1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MATTHEW SINATRO, et al., Case No. 22-cv-03460-DMR

8 Plaintiffs,

ORDER ON MOTION FOR LEAVE TO

9 v. FILE MOTION FOR

RECONSIDERATION

10 BARILLA AMERICA, INC., Re: Dkt. No. 80 11 Defendant.

12 13 Plaintiffs Matthew Sinatro and Jessica Prost filed this putative class action against 14 Defendant Barilla America, Inc. (“Barilla”) alleging false, misleading, and deceptive marketing 15 practices with respect to the labeling of Barilla-brand pastas. The court granted Plaintiffs’ motion 16 for class certification on May 28, 2024. Barilla now moves for leave to file a motion for 17 reconsideration of the order granting class certification. [Docket No. 80.] The motion is suitable 18 for resolution without a hearing. Civ. L.R. 7-1(b). For the following reasons, the motion is 19 denied. 20 I. BACKGROUND 21 Plaintiffs filed this action in June 2022. They allege that “[i]n an effort to increase profits 22 and to obtain an unfair competitive advantage . . . [Barilla] falsely and misleadingly labels certain 23 of its Barilla® brand pastas as ‘ITALY’S #1 BRAND OF PASTA®,’ deliberately leading 24 reasonable consumers, including Plaintiffs, to believe that the Products are made in Italy” from 25 ingredients “sourced in Italy,” even though the products are not made in Italy and are not 26 manufactured from Italian ingredients. [See Docket No. 11 (First Am. Compl., “FAC”) ¶¶ 2, 3, 27 22.] Plaintiffs assert five claims under state law regarding Barilla’s packaging containing the 1 “Challenged Representation” for over 50 Barilla-brand pastas. See id. at ¶ 4.1 2 Plaintiffs moved for class certification. Barilla opposed. [Docket No. 61 (Opp’n).] In 3 relevant part, Barilla argued that “individualized issues predominate because there is no common 4 evidence that Barilla’s Challenged Representation has a common or uniform meaning and 5 deceived reasonable consumers.” Id. at 11. The court rejected Barilla’s individualized issues 6 argument, finding that Barilla’s merits-based challenges to Plaintiffs’ consumer deception 7 evidence “do not undermine Plaintiffs’ showing that common evidence can be used to demonstrate 8 consumer deception.” Sinatro v. Barilla Am., Inc., No. 22-CV-03460-DMR, 2024 WL 2750018, 9 at *7 (N.D. Cal. May 28, 2024). The court certified the following class under Federal Rule of 10 Civil Procedure 23(b)(3):

11 All residents of California who, within four years prior to the filing of this Complaint, purchased the Products, containing the Challenged 12 Representation on the Products' front packaging, for purposes other than resale. 13 14 Id. at *5, 12. 15 Barilla now moves pursuant to Civil Local Rule 7-9 for leave to file a motion for 16 reconsideration.2 17 II. DISCUSSION 18 Civil Local Rule 7-9 governs motions for leave to file a motion for reconsideration. That 19 rule provides that “[b]efore the entry of a judgment adjudicating all of the claims and the rights 20 and liabilities of all the parties in a case, any party may make a motion before a Judge requesting 21 that the Judge grant the party leave to file a motion for reconsideration of any interlocutory order 22 on any ground set forth in Civil L.R. 7-9 (b).” A party seeking leave to file a motion for 23 reconsideration must “show reasonable diligence in bringing the motion” and one of the following 24

25 1 The “Challenged Representation” is the statement “Italy’s #1 Brand of Pasta®” as it appears between the green, white, and red colors of Italy’s flag. See Sinatro v. Barilla Am., Inc., No. 22- 26 CV-03460-DMR, 2024 WL 2750018, at *1 n.1 (N.D. Cal. May 28, 2024).

27 2 The parties fully briefed this motion in violation of Local Rule 7-9(d), which provides that 1 three grounds: (1) a material difference in fact or law exists from that which was presented to the 2 court, which, in the exercise of reasonable diligence, the party applying for reconsideration did not 3 know at the time of the order for which reconsideration is sought; (2) the emergence of new 4 material facts or a change of law; or (3) a manifest failure by the court to consider material facts or 5 dispositive legal arguments presented before such order. Civ. L.R. 7-9(b)(1)-(3). The moving 6 party may not reargue any written or oral argument previously asserted to the court. Civ. L.R. 7- 7 9(c). “Motions for reconsideration are generally disfavored, and are not the place for parties to 8 make new arguments not raised in their original briefs.” Whalen v. Ford Motor Co., No. 13-CV- 9 03072-EMC, 2018 WL 6069812, at *1 (N.D. Cal. Nov. 20, 2018) (citing Northwest Acceptance 10 Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988)). 11 As an initial matter, Barilla’s motion largely rehashes previous arguments regarding the 12 sufficiency of Plaintiffs’ evidence supporting class certification in violation of Local Rule 7-9(c). 13 See Mot. 4-7. This alone is grounds for denying the motion. The motion also fails on the merits. 14 Barilla argues that reconsideration of the May 28, 2024 order granting Plaintiffs’ class certification 15 motion is warranted because the court failed to consider its dispositive legal arguments; namely, 16 the impact of McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023), on whether 17 Plaintiffs are entitled to a presumption of class-wide reliance, “a critical aspect of the 18 predominance analysis.” Mot. 3. 19 In their motion for class certification, Plaintiffs argued that with respect to Rule 23(a)’s 20 commonality requirement, the question of “whether the Challenged Representation ‘is false, 21 misleading, or deceptive’ will resolve ‘in one stroke’ an issue that is central to the claims that the 22 Products were falsely and unlawfully labeled under California’s consumer protection laws.” 23 Sinatro, 2024 WL 2750018, at *6. The court discussed the reasonable consumer standard that 24 governs claims under the False Advertising Law (“FAL”), California Business & Professions 25 Code section 17500 et seq., and the fraudulent prong of the Unfair Competition Law (“UCL”), 26 California Business & Professions Code section 17200 et seq., citing authority that “the reasonable 27 consumer standard requires a probability that a significant portion of the general consuming public 1 Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)). The court also noted that “[a] plaintiff 2 suing under [the FAL and UCL] ‘need not show actual falsity of the alleged misrepresentations or 3 reliance by the plaintiff,’” and that this principle is “important in the class certification context, 4 because ‘concerns about [individual] reliance and causation’ that a defendant may raise at the class 5 certification stage do not defeat class certification where the members of the proposed class were 6 exposed to the same allegedly misleading representations and there is evidence that it is probable 7 that a significant portion of the viewing public could be misled by the alleged 8 misrepresentations.’” Id. (quoting Vizcarra v. Unilever United States, Inc., No. 4:20-cv-02777 9 YGR, 2023 WL 2364736, at *9 (N.D. Cal. Feb. 24, 2023) (citations omitted)). 10 Plaintiffs submitted evidence supporting their claim that consumers have a common 11 understanding of the Challenged Representation in the form of survey evidence by their expert, J. 12 Michael Dennis, Ph.D. Dr. Dennis conducted a consumer perception survey “to determine 13 whether and to what extent the Challenged Representation causes reasonable consumers ‘to 14 perceive that the Products were made in Italy—meaning, the Products were made from ingredients 15 sourced solely from Italy.’” Id. at *7. “Of the nearly 600 individuals surveyed, 57% of 16 respondents ‘perceived the Challenged Representation to mean that the Product’s ingredients are 17 solely sourced from Italy,’” while “32.3% of respondents did not perceive the Challenged 18 Representation to have this meaning and 10.7% did not have an opinion.” Id. Barilla challenged 19 this survey as “unreliable” and “fatal[ly] flaw[ed].” Opp’n 12. Barilla also cited its own expert’s 20 survey, arguing that “there is no commonly understood definition” of the Challenged 21 Representation among reasonable consumers and asserting, “the meaning of the Challenged 22 Representation is not subject to class-wide proof . . . [t]he need for an individualized inquiry into 23 consumers’ understanding of the Challenged Representation precludes a finding a [sic] 24 predominance.” Id. at 12-13. 25 In relevant part, the court rejected Barilla’s “individualized issues” argument, finding that 26 Barilla’s challenge to Dr. Dennis’s survey went “to the weight to be accorded to [his] survey 27 results and opinions when determining the merits of [Plaintiffs’] claims at trial” and holding that 1 can be used to demonstrate consumer deception.” Sinatro, 2024 WL 2750018, at *7. The court 2 then turned to Plaintiffs’ Consumers Legal Remedies Act (“CLRA”), California Civil Code 3 section 1750 et seq. and breach of warranty claims, citing authority that “under the CLRA, 4 causation, on a classwide basis, may be established by materiality. If the trial court finds that 5 material misrepresentations have been made to the entire class, an inference of reliance arises as to 6 the class.” Id. (quoting Lytle v. Nutramax Lab’ys, Inc., 99 F.4th 557, 580 (9th Cir. 2024)). The 7 court discussed Plaintiffs’ evidence of materiality, including Plaintiffs’ declarations and Barilla’s 8 marketing campaign, and concluded that “the question of materiality of the Challenged 9 Representation may be demonstrated by common proof.” Id. at *8. 10 Barilla argues that “[t]he Ninth Circuit’s decision in McGinity—a case cited by Barilla but 11 not addressed in the Court’s Order—makes clear that [Dr. Dennis’s survey] results are not 12 sufficient to give rise to a presumption of class-wide reliance.” Mot. 4. According to Barilla, 13 “Plaintiffs’ survey evidence at best shows that the Challenged Representation was ambiguous,” 14 and that under McGinity, “the Court ‘must consider what additional information other than the 15 front label was available to consumers’ and its impact on the presumption of reliance and, 16 consequently, the predominance inquiry under Fed. R. Civ. P. 23(b)(3).” Id. at 4-5 (emphasis in 17 original) (quoting McGinity, 69 F.4th at 1098). According to Barilla, “McGinity dictates that no 18 reasonable consumer . . . would be misled by the Challenged Representation,” and as a result, 19 “Plaintiffs are not entitled to a presumption of class-wide reliance because they have not provided 20 any evidence of a material misrepresentation.” Id. at 5 (emphasis in original). 21 In McGinity, the Ninth Circuit held that “the front label [of a product] must be 22 unambiguously deceptive for a defendant to be precluded from insisting that the back label be 23 considered together with the front label” in ruling on a motion to dismiss. 69 F.4th at 1098. The 24 Ninth Circuit later explained in Whiteside v. Kimberly Clark Corp., 108 F.4th 771, 778, 780 (9th 25 Cir. 2024), that under McGinity, “a product’s back label may be considered at the pleadings stage 26 if the front label is ambiguous” and that “a plaintiff must plausibly allege that the front label 27 would be unambiguously deceptive to an ordinary consumer, such that the consumer would feel 1 is not ambiguous simply because it is susceptible to two possible meanings; a front label is 2 ambiguous when reasonable consumers would necessarily require more information before 3 reasonably concluding that the label is making a particular representation.” Whiteside, 108 F.4th 4 at 781. 5 Barilla’s motion lacks merit. Barilla has not identified a manifest failure by the court to 6 consider dispositive legal arguments, namely because its argument regarding the significance of 7 McGinity was confined to a single footnote in its 25-page opposition. In that footnote, Barilla 8 asserted only that unspecified evidence “underscores the conclusion that, at worst, the Challenged 9 Statement is ambiguous and as such a reasonable consumer would consult the rest of the 10 packaging to clarify that ambiguity,” citing McGinity. See Opp’n 13 n.11. It did not analyze or 11 develop this bare-bones argument in any meaningful way. Nor did it explain the impact of 12 McGinity, which did not address Rule 23 requirements, on class certification. The court is not 13 required to analyze arguments that the parties fail to develop. The instant motion is simply an 14 improper attempt to make the arguments that Barilla should have presented with its original 15 opposition to the motion for class certification but inexplicably did not. See Whalen, 2018 WL 16 6069812, at *1 (reconsideration motions “are not the place for parties to make new arguments not 17 raised in their original briefs); see also Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995) 18 (“It is not the purpose of allowing motions for reconsideration to enable a party to complete 19 presenting his case after the court has ruled against him. Were such a procedure to be 20 countenanced, some lawsuits really might never end, rather than just seeming endless.”). Barilla 21 cannot use a motion for reconsideration to get a “second bite” at something it could and should 22 have put before the court in the first instance. The narrow grounds for reconsideration promote 23 fair and efficient use of party and court resources. Given Barilla’s failure to show “[a] manifest 24 failure by the Court to consider . . . dispositive legal arguments which were presented to the Court 25 before” the May 28, 2024 order, the motion for leave to file a motion for reconsideration is denied. 26 // 27 // Wl. CONCLUSION For the foregoing reasons, Barilla’s motion for leave to file a motion for reconsideration of 2 the May 28, 2024 order is denied. 3 DIST;

IT IS SO ORDERED. KEE RICH

4 □ Dated: August 29, 2024 KS) xO) ° \ SY a R DERED □ 6

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