NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER REITMAN; et al., No. 19-56467

Plaintiffs-Appellants, D.C. No. 2:18-cv-01736-DOC-JPR v.

CHAMPION PETFOODS USA, INC.; MEMORANDUM*

CHAMPION PETFOODS LP,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted November 10, 2019 Pasadena, California

Before: PARKER,** CHRISTEN, and WATFORD, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 1 Plaintiffs-Appellants (“Reitman”)1 filed this putative class action on behalf

of themselves and other consumers in California who purchased allegedly

mislabeled dog food products sold by Defendants-Appellees (“Champion”).2 They

appeal the district court’s denial of their motion for class certification. See Fed. R.

Civ. P. 23. We review a district court’s refusal to certify a class for abuse of

discretion. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939 (9th Cir.

2009). We see none and we affirm.

The district court concluded that Reitman had failed to satisfy Rule

23(b)(3)’s predominance requirements. Specifically, the district court found that,

although all dog food packages may have a common message, whether that

message is misleading could only be determined by separately examining each bag

because the packaging of each bag contains different information. Reitman argues

that the district court erred by focusing its predominance analysis only on

affirmative misrepresentations and failing to consider allegedly uniform and

material omissions from the dog food bag packaging. We disagree.

1 Plaintiffs-Appellants are Jennifer Reitman, Carol Shoaff, and Erin Grant. We refer to them collectively as “Reitman.” 2 Similarly, we refer to Defendants-Appellants Champion Petfoods USA, Inc. and Champion Petfoods LP collectively as “Champion.” 2 The district court’s conclusion that individualized inquiries requiring bag-to-

bag determinations predominate over common questions applies whether the

misrepresentations are based on affirmative statements on, or omissions from, the

packaging. And Reitman does not explain how creating subclasses based on diets

would cure the need for individualized bag-to-bag inquiries. Accordingly, the

district court correctly held that the predominance requirement had not been

satisfied and that creating subclasses would be futile.

The district court also properly found that Reitman’s damages models failed

to satisfy the standard set out in Comcast Corp. v. Behrend, 569 U.S. 27 (2013).

Reitman’s “price premium” model failed to measure the price difference

attributable to misleading statements on, or omissions from, the packaging. In

other words, the model measured only the differing customer expectations based

on various corrective statements in the abstract and failed to measure the

“difference between what the plaintiff paid and the value of what the plaintiff

received.” In re Vioxx Class Cases, 103 Cal. Rptr. 3d 83, 96 (Cal. Ct. App. 2009);

see also Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 989 (9th Cir.

2015).

Moreover, the district court correctly found that a full refund model was

inappropriate for Reitman’s proposed pentobarbital subclass because there were

3 potential class members who never purchased bags with contaminant.

Additionally, “[a] full refund may be available . . . when the plaintiffs prove the

product had no value to them.” In re Tobacco Cases II, 192 Cal. Rptr. 3d 881, 895

(Cal. Ct. App. 2015). Thus, Reitman’s failure to explain why a risk of

contamination renders the product completely valueless for even those class

members who did purchase a contaminated bag was a sufficient basis for rejecting

the subclass they posited.

Finally, the district court applied the correct standard in denying Reitman’s

request to create a liability-only class or issue classes under Rule 23(c)(4). The

district court concluded, while acknowledging that predominance was not required

for certifying a class under Rule 23(c)(4), that numerous individualized issues

affecting determinations of liability make Rule 23(c)(4) certification inefficient.

Indeed, Rule 23(c)(4) enables a district court to certify an issue class “[w]hen

appropriate,” but a court does not abuse its discretion when it declines to do so

because certifying a class does not “materially advance[] the disposition of the

litigation as a whole.” William B. Rubenstein, 2 Newberg on Class Actions 4:90

(5th ed. 2012); see also Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th

Cir. 1996) (finding that the “district court abused its discretion by not adequately

considering the predominance requirement before certifying the [issue] class”).

4 Because Reitman failed to show that Rule 23(c)(4) certification was “appropriate,”

the district court did not abuse its discretion when it denied certification.

We have considered the remainder of Reitman’s arguments and find them to

be without merit. Thus, the district court’s denial of class certification is

AFFIRMED.

5