Certification in Keurig coffee case in the Southern District of Illinois

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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:

Commonality:
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.

Typicality:
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.

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Further Ninth Circuit Clarification on Comcast and Restitution Under California Law

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Since Comcast v. Behrend, 133 S. Ct. 1426 (2013), was handed down, district courts in the Ninth Circuit have grappled with whether certification under Rule 23(b)(3) requires that damages be susceptible to classwide calculation, with some saying yes and others no. The Ninth Circuit handed down rulings in 2013 and 2014 saying that even post-Comcast it remains permissible under Rule 23(b)(3) for damages calculations to be individualized. See Leyva v. Medline Indus., 716 F.3d 510, 513-14 (9th Cir. 2013); Jimenez v. Allstate Ins., 765 F.3d 1161, 1167 (9th Cir. 2014). Both of these decisions rely on the pre-Comcast Ninth Circuit ruling in in Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir.2010).

Despite this series of clarifying rulings, courts in the Ninth Circuit have continued to hold that Comcast requires a classwide damages model. E.g., In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 1021 (C.D. Cal. 2015) (“Rule 23(b)(3) is satisfied only if plaintiffs can show that damages are capable of measurement on a classwide basis.”); McVicar v. Goodman Glob., No. 13-cv-1223, 2015 WL 4945730, at *14 (C.D. Cal. Aug. 20, 2015) (“At the class certification stage, Plaintiffs must present a theory that can measure, on a class-wide basis, damages attributable to Plaintiffs’ theory of liability.”).… Read more