filed a motion to dismiss, 4 which the court granted in part and denied in part on November 15, 2012. 5 On December 19, 2012, plaintiffs filed a Second Consolidated Amended Complaint. 6 On February 20, 2014, they filed a motion seeking an order permitting the withdrawal of several named plaintiffs and the dismissal of their claims; 7 the court granted this motion on May 5, 2014. 8 The same day, plaintiffs filed a motion for class certification. 9 On June 2, 2014, Con-Agra filed a motion to strike the declarations of plaintiffs’ experts, Colin B. Weir and Charles M. Benbrook. 10 The next day, plaintiffs filed a motion seeking an order permitting the withdrawal of named plaintiffs Bonnie McDonald and Phyllis Scarpelli and the dismissal of their claims. 11 The court subsequently granted plaintiffs’ motion and permitted McDonald and Scarpelli to withdraw as named plaintiffs on July 31, 2014. 12 On August 1, *939 2014, the court denied plaintiffs’ motion for class certification, but granted them leave to file an amended motion for class certification. 13
Plaintiffs did so on September 8, 2014. 14 ConAgra opposed the amended motion on October 6, 2014. 15 The same day, it filed a motion to strike various declarations filed in support of plaintiffs’ amended motion. 16 Plaintiffs oppose ConAgra’s motion to strike. 17
I. BACKGROUND
A. Factual Background
Plaintiffs are consumers residing in eleven different states who purchased Wesson Oils between January 2007 and their entry into this case. They allege that from at least June 27, 2007 to the present, ConA-gra Foods, Inc. (“ConAgra”) deceptively and misleadingly marketed its Wesson brand cooking oils, made from genetically-modified organisms (“GMO”), as “100% Natural.” Throughout the proposed class period, every bottle of Wesson Oil carried a front label stating that the product was “100% Natural.” 18
Plaintiffs seek to certify eleven statewide classes as follows:
“All persons who reside in the States of California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, or Texas who have purchased Wesson Oils within the applicable statute of limitations periods established by the laws of their state of residence (the ‘Class Period’) through the final disposition of this and any and all related actions.” 19
Plaintiffs allege claims for violation of state consumer protection laws, breach of express warranty, breach of the implied warranty of merchantability, and unjust enrichment. Specifically, they plead the following claims:
• California: (1) California Consumer Legal Remedies Act, California Civil Code §§ 1750 et seq. and California Unfair Competition Law, California Business & Professions Code §§ 17200 et seq. and §§ 17500 et seq.; (2) California Commercial Code § 2813; California Commercial Code § 2314.
• Colorado: (1) Colorado Consumer Protection Act, Colorado Revised Statutes §§ 6-1-101 et seq.; (2) Colorado Revised Statutes § 4-2-313; (3) Colo *940 rado Revised Statutes § 4-2-314; (4) Unjust Enrichment.
• Florida: (1) Florida Deceptive and Unfair Trade Practices Act, Florida Statutes Annotated §§ 501.201 et seq.; (2) Unjust Enrichment.
• Illinois: (1) Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Illinois Compiled States §§ 505/1 ■ et seq.; (2) Unjust Enrichment.
• Indiana: (1) Indiana Code § 26-1-2-318; (2) Indiana Code § 26-1-2-314; (3) Unjust Enrichment.
• Nebraska: (1) Nebraska Consumer Protection Act, Nebraska Revised Statutes §§ 59-1601 et seq.; (2) Nebraska Revised Statutes § 2-313; (3) Nebraska Revised Statutes § 2-314; (4) Unjust Enrichment.
• New York: (1) New York Consumer Protection Act, New York General Business Law §§ 349 et seq.; (2) N.Y. U.C.C. Law § 2-313 ; (3) Unjust Enrichment.
• Ohio: (1) Ohio Consumer Sales Practices Act, Ohio Revised Code §§ 1345.01 et seq.; (2) Unjust Enrichment.
• Oregon: (1) Oregon Unfair Trade Practices Act, Oregon Revised Statutes §§ 646.605 et seq.; (2) Oregon Revised Statutes § 72-3130; (3) Unjust Enrichment.
• South Dakota: (1) South Dakota Deceptive Trade Practices and Consumer Protection Law, South Dakota Codified Laws §§ 37-24-1 et seq.; (2) S.D. Cod. Laws § 57A-2-313; (3) South Dakota Codified Laws § 57A-2-314; (4) Unjust Enrichment.
• Texas: (1) Texas Deceptive Trade Practices-Consumer Protection Act, Texas Business & Commerce Code §§ 17.41 et seq.; (2) Unjust Enrichment. 20
B. ConAgra’s Request for Judicial Notice
ConAgra requests that the court take judicial notice of ten documents and various attached exhibits, each of which has previously been filed in this action, in support of its opposition to plaintiffs’ amended motion for class certification. 21 Specifically, ConAgra asks that the court take judicial notice of: (1) the Declaration of Colin B. Weir in Support of Plaintiffs’ Motion for Class Certification and for Appointment of Counsel, which plaintiffs filed on May 5, 2014 as Docket No. 243; 22 (2) the Declaration of Raquelle Hunter in Opposition to Plaintiffs’ Motion for Class Certification and Appointment of Counsel, which ConA-gra filed on June 2, 2014 as Docket No. 266; 23 (3) the Declaration of Dominique M. Hanssens, Ph.D., in Opposition to Plaintiffs’ Motion for Class Certification and Appointment of Counsel, with attached appendices and exhibits, which ConAgra filed on June 2, 2014 as Docket No. 267; 24 *941 (4) the Declaration of Keith R. Ugone in Opposition to Plaintiffs’ Motion for Class Certification, with attached appendices and exhibits, which' ConAgra filed on June 2, 2014 as Docket No. 268; 25 (5) the Declaration of Robert B. Hawk in Opposition to Plaintiffs’ Motion for Class Certification, with attached exhibits, which ConAgra filed on June 2, 2014 as Docket No. 269; 26 (6) the Declaration of Stacy R. Hovan in Opposition to Plaintiffs’ Motion for Class Certification, with attached exhibits, which ConAgra filed on June 2, 2014 as Docket No. 270; 27 (7) the Declaration of Marcella Thompson in Opposition to Plaintiffs’ Motion for Class Certification, which ConAgra filed on June 2, 2014 as Docket No. 271; 28 (8) the Rebuttal Declaration of Colin B. Weir in Support of Plaintiffs’ Reply Memorandum of Points and Authorities in Further Support of Plaintiffs’ Motion for Class Certification, which plaintiffs filed on June 30, 2014 as Docket No. 285; 29 (9) the Declaration of Dr. Elizabeth Howlett, which plaintiffs filed on June 30, 2014 as Docket No. 288; 30 and (10) the court’s Order Denying Plaintiffs’ Motion for Class Certification, which was entered on August 1, 2014 as Docket No. 350. 31
It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence. “Judicial notice is. properly taken of public records, such as transcripts, orders, and decisions made by ... courts or administrative agencies.” See Wayne v. Leal, No. 07 CV 1605 JM (BLM), 2009 WL 2406299 , *4 (S.D.Cal. Aug. 4, 2009); Molus v. Swan, No. 05cv452-MMA (WMc), 2009 WL 160937 , *2 (S.D.Cal. Jan. 22, 2009) (“Courts also may take judicial notice of their own records,” citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.1986)). The court may thus taken judicial notice of the filings and order referenced in ConA-gra’s request for judicial notice. See NovelPoster v. Javitch Canfield Group, No. 13-CV-05186-WHO, 2014 WL 5594969, *4, n. 7 (N.D.Cal. Nov. 3, 2014) (“In conjunction with the motion, defendants requested judicial notice of various documents, including NovelPoster’s ex parte application for a temporary restraining order in this case and this Court’s subsequent order .... Defendants’ request for judicial notice of the TRO application and order is GRANTED”); see also In re Linda Vista Cinemas, L.L.C., 442 B.R. 724 , 740 n. 7 (Bankr.D.Ariz.2010) (stating that “[t]he court takes judicial notice of its own records,” specifically, a declaration attached to the opposition to a preliminary injunction motion, citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980)). Accordingly, the court grants ConAgra’s request for judicial notice, “although [ConAgra] [is] *942 advised for future reference that [it] need not seek judicial notice of documents previously filed in the same case.” “An accurate citation will suffice.” NovelPoster, 2014 WL 5594969 at *4 n. 7.
II. DISCUSSION
A. ConAgra’s Motion to Strike and Evidentiary Objections
Before addressing the merits of the certification motion, the court must first consider ConAgra’s challenges to declarations filed by the named plaintiffs and plaintiffs’ experts. ConAgra contends that the expert declarations of Colin B. Weir and Elizabeth Howlett, Ph.D. submitted in support of plaintiffs’ amended motion for class certification, as well as the reply declarations of Weir, Howlett, Benjamin M. Ben-brook, Ph.D., and Dr. John C. Kozup, should be stricken because they are inadmissible and unreliable. 32 It also asserts that the court should strike the newly filed declarations of the named plaintiffs because each is a “sham” declaration that is immaterial to plaintiffs’ amended motion for class certification. 33 Plaintiffs counter that the Weir and Howlett declarations are admissible expert testimony and that the named plaintiffs’ new declarations are consistent with their prior deposition testimony. 34
1. Evidentiary Objections to the Testimony of Plaintiffs’ Experts
The court first considers ConAgra’s challenges to plaintiffs’ experts. While courts in this circuit previously held that expert testimony was admissible in evaluating class certification motions without conducting a rigorous analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), the Supreme Court in Dukes expressed “doubt that this [was] so.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2554 , 180 L.Ed.2d 374 (2011). After Dukes , the Ninth Circuit approved analysis under Daubert of the admissibility of expert testimony presented in support of or opposition to a motion for class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) (“In its analysis of Costco’s motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert ... ”). As a result, the court applies that standard to the proffered testimony of the parties’ expert witnesses.
Under Rule 702,
“[i]f scientific, technical, or other specialized knowledge will- assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” -
Fed.R.Evid. 702.
See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (“[Rule 702]’ consists of three distinct but related require *943 ments: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion”); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (“There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy” (citations omitted)).
Before admitting expert testimony, the trial court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93 , 113 S.Ct. 2786 ; see also Ellis, 657 F.3d at 982 (“Under Daubert , the trial court must act as a ‘gatekeeper’ to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards by making a preliminary determination that the expert’s testimony is reliable”). In conducting this preliminary assessment, the trial court is vested with broad discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 142 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997); United States v. Espinosa, 827 F.2d 604, 611 (9th Cir.1987) (“The decision to admit expert testimony is committed to the discretion of the district court and will not be disturbed unless manifestly erroneous”).
“The party offering the expert bears the burden of establishing that Rule 702 is satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. CV 02-2258 JM (AJB), 2007 WL 935703 , *4 (S.D.Cal. Mar. 7, 2007) (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (in turn citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786 )); see also Walker v. Contra Costa County, No. C 03-3723 TEH, 2006 WL 3371438 , *1 (N.D.Cal. Nov. 21, 2006) (same, citing Bourjaily v. United States, 483 U.S. 171, 172 , 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987), and In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994)). 35
“In determining whether expert testimony is admissible under Rule 702, the district court must keep in mind [the rule’s] broad parameters of reliability, relevancy, and assistance to the trier of fact.” Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir.1998) (internal quotation marks omitted); see also Jinro Am. Inc. v. Secure Invests., Inc., 266 F.3d 993 , 1004 (9th Cir.2001) (“Rule 702 is applied consistent with the ‘liberal thrust’ of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony” (internal quotation marks omitted)). On a motion for class certification, it is not necessary that expert testimony resolve factual disputes going to the merits of plaintiffs claims; instead, the testimony must be relevant in assessing “whether there was a common pattern and practice that could affect the class as a whole.” Ellis, 657 F.3d at 983 .
a. Plaintiffs’ Expert Colin B. Weir
Colin Weir is plaintiffs’ economic expert. Weir is Vice President of Economics and Technology, Inc. (“ETI”), a research and consulting firm specializing in economics, statistics, regulation, and public policy. Weir has worked at the *944 firm for eleven years. 36 He holds an MBA from the High Technology program at Northeastern University, and a Bachelors of Arts- degree in Business Economics from the .College of Wooster. 37 Weir’s academic studies included work on hedonic regression analysis and conjoint analysis. 38 His work at ETI involves econometric and statistical analysis, multiple linear regression, statistical sampling, micro and macroeconomic modeling, and other types of economic analyses. 39 Weir has testified as an expert in federal and state courts, and before the Federal Communications Commission and state regulatory commissions. 40 He has also consulted on a variety of consumer and wholesale products cases, calculating damages related to household appliances, herbal remedies, HBC beauty products, food products, electronics, and computers. 41
Weir opines that:
“[I]t is possible to determine damages, with a reasonable degree of specificity, certainty, and accuracy, attributable to ConAgra’s conduct of placing the ’100% Natural’ claim on the label of every bottle of Wesson Oil by applying the scientifically valid economic methodology of hedonic regression to common, class-wide, aggregate historical retail price and attribute data for Wesson Oil and competing cooking oils to calculate a class wide Price Premium, and then multiplying that Price Premium by the total retail amounts all Class Members paid for Wesson Oil to yield total class-wide damages.” 42
He also opines that it is possible to determine damages attributable to ConAgra’s labeling of Wesson Oils as “100% Natural” through the use of a “conjoint analysis survey.” 43
In its August 1 order, the court struck Weir’s declaration because he failed to provide a reliable damages model for calculating classwide damages. The court stated:
“Here, unlike-the experts in Ralston [v. Mortg. Investors Grp., Inc., No. 08-536-JF (PSG), 2011 WL 6002640 , *9 (N.D.Cal. Nov. 30, 2011),] or Hemmings [v. Tidyman’s, Inc., 285 F.3d 1174 (9th Cir.2002) ], Weir does not provide a damages model that lacks certain, variables or functionality. Rather, he provides no damages model at all. Although the methodologies he describes may very well be capable of calculating damages in this action, Weir has made no showing that this is the case. He does not identify any variables he intends to build into the models, nor does he identify any data presently in his possession to which the models can be applied. The court is thus left with only Weir’s assurance that he can build a model to calculate damages. Stated differently, his declaration is ‘so incomplete as to be inadmissible as irrelevant.’ Hemmings, 285 F.3d at 1188 (quoting Bazemore [v. Friday 1, 478 U.S. [385,] 400 n. 10 [ 106 S.Ct. 3000 , 92 L.Ed.2d 315 (1986) ]). See Building Indus. Ass’n of Wash. v. Wash. State Bldg. Code Council, 683 F.3d 1144, 1154 (9th Cir.2012) *945 (district court did not abuse its discretion in rejecting the declaration of an expert who ‘offered unsupported assertions’ with ‘no data forming the basis for [the expert’s] assumptions or conclusions’); see id. (‘The party offering expert testimony has the burden of establishing its admissibility’). Accordingly, the court finds that Weir’s declaration does not satisfy the requirements of Rule 702. The court therefore grants ConAgra’s motion to strike Weir’s declaration, and will not consider his testimony in deciding the certification motion.” 44
ConAgra argues that Weir’s testimony continues to lack a reliable factual foundation and thus should be stricken by the court and not considered in deciding plaintiffs’ amended motion for class certification. 45 It maintains that Weir’s declaration is flawed in the same ways that his original declaration was defective. Specifically, ConAgra asserts that “Weir fails to identify any data in his possession to which the [hedonic regression] model can be applied or any variables that he intends to build into the model.” 46 ConAgra contends that Weir’s failure to identify the data that would form the basis for his regression analysis leaves the court with nothing but “assurances that are based on incomplete data, [that are] vague assertions regarding variables and likely, outcomes, and [that] are, ultimately false.” 47 The court does not agree.
As ConAgra notes, 48 the court previously rejected Weir’s original declaration and proposed regression methodology because he failed to identify, inter alia, the variables he intended to build into the models and the data he possessed to which the models could be applied. Weir’s declaration in support of plaintiffs’ amended class certification remedies these shortcomings.
Weir has prepared a preliminary regression model, in which the dependent variable of the proposed methodology being measured is the product’s price/price premium. 49 The model employs a number of independent variables as potential explanatory variables impacting price. 50 Weir states that his preliminary hedonic regression of the price of Wesson Oil products “analyze[s] twenty [] product attributes,” including the brand of oil, the “natural” claim at issue in this litigation, other product label claims, oil variety (e.g., canola, corn, blend, or vegetable), the size of the bottle of oil, promotional prices, and time period. 51
Weir used data from various spreadsheets and reports reflecting historical price, cost, profit and attribute information for Wesson Oils and competitor brands. 52 He obtained this data from twelve spreadsheets produced by ConAgra reflecting (1) internal data related to Wesson Oil products only, and (2) “scanner data” collected by market research companies such as Information Resources, Inc. (“IRI”) and Nielsen, which registers, in real time, price, quantity, and other information about products as they are being pur *946 chased by consumers. 53 Weir also received three spreadsheets directly from IRI, which reflect oil sales data from 2009 to mid-2014 on an national and state basis. 54 While Weir acknowledges that this is all the price, cost, and attribute data he has received at this point, the data “affirm[s] [his] understanding that more geographically and temporally specific” can be obtained, and can be used for “more refined regressions.” 55
ConAgra contends Weir has failed to show that the data required to perform a hedonic regression analysis exists or is obtainable; it asserts that the data it provided is not useful in performing the analysis, and becomes useful only after he has isolated the appropriate price premium. 56 It also argues that “Weir’s attribute-related data (1) is incomplete and does not accurately reflect the attributes of [the] products [he] chose[ ] for analysis ..., (2) does not control for historical label claims and label changes, and (3) does not control for other variables that have been shown to affect prices (e.g., geographic locations, sales channels, and retailers).” 57 As support for its assertion that Weir has not shown that he can calculate a price premium associated with 100% Natural claim, ConAgra cites the opinions of its expert, Keith R. Ugone, Ph.D. 58 Dr. Ugone concludes that Weir’s proposed methodology for calculating classwide damages is flawed in several respects; most notably, Ugone asserts' that Weir’s proposed regression analysis cannot isolate the price premium attributable to the purportedly unlawful and misleading conduct plaintiffs allege here, i.e., leading consumers to believe that Wesson Oils do not contain GMOs when, in fact, they do. 59 He also contends that Weir improperly calculates damages on a nationwide basis, rather than on a state-by-state basis consistent with the subclasses proposed for each state, and that Weir inappropriately performed an “expansion” of his data set in an attempt to reflect the number of transactions he believed took place. 60
The court is not persuaded that any of Ugone’s criticisms indicate that Weir’s methodology is unreliable or that he cannot offer an opinion in support of plaintiffs’ amended motion for class certification. As respects Ugone’^ criticism that the methodology does not satisfy the requirement articulated in Comcast Corp. v. Behrend, — U.S.-, 133 S.Ct. 1426 , 185 L.Ed.2d 515 (2013) — i.e., that damages be capable of measurement on a classwide basis — this does not affect the admissibility of Weir’s opinions. Admissibility turns on whether Weir’s methodology is sufficiently reliable; whether it satisfies Comcast and shows that a class should be certified is another question altogether — one which the court will address infra in conducting a Rule 23(b)(3) predominance analysis.
Ugone’s remaining criticisms are similarly unavailing. While it is true that a damages model likely will have to calculate the alleged price premium for smaller geographic areas since plaintiffs seek certification of eleven state subclasses, and, as *947 both Weir and Ugone recognize, prices vary from one state to another, Weir’s failure to perform a state-by-state regression analysis at the class certification stage does not compel the conclusion that his methodology is unreliable, and that his opinion should be stricken. Weir states that there is “more geographically and temporally specific information” available from IRI and Nielsen that he was not able to obtain prior to submitting his declaration in support of the certification motion. 61 He reports that the same preliminary regression analysis described in his declaration can be performed using more specific geographical and temporal data. While Ugone asserts that “significant price variation exists across geographic areas ... which could influence a price premium analysis ... 62 and that Weir may not “obtain[ ] the same claimed positive, significant [price premium] estimates [when he conducts a regression analysis on a statewide basis], 63 this suggests only that Weir’s testimony may not be helpful to plaintiffs, not that his methodology is unreliable. Thus, the fact that Weir has not yet conducted a hedonic regression analysis with respect to each of plaintiffs’ proposed state classes does not render his methodology unreliable, particularly given that he has identified the information he is attempting to obtain that will permit him to conduct such an analysis; that he has stated the state by state analysis will be conducted in the same manner as his nationwide analysis; and that he has explained why he is not in possession of the information needed to complete the analysis at this time. 64
ConAgra also asserts that Weir expanded the data set so that he could opine— erroneously — that his results are statistically significant when they are not. 65 In reply, however, Weir notes that economists regularly use data expansion when performing hedonic regression. 66 More importantly, Weir asserts that “expansion of the data and analytic weights will produce an identical coefficient in the regression,” i.e., the same coefficient used to measure the price premium attributable to the “100% Natural” claim. 67 Weir’s reply declaration assuages the concerns raised in Ugone’s reply declaration. The court therefore concludes that Weir’s expansion of the data set does not undercut the reliability of his methodology. To the extent the parties’ experts disagree on this point, the court concludes that the disagreements go to the weight of the results produced by Weir’s regression methodology, not to its reliability. See, e.g., Apple iPod iTunes Antitrust Litig., No. 05-CV-0037 YGR, 2014 WL 4809288 , *5-6 (N.D.Cal. Sept. 26, 2014) (“Finally, the Court rejects Apple’s argument that the analysis predicts a constant, immediate overcharge that Apple claims is not consistent with the notion of a gradual lock-in over time. Apple purports to demonstrate that Noll’s own admissions ‘are irreconcilable with the single, unchanging overcharge amount predicted -by his damages model.’ That argument ultimately is one of weight, not evidence of the unreliability of the regression analyses themselves”); Edwards v. National Milk Producers Federation; No. C 11-04766 JSW, 2014 WL 4643639 , *6 (N.D.Cal. Sept. 16, 2014) *948 (“Upon review of the evidence and Defendants’ arguments regarding Dr. Connor’s expert reports,- the Court finds that any failure to consider relevant factors goes to the weight of the evidence, as opposed to admissibility”). For all these reasons, the court concludes that Weir’s methodology is sufficiently reliable. 68 ConAgra’s motion to strike his declaration is therefore denied. 69
b. Plaintiffs’ Expert: Elizabeth Howlett, Ph.D.
ConAgra also moves to strike the expert declaration of Elizabeth Howlett, Ph.D. 70 Specifically, it to exclude: (1) Howlett’s opinions concerning the Kozup survey, as well as the underlying survey itself; 71 and (2) Howlett’s opinions related to her proposed conjoint analysis methodology. 72
(1) Kozup Survey
ConAgra first seeks to strike the Kozup survey, and Howlett’s opinions concerning it, asserting that it is unreliable and inadmissible, and does not provide a sufficient foundation upon which Howlett can base expert opinions. 73 ConAgra cites several admissions by Howlett during her deposition that it contends render the sur *949 vey, and her opinions, inadmissible: (1) Howlett admitted that the description of GMOs used in the Kozup survey “alarmed and confused survey respondents”; (2) she admitted that the survey sample was too small to provide accurate results for different states’ populations; and.(3) she admitted that the non-response rate was high and likely made the results unreliable. 74 Plaintiffs respond that any deficiencies in the survey affect its weight, not its admissibility. 75
The Ninth Circuit has held that typically “Challenges to survey methodology go to the weight given the survey, not its admissibility.” Wendt v. Host Int’l, Inc., 125 F.3d 806 , 814 (9th Cir.1997). See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 , 1143 n. 8 (9th Cir.1997) (“However, ‘as long as they are conducted according to accepted principles,’ survey evidence should ordinarily be found sufficiently reliable under Daubert . Unlike novel scientific theories, a jury should be able to determine whether asserted technical deficiencies undermine a survey’s probative value,” quoting Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280 , 1292 (9th Cir.1992)); id. at 1143 (the fact that a survey that was conducted only in the southern portion of the state and asked leading questions went to the weight of the evidence, not the admissibility of the survey); see also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir.2001) (“Treatment of surveys is a two-step process. First, is the survey admissible? That is, is there a proper foundation for admissibility, and is it relevant and conducted according to accepted principles? This threshold question may be determined by the judge. Once the survey is admitted, however, follow-on issues of methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility. These are issues for a jury or, in a bench trial, the judge”); Alcantar v. Hobart Serv., No. ED CV 11-1600 PSG (SPx), 2013 WL 156530 , *4 (C.D.Cal. Jan. 15, 2013) (“[A]ny problems with the response rate affect the weight, and not the admissibility of the study”); Microsoft Corp. v. Motorola Inc., 904 F.Supp.2d 1109, 1120 (W.D.Wash.2012) (criticisms of a conjoint analysis concerned “issues of methodology, survey design, reliability, and critique of conclusions, and therefore [went] to the weight of the survey rather than admissibility”); Harris v. Vector Marketing Corp., 753 F.Supp.2d 996, 1001-02 (N.D.Cal.2010) (“[Plaintiff] criticizes the content of the survey conducted and prepared by [defendant’s expert] as well as the response rate to the survey. The problem for [Plaintiff] is that, as she herself admits in her brief, even challenges to defects in methodology normally affect the weight to be accorded the survey and not its admissibility”); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F.Supp. 1283, 1296 (N.D.Cal.1991) (holding that the alleged under-inclusiveness of a survey in a copyright infringement action affected “the weight of the survey, not its admissibility”), aff'd, 964 F.2d 965 (9th Cir.1992), cert. denied, 507 U.S. 985 , 113 S.Ct. 1582 , 123 L.Ed.2d 149 (1993).
Recognizing that most challenges to a survey such as Kozup’s go to its weight rather than its admissibility, ConAgra maintains that Howlett’s admissions show that the underlying methodology used to conduct the survey is flawed and unreliable, and that it thus does not satisfy Dau-bert. *950 76 The court agrees. The Ninth Circuit has held that before a survey can be admitted • it must: (1) be “conducted according to accepted principles”; and (2) be “relevant” to the issues in the case. Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., 618 F.3d 1025, 1036 (9th Cir.2010); see also Citizens Fin. Group, Inc. v. Citizens Nat’l Bank, 383 F.3d 110 , 121 (3d Cir.2004) (excluding survey results because the “methodology was fundamentally flawed,” and rejecting a contention that flawed methodology went to the weight, rather than the admissibility, of the survey).
Howlett did not participate in designing or administering the Kozup survey. 77 She asserts, in conclusory fashion, however, that the “[sjurvey adheres to the guidelines and procedures [in the Reference Guide on Survey Research published by the American Bar Foundation] in order to ensure that this research can help inform the [c]ourt about important consumer beliefs and behaviors with regards to the 100% Natural’ claim on the labels of Wesson Oils.” 78 Howlett provides no specifics as to why she reached this conclusion regarding the survey’s design and administration and does not respond substantively to ConAgra’s critiques of the survey methodology.
ConAgra charges that the language the survey uses to describe GMOs — e.g., “bacteria,” “virus,” or “toxic to certain insects” 79 — may have alarmed and confused survey respondents, skewing the results. The court is not convinced, as ConAgra argues, that Daubert compels the use of definitions provided by the FDA or the USDA to ensure reliability. ConAgra cites the fact that 51 percent of respondents responded incorrectly to a “manipulation” question after reviewing this description of the GMO process, however; the manipulation question was designed to ensure that survey respondents understood the definition of the GMO process. Despite Howlett’s assertion that the survey’s description of the GMO process is accurate based on her work as an FDA consultant, 80 she concedes that the-manipulation question indicates some misunderstanding among the survey respondents. 81 *951 Given this fact, and the fact that she did not participate in designing or administering the survey, the court cannot credit her conclusory assertion that the methodology of the survey is reliable.
ConAgra also argues that the survey’s sample size is too small to provide valid and reliable evidence about the studied population. Courts regularly find that concerns that a survey’s sample size is too small or unrepresentative do not preclude its admission, but go to the weight to be accorded the survey results. See South-land Sod Farms, 108 F.3d at 1143 n. 8 (“However, ‘as long as they are conducted according to accepted principles,’ survey evidence should ordinarily be found sufficiently reliable under Daubert . Unlike novel scientific theories, a jury should be able to determine whether asserted technical deficiencies undermine a survey’s probative value,” quoting Gallo Winery, 967 F.2d at 1292); id. at 1143 (the fact that a survey was conducted only in the southern portion of the state and that it asked leading questions went to the weight of the evidence, not the admissibility of the survey); Lewis Galoob Toys, Inc., 780 F.Supp. at 1296 (holding that the alleged under-inclusiveness of a survey in a copyright infringement action affected “the weight of the survey, not its admissibility”). Courts generally reach this conclusion once they are satisfied that the survey has been “conducted according to accepted principles,” however. Fortune Dynamic, Inc., 618 F.3d at 1036 . Howlett concedes that she does not know the sampling method used in the Kozup survey, and additionally that the sample does not approximate the relevant characteristics of the population being surveyed. 82
Howlett further acknowledges that the non-responsive rate on the Kozup survey was 95%, which is even higher than the 92% non-responsive rate that formed the basis for his opinion that the Hanssen survey was unreliable. 83 Although the court previously noted that a survey’s non-responsive rate generally goes to the weight of the results rather than their admissibility, 84 given Howlett’s inability to validate that the survey was reliably designed and administered, such concerns reasonably suggest that the survey’s methodology may be flawed.
Finally, ConAgra notes that 53 of the survey respondents failed an “attention check” question designed to ensure the validity of the results. 85 Howlett testified that the responses of individuals who failed the “attention check” question should have been excluded from the survey; she was unsure, however, whether they had been. 86
In sum, Howlett’s testimony demonstrates that she is not sufficiently familiar with the methodology used to design and *952 administer the survey to opine that it was “conducted according to accepted principles” and reliable. See In re TMI Litigation Cases Consolidated II, 922 F.Supp. 1038, 1046-48 (M.D.Pa.1996) (excluding as unreliable an epidemiological analysis in which the epidemiologist did not include a description of study design and at his deposition acknowledged that he had not participated in conducting the study). 87
(2) Conjoint Analysis
ConAgra next seeks to exclude Howlett’s opinions on the basis that she is not qualified to offer testimony concerning the conjoint analysis she states can be used to calculate damages. 88 ConAgra contends that Howlett lacks relevant training and experience to opine on conjoint analysis. 89 It notes that Howlett has published only one peer-reviewed article concerning conjoint analysis, which appeared in the 1990’s. It asserts she has never been qualified by any court to testify as an expert on conjoint analysis, has never performed a conjoint analysis to determine or assign a price premium for a particular feature of a product, and is not aware of any conjoint analysis that has been used to estimate a fair price premium. 90
*953 In the Ninth Circuit, an expert may be qualified to offer a particular opinion either as a result of practical training or academic experience. Thomas v. Newton Int'l Enterprises, 42 F.3d 1266, 1269 (9th Cir.1994) (“[T]he advisory committee notes emphasize that Rule 702 is broadly phrased and intended to embrace more than a narrow definition of qualified expert”); Rogers v. Raymark Industries, Inc., 922 F.2d 1426, 1429 (9th Cir.1991) (“A witness can qualify as an expert through practical experience in a particular field, not just through academic training”). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999) (“[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience”).
“The threshold for qualification is low for.purposes of admissibility; mini-, mal foundation of knowledge, skill, and experience suffices.” PixArt Imaging, Inc. v. Avago Tech. Gen. IP (Singapore) Pte. Ltd., No. C 10-00544 JW, 2011 WL 5417090 , *4 (N.D.Cal. Oct. 27, 2011). Prior experience need not consist of prior expert testimony on the same issue. See Matuez v. Lewis, No. CV 11-7411-JVS (JPR), 2012 WL 3582122 , *8 (C.D.Cal. May 9, 2012), report and recommendation adopted, 2012 WL 3582629 (C.D.Cal. Aug. 20, 2012) (“If witnesses could not testify for the first time as experts, we would have no experts”).
Howlett’s academic training and practical experience qualify her to testify to the calculation of damages using a conjoint analysis. She holds a Ph.D. from Duke University in Marketing, with a focus on Behavioral Decision Research and Theory; her coursework involved conjoint analysis. 91 Howlett has also taught conjoint analysis extensively at the undergraduate and graduate levels, and has conducted more than thirty studies using conjoint analysis. 92 She serves on the editorial review board of the Journal of Consumer Affairs and the Journal of Public Policy & Marketing, both of which extensively cover conjoint analysis techniques. Finally, she has been retained as an expert on conjoint analysis in two cases in this district — For cellati v. Hyland’s, Inc., CV 12-1983 GHK (MRWx), and Fagan v. Neutrogena Corp., CV 13-01316 SVW (OPx). 93 Her combination of educational training and professional experience suffices to qualify her under Rule 702.
ConAgra next argues that Howlett’s testimony lacks a rehable factual foundation because she “has [not previously] combined the results of a hedonic regression analysis and a conjoint analysis ..., and 'is unaware” that “anyone else in any peer-reviewed article ... has ever [done so] ... to assign a price premium to a sub-feature.” 94 ConAgra contends Howlett’s conjoint analysis is unreliable because: (1) she admits that “hedonic regression is ‘over her head,’ ” but accepts Weir’s analysis without question; (2) she identifies only six attributes to include in the conjoint analysis, but does not explain how she selected these six; and (3) she proposes a novel and unsupported method of conducting a conjoint analysis. 95
*954 Plaintiffs counter that ConAgra’s criticisms of Howlett’s proposed conjoint analysis go to the weight, but not the admissibility, of her opinions. 96 They assert that ConAgra’s criticism of Weir’s hedonic regression analysis does not impact Howlett’s methodology because conjoint analysis occurs independent of hedonic regression; Howlett’s conjoint analysis assesses the percentage of the “100% Natural” claim that is attributable to the absence of GMOs as opposed to other “non-natural” aspects of the Wesson Oils. This percentage can then be multiplied against the price premium associated with the “100% Natural” calculated by Weir. 97 Plaintiffs also dispute ConAgra’s claim that Howlett has not fully designed the proposed conjoint analysis, noting that she describes at length the procedures and rationale supporting her methodology. 98
ConAgra’s arguments are unavailing. As an initial matter, the court has rejected ConAgra’s challenges to Weir’s methodology. More fundamentally, as plaintiffs note, Howlett’s conjoint analysis will be used to .calculate a percentage of the price premium attributable to the “100% Natural” label that reflects consumers’ belief it means the product contains no GMOs. 99 Even if Weir’s methodology were unreliable, this would not make Howlett’s methodology unreliable as well; at most, it would affect the accuracy of the damages calculation reached by combining the results of hedonic regression and conjoint analysis. • Contrary to ConAgra’s suggestion, moreover, Howlett does explain why she chose to limit her analysis to six attributes and why she chose the attributes she did. 100 Finally, the fact that conjoint analysis has not been used to isolate the exact attribute for which Howlett uses it here does not automatically render her methodology and conclusions unreliable. It is Howlett’s experience with conjoint analysis and the details of her proposed methodology that determine reliability. Having considered these factors, the court concludes that Howlett’s thorough explanation of her methodology and her background in performing similar conjoint analyses, suffice to satisfy Daubert and Rule 702. Accordingly, ConAgra’s motion to strike Howlett’s testimony concerning her conjoint analysis is denied.
2. Evidentiary Objections to the Reply Declarations of Plaintiffs’ Experts
Plaintiffs submitted reply declarations from their experts Weir, Howlett, Ben-brook, and Kozup in response to ConA-gra’s opposition to plaintiffs’ amended certification motion and ConAgra’s motion to strike. 101 ConAgra contends each declaration contains improper new evidence, argument, and opinion raised for the first time in reply and should not be considered by the court. 102
*955 In general, a court will not consider evidence submitted for the first time in reply without giving the opposing party an opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.1996) (the district court should not consider new evidence presented in a reply without giving the non-movant an opportunity to respond); see Green v. Baca, 219 F.R.D. 485 , 487 n. 1 (C.D.Cal.2003) (exercising discretion to consider evidence presented in reply but affording plaintiff an opportunity to depose a key declarant). Evidence submitted in direct response to evidence raised in the opposition, however, is not “new.” Edwards v. Toys “R” Us, 527 F.Supp.2d 1197 , 1205 n. 31 (C.D.Cal.2007) (“Evidence is not ‘new,’ however, if it is submitted in direct response to proof adduced in opposition to a motion”); see Terrell v. Contra Costa County, 232 Fed.Appx. 626 , 629 n. 2 (9th Cir.2007) (Unpub. Disp.) (evidence adduced in reply was not new where “[t]he Reply Brief addressed the same set' of facts supplied in Terrell’s opposition to the motion but provides the full context to Terrell’s selected recitation of the facts”).
a. Weir Reply Declaration
ConAgra seeks to strike paragraphs 2-8, 10-11, 13-60, and 64-72 of Weir’s reply declaration because “Weir goes far beyond his original opinions, attempting to lend support to Dr. Howlett’s methods.” 103 The court cannot agree with ConAgra’s contention that each paragraph identified in the reply supporting their motion to strike and in their evidentiary objections 104 constitutes “new evidence” or opinions not directly responsive to the arguments in ConAgra’s opposition. Paragraphs 2 through 8 provide a summary of Dr. Ugone’s criticisms of Weir’s amended declaration and his regression methodology, and Weir’s responses to each. 105 The information in these paragraphs is directly responsive to Dr. Ugone’s critique and ConAgra’s arguments and is thus properly submitted in reply. 106
Similarly, paragraphs 10 and 11 of the Weir reply declaration do not offer new evidence or opinion; rather, they reiterate Weir’s “opinion that, if Plaintiffs are correct as to their theory of liability — that it was a violation of law for ConAgra to have placed the T00% Natural’ claim on the label of each bottle of Wesson Oil — then the total (i.e. Class-wide) economic harm suffered by Plaintiffs and all other members of the proposed Class is the amount of additional money they paid for Wesson Oil because of the presence of the ‘100% Natural’ claim on the -label of every bottle *956 of Wesson Oil they purchased.” 107 Because this is not new argument or opinion, and is directly responsive to ConAgra’s opposition, the court declines to strike paragraphs 10 and 11 of Weir’s reply declaration.
The court also finds unpersuasive ConA-gra’s assertion that paragraphs 13 through 49 of Weir’s reply declaration should be stricken. The information in these paragraphs is directly responsive to Dr. Ugone’s criticisms of Weir’s hedonic regression analysis — indeed, as can be seen from the headings Weir uses, 108 his reply declaration is structured to respond to each criticism Ugone makes. The court thus declines to strike the paragraphs.
The remaining portions of the Weir reply declaration that ConAgra seeks to strike — paragraphs 50-60 and 64-72 — are a closer question. As ConAgra notes, Weir proffers opinions concerning the reliability of Howlett’s conjoint analysis, and thus does more than respond to ConA-gra’s criticism of his methodology and opinions. As the court noted in the first class certification order, however, and as ConAgra is aware, Weir was designated as an expert both with respect to hedonic .regression analysis and conjoint analysis. 109 Because Weir offers opinions concerning the reliability of Howlett’s conjoint analysis that respond directly to ConAgra’s criticisms of her methodology, his reply declaration is appropriate. Con-Agra cites no authority indicating that an expert who has been designated to testify on a subject cannot file a reply declaration responding to the opposing party’s criticism of a second expert’s opinions on that subject. Accordingly, the' court declines to strike the remaining paragraphs of Weir’s reply declaration because they do not constitute “new evidence,” and respond directly to evidence proffered by ConAgra in its opposition. See Edwards v. Toys ‘R’ Us, 527 F.Supp.2d 1197 , 1205 n. 31 (C.D.Cal.2007) (“Evidence is not ‘new,’ however if it is submitted in direct response to proof adduced in opposition to a motion”); see also Terrell v. Contra Costa County, 232 Fed.Appx. 626 , 629 n. 2 (9th Cir.2007) (Unpub. Disp.) (holding that evidence adduced in reply was not new where “[t]he Reply Brief addressed the same set of facts supplied in Terrell’s opposition to the motion but provides the full context to Terrell’s selected recitation of the facts”).
*957 b.Howlett Reply Declaration
ConAgra next argues that the court should strike paragraphs 5-70 of Howlett’s reply declaration because in those paragraphs, she offers opinions based on her “post-deposition review” of the Kozup survey, as well as new opinions derived from conversations she had with Dr. Kozup about the survey. 110 It asserts that the new evidence would be prejudicial because it will be unable to respond substantively to the information. The court cannot agree. As an initial matter, the opinions in Howlett’s reply declaration respond directly to ConAgra’s criticisms of Kozup’s survey in its motion to strike. More fundamentally, plaintiffs do not rely on the declaration as support for their amended certification motion. Rather, it is apparent that Howlett offers the declaration solely in opposition to ConAgra’s motion to strike her original declaration. Accordingly, the new “evidence” and “opinions” are not offered in “reply,” but rather in opposition to the motion to strike. ConAgra had adequate opportunity to respond substantively to the declaration in its reply supporting the motion to strike; it could, had it wanted, proffered additional evidence that responded directly to the opinions offered in Howlett’s declaration. Accordingly, the court concludes that Howlett’s reply declaration is not new evidence offered for the first time in reply, and denies ConAgra’s request to strike paragraphs 5-70 of the declaration. 111
c.Benbrook Reply Declaration
ConAgra next argues that Dr. Ben-brook should not be permitted to explain his definition of genetically modified, food products — which was included in the Kozup survey — because Howlett, who initially presented the survey, was unable to explain why such an “inflammatory description” was used. 112 The court is not persuaded that Benbrook’s declaration constitutes “new evidence.” Ben-brook’s opinion responds directly to Con-Agra’s attack on the definitional language in its opposition and its citation of How-lett’s testimony concerning the biased nature of the word choice. 113 Accordingly, ConAgra’s request that Benbrook’s reply declaration be stricken is denied.
d.Kozup Reply Declaration
Finally, ConAgra contends that Dr. Kozup’s reply declaration should be stricken in its entirety because, at no time during the pendency of the litigation have plaintiffs designated Kozup as an expert witness. 114 As a result, ConAgra contends, it has not had an opportunity to depose *958 Kozup or otherwise test the veracity of his statements. 115 Plaintiffs respond that ConAgra cannot claim prejudice because it “knew of Dr. Kozup’s involvement since at least June 30, and it could have noticed his deposition at any time but did not.” 116
The purpose of the disclosure requirements of Rule 26 is to avoid surprise and allow each party to prepare to cross-examine those experts the opponent has indicated will be called at trial. See Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (Fed.Cir.2013) (“The purpose of the expert disclosure rule is to ‘provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses,’ ” quoting Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir.2008)). Here, the court issued a modified scheduling order that addressed, inter alia, the filing of an amended motion for class certification and set specific dates by which plaintiffs and defendant had to make ex-' pert witnesses on whom they intended to rely in connection with the amended motion available for deposition. 117 Plaintiffs did not submit Dr. Kozup’s declaration in support of their original class certification motion; rather, they proffered Howlett’s testimony to offer opinions concerning the survey. Nor did plaintiffs indicate, at any prior to the filing of his declaration in support of their reply, that they intended to rely on Dr. Kozup’s testimony in connection with the amended motion. Given this history, ConAgra could not reasonably have been expected to intuit that plaintiffs intended to offer Kozup’s testimony in reply to its opposition to the amended motion.
Because ConAgra had no notice that plaintiffs intended to rely on Dr. Kozup as an expert "witness and thus no opportunity to depose him or otherwise test the veracity of his statements and opinions, Kozup’s expert declaration, filed for the first time with plaintiffs’ reply, is untimely. Thus, the court strikes the Kozup declaration in its entirety and will not consider it in deciding the amended certification motion. 118 See Provenz, 102 F.3d at 1483 .
*959 3. Evidentiary Objections to the Testimony of Named Plaintiffs
In support of their amended motion for class certification, plaintiffs submitted the declarations of: (1) Robert Briseno; (2) Jill Crouch; (3) Julie Palmer; (4) Pauline Michael; (5) Dee Hopper-Kercheval; (6) Kelly McFadden; (7) Maureen Towey; (8) Rona Johnston; and (9) Anita Willman. 119 With the exception of Michael, each plaintiff asserts, inter alia, that he or she would be “very interested” in buying Wesson Oils labeled “100% Natural” if they did not contain GMOs; 120 each plaintiff alternatively states that he or she “might consider” 121 or “will consider” 122 purchasing Wesson Oils in the future if they continue to contain GMOs and ConAgra stops labeling them “100% Natural.” ConAgra contends that the declarations “strain credulity past the breaking point and should be disregarded by this Court as ‘shams’ because they are demonstrably attorney-drafted, preprinted forms, placed in front of complicit witnesses and signed without any serious thought by those witnesses as to the truth of the matter asserted, and contrary to all of their prior averments and/or testimony.” 123
a. Whether the Declarations Should Be Stricken Because They Were Not Prepared by the Declarant
As an initial matter, ConAgra contends that the court should strike the declarations because they are “shams” — drafted by someone other than the declarants and signed by the declarants “without any serious thought ... as to the truth of the matter asserted.” 124 As ConAgra and its attorneys well know, most declarations submitted in connection with civil litigation in state and federal courts are prepared by attorneys for clients and witnesses, and thereafter executed by the clients and/or witnesses under penalty of perjury. If the declaration a lawyer has prepared is incorrect or inconsistent with the declarant’s recollection or beliefs, the declarant can refuse to sign the document that has been *960 prepared. See Kuntz v. Sea Eagle Diving Adventures Corp., 199 F.R.D. 665, 669 (D.Haw.2001) (“The court is at a loss to understand Kuntz’s argument that the Declarations Procedure forces his attorneys to ‘create’ evidence by requiring them to decide what to include and what to omit from a declaration. Attorneys consider exactly the same issues in deciding what to say and what not to say during Uve testimony. Presumably counsel who questions a live witness is well aware from discovery what counsel may justifiably expect the witness to say. Counsel has the same background with the witness when drafting a declaration. With both live testimony and a declaration, a witness may refuse to state what counsel anticipates. The ethics of the situation simply do not change depending on the medium”). 125 The court therefore denies ConAgra’s motion to strike the named plaintiffs’ declarations on the basis that they were attorney-drafted and signed “without serious thought” by the declarants.
b. Whether the Declarations Should Be Stricken Under the “Sham Affidavit” Rule
ConAgra next asserts that the named plaintiffs’ declarations conflict with their theory of the case, and with their prior discovery responses and deposition testimony. In their responses and at their depositions, plaintiffs indicated that they no longer purchased Wesson Oils after learning that they contained GMOs. The declarations they filed in support of the amended certification motion state, however, that they would consider purchasing the products even if they contained GMOs so long as ConAgra were required to remove the “100% Natural” label. 126 Plaintiffs counter that the affidavits are not “shams,” but provide context for their pri- or responses and clarify them. 127
Under the “sham affidavit rule,” which is most often invoked in the context of a motion for summary judgment, “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Van Asdale v. International Game Technology, 577 F.3d 989, 998 (9th Cir.2009) (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991)); see Agricola Baja Best, S. De. R.L. de C.V. v. Harris Moran Seed Co., 44 F.Supp.3d 974, 984 , 2014 WL 4385450 , *6 (S.D.Cal.2014) (“Harris Moran argues that Baja Best’s experts’ declarations are inadmissible because the declarations contradict prior deposition testimony. Under the sham affidavit rule, ‘a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony,’ ” citing Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.2012) (in turn quoting Van Asdale, 577 F.3d at 998 )); Pacific Ins. Co. v. Kent, 120 F.Supp.2d 1205, 1213 (C.D.Cal.2000) (“Kent points to his later deposition testimony as proof of a genuine issue of fact concerning his ownership experience. But, the ‘general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony,’ ” citing Kennedy, 952 F.2d at 266 ). Where a declaration appears to contradict an earlier declaration or deposition testimony, the court must make a factual determination *961 as to whether the declaration is an attempt to create a “sham” issue of fact. Kennedy, 952 F.2d at 267 .
An affidavit is not a sham if: (1) it “merely elaborates] upon, explain[s] or clarifies] prior testimony,” Messick v. Horizon Industries, Inc., 62 F.3d 1227, 1281 (9th Cir.1995); (2) if “the witness was confused at that time of the earlier testimony and provides an explanation for the confusion,” Kent, 120 F.Supp.2d at 1213 (citing Kennedy, 952 F.2d at 266 ); or (3) if the declaration concerns newly discovered evidence, id. See Agricola, 44 F.Supp.3d at 984 , 2014 WL 4385450 at *6 (“To ensure appropriate application of the rule, the Ninth Circuit imposes two limitations. First, the Court must ‘make a factual determination that the contradiction [is] actually a sham.’ This limitation is intended to ensure the Court ‘does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony.’ Second, ‘the inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous.’ A declaration that ‘elaborates upon, explains, or clarifies prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy [or] a mistake ... afford no basis for excluding an opposition affidavit’ ” (citations omitted)).
A court should apply the sham affidavit rule “with caution,” Van Asdale, 577 F.3d at 998 , and only in situations where “the inconsistency between a party’s deposition testimony and subsequent affidavit [is] clear and unambiguous,” id. See also Agricola, 44 F.Supp.3d at 984 , 2014 WL 4385450 at *6 (“[I]nvoking the rule too aggressively may ‘ensnare parties who may have simply been confused during their deposition testimony and may encourage gamesmanship by opposing attorneys,’” citing Van Asdale, 577 F.3d at 998 ).
(1) Whether the Court Should Strike Plaintiffs’ Declarations Because They Conflict With the Second Amended Complaint and Plaintiffs’ Discovery Responses
ConAgra first asserts that the declarations must be stricken because they are “inconsistent with [plaintiffs’ theory of the case and discovery responses.” 128 It cites allegations in the second amended complaint pleading that plaintiffs were harmed because they were “induced” to “consume a product with a GMO,” and that they would not have purchased Wesson Oil “but for” the “Í00% Natural” label and a belief that it did not contain GMOs. 129 Con-Agra also cites interrogatory responses submitted by plaintiffs Johnston, McFadden, Kerchaval, and Willman, which state that “since becoming aware of GMOs in Wesson cooking oils, .. - [they have] not purchased any Wesson cooking oils.” 130
The court cannot conclude that the declarations are shams on the basis that they conflict with plaintiffs’ “theory of the case.” While the declarations may negatively affect plaintiffs’ ability to prove materiality, causation, and/or reliance, this does not compel the conclusion that they are false or directly contradictory of prior testimony.
ConAgra’s assertion that the declarations conflict with plaintiffs’ interrogatory responses has more force. Ultimately, *962 however, the court does not believe it is appropriate to strike the declarations on this basis. ConAgra maintains that plaintiffs’ statements that they “might” or “will consider” purchasing Wesson Oils that contain GMOs if the “100% Natural” label is removed directly conflict with their interrogatory responses. The court discerns no “direct conflict,” however. Johnston, McFadden, Kerchaval, and Willman stated in their interrogatory responses that they “have not purchased any Wesson cooking oils” since learning that the products contained GMOs. 131 The responses concern each plaintiffs present purchasing practices. In contrast, their declarations reference potential future purchasing practices. 132
While ConAgra may contend that plaintiffs’ possible willingness to purchase Wesson Oils in the future is not sufficiently definite to give them standing to represent an injunctive relief class under Rule 23(b)(2), that is a question that must resolved in deciding whether to certify a class. It is not a basis for striking the declarations. The declarations can only be stricken if they clearly and unambiguously contradict syrorn statements made earlier in this litigation. Because plaintiffs’ interrogatory responses do not address whether they would purchase Wesson Oils in the future, the court cannot conclude that their declarations are “shams.” Rather, they appear to “merely elaborate] upon ... prior testimony.” Messick, 62 F.3d at 1231 .
(2) Whether the Court Should Strike Briseno’s, Crouch’s, and Towey’s Declarations Because They Conflict With Prior Deposition Testimony
(a) Robert Briseno
ConAgra next contends that the declarations of plaintiffs Briseno, Crouch, and Towey contradict their prior deposition testimony. ConAgra cites Briseno’s testimony that he tries to avoid ingesting GMOs and tries to ensure that his family does not as well. 133 ConAgra also cites Briseno’s answer to a question concerning his willingness to purchase Wesson Oil:
“Q. If Wesson Oil was priced at a lower price point today, would you buy it?
A. No.
Q. Why not?
A. I feel that, you know, Wesson Oil had — they built up a certain trust and loyalty within me. I wouldn’t use other products that I feel the same way about. I wouldn’t do business with someone who lied to me, and I feel the same way about Wesson.” 134
Plaintiffs counter that Briseno’s declaration does not directly contradict his deposition testimony because he testified that on the day of his deposition he was not interested in purchasing Wesson Oils, but said nothing that foreclosed the possibility he might at some point consider purchasing the products in the future. 135 While, on the surface, Briseno’s testimony that he would not purchase Wesson Oil products again, even if offered at a lower price point, appears to conflict directly with the *963 statement in his declaration that he would consider purchasing Wesson Oils in the future if the “100% Natural” label were removed, his declaration offers an explanation for the apparent facial conflict. Brise-no states that he testified at deposition that he would not purchase Wesson Oils even at a lower price because he felt that he had been misled by ConAgra regarding the presence of GMOs in its products. 136 He notes that if the labeling were corrected, he might consider purchasing Wesson Oils, presumably because ConAgra would no longer be misrepresenting the nature of the product. While close, the court cannot find that the declaration directly contradicts Briseno’s deposition testimony; rather it “clarif[ies] [that] prior testimony” by showing that his willingness to purchase Wesson Oils turns primarily on his view of the accuracy of ConAgra’s product claims.
Moreover, the fact Briseno states that he would consider purchasing Wesson Oils in the future even if they contained GMOs does not contradict his prior deposition testimony that he “tr[ies] to avoid” products with GMOs when similar products without GMOs are available. 137 Indeed, rather than contradicting this testimony, Briseno’s declaration merely elaborates on his deposition answer; he explains that he takes many factors into account in deciding which foods to purchase. Only one of these, he asserts, is whether the food contains GMOs; as a result, his “preference to avoid GMOs [is] not always absolute.” 138
For all of these reasons, the court cannot find that Briseno’s declaration is a sham. Van Asdale, 577 F.3d at 998 (stating that the sham affidavit rule can be invoked only if “the inconsistency between a party’s deposition testimony and subsequent affidavit ... [is] clear and unambiguous”); see School District No. 1J v. ACandS, Inc., 5 F.3d 1255 , 1264 (9th Cir.1993) (stating that the sham affidavit rule “should be applied with caution”); King v. ADT Sec. Services, Civil No. 06-0519-WS-C, 2007 WL 2713212 , *3 (S.D.Ala. Sept. 17, 2007) (“There being nothing more than a possible inconsistency, and certainly much less than an inherent inconsistency, between [a declaration and deposition testimony], the sham affidavit rule has no application”); see also Brown v. Showboat Atlantic City Propco, LLC, No. 08-5145(NLH), 2010 WL 5237855 , * 4 (D.N.J. Dec. 16, 2010) (“An inherent requirement of a sham affidavit is that the affiant’s statement must contradict deposition testi *964 mony. Statements in an affidavit that ‘merely ... conflicts to some degree with . an earlier deposition’ cannot be disregarded as shams.... Courts do not declare these affidavits shams because they do not flatly contradict deposition testimony and, therefore, a reasonable jury may find the affidavit credible and conclude that any discrepancy is inadvertentf,]” citing Baer v. Chase, 392 F.3d 609, 625 (3d Cir.2004)).
(b) Jill Crouch
ConAgra charges that Jill Crouch also submitted a sham affidavit that “directly contradicts] [her] sworn deposition testimony” in an effort to cure the deficiencies noted in the court’s first class certification order regarding the standing requirements for a Rule 23(b)(2) injunctive relief class. 139 It cites Crouch’s deposition testimony that at the time of the deposition, she would not purchase Wesson Oils, even at a lower price point, because she felt deceived by ConAgra:
“Q. Would you buy Wesson oil today if it were at a lower price point?
A. I don’t think so.
Q. Would you buy Wesson oil today if it changed its label but the contents were the same?
A. I don’t know.” 140
ConAgra also cites various statements Crouch made at her deposition suggesting that “she opposed the use of GMOs categorically” because “[she] do[esn’t] know what the outcome is going- to be for human beings.” 141
Crouch’s statement in her declaration that if ConAgra removed the “100% Natural” label, she “might consider buying Wesson Oil in the future depending on the price and the other products conveniently available” does not directly contradict her deposition testimony that she did not know whether she would purchase Wesson Oil “if it changed its label but the contents were the same.” Crouch’s declaration “elaborates” on prior ambiguous testimony. A statement that she might consider purchasing in the future does not directly conflict with her testimony that she did not know one way or the. other whether she would be willing to purchase the products. Rather, it represents an evolution of her thinking on the subject, and cannot reasonably be considered a “sham.” Crouch’s testimony that she finds GMOs and the genetic modification of food products objectionable similarly does not conflict directly with the statements in her declaration. There is nothing “inherently inconsistent” or irreconcilable about an in: dividual’s preference for a certain type of food product, i.e., one that is not genetically modified, and the fact that the individual might purchase that type of product de *965 pending on the type and price of products conveniently available. See King, 2007 WL 2713212 at *3. Accordingly, the court declines to strike Crouch’s declaration in support of the amended motion for class certification.
(c) Maureen Towey
ConAgra argues finally that Maureen Towey’s deposition testimony directly conflicts with statements in her declaration. 142 ConAgra cites several excerpts from Tow-ey’s deposition in which she stated that she does not purchase canola oil because it contains GMOs and that she typically does not purchase food products that she knows have been genetically modified. 143 ConA-gra contends that the statement in her declaration that, if they were no longer labeled “100% Natural,” she “might consider buying Wesson Oils depending on the price and the other products conveniently available” directly contradicts Towey’s testimony that she does not purchase products that she knows contain GMOs. 144 Plaintiffs counter that Towey’s declaration is consistent with and elaborates on her deposition answer. They note she states that while she “tr[ies] to avoid products made from GMO ingredients,” she realizes that it would be “extremely difficult ... to avoid GMO ingredients completely,” and thus she would consider purchasing Wesson Oils, even if they contained GMOs, if ConAgra removed the “100% Natural” label. 145
Whether Towey’s declaration directly contradicts her prior deposition testimony is a close question. Her deposition testimony was relatively absolute — “if I know that it’s GMO, I don’t buy it.” Nonetheless, the court concludes that the better view of her declaration is that it clarifies her deposition answers. Towey clarifies that she “realizes that it would be extremely difficult ... to avoid GMO ingredients entirely,” and that her purchasing decisions necessarily depend on “price and the products conveniently available.” 146 The court therefore declines to strike Tow-ey’s declaration as a sham.
4. Conclusion Regarding ConAgra’s Motion to Strike
For the reasons stated, the court denies ConAgra’s motion to strike Weir’s amended declaration and Howlett’s amended declaration. The court also denies Con-Agra’s motion to strike the supplemental declarations of the named plaintiffs. 147
*966 B. Plaintiffs’ Amended Motion for Class Certification
1. Legal Standard Governing Class Certification
A district court may certify a class only if:
“(1) the class is so numerous that join-der of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”
Fed.R.Civ.Pboc. 23(a).
In addition, a district court must also find that at least one of the several conditions set forth in Rule 23(b) is met. “Rule 23(b)(1) allows a class to be maintained where ‘prosecuting separate actions by or against individual class members would create a risk of either ‘(A) inconsistent or varying adjudications,’ or ‘(B) adjudications ... that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede[] their ability to protect their interests.’ ” Dukes, 131 S.Ct. at 2549 n. 2.
Rule 23(b)(2) allows class treatment when “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.PROC. 23(b)(2). The Supreme Court has not yet decided whether this rule “applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all.” Dukes, 131 S.Ct. at 2557 . It has concluded, however, “that, at a minimum, claims for individualized relief ... do not satisfy the Rule.” Id. Thus, Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” Id.
“Rule 23(b)(3) states that a class may be maintained where ‘questions of law or fact common to class members predominate over any questions affecting only individual members,’ and a class action would be ‘superior to other available methods for *967 fairly and efficiently adjudicating the controversy.’ ” Id. at 2549 n. 2.
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule— that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. at 2551 . Thus, “[t]he party seeking certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one requirement of Rule 23(b) have been met.” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir.), amended, 273 F.3d 1266 (9th Cir.2001); see also Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992). A class can be certified only if the court “is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-61 , 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982). As the Supreme Court has noted, “[f]requently ... ‘rigorous analysis’ will entail some overlap with the merits of the plaintiffs underlying claim.” Dukes, 131 S.Ct. at 2551 .
Plaintiffs seeks to certify twelve statewide classes as follows:
“All persons who reside in the States of California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, or Texas who have purchased Wesson Oils within the applicable statute of limitations periods established by the laws of their state of residence (the ‘Class Period’) through the final disposition of this and any and all related actions.” 148
2. Whether the Proposed Class Should Be Certified
a. Standing
As a threshold matter, ConAgra contends that the named plaintiffs lack standing because they have suffered no injury. 149 Specifically, ConAgra argues that after filing the lawsuit, plaintiffs continued to purchase cooking oils and other products that were labeled “natural” but contained non-organic GMO ingredients. 150 ConAgra asserts that plaintiffs cannot prove measurable damages because although they allege they paid a premium for Wesson Oils as a r,esult of the “100% Natural” label, they are unable to determine the price they paid for Wesson products and have no means of acquiring this information. 151
ConAgra made these same arguments in opposition to plaintiffs’ original motion for class certification; the court found them unconvincing and continues to do so. As the court noted in its prior order, each plaintiff has testified that he or she purchased Wesson Oils during the class period. Plaintiffs contend they were damaged because ConAgra misleadingly labeled the products “100% Natural,” which caused them to pay higher market prices for the products than they would have otherwise have paid. Although plaintiffs’ subsequent purchase of products labeled “natural” that contained GMO ingredients may seriously undercut their claim that their purchasing decision was influenced by the “100% Natural” label, the purchases do not deprive plaintiffs of standing to assert the claims they plead in this action. Moreover, although ConAgra argues that plaintiffs’ supplemental declarations also indicate *968 they were not injured by the allegedly misleading label, the court cannot agree. As with the plaintiffs’ subsequent purchases of products containing GMOs, the fact that the named plaintiffs “might consider” or “will consider” purchasing Wesson Oil products in the future, even if they contain GMOs, does not deprive them of Article III standing to assert the claims they plead in their second amended complaint. Such statements are properly considered in assessing the “materiality” of the alleged misrepresentation, but do not compel a conclusion that the named plaintiffs have not suffered the requisite injury in fact to confer Article III standing.
ConAgra also argues that plaintiffs lack standing to represent the putative classes because they “can only speculate as to their damages.” Specifically, it asserts that plaintiffs “have not saved receipts, cannot recall what they paid over time, and have no way of finding out.” 152 ConA-gra contends plaintiffs cannot adduce “foundational evidence” demonstrating that they paid “a ‘premium’ because they do not recall the specific price that they paid....” 153 The court cannot agree. As an initial matter, the court has denied ConAgra’s motion to strike Weir’s declaration in support of the amended certification motion. Thus, plaintiffs have proffered a methodology that they contend can be used to calculate the price premium associated with the “100% Natural” label on Wesson Oils as a percentage of total purchase price. 154
The fact that plaintiffs cannot recall the specific price they paid for Wesson Oils does not deprive them of standing. Weir states that it is “possible to determine damages, with a reasonable degree of specificity, certainty, and accuracy, attributable to ConAgra’s conduct of placing the ’100% Natural’ claim on the label of every bottle of Wesson Oil” by performing a hedonic regression analysis using “aggregate historical retail price” data. 155 He states that his damages model would rely, inter alia, on “scanner data” from market research companies IRI and Nielsen; this data reflects the price paid by consumers in a particular state at a particular time during the class period. Specifically, Weir reports that IRI’s scanner data shows the unit price of Wesson Oils on a four-week basis both nationwide and by state. 156 Because plaintiffs’ theory, and Weir’s regression model, posit that consumers paid a price premium for every bottle of Wesson Oil purchased during the class period, and because Weir states he can obtain data that reflects the historical prices paid by consumers, named plaintiffs’ failure to produce evidence of the specific price that each paid does not compel the conclusion that they cannot show injury in fact and lack Article III standing. Moreover, Weir noted that the data in his possession and other data that-is obtainable can be formatted to account for variations in pricing among geographical regions and/or pricing changes over time; thus, plaintiffs’ failure to provide specifics about “variations in pricing” 157 does not deprive them of stand *969 ing to assert their claims as ConAgra asserts.
In short, the data plaintiffs and Weir have identified or proffered provide sufficient “foundational evidence” from which a price premium attributable to ConAgra’s use of a “100% Natural” label on Wesson Oils can be calculated. At this stage of the proceedings, the court concludes that plaintiffs have adequately shown that they suffered injury in fact sufficient to confer standing on them to pursue the class claims. Accordingly, the court turns to the merits of plaintiffs’ amended motion for class certification.
b. Rule 23(a) Requirements
(1) Whether Plaintiffs Have Proposed an Ascertainable Class
Although not specifically mentioned in Rule 28, plaintiffs must, in addition to showing numerosity, commonality, typicality and adequacy, demonstrate that the members of the class are ascertainable. See, e.g., Lukovsky v. San Francisco, No. C 05-00389 WHA, 2006 WL 140574 , *2 (N.D.Cal. Jan. 17, 2006) (“ ‘Although there is no explicit requirement concerning the class definition in FRCP 23, courts have held that the class must be adequately defined and clearly ascertainable before a class action may proceed,’ ” quoting Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679-80 (S.D.Cal.1999)); Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D.Cal.2002) (“Prior to class certification, plaintiffs must first define an ascertainable and identifiable class. Once an ascertainable and identifiable class has been defined, plaintiffs must show that they meet the four requirements of Rule 23(a), and the two requirements of Rule 23(b)(3)” (citation and footnote omitted)); O’Connor v. Boeing North American, Inc., 184 F.R.D. 311, 319 (C.D.Cal.1998) (holding that a class definition must be “precise, objective and presently ascertainable”); Bishop v. Saab Automobile A.B., No. CV 95-0721 JGD (JRx), 1996 WL 33150020 , *4 (C.D.Cal. Feb. 16, 1996) (“To file an action on behalf of a class, the named plaintiffs must be members of the class that they purport to represent at the time the class action is certified. The named plaintiffs must also demonstrate that the class is ascertainable” (citation omitted)).
A class is sufficiently defined and ascertainable if it is “administratively feasible for the court to determine whether a particular individual is a member.” O’Connor, 184 F.R.D. at 319 ; accord Davoll v. Webb, 160 F.R.D. 142, 143 (D.Colo. 1995); see also Buford v. H & R Block, Inc., 168 F.R.D. 340, 347 (S.D.Ga.1996) (“[T]he ‘description of the class must be sufficiently definite to enable the court to determine if a particular individual is a member of the proposed class,’ ” quoting Pottinger v. Miami, 720 F.Supp. 955, 957 (S.D.Fla.1989)).
Plaintiffs argue that the classes they propose are ascertainable because membership in each is governed by a single objective criterion — whether an individual purchased Wesson Oils during the class period. 158 ConAgra argues, as it did in opposition to the original class certification motion, that the classes are not ascertainable because there is no way to determine the identity of consumers who purchased its products. It contends the vast majority of possible class members will be unable “truthfully [to] self-identify by providing the most basic information about qualifying purchases — did they make a purchase or purchases within the class period, how many, what sizes, at *970 what prices?” 159 As the court recognized in its class certification order, “district courts in this circuit are split as to whether the inability to identify the specific members of a putative class of consumers of low priced products makes the class unascertainable.” 160 Compare In re POM Wonderful LLC, No. ML 10-02199 DDP (RZx), 2014 WL 1225184 , *6 (C.D.Cal. Mar. 25, 2014) (observing that “[i]n situations where purported class members purchase an inexpensive product for a variety of reasons, and are unlikely to retain receipts or other transaction records, class actions may present such daunting administrative challenges that class treatment is not feasible,” and holding that a class of consumers of a juice product was not ascertainable, particularly where “[n]o bottle, label, or package included any of the alleged misrepresentations”); Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC, 2014 WL 580696 , *56 (N.D.Cal. Feb. 13, 2014) (“Plaintiff has yet to present any method for determining class membership, let alone an administratively feasible method. It is unclear how Plaintiff intends to determine who purchased ZonePerfect bars during the proposed class period, or how many ZonePerfect bars each of these putative class members purchased. It is also unclear how Plaintiff intends to weed out inaccurate or fraudulent claims. Without more, the Court cannot find that the proposed class is ascertainable”) with Forcellati v. Hy-land’s, Inc., No. CV 12-1983-GHK (MRWx), 2014 WL 1410264 , *5 (C.D.Cal. Apr. 9, 2014) (rejecting an argument that a putative class of consumers of children’s cold/ flu products was not ascertainable, and stating that “[gjiven that facilitating small claims is ‘[t]he policy at the very core of the class action mechanism,’ we decline to follow Carrera [v. Bayer Corp., 727 F.3d 300 (3d Cir.2013),]” quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997)); McCrary v. Elations Co., LLC, No. EDCV 13-00242 JGB (OPx), 2014 WL 1779243 , *8 (C.D.Cal. Jan. 13, 2014) (“Carrera eviscerates low purchase price consumer class actions in the Third Circuit. It appears that pursuant to Carrera in any case where the consumer does not have a verifiable record of its purchase, such as a receipt, and the manufacturer or seller does not keep a record of buyers, Carrera prohibits certification of the class. 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.’ As discussed above, the class definition clearly defines the characteristics of a class member by providing a description of the allegedly offending product and the eligible dates of purchase. A prospective plaintiff would have sufficient information to determine whether he or she was an Elations customer who viewed the specified label during the stated time period,’ ” quoting Moreno v. AutoZone, Inc., 251 F.R.D. 417, 421 (N.D.Cal.2008) (citations omitted)).
The court continues to agree with those courts that have found classes, such as those proposed by plaintiffs, ascertainable. As the court previously noted: “ConAgra’s argument would effectively prohibit class actions involving low priced consumer goods — the very type of claims that would not be filed individually — thereby upend *971 ing ‘[t]he policy at the very core of the class action mechanism.’ ” 161
ConAgra also argues, as it did in its original opposition, that the inclusion of uninjured class members makes the putative classes unaseertainable. 162 The court previously found this argument unavailing, 163 and remains unconvinced. Because every putative class member has been exposed to the alleged misrepresentation, the fact that some class members may have not been injured by the “100% Natural” claim does not render the class unascer-tainable. See Algarin v. Maybelline, LLC, 300 F.R.D. 444, 455 (S.D.Cal.2014) (“In the instant case, Plaintiffs have alleged a widespread advertising campaign promoting the alleged misrepresentations as well as uniform labeling for each of the Class Products. That the proposed class may include purchasers who did not rely on the misrepresentations and/or were satisfied with the products does not render the class ‘overbroad’ where Maybelline has failed to demonstrate a lack of exposure as to some class members”); Rodman v. Safeway, Inc., No. 11-CV-03003-JST, 2014 WL 988992 , *16 (N.D.Cal. May 10, 2014) (“If Defendant is arguing that, even after a plaintiff establishes all of the Rule 23 factors, a defendant can still defeat certification by pointing to the possibility that certain members of the class will not be able to recover on their claims, the Court does not adopt that view of the ‘ascertainability’ inquiry. This Court joins others in this district that hold that ‘[w]hen rejecting class certification based on overbreadth ... the problem lies in the court’s ability to ascertain the class, not whether the putative class members have been aggrieved,’ ” citing Kurihara v. Best Buy Co., Inc., No. 06-CV-01884 MHP, 2007 WL 2501698 , *5 (N.D.Cal. Aug. 30, 2007) (in turn citing Mateo v. M/S Kiso, 805 F.Supp. 761, 773 (N.D.Cal.1991)) and collecting cases); see also DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1201 (10th Cir.2010) (“That a class possibly of even likely includes persons unharmed by a defendant’s conduct should not preclude certification”); Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th Cir.2009) (the fact that a proposed class “will often include persons who have not been injured by the defendant’s conduct ... does not preclude class certification,” but “a class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant”).
For these reasons, and for the reasons articulated in its August 1 order, 164 the court concludes that plaintiffs have proposed sufficiently ascertainable classes. To the extent ConAgra argues that the inclusion of uninjured class members prevents the court from certifying the putative classes, its contentions are more properly considered in analyzing whether plaintiffs have satisfied Rules 23(a)(2) and 23(b)(3).
(2) Numerosity
Before a class can be certified under the Federal Rules of Civil Procedure, the court must determine that it is “so numerous that joinder of all members is impracticable.” See FED.R.CIV.PROC. 23(a)(1). “Impracticability does not mean impossibility, [however,] ... only ... difficulty or inconvenience in joining all members of the class.” Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, *972 913-14 (9th Cir.1964) (internal quotation marks omitted). There is no set numerical cutoff used to determine whether a class is sufficiently numerous; courts must examine the specific facts of each case to evaluate whether the requirement has been met. See General Tel. Co. v. EEOC, 446 U.S. 318, 329-30 , 100 S.Ct. 1698 , 64 L.Ed.2d 319 (1980). “As a general rule, [however,] classes of 20. are too small, classes of 20-40 may or may not be big enough depending on the circumstances of each case, and classes of 40 or more are numerous enough.” Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D.Cal.1988) (citing 3B J. Moore and J. Kennedy, Moore’s Federal PRACTICE ¶ 23-05[1] (2d. ed.1987)). ConAgra acknowledges that millions of consumers purchased Wesson Oil products during the class period. 165 Consequently, plaintiffs have met their burden of demonstrating that the proposed classes are sufficiently numerous. 166
(3) Commonality
Commonality requires “questions of law or fact common to the class.” See FED.R.CIV.PROC. 23(a)(2). The commonality requirement is construed liberally, and the existence of some common legal and factual issues is sufficient. Jordan v. County of Los Angeles, 669 F.2d 1311, 1320 (9th Cir.1982); accord Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998) (“The commonality preconditions of Rule 23(a)(2) are less rigorous than the companion requirements of Rule 23(b)(3). Indeed, Rule 23(a)(2) has been construed permissively”); see also, e.g., Ventura v. New York City Health & Hosps. Corp., 125 F.R.D. 595, 600 (S.D.N.Y.1989) (“Unlike the ‘predominance’ requirement of Rule 23(b)(3), Rule 23(a)(2) requires only that the class movant show that a common question of law or fact exists; the movant need not show, at this stage, that the common question overwhelms the individual questions of law or fact which may be present within the class”). As the Ninth Circuit has noted: “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, 150 F.3d at 1019 .
That said, the putative class’s “claims must depend upon a common contention — for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, rriust be of such a nature that it is capable of classwide resolution — which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551 . Although for purposes of Rule 23(a)(2) even a single common question will do, id. at 2556 , “ ‘[w]hat matters to class certification ... is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers ápt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.’ ” Id. at 2551 (citing Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.REV. 97, 132 (2009)). As the Ninth Circuit recently articulated by way of example, “it is insufficient to merely allege any common question, for example, “Were Plaintiffs passed over for *973 promotion?’ Instead, they must pose a question that ‘will produce a common answer to the crucial question why was I disfavored.’ ” Ellis, 657 F.3d at 981 (quoting Dukes, 131 S.Ct. at 2552 ).
As in their original motion for class certification, plaintiffs argue that the commonality requirement is satisfied because all class members were exposed to ConAgra’s “100% Natural” label and marketing and their claims thus arise from “a common core of salient facts” and pose a common questions: “whether ConAgra’s ’100% Natural’ marketing and labeling of Wesson Oil products was false, unfair, deceptive, and/or misleading,” 167 As the court previously concluded, such a question is sufficient to satisfy commonality. 168 See, e.g., Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 537 (N.D.Cal. 2012) (“[H]ere, variation among class members in their motivation for purchasing the product, the factual circumstances behind their purchase, or the price that they paid does not defeat the relatively ‘minimal’ showing required to establish commonality”); Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 377 (N.D.Cal.2010) (holding that the commonality requirement was satisfied by allegations that the defendant beverage supplier’s “packaging and marketing materials [were] unlawful, unfair, deceptive or misleading to a reasonable consumer”). Thus, file court finds the commonality requirement satisfied. 169
(4) Typicality
Typicality requires a determination as to whether the named plaintiffs claims are typical of those of the class members she seeks to represent. See Fed.R.Civ.PROC. 23(a)(3). • “[Representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020 ; see also Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D.Cal.1985) (“A plaintiffs claim meets this requirement if it arises from the same event or course of conduct that gives rise to claims of other class members and the claims are based on the same legal theory”).
“The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Hanon, 976 F.2d at 508 [citation and internal quotation marks omitted). Typicality, like commonality, is a “permissive standard[].” Hanlon, 150 F.3d at 1020 . Indeed, in practice, “[t]he commonality and typicality requirements *974 of Rule 23(a) tend to merge.” Falcon, 457 U.S. at 157 -58 n. 13, 102 S.Ct. 2364 . See also Dukes, 131 S.Ct. at 2551 n. 5 (“We have previously stated in this context that ‘[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action'is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest,’ ” citing Falcon, 457 U.S. at 158 n. 13, 102 S.Ct. 2364 ).
Typicality may be lacking “if ‘there is a danger that absent class members will suffer [because] their representative is preoccupied with defenses unique to it.’ ” Hanon, 976 F.2d at 508 (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 903 F.2d 176, 180 (2d Cir.1990)); see also J.H. Cohn & Co. v. Am. Appraisal Assoc., Inc., 628 F.2d 994 , 999 (7th Cir.1980) (“[E]ven an arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the class as well as bring into question the adequacy of the named plaintiffs representation”). To be typical, a class representative need not prove that she is immune from any possible defense, or that her claim will fail only if every other class member’s claim also fails. Instead, she must establish that she is not subject to a defense that is not “typical of the defenses which may be raised against other members of the proposed class.” Id.; see also Ellis, 657 F.3d at 984 .
The named plaintiffs argue that the typicality requirement is satisfied because their claims “ ‘arise[ ] from the same course of events, and each class member makes, similar legal arguments to prove [ConAgra’s] liability.’ ” 170 They assert that because the named plaintiffs were all exposed to the “100% Natural” claim on Wesson Oil labels, and allege that the claim was a material factor in their decisions to purchase the products, “common evidence [will be presented] based on the same legal theories [] to support [the named plaintiffs’] claims and the claims of other [c]lass [mjembers.” This suffices, they contend, to satisfy Rule 23’s typicality requirement. 171 ConAgra counters with the same arguments it advanced in opposition to plaintiffs’ original class certification motion. It contends that plaintiffs’ claims are not typical because the evidence demonstrates that the “100% Natural” label was not a significant factor driving purchases of Wesson Oil. 172 ConAgra cites Dr. Hanssens’ finding that there is no statistically significant difference between the purchasing decisions of survey respondents shown a “100% Natural” label and those who saw a label without the phrase. 173 It also cites Dr. Hanssens’ finding that only 5-6 percent of respondents who saw the “100% Natural” label mentioned “natural” ingredients when describing why they would or would not buy a Wesson Oil product, and identifying the factors that were important to them when purchasing cooking oil. 174 Based on Dr. *975 Hanssens’ findings, ConAgra asserts that named plaintiffs are atypical of the classes they seek to represent because they allegedly relied on ConAgra’s “100% Natural” label in making their purchasing decisions, while “the large majority” of class members did not. 175
As the court noted in its August 1 order: “Because the typicality requirement focuses on whether the named plaintiffs’ claims arise from the same course of conduct as the class members’ claims, and whether the named plaintiffs are subject to unique defenses, ... and because it is not an onerous requirement, the court concludes that the fact that some class members may not have relied on the ’100% Natural’ label in purchasing Wesson Oils does not render the named plaintiffs’ claims atypical. Stated differently, if the named plaintiffs’ claims were subject to the unique defense that they did not rely on the ’100% Natural’ label in purchasing Wesson Oils, then as to any claims that require proof of individualized reliance, there might be a concern about typicality. The situation posited by ConAgra is the converse of that, however.... Consequently, the court finds the typicality requirement satisfied.” 176
Because ConAgra sets forth no arguments other than those that the court previously found unpersuasive, and because its contentions concerning “materiality” and the need for individualized proof for reliance and causation are better addressed in assessing whether Rule 23(b)(3)’s predominance requirement is satisfied, the court concludes that named plaintiffs have adequately shown that their claims are typical of the claims of the putative class members they seek to represent.
(5) Adequacy
The adequacy of representation requirement set forth in Rule 23(a)(4) involves a two-part inquiry: “(1) do the named plaintiff[] and [her] counsel have any conflicts of interest with other class members and (2) will the named plaintiff[ ] and [her] counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020 ; accord Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir.2003). “Adequate representation depends on, among other factors, an absence of antagonism between representatives and absentees, and a sharing of interest between representatives and absentees.” Ellis, 657 F.3d at 985 . Individuals are not adequate representatives of a class when “it appears that they have abdicated any role in the case beyond that of furnishing their names as plaintiffs.” Helfand v. Cenco, Inc., 80 *976 F.R.D. 1, 7 (N.D.Ill.1977). As respects class counsel, adequacy of representation turns on counsel’s competence and the absence of conflicts of interest. Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364 (“The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also often tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest”); Staton, 327 F.3d at 957 (“To determine whether the representation meets [Rule 23(a)(4)’s] standard, we ask two questions: (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?” citing Molski v. Gleich, 318 F.3d 937, 955 (9th Cir.2003) (in turn quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir.1995))); Hanlon, 150 F.3d at 1020 .
ConAgra challenges the adequacy of the named plaintiffs on the same grounds that it challenges the typicality of their claims; it challenges the adequacy of class counsel on the same grounds that it raised in its opposition to plaintiffs’ original class certification motion. 177 Specifically, it notes: (1) putative class counsel has “inexplicably forfeited even the possibility of certifying classes in Washington, Wyoming, Massachusetts, and New Jersey, failing to prosecute the action adequately on behalf of the lost state classes”; and' (2) class counsel has been dilatory in conducting discovery and failed adequately to present plaintiffs’ first motion for class certification. 178 As ConAgra observes, 179 the court considered these arguments and found them unavailing in its order denying plaintiffs’ first motion for class certification. 180 Faced with the arguments a second time, the court’s conclusions remain unchanged. Accordingly, the court finds that named plaintiffs and class counsel satisfy Rule 23(a)’s adequacy requirement.
c. Rule 23(b) Requirements
Having concluded that Rule 23(a)’s requirements are met, the court turns to Rule 23(b). Plaintiffs seek to certify the proposed classes separately for purposes of injunctive relief and damages under Rules 23(b)(2) and 23(b)(3). In its decision in Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir.2010) (en banc), rev’d — U.S. -, 131 S.Ct. 2541 , 180 *977 L.Ed.2d 374 (2011), the Ninth Circuit noted that the district court had the option of certifying a Rule 23(b)(2) equitable relief class and a separate Rule 23(b)(3) class for damages if it concluded that it could not certify a single Rule 23(b)(2) class because monetary relief predominated over the eq-' uitable relief sought. Id. at 620. The Supreme Court later “rejected the ‘predominance’ test for determining whether monetary damages may be included in a 23(b)(2) certification.” Ellis, 657 F.3d at 986 . Subsequent to the Supreme Court’s decision in Dukes, however, the Ninth Circuit has suggested on multiple occasions that district courts consider certifying separate Rule 23(b)(2) and 23(b)(3) classes. See, e.g., Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir.2013) (“Plaintiffs concede that class certification for their monetary claims under Rule 23(b)(2) cannot stand in light of Wal-Mart. However, the possibility of a Rule 23(b)(2) class seeking injunctive relief remains. Rule 23(b)(2) applies “when a single injunction or declaratory judgment would provide relief to each member of the class.’ ... [S]ee ... Ellis, 657 F.3d at 987 (indicating that the court could certify a Rule 23(b)(2) class for injunctive relief and a separate Rule 23(b)(3) class for damages)”); see also Dukes, 603 F.3d at 620 (suggesting the court certify a “ ‘Rule 23(b)(2) class for equitable relief and a separate Rule 23(b)(3) class for damages’”). Consequently, as in the order denying plaintiffs’ first motion for class certification, 181 it appears that the court can separately certify an injunctive relief class and, if appropriate, also certify a Rule 23(b)(3) damages class.'
d. Whether Plaintiffs Have Satisfied Rule 23(b)(2)
An injunctive relief class can be certified under Rule 23(b)(2) when “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. Proc. 23(b)(2). As a threshold matter, the court must determine whether the named plaintiffs have standing to seek an injunction requiring ConAgra to cease marketing Wesson Oils as “100% Natural.” In its August 1 order, the court noted that plaintiffs had failed to proffer any evidence indicating that they intended to purchase Wesson Oil products in the future and thus lacked Article III standing to represent injunctive relief classes:
“Applying Article Ill’s requirements, the court agrees with Judge Breyer that a plaintiff does not lack standing simply because ‘he has learned that a label is misleading and therefore will not be fooled by it again.’ Rather, a plaintiff lacks standing if he has not ‘expressed] an intent to purchase the products in the future.’ Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726 , *12 (N.D.Cal. June 13, 2014).... [T]he court concludes that none of the named plaintiffs has standing to sue for injunc-tive relief. It declines to certify classes under Rule 23(b)(2) as a result.” 182
*978 Given this finding, each plaintiff seeking to represent a class entitled to seek injunctive relief under his or her respective state’s consumer protection laws has submitted a declaration stating that he or she will or may consider purchasing Wesson Oils in the future. 183 The declarations are nearly uniform, and state that: (1) the named plaintiffs purchased Wesson Oils in part because they were labeled “100% Natural”; (2) they deceived by Con-Agra’s “100% Natural” label because they believed that “100% Natural” meant the product was GMO-free; (3) they typically attempt to avoid purchasing products with GMO ingredients, but realize that it is extremely difficult to avoid GMO ingredients altogether; and (4) if ConAgra removes the “100% Natural” label, they “might consider” or “will consider” purchasing Wesson Oils in the future, depending on price and the availability of alternate products. 184
ConAgra contends there is no “clear, admissible evidence that [the named plaintiffs] w[ill] purchase Wesson Oil in the future.” 185 It asserts that plaintiffs’ declarations do not provide “clear, unequivocal evidence that [pjlaintiffs w[ill] buy the product again,” but merely suggest that they “will consider buying it again.” 186 Plaintiffs argue that the evidence is not “speculative or illusory; rather, it is conditional: ConAgra must change its conduct before those Plaintiffs would consider buying Wesson Oil again, and ConAgra has given no indication that it will engage in honest labeling in the future without the Court’s intervention.” 187 The court agrees with ConAgra that plaintiffs have again failed to meet their burden of showing that they have standing to represent an injunc-tive relief class. Although plaintiffs maintain “[they] have met th[e] standard as to the proposed classes for those states [permitting injunctive relief] under even the strictest interpretation of the law in this Circuit,” the court cannot agree.
Plaintiffs contend they have adequately alleged a future intent to purchase Wesson Oil products, citing Judge Breyer’s decision in Jones, 2014 WL 2702726 . There, plaintiffs sued ConAgra for violation of California’s Unfair Competition Law, California Business and Professions Code § 17200; misleading advertising in violation of California Business and Professions Code § 17500; violation of California’s Consumers Legal Remedies Act; and unjust enrichment. Id. at *1. Plaintiffs alleged that ConAgra had mislabeled three products — Hunt’s® canned tomatoes, PAM® cooking sprays; and Swiss Miss® hot cocoa; the Hunt’s and PAM products were labeled “100% Natural,” while the Swiss Miss label stated that the product *979 was a “Natural Source of Antioxidants” or that “Natural Antioxidants Are Found in Cocoa.” Id. at *2. Plaintiffs sought to certify an injunctive relief class under Rule 23(b)(2). Id. at *12. Judge Charles Breyer declined to do so, concluding that named plaintiffs lacked Article III standing because they did not “express an intent to purchase the products in the future.” Id. at *12-13. Judge Breyer noted that while “[cjourts 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,” they “do require [that] plaintiffs ... express an intent to purchase the products in the future.” Id. at *12. He observed:
“Here, Jones testified that he ‘stopped buying’ Hunt’s products once he found out that they contained the challenged ingredients, and he did not attest to having any intention of buying Hunt’s products in the future. While Jones testified that he makes an effort to seek out natural foods in his diet, he also testified that he might actually prefer products not labeled ‘natural’ depending on price, content, and flavor. He also, after filing the lawsuit, purchased other brands of canned tomatoes that contained citric acid and calcium chloride. Accordingly, 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. He did not so testify.... Accordingly, the Court finds that Plaintiffs lack standing under Rule 23(b)(2).” Id. at *12-13.
Plaintiffs assert that because the named representatives seeking to represent in-junctive relief classes have proffered supplemental declarations that precisely track the language in Jones — i.e., that state “[they] might purchase [Wesson Oil products] in the future if they were properly labeled,” they have adduced evidence that shows they have standing to represent an injunctive relief class. While the quoted portion of Judge Breyer’s opinion in Jones uses the word “might,” it elsewhere notes that the plaintiff must show a “real and immediate threat of repeated injury”:
“[C]ourts do require plaintiffs to express an intent to purchase the products in the future. This is somewhat problematic, policywise: if a plaintiff bought a product that claimed to be ‘nutritious’ but actually contained arsenic, would he have to claim that he intends to buy it again? On the other hand, citric acid is not arsenic, and there is no way around the principle that a plaintiff must establish a ‘real and immediate threat of repeated injury’ to establish standing for injunctive relief.” Id. at *12 (citations omitted).
Given that there is “no way around” the threshold showing required to demonstrate Article III standing to assert injunc-tive relief claims, the court concludes that a statement that a party “will consider” or “might consider” purchasing a product in the future is not sufficiently “concrete” or “real and immediate” to support constitutional standing under either Article III or Jones .
Plaintiffs contentions to the contrary are unavailing. 188 While courts have recognized that a plaintiff who has been exposed to a misleading or deceptive label may have Article III standing to represent an injunctive relief class if they intend to purchase the product in the future, see, e.g., Jou v. Kimberly-Clark Corp., No. 3:13-CV-03075, 2013 WL 6491158 , *4 *980 (N.D.Cal. Dec. 10, 2013) (“reject[ing plaintiffs’ contention that it [wa]s unnecessary for them to maintain any interest in purchasing the products in the future”), plaintiffs have not adduced evidence that they “would purchase [Wesson Oils] in the future if the[ products] were truthfully labeled.” 189 Rather, they assert only that they will or may consider purchasing the products in the future.
Other courts have questioned whether this type of statement demonstrates there is a real and immediate threat of future injury. See, e.g., Marty v. Anheuser-Busch Companies, LLC, 43 F.Supp.3d 1333, 1358 (S.D.Fla.2014) (“plaintiffs ... maintain that ‘Courts find standing to seek injunctive relief under consumer protection laws where the defendant continues the allegedly deceptive labeling or advertising and the plaintiff may purchase the product in the future.’ The permissive word ‘may’ seems at odds with Supreme Court precedent which requires a real and immediate threat of future injury,” citing City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983) (holding that the threat must be “real and immediate” as opposed to “conjectural or hypothetical”)); Smith v. Chrysler Financial Co., L.L.C., No. Civ.A.00-CV-6003 DMC, 2004 WL 3201002 (D.N.J. Dec. 30, 2004) (“Plaintiffs have failed to establish a real and immediate threat that they will suffer an injury as the result of any actions or policies of Defendant. The injury which Plaintiffs allege, that they may want to buy another Chrysler in the future and may be discriminated against by Defendant, is simply too speculative” (emphasis added)). See also Miller v. Nissan Motor Acceptance Corp., 362 F.3d 209, 223 (3d Cir.2004) (suggesting, in dicta, that the conclusion that a plaintiff who might default on a lease and might return a leased automobile early and consequently pay an early termination fee had standing was “plainly wrong”);. Freydel v. New York Hosp., 242 F.3d 365 , 2000 WL 1836755 (2d Cir. Dec. 13, 2000) (Unpub. Disp.) (“While we agree that plaintiff ‘may1 be referred to NYH in the future, such an indefinite speculation is insufficient to maintain standing to seek injunctive relief’). Cf. Clapper v. Amnesty International USA, — U.S. -, 133 S.Ct. 1138 , 185 L.Ed.2d 264 (2013) (to have standing to sue for injunc-tive relief, a plaintiff must show that the “ ‘threatened injury [is] certainly impending,'’ ” quoting Whitmore v. Arkansas, 495 U.S. 149, 158 , 110 S.Ct. 1717 , 109 L.Ed.2d 135 (1990) (emphasis added)).
Plaintiffs cite no authority suggesting that allegations they “might” or “will” consider purchasing ConAgra’s products satisfies Article III, and the court concludes that the weight of authority is to the contrary. Compare Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 533 (N.D.Cal.2012) (concluding that named plaintiffs had shown they had Article III standing to seek classwide injunctive relief because they clearly “stated [an] intent to purchase” the challenged product in the future) with Werdebaugh v. Blue Diamond Growers, Case No.: 12-CV-2724-LHK, 2014 WL 2191901 , *9 (N.D.Cal. May 23, 2014) (“Here, because Werdebaugh has not alleged, let alone provided evidentiary proof, that he intends or desires to purchase Blue Diamond almond milk products in the future, there is no likelihood of future injury to Plaintiff that is redressa-ble through injunctive relief, and Plaintiff lacks standing to pursue that remedy. As a result, Plaintiff is precluded from seeking injunctive relief on a classwide basis, and the Court declines to certify the proposed class under Rule 23(b)(2),” citing *981 Ellis, 657 F.3d at 979 ); Rahman v. Mott’s LLP, No. CV 13-3482 SI, 2014 WL 325241 , *10 (N.D.Cal. Jan. 29, 2014) (“to establish standing [for injunctive relief], plaintiff must allege that he intends to purchase the products at issue in the future”); Jou, 2013 WL 6491158 at *4 (“Because Plaintiffs fail to identify any allegation in their Complaint that suggests ... they maintain an interest in purchasing the diapers or wipes, or both, in the future, Plaintiffs have not sufficiently alleged standing to pursue injunctive relief’).
Consistent with -Article Ill’s standing requirements, plaintiffs must proffer evidence that there is “a sufficient likelihood that [they] will be wronged in a similar way.” Lyons, 461 U.S. at 111 , 103 S.Ct. 1660 (emphasis added). Plaintiffs’ equivocal, speculative assertion that they “may consider” or “will consider” purchasing Wesson'Oils in the future if they are not mislabeled does not satisfy this standard. See Dabish v. Infinitelabs, LLC, No. 13-CV-2048 BTM (DHB), 2014 WL 4658754 , *5 (S.D.Cal. Sept. 17, 2014) (“[t]o establish standing for prospective injunctive relief, [a pjlaintiff 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,”” citing Bates v. United Parcel Service, Inc., 511 F.3d 974, 985 (9th Cir.2007) (in turn citing Lyons, 461 U.S. at 111 , 103 S.Ct. 1660 )); see also Bates, 511 F.3d at 985 (holding that a plaintiff must establish a “real and immediate threat of repeated injury” to demonstrate Article III standing). 190
e. Rule 23(b)(3)
(1) Whether Common Issues Predominate
Certifying a class under Rule 23(b)(3) requires “that the questions of law or fact common to the members of the class predominate over any questions af-fecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. PROC. 23(b)(3); see Poulos v. Caesars World, Inc., 379 F.3d 654, 664 (9th Cir.2004). The predominance requirement is “far more demanding” than the commonality requirement of Rule 23(a). Amchem Products, 521 U.S. at 623-24 , 117 S.Ct. 2231 . If common questions “present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication,” th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7230224. Public record. Not legal advice.