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In re McCormick & Co., Inc., Pepper Products Marketing and Sales Practices Litigation

United States District Court, District of Columbia

July 10, 2019

IN RE MCCORMICK & COMPANY, INC., PEPPER PRODUCTS MARKETING AND SALES PRACTICES LITIGATION This Document Relates to ALL CONSUMER CASES Description Size (oz) IPC

          MEMORANDUM OPINION

          ELLEN S. HUVELLE UNITED STATES DISTRICT JUDGE.

         TABLE OF CONTENTS

         BACKGROUND............................................................................................................................4

         I. WHAT IS "NONFUNCTIONAL SLACK-FILL"?................................................................4

         A. Federal Law........................................................................................................................4

         B. State Laws...........................................................................................................................5

         C. Slack-Fill Litigation............................................................................................................6

         II. THE PRESENT LITIGATION...............................................................................................9

         A. Factual Background............................................................................................................9

         B. Procedural History of the Multi-District Litigation..........................................................17

         C. Current Plaintiffs and Remaining Claims.........................................................................21

         III. MOTION FOR CLASS CERTIFICATION.........................................................................23

         A. Proposed Classes...............................................................................................................23

         1. Consumer Protection Claims........................................................................................24

         a. Multi-State Consumer Protection Class....................................................................24

         b. Single-State Consumer Protection Classes...............................................................25

         2. Unjust Enrichment Claims............................................................................................25

         a. Multi-State Unjust Enrichment Classes....................................................................25

         b. Single-State Unjust Enrichment Classes...................................................................27

         B. Class Certification Record................................................................................................27

         ANALYSIS...................................................................................................................................29

         I. LEGAL STANDARD FOR CLASS CERTIFICATION.....................................................29

         II. MULTI-STATE CLASSES..................................................................................................33

         A. Multi-State Consumer Protection Class of Twenty Jurisdictions.....................................36

         B. Multi-State Unjust Enrichment Classes............................................................................43

         1. Element of Unjustness..................................................................................................45

         2. No Adequate Remedy at Law Requirement.................................................................48

         III. SINGLE-STATE CLASSES................................................................................................51

         A. Numerosity (Rule 23(a)(1))..............................................................................................51

         B. Commonality (Rule 23(a)(2))...........................................................................................52

         C. Typicality (Rule 23(a)(3)).................................................................................................55

         D. Adequacy (Rule 23(a)(4)).................................................................................................60

         E. Ascertainability.................................................................................................................61

         F. Predominance (Rule 23(b)(3))..........................................................................................65

         1. Single-State Consumer Protection Classes...................................................................67

         a. Deception..................................................................................................................67

         b. Existence of Nonfunctional Slack-Fill......................................................................70

         c. Damages....................................................................................................................72

         d. Extrinsic Evidence of Consumer Perceptions and Behavior....................................73

         e. California Consumer Protection Class......................................................................80

         f Illinois Consumer Protection Class...........................................................................88

         g. Florida Consumer Protection Class..........................................................................95

         h. Missouri Consumer Protection Class........................................................................98

         2. Single-State Unjust Enrichment Classes.....................................................................102

         G Superiority (Rule 23(b)(3)).............................................................................................106

         H. Appointment of Class Counsel (Rule 23(g))..................................................................108

         CONCLUSION...........................................................................................................................109

         This multidistrict consumer litigation against McCormick & Co. and Wal-Mart Stores, Inc., arises from the sales of black pepper in tins and grinders allegedly containing "nonfunctional slack-fill" not visible to purchasers (the "Slack-Filled Pepper Products"). The Slack-Filled Pepper Products were sold between March 2015 and mid-2016. They include both McCormick-branded products and McCormick-filled private-label brands, such as Wal-Mart's Great Value products. Named plaintiffs are purchasers who claim that the sale of these products violated various state consumer protection statutes and unjust enrichment laws.[1]

         Before the Court is plaintiffs' motion pursuant to Federal Rule of Civil Procedure 23 for class certification and appointment of counsel. (Pl.'s Mot. for Class Certification, ECF No. 156 ("Class Cert. Mot.").) With respect to their statutory consumer protection claims, plaintiffs seek certification of a multi-state class covering purchasers in 20 jurisdictions (the "Consumer Protection Multi-State Class") or, in the alternative, four single-state classes covering purchasers in California, Florida, Illinois, and Missouri. With respect to their unjust enrichment claims, plaintiffs seek certification of two multi-state classes, covering purchasers in a total of 29 jurisdictions (the "Unjust Enrichment (Restatement) Multi-State Class" and the "Unjust Enrichment (Appreciation) Multi-State Class") or, in the alternative, seven single-state unjust enrichment classes covering purchasers in California, Connecticut, the District of Columbia, Illinois, Maryland, Missouri, and Pennsylvania. In addition to opposing class certification, defendants have filed a joint motion to exclude the expert report and opinions of Dr. Armando Levy, plaintiffs' damages expert. (Defs.' Joint Mot. to Exclude the Report and Opinions of Dr. Armando Levy, Aug. 28, 2017, ECF No. 164 ("Defs.' Expert Mot.").)

         For the reasons stated herein, plaintiffs' motion for class certification is granted in part and denied in part. Defendants' motion to exclude plaintiffs' damages expert is denied.

         BACKGROUND

         I. WHAT IS "NONFUNCTIONAL SLACK-FILL"?

         A. Federal Law

         Although plaintiffs' legal claims arise under state law, they rely on the federal definition and prohibition of "nonfunctional slack-fill." "Slack-fill" is defined as "the difference between the actual capacity of a container and the volume of product contained therein." 21 C.F.R. § 100.100(a). "Nonfunctional slack-fill" is defined as "the empty space in a package that is filled to less than its capacity for reasons other than:"

(1) Protection of the contents of the package;
(2) The requirements of the machines used for enclosing the contents in such package;
(3) Unavoidable product settling during shipping and handling;
(4) The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated to consumers;
(5) The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value which is both significant in proportion to the value of the product and independent of its function to hold the food, e.g., a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed; or durable commemorative or promotional packages; or
(6) Inability to increase level of fill or to further reduce the size of the package eg., where some minimum package size is necessary to accommodate required food labeling (excluding any vignettes or other nonmandatory designs or label information) discourage pilfering, facilitate handling, or accommodate tamper-resistant devices).

21 C.F.R. § 100.100(a) (emphasis added); see also Misleading Containers; Nonfunctional Slack- Fill 58 Fed. Reg. 64123-01, 64126 (Dec. 6, 1993) ("[T]he exceptions in §100.100(a) provide only for that amount of slack-fill that is necessary to accomplish a specific function."). Federal law deems "non-functional slack-fill" in "[a] container that does not allow the consumer to fully view its contents" "to be filled as to be misleading," 21 C.F.R. § 100.100(a), which is a violation of the federal law prohibiting the "misbranding" of foods. See 21 U.S.C. § 343(d) ("[a] food shall be deemed to be misbranded- . . . [i]f its container is so made, formed, or filled as to be misleading").[2]

         B. State Laws

         Although only a few of the states at issue in this litigation have laws or regulations that expressly prohibit or limit nonfunctional slack-fill, [3] the remaining states either incorporate or mirror the definition of "misbranding" in 21 U.S.C. § 343(d), [4] or define "misbranding" to include misleading or deceptive packaging.[5] In addition, a number of states have consumer protection statutes that define unfair or deceptive acts or practices to include "[r]presenting that goods ... have .. . quantities that they do not have." Cal. Civ. Code § 1770(a)(5).[6]

         C. Slack-Fill Litigation

         While there is no private right of action to enforce the federal regulations on nonfunctional slack-fill, consumers in recent years have filed numerous lawsuits seeking to hold manufacturers liable under state law for the sale of products allegedly containing nonfunctional slack-fill. For example, cases have been brought alleging nonfunctional slack-fill in the packaging of candy in cardboard boxes, [7] chips, [8] cereal, [9] pretzels, [10] pasta, [11] risotto mix, [12] canned tuna, [13] gum, [14] protein powder, [15] ice cream, [16] cake mix, [17] dried fruit, [18] and a variety of other food[19] and non-food products.[20] The present litigation is the first challenge to allegedly nonfunctional slack-fill in spice tins and grinders.

         Despite the volume of slack-fill litigation, all of which has been filed as putative class actions, very few have reached the stage of class certification. Many cases have been dismissed for failing to plausibly allege nonfunctional slack-fill or failing to plausibly allege that reasonable consumers would have been misled by the packaging even if there was nonfunctional slack-fill.[21] Slack-fill claims have also been dismissed on other grounds, [22] remanded to state court, [23] stayed, [24] or resolved on summary judgment, [25] or plaintiffs have decided not to pursue them.[26] In several cases, plaintiffs have voluntarily dismissed their claims (presumably due to a settlement), frequently with the plaintiffs individual claims dismissed with prejudice, while the class claims are dismissed without prejudice.[27] Courts have reached the question of class certification in only six cases - one granted certification, [28] two granted certification of a settlement class, [29] and three denied certification.[30]

         II. THE PRESENT LITIGATION

         A. Factual Background

         Black pepper is the most widely traded spice in the international market, both in terms of quantity and value, and McCormick is the largest manufacturer and leading seller of black pepper products in the United States. (See Second Am. Cons. Class Action Compl. ¶ 3, ECF No. 128 ("2d Am. Compl."); Declaration of Elizabeth Fegan ¶¶ 10, 12, ECF No. 188-1 ("Fegan Decl."); Expert Report of Dr. Armando Levy ¶¶ 19, 20, ECF No. 188-3 ("Levy Rep.").) It buys black pepper from all over the world and transports it to its processing plants in the United States. (2d Am. Compl. ¶ 28; Levy Rep. ¶ 19 (citing McCormick 2014 Annual Report).) McCormick's processing plants produce both McCormick-branded pepper products and private-label pepper products for major retail chains, including Wal-Mart's Great Value brand. (2d Am. Compl. ¶¶ 3, 46; McCormick's Am. Answer to 2d Am. Compl. ¶ 3, ECF No. 151; Wal-Mart's Am. Answer to 2d Am. Compl. ¶¶ 3, 46, ECF No. 155; Levy Rep. ¶ 20.) In 2015, McCormick-branded pepper products represented 47% of the U.S. black pepper market, while the private-label pepper products produced by McCormick represented another 18.8% of the market. (See Fegan Decl. ¶¶ 13, 16; Levy Rep. ¶ 20.)

         Global consumption of black pepper has been growing rapidly since the 1990's. (2d Am. Compl. ¶ 29; Levy Rep. ¶ 17.) This rapid increase in demand, coupled with relatively stable world production, resulted in significant increases in the price of black pepper. (2d Am. Compl. ¶ 29; Levy Rep. ¶ 18; see also McCormick's Am. Answer ¶ 31.) For example, between 2005 and 2015, the spot price of black pepper in New York increased more than six-fold, from $0.75 per pound to more than $5.00 per pound. (Levy Rep. ¶ 18.) As the cost of pepper increased, McCormick repeatedly raised the retail prices for its black pepper products. At the same time, the gap between the retail price for McCormick-branded products and private-label brands grew, while McComiick's overall market share declined. (See Pl.'s Exs. 101, 102.[31])[32]

         On May 30, 2014, McConnick embarked on a "Black Pepper Net Weight Reduction" Project. (See Fegan Decl. ¶ 22; Pl.'s Ex. 103.) The project's "objective" was "to mitigate commodity cost increases expected on black pepper through a net weight reduction across branded and private label metal cans" and thus avoid any further price increases for its own products. (See Fegan Decl. ¶ 24; Pl.'s Ex. 103; see also Pl.'s Exs. 104-106, 118, 121.) McConnick recognized that reducing the net weight in a container without changing the "absolute price" was effectively a price increase because the cost per ounce would increase. (See Fegan Decl. ¶¶ 29, 39; Pl.'s Exs. 107, 114.) McConnick sought to avoid an absolute price increase on products on the shelves, since it believed that such a price increase would lead to a decline in sales. (See Fegan Decl. ¶ 36; Pl.'s Exs. 112-113.)

         Over the next few months the final details of McComiick's net weight reduction project were decided. (See Fegan Decl. ¶¶ 25-34, 58-59, 77; Pl.'s Ex. 104, 109.) Although McConnick had initially contemplated a 10% net weight reduction, due to the continued increase in the cost of black pepper, it ultimately decided on a larger reduction, reducing the weight of ground pepper in its tins by 25% and the weight of peppercorn in its grinders by 19%. (See 2d Am. Compl.¶5; FeganDecl.¶¶24, 31, 33; Pls.'Exs. 103, 108-110.) Plaintiffs claim that "McCormick contemplated it would receive a monetary benefit in the form of a cost savings increase from $4.6MM with 10% reduction to $11. 1MM with a 25% reduction." (Fegan Decl. ¶ 34 (citing Pl.'sEx. 110).)

         During this time, McCormick employees discussed the impact of a net weight reduction on "visual fill" levels, specifically the need to make sure that the reduced-weight products would meet McCormick's internal visual fill requirement of 75%, a level it believed complied with the federal regulation prohibiting nonfunctional slack-fill. (See Fegan Decl. ¶¶ 52, 70, 73, 74, 77, 79, 81, 82; Pl.'s Exs. 100, 103, 109, 111, 119-121, 124, 125, 131, 133, 137-138, 142-143.) Several possibilities to avoid any "fill" problem were discussed, including using less dense (bulkier) pepper[33] or reducing McCormick's internal visual fill requirements. (See Fegan Decl. ¶¶ 76, 77; Pl.'sExs. 101, 109, 111, 119-120, 124, 137.)

         McCormick employees also discussed what to do about the McCormick-produced private-label brands, which were in identically-sized containers. (See Fegan Decl. ¶¶ 24, 25, 35-59; Pl.'s Ex. 116.) McCormick documents indicate that employees were concerned that if the private-label brands did not also reduce the weights in their comparable products, they might advertise the difference in quantity and price and that McCormick would appear to be "deceptive" for reducing weights while maintaining the same size containers. (See Fegan Decl. ¶ 37; Pl.'s Ex. 113.) Ultimately, the majority (59%) of the private-label brands supplied by McCormick, including Wal-Mart, agreed to follow McCormick and reduce weights by the same amounts without changing container sizes. (See Fegan Decl. ¶¶ 58-59; Pl.'s Exs. 132, 134.) But several private-label brands did not reduce weights, opting instead to take a wholesale price increase. (See Fegan Decl. ¶ 59.)

         In its final executed form, the Net Weight Reduction Project resulted in the following changes: (1) for both McCormick and participating private-label brands, including Wal-Mart, the net weights of the 2-, 4-, and 8-ounce metal tins of ground black pepper were reduced by 25o/o to 1.5, 3, and 6 ounces, with no changes in container size or price; and (2) for McCormick, the net weights of the 1.24-ounce and 3.1-ounce black peppercorn grinders were reduced to 1.00 ounce and 2.5 ounces, again with no change in container size or price. (See Fegan Decl. ¶¶ 62-68; Pl.'s Ex. 122; McCormick's Am. Answer ¶ 34, 35, 40, 41; Wal-Mart's Am. Answer ¶ 5; 2d Am. Compl. ¶¶ 5, 36-38, 42-45.) New Universal Product Codes ("UPC") were assigned to all new products. (See Fegan Decl. ¶ 71.) The "net weight decreases" were "effective with all shipments on February 23, 2015." (See Fegan Decl. ¶ 69; Pl.'s Ex. 135.) As discussed in greater detail infra, McCormick claims that even though it reduced the label weights on these products, the fill levels did not decrease because it "overfill[ed]" when necessary to meet a new internal minimum fill level of 80%. (See Hester Decl. ¶¶ 11-12, ECF 188-2.)

         The reduced-weight products began to reach store shelves in March 2015. Consumers looking at any of these products on store shelves saw the same containers they had always seen. The label on the container stated the new weight in the same size print and location as the prior weight had appeared. Consumers could not see the fill levels in any of the products; the metal tins were opaque and the fill level of the grinders was obscured by an opaque label. (See Fegan Decl. ¶¶ 62-68; 2d Am. Compl. ¶¶ 2, 33, 35-46.) Nor were fill levels necessarily observable even after the products were opened. (See Fegan Decl. ¶ 81 (internal McCormick email dated 8/7/2014 states "keep in mind consumers do not really know the fill level right now" (quoting Pl.'s Ex. 110).) Below are pictures (copied from the Second Amended Complaint ¶¶ 36, 43, 44) showing (1) the reduced-weight 1.5-ounce tin and the original-weight 2-ounce tin; and (2) the reduced-weight 1-ounce grinder with the label on; and (3) the reduced-weight 1-ounce grinder with the label removed next to the original-weight 1.24-ounce grinder with the label removed.

         Picture 1

(Image Omitted)

Picture 2

(Image Omitted)

Picture 3

(Image Omitted)

         Until retailers sold out of the original weight products, both the original and the reduced-weight product could have been on store shelves at the same time. In addition, in some locations there would also have been pepper products from other pepper producers and/or private-label brands produced by McCormick where the weights had not been reduced.

         In May 2015, Wal-Mart told McCormick that it was concerned that the new tins had "too much air space." (See Fegan Decl. ¶ 77 n.2; Pl.'s Exs. 139-40.) On June 9, 2015, Watkins Inc., another pepper producer and a McCormick competitor, filed a lawsuit in Minnesota complaining that the new McCormick products were deceiving consumers and causing Watkins to lose sales. See Watkins Inc. v. McCormick & Co., No. 15-cv-02688 (D. Minn, filed June 9, 2015). That same day, the Minneapolis Star Tribune newspaper published a story about the Watkins lawsuit. See Mike Hughlett, Watkins sues spice giant McCormick & Co. over pepper tins, Minneapolis Star Tribune, June 9, 2015 ("Watkins Inc., a small player in the pepper business, filed a lawsuit Tuesday claiming that the nation's largest spice company has 'deceived' consumers by stealthily slashing the amount of black pepper in its tins, without shrinking the container or lowering the price."). Several other news articles followed, including one in the Wall Street Journal. See Paul Ziobro, Same Package, Same Price, Less Product It's Called a ‘Weight-Out' in the Business a Less Direct Way to Raise Prices for Consumers, Wall Street Journal, June 12, 2015, at ¶ 1; see also Mike Hughlett, McCormick Says It Is Not Deceiving Customers with Product Labeling, Minneapolis Star Tribune, June 10, 2015.

         On June 15, 2015, a pepper consumer filed in federal court in New York the first putative class action against McCormick. See Dupler v. McCormick & Co., No. 2:15-cv-6760 (S.D.N.Y.). Other consumer cases, filed in federal district courts throughout the country, followed.[34] Only one of the cases also named Wal-Mart as a defendant. See Vladimirsky v. McCormick & Co., No. 1:15-cv-08102 (N.D. 111. filed Sept. 15, 2015). These consumer cases alleged that, by reducing the weight of black pepper in a container without changing the container size or price, so that the products contained "nonfunctional slack-fill" that was not visible to consumers, McCormick had deceived consumers into believing that they were buying more pepper than they actually received.

         In the spring of 2016, McCormick discontinued production of the reduced-weight, same container-sized products, replacing them with reduced-size containers. The reduced-weight products remained on store shelves until they were sold out, which was no later than June 2016. (See Hr'g Tr. at 81, July 10, 2018, ECF No. 196 ("7/10/18 Tr.").)

         B. Procedural History of the Multi-District Litigation

         In December 2015, the United States Judicial Panel on Multidistrict Litigation transferred all pending black pepper "slack-fill" cases against McCormick to this Court for coordinated or consolidated pretrial proceedings. See In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig, 148 F.Supp.3d 1364, 1365 (J.P.M.L. 2015). Ultimately, a total of 16 separate actions were transferred, 15 consumer cases (see supra note 34) and the Watkins competitor suit.[35]

         After the cases were transferred, plaintiffs filed a consolidated and amended class action complaint against McCormick and Wal-Mart ("Amended Complaint").[36] (See Cons. Am. Class Action Compl., Mar. 2, 2016, ECF No. 34.) The Amended Complaint included fifteen named plaintiffs from eleven jurisdictions: California, Connecticut, the District of Columbia, Florida, Illinois, Iowa, Maryland, Missouri, New York, New Jersey, and Pennsylvania.[37] It alleged that each named plaintiff had purchased a black pepper product that was part of McCormick's reduced-weight program and that these products contained nonfunctional slack-fill in containers without a visible fill line. It further alleged that by selling these products defendants had violated federal antitrust law (Count I), the consumer protection statutes of 24 states and the District of Columbia (Count II), and the unjust enrichment law of all 50 states and the District of Columbia (Count III). Plaintiffs brought all three types of claims on their own behalf and on behalf of putative classes of consumers.

         Defendants moved to dismiss the Amended Complaint. The Court granted the motions as to the federal antitrust claim but denied them as to the consumer protection and unjust enrichment claims. See In re McCormick, 217 F.Supp.3d 124, 129 (D.D.C. 2016).

         Relevant to the pending motion for class certification, defendants argued in their motion to dismiss that legal variations among state laws and factual variations among individual purchasers precluded class treatment of the consumer protection and unjust enrichment claims. See Id. at 139. The Court disagreed, concluding that dismissal on either ground would be premature given that plaintiffs had not yet moved for class certification. With respect to legal variations among state laws, the Court recognized that multi-state consumer protection and unjust enrichment classes were theoretically possible, so plaintiffs were entitled to try to demonstrate, through an extensive analysis of state laws, that there was a workable grouping. Id. at 140-42. As to defendant's argument that factual variations among individual purchasers would preclude a consumer protection class because "the alleged injury depends on individual consumers' state of mind at the time they purchased the pepper," the Court concluded that the argument was "not fairly presented" because defendants made the argument without "specifying] any particular state consumer protection statute." Id. at 146. The Court noted, however, that it "expect[ed] to confront this issue again at class certification." Id. As to defendants' argument that the factual variations among individual purchasers would preclude an unjust enrichment class because unjust enrichment requires evaluation of plaintiffs' individual circumstances, the Court declined to address that argument because the parties had "not yet provided analyses of all fifty states' unjust enrichment law," so it could not "be certain that every state requires an individualized showing of injustice." Id. at 145-46.[38] For those states that did, though, the Court noted that it was "likely that plaintiffs' unjust enrichment claims against McCormick and Wal-Mart will require individualized factual inquiries that bar class treatment" because

[s]ome plaintiffs presumably bought McCormick pepper with full knowledge of the quantity of the pepper in the container, either because they understood that the listed weight had changed or because they had already purchased another container and seen the reduced quantity. Other plaintiffs might not have realized the quantity had been reduced but would have bought the pepper regardless. There would be no injustice in defendants' retaining what these plaintiffs paid for their pepper.

Id. at 145.

         After the ruling on defendants' motion to dismiss, plaintiffs moved for leave to file a Second Amended Complaint in order to add new factual allegations aimed at addressing the deficiencies that had led to the dismissal of the antitrust claim. (See Pl.'s Mot. for Recons., Dec. 9, 2016, ECF No. 105.) After the Court granted the motion, see In re McCormick, 275 F.Supp.3d 218. 219 (D.D.C. 2017), defendants moved to dismiss the Second Amended Complaint. Defendants' motions focused on the revived antitrust count but also "renew[ed] by reference the arguments set forth as to [the] state law claims in McCormick's initial Motion to Dismiss." (See McCormick's Mot. to Dismiss 2d Am. Compl. at 2, Apr. 7, 2017, ECF No. 132; see also Wal-Mart's Mot. to Dismiss 2d Am. Compl. at 1, Apr. 7. 2017, ECF No. 134.) The Court again granted the motion as to the antitrust claim and denied it as to the state law consumer protection and unjust enrichment claims. (See Order, June 13, 2017, ECF No. 146; Mem. Op. at 4, June 13, 2017, ECF No. 148.)

         C. Current Plaintiffs and Remaining Claims

         The Second Amended Complaint is now the operative pleading. In addition to adding new factual allegations, it eliminated four named plaintiffs, who had voluntarily dismissed their claims since the filing of the Amended Complaint, and added one additional plaintiff. As a result, there are now twelve named plaintiffs (instead of fifteen) from eight jurisdictions (instead of eleven): Deborah Esparza and Holly Marsh (California), Cynthia Fernandez (Connecticut), Paula Cole Jones (District of Columbia), Carmen Pellitteri (Florida), Scott Allan Bittle, Alexander Liberov, Brenda Theis and Julia Vladimirskiy (Illinois), Sandra Robinson (Maryland), Catherine Grindel (Missouri), and Hubert Gerstnecker (Pennsylvania).[39] The Second Amended Complaint alleges that each named plaintiff purchased a reduced-weight pepper product for personal use, believing that it was "full" or "substantially filled to capacity," and "did not know that in fact the tin contained just 75% of the pepper that the tin was designed to hold[] and was actually deceived." (2d Am. Compl. ¶¶ 10-21.) The complaint further alleges, on behalf of the named plaintiffs and a putative class, that "[a]s a result of Defendants' actions, Plaintiffs and the Class were deceived when they paid for full tins of ground black pepper that in fact contained just 75o/o pepper and 25% air, or paid for full bottles of black peppercorns that in fact contained just 81% peppercorns and 19% air, and thus were overcharged, did not receive the benefit of the bargain and/or suffered out-of-pocket loss." (2d Am. Compl. ¶ 9; see also Id. ¶ 52 ("[a]s a result of Defendants' blatantly misleading and deceptive use of traditional-sized, non-transparent metal tins and grinders with unlawful slack-fill, Plaintiffs and the Class have been deceived into believing that the containers contain the amount of ground black pepper that the containers are designed to hold").)

         The counts that have survived allege that defendants' actions violated twenty-five state consumer protection statutes (Count II) and constituted unjust enrichment under the common law of all fifty states plus the District of Columbia (Count III). Specifically, Count II alleges that by "selling black pepper in non-transparent containers containing nonfunctional slack-fill," defendants committed unfair, deceptive or fraudulent acts prohibited by state consumer protection statutes. (2d Am. Compl. ¶ 116.) Count II further alleges that plaintiffs and the proposed class members were "directly and proximately injured by Defendants' conduct and would not have paid for Defendants' black pepper had they known that the containers were under-filled," that "as a proximate result of Defendants' misrepresentations and omissions, Plaintiffs and the proposed Class members have suffered an ascertainable loss and are entitled to relief, in an amount to be determined at trial," and that they "are entitled to damages, restitution, disgorgement, and/or such orders or judgments as may be necessary to restore to any person in interest, any money which may have been acquired by means of such unfair practices and to the relief set forth below." (2d Am. Compl. ¶¶ 115-22.) Count III alleges that by selling "black pepper to Plaintiffs and the Class, in containers that included nonfunctional slack-fill while maintaining price levels for full containers," defendants "have unjustly retained a benefit to the detriment of Plaintiffs and members of the Class," that "Defendants' retention of the benefit violates the fundamental principles of justice, equity and good conscience" because "Defendants did not disclose to Plaintiffs and the Class that the black pepper containers contained nonfunctional slack-fill," and that "[a]s a direct and proximate result of the Defendants' misrepresentations and/or omissions with respect to the nonfunctional slack-fill in the pepper tins and grinders. Plaintiffs and the Class have suffered damages in an amount to be proven at trial." (2d Am. Compl. ¶¶ 127-29.)

         III. MOTION FOR CLASS CERTIFICATION

         Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), plaintiffs now move for class certification of then consumer protection and unjust enrichment claims.

         A. Proposed Classes

         Each proposed class consists of individuals who purchased, for their personal or household use, a "Slack-Filled Pepper Product" - which plaintiffs have defined as the following 29 black pepper products:

Description
Size (oz)
IPC

MCCORMICK BLACK PEPPER GROUND

1.50

5210002992

MCCORMICK BLACK PEPPER GROUND

3.00

5210002996

MCCORMICK BLACK PEPPER GROUND

6.00

5210003010

MCCORMICK BLACK PEPPER GRINDER

1.00

5210003026

MCCORMICK PEPPERCORN GRINDER MED

2.50

5210003065

WAL-MART GREAT VALUE PEPPER BLK GRD 3 OZ

3.00

7874206710

WAL-MART GREAT VAL PEPPER BLK GRD 6 OZ

6.00

7874206711

5TH SEAS PEPPER BLK GRD 1.5 OZ

1.50

5210003037

ESSN EVDAY PEPPER BLK GRD 1.5 OZ

1.50

4130305760

ESSN EVDAY PEPPER BLK GRD 3 OZ

3.00

4130305759

HANNAFORD BROS PEPPER BLK GRD 1.5 OZ

1.50

4126820212

HANNAFORD BROS PEPPER BLK GRD 3 OZ

3.00

4126820211

FOOD LION PEPPER BLK GRD 1.5 OZ

1.50

3582609860

FOOD LION PEPPER BLK GRD 3 OZ

3.00

3582609859

PUBLLX PEPPER BLK GRD 1.5 OZ

1.50

4141500731

PUBLLX PEPPER BLK GRD 3 OZ

3.00

4141500031

PUBLLX PEPPER BLK GRD 6 OZ

6.00

4141500631

PUBLLX PEPPER BLK WHL 3.5 OZ

3.50

4141505731

SOUTHERN HOME PEPPER BLK GRD 3 OZ

3.00

788003806

FAMILY GOUR PEPPER BLK GRD 1.5 OZ

1.50

3225115974

FAMILY GOUR PEPPER BLK GRD 3 OZ

3.00

3225115973

CVS GE PEPPER BLK GRD 1.5 OZ

1.50

5042852014

AHOLD WEDGE PEPPER BLK GRD 1.5 OZ

1.50

8826715510

AHOLD WEDGE PEPPER BLK GRD 3 OZ

3.00

8826715511

AHOLD WEDGE PEPPER BLK GRD 6 OZ

6.00

8826715512

WINN DIXIE PEPPER BLK GRD 3 OZ

3.00

2114002679

WINN DLXIE PEPPER BLK GRD 6 OZ

6.00

2114002680

SPRINGFIELD PEPPER BLK GRD 1.5 OZ

1.50

4138029502

SPRINGFIELD PEPPER BLK GRD 3 OZ

3.00

4138029503

(Pl.'s Mem. at 4-5; Fegan Decl. ¶¶ 60-61.) The list includes five McComiick brand pepper products and twenty-four McComhck-supplied, private-label brand pepper products. Each product is identified by a unique UPC code. As previously noted, these products were on retail store shelves starting hi March 2015 until June 2016, but the specific time periods that the products were on store shelves varied by retailer. (See 7/10/18 Tr. at 81-82.)

         1. Consumer Protection Claims

         For then consumer protection claims, plaintiffs seek to certify a multi-state class, covering twenty jurisdictions[40] or, in the alternative, four single-state classes.

         a. Multi-State Consumer Protection Class

         The proposed Consumer Protection Multi-State Class would consist of:

All persons residing in Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Idaho, Illinois. Iowa, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Dakota, or Washington who purchased Slack-Filled Black Pepper Products for their personal or household uses.

(Class Cert. Mot. at 1-2.) This class would bring claims against both McComiick and Wal-Mart under the consumer protection statutes of the 20 jurisdictions where class members reside. The proposed class representatives are the nine named plaintiffs who are from the states included in this grouping: Esparza and Marsh (California); Fernandez (Connecticut); Jones (District of Columbia); Pellitteri (Florida); Bittle, Liberov, Theis, and Vladimirskiy (Illinois); and Grindel (Missouri). Because Liberov is the only proposed class representative who purchased Wal-Mart's private label brand pepper, he is the proposed class representative for the claims against Wal-Mart.

         b. Single-State Consumer Protection Classes

         As an alternative to one multi-state class, plaintiffs initially sought certification of six single-state consumer protection classes - California, Connecticut, the District of Columbia, Florida, Illinois, and Missouri. The proposed class representatives were the named plaintiffs from each state. Because Liberov is from Illinois, only the Illinois consumer protection class includes claims against Wal-Mart. However, plaintiffs subsequently narrowed their request, withdrawing their request to certify single-state classes for Connecticut and the District of Columbia and no longer seeking to have two of the named plaintiffs from Illinois (Theis and Bittle) serve as class representatives. (See Pl.'s Supp. Br. at 1, 10, Oct. 3, 2018, ECF No. 203.) Accordingly, plaintiffs' current request is to certify four single-state consumer protection classes with six proposed class representatives: Esparza and Marsh (California); Pellitteri (Florida); Liberov and Vladimirskiy (Illinois); and Grindel (Missouri).

         2. Unjust Enrichment Claims

         For their unjust enrichment claims, plaintiffs seek to certify two multi-state classes, covering 29 jurisdictions[41] or, in the alternative, seven single-state classes.

         a. Multi-State Unjust Enrichment Classes

         Plaintiffs' two proposed multi-state unjust enrichment classes are designed to account for two different definitions of unjust enrichment.

         The Unjust Enrichment (Restatement) Multi-State Class ("Restatement Class") would include jurisdictions that follow the Restatement (First) of Restitution's definition of unjust enrichment. This class would consist of:

All persons residing in Arkansas, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Iowa, [], New York, Oklahoma, or West Virginia who purchased Slack-Filled Black Pepper Products for their personal or household use.

(Class Cert. Mot. at 2.) It would bring claims against McCormick and Wal-Mart under the unjust enrichment laws of the 10 jurisdictions where class members reside, with the proposed class representatives being the named plaintiffs from those jurisdictions: Fernandez (Connecticut); Jones (District of Columbia); and Bittle, Liberov, Theis, and Vladimirskiy (Illinois).

         The Unjust Enrichment (Appreciation) Multi-State Class ("Appreciation Class") would include jurisdictions that follow the Restatement but require proof of one additional element - "appreciation." This class would consist of:

All persons residing in Alaska, California, Kansas, Kentucky, Maine, Maryland, Massachusetts, [Missouri, New Mexico], Nevada, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, or Wisconsin who purchased Slack-Filled Black Pepper Products, for their personal or household use.

(Class Cert. Mot. at 2.)[42] This class would bring claims under the unjust enrichment laws of the 19 jurisdictions where class members reside with the proposed class representatives being the named plaintiffs from those jurisdictions: Esparza and Marsh (California); Robinson (Maryland); Grindel (Missouri); and Gerstnecker (Pennsylvania).

         b. Single-State Unjust Enrichment Classes

         As an alternative to two multi-state classes, plaintiffs seek certification of seven single-state unjust enrichment classes. The proposed class representatives for each class are the named plaintiffs from that jurisdiction: Esparza and Marsh (California); Fernandez (Connecticut); Jones (District of Columbia); Bittle, Liberov, Theis, and Vladimirskiy (Illinois); Robinson (Maryland), Grindel (Missouri); and Gerstnecker (Pennsylvania). Only the Illinois class has claims against Wal-Mart.

         B. Class Certification Record

         In support of their motion for class certification, plaintiffs submitted tables comparing consumer protection and unjust enrichment law from the relevant jurisdictions, proposed jury instructions for the proposed multi-state classes, excerpts from the depositions of the twelve proposed class representatives, corporate documents that had been produced by McCormick during discovery, the Expert Report of Dr. Armando Levy, and declarations from the custodians of records of various retailers who sold Slack-Filled Pepper Products. (See Pl.'s Mem. in Support of Class Cert. Mot., ECF No. 157-2 ("Pl.'s Mem."); Pl.'s Exs. 1-32, 100-144; Pl.'s Reply to McCormick's Opp., ECF No. 172-1 ("Pl.'s McCormick Reply"); Pl.'s McCormick Reply Exs. 1-2; Pl.'s Supp. Exs. A-H.)

         Defendants each filed an opposition. (See McCormick's Opp. to Class Cert. Mot., Aug. 28, 2017, ECF No. 160 ("McCormick's Opp."); Wal-Mart's Resp. to Class Cert. Mot., Aug. 28, 2017, ECF No. 165 ("Wal-Mart's Opp.").) McCormick's opposition, which Wal-Mart joined in, was supported by its own analysis of the relevant consumer protection and unjust enrichment laws, additional deposition excerpts from proposed class representatives and three former named plaintiffs, a declaration from James Hester, the Materials Manager for McCormick, the Expert Report of Dr. John H. Johnson, IV, as a rebuttal to Dr. Levy's Report, and excerpts from Dr. Levy's deposition. (See McCormick's Exs. 1-16, 19, 21-28.) Defendants also jointly moved to exclude the report and opinions of Dr. Levy.

         At the Court's first hearing on plaintiffs' motion on July 10, 2018, plaintiffs informed the Court that all fact discovery had been completed and that all experts had been identified. (7/10/18 Tr. at 5.) Plaintiffs also presented the Court with additional materials in support of their request to certify multi-state classes - a PowerPoint presentation and a collection of examples of jury instructions - both of which were added to the record. (See Notice of Filing, Aug. 13, 2018, ECF No. 198.) Plaintiffs subsequently filed a statement on Maryland's law of unjust enrichment, and defendants filed a response to plaintiffs' PowerPoint. (See Pl.'s Statement Concerning Md. Law, July 11, 2018, ECF No. 193; Defs.' Resp. to Certain Statements in Pl.'s PowerPoint Presentations 17, 2018, ECF No. 195.)

         On September 18, 2018, the Court held a telephone conference call with the parties to advise them that it intended to deny their motion to certify multi-state consumer protection and unjust enrichment classes, but that additional briefing would be necessary before any decision could be made on whether to certify any single-state classes, particularly the single-state consumer protection classes. The Court therefore asked the parties to address in their supplemental briefing: (1) whether there was "a typical/adequate plaintiff for each state?"; (2) whether "the requirements under each state's law regarding materiality/causation/injury (as distinct from deception)?"; and (3) whether "evidentiary proof [was] necessary for plaintiffs to sustain their burden under Rule 23(b)(3)?" and, if so, whether plaintiffs had "met their burden to show factual predominance based on the 'common proof cited on page 23 of their PowerPoint presentation?" (See Order at 1, Sept. 18, 2018, ECF No. 200.) The parties filed supplemental memoranda on October 3, 2018, and responses on October 16, 2018. (See Defs.' Joint Supp. Br., Oct 3, 2018, ECF No. 202 ("Defs.' Supp. Br."); Pis' Supp. Br., Oct. 3, 2018, ECF No. 203; Defs.' Joint Resp. to Pl.'s Supp. Br., Oct. 3, 2018, ECF No. 204 ("Defs.' Supp. Resp."); Pl.'s Resp. to Defs.' Supp. Br., Oct. 3, 2018, ECF No. 205 ("Pl.'s Supp. Resp.").) In their first filing, plaintiffs withdrew their request to certify single-state consumer protection classes in Connecticut and the District of Columbia, withdrew their request to have Bittle and Theis appointed as class representatives for Illinois, and submitted additional deposition testimony from the remaining proposed class representatives: Esparza and Marsh (California), Pellitteri (Florida), Liberov and Vladimirskiy (Illinois), and Grindel (Missouri). (See Pl.'s Supp. Br. at 1, 12 & Exs. A-F.)

         On October 24, 2018, the Court held a second hearing, focusing exclusively on the four-remaining single-state consumer protection classes. The parties agreed during the September 18, 2018 conference call that the decision whether to certify any single-state classes should be resolved by this Court.

         ANALYSIS

         Plaintiffs have asked the Court to certify either three multi-state classes or four single state classes to bring consumer protection claims and seven single-state classes to bring unjust enrichment claims against defendants McCormick and Wal-Mart. As explained herein, the Court will not certify any of the proposed multi-state classes. Nor will it certify the Illinois Consumer Protection Class or any of the single-state unjust enrichment classes. However, it will certify the California, Florida, and Missouri Consumer Protection Classes.

         I. LEGAL STANDARD FOR CLASS CERTIFICATION

         Federal Rule of Civil Procedure 23 governs the certification of class actions in federal court. Rule 23(a) sets out the four ...


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