Judge Nancy Rosentstengel’s lengthy opinion certifying a class under Rule 23(b)(3) in Suchanek v. Strum Foods, is worth a read in its entirety and is available at 2015 WL 6689359 (S.D. Ill. Nov. 3, 2015), clarified and reconsideration denied at ECF No. 250 (Nov. 19, 2015).
The case is based on allegations that defendants marketed and sold “premium, ground coffee,” which in truth was more than 95% instant coffee. Here are some highlights:
This case had previously been to the 7th Circuit, which concluded that plaintiffs had satisfied commonality. Suchanek v. Sturm Foods, 764 F.3d 750, 756 (7th Cir. 2014). The district court declined to reconsider that conclusion and reaffirmed that the following question was common classwide: whether the coffee’s packaging was likely to mislead a reasonable consumer.
Defendants contested typicality on the grounds that plaintiffs and other class members bought the coffee for different reasons and based on their own beliefs. The court rejected that argument:
What Defendants are essentially saying is that typicality is not satisfied unless the class members all had the same perceptions and knowledge … and the same preferences and reasons for purchasing [the coffee]. This argument goes too far. The standard for typicality does not require the facts underlying every claim to be identical. Additionally, the claims of the named representative and the other class members have the same essence: they were duped into believing they were purchasing ground coffee, and they would not have purchased [it] (or paid as much as they did) had they known it was actually instant coffee. Variations among the named representatives in their perception of the [coffee’s] packaging or their motivation for ultimately purchasing [the coffee] simply means their claims are not completely identical. It does not mean their claims are atypical of the class.
Id. at *12-13 (citations omitted).
Predominance and Damages Calculations: Following guidance from the 7th Circuit, the court began its predominance analysis with the assumption that damages must be “susceptible of measurement across the entire class.” Id. at *15. But the court quickly clarified that this requires only that a “common method” of calculating damages be available, even if “individual damage calculations” would be required. Id. at *15; accord Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013) (“It would drive a stake through the heart of the class action device … to require that every member of the class have identical damages.If the issues of liability are genuinely common issues, and the damages of individual class members can be readily determined in individual hearings, in settlement negotiations, or by creation of subclasses, the fact that damages are not identical across all class members should not preclude class certification.”).
The court proceeded to hold, over defendants’ objection, that a “full refund” may well be the appropriate measure of damages here. Id. at *15-16 (“if there was ever a case where this theory was appropriate, this may be it”). The court also noted though that if the partial refund theory turned out to be preferable, that could be readily obtained by subtracting the consumer price per cup of an equivalent instant coffee from the actual price charged to consumers. Id. at *16.
The court concluded that common issues predominated, resummarizing its reasoning in that regard on reconsideration:
As explained in the previous Order, the question of whether the [coffee’s] packaging is likely to deceive a reasonable consumer is the threshold question common to each and every class member’s claim and can be proven with class-wide evidence. Damages can also be proven on a class-wide basis. Reliance/proximate causation are the only issues that require individualized proof, and that is true for only for some of the class members. And reliance/causation are simpler issues than the question of whether the [coffee’s] packaging is likely to deceive a reasonable consumer, and the information needed to prove them is more accessible to the individual litigants. Accordingly, the Court found that predominance is satisfied. The Court stands by that determination.
Ascertainability: Finally, the court followed the recent 7th Circuit ruling in Mullins v. Direct Digital, 795 F.3d 654 (2015), holding that ascertainability is not defeated by the fact that there is no evidence identifying class members or proposing a reliable method for doing so: “the Seventh Circuit opted to ‘stick with our settled law,’ which focuses on ‘the adequacy of the class definition itself,’ and not ‘whether, given an adequate class definition, it would be difficult to identify particular members of the class.’ Under that standard … Plaintiffs have satisfied the requirement of ascertainability.” Id. at *18.