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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 KIMBERLY BANKS and CAROL ) Case No. 20‐cv‐06208 DDP (RAOx) CANTWELL, on behalf of themselves ) 12 and all others similarly situated ) ORDER GRANTING CLASS 13 ) CERTIFICATION, DENYING 14 Plaintiff, ) MOTIONS TO STRIKE ) 15 v. ) [Dkt. 39, 49, 50, 51] ) 16 R.C. BIGELOW, INC., a Corporation; ) 17 and DOES 1 through 10, inclusive, ) ) 18 Defendants. ) 19 ) 20 21 Presently before the Court are Plaintiffs’ Motion to Certify Class and Defendants’ 22 Motions to Strike the Expert Reports of Colin B. Weir, J. Michael Dennis, and Cory 23 Carter. Having considered the parties’ submissions, and heard oral argument, the Court 24 adopts the following order. 25 I. BACKGROUND 26 The parties are aware of the factual background in this case, as detailed in the 27 Court’s previous order. (Dkt. 22). Plaintiffs Kimblerly Banks and Carol Cantwell bring 1 that was processed abroad with a label reading “Manufactured in the USA 100% Family 2 Owned” (hereinafter the “Label”). Plaintiffs seek class certification as to (1) the California 3 Consumer Legal Remedies Act (“CLRA”), (2) common law fraud and intentional 4 misrepresentation, (3) negligent misrepresentation, and (4) breach of express warranty. 5 Plaintiffs propose the following class: 6 All natural persons who purchased at least one 18/20 count box of Bigelow Earl 7 Grey Black Tea Caffeine, Green Tea Caffeine, Constant Comment Black Tea 8 Caffeine, Green Lemon Tea Caffeine, Vanilla Chai Black Tea Caffeine, English Tea 9 Time Black Tea Caffeine, Spiced Chai Black Tea Caffeine, French Vanilla Black Tea 10 Caffeine, or Vanilla Caramel Black Tea Caffeine, labeled as “Manufactured in the 11 USA 100% American Family Owned,” at a retail store in the state of California, at 12 any time from July 13, 2017 to the present. 13 II. LEGAL STANDARD 14 In determining the propriety of a class action, the question is not whether the 15 plaintiff has stated a cause of action or will prevail on the merits, but rather whether the 16 requirements of Rule 23 are met. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) 17 (citations omitted). The party seeking class certification bears the burden of showing that 18 each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 19 23(b) are met. Blake v. Arnett, 663 F.2d 906, 912 (9th Cir. 1981). Rule 23(a) sets forth four 20 prerequisites for class certification: 21 (1) the class is so numerous that joinder of all members is impracticable; 22 (2) there are questions of law or fact common to the class; 23 (3) the claims or defenses of the representative parties are typical of the 24 claims or defenses of the class; and 25 (4) the representative parties will fairly and adequately protect the 26 interests of the class. 27 Fed. R. Civ. P. 23(a). 1 Relevant here, Rule 23(b)(3) requires that “questions of law or fact common to 2 class members predominate over individual questions . . . and that a class action is 3 superior to other available methods for fairly and efficiently adjudicating the 4 controversy.” Fed. R. Civ. P. 23(b)(3). 5 III. DISCUSSION 6 A. Rule 23(a) Requirements 7 To show that class certification is warranted, Plaintiffs must show that all four 8 prerequisites listed in Rule 23(a) are satisfied. 9 1. Numerosity 10 Numerosity is satisfied if “the class is so numerous that joinder of all members is 11 impracticable.” Fed. R. Civ. P. 23(a)(1). Defendants do not contest numerosity. Here, the 12 products at issue were sold to at least 100 (and likely a great deal more) different 13 consumers in California during the class period. (Dkt. 39‐49). Thus, numerosity is met. 14 2. Commonality 15 Commonality is satisfied if “there are questions of law or fact common to the 16 class.” Fed. R. Civ. P. 23(a)(2). “The requirements of Rule 23(a)(2) have been construed 17 permissively, and all questions of fact and law need not be common to satisfy the rule.” 18 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (citations omitted). 19 Defendants dispute that the labels were consistent enough to satisfy the commonality 20 requirement. Because the commonality inquiry is subsumed by the more stringent 21 predominance inquiry, infra Section III.C, the court does not analyze commonality here. 22 See Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 609 (1997). 23 3. Typicality 24 Typicality is satisfied if “the claims or defenses of the representative parties are 25 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The test of 26 typicality is whether other members have the same or similar injury, whether the action 27 is based on conduct which is not unique to the named plaintiffs, and whether other class 1 members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp., 2 976 F.2d 497, 508 (9th Cir. 1992) (citations omitted). 3 Plaintiffs began buying Bigelow tea in the 1980s (Cantwell) and in 2015 (Banks). 4 (Dkt. 52‐22 & 57‐3, Cantwell Depo., 25:11‐18, 68:17‐70:4); (Dkt. 52‐24 & 57‐2, Banks Depo., 5 26:24‐27:19). Banks first recalled seeing the Label in 2019, four years after she began 6 consuming the tea and two years after the Label was launched in 2017. Banks Depo. 72:1‐ 7 18. Cantwell first saw the Label around 2018. Cantwell Depo. 125:3‐17. Both plaintiff 8 representatives stopped purchasing the Products after learning that the tea was not 9 grown in the United States. Banks Depo. 25:25‐26:1. 10 Plaintiffs assert that they are typical of other class members, because they 11 purchased the Products “in part based on their belief the Products were [m]ade in the 12 USA.” (Mot. at 11). Defendants argue that Plaintiffs “cannot credibly demonstrate 13 reliance” on the Label and are thus subject to unique defenses not applicable to other 14 class members. (Opp. at 12‐13). In support of their contention, Defendants represent that 15 Plaintiffs, more concerned with other factors such as taste, could not even remember 16 when the Products began to bear the Label. (Opp. at 13). Instead, Defendants characterize 17 Plaintiffs as longtime Bigelow consumers who “do not actually care about the source of 18 their tea.” (Opp. at 10). 19 That Plaintiffs may have considered other factors in their purchasing decisions 20 does not make them atypical. Astiana v. Kashi Co., 291 F.R.D. 493, 503 (S.D. Cal. 2013). It is 21 unlikely that Plaintiffs are uniquely concerned about taste compared to the rest of the 22 class of tea purchasers, and Defendants would use the defense of lack of reliance against 23 any plaintiffs. See Fitzhenry‐Russell v. Dr. Pepper Snapple Grp., Inc., 326 F.R.D. 592, 609 24 (N.D. Cal. 2018) (finding that, because defendants would contest that any Canada Dry 25 purchaser made their purchase in reliance on the “made with real ginger” label, this 26 defense was not unique to named plaintiffs and did not defeat typicality). Thus, Plaintiffs 27 have established typicality. 1 4. Adequacy 2 Adequacy of representation is satisfied if “the representative parties will fairly and 3 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Inasmuch as it is 4 conceptually distinct from commonality and typicality, this prerequisite is primarily 5 concerned with “the competency of class counsel and conflicts of interest.” Gen. Tel. Co. of 6 Southwest v. Falcon, 457 U.S. 147, 158 n.13 (1982). Thus, “courts must resolve two 7 questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with 8 other class members and (2) will the named plaintiffs and their counsel prosecute the 9 action vigorously on behalf of the class?” Ellis, 657 F.3d at 985. 10 Defendant argues that Plaintiffs cannot adequately represent the class because 11 they were solicited to participate in a class action lawsuit via a website. Opp. at 20. 12 Defendant cites Bodner v. Oreck Direct for the proposition that an attorney who solicits 13 clients for a class action does not meet the adequacy requirement. Bodner v. Oreck Direct, 14 LLC, No. C 06‐4756 MHP, 2007 WL 1223777 (N.D. Cal. Apr. 25, 2007). In Bodner, the court 15 stressed that the named plaintiff had never read the complaint and exhibited 16 “overwhelming ignorance regarding the nature of this action, the facts alleged, and the 17 theories of relief against defendant.” Id. at *2. Moreover, the court noted that plaintiff’s 18 attorney had previously been disqualified for bringing a class action suit using a relative 19 as the named plaintiff. Id. 20 Here, Plaintiffs do not have a perfect memory of the labels on the products they 21 purchased. See, e.g., Banks Depo. 56:7‐9, 55:22‐24; Cantwell Depo 45:5‐14. Nonetheless, 22 Plaintiffs clearly reviewed the pleadings and understand the basis for their claims. See, 23 e.g., Banks Depo 91:11; Cantwell 22:1. Unlike the Bodner plaintiff, Plaintiffs here are not 24 “overwhelming[ly] ignoran[t]” of the case such that they cannot adequately represent the 25 class. Moreover, Plaintiffs’ counsel have not been accused of the kind of conflicts of 26 interest that led the Bodner court to refuse to certify the class. Bodner, 2007 WL 1223777 at 27 *3 (“In short, the conduct in this action does not look good, does not sound good, and 1 does not smell good. In fact, it reeks. The court will not participate in this scheme by 2 certifying a class.”). On the contrary, Plaintiffs have participated actively in their case and 3 declared their loyalty to the putative class. See Banks Decl. ¶ 12; Cantwell Decl. ¶ 12. 4 Accordingly, Plaintiffs have established adequacy. 5 B. Daubert motions 6 In support of their 23(b)(3) arguments, Plaintiffs supplied expert reports and 7 testimony from Colin B. Weir, J. Michael Dennis, and Cory Carter. Defendants moved to 8 strike the reports and testimony of all three witnesses, on the grounds that they fail to 9 meet the standards required by Federal Rule of Evidence 702 and Daubert v. Merrell Dow 10 Pharmaceuticals, Inc., 509 U.S. 579 (1993). 11 Where “scientific, technical, or other specialized knowledge will assist the trier of 12 fact” to understand evidentiary or factual issues, an expert witness who is qualified by 13 “knowledge, skill, experience, training, or education” may “testify thereto in the form of 14 an opinion or otherwise.” Fed. R. Evid. 702. Trial courts have a gatekeeping function 15 regarding expert testimony. Daubert 509 U.S at 597. The focus should be “solely on 16 principles and methodology, not on the conclusions they generate.” Id. at 595. Factors 17 relevant to reliability include, but are not limited to, “whether the theory or technique 18 employed by the expert is generally accepted in the scientific community; whether itʹs 19 been subjected to peer review and publication; whether it can be and has been tested; and 20 whether the known or potential rate of error is acceptable.” Wendell v. GlaxoSmithKline, 21 LLC, 858 F.3d 1227, 1232 (9th Cir. 2017) (citations omitted). The proponent of the expert 22 testimony has the burden of establishing that the relevant admissibility requirements are 23 met by a “preponderance of the evidence.” Daubert, 509 U.S. at 592 n.10 (citations 24 omitted). 25 Here, Plaintiffs rely on their three experts to prove that their claims satisfy the 26 elements of Rule 23(b)(3). Each expert’s admissibility is discussed in turn.

27 1 1. Carter 2 Carter is a regulatory specialist in the food labeling field. (Carter Decl. ¶19). 3 Plaintiffs offer Carter’s opinion to establish how the food labeling industry analyzes 4 “Made in USA” claims. (Carter Opp. at 4). Specifically, Plaintiffs refer to Carter’s opinion 5 to establish that the Label is an “unqualified Made in USA claim” satisfying the 6 deception element of their breach of warranty claim. (Mot. at 17). 7 Defendants move to strike Carter’s report and testimony on three grounds. First, 8 they argue that Carter’s conclusions about the Label are irrelevant, because they apply 9 only to federal and state “Made in USA” statutes that do not form the basis of any of 10 Plaintiffs’ remaining claims. Second, they argue that Carter’s opinions about the 11 applicability of federal and statute statutes to the Label are impermissible legal 12 conclusions. 13 To the extent that Carter’s report contains extraneous information not relevant to 14 the Court’s decision on class certification, or states impermissible legal conclusions, the 15 Court disregards that information without striking the entire report. Nonetheless, 16 Carter’s opinion is relevant and admissible to support Plaintiffs’ contention that the 17 deceptiveness of the Label can be proved through common evidence. Carter’s report and 18 testimony incorporates FTC and California statutory guidance, as well as Carter’s own 19 opinion, regarding what a reasonable consumer would come to believe based on the 20 Label. 21 2. Weir 22 The motion to strike Weir’s report is discussed infra, section III.C.3. 23 3. Dennis 24 Dennis is a consumer survey expert whom Plaintiff retained to measure consumer 25 perceptions of the Label. (Dennis Decl. ¶20). Dennis concludes, based on his survey, that 26 84.4% of consumers understood the Label to mean that the tea was “processed” in the USA. 27 1 Defendants first move to strike Dennis’ report because it does not test what the word 2 “processed” means to consumers in this context. As discussed below, the Court does not 3 find the word “processed” to be as inherently ambiguous as verbiage in the cases 4 Defendants cites. 5 Defendants further argue that the Court should strike Dennis’ report because it uses 6 only close‐ended questions, leading to biased and unreliable results. But unlike the close‐ 7 ended questions in In re Kind LLC “Healthy & All Natural” Litig., 2022 WWL 4125065 (SDNY 8 Sep. 9, 2022), here the survey included contrasting options consistent with Defendants’ 9 competed theory. That is, Dennis surveyed consumers about whether the Label conveyed 10 that the tea was “blended” and “packaged” in the United States, which is Defendants’ 11 suggested interpretation of the Label. See, e.g., Dkt. 49 (arguing that consumers polled in 12 Weir’s survey may have “believed correctly that Bigelow’s product is blended and 13 packaged in the United States.”). Thus, the Court finds Dennis’ report is sufficiently 14 reliable and relevant to support Plaintiffs’ argument that consumers interpret the Label to 15 convey that the tea was 100% “processed” in the United States. 16 C. Rule 23(b)(3) Requirements 17 A class action may be certified under Rule 23(b)(3) if “the questions of law or fact 18 common to class members predominate over any questions affecting only individual 19 members, and that a class action is superior to other available methods for fairly and 20 efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).1 In making its findings 21 on these two issues, courts may consider “the class members’ interests in individually 22 controlling the prosecution or defense of separate actions,” “the extent and nature of any 23

24 1 Defendants do not dispute the superiority element of the 23(b)(3) inquiry. As Plaintiffs assert, individual 25 Class members’ damages are modest relative to the time and expense required to properly prosecute these claims. See Just Film, Inc. v. Buono, 847 F.3d 1108, 1123 (9th Cir. 2017) (affirming finding of superiority in 26 case where individual damages are too small “to make litigation cost effective in a case against funded defenses and with a likely need for expert testimony”). Accordingly, the Court finds the superiority 27 element is met here. 1 litigation concerning the controversy already begun by or against class members,” “the 2 desirability or undesirability of concentrating the litigation of the claims in the particular 3 forum,” and “the likely difficulties in managing a class action.” Id. 4 “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are 5 sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. 6 Windsor, 521 U.S. 591, 623 (1997). “Even if Rule 23(a)ʹs commonality requirement may be 7 satisfied by [a] shared experience, the predominance criterion is far more demanding.” 8 Id. at 623‐24. Predominance cannot be satisfied if there is a much “greater number” of 9 “significant questions peculiar to the several categories of class members, and to 10 individuals within each category.” Id. at 624. However, Rule 23(b)(3) predominance 11 “requires a showing that questions common to the class predominate, not that those 12 questions will be answered, on the merits, in favor of the class.” Amgen Inc. v. Connecticut 13 Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013). 14 1. Exposure 15 Defendants argue that individual questions predominate about class members’ 16 exposure to the Label, because: (1) products with the Label appeared at different times, 17 for different durations, due to “haphazard” shipment to stores; and (2) the Label was not 18 prominent enough to infer class‐wide exposure. (Opp. at 16, 23). 19 a) Staggered Rollout 20 Plaintiffs’ proposed class targets products bearing the Label at a retail “at any time 21 from July 13, 2017 to the present.” Defendants’ argue that this timeframe contains 22 “tremendous variability in the distribution timeline of products” bearing the Label, such 23 that individual questions about “when and what version of the packaging consumers 24 purchased” predominate. Defendants represent that they approved the Label on October 25 17‐18, 2017, and products bearing the Label were then “haphazardly shipped over a nine‐ 26 week period.” (Opp. at 16; see Dkt. 52‐1 at ¶14 (breakdown of ship dates)). 27 1 The issue of label variability is not unique to this case. In McCrary v. Elations, 2 Plaintiffs sought to certify a class consisting of all purchasers of a product since January 3 28, 2009, when “clinically‐proven” claims were on the packaging. McCrary v. Elations Co., 4 LLC, 2014 WL 1778243 at *7 (C.D. Cal. Jan. 13, 2014). The defendants argued that the 5 allegedly false representation was not on every available product during the class period. 6 Id. at *9. The court nevertheless certified the class, noting that the class definition—as 7 here—excluded purchasers whose products did not bear “clinically‐proven” claims. Id. at 8 *13. In doing so, the court distinguished Pfizer, in which plaintiffs sought to certify a class 9 consisting of “[a]ll persons who purchased Listerine with labels that state ‘as effective as 10 floss,’ in California, from June 28, 2004 through January 7, 2005.” Id.; Pfizer Inc. v. Superior 11 Court, 182 Cal. App. 4th 622, 626 (Cal. Ct. App. 2010)). 12 The Pfizer court noted that the many Listerine bottles purchased during the class 13 period, “if not most,” did not actually contain the allegedly misleading claim, because 14 Listerine only included the claim on 19 out of their 34 kinds of mouthwash. Pfizer, 182 15 Cal. App. 4th at 631. The label in McCrary, on the other hand, was featured on “the 16 packaging of every unit for an extended period.” McCrary, 2014 WL 1778243 at *13 (citing 17 Johns v. Bayer Corp., 280 F.R.D. 551, 558 (S.D. Cal. 2012); Wiener v. Dannon Co., 255 F.R.D. 18 658, 669 (C.D. Cal. 2009)). 19 Likewise here, even accounting for the nine‐week delay between Label approval 20 and shipping for some products, the Label was printed on all products identified in the 21 class definition throughout the vast majority of the period between October 2017 and 22 2021. See Declaration of John McGraw ISO Opp., Dkt. 52‐1 at ¶ 9, 10. Thus, like McCrary 23 and unlike Pfizer, the staggered rollout of the Label here does not create individual 24 questions that predominate over common questions. That said, the class definition 25 should not begin months before the Label was first approved, let alone shipped. The class 26 definition must be adjusted to begin in October 2017. See Brown v. Hain Celestial Group, 27 1 |] Inc., 2014 WL 6483216 at *8 (N.D. Cal. Nov. 18, 2014) (permitting similar class redefinitior 2 || and collecting relevant cases). 3 b) Prominence of Label 4 Defendants further argue that even as to products that did bear the Label, the 5 || Label was not sufficiently prominent to assume that all purchasers saw the Label. 6 || Defendants cite to Zakaria v. Gerber and Hadley v. Kellogg Sales Co. to support their 7 || arguments. 8 In Zakaria v. Gerber, the court held that a statement on an infant formula label was 9 || not prominent enough to infer that consumers would have seen the statement. 2016 WL 10 || 6662723 at *8. 11 = Poe □□ BY DATE ON SDE PANEL □

13 en on el one eciecem | Gerber |Ze=2 ie, |, ow. Sa u“ GOOD START. mana [LSE eee) | ef=saial= A ‘Year baby’s health depends 20 | wash your hands and utensils before formula. WADNINGE: Onnct wie □□□□□□□□□ te || 15 a alo == □□ rt 2 Sega aoe 16 ee acest | □ sini rama man pent 17 we p= GRAIN Seam SOFT BAKED os 19 20 DE. SALLIE ue ig □□ ge ta 21 ad 2? Pd al Sr seer to cea TT Ta 23 PUL MP psi 8 ile. eal Oe ba a a Psat] ay 24 Dal 25 In Hadley v. Kellogg Sales Co., the court cited Zakaria for the proposition that the 26 || phrase “wholesome goodness” in small font, in the middle of a block of text, on the back 27 28 11

1 || panel of a package was not “sufficiently prominently displayed to warrant an inference 2 || of class-wide exposure.” 324 F.Supp. 3d 1084, 1099-1100 (citations omitted). 3 Here, the Label is on the back of tea boxes, but it is not in the middle of a block of 4 || text. It is set off to the side in bold type. 5 || The Label is more prominent than those defeating predominance in the cases Defendant 6 || cites. “It is reasonable that at least some consumers noticed it.” Zakaria, 2016 WL 6662723 7 || at *18. 8 2. Reliance 9 Defendants next argue that individual questions predominate about whether 10 || consumers relied on the Label. Namely, Defendants argue that consumers have different 11 || understandings of what “Manufactured in the USA means” and consumers bought the 12 || products for “a myriad of reasons” unrelated to the Label. 13 a) Common meaning 14 15 12254 Mh Om Wt} De Oi A Pe 16 aan 2 os 17 4 = 18 2STEPSTOAGREATCUP _ 73 CES ths A 3) OPUS) OF □□ □□□ Bes start resh cold water and bring per ta ie Peli tna cece accel peta □□□ toar g boil eal Re wee TMs he mba) ia) 19 Pour over tea bag, steep! stack rea PECK SS □□□ melons Gl BP Tivatoscqueesig please) olin MEE TNO Least 20 | 9 Be eT 71 Steep a | nger, Pour o kee CAFF-O-METER {certo per serving a eee oS 2 5 > WS erm eto URL oR AY VA raise PR Rothko verter iiiiius 23 i = ep oo a alla aa om au (aula ate) iy Ute black lea Green tea Decaf tea Merb \ea Thaker ti Ritmo s : aie 3 " thm 1+ Qos en 25 . . . . Plaintiffs do not dispute that Defendants blend and package their tea in the Unitec 26 States, but they assert that Defendants at least partially “process” their tea abroad. (See 27 28 12

1 Complaint ¶2). Plaintiffs submitted an expert report using survey data to conclude that 2 84.4% of consumers understand “Manufactured in the USA” to mean that the tea was 3 “processed” in the United States and 69.8% of consumers understand “Manufactured in 4 the USA” to mean that the tea was “processed, blended, and packaged” in the United 5 States.2 (See Dkt. 39‐55, Dennis Report ¶¶ 31‐32). Defendants argue, in turn, that 6 individual questions about what “manufactured” or “processed” means defeat 7 predominance. 8 Courts have held that where challenged representations are “inherently 9 ambiguous,” the issue of consumers’ likely deception is not subject to common proof and 10 predominance is not met. See Viczarra v. Unilever, 339 F.R.D. 530, 547 (N.D. Cal. 2021). 11 Specifically, misrepresentation claims concerning the terms “natural vanilla,” “all 12 natural,” and “energy” have been found ambiguous enough to defeat class certification 13 on predominance grounds. Id.; Astiana v. Kashi Co., 291 F.R.D. 493, 508 (S.D. Cal. 2013); In 14 re 5‐Hour Energy Mktg. & Sales Pracs. Litig., No. ML 13‐2438, 2017 WL 2559615, at *4 (C.D. 15 Cal. June 7, 2017). Courts have rejected ambiguity arguments, on the other hand, as to the 16 terms “real ginger” and “imported from Italy,” Fitzhenry‐Russell v. Dr. Pepper Snapple 17 Grp., Inc., 326 F.R.D. 592, 613 (N.D. Cal. 2018); Kumar v. Salov N. Am. Corp., No. 14‐CV‐ 18 2411‐YGR, 2016 WL 3844334, at *9 (N.D. Cal. July 15, 2016). 19 Plaintiffs’ theory of liability is that the Label is misleading since Defendants grow 20 and partially process their tea abroad. (Mot. at 4) (asserting that Defendants grow, pick, 21 roll, oxidize, dry, and sort their tea abroad); (Opp. at 4) (acknowledging that the tea 22 leaves are at least partially processed abroad). Here, the term “manufactured” is less 23 ambiguous than “natural” and “energy;” as discussed in this Court’s previous order, 24 “manufacture” means to make something from raw materials by hand or machinery. 25

26 27 2 In their Reply, Plaintiffs state that “Dennis’s findings also show that consumers believe the tea is sourced in the USA,” but the Court was unable to locate any such finding in Dennis’s report. Cf. Reply at 20‐21. 1 (Dkt. 22 at 7). Furthermore, Plaintiffs have pointed to evidence that consumers 2 understand “manufactured” in this context to mean “processed.” (Dkt. 39‐55, Dennis 3 Report ¶31). The Label is not so ambiguous as to create individual questions defeating 4 predominance. 5 b) Materiality to Consumers 6 Lastly, Defendants argue that individual questions predominate about materiality, 7 because Plaintiffs cannot show that the Label factored into consumers’ purchase 8 decisions. (Opp. at 18). A misrepresentation is “material” under the CLRA if a reasonable 9 consumer would attach importance to its existence. Townsend, 303 F.Supp.3d at 1029‐30. 10 Because of this objective standard, courts have held that CLRA and related California 11 common law claims are “particularly suited for class treatment.” See Brickman v. Fitbit, 12 2017 WL 5569827 at *6 (N.D. Cal. Nov. 20, 2017). That said, Plaintiffs must still “point to 13 some type of common proof” establishing that the Label factors into consumers’ 14 purchase decisions. See Badella v. Deniro Marketing, 2011 WL 5358400 at *9 (N.D. Cal. Nov. 15 4, 2011). 16 Here, Plaintiffs cite to “Made in USA laws,” which assertedly prove that “the 17 legislature has deemed that the practice constitutes a ‘material’ misrepresentation.” 18 (Reply at 10) (citing Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1107 (9th Cir. 2013); Vizcarra, 339 19 F.R.D at 548). Indeed, statutory and case law support the proposition that a reasonable 20 consumer would attach importance to the allegedly misleading statement at issue here. 21 See, e.g., Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 329 (2011) (statutory and internal 22 case citations omitted); Colgan v. Leatherman Tool Group, Inc., 135 Cal. App. 4th 663, 682 23 (citing FTC guidance). Thus, unlike the cases cited by Defendants, individual questions 24 about the materiality of the 100% Manufactured in the USA label do not defeat 25 predominance. Cf. Townsend, 303 F.Supp.3d at 1044‐45.

26 27 1 3. Damages 2 To show that common questions predominate over individual ones, Plaintiffs 3 must also show that “damages are capable of measurement on a classwide basis.” Just 4 Film, Inc. v. Buono, 847 F.3d 1108, 1120 (9th Cir. 2017) (quoting Comcast v. Behrend, 569 U.S. 5 27, 34 (2013)). Plaintiffs plan to establish classwide damages by using conjoint analysis to 6 calculate a price premium, as set forth in Weir’s report. Defendants argue that Weir’s 7 report should be excluded for the below reasons, and that the Court should, for the same 8 reasons, hold that Plaintiffs have not carried their burden to establish a method for 9 calculating classwide damages. 10 Defendants first argue that Weir lacks “specialized education, training, or 11 experience” in conducting the survey portion of conjoint analysis. Defendants list several 12 cases in which Weir appeared as an expert witness, but another expert conducted the 13 survey portion of the conjoint analysis. In a rebuttal declaration, Weir clarified that he did 14 design the survey portion of several conjoint analyses. (Dkt. 59‐1 at ¶22). Further, Weir 15 reports he has completed graduate‐level coursework on conjoint analysis. (Dkt. 39‐56 at 16 ¶3). The Court finds that Weir has sufficient education and experience under Rule 702. See 17 Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 814 (9th Cir. 2014). 18 Defendants further argue that Weir’s conjoint analysis should be excluded because: 19 (1) it tests the entire Label (“Manufactured in the USA 100% American Family Owned”) 20 rather than the “Manufactured in the USA 100%” message alone, and (2) it fails to account 21 for supply‐side factors.3 22 a) Lack of Specificity 23 Any price premium in Weir’s results is, according to Defendants, attributable to 24 the “Family Owned” statement and therefore not at issue in this suit. But unlike in 25 26 3 Defendants also argue that Weir’s report does not account for those consumers who believe “manufactured” means “blended and packaged” and therefore were not deceived by the label. For the 27 reasons discussed in section III.C.2, the Court disagrees. 1 McMorrow v. Mondolez, Plaintiffs seek damages related to the whole Label. (Complaint 2 ¶57; see also Dkt. 57‐2 at 67:6‐13 (opining that repeated references to “America” on 3 product packaging “screamed America”); Dennis Decl. (opining that the Label is an 4 express unqualified Made in USA Claim under federal law and FTC guidance relating to 5 “Made in USA” claims); Order re: MTD, Dkt. 22 (“Collectively, the representations 6 “America’s Classic”, “Manufactured in the USA,” “100%,” and “American Family 7 Owned” contribute to the alleged deceptive impression that the Products are 8 manufactured in the United States.”); cf McMorrow v. Mondolez, 2020 WL 1157191 (S.D. 9 Cal. March 9, 2020). Defendants, for their part, dispute that any component of the Label 10 influenced purchasers. (Opp. at 19) (“The labeling statements that refer to “American” or 11 “America” on the packaging of Bigelow tea, including “America’s Classic” and 12 “Manufactured in the USA,” had zero impact on purchasing interest.”). That Defendants’ 13 expert disagrees with Weir on the impact of the Label on purchasing interest goes to the 14 weight of Weir’s testimony rather than its admissibility. See Primiano v. Cook, 598 F.3d 15 558, 565 (9th Cir. 2010). 16 b) Supply‐Side Factors 17 Defendants additionally ask the Court to “follow the line of cases finding conjoint 18 analysis does not properly account for supply‐side factors.” (Dkt. 64 at 5). Indeed, a few 19 District Court opinions have held that conjoint analysis did not appropriately estimate 20 class‐wide damages “by looking only to consumer demand while ignoring supply.” 21 Saavedra v. Eli Lilly & Co., No. 2:12‐CV‐9366‐SVW, 2014 WL 7338930, at *5 (C.D. Cal. Dec. 22 18, 2014); see also In re NJOY, Inc. Consumer Class Action Litig., No. 14‐cv‐428‐JFW (JEMx), 23 2016 WL 787415 (C.D. Cal. Feb. 2, 2016); In re Volkswagen ʺClean Dieselʺ Mktg., Sales Pracs., 24 & Prod. Liab. Litig., 500 F. Supp. 3d 940, 949 (N.D. Cal. 2020); In re Gen. Motors LLC Ignition 25 Switch Litig., 407 F. Supp. 3d 212, 238‐39 (S.D.N.Y. 2019). 26 Plaintiffs distinguish the present case from Defendants’ proffered cases, and 27 Defendants do not rebut these distinctions. (See Dkt. 64 at 5:1‐12). Indeed, the allegations and products at issue here resemble the “classic mislabeling case” in which conjoint 1 analysis “makes sense.” See In re GM, 407 F.Supp. at 238‐39. Weir used actual historic 2 prices and quantities as the basis for his survey, thus sufficiently accounting for supply‐ 3 side factors. See Hadley, 324 F. Supp. 3d at 1105 (collecting cases supporting the 4 proposition that conjoint analysis is acceptable to calculate classwide damages “when (1) 5 the prices used in the surveys underlying the analyses reflect the actual market prices 6 that prevailed during the class period; and (2) the quantities used (or assumed) in the 7 statistical calculations reflect the actual quantities of products sold during the class 8 period”) (citations omitted). Thus, the Court declines to “wade into” the so‐called 9 10 “debate” about whether conjoint analysis categorically fails to satisfy Comcast and instead 11 holds that the cases Defendants cite are distinguishable. To the extent that Defendants’ 12 expert can challenge Plaintiffs’ price premium by showing that Defendants did not 13 charge more for products with the Label, that evidence goes to the weight of Weir’s 14 testimony rather than its admissibility. In sum, the Court finds that Weir’s report is 15 admissible and adequate, at the class certification stage, to show that damages are 16 capable of measurement on a class‐wide basis. 17 4. Conclusion 18 For the forgoing reasons, the Court finds that common questions predominate 19 over individual ones. The class is bound by common questions, including: (1) whether 20 reasonable consumers would believe, based on the Label, that Defendants’ products were 21 100% manufactured and processed in the United States, and (2) whether Defendants’ 22 products actually were 100% manufactured and processed in the United States. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 |} IV. CONCLUSION 2 For all the above reasons, the Court GRANTS Plaintiffs’ Motion for Class 3 || Certification, modifying its definition to reflect the first ship-date: 4 . All natural persons who purchased at least one 18/20 count box of Bigelow Earl Grey 5 || Black Tea Caffeine, Green Tea Caffeine, Constant Comment Black Tea Caffeine, Green 6 Lemon Tea Caffeine, Vanilla Chai Black Tea Caffeine, English Tea Time Black Tea Caffeine, Spiced Chai Black Tea Caffeine, French Vanilla Black Tea Caffeine, or Vanilla 7 || Caramel Black Tea Caffeine, labeled as “Manufactured in the USA 100% American 8 Family Owned,” at a retail store in the state of California, at any time from October 17, 2017 to the present. 9 10 IT IS SO ORDERED. 11 || Dated: July 31, 2023 12 __ 13 DEAN D. PREGERSON

UNITED STATES DISTRICT JUDGE

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