United States District Court, D. New Jersey
IN RE TROPICANA ORANGE JUICE MARKETING AND SALES PRACTICES LITIGATION This Document Relates To ALL CASES MDL No. 2353
WILLIAM J. MARTINI, U.S.D.J.
bring this class action against Defendant Tropicana Products,
Inc. (“Defendant”), alleging numerous violations
of common law and state consumer protection laws, in
connection with Defendant's sale of orange juice. This
matter comes before the Court on Plaintiffs' motion for
class certification pursuant to Federal Rule of Civil
Procedure 23. There was no oral argument. Fed.R.Civ.P. 78(b).
For the reasons set forth below, Plaintiffs' motion for
class certification is DENIED.
Court assumes familiarity with the claims, facts and
procedural history of the instant case and writes solely for
the parties' benefit. On June 22, 2017, Plaintiffs filed a
motion to certify the class, appoint class representatives
and appoint class counsel. See ECF No. 270. In their
supporting memorandum of law, Plaintiffs argue that their
claims “are the poster child for aggregate trial under
Rule 23” because the conduct that they will prove is
common to every potential class member. See
Pls.' Mem. of Law in Supp. of Mot. (“Pls.'
Mem.”) 1, ECF No. 271. At its core, Plaintiffs'
argument centers on the alleged mislabeling and misbranding
of Defendant's orange juice product, Tropicana Pure
Premium (“TPP”). Plaintiffs intend to prove the
following: (1) Defendant adds ingredients, namely natural
flavoring, to TPP in violation of the Food and Drug
Administration's (“FDA”) standard of identity
for pasteurized orange juice; (2) Defendant's TPP
labeling fails to disclose all ingredients, as required by
law; (3) Defendant's marketing of TPP as “pure,
natural and fresh from the grove” is
“demonstrably false” given the added flavoring
and is, therefore, uniformly misleading; and (4)
Defendant's conduct entitles Plaintiffs and all other
class members to damages. See id. at 2-3.
define their proposed class (the “Class”) as
“[p]urchasers from California, New York, New Jersey,
and Wisconsin of [TPP] from either Members Only clubs or
Loyalty Card Stores from January 1, 2008 to June 22,
2017.” Plaintiffs also “seek to certify four
individual subclasses for California, New York, New Jersey
and Wisconsin.” Id. at 3. Plaintiffs submit
that their theory of liability compels class treatment
because “either TPP conforms to the standard of
identity or it does not, either flavors are added or they are
not.” Id. at 2.
naturally opposes certification. Defendant advances four main
points. First, Defendant argues that individual inquiries as
to materiality, causation and loss are required to establish
that a TPP consumer is in fact a member of the Class.
See Def.'s Mem. of Law in Opp'n to Pls.'
Mot. (“Def.'s Opp'n”) 2, ECF No. 281.
Second, the named Plaintiffs are neither typical nor adequate
representatives of the Class because none of these
individuals referenced the supposed regulatory infraction,
which is now the primary theory of liability that they
advance. Id. at 2-3. Third, Plaintiffs fail to meet
Rule 23(b)(3) because the Class members are not ascertainable
and Plaintiffs' damages model does not align with their
new theory of liability. Id. at 3. Fourth,
Plaintiffs' claim for injunctive relief under Rule
23(b)(2) fails because they lack standing to pursue such
relief and because the primary relief sought is
individualized monetary damages. Id. at 3-4.
Plaintiffs also filed a reply (ECF No. 285), both parties
filed sur-replies (ECF Nos. 292 & 295), and Plaintiffs
filed a notice of supplemental authority (ECF No. 297).
Rule of Civil Procedure 23(a) provides for class
certification if: (1) the class is so numerous that joinder
of all members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or defenses
of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties
will fairly and adequately protect the interests of the
class.” Fed.R.Civ.P. 23(a). Courts commonly refer to
these requirements as numerosity, commonality, typicality,
and adequacy. See In re Constar Int'l Inc. Sec.
Litig., 585 F.3d 774, 780 (3d Cir. 2009).
addition to fulfilling Rule 23(a), a plaintiff must also meet
one of the requirements set forth in Rule 23(b). Id.
The requirements at issue here emanate from Rule 23(b)(2) and
(b)(3). Rule 23(b)(2) permits certification where “the
party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class[.]” Fed.R.Civ.P.
23(b)(2). The rule “applies only when a single
injunction or declaratory judgment would provide relief to
each member of the class.” See Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 360 (2011). Rule 23(b)(3)
permits certification only if “questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed.R.Civ.P.
23(b)(3). “The twin requirements of Rule 23(b)(3) are
known as predominance and superiority.” In re
Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310
(3d Cir. 2008).
certification is proper only if the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23
are met.” Id. at 309 (footnote and quotation
marks omitted). Each Rule 23 requirement must be established
by a preponderance of the evidence. See In re Blood
Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir.
2015). While the class certification analysis may
“entail some overlap with the merits of the
plaintiff's underlying claim, ” Wal-Mart
Stores, 564 U.S. at 351, courts consider merits
questions only to the extent that they are relevant to
determining whether Rule 23 prerequisites have been met.
See Amgen Inc. v. Conn. Ret. Plans & Trust
Funds, 568 U.S. 455, 466 (2013) (internal citations
Court will first address the Rule 23(a) requirements before
turning to Rule 23(b)(2) and (3). Ultimately, the Court finds
that Plaintiffs meet Rule 23(a) but fall short of their
obligations under Rule 23(b). The Court, therefore, denies
Plaintiffs' Claims Satisfy Rule 23(a)
Court finds that Plaintiffs' claims meet the four
requirements under Rule 23(a). As an initial matter, the
Court notes that Defendant does not address Plaintiffs'
arguments concerning numerosity and commonality. Nonetheless,
the rule requires the satisfaction of each requirement and
the Court will consider each in turn.
is satisfied when joinder of all putative class members is
impracticable. Fed.R.Civ.P. 23(a)(1). Plaintiffs' class
definition incorporates any person who purchased TPP within
the four named states for a period of approximately nine
years. See Pls.' Mem. at 3. Clearly, the number
of potential class members could reach into the hundreds of
thousands, if not millions, rendering joinder impracticable.
Plaintiffs' claims satisfy numerosity.
is a consideration of whether there are ‘questions of
law common to the class[.]' Commonality is satisfied when
there are classwide answers.” Reyes v. Netdeposit,
LLC, 802 F.3d 469, 482 (3d Cir. 2015) (quoting
Fed.R.Civ.P. 23(a)(2)) (citation omitted). Plaintiffs
identify four questions common to the Class: “(1)
whether TPP conforms with the standard of identity for
pasteurized orange juice; (2) whether TPP contains
undisclosed flavors; (3) whether TPP's label is
misleading; and (4) whether the conduct of Defendant is such
that Plaintiffs and other members of the Classes are entitled
to damages.” Pls.' Mem. at 26. Plaintiffs argue
that the claims of each class member will universally turn on
the answers to these questions because Defendant's
conduct was the same to every member and, therefore,
“the lawfulness of [Defendant's] conduct is not
unique to any members of the Classes.” Id. at
27. The Court agrees. Plaintiffs' claims satisfy
commonality. See Reyes, 802 F.3d at 486 (“A
court's focus must be on whether the defendant's
conduct [is] common as to all of the class members[.]”)
(quotation and citation omitted).
concepts of commonality and typicality are broadly defined
and tend to merge.” Baby Neal ex rel. Kanter v.
Casey, 43 F.3d 48, 56 (3d Cir. 1994). “The
typicality inquiry centers on whether the interest of the
named plaintiffs align with the interests of the absent
members.” Stewart v. Abraham, 275 F.3d 220,
227 (3d Cir. 2001) (citation omitted). “‘[C]ases
challenging the same unlawful conduct which affects both the
named plaintiffs and the putative class usually satisfy the
typicality requirement irrespective of the varying fact
patterns underlying the individual claims.'”
Id. (quoting Baby Neal, 43 F.3d at 58.
“Factual differences will not render a claim atypical
if the claim arises from the same event or practice or course
of conduct that gives rise to the claims of the [absent]
class members, and if it is based on the same legal
theory.” Id. at 227-28 (quotation and citation
argue that the named Plaintiffs' claims “are
identical to those of the Classes in all respects
except for the amount of damages” because they
“arise from the same events, the same course of
Defendant's conduct, and are based on the same legal
theories[.]” See Pls.' Mem. at 27-28.
Defendants disagree, arguing that the named Plaintiffs'
claims are atypical because none of the named Plaintiffs
“testified that their decision to purchase TPP turned
on the standard of identity or labeling regulations.”
See Def.'s Opp'n at 29. Individual
purchasing decisions, however, do not make Plaintiffs'
claims atypical. Each of the named Plaintiffs' claims
arise from their individual purchases of TPP and the injuries
alleged universally arise from Defendant's
conduct-i.e., the purported mislabeling of TPP. That
Plaintiffs have shifted their theory of liability ...