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In re Tropicana Orange Juice Marketing And Sales Practices Litigation

United States District Court, D. New Jersey

June 18, 2019



          WILLIAM J. MARTINI, U.S.D.J.

         This is a case about orange juice. Defendant Tropicana is a manufacturer of products derived from citrus, including a category of products of pasteurized, not-from-concentrate orange juice marketed as Tropicana Pure Premium (“TPP”). Plaintiff Angelena Lewis (“Lewis” or “Plaintiff”) is a purchaser of at least one TPP product. Plaintiff alleges that Tropicana deceptively markets TPP as “100% pure and natural orange juice, ” “100% pure orange juice, ” “100% orange juice, ” “pasteurized orange juice, ” “pasteurized, ” “pure, ” “natural, ” “fresh, ” and “grove to glass, ” when, in fact, it is none of those things. Instead, Plaintiff alleges that Defendant removes solids and oils from the extracted juice, treats the mixture, and then adds oils, colors, or flavoring in violation of FDA standards and consumer protection laws. Based on these allegations, Lewis, now proceeding as the sole named plaintiff, asserts claims under New York and California law on behalf of herself and all others similarly situated. See ECF No. [32].

         Before the Court is Plaintiff's Motion for Certification of Modified Class, Appointment of Class Representatives, and Appointment of Class Counsel. ECF No. [320] (“Renewed Motion”). There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, Renewed Motion for Class Certification is DENIED.


         The Renewed Motion is Plaintiff's third attempt to move for class certification. See ECF Nos. [144], [270] & [320]. On January 22, 2018, the Court denied certification in a written opinion. ECF No. [311] (“Opinion Denying Certification”). In the opinion, the Court found that the then-named plaintiffs had met the Rule 23(a) requirements for certification but failed to meet the requirements set forth under Rule 23(b)(2) and (b)(3).

         Five months later, Plaintiff filed the Renewed Motion. ECF No. [320]. Although Defendant contested briefing the Renewed Motion prior to summary judgment, ECF Nos. [323] & [325], on December 28, 2019, Court issued a written opinion finding that Plaintiff should be permitted to pursue class certification first. ECF No. [327]. The Renewed Motion is now ripe for decision. See ECF Nos. [330], [338], [341] & [344].


         A class action may be certified if: (1) the class is so numerous that joinder is impracticable (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and (4) the representative parties will fairly and adequately protect the interests of the class (“adequacy”). In re Constar Int'l Inc. Sec. Litig., 585 F.3d 774, 780 (3d Cir. 2009) (quoting Fed.R.Civ.P. 23(a)).

         In addition to Rule 23(a), a plaintiff must also meet one of the requirements set forth in Rule 23(b). Id. Lewis seeks certification under Rule 23(b)(3), which permits certification only if (1) questions of law or fact common to class members predominate over individual questions (“predominance”), and (2) a class action is the superior method for fairly and efficiently adjudicating the controversy (“superiority”). Fed.R.Civ.P. 23(b)(3). To determine predominance and superiority, the Court considers: “(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 615-16 (1997).

         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, ” the court considers merits questions only to the extent they are relevant to performing the “rigorous analysis” required to determine whether the Rule 23 prerequisites are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011).


         In the Renewed Motion, Lewis seeks certification under Rule 23(b)(3) of two classes that she argues correct the deficiencies found in the Opinion Denying Certification. Lewis, a California resident who purchased TPP at least once at a Costco Wholesale Store (“Costco”) in California, sets forth the two modified classes as follows:

All consumers who were or are members of a Costco Wholesale Store in the State of California and who purchased Tropicana Pure Premium Orange Juice at a Costco Wholesale store in the State of California between January 1, 2008 and the present (“California Class”).
All consumers who were or are members of a Costco Wholesale Store in the State of New York and who purchased Tropicana Pure Premium Orange Juice at a Costco Wholesale store in the State of New York between January 1, 2008 and the present (“[New York] Class”).

ECF No. [321] at 1, 4, 7, 7 n.8. Lewis seeks to represent both classes in four claims against Defendant:

1. Violation of New York General Business Law (“NYGBL”) § 349;
2. Violation of NYGBL § 350;
3. Violation of the Consumers Legal Remedies Act (“CLRA”), California Civil Code §§ 1750 et seq.; and
4. Violation of the Unfair Competition Law (“UCL”) California Business & Professional Code §§ 17200 et seq.

Id.; see also ECF No. [32].[1]

         In her brief, Plaintiff principally[2] argues that the proposed new classes cured the deficiencies the Court previously noted in the Opinion Denying Class Certification, and thus the Court implicitly “already found” that Rule 23(a) and 23(b) are satisfied for the new classes. ECF Nos. [321] at 5-11, 12-21; [338] at 1 n.1. Plaintiff separately argues that, even if the Court had not “already decided” that she complies with Rule 23(b), that there is an administratively feasible mechanism to ascertain the class, that her damages model reflects her theory of liability, and that Defendant waived contesting both her experts' conclusions and superiority. Id. at 33-38.

         Defendant reads the Opinion Denying Certification quite differently. First, Defendant argues that the opinion is not susceptible to “law of the case” treatment because the new class definitions expand the class, the theories of liability, and the claims that this Court previously considered. Defendant further argues that the record is devoid of classwide evidence regarding the new Costco-based classes and only contains the analyses previously relied upon in the two prior class certification motions. Defendant also argues that Plaintiff fails ascertainability because she has not adequately addressed the issues previously highlighted by this Court in the Opinion Denying Certification. Separately, Defendant argues that some of the claims included in the new proposed classes are time barred under the tolling provisions outlined in Am. Pipe & Const. Co. v.

         Utah, 414 U.S. 538 (1974), and that Lewis cannot adequately represent the New York Class because she is not a member of that class.

         IV. ANALYSIS

         A. The Import of the Opinion Denying Certification

         Plaintiff argues that the “law of the case” precludes the Court from reviewing prior Rule 23(a) findings, an “implicit” Rule 23(b) predominance finding, and Defendant's “waiver” of any arguments contesting superiority. ECF Nos. [321], passim; [338] at 1. In sum, Plaintiff argues that “law of the case doctrine” allows her to preserve prior class certification rulings she likes, but revisit those she doesn't.

         The Court disagrees. The “law of the case doctrine provides that a court should not re-examine an issue already decided in the same case.” Bridge v. U.S. Parole Com 'n, 981 F.2d 97, 103 (3d Cir. 1992). However, the Third Circuit has made clear that the doctrine is not applicable to class certification rulings because “[a]n order that grants or denies class certification may be altered or amended before final judgment.” Bayshore Ford Truck v. Ford Motor Co., No. CIV. A. 99-741 JLL, 2010 WL 415329, at *2 (D.N.J. Jan. 29, 2010) (citing Fed.R.Civ.P. 23(c)(1)(C) and Zenith Labs. v. Carter-Wallace, Inc., 530 F.2d 508, 512 (3d Cir. 1976) (cited at ECF No. [338] at 4)).

         The Court finds that the doctrine is further inapplicable here because Lewis seeks to certify two new classes not yet considered by this Court and to represent these classes as the sole named plaintiff. Defendant objects to certification of these classes with new arguments. The Court therefore is not “re-examin[ing] an issue already decided in this case, ” Bridge, 981 F.2d at 103, since it has not yet performed the “rigorous consideration of all the evidence and arguments offered by the parties” as to Plaintiff's new proposed classes, In re Hydrogen Peroxide Antitrust Litig, 552 F.3d 305, 321 (3d Cir. 2008). The Court thus finds that the “law of the case” doctrine does not apply to the Renewed Motion and the Court will examine each of the Rule 23 requirements in turn.[3]

         B. The Rule 23(a) Requirements

         a. Numerosity

         Numerosity is satisfied when joinder of all putative class members is impracticable. Fed.R.Civ.P. 23(a)(1). Where the number of potential plaintiffs exceed forty, the numerosity requirement is generally fulfilled. Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001). Here, Defendant does not contest numerosity, and Plaintiff's two new proposed classes likely include tens, if not hundreds, of thousands of TPP customers over an eleven-year period. See ECF No. [321] at 3 n.6. The Court finds Plaintiff's claims satisfy numerosity.

         b. Commonality

         Commonality considers 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) and citing Dukes, 564 U.S. at 350). Commonality requires that the class members have “suffered the same injury, ” and not merely that “they have all suffered a violation of the same provision of law.” Mielo v. Steak 'n Shake Operations, Inc., 897 F.3d 467, 489-90 (3d Cir. 2018) (quoting Dukes, 564 U.S. at 349). Thus, the members of the class must assert a common contention that is capable of classwide resolution such that the “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. (quoting Dukes, 564 U.S. at 350); see also Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 597 (3d Cir. 2012) (noting that the “commonality requirement ‘does not require identical claims or facts among class member[s]” (citations omitted)).

         Plaintiff argues that she seeks to represent a class on the theory that Defendant “concealed [the] addition of flavors to TPP (contrary to the regulations) and violated] the standard of identity of pasteurized orange juice.” ECF Nos. [271] at 1 and [321] at 6-7. Plaintiff submits that this theory can be summarized in the following questions: “(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 Plaintiff and other members of the Classes are entitled to damages.” ECF No. [321] at 6-7. Plaintiff ...

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