BURSOR & FISHER, P.A. - · PDF file727 F.3d 300 (3d Cir. 2013) ..... 1, 16, 18, 19, 28, 29 Chavez v. Blue Sky Natural Beverage Co., 268 ... Estate of Marcos, 103 F.3d 767 (9th Cir

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BURSOR & FISHER, P.A. L. Timothy Fisher (State Bar No. 191626) Sarah N. Westcot (State Bar No. 264916) Annick M. Persinger (State Bar No. 272996) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-Mail: [email protected] [email protected] [email protected] FARUQI & FARUQI, LLP David E. Bower (State Bar No. 119546) 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Phone: (424) 256-2884 Fax: (424) 256-2885 Email: [email protected] Co-Lead Counsel for Plaintiffs (Additional Counsel on Signature Page)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ENZO FORCELLATI and LISA ROEMMICH, on Behalf of Themselves and all Others Similarly Situated, Plaintiffs,

v.

HYLAND’S, INC., STANDARD HOMEOPATHIC LABORATORIES, INC., and STANDARD HOMEOPATHIC COMPANY, Defendants.

Case No. 2:12-cv-01983 GHK (MRW) CLASS ACTION

JOINT SUPPLEMENTAL BRIEF CONCERNING ASCERTAINABILITY OF CLASS MEMBERS

Courtroom: 650 Judge: Hon. George H. King

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28 JOINT SUPPLEMENTAL BRIEF CONCERNING ASCERTAINABILITY OF CLASS MEMBERSCASE NO. 2:12-CV-01983 GHK (MRW)

TABLE OF CONTENTS

PAGE(S)

PLAINTIFFS’ POSITION ........................................................................................... 1 1. The Proposed Classes Are Ascertainable Under the Law in the

Ninth Circuit and the Court Should Not Follow the Third Circuit’s Decision in Carrera............................................................................ 1

2. Defendants Will Not Be Harmed if Some Class Members Are Not Identified ..................................................................................................... 3

3. A Class Action Is the Superior Means of Adjudicating This Dispute and Any Concerns About Fraudulent Claims Are Premature and Likely Insignificant ................................................................... 4

4. Since the Class Members Will Be Adequately Represented at All Times, the Class Members Will Be Bound By a Final Judgment ................... 11

5. Plaintiffs’ Proposal to Identify As Many Class Members As Possible ............................................................................................................ 13

DEFENDANTS’ POSITION ..................................................................................... 16 I. Inability to Reliably Ascertain Class Members Deprives

Defendants of Their Due Process Rights to Raise Individual Challenges and Defenses, And Will Harm Defendants By Preventing Them From Challenging Individual Members’ Claims ................ 17

II. The Difficulties in Managing This Action Make a Class Action an Inferior Method of Adjudicating This Controversy ................................... 22

III. Res Judicata is Undermined Where the Identity of Class Members Cannot Be Ascertained .................................................................................... 26 A. The Inability to Ascertain Class Members Creates Doubt

Concerning Who is Bound by a Judgment ............................................ 27 B. Inadequate Representation is a Basis for Collateral Attack

on a Prior Class Action Settlement or Judgment .................................. 28 IV. Defendant Requests the Opportunity to Respond to Plaintiffs’

Proposal for Identifying Class Members and Providing Notice ..................... 29

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JOINT SUPPLEMENTAL BRIEF CONCERNING ASCERTAINABILITY OF CLASS MEMBERSCASE NO. 2:12-CV-01983 GHK (MRW)

TABLE OF AUTHORITIES

Page(s) CASES

Agne v. Papa John’s International, Inc., 286 F.R.D. 559 (W.D. Wash. 2012) ..................................................................... 7

Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) ............................................................................................. 5

Astiana v. Ben & Jerry’s Homemade, Inc., 2014 U.S. Dist. LEXIS 1640 (N.D. Cal. Jan. 7, 2014); 2014 WL 60097 (N.D. Cal. Jan. 7, 2014) .............................................................................. 7, 8, 24

Astiana v. Kashi Co., 291 F.R.D. 493 (S.D. Cal. 2013) .............................................. 2, 6, 10, 14, 15, 21

Badella v. Deniro Mktg. LLC, 2011 WL 5358400 (N.D. Cal. Nov. 4, 2011) ..................................................... 22

Besinga v. United States, 923 F.2d 133 (9th Cir. 1991) .............................................................................. 27

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) .......................................................................... 5, 12

Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1992) ........................................................................ 28, 29

Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) ................................................... 1, 16, 18, 19, 28, 29

Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365 (N.D. Cal. 2010) ................................................................. 1, 2, 3

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ........................................................................................ 23

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984) ........................................................................................... 26

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TABLE OF AUTHORITIES (CONTINUED)

Page(s) Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,

244 F.3d 1152 (9th Cir. 2001) .............................................................................. 4

Dean v. Dick’s Sporting Goods, Inc., 2013 WL 3878946 (C.D. Cal. 2013) .................................................................. 15

Delarosa v. Boiron, Inc., 275 F.R.D. 582 (C.D. Cal. 2011) .................................................................... 2, 10

Dennis v. Kellogg Co., 2010 WL 4285011 (S.D. Cal. 2010) ................................................................... 12

Diacakis v. Comcast Corp., 2013 WL 1878921 (N.D. Cal. May 3, 2013) ..................................................... 16

Dubin & Dubin LLP v. Mayorga, 2013 U.S. Dist. LEXIS 109734 (W.D.N.Y. June 25, 2013) .............................. 15

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ........................................................................................... 23

Ewert v. eBay, Inc., Case Nos. C-07-02198 RMW, C-07-04487 RMW, 2010 WL 4269259 (N.D. Cal. Oct. 25, 2010) ................................................................................... 18

Frank v. United States Airlines, Inc., 216 F.3d 845 (9th Cir. 2000) ........................................................................ 12, 29

Galvan v. KDI Distribution Inc., 2011 WL 5116585 (C.D. Cal. 2011) ........................................................ 6, 13, 14

Goldberg v. Kelly, 397 U.S. 254 (1970) ........................................................................................... 17

Guido v. L’Oreal, USA, Inc., 2013 U.S. Dist. LEXIS 94031 (C.D. Cal. July 1, 2013) .................................. 2, 5

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ...................................................... 4, 10, 11, 12, 28

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Page(s) Hansberry v. Lee,

311 U.S. 32 (1940) ....................................................................................... 13, 20

Hernandez v. Chipotle, 2013 WL 6332002 (C.D. Cal. 2013) ......................................................................

Hernandez v. Chipotle Mexican Grill, No. CV 12–5543, 2013 WL 6332002 (C.D. Cal. Dec. 2, 2013) ........................................................... 7, 8, 20, 21, 22, 29

Hesse v. Sprint Corp., 598 F.3d 581 (9th Cir. 2010) .............................................................................. 29

Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) ................................................................................ 3

Hodes v. Van's Int'l Foods, No. 09–1530, U.S. Dist. LEXIS 72193 (C.D. Cal. July 23, 2009) .................... 25

Jermyn v. Best Buy Stores, L.P., 2010 U.S. Dist. LEXIS 130682 (S.D.N.Y. Dec. 6, 2010) .................................. 15

Johns v. Bayer Corp., 280 F.R.D. 551 (S.D. Cal. 2012) ................................................................ 2, 4, 10

Johnson v. Gen. Mills, Inc., 276 F.R.D. 519 (C.D. Cal. 2011) .................................................................. 2, 4, 5

Knutson v. Schwan’s Home Serv. Inc., 2013 WL 4774763 (S.D. Cal. 2013) ..................................................................... 6

Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) ...................................................................................... 18

Marcus v. BMW of N. Am. LLC, 687 F.3d 583 (3d. Cir. 2012) .......................................................................... 7, 18

Mazur v. eBay Inc., 275 F.R.D. 563 (N.D. Cal. 2009) ......................................................................... 7

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Page(s) McCrary v. The Elations Co., LLC,

2014 U.S. Dist. LEXIS 8443 (C.D. Cal. Jan. 13, 2014) ................. 1, 2, 3, 4, 8, 13

Middleton v. Arledge, 2008 WL 906525 (S.D. Miss. Mar. 31, 2008) .................................................... 22

Minkler v. Kramer Labs., Inc., No. 12-9421, 2013 WL 3185552 (C.D. Cal. Mar. 1, 2013) ............................... 24

Moheb v. Nutramax Labs. Inc., No. 12-3633, 2012 WL 6951904 (C.D. Cal. Sept. 4, 2012) .............................. 24

Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) .............................................................................. 29

Moralez v. Whole Foods Market, Inc., 897 F.Supp.2d 987 (N.D. Cal. 2012) .................................................................. 11

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) ........................................................................................... 12

O’Connor v. Boeing N.A., Inc., 184 F.R.D. 311 (C.D. Cal. 1998) ........................................................................ 16

Perez v. Metabolife Intern. Inc., 218 F.R.D. 262 (S.D. Fla. 2003) ........................................................................ 20

In re Phenylpropanolamine Prod. Liab. Litig., 214 F.R.D. 614 (W.D. Wash. 2003) ............................................................. 23, 24

Phillips Petroleum Co. v. Shutts, 472 U.S. 797( 1985) ........................................................................................... 27

In re POM Wonderful LLC Marketing and Sales Practices Litig., 2012 WL 4490860 (C.D. Cal. 2012) .................................................................... 2

Red v. Kraft Foods, Inc., 2012 WL 8019257 (C.D. Cal. 2012) ............................................ 2, 21, 23, 25, 28

Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) ......................................... 2, 3, 6, 11, 16, 21, 24

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Page(s) Rivera v. Bio Engineered Supplements & Nutrition, Inc.,

2008 WL 4906433 (C.D. Cal. 2008) .................................................................... 2

Rodriguez v. Gates, No. 99-13190, 2002 U.S. Dist. LEXIS 10654 (C.D. Cal. May 30, 2002) ......... 27

Rowden v. Pac. Parking Sys., No. 11-001190, 2012 WL 2552694 (C.D. Cal. July 2, 2012) ............................ 25

Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) .................................................................. 3, 11, 23

Smith v. Microsoft, No. 3:11-cv-01958, slip op. (S.D. Cal. Jan. 28, 2014) ....................................... 25

In re Tableware Antitrust Litig., 484 F.Supp.2d 1078 (N.D. Cal. 2007) ................................................................ 12

Thurston v. Bear Naked, Inc., 2013 WL 5664985 (S.D. Cal. 2013) ......................................................... 5, 10, 21

Tice v. Amer. Airlines, 162 F.3d 966 (7th Cir. 1999) .............................................................................. 13

In re Toys R Us-Delaware, Inc. – FACTA Litig. 2014 WL 198665 (C.D. Cal. 2014) ........................................................ 11, 12, 14

In re Valdez, 289 Fed. Appx. 2014 (9th Cir. 2008) ................................................................. 11

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ........................................................................................ 17

Weiner v. Dannon Co., Inc., 255 F.R.D. 658 (C.D. Cal. 2009) .................................................................... 5, 11

Wiener v. Snapple Beverage Co., No. 07 Civ. 8742 (DLC), 2010 WL 3119452 (S.D.N.Y. Aug. 5, 2010) ...... 19, 22

Williams v. Oberon Media, Inc., No. 10-56255, 2010 WL 8453723 (C.D. Cal., Apr. 10, 2010) .......................... 18

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Page(s) Wolph v. Acer Am. Corp.,

272 F.R.D. 477 (N.D. Cal. 2011) ....................................................................... 21

Xavier v. Philip Morris USA, Inc., 787 F. Supp. 2d 1075 (N.D. Cal. 2011) .............................................. 7, 18, 27, 28

Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) .............................................................................. 4

Zeisel v. Diamond Food, Inc., No. C 10–01192 JSW, 2011 U.S. Dist. LEXIS 60608 (N.D. Cal. June 7, 2011) ..................................................................................................................... 2

Zeisel v. Diamond Foods, Inc., 2011 WL 2221113 (N.D. Cal. 2011) .............................................................. 6, 13

RULES AND STATUTES

Cal. U. Com. Code, § 2714 ...................................................................................... 18

Cal. U. Com. Code, § 2715 ...................................................................................... 18

Fed. R. Civ. P. 23 ................................................. 5, 11, 12, 16, 17, 22, 23, 26, 27, 28

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JOINT SUPPLEMENTAL BRIEF CONCERNING ASCERTAINABILITY OF CLASS MEMBERS CASE NO. 2:12-CV-01983 GHK (MRW

PLAINTIFFS’ POSITION 1. The Proposed Classes Are Ascertainable Under the

Law in the Ninth Circuit and the Court Should Not Follow the Third Circuit’s Decision in Carrera

The Third Circuit’s decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir.

2013), is not the law in the Ninth Circuit, and should not be followed by this Court.

Just a few weeks ago, Judge Jesus Bernal of this District considered Carrera and

found it at odds with Ninth Circuit law:

Carrera eviscerates low purchase price consumer class actions in the Third Circuit….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.

McCrary v. The Elations Co., LLC, 2014 U.S. Dist. LEXIS 8443, at *24-25 (C.D.

Cal. Jan. 13, 2014) (emphasis added, internal quotations and citations omitted). As

Judge Bernal recognized, courts in the Ninth Circuit have repeatedly held that a class

is ascertainable if the class definition includes objective criteria by which consumers

can determine if they are members of the class. Id.; see also Chavez v. Blue Sky

Natural Beverage Co., 268 F.R.D. 365, 377 (N.D. Cal. 2010) (“By these objective

criteria the members of the class can be ascertained by tangible and practicable

standards for determining who is and who is not a member of the class.” (emphasis

added, internal quotations omitted)). Based on his conclusion that Carrera was

inapplicable and incorrect, Judge Bernal certified a class of Elations joint supplement

purchasers because “the class definition clearly define[d] the characteristics of a

class member by providing a description of the allegedly offending product and the

eligible dates of purchase,” and a prospective class member “would have sufficient

information to determine whether he or she was an Elations customer who viewed

the specified label during the stated time period.” McCrary, 2014 U.S. Dist. LEXIS

8443, *24.

Indeed, contrary to the Third Circuit’s reasoning in Carrera, courts in this

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JOINT SUPPLEMENTAL BRIEF CONCERNING ASCERTAINABILITY OF CLASS MEMBERSCASE NO. 2:12-CV-01983 GHK (MRW

Circuit routinely certify classes of purchasers of over-the-counter products where it

will be impossible to identify and notice every member of the class. See, e.g.,

McCrary, 2014 U.S. Dist. LEXIS 8443, *20 (joint supplements); Astiana v. Kashi

Co., 291 F.R.D. 493, 500 (S.D. Cal. 2013) (snack products); In re POM Wonderful

LLC Marketing and Sales Practices Litig., 2012 WL 4490860 (C.D. Cal. 2012)

(juice products); Guido v. L’Oreal, USA, Inc., 2013 U.S. Dist. LEXIS 94031, *51-54

(C.D. Cal. July 1, 2013) (hair products); Johns v. Bayer Corp., 280 F.R.D. 551, 560

(S.D. Cal. 2012) (multivitamins); Ries v. Arizona Beverages USA LLC, 287 F.R.D.

523, 536 (N.D. Cal. 2012) (tea products); Delarosa v. Boiron, Inc., 275 F.R.D. 582,

595 (C.D. Cal. 2011) (homeopathic products); Johnson v. Gen. Mills, Inc., 276

F.R.D. 519, 524 (C.D. Cal. 2011) (yogurt products); Chavez, 268 F.R.D. 365

(beverages); Rivera v. Bio Engineered Supplements & Nutrition, Inc., 2008 WL

4906433 (C.D. Cal. 2008) (nutritional supplements); see also Exh. A to the

Supplemental Fisher Decl. (listing 41 certified consumer classes where purchasers

were unlikely to have retained receipts).1 To deny certification on ascertainability

grounds in this case would be to abandon the law in the Ninth Circuit that only

requires that the class definition describe objective criteria that allow a class member

to identify himself or herself as having a right to recover or opt out based on the

description. See id.

Here, the class definition clearly specifies the Children’s Cold and Flu

Products at issue, as well as the specified time period: “on or after March 8, 2008.” 1 Against the background of these numerous decisions certifying consumer classes involving low cost items where consumers are unlikely to have retained receipts, it is clear that the court’s observation in Red v. Kraft Foods, Inc., 2012 WL 8019257, *4-6 (C.D. Cal. 2012) that “[c]ases where self-identification alone has been deemed sufficient to render a class ascertainable generally involve situations where consumers are likely to have retained receipts” was misinformed by plaintiffs’ counsel’s failure to cite more than one case. See id. (“The sole case relied upon by Plaintiffs for the notion that a class [is certifiable] where the members will need to identify themselves…is Zeisel v. Diamond Food, Inc., No. C 10–01192 JSW, 2011 U.S. Dist. LEXIS 60608 (N.D. Cal. June 7, 2011)”).

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See Plaintiffs’ Motion at 1. Thus, putative class members have sufficient

information to determine if he or she was a Hyland’s customer who purchased a

Children’s Cold and Flu Product during the stated time period. “[T]he fact that

particular persons may make false claims of membership does not invalidate the

objective criteria used to determine inclusion.” McCrary, 2014 U.S. Dist. LEXIS

8443, at *26. As such, the Court should find that, by these objective criteria,

members of the class can be ascertained. See, e.g., Chavez, 268 F.R.D. at 377.

2. Defendants Will Not Be Harmed if Some Class Members Are Not Identified

Defendants contend that the inability to determine the identity of every class

member deprives them of the opportunity to challenge class membership and creates

due process concerns. Defendants’ concerns are unavailing. See McCrary, 2014

U.S. Dist. LEXIS 8443, at *20, *23-24 (refusing to give any weight to the

defendant’s cries of due process violation); see also Ries, 287 F.R.D. at 536.

As noted by this Court, Defendants’ total liability will be determined based on

their total sales numbers. 12/19/13 Order, Dkt. No. 124. Once the total damages are

established, Defendants have no legitimate interest in how those damages are

distributed. See Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301,

1307 (9th Cir. 1990) (“Where the only question is how to distribute the damages, the

interests affected are not the defendant’s”). For example, in Hilao v. Estate of

Marcos, 103 F.3d 767, 785 (9th Cir. 1996), in opposing class certification the

defendant claimed that the method of determining the validity of the class members’

claims violated its due process rights. But the court concluded that:

If the [defendant] had a legitimate concern in the identities of those receiving damage awards, the district court’s procedure could affect this interest. In fact, however, the [defendant’s] interest is only in the total amount of damages for which it will be liable….

Id. at 786. Therefore, here, Defendants do not have an interest in the identities of

the class members, or in defending against claims of class membership. Because

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Defendants’ only relevant interest is in their total liability, Defendants’ due process

concerns are unpersuasive.

Moreover, Defendants’ claim that they should have the opportunity to

challenge individual claimants’ class membership has no foundation in the law and is

essentially an individualized damages argument masquerading as an ascertainability

concern. It is well established that individualized damages arguments do not defeat

class certification. See, e.g., Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d 1087,

1094 (9th Cir. 2010) (“damage calculations alone cannot defeat certification”). To

the extent that Defendants have individualized defenses, they are free to try those

defenses against individual claimants after the common issues have been litigated

and resolved. McCrary, 2014 U.S. Dist. LEXIS 8443, at *25; Johns, 280 F.R.D. at

560; Johnson, 276 F.R.D. at 524 (“If Mr. Johnson establishes liability for the class,

Defendants may challenge reliance and causation individually during a determination

of damages, after the issues that are common have been litigated and resolved.”).

Defendants do not have a due process interest in the identity of the class members.

3. A Class Action Is the Superior Means of Adjudicating This Dispute and Any Concerns About Fraudulent Claims Are Premature and Likely Insignificant

Absent a class action, most, if not all, of the “true class members” in this case

will not recover at all. See, e.g., Culinary/Bartender Trust Fund v. Las Vegas Sands,

Inc., 244 F.3d 1152, 1163 (9th Cir. 2001) (“If plaintiffs cannot proceed as a class,

some – perhaps most – will be unable to proceed as individuals because of the

disparity between their litigation costs and what they hope to recover.”). As

explained by the Ninth Circuit in Hanlon v. Chrysler Corp., 150 F.3d 1011, 1023

(9th Cir. 1998):

[The superiority] [d]etermination necessarily involves a comparative evaluation of alternative mechanisms of dispute resolution. In this instance, the alternative methods of resolution are individual claims for a small amount of consequential damages….litigation costs would dwarf potential recovery. In this sense, the proposed class action is paradigmatic. A fair examination of alternatives can only result in the

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apodictic conclusion that a class action is the clearly preferred procedure in this case.

Similarly, the Supreme Court emphasized that the policy “at the very core of the

class action mechanism is to overcome the problem that small recoveries do not

provide the incentive” for individuals to bring claims. Amchem Prods. Inc. v.

Windsor, 521 U.S. 591, 617 (1997). Further, the requirements of Rule 23 “must be

interpreted to best effectuate the primary purposes of the class action device, i.e., to

give small investors a reasonable opportunity to vindicate their claims in a manner

which will not place an undue burden upon them.” Blackie v. Barrack, 524 F.2d

891, fn. 26 (9th Cir. 1975).

Defendants’ Children’s Cold and Flu Products cost less than ten dollars. Such

a small recovery does not provide an incentive for Hyland’s customers to bring

individual claims against Hyland’s. See, e.g., Guido, 2013 U.S. Dist. LEXIS 94031,

at *50 (“given that Serum sells for less than $10.00 per bottle, ‘there is no realistic

alternative to a class action in this case, making a class action understandably the

superior method of adjudication.’” (citations omitted)); Weiner v. Dannon Co., Inc.,

255 F.R.D. 658, 672 (C.D. Cal. 2009) (same). Since Hyland’s is a corporate

defendant that has the resources to defend against each consumer’s claim, requiring

consumers to bring individual claims would also be unduly burdensome. Even if

there was some possibility that class members’ recovery would be diluted by

fraudulent or inaccurate claims, the alternative for most class members is no recovery

because it would not be economically feasible to obtain relief for each class member

given the small size of each class member’s claim.2 See, e.g., Thurston v. Bear

Naked, Inc., 2013 WL 5664985, at *11 (S.D. Cal. 2013); Johnson, 275 F.R.D. at

2 As discussed in further detail below, there is in fact no serious threat that true class members’ recovery will be diluted by fraudulent claims because there are fraud detection measures that can be put in place and, moreover, it is extremely unlikely that all class members will submit a claim form requesting relief.

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289; Astiana, 291 F.R.D. at 507. Therefore, a class action is the superior method

even though there is no means of identifying every class member.

Furthermore, the inability to identify class members does not render the

administration of a class action unmanageable. See, e.g., Knutson v. Schwan’s Home

Serv. Inc., 2013 WL 4774763, at *10 (S.D. Cal. 2013). In Ries, defendants argued

that “because most members of the proposed class will not have retained all of their

receipts for AriZona Iced Tea over the past few years, the administration of this class

will require ‘fact-intensive mini trails’ to establish whether each purported class

member had in fact made a purchase entitling them to class membership.” Ries, 287

F.R.D. at 535. The court concluded that: “this is simply not the case. If it were,

there would be no such thing as a consumer class action….The challenges entailed in

the administration of this class [of tea purchasers] are not so burdensome as to defeat

class certification.” Id.

In cases where a defendant cannot directly identify class members, courts in

the Ninth Circuit hold that other types of class notice are administratively feasible

and sufficient to reveal class members. See Galvan v. KDI Distribution Inc., 2011

WL 5116585, *5-6 (C.D. Cal. 2011) (“while Krossland cannot directly identify the

class members, it can…identif[y] the retailers who sold its cards….once Krossland’s

records establish which retailers sold Krossland cards during the class period, class

notice will further help reveal the members. Notice can be distributed through the

same channels Krossland utilizes to advertise its products: posting class notices at

retail stores where Krossland cards are sold, notifying past purchasers to identify

themselves in order to participate.”); Zeisel v. Diamond Foods, Inc., 2011 WL

2221113, at *6 (N.D. Cal. 2011) (“Diamond argues that it is not administratively

feasible to determine if a person is a member of the proposed class because it sells its

Shelled Walnut products to retailers and it does not track consumer purchases….The

Court is not persuaded.…[The class definition] includes objective characteristics that

would permit a consumer to identify themselves as a

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member….Accordingly,…Zeisel has shown the class is ascertainable….”); Agne v.

Papa John’s International, Inc., 286 F.R.D. 559, 566 (W.D. Wash. 2012)

(“Defendants are not challenging the precision or definiteness of the class definition.

Instead, they argue it is not possible to identify the individuals who fit that definition

because there are ‘no records…’….The class definition provides sufficiently precise

and objective criteria to determine class membership.…[A]scertainability is therefore

satisfied.”).

Cases rejecting self-identification by class members where a defendant could

not directly identify class members are distinguishable. Unlike the simple criteria at

issue here, those cases involved complicated, multi-pronged unreasonable criteria to

determine whether the person was a member of the class. See, e.g., Xavier v. Philip

Morris USA, Inc., 787 F. Supp. 2d 1075, 1089-90 (N.D. Cal. 2011) (proposed class

of persons who smoked at least one pack of defendant’s brand of cigarettes a day,

every day, for twenty years, such that the person smoked thousands of individual

cigarettes made by defendant and not a competitor); Marcus v. BMW of N. Am. LLC,

687 F.3d 583, 594 (3d. Cir. 2012) (proposed class of persons who leased or owned a

BMW in 2006, 2007, 2008 or 2009, originally sold by a New Jersey dealer, that had

defective tires on the vehicle that went flat and were replaced; and the tires were

made by Bridgestone); Mazur v. eBay Inc., 275 F.R.D. 563 (N.D. Cal. 2009)

(proposed class of persons who thought they would have won online auction but for

shill bidding, even though not all online auctions involved shill bidding, and whether

the consumer was subject to shill bidding was not something known to the

consumer). For example, in Hernandez v. Chipotle, 2013 WL 6332002, at *1 (C.D.

Cal. 2013), individual issues rendered the class unmanageable because of the

“critical” fact that “certain [Chipotle] stores were serving certain conventional meats

only at certain times.” Similarly, in Astiana v. Ben & Jerry’s Homemade, Inc., 2014

U.S. Dist. LEXIS 1640 (N.D. Cal. Jan. 7, 2014), only one of 15 different suppliers

provided Ben & Jerry’s with “alkalized cocoa processed with a synthetic ingredient.”

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As a result, in both cases, there was no way a potential class member could

determine if he or she was a member of the class who had eaten the affected food

product. In fact, Judge Fischer distinguished her decision to deny certification in

Chipotle, from “other cases” where the class is “all purchasers of a particular product

within some reasonably large time period, so the details of the purchase are not so

significant.” Chipotle, 2013 WL 6332002, at *1. And so it is here. The proposed

Class includes all purchasers of particular Hyland’s “4Kids” Products during a

reasonably large time period. As a result, unlike in Chipotle and Ben & Jerry’s, the

details of the purchase are not so significant to make a class action administratively

infeasible.

Nor does the possibility of false claims make a class action unmanageable or

nullify the objective criteria that can be used to identify class members in this case.

McCrary, 2014 U.S. Dist. LEXIS 8443, at *26. Once there is a judgment entitling

class members to relief, proper notice and claim administration procedures will

operate to minimize any consumer confusion or fraud. See id. at *26-27; see also

Declaration of Chuck Clabots, ¶¶ 10-26. Claimants would be required to provide a

claim form indicating that they bought the Product within the class period,

identifying the state of purchase, and the amount paid for the Product, along with

either a receipt showing their purchase, or a sworn affidavit that would include a

prominent and significant warning reminding claimants that it is a crime to make a

false statement under oath, and stating that each claim made will be subjected to a

thorough and detailed fraud analysis during the claims administration process. Id.

¶ 13. All claim forms can be subjected to several screening procedures to eliminate

fraud. Id. ¶¶ 10-26. For instance, since Hyland’s has identified the retailers that sold

the Products during the class period, any claim form that stated that a Product was

purchased from a retailer not on the known list of retailers would be rejected. Id.

¶¶ 14, 18; see also Supp. Fisher Decl. Exh. B (listing retail/distributers of the

Products). Additionally, as shown by the Hyland’s website, Hyland’s has records

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showing which retailers sold which Product in each city of the United States. See

Supp. Fisher Decl. Exh. C (showing, as examples, the retail locations for Cold ‘n

Cough 4Kids in Los Angeles, Louisville, and Okmulgee, Oklahoma). Since only

certain retailers in particular cities distributed specific Products, any claim form that

indicates the claimant purchased the Product from a retailer that does not sell that

Product in that city, would likewise be flagged for review. Clabot Decl. ¶¶ 14, 18.

By way of example, if a claimant said that he bought Cold ‘n Cough 4Kids at a

Vitamin Shoppe store in Okmulgee, Oklahoma, the claim would be rejected because,

while Vitamin Shoppe does sell the Product, Vitamin Shoppe does not sell it in

Okmulgee. Id. ¶ 18; Supp. Fisher Decl. Exh. C. Further, most of Defendants’

retailers do not sell all of the Products at issue in this action. Supp. Fisher Decl. Exh.

B. Thus, if a class member claimed, for example, that she bought Complete Flu Care

4Kids at Target, that claim would be rejected because Target stores only sell Cold ‘n

Cough 4Kids, and Nighttime Cold ‘n Cough 4Kids. Clabot Decl.¶ 18; Supp. Fisher

Decl. Exh. B. Other screening methods include: packaging descriptions and

purchase time-frame. Clabot Decl. ¶ 18.3 Additional fraud prevention measures

include “sophisticated and state-of-the-art data matching and loading technologies

that identify patterns of duplication,” including: “(a) limiting claim submission to

online submission; (b) tracking submitting IP address; (c) utilization of human entry

authentication ‘captacha.’” Id. ¶ 20; id. ¶¶ 21-22 (“If paper claim submission is

3 “For example, claimants could be asked to identify whether the particular product they purchased was in pill, liquid, or strip form. If a claimant stated that they purchased Cold ‘n Cough 4Kids in pill form, that claim would be flagged and rejected as that particular product is distributed in liquid form only. Additionally, without making the claim form onerous, a screening method based on product packaging might also be employed. Only very recently has Hyland’s “4Kids” packaging been updated so that the outer box prominently features an image of a young boy. Previously, the packaging featured only animals. Hyland’s records show the date the company began manufacturing with their new packaging. Any claim form that indicates a claimant purchased a product featuring the young boy prior to the date that such packaging could have been offered for sale, would be flagged for review.” Clabot Decl. ¶ 18.

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required, paper claims are printed and distributed individually and with a unique

claim identifier on each claim form. All paper claims are imaged and machine read.

All duplicates to any pre issued claim identifier are flagged for review.”). All of

these measures eliminate the possibility of filing claims en masse. Further, all claims

can be analyzed “based on filing time, filing time frequency, filing location, claimant

address, purchase location and source, known frequent fraudulent filers, known

fraudulent addresses, together with…fraud analysis algorithms to detect, isolate and

remediate fraudulent activity.”4 Id. ¶ 20. Finally, because the Products are

inexpensive, for a claimant to gain a meaningful sum through fraud would require

thousands of false claims. Id. ¶ 25 . When fraud is affected “[a]t scale…fraud

inherently becomes more detectable and addressable.” Id. In short, fraudulent or

inaccurate claims can be easily curtailed.

In this case, a class action is unquestionably the superior method of fair and

efficient adjudication of the present action because the claims are common, involve

small sums, and do not depend on individual determinations. See, e.g., Astiana, 291

F.R.D. at 507; Thurston, 2013 WL 5664985, at *11. Further, “[j]udicial economy

weighs in favor of a class action where, as here, liability turns on whether

advertisements were false or misleading.” Johns, 280 F.R.D. at 559. Thus, the class

members’ potential interests in individually controlling the prosecution of separate

actions and any difficulties in managing the class action do not outweigh the

desirability of concentrating this matter in one litigation. See, e.g., Delarosa, 275

F.R.D. at 595. Since no realistic alternative exists, the Court must find that a class

action is the superior method. See, e.g., Hanlon, 150 F.3d at 1023.

4 “As an additional layer of fraud protection Angeion Group and other claims administrators also offer a prepaid or store value card payment mechanism that can require photo ID, is more immune to counterfeit, and can be limited to merchant category, or individual merchant. These mechanisms further inhibit the ability of a perpetrator of fraud to actually complete the fraud.” Clabot Decl. ¶ 26.

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4. Since the Class Members Will Be Adequately Represented at All Times, the Class Members Will Be Bound By a Final Judgment

An inability to determine the identity of each and every class member does not

undermine the ability to issue a judgment by which class members will be bound.

“To satisfy constitutional due process, absent class members must be afforded

adequate representation before entry of a judgment which binds them.” Hanlon, 150

F.3d at 1020. To be adequate representatives, Plaintiffs need not identify every class

member. See, e.g., Ries, 287 F.R.D. at 536. The fact that the text of Rule 23 only

requires individual notice to class members “who can be identified through

reasonable effort,” Fed. R. Civ. P. 23(c)(2)(B), implicitly assumes that there will be

class members who cannot be identified. See also Manual For Complex Litigation,

Fourth § 21.311, at 292 (Federal Judicial Center 2004) (“[I]f no records were kept of

sales of an allegedly defective product from retailers to consumers, publication

notice may be necessary.”); In re Valdez, 289 Fed. Appx. 2014, 2015-06 (9th Cir.

2008) (“[I]nstead of requiring individual notice to all class members who can be

identified through reasonable effort, [R]ule 23(d)(2) provides only that notice be

given ‘in a manner as the court may direct.’ The sufficiency of such notice is

measured ‘against the broader standards of due process.’... Newby has not shown

that…publication of the claims filing deadline in local newspapers for three

consecutive weeks, violated due process”).

Notably, “[d]ue process does not require that a class member actually receive

notice, so long as the notice afforded was the best notice practicable under the

circumstances.” Moralez v. Whole Foods Market, Inc., 897 F.Supp.2d 987, 1000

(N.D. Cal. 2012); Dannon, 255 F.R.D. at 672 (“although there may be difficulties in

locating class members because Dannon does not have records of purchasers…the

Ninth Circuit has minimized the weight to be placed on the existence of unknown

class members”); Six (6) Mexican Workers, 904 F.2d at 1306 (“In a majority of class

actions at least some….unlocated class members remain”); In re Toys R Us-

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Delaware, Inc. – FACTA Litig. 2014 WL 198665, at *6 (C.D. Cal. 2014) (“When the

court certifies a nationwide class of persons whose addresses are unknown, notice by

publication is reasonable”); Dennis v. Kellogg Co., 2010 WL 4285011, *5-6 (S.D.

Cal. 2010) (same); In re Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1080 (N.D.

Cal. 2007) (“Because defendants do not have a list of potential class members, the

court agrees with plaintiffs that notice by publication is the only reasonable method

of informing class members of the pending class action”); Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950) (“in the case of persons

missing or unknown, employment of indirect or even a probably futile means of

notification is all that the situation permits and creates no constitutional bar to a final

decree foreclosing their rights.”). Because notice need only be reasonably calculated

to reach absent class members, courts certify classes where it would be impossible to

notice every member. See, supra, Section 1.

Further, the “due process touchstone of adequacy and fairness of

representation must be judged in light of…the alternatives to class representation

available.” Blackie, 524 F.2d at 910. Rule 23 “requires adequate representation.

The alternative may be none at all.” Id. at fn. 26. Here, the adequacy requirement is

handily met. Plaintiffs share the same claims and interest in obtaining relief as all

other class members and will prosecute the action vigorously on behalf of the class.

See Hanlon, 150 F.3d at 1020. In fact, since the Products at issue are inexpensive,

the alternative to representation by Plaintiffs is no representation at all.

Cases where plaintiffs have successfully challenged the adequacy of

representation in a prior class action are distinguishable because, in those cases, the

prior class representative either had different interests than the plaintiffs or the prior

class representative did not vigorously prosecute the action on behalf of the class.

See, e.g., Frank v. United States Airlines, Inc., 216 F.3d 845, 852-53 (9th Cir. 2000)

(concluding that the representation was inadequate on account of the class

representatives’ failure to appeal a decision that barred remedies valuable to a subset

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of the class members – including those who brought the second suit); Tice v. Amer.

Airlines, 162 F.3d 966, 969 (7th Cir. 1999) (refusing to give preclusive effect to a

prior class action because plaintiffs had been too young to join in earlier litigation

and their interests had diverged from those of the earlier class representatives insofar

as younger pilots would benefit from age discrimination against older pilots). For

example, in Hansberry v. Lee, 311 U.S. 32, 44-45 (1940), the Court concluded that a

class of persons who sought to secure the benefits of an agreement were “not of the

same class” as those who were interested in challenging the validity of the agreement

and resisting performance. The Court likened the diverging interests to “a trial by a

judicial officer who is in such situation that he may have an interest in the outcome

of the litigation in conflict with that of the litigants.” Id. at 45. Here, Plaintiffs have

the same interests and are of the same class as those absent because all class

members are purchasers of the “4Kids” Products at issue. Thus, Plaintiffs are

adequate representatives who can “stand in judgment for all.” See id.

5. Plaintiffs’ Proposal to Identify As Many Class Members As Possible

Notice can be distributed through the same channels Hyland’s uses to

advertise its Products. See, e.g., Galvan, 2011 WL 5116585 at *5-6; see also Clabot

Decl. ¶¶ 5-9. While Hyland’s cannot directly identify most class members, it has

identified the retailers that sold each of the particular Children’s Products at issue.

See Supp. Fisher Decl. Exh. B. Posting retail notices at retail stores where the

particular Children’s Cold and Flu Remedies were sold will notify purchasers to

identify themselves to participate. 5 See, e.g,. Galvan, 2011 WL 5116585 at *5-6;

Zeisel, 2011 WL 2221113 at *6; McCrary, 2014 U.S. Dist. LEXIS 8443 at *27. In

fact, Hyland’s admits that “one of the top reasons why consumers buy Hyland’s

5 Notice could be provided through retailers in two ways: “(1) notice placards could be posted at the retail locations and/or (2) notice could be printed on the back of receipts when customers purchase similar over-the-counter cold and flu products.” Clabot Decl. ¶ 9.

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4Kids Cough/Cold products was because ‘they just saw it on the shelf….’” Supp.

Fisher Decl. Exh. D (Hyland’s 4 Kids power point). Notice posted at Defendants’

retailers will be an effective means of notifying potential class members.

Hyland’s also advertises the “4Kids” Products in national publications that are

specifically targeted toward parents with young children. See Supp. Fisher Decl.

Exh. E (listing published ads including national publications such as “Scholastic

Parent & Child,” and “Mothering.com”). Publication notice is an adequate and

appropriate manner of providing notice. See, e.g., In re Toys R Us, 2014 WL

198665, at *6. Thus, notice can be published in publications of national circulation

that Defendants themselves have identified as an effective way to reach the target

audience. Galvan, 2011 WL 5116585 at *5-6; see also Clabot Decl. ¶ 8.

In addition, Hyland’s maintains a website with a specific “4Kids” page.

Supp. Fisher Decl. Exh. F (http://www.hylands.com/4kids). On that page, Hyland’s

also claims to be “very social” because it has a “Facebook,” “Twitter,” “Instagram,”

“Pinterest,” and “YouTube” presence. Id. Parents can click on the links from the

webpage to link Hyland’s social media accounts to their individual social media

accounts. Id. This method of advertising has proven effective for Hyland’s. For

instance, Hyland’s has over 58,000 “likes” on Facebook. Supp. Fisher Decl. Exh. G

(Hyland’s Facebook page). The people who have linked to the Hyland’s Facebook

page, or who “follow” Hyland’s on Twitter, are most likely Hyland’s consumers.

The Hyland’s website also provides a link so that consumers can “Sign-up to receive

special offers from Hyland’s.” Supp. Fisher Decl. Exh. F. As a result, Hyland’s has

an opt-in list of “52,000+ unique names and email addresses” that are likely to have

had a previous experience with a Hyland’s product. See Supp. Fisher Decl. Exh. H;

id. Exh. I (listing a prior experience with a Hyland’s product as a “primary reason”

for purchasing another Hyland’s product). Notice could be provided in all of these

venues and would reach consumers who Hyland’s has already reached with its web

presence. See, e.g., In re Toys R Us, 2014 WL 198665, at *5-6; Astiana, et al. v.

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Kashi Co., Order Approving Proposed Plan and Form of Class Notice (Dkt. No. 175)

(S.D. Cal. Sept. 26, 2013) (requiring defendants to “add a link to the case-specific

website to their consumer-facing websites”); Jermyn v. Best Buy Stores, L.P., 2010

U.S. Dist. LEXIS 130682, *11-14, *24 (S.D.N.Y. Dec. 6, 2010) (approving notice

distribution plan including publication on defendant’s website).

Finally, some of Hyland’s major retailers have “customer loyalty” programs

including: CVS Caremark, Duane Reade Inc., General Nutrition Centers, Target

Corp., Vitamin Shoppe Inc., and Walgreen Co. 6 Supp. Fisher Decl. Exh. J (rewards

programs). Some customers, albeit a relatively small percentage, who have

purchased the Products could be identified by searching retailer’s records for

purchases of the Products by members of the retailer’s rewards program. See, e.g.,

Dean v. Dick’s Sporting Goods, Inc., 2013 WL 3878946, at *1-2 (C.D. Cal. 2013)

(“Plaintiff’s address… and e-mail address are stored in the ScoreCard [rewards-

customer] database.”).7 Direct notice could then be sent to all those class members.

Plaintiffs propose a robust, three-pronged notice program: (1) by publication

in national newspapers and magazines; (2) posting on the Hyland’s webpage, and its

social media accounts; and (3) direct notice where possible. The notice program

satisfies due process because it is the best notice practicable under the circumstances.

6 Plaintiffs have sought records from CVS Caremark, Duane Reade Inc., Fairway Group Holdings, General Nutrition Centers, Rite Aid Corp., Target Corp., Vitamin Shoppe Inc., Walgreen Co., and Whole Foods, Inc. regarding the identity of class members from those companies’ rewards programs. To date, Duane Reade has produced this information; however, with a class certification order, Plaintiffs may have more success convincing or compelling additional retailers to provide customer information. See, e.g., Dubin & Dubin LLP v. Mayorga, 2013 U.S. Dist. LEXIS 109734, *14 (W.D.N.Y. June 25, 2013) (granting motion to quash subpoena without prejudice to renew if class certification was granted). 7 By way of example, if a consumer has signed up for the Walgreen’s rewards program, when that consumer makes a purchase at Walgreens the cashier prompts the customer to provide her rewards card or to enter the phone number linked with her rewards account. After the rewards program step is complete, the customer pays the cashier for the items. As a result, Walgreen’s would have the customer’s name and rewards account information linked with the purchase.

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DEFENDANTS’ POSITION

No class can be certified in this action because a class cannot be ascertained.

“As a threshold matter, and apart from the explicit requirements of Rule 23(a), the

party seeking class certification must demonstrate that an identifiable and

ascertainable class exists.” Diacakis v. Comcast Corp., 2013 WL 1878921, at *4

(N.D. Cal. May 3, 2013). Although the identity of the class members need not be

known at the time of class certification, Ries v. Arizona Beverages, USA LLC, 287

F.R.D. 523, 535 (N.D. Cal. 2012), a class is certifiable only if it is “administratively

feasible for the court to ascertain whether an individual is a member.” O’Connor v.

Boeing N.A., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998); see also Carrera v. Bayer

Corporation , 727 F.3d 300, 308 n.2 (3d Cir. 2013) (ascertainability at the class

certification stage requires the plaintiff to show class members can be identified).

Here, Plaintiffs have not shown—and indeed, cannot show—how the

identities of potentially thousands of class members can be ascertained using

objective criteria in an administratively feasible manner. The proposed class

comprises all persons in the United States who purchased one of six children’s cold

and flu products (the “Products”) on or after March 8, 2008.8 Scant information

identifies the purchasers of the Products. Defendants sell the vast majority of the

Products through distributors and retailers; they do not maintain records identifying

end purchasers, let alone what Products each individual purchased. Plaintiffs

provided no evidence that any retailer or other third party keeps such records, or that

consumers are likely to have proof of their Product purchases for the last six years.

This means that most class members’ identities are a mystery, and their membership

in the class can be determined only by “taking their word for it.”

8 Plaintiff Forcellati also seeks to certify a subclass of individuals who purchased Products in New Jersey. Plaintiff Roemmich also seeks to certify a subclass of individuals who purchased the Products in Missouri.

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While Plaintiffs have refused to tell Defendants what method(s) they propose

to identify class members, see Section IV. infra, it appears they will ask consumers

to self-identify themselves as purchasers of the Products during the class period. See

Pltfs’ Reply in Support of Motion for Class Certification [Dkt. No. 122] at 16

(disputing, but providing no evidence to rebut the contention that affidavits are

“inherently unreliable”). Self-identification, through affidavits or otherwise, is

problematic for at least three reasons. First, accepting affidavits as prima facie

evidence of class membership deprives Defendants of their due process right to raise

individual challenges and defenses to class membership claims. Second, because

there is no reliable way to identify class members, no trustworthy means of awarding

individualized money damages exists, making the case unmanageable. Third, the

inability to reliably identify class members creates doubt about who is, and who is

not bound by a final judgment, opening Defendants to an unreasonable risk of future

litigation.

For these reasons, the Court should find that the class is not sufficiently

ascertainable to be certified, and deny Plaintiffs’ motion.

I. Inability to Reliably Ascertain Class Members Deprives Defendants of Their Due Process Rights to Raise Individual Challenges and Defenses, And Will Harm Defendants By Preventing Them From Challenging Individual Members’ Claims

The Court has asked Defendants to identify how they will be harmed by the

inability to ascertain the identity of potential class members. The short answer is that

Defendants will be deprived of their due process right to raise individual challenges

to class member claims. “In almost every setting where important decisions turn on

questions of fact, due process requires an opportunity to confront and cross-examine

adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (1970). This substantive

right applies equally in class actions: “Rule 23 [cannot] ‘abridge, enlarge or modify

any substantive right.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561

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(2011). Forcing Defendants to accept as true absent persons’ declarations that they

are class members, without the ability to challenge their membership, strips

Defendants of their due process right to dispute the allegations of individuals who

are demanding money. Carrera, 727 F.3d at 310.

Although Defendants’ total product sales might place an upper limit on its

liability for restitution, Defendants’ liability for damages is not fixed to this amount.

Non-restitutionary disgorgement is not an available remedy under California’s

Unfair Competition Law, False Advertising Law, or any other theory that Plaintiffs

have pleaded. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134,

1144-45 (2003). Moreover, restitution of monies paid to Defendants for the Products

is not the only monetary redress sought by Plaintiffs; in addition to restitution, see

Consol. Am. Class Action Complaint [Dkt. No. 44] ¶¶ 108, 132, 146, Plaintiffs seek

actual and punitive damages pursuant to Missouri’s Merchandising Practices Act, id.

at ¶ 157, and damages pursuant to a breach of implied warranty theory, see id. at ¶

118, which may include incidental and consequential damages. Cal. U. Com. Code,

§§ 2714, subd. (3), 2715.

Even if restitution was the only monetary award sought, payment of restitution

“must be based on a specific amount found owing, and this measureable amount of

restitution due must be supported by substantial evidence.” Ewert v. eBay, Inc., Case

Nos. C-07-02198 RMW, C-07-04487 RMW, 2010 WL 4269259, at *11 (N.D. Cal.

Oct. 25, 2010). In other words, individual claimants must prove their entitlement to

restitution. In such cases, courts have cautioned against approving a method that

“would amount to no more than ascertaining by potential class members’ say so.”

Marcus v. BMW of N. Am, 687 F.3d 583, 594 (3d Cir. 2012); see also Xavier v.

Phillip Morris, 787 F. Supp.2d 1075, 1089-90 (N.D. Cal. 2011) (rejecting proposal

to identify class members based on affidavits); Williams v. Oberon Media, Inc., No.

10-56255, 2010 WL 8453723, at *3 (C.D. Cal., Apr. 10, 2010) (refusing to certify

classes of on-line game purchasers because Court would have to rely on the

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“subjective statements” of individual customers); Wiener v. Snapple Beverage Co.,

No. 07 Civ. 8742 (DLC), 2010 WL 3119452 (S.D.N.Y. Aug. 5, 2010) (refusing to

certify class of Snapple beverage purchasers where it was unlikely class members

could show documentary evidence of purchases).

In Carrera, the plaintiff sought to certify a class of consumers who purchased

Bayer’s One-A-Day WeightSmart, a modestly-priced multivitamin and dietary

supplement. Id. at 304. Like Defendants in this case, Bayer had no records of

individual purchasers because it did not sell WeightSmart directly to consumers. Id.

Moreover, it was undisputed that class members were unlikely to have retained proof

of purchase, such as packaging or receipts. Id. In vacating the class certification

order, the Court recognized the unfairness that would result to Bayer if class

members were not required to prove purchase of WeightSmart, explaining that a

“defendant has a similar, if not the same, due process right to challenge the proof

used to demonstrate class membership as it does to challenge the elements of a

plaintiff's claim,” and that “[a]scertainability provides due process by requiring that a

defendant be able to test the reliability of the evidence submitted to prove class

membership.” Id. at 307. The Court further noted,

the ascertainability question is whether each class member purchased WeightSmart in Florida. If this were an individual claim, a plaintiff would have to prove at trial he purchased WeightSmart. A defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues.

Id. (citations omitted). Although the Plaintiff argued that ascertainability should be

“less important” because Bayer’s liability for damages would be fixed by its sales of

WeightSmart in Florida, the Court disagreed, explaining, “Bayer too has an interest

in ensuring it pays only legitimate claims.” Id. at 310 (emphasis added). Because

fraudulent or inaccurate claims materially reduce “true” class members’ relief,

these class members could argue the named plaintiff did not adequately represent them because he proceeded with the understanding that absent members may get less than full relief. When class members are not

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adequately represented by the named plaintiff, they are not bound by the judgment.

Id. (citing Hansberry v. Lee, 311 U.S. 32, 42 (1940)). In this event, absent class

members could bring a new action against Bayer, at the same time seeking to use

issue preclusion to prevent Bayer from re-litigating its liability under Florida’s unfair

trade practices act. Id. As the Court noted, “Bayer has a substantial interest in

ensuring this does not happen.” Id.

The Southern District of Florida also raised due process concerns in refusing

to certify a class action against the manufacturer of an over-the-counter dietary

supplement (“Metabolife”), alleging that the manufacturer misled consumers about

the serious risks and dangers that could result from ingesting the product. See Perez

v. Metabolife Intern. Inc., 218 F.R.D. 262, 264 (S.D. Fla. 2003). Because Metabolife

was sold over-the-counter, “the only evidence likely to be offered in many instances

will be the putative class member’s uncorroborated claim that he or she used the

product.” Id. at 269. Although the plaintiffs sought to use affidavits to determine

class membership, the Court found that “allowing such uncorroborated and self-

serving evidence without giving Defendant an opportunity to challenge the class

member’s evidentiary submissions would likely implicate Defendant’s due process

rights.” Id. Because written submissions that did not allow the Defendant to

challenge the memory or credibility of the claimant would provide inadequate

procedural protection to the defendant, “an inestimable number of individual

hearings” would be required on the limited issue of class membership.

Just two months ago, Judge Dale Fischer in this district refused to certify a

case where identifying class members would depend not on company records, but on

individuals’ memory of purchases. In Hernandez v. Chipotle Mexican Grill, the

plaintiff alleged that Mexican food chain Chipotle served “conventionally raised”

meats on occasions when “naturally raised” meats were not available, despite

Chipotle’s advertising of its use of “naturally raised” meats. No. CV 12–5543, 2013

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WL 6332002, at * 1 (C.D. Cal. Dec. 2, 2013). There, as here, the dispute concerned

products with a very low price (e.g., burritos) that “neither the class members nor

defendant maintain any specific record [of] or could be expected to recall.” Id. The

Court noted the problems Plaintiffs would have in ascertaining the actual class

members:

Presumably, the claims administrator would have to seek claims from everyone who ate meat at Chipotle during the class period. The claims would require the claimants to list every time they ate at Chipotle, the date—at least month and year, the specific location—“San Francisco” is not going to be good enough, and the specific item purchased. The Court is confident that very few people will be able to provide that information. People will either (1) lie, (2) attempt to fill out the claim form as best they can but be unable to do so accurately, or, most likely, (3) not bother.

Id. at *2.

Although self-identification might be acceptable where consumers are likely to

have retained receipts to verify their purchases, where the relevant purchase was a

memorable “big-ticket” item, or where the defendant had access to a master list of

consumers and could verify their purchases, see Red v. Kraft Case No. 10-1028,

2012 WL 8019257, at *5 (C.D. Cal. Apr. 12, 2012), it is not acceptable in this case

based on the facts and the information available regarding potential purchasers. In

Kraft, the court expressly rejected the idea of ascertaining a class based on

consumers’ memories of purchasing “a small everyday item,” without written proof

of purchase. 9 Id. Here, the Products are low-priced items for which consumers are 9 To the extent Plaintiffs may rely on Thurston v. Bear Naked, No. 3:11–CV–02890–H (BGS), 2013 WL 5664985 (S.D. Cal. Jul. 30, 2013) and Astiana v. Kashi, 291 F.R.D. 493 (S.D. Cal. 2013) (both certifying classes of “natural” food product (e.g., granola bar) consumers), the court never addressed how class members could reliably be identified, stating only “[t]here is no requirement that “the identity of the class members ... be known at the time of certification.” See e.g., Thurston, 2013 WL 6554985 at *3 (citing Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 536 (N.D. Cal. 2012) and Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482 (N.D. Cal. 2011)). However, the Ries court actually denied class certification for monetary relief, citing the difficulties in reliably determining who purchased iced tea beverages and how many they purchased. See 287 F.R.D. at 541-42.

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unlikely to retain receipts or even a specific memory of purchasing. Not only are the

Products not the only children’s cough and cold products sold in drug stores, they are

not even the only homeopathic cough and cold products for children available for

purchase. No evidence suggests that putative class members will be able to

accurately remember which cough and cold products they’ve purchased over the last

six years, much less how many, or what price they paid. See e.g., Roemmich Dep. at

27:14-28:7, 37:7-20 (named plaintiff unable to remember when or where she

purchased “Cold ‘n Cough 4 Kids”). As such, soliciting declarations from putative

class members regarding their Product purchases “would invite them to speculate, or

worse.” See Wiener, 2010 WL 3119452 at *13. Relying on an individual’s say-so

would result in “[m]oney [being] given out basically at random to people who may

or may not actually be entitled to restitution.” 10 See Hernandez, 2013 WL 6332002,

at *2. This would be fundamentally unfair both to legitimate class members and to

Defendants.

II. The Difficulties in Managing This Action Make a Class Action an Inferior Method of Adjudicating This Controversy

Even if a method to identify Product purchasers during the relevant time frame

could be found, a class action is not a superior method to adjudicate this case

because the need for individual inquiries to ascertain each class member’s

entitlement to damages renders this action inherently unmanageable. A class action

filed under Rule 23(b)(3) must be “superior to other available methods” of

adjudication in light of any “difficulties likely to be encountered in the management

of a class action.” Rule 23(b)(3); Badella v. Deniro Mktg. LLC, 2011 WL 5358400,

10 Fraudulent claims have tainted efforts to disburse compensation to class members (and have spawned additional litigation) in other class actions. See e.g., Middleton v. Arledge, 2008 WL 906525, at *2 (S.D. Miss. Mar. 31, 2008) (noting that it was “undisputed” that some claims submitted in the Fen Phen I and II settlements were fraudulent, in part because claimants were not required to submit medical records to verify their use of the subject medication.)

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at *12 (N.D. Cal. Nov. 4, 2011). The “manageability” requirement overlaps the

ascertainability question. Kraft, 2012 WL 8019257, at *4. “Manageability” requires

consideration of the potential difficulties in notifying class members of the suit,

calculation of individual damages, and distribution of damages. Six Mexican

Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1304 (9th Cir. 1990). Courts are

“reluctant to permit actions to proceed when there are formidable ... difficulties of

distributing any ultimate recovery to the class members,” because such actions “are

not likely to benefit anyone but the lawyers who bring them.” Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 164 (1974).

Rule 23 does not permit dispensing with individual proof of damages. Six

Mexican Workers 904 F.2d at 1305. When a class action involves many class

members but only a small individual recovery, “the cost of separately proving and

distributing each class member’s damages may so outweigh the potential recovery

that the class action becomes unfeasible.” Id.; c.f., Comcast Corp. v. Behrend, 133 S.

Ct. 1426, 1432 (2013) (Rule 23(b)(3) not met where “[q]uestions of individual

damage calculations will inevitably overwhelm questions common to the class.”)

This case is factually similar to In re Phenylpropanolamine Prod. Liab. Litig.,

a putative class action stemming from plaintiffs’ purchases of over-the-counter

medications containing phenylpropanolamine (PPA). 214 F.R.D. 614 (W.D. Wash.

2003). The proposed class consisted of consumers who purchased non-expired PPA-

containing products as of November 6, 2000. Id. at 615. The plaintiffs alleged

economic injury from the purchase of an “unmerchantable” product, and sought

refunds of approximately $3 per product purchased. Id. Plaintiffs proposed that

class members could supply either physical proof of purchase, e.g., the product,

packaging, or a receipt; or a certified oath or verification attesting to purchase. Id. at

617. In denying certification, the court concluded that less than 25% of plaintiffs

would have proof of purchase, and identifying the class would “rely on the memories

of those individuals as to the types, amounts, and expiration dates of medication they

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possessed over two years ago”:

Putative class members would be asked to distinguish, now over two years after the fact, between defendants’ various products and the various formulations of those products, many of which differed only slightly in name and packaging. Making matters more difficult, some retailers apparently mimicked defendants’ packaging for their “house brands” of defendants’ products, the possession of which would presumably not qualify an individual for class membership.

Id. at 617-618. Noting that it “is unrealistic to suppose that defendants will accept

sworn oaths or affidavits under these circumstances” (“the court would not expect

them to do so”) the court held that simply identifying who rightfully belongs within

the class would entail a host of mini-trials. Id. at 619. Given the immense size of the

class, the individualized inquiries would be prodigious and would defy the court's

ability to effectively and efficiently manage the litigation. Id.

More recent cases agree that ascertainability problems make a class action

unmanageable. See, e.g.,

• Astiana v. Ben & Jerry’s Homemade, 2014 WL 60097, at *12 (N.D. Cal. Jan. 7,

2014) (denying class certification where awarding restitution would require

individualized assessments based on how much ice cream each class member

claimed to have purchased).

• Minkler v. Kramer Labs., Inc., No. 12-9421, 2013 WL 3185552, at *7 (C.D. Cal.

Mar. 1, 2013) (refusing to certify class of Fungi-Nail purchasers because the

plaintiff “ma[de] no showing as to how th[e] Court w[ould] identify consumers

who purchased these products, [and] the amount of Fungi-Nail each consumer

bought.”)

• Ries v. Arizona Beverages, LLC, 287 F.R.D. 523 (N.D. Cal. 2012) (denying class

certification to the extent class sought monetary relief, finding that awarding class

members damages based on how many iced tea products they had purchased

would make the case “unmanageable”).

• Moheb v. Nutramax Labs. Inc., No. 12-3633, 2012 WL 6951904, at *8 (C.D.

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Cal. Sept. 4, 2012) (finding proposed class of 425,000 Cosamin purchasers since

April 2008 “unmanageable”, where plaintiff failed to show how they would

“identify the consumers who purchased these products, the amount of Cosamin

each consumer bought, and for what purpose the Cosamin was bought”).

• Rowden v. Pac. Parking Sys., No. 11-001190, 2012 WL 2552694 (C.D. Cal. July

2, 2012) (refusing to certify class of individuals who had purchased parking with

a credit card, where class members would have to testify to prove class

membership, because “tens of thousands of speculative testimonials about

parking transactions occurring five years ago would be incredibly time

consuming and, quite frankly, a tragic waste of scarce judicial resources.”)

• Kraft, 2012 WL 8019257, at *4, adopted as final in 2012 WL 8018618 (C.D. Cal.

Apr. 26, 2012) (certification not merited where, “Plaintiffs cannot get around the

fact that individual class members, to recover, would need to show ... proof of

how many purchases they made of the offending products, where and when, in

order to discern how many multiples of that premium they are owed.”)

• Hodes v. Van's Int'l Foods, No. 09–1530, U.S. Dist. LEXIS 72193, at *11 (C.D.

Cal. July 23, 2009) (class of frozen waffle purchasers was not manageable in light

of “concerns about how Plaintiffs will identify each class member and prove

which brand of Van's frozen waffles each member purchased, [and] in what

quantity, given that the likelihood that tens of thousands of class members saved

their receipts as proof of their purchase of Van's waffles is very low”).

• c.f. Smith v. Microsoft, No. 3:11-cv-01958, slip op. (S.D. Cal. Jan. 28, 2014)

(refusing to certify a consumer class accusing Microsoft of sending unsolicited

advertising via text message, finding a class action would prove unmanageable

because no records existed to indicate who received texts, class members would

likely not remember texts they received five years ago, and without records, there

was no proof that class members did not consent to receive the texts.)

These same issues exist here. Even if Product purchasers could be identified

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using an administratively feasible method, no class-wide method exists to determine

whether and to what extent each purchaser is entitled to monetary recovery. First,

undisputed evidence shows that many individuals are satisfied with the Products. A

brief review of online reviews from consumers shows that individuals who purchase

these products are satisfied. See Expert Report of Michael Buchanan at ¶ 13,

attached as Exh. A to the Declaration of Stephanie Stroup (“Stroup Decl.”).

Additionally, a survey of Hyland’s product purchasers demonstrates that most

purchasers, including those who bought Complete Flu Care 4 Kids, are satisfied with

the products and feel they obtained the advertised benefits. See Cristofaro Decl.

[Dkt. No. 94-2] at ¶ 15 (94% of the purchasers responding to survey were satisfied

with Defendants’ products); see also D .M. Marcus & A. P. Grollman, Review of

NCCAM is Overdue, Science, 301 (Jul. 21, 2006) (explaining that most users of

“alternative” medicines would continue to use natural products, even if told the

products were ineffective) (Exh. B to Stroup Decl.) Satisfied Product purchasers

(many of whom are likely “repeat customers”) are not entitled to restitution. Second,

some class members have already been compensated for Products they found

unsatisfactory. Defendants offer a money-back guarantee for dissatisfied customers

and, have provided refunds to some Product purchasers, either directly or at the

point-of sale. See Krombach Decl. [Dkt. No. 94-5] at ¶ 7. These purchasers are not

entitled to additional restitution.

Because these individualized inquiries create an inherently unmanageable

situation, Plaintiff cannot satisfy the requirements of Rule 23(b)(3).

III. Res Judicata is Undermined Where the Identity of Class Members Cannot Be Ascertained

A judgment in a properly maintained class action is binding on both named

and absent class members, except where to do so would violate due process. Cooper

v. Federal Reserve Bank of Richmond, 467 U.S. 867, 874 (1984). Due process

requires adequate representation “at all times” throughout the litigation, notice

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“reasonably calculated . . . to apprise interested parties of the pendency of the

action,” and an opportunity to opt out. Phillips Petroleum Co. v. Shutts, 472 U.S.

797, 811-12( 1985). When these requirements are not met, i.e.,

[W]hen trial courts fail to adhere clearly and explicitly to Rule 23's procedural framework, it leaves courts which must later determine the action’s res judicata effect with the difficult (and sometimes impossible) task of discerning whether the case was in fact a class action, whether it was a (b)(1),(b)(2), or (b)(3) class action, the contours of the class, and whether the absent class members can properly be bound given the requirements of Rule 23 and due process.

Besinga v. United States, 923 F.2d 133, 137 (9th Cir. 1991).

A. The Inability to Ascertain Class Members Creates Doubt Concerning Who is Bound by a Judgment

A class action lacking an objectively verifiable class creates problems for

implementation of a final judgment; if class members cannot be identified, who is

bound by any judgment? See Rodriguez v. Gates, No. 99-13190, 2002 U.S. Dist.

LEXIS 10654, at *32 (C.D. Cal. May 30, 2002) (The requirement that a class be

“objectively ascertainable ... is important because without [an ascertainable class], it

will be unclear who is bound by the judgment [.]”) (citing Manual for Complex

Litigation Third, § 30.14, p. 217 (1995)).

In Xavier v. Philip Morris, a proposed class action on behalf of past and

present Marlboro smokers, the court recognized that the inability to ascertain class

members would create doubt concerning the res judicata effect on future actions:

Ascertainability is needed for properly enforcing the preclusive effect of final judgment. The class definition must be clear in its applicability so that it will be clear later on whose rights are merged into the judgment, that is, who gets the benefit of any relief and who gets the burden of any loss. If the definition is not clear in its applicability, then satellite litigation will be invited over who was in the class in the first place.

787 F. Supp.2d 1075, 1089 (N.D. Cal. 2011). “If a plaintiff class wins, any relief

must be reasonably limited to those who are entitled to it, and if a plaintiff class

loses, the preclusive effect of final judgment must be enforced against all class

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members.” Id. (emphasis in original). Finding that plaintiffs could not satisfactorily

describe a method by which the plaintiff class could be reliably ascertained for

purposes of res judicata, i.e., there were no defendant records to identify class

members and participation in the class depended on each members’ subjective

recollection of their smoking habit, the court denied certification. Id.

The court in Kraft also expressed concern for preserving the res judicata effect

of class action judgments in denying certification to a proposed class of cookie and

cracker purchasers during specific time periods. See 2012 WL 8019257, at *6, n.6.

The court noted that the proposed class members would not be able to identify

themselves in any remotely verifiable way, and that “a lack of ascertainability will

lead to the inability for future courts to ascertain who was and was not bound by the

judgment. If the class definition depends on criteria that are not readily

ascertainable, it would be nearly impossible to determine who was actually included

as an appropriate class member.” Id. (quotations omitted).

The present case poses the same concerns: Defendants have no records to

identify class members, and participation in the class depends on the vagaries of each

member’s memory. This court should deny certification.

B. Inadequate Representation is a Basis for Collateral Attack on a Prior Class Action Settlement or Judgment

The inability to ascertain class members could lead to a diluted recovery for

true class members. The class representatives’ willingness to allow a diluted class

recovery is grounds for finding their representation inadequate, which in turn is

grounds for a collateral attack on any class judgment. Carrera, 727 F.3d at 310.

Rule 23(a)(4) prohibits a court from certifying a class without first

ascertaining that it will receive adequate representation. Rule 23’s concerns are not

merely prudential, but constitutional: due process demands that class members

receive adequate representation before they are bound by a judgment. Hanlon v.

Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998); Brown v. Ticor Title Ins. Co.,

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982 F.2d 386, 390 (9th Cir. 1992). Adequate representation requires an “absence of

antagonism” between class representatives and other class members and a “sharing

of interests between representatives and absentees.” Molski v. Gleich, 318 F.3d 937,

955 (9th Cir. 2003).

In Carrera, the Third Circuit suggested that if class representatives lacked a

reliable means to screen out invalid restitution claims that would dilute legitimate

class members’ recovery, subsequent plaintiffs might be able to attack the judgment

on the basis that the named plaintiff did not adequately represent the class. 727 F.3d

at 310. Although we can find no case presenting this situation, the Ninth Circuit has

declined to give preclusive effect to class action resolutions after finding that class

representatives failed to sufficiently protect absent class members’ rights. See e.g.,

Hesse v. Sprint Corp., 598 F.3d 581, 587 (9th Cir. 2010) (declining to give

preclusive effect to a class action settlement where the named plaintiff’s interest in

settling his claims came at “the cost of a broad release” of other class members’

claims), Frank v. United Airlines, Inc. 216 F.3d 845, 852-53 (9th Cir. 2000)

(subclass was not adequately represented in a suit where the class representatives’

failed to appeal a decision that barred remedies valuable to that subclass).

Given that Plaintiffs have proffered no method for reliably ascertaining the

identity of class members, it is unknown how Plaintiffs could possibly determine

who might be entitled to restitution. If a million people purchased the Products, but

ten million people claim to be purchasers, Plaintiffs could not avoid what would

amount to giving out money “at random.” See Hernandez, 2013 WL 6332002, at *2.

This outcome is not fair to legitimate class members, and it is not fair to Defendants,

who would be exposed to the risk of additional litigation.

IV. Defendant Requests the Opportunity to Respond to Plaintiffs’ Proposal for Identifying Class Members and Providing Notice

Defendants do not yet know what method Plaintiffs propose for identifying

class members, including

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what retailer records they are going to use, how these records can be used to identify class members, what proportion of the class will likely be identifiable by such records, how affidavits can be used to reliably identify actual class members, and how they propose to give notice to class members.

Dec. 19, 2013 Minute Order [Dkt No. 124]. Because the Court ordered the parties to

confer and file a joint brief, id., Defendants proposed that Plaintiffs provide their

opening position to Defendants by January 13, Defendants in turn provide their

response by January 27, and Plaintiffs could prepare a reply for filing on February 3.

See Dec. 30, 2013 email between L. Fisher and S. Stroup (Exh. C to Stroup Decl.).

Plaintiffs refused to agree to this schedule, and gave Defendants no information

concerning their proposal(s) for identifying class members. Stroup Decl., ¶ 4.

Because Defendants had no opportunity to address Plaintiffs’ proposal(s) for

identifying class members and providing notice to the class, Defendants respectfully

request that the Court allow Defendants to submit a short supplemental brief, solely

for the purpose of addressing Plaintiffs’ proposal(s).

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Dated: February 3, 2014 BURSOR & FISHER, P.A.

By: /S/ L. Timothy Fisher L. Timothy Fisher (State Bar No. 191626) Sarah N. Westcot (State Bar No. 264916) Annick M. Persinger (State Bar No. 272996) 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-Mail: [email protected] [email protected] [email protected]

FARUQI & FARUQI, LLP David E. Bower (State Bar No. 167373) 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256-2884 Facsimile: (424) 256-2885 Email: [email protected] - and - Antonio Vozzolo (pro hac vice) Andrea Clisura (pro hac vice) Javier Hidalgo (pro hac vice) 369 Lexington Avenue, 10th Floor New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 Email: [email protected] [email protected]

[email protected]

Co-Lead Interim Class Counsel for Plaintiffs

LAW OFFICES OF RONALD A. MARRON, APLC Ronald A. Marron (State Bar No.263639) Skye Resendes (State Bar No. 278511) 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665

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KRIENDLER & KRIENDLER, LLP Gretchen M. Nelson (State Bar No.112566) Stuart F. Frankel (State Bar No. 173991) 707 Wilshire Blvd., Suite 4100 Los Angeles, California 90017 Telephone: (213) 622-6469 Facsimile: (213) 622-6019 Additional Counsel for Plaintiffs

Dated: February 3, 2014 JEFFREY B. MARGULIES (Bar No. 126002)

STEPHANIE A. STROUP (Bar No. 235071) MATTHEW M. GURVITZ (Bar No. 272895) FULBRIGHT & JAWORSKI LLP

/S/ Stephanie A. Stroup STEPHANIE A. STROUP

Attorneys for Defendants STANDARD HOMEOPATHIC COMPANY, STANDARD HOMEOPATHIC LABORATORIES, INC. and HYLAND’S, INC.

Documents

BURSOR & FISHER, P.A. - · PDF file727 F.3d 300 (3d Cir. 2013) ..... 1, 16, 18, 19, 28, 29 Chavez v. Blue Sky Natural Beverage Co., 268 ... Estate of Marcos, 103 F.3d 767 (9th Cir