Rydman v. Champion Petfoods USA, Inc.

1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 HOLLY RYDMAN, individually and on behalf of a class of similarly situated 8 individuals, 9 Plaintiff, C18-1578 TSZ 10 v. ORDER 11 CHAMPION PETFOODS USA, INC., et al., 12 Defendants. 13 14 THIS MATTER comes before the Court on Defendants’ motion for summary 15 judgment, docket no. 109, and Plaintiff’s motion for class certification, docket no. 101. 16 Having reviewed all papers filed in support of, and in opposition to, the motions, the 17 Court enters the following Order. 18 Background 19 Plaintiff Holly Rydman, a Washington resident, representing a putative class of 20 similarly situated individuals, claims that she was misled by statements and omissions 21 concerning dog food produced by defendants Champion Petfoods USA, Inc. and 22 Champion Petfoods LP (together, “Champion”). In her Second Amended Complaint 1 (“SAC”), docket no. 46, Plaintiff alleges that the dog food she purchased “contained 2 and/or had a material risk of containing non-conforming ingredients and contaminants, 3 such as: (1) Heavy Metals; (2) non-fresh ingredients; [and] (3) non-regional ingredients.” 4 SAC ¶ 12. As a result, Plaintiff contends the following statements found on Champion’s 5 packaging were misleading: (1) “Biologically Appropriate”; and (2) “Fresh Regional 6 Ingredients.” Id. ¶ 11.1 7 Plaintiff purchased Champion dog food between approximately December 2014 8 and February 2018 from a local Washington pet store. SAC ¶ 8; Resp. to Interrog. No. 3, 9 Ex. 4 to Coulson Decl. (docket no. 110-4); Rydman Dep. at 10:17–19 & 45:6–11, Ex. 5 10 to Coulson Decl. (docket no. 110-5) [hereinafter “Pl.’s Dep.”]. Plaintiff purchased the 11 following Champion dog food diets: ORIJEN Six Fish, ACANA Singles Lamb & Apple, 12 ACANA Singles Duck & Pear, ACANA Singles Pork & Squash, ACANA Regionals 13 Grasslands, ACANA Regionals Meadowland, ACANA Regionals Wild Atlantic, 14 15 1 Although the operative pleading also includes allegations regarding the phrases “Delivering Nutrients Naturally,” “Nourish as Nature Intended,” or “Ingredients We Love [From] People We Trust,” in her 16 response to Champion’s motion for summary judgment, Plaintiff does not offer any analysis to support a claim that these packaging labels were false or misleading. The Court concludes, as a matter of law, that 17 “Delivering Nutrients Naturally” is not false or misleading because Plaintiff’s dogs did indeed ingest the Dog Food, and nothing in the record suggests that the food was delivered unnaturally or that the food did not nourish the dogs. The statements “Nourish as Nature Intended” and “Ingredients We Love [From] 18 People We Trust” are non-actionable puffery. See Zarinebaf v. Champion Petfoods USA Inc., No. 18 C 6951, 2019 WL 3555383, at *7 (N.D. Ill. July 30, 2019) (“‘Nourish as nature intended’ is too vague to be 19 disproven—it seems impossible to draw conclusions about what, exactly, ‘nature intends’—so it is nonactionable puffery.”); Song v. Champion Petfoods USA, Inc., No. 18-CV-3205, 2020 WL 7624861, at 20 *10 (D. Minn. Dec. 22, 2020) (“The phrase ‘nourish as nature intended’ is non-actionable puffery—a phrase that is too vague to be proved or disproved. . . . Mother Nature cannot be deposed.”); Renfro v. Champion Petfood USA, Inc., 475 F. Supp. 3d 1242, 1247–48 (D. Col. 2020) (“‘Ingredients We Love 21 [From] People We Trust’— [is] puffery and thus not [an] actionable misrepresentation[ ].”). Champion’s motion for summary judgment is GRANTED on all of Plaintiff’s remaining claims as to these three 22 statements. 1 | ACANA Heritage Red Meat, ACANA Heritage Free-Run Poultry, and ACANA Heritage 2 || Freshwater Fish (collectively, the “Dog Food”). See Pl.’s Dep. at 47:3-17; Pl.’s Dep. at 3 | Ex. 7. Plaintiff makes no allegation that the consumption of Champion’s Dog Food by 4 || Plaintiff's dogs resulted in illness or harm. See SAC 4] 26-235; see also Poppenga 5 || Report at 39, Ex. 6 to Coulson Decl. (docket no. 110-6). 6 || A. Statements on Champion’s Packaging 7 1. “Biologically Appropriate” 8 The Dog Food packaging stated that the diet was “Biologically Appropriate” and 9 | displayed the following labels: 10 ain 5 i nS 11 ME a Te 12 || See, e.g., Exs. A & B to Ogbonna Decl. (docket nos. 111-1 & 111-2). Plaintiff understood 13 || the phrase “Biologically Appropriate” to mean that the Dog Food “should be consumed, 14 || [was] meant to [be] consume[d by dogs], [was] safe for [dogs] to consume,” and was 15 || “best for the dog to eat.” Pl.’s Dep. at 70:17—22, 89:12—-17. According to Champion, the 16 || Dog Food that Plaintiff purchased contained certain fresh ingredients, such as chicken, 17 || turkey, pork, eggs, fruits, and vegetables. Milam Decl. § 13, Ex. 3 to Coulson Decl. 18 || (docket no. 110-3). Pursuant to the requirements of the Association of American Feed 19 || Control Officials (“AAFCO”), the back of every Champion package listed in a separate 20 || panel all ingredients of the dog food contained therein, in order of weight. Ogbonna Decl. 21 || § 42 (docket no. 111). Plaintiff has testified that she read the ingredient panels before 22 23 1 | purchasing various packages of the Dog Food. PI.’s Dep. at 91:2—14, 104:1-3, & 110:8— 2 || 10. 3 2. “Fresh Regional Ingredients” 4 The front of every Dog Food bag at issue (with the exception of the three 2018 5 | ACANA Singles bags) included a snowflake-shaped icon containing the letters “FD,” 6 || which is accompanied by the phrase “freeze-dried.” Exs. A—-M, O, Q, & S—U to Ogbanna 7 || Decl. (docket nos. 111-1 — 111-13, 111-15, 111-17, & 111-19- 111-21). Many bags at 8 || issue also stated how many, and which, ingredients were delivered either “fresh or raw.” 9 || See id. at Exs. D, F, O, Q, & S—U. For example, the packages included labels, such as 10 □□□ ah 2/3 FRESH OR RAW AND 1/3 DRIED 11 12 rue tea Cate ba tay 1 ee tty he Ty 13 II 5 Ma Ae ee 4) oe ee 15 See, e.g., id. at Exs. D & T. Prior to purchasing the Dog Food, Plaintiff read the “fresh or 16 statements on the packaging. Pl.’s Dep. at 93:19-24, 96:14—20, 98:12-17, 105:7— 17 10, 108:10-16, & 116:17—23. Plaintiff testified that she reviewed ingredients prior to 18 purchasing because she “wanted to know exactly what was in the product.” /d. at 91:8— 19 11. 20 A panel on the back of each Dog Food bag disclosed the approximate amount, in 21 pounds, of each “animal” ingredient as well as its form, i.e., fresh, raw, dried, freeze- 22 23 1 | dried, dehydrated, or oil. Exs. A-U to Ogbanna Decl. (docket nos. 111-1 — 111-21). The 2 || parties refer to this section of the packaging as “Meat Math.” For example, the “Meat 3 | Math” on the 2016-17 ACANA Heritage Free-Run Poultry package stated that “THIS 413 LB PACKAGE OF ACANA IS MADE WITH OVER 7 % LB OF FREE-RUN 5 | POULTRY AND EGG INGREDIENTS[.] Half are FRESH or RAW and loaded with 6 || goodness and taste, and half are DRIED or OILS that provide a strong and natural source 7 || of animal proteins and fats.” Ex. A to Ogbanna Decl. (docket no. 111-1). As another 8 || example, the “Meat Math” panel on the 2017 ORIJEN Six Fish bag states, in part, “THIS 9 | 13 LB PACKAGE OF ORIJEN ... IS MADE WITH OVER 11 LB OF FRESH, RAW 10 | OR DRIED FISH INGREDIENTS | 2/3 FRESH OR RAW + 1/3 DRIED.” /d. at Ex. T 11 || (docket no. 111-20). Plaintiff read the “Meat Math” panels on the packages prior to 12 || purchasing the Dog Food. Pl.’s Dep. at 93:19-24 & 108:10-16. 13 On each bag that Plaintiff purchased, Champion also indicated that the Dog Food 14 || contained “regional” ingredients: 15 16 od PM 17 eee Gee er em Grn cl □□□ ee ec Com DR ate Ei a 18 19 Ui Fe ged bt hd cd Ce ee te) od ho) eo ogy Se 20 21 Ue ee □□ eR ec nc mee hy mee ert) 23 1 | Ex. Ito Ogbanna Decl. (docket no. 111-9); see also id. at Exs. A-U. The ingredients that 2 || Champion displayed, however, were not sourced entirely in a particular area of the 3 || United States, or even inside the United States. For example, Champion included the 4 || following labels on some of its packaging: 5 Grass-fed on Kentucky and New Zealand ranches, our fresh or raw lamb arrives in WholePrey™ ratios 6 || Ex. Q to Ogbanna Decl. (docket no. 111-17). Champion also told customers: 7 That's why we loaded ORIJEN SIX FISH with unmatched inclusions of wild-caught fish — whisked to our kitchens 8 from cold New England waters FRESH or RAW, in richly nourishing WholePrey™ ratios. ° 10 | Ex. S to Ogbanna Decl. (docket no. 111-19). 1] Before purchasing the ORIJEN Six Fish products, Plaintiff read the “New England 12 || Fish” statements, Pl.’s Dep. at 97:19-99:17, and during her deposition, she testified that 13 || New England did not fall within her understanding of the word “Regional,” id. at 101:2- 14 || 4. Rather, her understanding of “Regional” meant “in and around where the food is 15 || produced,” namely Kentucky. /d. at 90:20-23. As a specific example, in the context of 16 || ORIJEN Six Fish, Plaintiff interpreted “regional wild-caught fish” as “fish that is caught 17 | in a region that is located nearby where [the dog food] is produced.” Jd. at 90:20-23 & 18 || 99:25-100:3. Champion did not state on any of its packaging that 100% of each 19 | ingredient, that every ingredient, or that all ingredients, are regional, and it did not define 20 || the word “regional” with respect to a certain distance or location. See Exs. A—-U to 21 || Ogbanna Decl. (docket nos. 111-1 — 111-21). 22 23 1 B. Heavy Metals 2 According to Champion’s veterinary toxicology expert, Robert Poppenga, DVM, 3 Ph.D., nearly all foods, whether for humans or pets, contain some levels of heavy metals, 4 such as arsenic, cadmium, lead, and mercury. Poppenga Report at 8–20 & 40 (Opinion A) 5 (docket no. 110-6). According to Dr. Poppenga, heavy metals in Champion’s Dog Food 6 are below the maximum tolerable limit set by the National Research Council of the 7 National Academies of Sciences and the U.S. Food and Drug Administration. Id. at 12– 8 13, 25, 27, & 40 (Opinion F). Plaintiff does not challenge this opinion. In addition, 9 Plaintiff has testified that she was aware that “seafood . . . could contain the heavy metal 10 of mercury” and that “heavy metals are naturally found in foods.” Pl.’s Dep. at 68:18–25. 11 C. This Litigation 12 Plaintiff’s theory of the case is not that the alleged inclusion of heavy metals, non- 13 fresh ingredients, and/or non-regional ingredients harmed her dogs. Rather, Plaintiff 14 contends that she paid a premium price for the Dog Food because of Champion’s alleged 15 misstatements and omissions. In support of her “overpayment” claim, Plaintiff offers 16 expert testimony from Stefan Boedeker, an economist and statistician, and Bruce 17 Silverman, a former marketing executive.2 18 Boedeker conducted five consumer surveys: an “expectations” survey and four 19 conjoint surveys. See Order at 5 (docket no. 144) [hereinafter the “Expert Order”]. The 20 21 2 The Court previously excluded the opinions of another expert, Gary Pusillo, Ph.D., as well as certain 22 opinions offered by Silverman. See Order at 9–18 (docket no. 144). 1 || “expectations” survey attempted to measure what a “reasonable consumer” would think 2 || about the statements on the Dog Food. In her motion for class certification, plaintiff 3 || summarized Boedecker’s “expectations” survey results as follows: 4 EXPECTATIONS SURVEY OF REASONABLE CONSUMERS | Orijen Acana 5 Diets Diets From the “Biologically Appropriate” statements on the Dog Food, consumers would 6 expect that: The dog food shown does not contain undisclosed heavy metals. 82.8% 84.3% 7 The dog food shown only contains fresh ingredients, unless 89% 83.9% specifically stated otherwise on the packaging. 8 From the “Fresh” statements on the Dog Food, consumers would expect that: 9 The dog food shown contains only fresh ingredients unless 84.2% 84.7% specifically stated otherwise on the packaging. 10 The dog food shown does not contain any undisclosed expired 79.4% 88.4% ingredients. The dog food shown does not contain any undisclosed reground dog 78.5% 76.9% food (dog food previously manufactured by this manufacturer but 12 that did not meet its specifications for sale). B From the “Regional” statements on the Dog Food, consumers would expect that: The dog food shown does not contain undisclosed imported 73.7% 76.9% 14 ingredients. Each ingredient in the dog food shown is from the region where the 79.4% 77.3% 15 food is made unless specifically stated otherwise on the packaging. 16 Pl.’s Mot. at 5—6 (docket no. 101 at 11-12); see also Boedeker’s Report at 73-74 & 76— 17 77, Ex. 18 to Peterson Decl. (docket no. 101-20). In contrast, Boedeker’s conjoint 18 surveys attempted to quantify the economic losses allegedly suffered as a result of the 19 misstatements and omissions at issue. 20 * . ‘ oe 3° oe ‘ 39 + Silverman has opined that, given the “Fresh” and “Regional” packaging 21 statements, reasonable consumers would not expect non-fresh or non-regional ingredients 22 23 1 to be in the Dog Food. See Expert Order at 12. Silverman further opined that “[h]ad 2 Champion’s packaging disclosed that its products contained and/or had a risk of 3 containing heavy metals, a material amount of ingredients that were not fresh, and/or a 4 material amount of ingredients that were not local or regional, such disclosures would 5 have adversely affected consumers’ willingness to purchase the Champion Products.” Id. 6 (quoting Silverman Report at ¶ 33(k), Ex. 1 to Coulson Decl. (docket no. 108-1)). 7 As putative class representative, Plaintiff seeks to certify ten different classes, 8 each correlated with one of the different kinds of dog food that she bought. Pl.’s Mot. at 9 11–12 (docket no. 101). Champion opposes certification of any class and also moves for 10 summary judgment. The Court first addresses Champion’s motion for summary 11 judgment. The Court then turns to Plaintiff’s motion for class certification. 12 Discussion 13 I. Summary Judgment 14 The Court shall grant summary judgment if no genuine issue of material fact exists 15 and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The 16 moving party bears the initial burden of demonstrating the absence of a genuine issue of 17 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it 18 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 19 Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the adverse 20 party must present affirmative evidence, which “is to be believed” and from which all 21 “justifiable inferences” are to be favorably drawn. Id. at 255, 257. When the record, 22 however, taken as a whole, could not lead a rational trier of fact to find for the non- 1 moving party, summary judgment is warranted. See Beard v. Banks, 548 U.S. 521, 529 2 (2006); see also Celotex, 477 U.S. at 322. 3 Plaintiff seeks to recover for violation of Washington’s Consumer Protection Act 4 (“CPA”) under both affirmative misrepresentation and omission theories (Count I), 5 negligent misrepresentation (Count II), fraudulent misrepresentation (Count III), breach 6 of the express warranty (Count V), and unjust enrichment (Count VII).3 Champion moves 7 for summary judgment on all counts. In responding to Champion’s motion, Plaintiff 8 focuses on the CPA and unjust enrichment claims. The Court will therefore address those 9 two claims before turning to the misrepresentation and breach of warranty claims. 10 A. CPA Claims 11 To establish a violation of the CPA, a private plaintiff must prove that (i) the 12 defendant engaged in an unfair or deceptive act or practice; (ii) such act or practice 13 occurred in the conduct of trade or commerce; (iii) such act or practice affected the public 14 interest; (iv) the plaintiff suffered an injury to his or her business or property; and (v) a 15 causal relationship exists between the defendant’s act or practice and the plaintiff’s 16 injury. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 17 785–93, 719 P.2d 531 (1986). Whether conduct constitutes an unfair or deceptive trade 18 practice within the meaning of the CPA constitutes a question of law. Robinson v. Avis 19 Rent A Car Sys., Inc., 106 Wn. App. 104, 114, 22 P.3d 818 (2001). A CPA plaintiff “need 20 21 3 Count IV for fraudulent concealment and Count VI for breach of implied warranty were previously 22 dismissed. See Order (docket no. 62). 1 not show that the act in question was intended to deceive,” but only that it “had the 2 capacity to deceive a substantial portion of the public.” Hangman Ridge, 105 Wn.2d at 3 785 (emphasis in original). 4 A CPA claim may be premised on either an affirmative misrepresentation or a 5 failure to disclose material information; Plaintiff presents both types of CPA claims. The 6 Court first addresses Plaintiff’s claims relating to the affirmative statements “Biologically 7 Appropriate,” “Fresh,” and “Regional.” The Court then turns to Plaintiff’s claims 8 concerning Champion’s allegedly materially-misleading omissions from the Dog Food 9 packaging. 10 1. “Biologically Appropriate” 11 Champion contends that the presence of heavy metals in the Dog Food does not 12 render the phrase “Biologically Appropriate” misleading. Champion does not advertise 13 that its food contains no heavy metals or is free of heavy metals, and Champion does not 14 add heavy metals to the Dog Food. The parties agree that, to survive summary judgment, 15 Plaintiff must present admissible evidence that the phrase “Biologically Appropriate” 16 would mislead or have the capacity to deceive a reasonable consumer. See Defs.’ Mot. at 17 15 (docket no. 109); Pl.’s Resp. at 19, 23 (docket no. 128). 18 In an effort to meet her burden, Plaintiff points to Boedecker’s surveys, which 19 show that 82.8–84.3% of consumers would not expect Champion’s Dog Food to contain 20 heavy metals. See Boedeker Report at Figs. 14 & 20, Ex. 1 to Coulson Decl. (docket 21 22 1 no. 106-1). Regardless of whether Boedecker’s results are accurate, they do not establish 2 that the Dog Food is not “Biologically Appropriate.”4 3 A plain reading of the phrase “Biologically Appropriate” conveys that the Dog 4 Food is fit for dogs to consume. Renfro v. Champion Petfoods USA, Inc., 25 F.4th 1293, 5 1306 (10th Cir. 2022) (“The only conclusion that a reasonable consumer could draw from 6 a package that claimed the dog food was ‘Biologically Appropriate’ is that it was fit for 7 dogs to consume.”). This assessment is consistent with Plaintiff’s understanding of the 8 phrase. Pl.’s Dep. at 70:19–22 (“It means what an animal, in this case because it’s dog 9 food, what should be consumed, what they were meant to consume, what is safe for them 10 to consume.”) & 89:16–17 (“‘Biologically appropriate’ would be . . . what is best for the 11 dog to eat.”). Plaintiff testified that she was “aware that heavy metals are naturally found 12 in foods,” id. at 68:18–25, and she offers no basis for concluding that the presence of 13 heavy metals rendered the Dog Food unfit for a dog’s consumption. See Poppenga Report 14 at 12–13, 25, 27, & 40 (Opinion F) (docket no. 110-6). Indeed, even if heavy metals 15 16 17 4 Plaintiff’s reliance on State v. LA Investors, LLC, 2 Wn. App. 2d 524, 410 P.3d 1183 (2018), is 18 misplaced. In that case, Washington homeowners received letters in the mail from a California-based solicitation company that gave the “net impression” that they were bills mailed by the government. Id. at 19 540–41. The envelope and its “return address” suggested that it was sent by the “Local Records Office” and “referenced the United States Code,” and the letter’s “formatting and language” were “governmental” 20 and filled with “largely irrelevant, but authoritative,” verbiage. Id. at 540–41 & 543. After analyzing the entirety of the envelope and letter, the Washington Court of Appeals held “as a matter of law the mailer in this case had the capacity to deceive. Based on the net impression conveyed by the mailer, an ordinary 21 consumer could reasonably have been misled to believe it was a government document.” Id. at 541. Here, by contrast, Plaintiff asks this Court to depart from a plain reading of the text at issue and adopt a tortured 22 interpretation of the phrase “Biologically Appropriate.” The Court declines Plaintiff’s invitation. 1 afford no nourishment, their inclusion in the Dog Food does not negate the “Biologically 2 Appropriate” tagline because 3 if the only biologically appropriate foods are those that contain no measurable quantity of any substance which fails to provide nourishment, the 4 Court doubts whether any food, either for humans or for pets, could ever be considered biologically appropriate. The Court finds this to be an 5 unreasonable conclusion, and hence a conclusion that no reasonable jury could reach. 6 Colangelo v. Champion Petfoods USA Inc., No. 18-CV-1228, 2022 WL 991518, at *20 7 (N.D.N.Y. Mar. 31, 2022). The Court concludes that the phrase “Biologically 8 Appropriate” does not have the capacity to deceive a substantial portion of the 9 population. Defendants’ motion for summary judgment is GRANTED as to Plaintiff’s 10 CPA claim premised on the phrase “Biologically Appropriate.” 11 2. “Fresh” 12 Plaintiff contends that, based on Champion’s “Fresh” packaging statements and 13 labeling, a reasonable consumer would have been deceived as to the contents of the Dog 14 Food. Champion argues that the packages do contain fresh ingredients, that its packages 15 disclose the inclusion of “non-fresh” ingredients, and that, as a matter of law, the “Fresh” 16 statements are not deceptive or misleading. Indeed, Champion’s packaging does not say 17 that the Dog Food is “100% Fresh,” that “all” ingredients are fresh, or that “only” fresh 18 ingredients are used. Nevertheless, Plaintiff presents enough evidence to create a factual 19 dispute concerning whether Champion’s “Fresh” statements could mislead a reasonable 20 consumer. 21 22 1 Boedeker’s consumer studies suggest that a reasonable consumer might consider 2 the “Fresh” statements misleading; 84.2% to 84.7% of Boedeker’s survey respondents 3 indicated that they would understand the “Fresh” statements to mean that the product 4 contains only fresh ingredients unless the package specifically stated otherwise. Boedeker 5 Report at Figs. 12 & 18 (docket no. 106–1); Expert Order at 4–9. Silverman opined that, 6 given Champion’s “Fresh” packaging statements, a reasonable consumer would not 7 expect non-fresh ingredients. Silverman Report at ¶¶ 33(h), 33(i), & 33(k) (docket 8 no. 108-1); Expert Order at 12–16. Another relevant factor precluding summary 9 judgment is the number of times “fresh” appears on Champion’s packaging, see Pl.’s 10 Resp. at 26 (docket no. 128) (“as many as 28 times”), when compared to the much less 11 frequent use of phrases indicating that the Dog Food contains non-fresh or freeze-dried 12 ingredients. Champion’s motion for summary judgment as to Plaintiff’s CPA claim 13 relating to the “Fresh” statements is DENIED. 14 3. “Regional” 15 Plaintiff construes Champion’s “Regional” message as indicating that the 16 ingredients are sourced from the area “where the food is produced,” Pl.’s Dep. at 90:20- 17 23, and she alleges that a reasonable consumer would find Champion’s “Regional” 18 representations false and misleading because Champion uses ingredients in the Dog Food 19 that are obtained from locations far away from the production facility. Plaintiff presents 20 evidence, namely Boedeker’s consumer survey results and Silverman’s opinions, that 21 raises a genuine dispute of material fact as to whether Champion’s “Regional” statements 22 could mislead a reasonable consumer. Boedeker’s studies showed that individuals who 1 viewed Champion’s “Regional” labels would form the following expectations: (i) the dog 2 food “does not contain imported ingredients,” and (ii) “[e]ach ingredient in the dog food 3 . . . is from the region.” Boedeker Report at Figs. 13 & 19 (docket no. 106-1). Based on 4 his experience, Silverman has opined that “[c]onsumers would see the presence of . . . 5 non-regional ingredients as inconsistent with . . . Champion[’s] statements.” Silverman 6 Report at ¶ 33(i) (docket no. 108-1). 7 In seeking summary judgment, Champion argues that “regional sourcing is a 8 ‘focus’” of its packaging, but it has never advertised the Dog Food as containing “only” 9 regional ingredients or represented that “all” or “100%” of the ingredients are regional. 10 Defs.’ Mot. at 19–20 (docket no. 109) (emphasis in original). Whether reasonable 11 consumers would understand the nuanced difference between “Regional” and “only,” 12 “all,” or “100%” regional, and therefore not be misled or deceived, is a factual question 13 that the Court cannot decide in dispositive motion practice. Champion also argues that 14 any false or misleading statement could not be material because Plaintiff bought bags of 15 dog food that clearly displayed ingredients not comporting with her definition of 16 “Regional.” See Pl.’s Dep. at 97:19–100:4. Champion’s contention, however, runs 17 contrary to Washington law, which indicates that 18 materiality is not a necessary component of the first element [of a CPA claim that is based on an affirmative misrepresentation]. While we have mentioned 19 materiality in passing, generally noting that a deceptive framing or omitted fact was sufficiently material to establish the element, we have never found 20 materiality was necessary as a matter of law. We specifically reject that proposition now. 21 22 1 Young v. Toyota Motor Sales, U.S.A., 196 Wn.2d 310, 318, 472 P.3d 990 (2020) 2 (citations omitted). Champion’s motion for summary judgment is DENIED as to 3 Plaintiff’s CPA claim premised on any affirmative misrepresentations about “Regional” 4 ingredients.5 5 4. Omissions 6 The decision in Young, relating to affirmative misrepresentations, does not appear 7 to have disturbed jurisprudence requiring that materiality be proven when a CPA plaintiff 8 alleges harm based on an omission or failure to disclose. See 196 Wn.2d at 323 9 (McCloud, J., concurring); see also Deegan v. Windermere Real Est./Ctr.-Isle, Inc., 197 10 Wn. App. 875, 886–92, 391 P.3d 582 (2017). An omission theory also differs from an 11 affirmative misrepresentation claim with respect to causation. Deegan, 197 Wn. App. at 12 886. In material omission cases, “Washington courts apply a rebuttable presumption that 13 the plaintiff relied on the defendant’s representations concerning the product, so as to 14 avoid putting . . . plaintiff[s] in the ‘impossible position’ of proving ‘they believed the 15 opposite of the omitted fact when they made their purchase.’” Nazar v. Harbor Freight 16 Tools USA Inc., No. 2:18-cv-348, 2020 WL 4741091, at *3 (E.D. Wash. Aug. 14, 2020) 17 (quoting Deegan, 197 Wn. App. at 886)); see also Blough v. Shea Homes, Inc., No. 12- 18 cv-1493, 2014 WL 3694231, at *13 (W.D. Wash. July 23, 2014) (citing Morris v. Int’l 19 Yogurt Co., 107 Wn.2d 314, 328, 729 P.2d 33 (1986)). This presumption can be rebutted 20 21 5 The Court reaches a different result with respect to Plaintiff’s omission theory relating to Champion’s 22 “Regional” statements. 1 by a showing that “the plaintiff’s decision would have been unaffected even if the 2 omitted fact had been disclosed.” Blough, 2014 WL 3694231, at *14. 3 Plaintiff alleges that Champion should be held liable under the CPA for three 4 omissions: (i) failure to disclose the inclusion of “non-fresh” ingredients; (ii) failure to 5 adequately divulge the use of “non-regional” ingredients; and (iii) failure to warn about 6 the risk that heavy metals might be present. As to the “non-fresh” omissions, Champion 7 denies that it failed to make the requisite disclosure because “[t]he front of the bags states 8 it includes ‘freeze-dried’ ingredients, and ‘fresh or raw’ ingredients,” and “[t]he back of 9 the bags has large panels indicating the amount, in pounds, of fresh, raw, dried, 10 dehydrated, or oils that were used to make the food.” Defs.’ Mot. at 30 (docket no. 109). 11 Champion agrees, however, that it did not disclose the use of regrinds6 or expired 12 ingredients in the Dog Food. 13 Champion also concedes that regrinds and expired ingredients are a “subspecies of 14 ‘non-fresh’” materials. Id.; see also Defs.’ Reply at 9 (docket no. 135) (“these are simply 15 examples of non-fresh ingredients”). Champion argues that its disclosure of other non- 16 fresh ingredients, i.e., components that are freeze-dried, dried, dehydrated, or oils, told 17 consumers what they needed to know, namely that “non-fresh ingredients are included.” 18 Defs.’ Reply at 14. Champion cites no evidence to support the proposition that Dog Food 19 20 6 “Regrinds” are ingredients that are recooked and included in the Dog Food after having already been cooked and not previously used because they failed nutritional, water activity, product temperature, or 21 microbiological testing or they were too old to sell. See SAC ¶¶ 89–90; see also Colangelo, 2022 WL 991518, at *4 (defining “regrinds” as “previously manufactured dog or cat food, rejected for quality 22 assurance issues, ground up, and reincorporated into a new batch of food”). 1 purchasers would have understood, from the packaging, that the product incorporated 2 regrinds and expired ingredients. See id. (citing Statement of Undisputed Material Facts 3 at ¶¶ 13–19, Defs.’ Mot. (docket no. 109) (merely describing the packaging and 4 indicating that Plaintiff read the various labels). In contrast, Plaintiff’s expert has opined 5 that reasonable consumers would consider Champion’s packaging as being inconsistent 6 with the presence of regrinds and expired ingredients. Silverman Report ¶¶ 177–82 7 (docket no. 108-1). Plaintiff has raised questions of fact as to whether Champion’s 8 reference to frozen and dried ingredients, as well as oils, covers all of the “non-fresh” 9 ingredients in the Dog Food, and whether Champion’s failure to disclose its use of 10 expired ingredients and regrinds had the capacity to materially mislead consumers. 11 Defendants’ motion for summary judgment as to Plaintiff’s CPA claim premised on the 12 “non-fresh” omissions is DENIED. 13 In contrast to the “non-fresh” omissions, with respect to the “regional” omissions, 14 Plaintiff fails to present sufficient evidence to create a triable issue as to the materiality of 15 any such omissions. First, as indicated in its motion, Champion actually disclosed that it 16 sourced ingredients from non-regional suppliers. See Defs.’ Mot. at 30 (docket no. 109). 17 Second, Plaintiff’s own conduct demonstrated that any “regional” omissions were not 18 material. For example, although the ORIJEN Six Fish packages indicated that the fish 19 was caught in New England, which did not fall within Plaintiff’s understanding of the 20 word “Regional,” she purchased the bags anyway. See Pl.’s Dep. at 97:19–100:4. 21 Plaintiff also purchased the ACANA Lamb & Apple bag, which states that the lamb is 22 “[g]rass fed on Kentucky and New Zealand ranches.” Id. at 116:17–117:2. Considering 1 the facts in the light most favorable to Plaintiff, the Court concludes, as a matter of law, 2 that any omissions concerning the region in which ingredients were sourced were not 3 material. As a result, no presumption of reliance arises. Even if Plaintiff were entitled to 4 such a presumption, Champion has rebutted it by showing that Plaintiff’s purchasing 5 decision “would have been unaffected even if the omitted fact had been disclosed.” See 6 Blough, 2014 WL 3694231, at *14. Defendants’ motion for summary judgment is 7 GRANTED as to Plaintiff’s CPA claim relating to the “regional” omissions.7 8 Similarly, regarding the “heavy metals” omissions, the lack of materiality and 9 reliance defeat Plaintiff’s CPA claim. Plaintiff was aware that seafood could contain 10 mercury and that heavy metals are “naturally found in foods.” Pl.’s Dep. at 68:18–25. 11 Nevertheless, she bought Champion’s Dog Food, and she cannot now demonstrate that 12 the risk of the product containing heavy metals was material to her decision or benefit 13 from any presumption of reliance, which is rebutted by her own testimony.8 See 14 Capelouto v. Valley Forge Ins. Co., 98 Wn. App. 7, 20, 990 P.2d 414 (1999) (affirming 15 summary judgment where “there is no indication that [the plaintiff] was harmed or misled 16 17 7 The different outcomes concerning the affirmative “Regional” statements, as to which Plaintiff’s CPA claim survives Champion’s summary judgment motion, and the “regional” omissions, which are no 18 longer part of this case, result from the different standards applicable to affirmative misrepresentations and omissions. 19 8 With respect to “heavy metals” omissions, Plaintiff’s reliance on Boedeker’s surveys is misplaced. Boedeker’s “expectations” survey was not designed to provide cause-and-effect (or reliance) data, see 20 Zarinebaf, 2022 WL 910638, at *3, and his conjoint studies did not use any control groups or evaluate whether the price respondents were willing to pay was or would be affected by pre-existing knowledge or 21 supplied information about the presence of heavy metals in food sources. Cf. Jones v. United States, 933 F. Supp. 894, 899 (N.D. Cal. 1996), aff’d, 127 F.3d 1154 (9th Cir. 1997) (concluding that, absent a 22 control group, a study could not demonstrate causality). 1 by [the defendant’s] omission and, in fact, the record indicates that he was familiar with 2 the [omitted] rule at the time [the plaintiff] filed his claim”). Plaintiff does not contend 3 that the levels of heavy metals in the Dog Food present a risk of harm to any pet that 4 ingests the products, and Champion’s expert has opined that the amounts of arsenic, 5 cadmium, lead, and mercury are “well below concentrations that have been determined to 6 be associated with adverse effects.” Poppenga Report at 40 (Opinion F) (docket no. 110- 7 6). Champion’s motion for summary judgment is GRANTED as to Plaintiff’s CPA claim 8 concerning the “heavy metals” omissions. 9 B. Unjust Enrichment 10 “Unjust enrichment is the method of recovery for the value of the benefit retained 11 absent any contractual relationship because notions of fairness and justice require it.” 12 Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008).9 Both parties (and the 13 Court) recognize that Plaintiff’s unjust enrichment claim is intertwined with her CPA 14 claim. Plaintiff’s CPA claim survives in part, which in turn creates a basis for her unjust 15 enrichment claim. Champion’s motion for summary judgment is GRANTED in part and 16 DENIED in part as to Plaintiff’s unjust enrichment claim, which is hereby narrowed to be 17 co-extensive with her CPA claim. 18 19 20 9 To prevail on a claim of unjust enrichment, a plaintiff must prove: (i) a benefit was conferred upon the defendant by the plaintiff; (ii) the defendant knew of the benefit; and (iii) the defendant accepted the 21 benefit under “such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value.” Bailie Commc’ns, Ltd. v. Trend Bus. Sys., Inc., 61 Wn. App. 151, 159–60, 810 22 P.2d 12 (1991) (quoting BLACK’S LAW DICTIONARY 1535–36 (6th ed. 1990)). 1 C. Plaintiff’s Other Claims 2 Plaintiff’s claims for negligent10 and fraudulent misrepresentation11 fail because 3 Plaintiff cannot make the requisite showing that she reasonably relied on Champion’s 4 representations or omissions. Plaintiff’s claim for breach of express warranty12 lacks 5 merit because Champion’s packaging made no promise or guarantee that the Dog Food 6 was “100%” fresh, regional, or free of heavy metals; the presence of non-fresh, non- 7 regional, and/or heavy-metal ingredients cannot constitute a breach when an “all or 8 nothing” warranty was never a basis for the bargain. Defendants’ motion for summary 9 judgment is GRANTED as to Plaintiff’s claims for negligent misrepresentation, 10 fraudulent misrepresentation, and breach of express warranty, and those claims are 11 DISMISSED with prejudice. 12 13 14 10 Negligent misrepresentation has six elements: “(1) the defendant supplied information for the guidance of others in their business transactions that was false, (2) defendant knew or should have known that the 15 information was supplied to guide the plaintiff in his business transactions, (3) the defendant was negligent in obtaining or communicating the false information, (4) the plaintiff relied on the false information, (5) the plaintiff’s reliance was reasonable, and (6) the false information proximately caused 16 the plaintiff damages.” Alexander v. Sanford, 181 Wn. App. 135, 177, 325 P.3d 341 (2014). 17 11 Fraudulent (or intentional) misrepresentation has nine elements, which must be proven by clear and convincing evidence: “(1) a representation of an existing fact; (2) the fact is material; (3) the fact is false; (4) the defendant knew the fact was false or was ignorant of its truth; (5) the defendant intended the 18 plaintiff to act on the fact; (6) the plaintiff did not know the fact was false; (7) the plaintiff relied on the truth of the fact; (8) the plaintiff had a right to rely on it; and (9) the plaintiff had damages.” Baddeley v. 19 Seek, 138 Wn. App. 333, 338–39, 156 P.3d 959 (2007). 20 12 The operative pleading quotes the Uniform Commercial Code (“UCC”) provision defining express warranties, see SAC ¶ 293 (citing RCW 62A.2-313), but Plaintiff does not appear to bring her claim under the UCC. Rather, Plaintiff seems to assert her warranty claim under Washington’s Product Liability 21 Act, which requires her to show that “(1) the warranty was made part of the basis of the bargain; (2) the warranty relates to a material fact concerning the product; and (3) the warranty turns out to be untrue.” 22 See Bryant v. Wyeth, 879 F. Supp. 2d 1214, 1226 (W.D. Wash. 2012) (citing RCW 7.72.030(2)(b)). 1 II. Class Certification 2 “Class actions are ‘an exception to the usual rule that litigation is conducted by 3 and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 4 U.S. 27, 33 (2013). A party seeking class certification must meet the requirements set 5 forth in Federal Rule of Civil Procedure 23. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 6 338, 345 (2011). Under Rule 23(a), the party seeking certification must show that: “(1) 7 the class is so numerous that joinder of all members is impracticable; (2) there are 8 questions of law or fact common to the class; (3) the claims or defenses of the 9 representative parties are typical of the claims or defenses of the class; and (4) the 10 representative parties will fairly and adequately protect the interests of the class.” Fed. R. 11 Civ. P. 23(a). The party seeking certification must also “satisfy at least one of the three 12 requirements listed in Rule 23(b).” Dukes, 564 U.S. at 345. Plaintiff relies predominantly 13 on Rule 23(b)(3),13 which requires a party seeking certification to show that “questions of 14 law or fact common to class members predominate over any questions affecting only 15 individual members, and that a class action is superior to other available methods for 16 fairly and effectively adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 17 18 19 13 Because Plaintiff primarily seeks monetary relief, her request for an injunctive relief class is inappropriate. See Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001) (holding that 20 “Rule 23(b)(2) certification is inappropriate where the primary relief sought is monetary”); Ballew v. Matrixx Initiatives, Inc., No. CV-07-267, 2008 WL 4831481, at *6 (E.D. Wash. Oct. 31, 2008) (denying certification under Rule 23(b)(2) because “the primary relief sought is damages, not declaratory or 21 injunctive relief”). Plaintiff devotes almost her entire 30-page opening brief to her proposed 23(b)(3) classes, tacking on a less-than-one-page discussion of Rule 23(b)(2) as a last-ditch effort. Plaintiff’s 22 request to certify a Rule 23(b)(2) class is disingenuous, and it is DENIED. 1 Although the Rule 23 factors “have been construed permissively,” courts must 2 nonetheless “engage in a ‘rigorous analysis’ of each . . . factor when determining whether 3 plaintiffs seeking class certification have met the requirements of Rule 23.” Ellis v. 4 Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011). A plaintiff must prove the 5 facts necessary to satisfy the Rule 23 criteria by a preponderance of the evidence. Olean 6 Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 7 2022), cert. denied sub nom. StarKist Co. v. Olean Wholesale Grocery Coop., Inc., 143 8 S. Ct. 424 (2022). “In determining whether the ‘common question’ prerequisite is met, a 9 district court is limited to resolving whether the evidence establishes that a common 10 question is capable of class-wide resolution, not whether the evidence in fact establishes 11 that plaintiffs would win at trial. While such an analysis may ‘entail some overlap with 12 the merits of the plaintiff’s underlying claim,’ the ‘[m]erits questions may be considered 13 [only] to the extent [ ] that they are relevant to determining whether the Rule 23 14 prerequisites for class certification are satisfied.’” Id. at 666–67 (emphasis and alterations 15 in original, citations omitted). 16 With respect to the ten classes that Plaintiff seeks to certify, she relies solely on 17 her misleading omissions theory; she does not ask to certify the classes with respect to 18 any affirmative misrepresentation claim. See Pl.’s Mot. at 2 (docket no. 101). Because the 19 Court has dismissed the CPA and unjust enrichment claims relating to any “non-regional” 20 or “heavy metals” omissions, the Court addresses only whether Plaintiff has made the 21 necessary showing to certify one or more classes with respect to the “non-fresh” 22 omissions. In opposing Plaintiff’s motion for class certification, Champion has focused 1 on Rule 23(b)(3)’s requirement that common issues predominate. The Court will start 2 there as well. See Zinser, 253 F.3d at 1186, 1186 n.3, & 1189–97 (affirming a district 3 court’s denial of class certification for failure to meet the requirements of Rule 23(b) 4 without first analyzing whether the Rule 23(a) factors were satisfied). 5 Commonality, within the meaning of Rule 23, requires Plaintiff to demonstrate 6 that the claims of all class members depend on “a common contention” of such nature as 7 “is capable of classwide resolution.” Dukes, 564 U.S. at 350. The test is whether the 8 determination of the truth or falsity of such common contention “will resolve an issue 9 that is central to the validity of each one of the claims in one stroke.” Id. “What matters 10 . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of 11 a class-wide proceeding to generate common answers apt to drive the resolution of the 12 litigation.” Id. (emphasis in original, quoting Richard A. Nagareda, Class Certification in 13 the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)). The predominance 14 inquiry asks “whether the common, aggregation-enabling, issues in the case are more 15 prevalent or important that the non-common, aggregation-defeating, individual issues.” 16 Olean, 31 F.4th at 664 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 17 (2016)). 18 In opposing class certification, Champion argues that the Ninth Circuit’s decision 19 in Reitman v. Champion Petfoods USA, Inc., 830 F. App’x 880 (9th Cir. 2020), controls 20 the outcome of this case. In Reitman, the plaintiffs attempted to certify one class 21 comprised of purchasers of 23 different formulas of Champion’s dog food. See Reitman 22 v. Champion Petfoods USA, Inc., No. CV 18-1736, 2019 WL 7169792, at *1 n.1 (C.D. 1 Cal. Oct. 30, 2019), aff’d, 830 F. App’x 880 (9th Cir. 2020). The district court concluded 2 that common questions of law or fact did not predominate because the messages differed 3 from bag to bag, and the dog food ingredients varied from formula to formula. Id. at *7– 4 10. On appeal, the plaintiffs argued that the district court “erred by focusing its 5 predominance analysis only on affirmative misrepresentations and failing to consider 6 allegedly uniform and material omissions from the dog food bag packaging.” 830 F. 7 App’x at 881. The Ninth Circuit disagreed, holding that 8 [t]he district court’s conclusion that individualized inquiries requiring bag- to-bag determinations predominate over common questions applies whether 9 the misrepresentations are based on affirmative statements on, or omissions from, the packaging. And Reitman does not explain how creating subclasses 10 based on diets would cure the need for individualized bag-to-bag inquiries. Accordingly, the district court correctly held that the predominance 11 requirement had not been satisfied and that creating subclasses would be futile. 12 Id. 13 Plaintiff in this case attempts to correct the pleading errors made by the plaintiffs 14 in Reitman. Instead of moving to certify one class, Plaintiff proposes ten different 15 classes14 and pursues, on behalf of these classes, only an omissions theory. Plaintiff’s 16 17 18 14 The ten proposed classes consist of: 19 • Acana Singles Lamb & Apple Class: All persons residing in the State of Washington who purchased Acana Singles Lamb & Apple in the State of Washington from July 1, 2016, to the present; 20 • Acana Singles Duck & Pear Class: All persons residing in the State of Washington who purchased Acana Singles Duck & Pear in the State of Washington from July 1, 2016, to the present; 21 • Acana Singles Pork & Squash Class: All persons residing in the State of Washington who purchased Acana Pork & Squash in the State of Washington from July 1, 2016, to the present; 22 1 efforts do not lead to a different result. With respect to the sole remaining omissions 2 claim, Plaintiff’s contention is that she has raised common questions with common 3 answers because regrinds and expired ingredients were constantly present in the Dog 4 Food and none of Champion’s packaging disclosed this fact. Plaintiff’s argument, 5 however, ignores the variation from bag to bag, and from formula to formula, with 6 respect to the presence of regrinds and expired ingredients. According to Champion’s 7 Director of Ingredient Management and Supplier Partnerships, 8 [t]he amount of regrinds, if any at all, that are added into the dry ingredients portion of a production run (or lot) varies. The amount to be added to any 9 particular run is determined by policies set by Champion’s Research & Innovation Team, but it is intended to be limited [to] up to a maximum of 5% 10 of the bulk dry ingredients in concentrate. In exceptional circumstances, the inclusion of regrinds may exceed 5% of the bulk dry ingredients of a diet. . . . 11 [O]nly certain diets can accept regrinds from certain other diets . . . and only in small percentages so that the guaranteed analysis and the ingredient panel 12 is not materially altered. 13 14 • Acana Heritage Meats Class: All persons residing in the State of Washington who purchased Acana Heritage Meats in the State of Washington from July 1, 2016, to the present; 15 • Acana Regionals Grasslands Class: All persons residing in the State of Washington who purchased Acana Regionals Grasslands in the State of Washington from July 1, 2016, to the present; 16 • Acana Regionals Wild Atlantic Class: All persons residing in the State of Washington who purchased 17 Acana Regionals Wild Atlantic in the State of Washington from July 1, 2016, to the present; • Acana Heritage Free-Run Poultry Class: All persons residing in the State of Washington who 18 purchased Acana Heritage Free-Run Poultry in the State of Washington from July 1, 2016, to the present; 19 • Acana Regionals Meadowland Class: All persons residing in the State of Washington who purchased Acana Regionals Meadowland in the State of Washington from July 1, 2016, to the present; 20 • Acana Heritage Freshwater Fish Class: All persons residing in the State of Washington who purchased Acana Heritage Freshwater Fish in the State of Washington from July 1, 2016, to the 21 present; and • Orijen Six Fish Class: All persons residing in the State of Washington who purchased Orijen Six Fish 22 in the State of Washington from July 1, 2016, to the present. 1 Milam Decl. ¶¶ 39–40, Ex. 4 to Coulson Decl. (docket no. 133-4) (emphasis added); see 2 also Johnston Decl. at ¶ 21, Ex. 5 to Coulson Decl. (docket no. 133-5) (“The amount of 3 regrinds, if any at all, vary for any given production run. Most production runs do not 4 have any regrinds in them.). Director Milam has characterized Champion’s use of expired 5 ingredients as infrequent, explaining that items that are beyond their “best-used-by” date 6 are tested and discarded if unsafe for inclusion, and “[i]n the few times when expired 7 ingredients are used, it is almost always dried ingredients, not fresh or raw ingredients.” 8 Milam Decl. ¶¶ 43–46 (docket no. 133-4). In other words, a particular package of Dog 9 Food might or might not include regrinds and/or expired ingredients. Thus, whether a 10 member of any of the ten putative classes purchased a bag containing food that was 11 inconsistent with the packaging and was or could have been deceived by the labels is not 12 a question with a “common answer,” but rather an issue that would require individualized 13 assessment about which production lot or lots of the specific diet each person bought. 14 The complexity of the issue becomes more apparent when the typical shopping 15 habits of Dog Food purchasers are considered. As reflected by the purchase histories of 16 various individuals who have sued Champion, consumers buy a variety of Champion 17 diets, mixing and matching among the different formulas. See Coulson Decl. ¶¶ 2–11, 18 13–17, 19, 21–22, 24–33, Ex. 10 to Coulson Decl. (docket no. 133-10). Thus, some 19 individuals might be in only one of the ten proposed classes, while others would be in 20 every class, and again, whether any of them bought food containing regrinds and/or 21 expired ingredients would require individualized analysis. In addition, the possible 22 permutations are so numerous as to make the exercise nearly impossible; each putative 1 class member might have bought one or more formulas with (i) regrinds and expired 2 ingredients, (ii) only regrinds, (iii) only expired ingredients, and/or (iv) neither regrinds 3 nor expired ingredients, and the frequency and quantity within each of these four 4 categories might range from only once (or one bag) to constantly or every time (or 5 innumerable bags) during the proposed class years. Parsing through the countless 6 combinations of dog food formulas, production runs, and consumer purchases is not the 7 work that Rule 23 meant for the Court to do. 8 In support of her position, Plaintiff relies heavily on Zeiger v. WellPet LLC, 526 9 F. Supp. 3d 652 (N.D. Cal. 2021). Zeiger is distinguishable. In Zeiger, the plaintiff 10 alleged that the amounts of arsenic, lead, and bisphenol A (“BPA”) in WellPet’s dog 11 foods presented a health risk to dogs. Id. at 663–64. The Zeiger Court concluded that the 12 plaintiff had demonstrated a genuine dispute of material fact about the dangerousness of 13 the levels of arsenic and lead, but granted summary judgment in WellPet’s favor with 14 respect to the BPA claim. Id. at 680–82. The Zeiger Court certified a Rule 23(b)(2) class 15 for injunctive relief, and denied certification as to a Rule 23(b)(3) class, but without 16 prejudice to the plaintiff attempting to present a better damages model. Id. at 692–98. In 17 this case, Plaintiff does not allege that the presence or amount of regrinds or expired 18 ingredients is unsafe, and she has not made the type of showing necessary for a 19 Rule 23(b)(2) class. Moreover, unlike the three products at issue in Zeiger, two of which 20 had only “a few relatively minor changes over the course of many years,” id. at 696, and 21 all of which experienced any changes “over time in an essentially uniform way” that “can 22 be addressed class-wide,” id. at 696–97, the differences among the Dog Food in this case 1 occurred from lot to lot, or bag to bag. Plaintiff’s CPA and unjust enrichment claims, 2 which allege that failure to disclose the presence of regrinds and/or expired ingredients 3 was deceptive, are not susceptible to class-wide resolution. 4 Although Plaintiff has attempted to draft around the Ninth Circuit’s decision in 5 Reitman, the reasoning of Reitman applies with full force and effect to the ten classes that 6 Plaintiff has proposed to certify. With respect to the “non-fresh” omissions (regrinds and 7 expired ingredients) theory, Plaintiff has not identified questions with “common 8 answers,” see Dukes, 564 U.S. at 350 (emphasis in original), or shown that “common, 9 aggregation-enabling, issues” are more prevalent or important that “non-common, 10 aggregation-defeating, individual issues,” see Olean, 31 F.4th at 664. Plaintiff has not 11 satisfied Rule 23(b)(3)’s predominance requirement and, as a result, Plaintiff’s motion to 12 certify the ten proposed classes is DENIED. 13 Conclusion 14 For the foregoing reasons, the Court ORDERS: 15 (1) Plaintiff’s motion for class certification, docket no. 101, is DENIED; 16 (2) Defendants’ motion for summary judgment, docket no. 109, is GRANTED 17 in part and DENIED in part as follows: 18 (a) Plaintiff’s CPA (Count I) and unjust enrichment (Count VII) claims 19 are DISMISSED in part as to (i) affirmative misrepresentation and omission 20 theories relating to the phrases “Biologically Appropriate,” “Delivering Nutrients 21 Naturally,” “Nourish as Nature Intended,” and “Ingredients We Love [From] 22 1 People We Trust,” and (ii) theories premised on “regional/non-regional” and 2 “heavy metals” omissions; 3 (b) Plaintiff’s CPA (Count I) and unjust enrichment (Count VII) claims 4 survive as to (i) affirmative misrepresentation theories based on the “Fresh” and 5 “Regional” packaging messages, and (ii) the “non-fresh” omissions theory vis-à- 6 vis Champion’s inclusion of regrinds and expired ingredients; and 7 (c) Plaintiff’s negligent misrepresentation (Count II), fraudulent 8 misrepresentation (Count III), and breach of express warranty (Count V) claims 9 are DISMISSED with prejudice. 10 (3) The Clerk is directed to send a copy of this Order to all counsel of record. 11 IT IS SO ORDERED. 12 Dated this 17th day of May, 2023. 13 A 14 Thomas S. Zilly 15 United States District Judge 16 17 18 19 20 21 22