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[[COURTLISTENER_SUBOPINION {"id":"10900546","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
)
DAVID STARR, et al., )
)
Plaintiffs, )
) Civil Action No. 19-cv-02173-LKG
v. )
) Dated: January 28, 2025
VSL PHARMACEUTICALS, INC., et )
al., )
)
Defendants. )
)
MEMORANDUM OPINION1
I. INTRODUCTION
In this putative class action lawsuit, the Plaintiffs allege that the Defendants, VSL
Pharmaceuticals, Inc. (âVSLâ), Leadiant Biosciences, Inc. (âLeadiantâ), Alfasigma USA, Inc.
(âAlfasigmaâ) (collectively, the âVSL Defendantsâ), Nutrilinea S.R.L. (âNutrilineaâ) and Centro
Sperimentale del Latte S.R.L. (âCentroâ), violated the Racketeer Influenced and Corrupt
Organizations Act (âRICOâ), 18 U.S.C. §§ 1961â68 (2018); the Uniform Commercial Code
(âUCCâ); and state law, by engaging in a scheme to deceive consumers by, among other things,
misrepresenting the chemical formulation of a probiotic known as VSL#3. ECF No. 93. The
Plaintiffs have filed a motion for class certification. ECF No. 312. The Defendants have also
filed a motion to exclude the opinions of the Plaintiffsâ experts, Samantha Iyengar and Richard J.
Eichmann. ECF No. 324. These motions are fully briefed. ECF Nos. 312, 324, 326, 334, 335
and 337.
1 The Court issued this opinion under seal on January 28, 2025, to allow the parties to review the opinion
and request any redactions of sensitive information. ECF No. 339. On February 25, 2025, the parties
filed a joint status report outlining the Plaintiffsâ requested redactions. ECF No. 343. The Defendants do
not oppose the Plaintiffsâ requests. See id. The Court finds that the Plaintiffsâ requested redactions are
private, protected personal health information, the release of which would harm the Plaintiffsâ privacy
rights. Virginia Depât of State Police v. Washington Post,
386 F.3d 567
, 575 (4th Cir. 2004); Doe v. Pub.
Citizen,
749 F.3d 246, 272
(4th Cir. 2014) (citing In re Knight Pub. Co.,
743 F.2d 231, 234-35
(4th Cir.
1984)). The Court is also satisfied that there are no less restrictive alternatives that would protect the
confidentiality of this information. See
id.
And so, the Court issues this public version of the opinion
with the Plaintiffsâ requested redactions.
The parties have also filed motions to seal certain filings and exhibits. ECF Nos. 313,
313-1, 318, 321, 321-1, 333, 333-1 and 336-1. Lastly, the Defendants have filed a consent
motion to substitute Exhibit 1 to their response in opposition to the Plaintiffsâ motion for class
certification. ECF No. 328.
No hearing is necessary to resolve these motions. L.R. 105.6 (D. Md. 2021). For the
reasons that follow, the Court: (1) DENIES the Defendantsâ motion to exclude (ECF Nos. 324);
(2) GRANTS the Plaintiffsâ motion for class certification (ECF No. 312); (3) GRANTS the
partiesâ motions to seal (ECF Nos. 313, 318, 321, 333 and 336); and (4) GRANTS the
Defendantsâ consent motion to substitute exhibit (ECF No. 328).
II. FACTUAL AND PROCEDURAL BACKGROUND2
A. Factual Background
Overview Of The Case
The Plaintiffs in this putative class action matter are purchasers of a probiotic medical
product, VSL#3, who allege that the Defendants engaged in a scheme to deceive consumers by,
among other things, misrepresenting the chemical formulation of VSL#3, from June 2016 to
June 19, 2019 (the âClass Periodâ), through âfalse and misleading advertising and marketing.â
ECF No. 93. The Plaintiffs bring RICO, breach of express warranty, unjust enrichment and
various state law consumer protection claims related to the Defendantsâ sale, advertising and
manufacturing of VSL#3. Id. at ¶¶ 160-299.
This case is the latest litigation in a long-running intellectual property dispute between
former business partners Professor Claudio De Simone and VSL regarding who has rightful
ownership of a proprietary probiotic formulation (âthe De Simone Formulationâ) used in a
product sold for many years under the name âVSL#3,â a trademark owned by VSL. ECF No.
205. In November 2018, a jury returned a verdict in favor of Professor De Simone and his new
business venture, ExeGi Pharma, LLC. ECF No. 93 at ¶ 10. And so, on June 20, 2019, this
Court issued a permanent injunction against Defendants Leadiant and Alfasigma, the companies
2 The facts recited in this memorandum opinion are taken from the second amended complaint; the
Plaintiffsâ motion for class certification; the memorandum in support thereof; and the exhibits attached
thereto; and the Defendantsâ motion to exclude; the memorandum in support thereof; and the exhibits
attached thereto. ECF Nos. 93, 312 and 326.
that have marketed and distributed VSL#3 on behalf of VSL, enjoining them from: (1) stating or
suggesting in VSL#3 promotional materials directed at United States consumers that the present
version of VSL#3 produced in Italy continues to contain the De Simone Formulation, including
by stating that VSL#3 contains the âoriginal proprietary blendâ or the âsame mix in the same
proportionsâ as the earlier version of VSL#3 and (2) âciting to or referring to any clinical studies
performed on the De Simone Formulation or earlier versions of VSL #3 as relevant or applicable
to Italian VSL#3.â ECF No. 93 at ¶ 12; De Simone v. VSL Pharms., Inc.,
395 F. Supp. 3d 617
(D. Md. 2019), affâd sub nom. De Simone v. Alfasigma USA, Inc.,
847 F. Appâx 174
(4th Cir.
2021).
The Plaintiffsâ Allegations
In this case, the Plaintiffs allege that Defendant VSL lost the right to sell the original
formulations of VSL#3 in 2016 and that Professor De Simone granted an exclusive license to
ExeGi Pharma, LLC to market and sell the De Simone Formulation in the United States at that
time. ECF No. 93 at ¶ 3. But, the Plaintiffs allege that Defendant VSL continued to use the
VSL#3 mark to market and sell a different formulation, which they maintain is fraudulent (the
âCurrent Formulationâ). Id. at ¶ 4.
In this regard, the Plaintiffs allege that the De Simone Formulation had become the gold
standard in its therapeutic class and that, prior to June 1, 2016, the De Simone Formulation was
sold under the brand name VSL#3 for almost 15 years. ECF No. 312-1 at 29-30. The Plaintiffs
contend that the marketing of VSL#3 and the Current Formulation misled consumers to believe
that VSL#3 continued to contain the De Simone Formulation. ECF No. 312-1 at 18-31.3
The Alleged Fraud Scheme
With regards to the Defendantsâ alleged fraud scheme, the Plaintiffs allege that, in or
about November 2013, Professor De Simone met with the managing director of Defendant
Leadiant and the Chief Executive Officer of the Sigma-Tau Group, Andrea Montevecchi, and
that during this meeting, Mr. Montevecchi complained about how the high cost of VSL#3 caused
Defendant Leadiantâs profit margins to be too low. ECF No. 312-1 at 18. The Plaintiffs also
3 Probiotics are therapeutic and dietary formulations that are comprised of live microorganisms, most
often live bacterial cultures, that may be similar to those normally present in the human gastrointestinal
tract, and which can have a beneficial effect on the person consuming them. ECF No. 312-1 at 3.
allege, that as result of this meeting, Mr. Montevecchi proposed reducing VSL#3âs production
cost by changing the productâs composition and substituting cheaper bacterial strains. Id. And
so, the Plaintiffs allege that Professor De Simone resigned from VSLâs board of directors and as
CEO of VSL, because he was unwilling to participate in the proposed scheme. Id.
The Plaintiffs also allege that the Defendants then followed through on a plan to produce
the Current Formulation and sell it under the name âVSL#3.â Id. at 20. In this regard, the
Plaintiffs allege that the Current Formulation was manufactured in Italy and began being sold in
the United States in May 2016. Id. The Plaintiffs contend that Defendant VSL knew that the
Current Formulation differed materially from the De Simone Formulation. Id.
In this regard, the Plaintiffs allege that independent testing of the Current Formula shows
that the formulation âwas demonstrably, materially, and strikingly different from the original De
Simone Formulation.â Id. at 20-21. The Plaintiffs also allege that â[t]here were also significant
performance differences between the [Current Formulation] and the De Simone Formulation.â
Id. at 21.
In addition, the Plaintiffs allege that Defendant Leadiant engaged in a campaign of false
advertising regarding the Current Formulation, by falsely marketing the Current Formulation as
identical to, and possessing the same clinical trial and clinical history as, the De Simone
Formulation. Id. at 22. In this regard, the Plaintiffs allege that the false advertising included,
prominently displaying the VSL#3Âź mark âon the packaging of each box of VSL#3 sold to
consumers in the United States during the Class Period, communicating to consumers that the
product remained the same, clinically tested formulation that had been sold under that brand
name prior to the Class Period. Further, each box of VSL#3 sold to consumers during the Class
Period [also] contained a product information sheet drafted by Leadiant, which included
information about dosing, as well as the clinical research that had purportedly been conducted on
VSL#3.â Id.
Lastly, the Plaintiffs allege that Defendant Alfasigma continued this false advertising
campaign, by selling the Current Formulation to consumers in the United States. Id. at 25-26. In
this regard, the Plaintiffs allege that, âAlfasigma continued to emphasize the continuity of the
formulation and falsely represented that the [Current] Formulation was clinically tested when it
was not.â Id. at 27. And so, the Plaintiffs allege that this false advertising campaign âcontinued
throughout the Class Period.â Id. at 31.
The Individual Plaintiffs
There are eight individually named Plaintiffs in this putative class action. Each of these
Plaintiffs allege that they suffer from, or are the parents of children who suffer from,
and that they routinely purchased VSL#3 during the Class Period to treat
these ailments. ECF No. 312-1 at 34. The Plaintiffs also allege that they believed that the
version of VSL#3 that they purchased during the Class Period was the same formulation as, and
was proven to be as clinically effective as, the version of VSL#3 that was available prior to that
time, based upon the productâs packaging and marketing materials and the Defendantsâ omission
of any information to the contrary. Id. The relevant background for each Plaintiff is summarized
below.
Plaintiff Arlene Reed-Cossairt is a certified special education teacher who works for a
school district in Idaho as an instructional coach and she is the parent of a son who
Id. Plaintiff
Reed-Cossairt began purchasing VSL#3 for her son in 2013, and her son took VSL#3
consistently until February 2019. Id. Plaintiff Reed-Cossairt purchased VSL#3 based upon the
recommendation of her sonâs pediatric specialist. Id.
Plaintiff Krista Karo assists her husband with sales and marketing for a garment factory
and she is the parent of a daughter who took VSL#3. Id. at 34-35. Plaintiff Karoâs daughter
began experiencing issues around 2017 and Plaintiff Karo first purchased VSL#3
in March 2018, at her daughterâs physicianâs suggestion. Id. at 35. Her daughter took VSL#3
for approximately three to six months. Id.
Plaintiff Jeremy Hansen is a procurement supply specialist for Washington State
University and the parent of a son who has
Id. at 35. Plaintiff Hansenâs son took VSL#3 daily from approximately
2016 to 2018, based upon a doctorâs recommendation. Id.
Plaintiff Peter Stavros is a self-employed attorney and his GI doctor recommended
VSL#3 to him for issues. Id. at 35. Plaintiff Stavros took VSL#3 from 2012
through 2019. Id.
Plaintiff Edmund Quiambao works in the information technology department for a
biotech company and he began purchasing and taking VSL#3 for issues in 2014.
Id. at 36.
Plaintiff Heather Farkas is unemployed and she started purchasing and taking VSL#3 in
2008, at the recommendation of her doctor, and she stopped taking the product in August 2019.
Id. Plaintiff Farkasâ physician introduced her to VSL#3 and suggested that she take it to treat her
Id.
Plaintiff James Tettenhorst works in the restaurant business and he began purchasing and
taking VSL#3 around 2010 until 2019, to treat Id. at
37. Plaintiff Tettenhorst learned about VSL#3 from a physicianâs assistant. Id.
Plaintiff David Starr is a history and humanities professor at Hult International Business
School and he was first introduced to VSL#3 by his physician and he began purchasing and
taking the product around 2012 through the Class Period. Id.
Lastly, Plaintiff Bernadette Mavrikos works for Passiac County Technical Institute as an
English Language Arts teacher for 11th grade students and she took VSL#3 for approximately
eight years at her doctorâs recommendation to treat from 2012 or 2013 until
March 2019. Id.
The Plaintiffsâ Motion For Class Certification And Expert Reports
On June 30, 2024, the Plaintiffs filed a motion for class certification in this matter,
seeking certification of the following classes of Plaintiffs, pursuant to Fed. R. Civ. P. 23:
(1) The âNationwide Class,â consisting of âall persons who
purchased VSL#3 in the United States from June 1, 2016
through June 19, 2019,â on Count I of the Second Amended
Complaint (RICO);
(2) The âFlorida Class,â consisting of âall persons who purchased
VSL#3 in Florida from June 1, 2016 through June 19, 2019,â on
Counts II (Express Warranty), III (Unjust Enrichment); and IX
and X (Florida Deceptive and Unfair Trade Practices Act and
Florida False Advertising law);
(3) The âIdaho Class,â consisting of âall persons who purchased
VSL#3 in Idaho from June 1, 2016 through June 19, 2019,â on
Counts II and III.
(4) The âIllinois Class,â consisting of âall persons who purchased
VSL#3 in Illinois from June 1, 2016 through June 19, 2019,â on
Counts II, III and VI and VII (Illinois Consumer Fraud and
Deceptive Trade Practices Acts);
(5) The âKentucky Class,â consisting of âall persons who purchased
VSL#3 in Kentucky from June 1, 2016 through June 19, 2019,â
on Counts II, III and XI (Kentucky Consumer Protection Act);
(6) The âMassachusetts Class,â consisting of âall persons who
purchased VSL#3 in Massachusetts from June 1, 2016 through
June 19, 2019,â on Counts II, III and IV (Massachusetts
Consumer Protection Act);
(7) he âMichigan Class,â consisting of âall persons who purchased
VSL#3 in Michigan from June 1, 2016 through June 19, 2019,â
on Count III;
(8) The âNew Jersey Class,â consisting of âall persons who
purchased VSL#3 in New Jersey from June 1, 2016 through June
19, 2019,â on Counts II and III;
(9) The âWashington Class,â consisting of âall persons who
purchased VSL#3 in Washington from June 1, 2016 through
June 19, 2019,â on Counts II, III and VIII (the Washington
Consumer Protection Act); and
(10) The âWisconsin Class,â consisting of âall persons who
purchased VSL#3 in Wisconsin from June 1, 2016 through June
19, 2019,â on Counts II, III and XIII (the Wisconsin Deceptive
Practices Act).
ECF No. 312 at 1-3.
To support their motion for class certification, the Plaintiffs rely upon the opinions of two
experts: Dr. Samantha Iyengar and Richard Eichmann. ECF No. 312-48 and 312-49. These
experts have developed a model (the âEichmann/Iyengar Modelâ) that will use a conjoint survey
and a market simulation that incorporates supply-side factors to calculate benefit-of-the-bargain
damages for the Plaintiffsâ claims in this matter. Id. The Plaintiffs rely upon these experts to
show that damages may be measured in this case upon a classwide basis, to satisfy Rule 23âs
predominance requirement. ECF No. 312-1 at 61-70.
The Defendantsâ Motion to Exclude
Lastly, on August 19, 2024, the Defendants filed a motion to exclude the expert opinions
of the Samantha Iyengar and Richard J. Eichmann, pursuant to Fed. R. Evid. 702. ECF Nos. 324
and 326. The Defendants argue that the Court should not consider these expert opinions in
connection with the Plaintiffsâ motion for class certification, because Dr. Iyengarâs surveys are
not reliable and the Plaintiffs cannot show that Mr. Eichmannâs proposed market simulation will
produce reliable results. ECF No. 326 at 17-28.
B. Relevant Procedural History
The Plaintiffs commenced this putative class action matter on July 23, 2019. ECF No. 1.
Thereafter, the Plaintiffs amended the complaint, by leave of the Court, on January 8, 2020, and
July 28, 2021, respectively. ECF Nos. 40 and 93.
On June 3, 2024, the Plaintiffs filed a motion for class certification, pursuant to Fed. R.
Civ. P. 23, and a memorandum in support thereof. ECF No. 312. On August 16, 2024, the
Defendants filed a response in opposition to the Plaintiffsâ motion. ECF No. 322. On November
20, 2024, the Plaintiffs filed a reply brief. ECF No. 334.
On August 19, 2024, the Defendants filed a motion to exclude the opinions of Samantha
Iyengar and Richard J. Eichmann, pursuant to Fed. R. Evid. 702, and a memorandum in support
thereof. ECF Nos. 324 and 326. On November 20, 2024, the Plaintiffs filed a response in
opposition to the Defendantsâ motion to exclude. ECF No. 335. On December 10, 2024, the
Defendants filed a reply brief. ECF No. 337.
On June 3, 2024, the Plaintiffs filed a consent motion to file their motion for class
certification, the memorandum in support thereof, and the exhibits thereto under seal. ECF No.
313 and 313-1. On August 16, 2024, the Defendants filed a motion to seal their motion to
exclude. ECF No. 318. On August 16, 2024, the Defendants also filed a motion to seal portions
of the exhibits to their response in opposition to the Plaintiffsâ motion for class certification.
ECF Nos. 321 and 321-1.
On November 20, 2024, the Plaintiffs filed a consent motion to file their reply brief and
response in opposition to the Defendantsâ motion to exclude under seal. ECF Nos. 333 and 333-
1. On December 20, 2024, the Defendants filed a consent interim motion to file portions of their
reply in support of their motion to exclude, under seal. ECF No. 336-1. Lastly, on August 28,
2024, the Defendants filed a consent motion to substitute an exhibit to the Defendantâs response
in opposition to the Plaintiffsâ motion for class certification. ECF No. 328.
These motions having been fully briefed, the Court resolves the pending motions.
III. LEGAL STANDARDS
A. Rule 23
Rule 23(a) of the Federal Rules of Civil Procedure governs class actions and provides
that: One or more members of a class may sue or be sued as representative parties on behalf of
all members only if:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a). To meet the numerosity requirement under Rule 23(a), there must be a
showing that the proposed class is so numerous that âjoinder of all members is impractical.â
Starr v. Credible Behav. Health, Inc., No. CV 20-2986 PJM,
2021 WL 2141542
, at *3 (D. Md.
May 26, 2021) (quoting Fed. R. Civ. P. 23(a)). In this regard, the United States Court of Appeals
for the Fourth Circuit has held that a class with more than 30 members generally satisfies this
requirement. See
id.
(citing Williams v. Henderson,
129 F. Appâx 806, 811
(4th Cir. 2005)).
The commonality requirement is satisfied when the prospective class members share the
same central facts and applicable law.
Id.
(citing Cuthie v. Fleet Rsrv. Assân,
743 F. Supp. 2d
486, 499
(D. Md. 2010)). In addition, to meet the typicality requirement, â[t]he claims need not
be identical, but the claims or defenses must have arisen from the same course of conduct and
must share the same legal theory.â
Id.
(citing Peoples v. Wendover Funding, Inc.,
179 F.R.D.
492, 498
(D. Md. 1998)). In addition, âthe adequacy-of-representation requirement centers on:
(1) class counselâs competency and willingness to prosecute the action and (2) whether any
conflict of interest exists between the named parties and the class they represent.â
Id.
(citing
Robinson v. Fountainhead Title Grp. Corp.,
252 F.R.D. 275, 288
(D. Md. 2008)). And so,
â[r]epresentation is adequate if the [Plaintiffâs] attorneys are qualified and able to prosecute the
action on behalf of the class.â
Id.
(citing Cuthie,
743 F.2d at 499
).
Lastly, Federal Rule of Civil Procedure 23(b)(3) also provides that:
A class action may be maintained if Rule 23(a) is satisfied and if: . .
. . (3) the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy.
Fed. R. Civ. P. 23(b)(3). âWhere the purported class members were subject to the same harm
resulting from the defendantâs conduct and the âqualitatively overarching issueâ in the case is the
defendantâs liability, courts generally find the predominance requirement to be satisfied.â Starr,
2021 WL 2141542
, at *4 (citing Stillmock v. Weis Mkts., Inc.,
385 F. Appâx 267, 273
(4th Cir.
2010)). In addition, the Court must consider:
(A) the class membersâ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation
of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3)(A)-(D).
B. Fed. R. Evid. 702
Rule 702 of the Federal Rule of Evidence governs the admissibility of expert testimony.
Fed. R. Evid. 702. In this regard, Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expertâs scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principle and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702.4 The proponent of the expert testimony bears the burden of establishing
admissibility. Brasko v. First Natâl Bank of Pa.,
700 F. Supp. 3d 354
, 366 (D. Md. 2023).
4 The Notes of the Advisory Committee for the 2023 amendments to Fed. R. Evid. 702 provide, in
relevant part, that:
[S]ome challenges to expert testimony will raise matters of weight rather
than admissibilityâŠ. But this does not mean, as certain courts have held,
that arguments about the sufficiency of an expertâs basis always go to
weight and not admissibility. Rather, it means that once the court has
Relevant to the pending motion to exclude, this Court has held that, where a proffered
expertâs model for determining damages is âessential to Plaintiffsâ efforts to certify classwide
damages classes[,]â the Court should undertake a âfull Daubert analysis.â In re Marriott Intâl,
Inc., Customer Data Sec. Breach Litig.,
602 F. Supp. 3d 767, 773
(D. Md. 2022); see also
Childress v. JPMorgan Chase & Co., No. 5:16-CV-298-BO,
2019 WL 2865848
, at *2 (E.D.N.C.
July 2, 2019) (âThe Court is persuaded by authorities which have concluded that where a movant
has proffered expert testimony in support of its motion for class certification, and such testimony
is critical to the issue of class certification, a full Daubert inquiry is appropriate.â). An expertâs
testimony is âcriticalâ where it is âimportant to an issue decisive for the motion for class
certification.â Messner v. Northshore Univ. HealthSystem,
669 F.3d 802, 812
(7th Cir. 2012).
The Court, in its gatekeeping function, must ensure that expert testimony ârests on a
reliable foundation and is relevant to the task at hand.â Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 597
(1993). To accomplish this, the Supreme Court has identified five non-
exhaustive factors for the Court to consider in determining whether expert evidence is
scientifically valid: â(1) whether the particular scientific theory can be (and has been) tested; (2)
whether the theory has been subjected to peer review and publication; (3) the known or potential
rate of error; (4) the existence and maintenance of standards controlling the techniqueâs
operation; and (5) whether the technique has achieved general acceptance in the relevant
scientific or expert community.â United States v. Crisp,
324 F.3d 261, 266
(4th Cir. 2003)
(quoting Daubert,
509 U.S. at 593-94
); see also Hickerson v. Yamaha Motor Corp.,
882 F.3d
476, 480
(4th Cir. 2018).
The Courtâs analysis should focus âon the âprinciples and methodologyâ employed by the
expert, not on the conclusions reachedâ and âwhether the reasoning or methodologyâ is
âscientifically validâ and âproperly can be applied to the facts in issue.â Westberry v. Gislaved
Gummi AB,
178 F.3d 257, 261
(4th Cir. 1999) (quoting Daubert,
509 U.S. at 594-95
); Cooper v.
Smith & Nephew, Inc.,
259 F.3d 194, 199
(4th Cir. 2001) (quoting Daubert,
509 U.S. at 592-93
).
This Court has held that, when an expertâs broad methodology is sound, the lack of
found it more likely than not that the admissibility requirement has been
met, any attack by the opponent will go only to the weight of the
evidence. . .
Fed. R. Evid. 702 Advisory Committeeâs note to 2023 amendments.
considerations of unproduced data cannot provide a basis to strike the expertâs testimony.
Robinson v. Nationstar Mortgage LLC, No. CV TDC-14-3667,
2019 WL 4261696
, at *14 (D.
Md. Sept. 9, 2019) (holding that âwhere the [expertâs] broad methodology is sound, the lack of
considerations of unproduced data cannot provide a basis to strike the expertâs testimony. Rather
than striking the testimony, the Court may need to consider permitting supplemental discovery to
correct for the lack of relevant data not previously made availableâ to the expert.â) But, the
Court âmust exclude expert testimony that is based only on belief or speculation[.]â Casey v.
Geek Squad Subsidiary Best Buy Stores, L.P.,
823 F. Supp. 2d 224
, 340 (D. Md. 2011) (quoting
Oglesby v. Gen. Motors Corp.,
190 F.3d 244, 250
(4th Cir. 1999).
C. Standing
Lastly, to establish standing, a plaintiff must have (1) âsuffered an âinjury in factâ that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical[;]â (2)
âfairly traceable to the challenged action of the defendant[;]â and (3) âlikely. . . [to] be redressed
by a favorable decision.â Bishop v. Bartlett,
575 F.3d 419, 423
(4th Cir. 2009) (citations
omitted); see also Lujan v. Defs. of Wildlife,
504 U.S. 555, 560-61
(1992) (same).
IV. LEGAL ANALYSIS
The Plaintiffs have moved for the certification of 10 classes of Plaintiffs in this putative
class action, pursuant to Fed. R. Civ. P. 23. ECF Nos. 312 and 312-1. The Plaintiffs argue that
the Court should certify these Classes, because: (1) the class is identifiable; (2) the proposed
classes are so numerous that joinder of all members is impracticable; (3) there are common
questions of law and fact; (4) the claims and defenses of the Plaintiffs are typical of those of the
Classes; (5) the Plaintiffs will fairly and adequately represent the Classes; (6) common issues
predominate; and (7) a class action is superior to other methods of adjudication.5 ECF No. 312-1
5 The Plaintiffs request that they be appointed as the representatives of the Classes as follows:
(a) All Plaintiffs appointed as class representatives for the Nationwide Class;
(b) Plaintiff Krista Karo appointed as class representative for the Florida Class;
(c) Plaintiff Arlene Reed-Cossairt appointed as class representative for the Idaho Class;
(d) Plaintiff James Tettenhorst appointed as class representative for the Illinois Class;
(e) Plaintiff Peter Stavros appointed as class representative for the Kentucky Class;
(f) Plaintiff David Starr appointed as class representative of the Massachusetts Class;
(g) Plaintiff Edmund Quiambao appointed as class representative for the Michigan Class; Case
(h) Plaintiff Bernadette Mavrikos appointed as class representative for the New Jersey Class;
(i) Plaintiff Jeremy Hansen appointed as class representative for the Washington Class; and
at 26-58. Lastly, the Plaintiffs also requests that the Court appoint the law firms of Shapiro,
Haber & Urmy LLP and Schulman Bhattacharya, LLC as Class Counsel in this matter, pursuant
to Fed. R. Civ. P. 23(g). ECF No. 312-1 at 59-60.
The Defendants oppose the Plaintiffsâ motion for class certification, upon the grounds
that: (1) the Plaintiffs cannot satisfy the predominance and superiority requirements under Rule
23(b)(3); (2) the proposed Class Representatives fail the typicality and adequacy requirements of
Rule 23(a); (3) the proposed Classes are not ascertainable; and (4) the Plaintiffs cannot establish
standing on a classwide basis. ECF No. 322 at 30-73. And so, the Defendants requests that the
Court deny the Plaintiffsâ motion. Id. at 73.
The Defendants have also moved to exclude the opinions of Samatha Iyengar and
Richard J. Eichmann, pursuant to Fed. R. Evid. 702, upon the grounds that: (1) the Court should
not consider Dr. Iyengarâs Consumer Survey and Physician Survey in deciding the Plaintiffsâ
motion for class certification, because: (a) Dr. Iyengarâs surveys do not rest on a reliable
methodology; (b) Dr. Iyengar does not know how the results of her surveys will be used; and (c)
the survey results would not be meaningful or reliable and (2) the Court should also exclude Mr.
Eichmannâs expert report, because: (a) his proposed market simulation is too speculative; (b) he
fails to identify the details underlying the proposed market simulation; and (c) the proposed
market simulation is unreliable. ECF No. 326 at 17-29. And so, the Defendants request that the
Court exclude these expert opinions in deciding the Plaintiffsâ motion for class certification. Id.
at 31.
The Plaintiffs counter that the Court should not exclude these expert opinions, because:
(1) the Eichmann/Iyengar Model uses an indisputably proper method for proving classwide
damages in a consumer deception cases; (2) they have provided sufficient detail on the
Eichmann/Iyengar Model to aid the Court in resolving their motion for class certification; (3) Dr.
Iyengar and Mr. Eichmann understand their models; and (4) Dr. Iyengar and Mr. Eichmann
reliably apply their methodologies. ECF No. 335 at 17-37. And so, the Plaintiffs request that the
Court deny the Defendantsâ motion to exclude. Id. at 30.
(j) Plaintiff Heather Farkas appointed as class representative for the Wisconsin Class.
ECF No. 312 at 3-4.
For the reasons that follow, the Plaintiffs have shown that the expert opinions of Dr.
Iyengar and Mr. Eichmann are based upon a reliable method for proving classwide damages in a
consumer deception case. A careful review of these expert reports also shows that the
Eichmann/Iyengar Model contains sufficient information to assist the Court in determining
whether damages are capable of being measured on a classwide basis in this case.
The Plaintiffs have also met their burden to show that the requirements of Rule 23 are
satisfied with regards to the proposed Classes and Class Counsel. Lastly, the parties have shown
that it is appropriate to seal certain filings and exhibits filed in connection with the briefing of the
partiesâ motions, to protect the confidentiality of sensitive business and/or proprietary
information, and to substitute the Defendantsâ exhibit. And so, the for the reasons that follow,
the Court: (1) DENIES the Defendantsâ motion to exclude (ECF No. 324); (2) GRANTS the
Plaintiffsâ motion for class certification (ECF No. 312); (3) GRANTS the partiesâ motions to
seal (ECF Nos. 313, 318, 321, 333 and 336); and (4) GRANTS the Defendantsâ consent motion
to substitute exhibit (ECF No. 328).
A. The Court Will Not Exclude The Plaintiffsâ Expert Opinions
As an initial matter, the Court is satisfied that the opinions of the Plaintiffsâ experts, Dr.
Samantha Iyengar and Richard J. Eichmann, are based upon sufficient facts or data and are the
product of reliable principle and methods that have been reliably applied to the known facts of
this case. And so, the Court will not exclude these expert opinions in deciding the Plaintiffsâ
motion for class certification. Fed. R. Evid. 702.
Rule 702 of the Federal Rule of Evidence governs the admissibility of expert testimony
and provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expertâs scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principle and
methods; and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702. Relevant here, this Court has held that, where a proffered expertâs model for
determining damages is âessential to Plaintiffsâ efforts to certify classwide damages classes,â the
Court should undertake a âfull Daubert analysis.â In re Marriott Intâl, Inc., Customer Data Sec.
Breach Litig.,
602 F. Supp. 3d 767, 773
(D. Md. 2022).
To accomplish this, the Court considers five non-exhaustive factors: â(1) whether the
particular scientific theory can be (and has been) tested; (2) whether the theory has been
subjected to peer review and publication; (3) the known or potential rate of error; (4) the
existence and maintenance of standards controlling the techniqueâs operation; and (5) whether
the technique has achieved general acceptance in the relevant scientific or expert community.â
United States v. Crisp,
324 F.3d 261, 266
(4th Cir. 2003) (quoting Daubert, 509 U.S. at 593â94);
see also Hickerson v. Yamaha Motor Corp.,
882 F.3d 476, 480
(4th Cir. 2018). In this regard,
this Court has also held that, âwhere the [expertâs] broad methodology is sound, the lack of
considerations of unproduced data cannot provide a basis to strike the expertâs testimony.â
Robinson v. Nationstar Mortgage LLC, No. CV TDC-14-3667,
2019 WL 4261696
, at *14 (D.
Md. Sept. 9, 2019). But, the Court âmust exclude expert testimony that is based only on belief or
speculation.â Casey v. Geek Squad Subsidiary Best Buy Stores, L.P.,
823 F. Supp. 2d 224
, 340
(D. Md. 2011) (quoting Oglesby v. Gen. Motors Corp.,
190 F.3d 244, 250
(4th Cir. 1999).
In this case, the Plaintiffs submit the expert reports and opinions of their two experts, Dr.
Samantha Iyengar and Richard Eichmann, to show that damages can be measured on a classwide
basis, to satisfy Rule 23âs predominance requirement. ECF No. 312-1 at 61-70; ECF Nos. 312-
48 and 312-49. These expert reports show that the Plaintiffsâ experts have developed a model
(the âEichmann/Iyengar Modelâ) that will employ a conjoint survey and a market simulation to
calculate benefit-of-the-bargain damages related to the Plaintiffsâ claims in this matter. ECF No.
312-1 at 65.
In this regard, Dr. Iyengar states in her 36-page expert report (the âIyengar Reportâ) that
she has designed a conjoint survey that measures consumersâ preferences and purchase decision-
making relating to VSL#3 and other probiotics (the âConsumer Surveyâ), and a separate survey
of doctors to evaluate the effect of the Defendantsâ alleged deception on physician
recommendations and to account for the role of physician recommendations in consumer
decision-making (the âPhysician Surveyâ). ECF No. 312-49 at ¶¶ 18-64. Dr. Iyengar also
explains in her expert report that, âwhile I was not asked to offer an opinion on how my research
may be incorporated into the calculation of damages (if any), I understand that an economist will
opine on how results from my proposed surveys could be used for this purpose.â ECF No. 312-
49 at ¶ 66.
In this regard, Mr. Eichmann has provided a 35-page expert report (the âEichmann
Reportâ) which shows that has designed a market simulation to incorporate the surveysâ results
into an econometric model, to calculate classwide damages. ECF No. 312-48. In his expert
report, Mr. Eichmann explains the theoretical underpinning of market simulations and their fit to
measure benefit-of-the-bargain damages in a consumer deception case.
Id.
at ¶¶ 44-55 and App.
3. Notably, Mr. Eichmann explains how consumersâ willingness to pay, which will be measured
by the conjoint survey prepared by Dr. Iyengar, can be used to measure aggregate demand for a
product, and when considered together with supply-side evidence, a market simulation can be
used to calculate the difference in market values between the product promised and the product
delivered. Id. at ¶¶ 48-50.
As the Plaintiffs acknowledge, Mr. Eichmann has not yet completed the damages
calculation for his expert report. ECF No. 335 at 8, 12. But, the Plaintiffs maintain that Mr.
Eichmann âhas analyzed all evidence necessary to perform the damages calculation (including
extensive data and documents obtained in discovery).â Id. at 12.
The Defendants seek to exclude the expert opinions of Dr. Iyengar and Mr. Eichmann
upon the following grounds: (1) the Court should not consider Dr. Iyengarâs consumer survey
and physician survey in deciding the Plaintiffsâ motion for class certification, because Dr.
Iyengarâs surveys do not rest on a reliable methodology, Dr. Iyengar does not know how the
results of her surveys will be used, and the survey results would not be meaningful or reliable
and (2) the Court should also exclude Mr. Eichmannâs expert report, because his proposed
market simulation is too speculative, he fails to identify the details underlying the proposed
market simulation and the proposed market simulation is unreliable. ECF No. 326 at 17-29. For
the reasons that follow, the Defendantsâ arguments are unconvincing.
First, Dr. Iyengarâs expert report shows that her surveys rest on a reliable methodology.
As the Plaintiffs explain in their response in opposition to the Defendantsâ motion to exclude,
and the Defendants acknowledge, several courts have allowed the use of conjoint surveys to help
measure damages in consumer deception cases. ECF No. 335 at 18; see Won v. GM, LLC, No.
19-11044,
2022 U.S. Dist. LEXIS 134312
, at *24-25 and 29 (E.D. Mich. July 27, 2022); In re
FCA US LLC Monostable Elec. Gearshift Litig.,
382 F. Supp. 3d 687, 697
(2019). And so, other
courts have recognized that Dr. Iyengarâs methodology is well-recognized in the field.
The Defendants argue that Dr. Iyengar offers no information regarding the model or
methodology she intends to use to convert the survey responses for the Consumer Survey into
parts-worth or other metrics that can be used by Mr. Eichmann in his proposed economic market
simulation. ECF No. 326 at 18. The Defendants further argue that Dr. Iyengar also fails indicate
how the results of her Physician Survey will be quantified in a manner that Mr. Eichmann would
be able to incorporate in his market simulation. Id. at 19. And so, the Defendants maintain that
these alleged deficiencies render Dr. Iyengarâs surveys too unreliable to withstand scrutiny. Id.
But a careful reading of Dr. Iyengarâs expert report makes clear that she addresses the
methodology that she will use for the surveys in significant detail. ECF No. 312-49 at ¶¶ 23-52,
53-61. While Dr. Iyengar acknowledges that she was not asked to offer an opinion on how her
research may be incorporated into the calculation of damages by an economist, this fact goes to
the weight that the Court should afford her expert opinion. And so, the Court does not find that
this acknowledgment renders the proposed surveys too speculative, as the Defendants suggest.
Dr. Iyengarâs expert report also makes clear that her survey results will be reliable. The
Defendants argue that the design of the Consumer Survey and the Physician Survey improperly
limits the pool of âqualified respondentsâ in a manner that is not representative of the proposed
Classes in this case. ECF No. 322 at 20, 60-61. Specifically, the Defendants argue that the
target population which Dr. Iyengarâs proposes to survey for her Consumer Survey is not
representative of the proposed Classes, because Dr. Iyengar limits the survey population to
individuals who are past and potential purchasers of digestive health and/or dietary supplements,
who purchase these products for the management of specific gastrointestinal conditions. Id. at
21, 61. But, Dr. Iyengar addresses this concern in her expert report and she explains that the
proper population in a deceptive advertising case consists of âthose consumers to whom the ad is
directed.â ECF No. 312-49 at 29. While the Defendants understandably disagree with this view,
this dispute does not undermine the reliability of Dr. Iyengarâ expert opinion and methodology.
Fed. R. Evid. 702; Allegra v. Luxottica Retail N. Am.,
341 F.R.D. 373
, 456 (E.D.N.Y. 2022)
(holding that âcriticism of theâŠsurvey populationâ used in the conjoint survey incorporated into
Eichmannâs model âultimately goes to the weight, not the admissibility, of [Eichmannâs
model]â).
The Defendantsâ critique of Dr. Iyengarâs proposed Physician Survey is also not a matter
that goes to reliability. The Defendants argue that the Physician Survey incorrectly limits the
categories of physicians to be surveyed to those who specifically treat patients for irritable bowel
syndrome, ulcerative colitis, or pouchitis. ECF No. 326 at 22. The Defendants further argue that
such an approach is âcompletely at odds with the proposed class definition, which is not limited
to individuals with those specific health conditions[.]â
Id.
But, as the Plaintiffs correctly
observe, the market research related to this case shows that VSL#3 users during the Class Period
include individuals suffering from irritable bowel syndrome, ulcerative colitis, or pouchitis and
the doctors who treated these individuals. ECF No. 335 at 21. Given this, the Defendants have
not shown that Dr. Iyengarâs focus on this physician population renders her Physician Survey
unreliable.
The Defendants have also not shown that the Court should exclude Mr. Eichmannâs
expert opinion. The Defendants first argue that Mr. Eichmannâs proposed market simulation is
too speculative, because the simulation it is predicated upon the results of Dr. Iyengarâs
Consumer Survey and Physician Survey. ECF No. 326 at 23-25. But for same the reasons
discussed above, this argument is unconvincing.
The Defendantsâ argument that Mr. Eichmann fails to identify the details underlying the
proposed market simulation is also belied by his expert report. ECF No. 312-48 at ¶¶ 21-54.
While the Defendants disagree about the usefulness of the data upon which Mr. Eichmann relies,
such concerns do not show that his expert opinion and methodology are unreliable. Fed. R. Evid.
702. The Defendantsâ argument that Mr. Eichmannâs opinion is unreliable, because he fails to
properly account for a marketâs supply-side factors, is equally unavailing. Mr. Eichmannâs
expert report shows that his analysis will combine the demand and supply sides of the market.
Id. at ¶¶ 44-54. Again, the Defendantâs concerns go to the weight that the Court should afford to
this expert opinion, not reliability. And so, for each of the above reasons, the Court DENIES the
Defendantsâ motion to exclude.
B. The Court Grants The Plaintiffsâ Motion To Certify
Turning to the Plaintiffsâ motion for class certification, the Plaintiffs have shown that
they satisfy the requirements of Rule 23. And so, the Court will GRANT the Plaintiffsâ motion.
Fed. R. Civ. P. 23.
Pursuant to Rule 23(a) of the Federal Rules of Civil Procedure, one or more members of
a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a). To obtain class certification here, the Plaintiffs must satisfy these four
elements. The Plaintiffs must also show that the requirements of predominance and superiority
under Rule 23(b) are met, because they seek class certification pursuant to Rule 23(b)(3).
To meet the numerosity requirement under Rule 23(a), there must be a showing that the
proposed class is so numerous that âjoinder of all members is impractical.â Starr v. Credible
Behav. Health, Inc., No. CV 20-2986 PJM,
2021 WL 2141542
, at *3 (D. Md. May 26, 2021)
(quoting Fed. R. Civ. P. 23(a)). In this regard, the Fourth Circuit has held that a class with more
than 30 members generally satisfies this requirement. See
id.
(citing Williams v. Henderson,
129
F. Appâx 806, 811
(4th Cir. 2005)). The commonality requirement is satisfied when the
prospective class members share the same central facts and applicable law.
Id.
(citing Cuthie v.
Fleet Rsrv. Assân,
743 F. Supp. 2d 486, 499
(D. Md. 2010)). In addition, to meet the typicality
requirement, â[t]he claims need not be identical, but the claims or defenses must have arisen
from the same course of conduct and must share the same legal theory.â
Id.
(citing Peoples v.
Wendover Funding, Inc.,
179 F.R.D. 492, 498
(D. Md. 1998)). â[T]he adequacy-of-
representation requirement centers on: (1) class counselâs competency and willingness to
prosecute the action and (2) whether any conflict of interest exists between the named parties and
the class they represent.â
Id.
(citing Robinson v. Fountainhead Title Grp. Corp.,
252 F.R.D. 275,
288
(D. Md. 2008)). And so, â[r]epresentation is adequate if the [Plaintiffâs] attorneys are
qualified and able to prosecute the action on behalf of the class.â
Id.
(citing Cuthie,
743 F.2d at
499
).
Lastly, a class action may be maintained under Rule 23(b), if the requirements of Rule
23(a) are satisfied and the Court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy. Fed.
R. Civ. P. 23(b)(3). Given this, â[w]here the purported class members were subject to the same
harm resulting from the defendantâs conduct and the âqualitatively overarching issueâ in the case
is the defendantâs liability, courts generally find the predominance requirement to be satisfied.â
Starr v. Credible Behav. Health, Inc., No. CV 20-2986 PJM,
2021 WL 2141542
, at *4 (D. Md.
May 26, 2021) (citing Stillmock v. Weis Mkts., Inc.,
385 F. Appâx 267, 273
(4th Cir. 2010)). And
so, the Court must consider:
(A) the class membersâ interests in individually controlling
the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3)(A)-(D). The Plaintiffs have met their burden here.
1. The Classes Are Identifiable
As an initial matter, the Plaintiffs have shown that the proposed Classes are readily
identifiable. Krakauer v. Dish Network, LLC,
925 F.3d 643, 658
(4th Cir. 2019) (âThe goal [of the
ascertainability requirement] is not to identify every class member at the time of certification . .
. but to define the class in such a way as to ensure there will be some âadministratively feasible
[way] for the court to determine whether a particular individual is a member at some point.ââ)
(citation omitted). To show that the proposed Classes are ascertainable the Plaintiffs must
demonstrate that the Classes are defined with an objective criteria.
Id. at 655
; EQT Prod. Co. v.
Adair,
764 F.3d 347, 358
(4th Cir. 2014). The Plaintiffs have done so here, because they define
the proposed Classes as being limited to Plaintiffs who were individual purchasers of VSL#3
during the Class Period and within certain discrete geographic locations. ECF No. 312-1 at 39.
The Plaintiffs also show that there is a reliable and administratively feasible way to
determine whether the proposed Class Members fall within the definition of the Classes. See
Krakauer,
925 F.3d at 658
. The Plaintiffs inform the Court that they have âobtained
confirmation from major retailers that sold VSL#3â that these retailers have and have preserved
records regarding purchases of VSL#3, including credit card transactional records and retail
rewards programs records. ECF No. 312-1 at 39. The Defendants also possess records
regarding their sales of VSL#3 to consumers.
Id.
Given this, the Plaintiffs are in a position to
obtain the records needed to identify the Class Members, should the Court certify the proposed
Classes. And so, the Court is satisfied that the proposed Classes are identifiable.
2. The Plaintiffs Have Shown That Requirements Of Rule 23(a) Are Met
a. The Proposed Classes Are Numerous
Turning to the specific elements of Rule 23(a), the Plaintiffs have shown that the
proposed Classes are so numerous that the joinder of all members of these classes would be
impracticable. As discussed above, Rule 23(a)(1) requires that the class be âso numerous that
joinder of all members is impracticable.â Fed. R. Civ. P. 23(a)(1). In this regard, the Fourth
Circuit has held that a class with more than 30 members generally satisfies this requirement. See
id.
(citing Williams v. Henderson,
129 F. Appâx 806, 811
(4th Cir. 2005)). This Court has also
recognized that classes of as few as 40 members are sufficiently large to make joinder
impracticable. Mitchell-Tracey v. United Gen. Title Ins. Co.,
237 F.R.D. 551, 556
(D. Md.
2006).
Here, the Plaintiffs explain that the evidence amassed during discovery shows that
approximately 2.4 million units of VSL#3 were sold during the Class Period. ECF No. 312-1 at
40. The Plaintiffs also explain that they have received lists of the Defendantsâ consumers who
purchased VSL#3 directly from the Defendants, which contain thousands of purchasers of
VSL#3 within the United States. Id. at 41 (explaining that a single document produced by
Leadiant lists more than 50,000 VSL#3 purchasers from the United States, including 3,333 from
Florida; 195 from Idaho; 1,828 from Illinois; 325 from Kentucky; 1,859 from Massachusetts;
2,434 from New Jersey; 1,670 from Washington; and 539 from Wisconsin). Given this, the
Plaintiffs estimate that the number of Class Members could be in the hundreds of thousands. Id.
And so, the numerosity requirement of Rule 23(a) is also satisfied. Fed. R. Civ. P. 23(a).
b. There Are Common Questions Of Fact And Law
The Court is also satisfied that there are common questions of law and fact among the
proposed Class Members. In this regard, Rule 23(a)(2) requires that there be âquestions of law
or fact common to the classâ and that the class members âhave suffered the same injury.â Wal-
Mart Stores, Inc. v. Dukes,
564 U.S. 338, 50, 369
(2011) (citation omitted). This Court has held
that the commonality requirement is satisfied when the prospective class members share the
same central facts and applicable law.
Id.
(citing Cuthie v. Fleet Rsrv. Assân,
743 F. Supp. 2d
486, 499
(D. Md. 2010)). In addition, many courts have found commonality of questions of fact
and law in RICO class actions. See, e.g., In re JUUL Labs, Inc., Mktg. Sales Pracs. and Prods.
Liab. Litig.,
609 F. Supp. 3d 942
, 960 (N.D. Cal. 2022) (finding common questions including
âthe existence of a RICO Enterprise and whether each defendant engaged in a scheme to
defraudâ consumers); Compound Prop. Mgmt. LLC v. Build Realty, Inc.,
343 F.R.D. 378
, 398
(S.D. Ohio 2023) (holding that commonality was satisfied where the Plaintiffs showed that
âDefendants carried out a uniform business plan with investors for years, using similar
advertising, forms, practices, and legal entitiesâ and noting that âPlaintiffs attack Defendantsâ
overarching business practices, practices that all putative class members experienced[.]â).
Here, the Plaintiffs allege a fraud scheme involving the false and deceptive advertising of
the Current Formulation of VSL#3 during the Class Period. See generally ECF No. 93. As the
Plaintiffs explain, the claims of the Class Members will share common issues of fact regarding,
among other issues: (1) whether the Defendants participated in the RICO Enterprise; (2) whether
the Defendants are collaterally estopped from arguing that they did not falsely advertise that the
VSL#3 they sold during the Class Period contained the same formulation and was supported by
clinical testing; (3) whether the Defendants falsely and misleadingly represented that the VSL#3
they sold during the Class Period contained the same formulation and was supported by clinical
testing as was the original, clinically-tested formulation of VSL#3; (4) whether the Defendants
falsely and misleadingly represented that the VSL#3 they sold during the Class Period was
clinically proven; (5) whether the Defendants misled the Class Members by omitting the material
fact that the Current Formulation of VSL#3 was different from the De Simone Formulation, in
violation of RICO and various state consumer protection statutes. ECF No. 312-1 at 43-44. And
so, the commonality requirement under Rule 23(a) is also met. Fed. R. Civ. P. 23(a).
c. The Plaintiffsâ Claims And Defenses Are Typical
The Plaintiffs have also shown that the claims of the individual Plaintiffs in this case are
typical of the claims of the proposed Class Members. As discussed above, Rule 23(a)(3)
requires that the Plaintiffsâ claims be âtypicalâ of other class members. Fed. R. Civ. P. 23(a)(3).
To establish typicality, a representative plaintiff âmust be part of the class and possess the same
interest and suffer the same injury as the class members.â In re Titanium Dioxide Antitrust Litig.,
284 F.R.D. 328, 338
(D. Md. 2012) (citation omitted). This Court has held that typicality exists
where the representative plaintiffâs ââinterest in prosecuting his own case . . . simultaneously
tend[s] to advance the interests of the absent class members.ââ Remsnyder v. MBA Mortg. Servs.,
2023 U.S. Dist. LEXIS 158435
, at *10 (D. Md. Sept. 6, 2023) (citation omitted). And so, the
âplaintiffâs claim must be sufficiently similar to the claims of the absent class members [so] that
the âplaintiffâs proof of his own individual claimâ will advance the claims of all of the class
members.â Id. at *10-11.
In this case, the Plaintiffs persuasively argue that their claims arise from a common
course of conduct and under common legal theories with regards to the alleged fraud scheme and
that they possess the same interest and suffer the same injury as the proposed Class Members. See
ECF No. 312-1 at 44-45. The Plaintiffs maintain in this putative class action that the Defendants
misrepresented to them, and other purchasers of VSL#3, that the Current Formulation of VSL#3
sold during the Class Period was the same as the De Simone Formulation of VSL#3. See
generally ECF No. 93. Given this, the alleged injury is the same for the Plaintiffs and the
proposed Class Members, because they all allegedly purchased a product that was not the one
that they expected, based upon the Defendantsâ alleged misrepresentations. ECF No. 312-1 at
45. And so, the Court is satisfied that the typicality requirement under Rule 23(a) has also been
satisfied. Fed. R. Civ. P. 23(a).
d. The Plaintiffs Will Fairly And Adequately Represent The Classes
Lastly, the Court is satisfied that individual Plaintiffs âwill fairly and adequately protect
the interests of the class.â Fed. R. Civ. P. 23(a)(4). To satisfy this element, the Plaintiffs must
show that â(1) the interests of the plaintiff and other members of the class must coincide; and
(2) it must appear that plaintiff and his attorney will vigorously prosecute the action.â City of
Cape Coral Mun. Firefightersâ Ret. Plan v. Emergent Biosolutions, Inc.,
322 F. Supp. 3d 676,
683
(D. Md. 2018) (citations omitted). The Plaintiffs have shown that their interests align with
those of the proposed Class Members.
As discussed above, the Plaintiffsâ claims and injuries arise from the same alleged
fraudulent conduct and their claims are based upon the same legal theories. The Plaintiffs
commenced this case in 2019, and the litigation history of this case makes clear that they have
actively participated in this litigation since that time. Indeed, as the Plaintiffs explain, they have
âactively monitored and supervised experienced counselâ who have, among other things: (1)
investigated the claims; (2) prepared and filed the complaint and amended complaints; (3)
researched, briefed, and argued the opposition to the Defendantsâ motion to dismiss; (4)
obtained discovery, including documentary evidence and depositions from the Defendants and
third parties; (5) produced discovery, including the Plaintiffsâ medical records and other
documents, responses to interrogatories and the Plaintiffsâ testimony at depositions; (6) briefed
discovery issues; and (7) prepared and filed the pending motion for class certification. ECF No.
312-1 at 46. The Plaintiffs and their counsel also state that they will âcontinue in this fashion
by overseeing further motion practice and preparing for and conducting trial.â
Id.
And so, the
Court is also satisfied that individual Plaintiffs will fairly and adequately protect the interests of
the proposed Class Members, as required by Rule 23(a). Fed. R. Civ. P. 23(a).
3. The Plaintiffs Have Shown That The Requirements Of Rule 23(b)(3) Are Met
Having determined that the Plaintiffs have satisfied the requirements of Rule 23(a), the
Court next considers whether the Plaintiffs also meet the requirements of Rule 23(b). Under
Rule 23(b)(3), the Court should certify a class if common questions of law or fact predominate
over individual issues and a class action would be superior to other methods of resolving the
claims. Fed. R. Civ. P. 23(b). The Plaintiffs have made this showing.
a. Common Issues Predominate
First, the Plaintiffs persuasively argue that common issues predominate in this case. This
Court has recognized that, â[w]here the purported class members were subject to the same harm
resulting from the defendantâs conduct and the âqualitatively overarching issueâ in the case is the
defendantâs liability, courts generally find the predominance requirement to be satisfied.â Starr
v. Credible Behav. Health, Inc., No. CV 20-2986 PJM,
2021 WL 2141542
, at *4 (D. Md. May
26, 2021) (citing Stillmock v. Weis Mkts., Inc.,
385 F. Appâx 267, 273
(4th Cir. 2010)). In
considering the question of predominance, the Court also considers:
(A) the class membersâ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation
of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3)(A)-(D). In this regard, other courts have also recognized that â[c]ourts
focus on the issue of liability to determine whether a proposed class meets the predominance
prong: â[i]f the liability issue is common to the class, common questions are held to predominate
over individual ones.ââ Chado v. Natâl Auto Inspections, LLC, No. ADC-17-2945,
2018 U.S.
Dist. LEXIS 117303
, at *19 (D. Md. July 13, 2018) (citation omitted). And so, the
predominance inquiry requires only âa showing that questions common to the class predominate,
not that those questions will be answered, on the merits, in favor of the class.â Amgen Inc. v.
Conn. Ret. Plans & Tr. Funds,
568 U.S. 455, 459
(2013).
As discussed above, the Plaintiffs in this putative class action share many common
questions of law and fact related to their RICO, consumer deception and state common law
claims. The Plaintiffs have also shown that these common questions would be shared with the
members of the proposed Classes. Notably, with regards to their RICO claim, the Plaintiffs must
show the conduct of an enterprise through a pattern of racketeering activity. See
18 U.S.C. §
1962
(c). As the Plaintiffs persuasively argue, the proof of these elements will involve common
evidence regarding the Defendantsâ alleged conduct and knowledge of the alleged fraud scheme.
ECF 312-1 at 48-49. The Plaintiffs also state that they will present common evidence to show
that the Defendantsâ alleged conduct proximately caused their injury. Id. at 50. Given this,
common issues of fact and law predominate in this case regarding the Plaintiffsâ RICO claims.
The Defendantsâ arguments to show that the predominance requirement is not satisfied
are also unpersuasive. The Defendants first argue that the predominance requirement is not met
with regards to the Plaintiffsâ RICO claim, because the Plaintiffs cannot establish causation or
reliance on a classwide basis. ECF No. 322 at 31-38. In this regard, the Defendants argue that
each Plaintiff must show that he or she relied on the misstatements alleged in this case and that
this task cannot be accomplished in a class action litigation. Id. at 31-33. But, the amended
complaint makes clear that the Plaintiffsâ RICO claim is not based upon the reasons that they
purchased VSL#3, but, rather, on the Defendantsâ alleged false and misleading advertising which
induced the Plaintiffs to purchase this product. See ECF No. 93. Given this, the Court agrees
with the Plaintiffs that common issues will predominate with regards to causation in the case.
The Defendantsâ argument that the Plaintiffs cannot show consumer deception on a
classwide basis is also not persuasive. The Defendants argue that the Plaintiffs cannot show
deception, because reasonable consumers could disagree about, and have different
understandings of, the meaning of the statements made in the advertising and packaging of
VSL#3. ECF No. 322 at 46. But, as the Plaintiffs correctly observe, a reasonable consumer
standard applies to their claims. ECF No. 312-1 at 54. Given this, any differences of opinion
about the meaning of the Defendantsâ statements among the Class Members would not preclude
the Plaintiffs from proving deception on a classwide basis under the law in the Fourth Circuit.
For similar reasons, common issues predominate with regards to the Plaintiffsâ state law
consumer protection claims. The Plaintiffs assert such claims under several state consumer
protection laws. ECF No. 93. There are some differences in the elements of these state laws.
But, as the Plaintiffs explain, all of these state consumer protection laws require proof that the
Defendants made material representations that would deceive a reasonable consumer. ECF No.
312-1 at 54-57. And so, again, the Plaintiffs have shown that applying the reasonable consumer
standard in this case will allow âthe core of [the] Plaintiffsâ consumer protection claims [to] turn
on common evidence of [the] Defendantsâ conduct.â Id. at 55.
With regards to the Plaintiffsâ UCC (breach of express warranty) claims, the Plaintiffs also
assert these claims under several state laws. ECF No. 93 at 61-63 (asserting breach of warranty
claims under Florida, Idaho, Illinois, Kentucky, Massachusetts, New Jersey, Washington and
Wisconsin law). But these UCC claims are substantively the same. Compare N.J. Stat. § 12A:2-
313(b);
Fla. Stat. § 672.313
(b);
Idaho Code § 28-2-313
; 810 ILCS 5/2-313; KRS § 355.2-313;
Mass. Gen. Laws ch. 106, § 2-313
; Rev. Code Wash. § 62A.2- 313; and
Wis. Stat. § 402.313
.
The Plaintiffs also explain that they will prove that the Defendants promised that the Current
Formulation of VSL#3 was clinically proven, despite knowing this claim was limited to the De
Simone Formulation of VSL#3, in violation of these laws, through common evidence, including
the product label, product information sheet and advertisements.6 Id. at 58-59.
6 The Defendants argue that these claims cannot be litigated on a classwide basis, because the claims
require individualized pre-suit notice. ECF No. 322 at 45. But, the Plaintiffs persuasively argue that
The Plaintiffs have also shown that their unjust enrichment claims can be litigated on a
classwide basis. ECF No. 312-1 at 59-60. In this case, the Plaintiffs allege that the Defendants
received benefits in the form of profits from the sale of VSL#3 to the Class Members, at the
expense of Class Members, because they paid more for the Current Formulation of VSL#3 than
they would have due to the alleged fraud scheme. ECF No. 93 at ¶¶ 193-95. Given this, the
Court agrees with the Plaintiffs that issues related to whether the Defendants unjustly received
the alleged benefits, at the expense of Class Members, are also common to the Class and
susceptible to classwide resolution.
The Defendants also argue without persuasion that the Plaintiffs cannot show injury, or
unjust enrichment, on a classwide basis, because their claims will require individualized proof of
the circumstances surrounding each purchase of VSL#3. ECF No. 322-1 at 50. Again, the
second amended complaint makes clear that Plaintiffsâ claims in this case require a
determination about whether a reasonable consumer would be misled or deceived by the
Defendantsâ alleged conduct. The Plaintiffs also explain that proof of the benefit conferred on
the Defendants in this case will involve showing that they paid the Defendants in order to
purchase VSL#3. ECF No. 312-1 at 59-60. Given this, the Court agrees with the Plaintiffs that
such proof need not be individualized.
Lastly, the Plaintiffs have met their burden to show that the damages in this case are
capable of measurement on a classwide basis. As the parties agree, a showing that damages are
capable of measurement on a classwide basis will bolster the Plaintiffsâ claim that that common
issues predominate in this case. Roach v. T.L. Cannon Corp.,
778 F.3d 401, 402, 405-09
(2d Cir.
2015).
The Plaintiffs advance two methods of proving damages that they contend can be
accomplished on a classwide basis: (i) benefit-of-the-bargain damages and (ii) class-wide profit
disgorgement remedy. ECF No. 312-1 at 61-70. With regards to benefit-of-the-bargain damages,
the Plaintiffs argue that they may recover such damages for their RICO, state consumer
protection laws and breach of express warranty claims, because the calculation of these damages
proof of pre-suit notice should not be a bar to class certification in this case, given the relatively short
three-year Class Period (June 1, 2016-June 19, 2019), and the fact that the complaint was also filed in
2019, thereby giving notice to the Defendants. ECF No. 334 at 18. And so, the Court agrees that these
notification issues do not predominate, or preclude class certification.
is based upon âthe difference in the objective, market value between the product class members
were promised (here, the version of VSL#3 containing the clinically proven De Simone
Formulation) and the product class members received (the Fraudulent Formulation, for which
there was no clinical proof).â Id. at 61. Because this measure of damages would not depend
upon the individual valuations that Class Members attach to the De Simone Formulation, in
comparison to the Current Formulation of VSL#3, the Court agrees that damages are measurable
in this matter on a classwide basis.7
b. The Plaintiffs Have Shown That A Class Action Is Superior
The Plaintiffs have also shown that proceeding in this litigation as a class action is
superior to other methods. When assessing the superiority requirement under Rule 23, the
Courts to considers the following factors:
(A) the class membersâ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation
of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). As discussed above, the number of Class Members in this matter is in
the hundreds of thousands and, thus, too large to litigate this case on an individual basis. See
7 The Plaintiffs have submitted expert reports prepared by Dr. Samantha Iyengar, a survey expert, and
economist Richard Eichmann, to show these they will measure the alleged difference in value between the
Current Formulation of VSL#3 and the DeSimone Formulation. ECF No. 312-1 at 65-69. As discussed
above, a review of Dr. Iyengarâs expert report shows that she has designed a conjoint survey to measure
consumersâ preferences and purchase decision-making relating to VSL#3 and other probiotics and a
survey of doctors to account for their role in the consumerâs decision-making process. ECF No. 312-49.
Mr. Eichmann has also designed a market simulation to calculate classwide damages that measures âthe
difference in the objective market value between what Defendants promised to consumers (VSL#3 that
included the clinically proven De Simone Formulation) and the product Defendants actually delivered
(the materially different, non- clinically-proven Fraudulent Formulation).â ECF No. 312-1 at 66. While
the Plaintiffs acknowledge that their experts have not yet performed these surveys, they correctly observe
that this fact does not preclude class certification. ECF No. 312-1 at 69; see James v. Global Tel*Link
Corp., No. 13-4989,
2018 U.S. Dist. LEXIS 131892
, at *22 (D.N.J. Aug. 6, 2018) (quoting Comcast
Corp. v. Behrend,
569 U.S. 27, 34
(2013)) (âThe question is not whether Plaintiffs have [already] engaged
in a complete or accurate calculation, but whether damages are âcapable of measurement on a classwide
basis.ââ). The Plaintiffs also argue that their RICO and claims or remedies for unjust enrichment permit
an alternative potential classwide monetary remedy of disgorgement of the Defendantâs profits. ECF No.
312-1 at 69.
ECF No. 312-1 at 70.
The Court also agrees with the Plaintiffs that individual claims related to purchases of
VSL#3 are too small to litigate as separate cases for each Class Member. Id.; see Stillmock v.
Weis Mkts., Inc.,
385 Fed. Appx. 267, 275
(4th Cir. 2010) (holding that a class action superior
where âthere is no indication⊠that class members would have a strong interest in individual
litigationâ). The Court is also not aware of any unusual circumstances or difficulties in
managing this matter as a class action. Given this, the Plaintiffs have shown that class action
treatment of their claims is superior to individual adjudications of these claims. Fed. R. Civ. P.
23(b).8
4. Proposed Class Counsel Satisfy Rule 23(g)
Lastly, the Court is satisfied that the appointment of the proposed Class Counsel is
appropriate under Rule 23(g). The Plaintiffs move for appointment of the law firms of Shapiro
Haber & Urmy LLP and Schulman Bhattacharya, LLC as Class Counsel. In considering this
request, Rule 23(g)(1)(A) instructs the Court to consider:
(i) the work counsel has done in identifying or investigating potential
claims in the action; (ii) counselâs experience in handling class
actions, other complex litigation, and the types of claims asserted in
the action; (iii) counselâs knowledge of the applicable law; and (iv)
the resources that counsel will commit to representing the class.
Fed. R. Civ. P. 23(g).
In this case, the evidence before the Court and the litigation history for this case show
that the proposed Class Counsel have performed substantial work in this case, to include
identifying potential claims, analyzing the legal issues and obtaining discovery. The evidence
before the Court also makes clear that the law firm of Shapiro Haber & Urmy LLP has
significant experience and knowledge in handling class action matters and other complex
8 The Defendantsâ argument that the Plaintiffs lack standing to bring this putative class action is also not
convincing. ECF No. 322 at 71-73. The Plaintiffs have shown that they have standing to pursue their
RICO claims, because the Plaintiffs allege that they suffered an economic harm, by purchasing and
paying for the Current Formulation of VSL#3, which was not the VSL#3 formulation that had been
clinically tested, and that the Defendantsâ alleged racketeering activity caused their economic harm. ECF
No. 334 at 37-39; Brandenburg v. Seidel,
859 F.2d 1179, 1187
(4th Cir. 1988) (citations omitted); see also
Bishop v. Bartlett,
575 F.3d 419, 423
(4th Cir. 2009) (holding that, to establish standing, a plaintiff must
have â(1) suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical, (2) fairly traceable to the challenged action of the defendant,â and (3) likely to
be redressed by a favorable decision.â) (citations omitted).
litigation. ECF No. 312-61 (Gavenman Decl. Ex. 57.). The evidence also makes clear that the
law firm of Schulman Bhattacharya, LLC has significant prior experience representing Professor
De Simone and ExeGi in related litigation. ECF No. 312-3 at ¶ 11 (Gavenman Decl.), ECF Nos.
312-36, 312-37 and 312-38 (Gavenman Decl. Exs. 33-35). Given this, the Court is satisfied that
proposed Class Counsel are adequate and satisfy Rule 23(g)âs requirements. And so, the Court
will APPOINT these law firms as Class Counsel in this matter.
C. The Court Grants The Partiesâ Motions To Seal
As a final matter, the parties have filed several motions to seal certain filings and exhibits
submitting in connection with the briefings of their respective motions, upon the grounds that
these documents that contain confidential and/or proprietary business information. ECF Nos.
313, 313-1, 318, 321, 321-1, 333, 333-1 and 336-1. No objections to these motions have been
filed. The Court finds that: (1) the proposed sealed documents and/exhibits contain sensitive
business and/or proprietary information about the parties and their businesses and (2) there are
no less restrictive alternatives to sealing that would sufficiently protect this sensitive information.
And so, for good cause shown, the Court GRANTS: (1) the Plaintiffsâ consent motion to file
their motion for class certification, the memorandum in support thereof, and the exhibits thereto
under seal (ECF No. 313 and 313-1); (2) the Defendantsâ motion to seal their motion to exclude
(ECF No. 318); (3) the Defendantsâ filed a motion to seal portions of the exhibits to their
response in opposition to the Plaintiffsâ motion for class certification (ECF Nos. 321 and 321-1);
(4) the Plaintiffsâ consent motion to file their reply brief and response in opposition to the
Defendantsâ motion to exclude under seal ( ECF Nos. 333 and 333-1); (5) the Defendantsâ
consent interim motion to file portions of their reply in support of their motion to exclude under
seal (ECF No. 336-1); and (6) the Defendantsâ consent motion to substitute an exhibit to the
Defendantâs response in opposition to the Plaintiffsâ motion for class certification (ECF No.
328).
V. CONCLUSION
For the foregoing reasons, the Court:
(1) DENIES the Defendantsâ motion to exclude (ECF No. 324);
(2) GRANTS the Plaintiffsâ motion for class certification (ECF No. 312);
(3) GRANTS the partiesâ motions to seal (ECF Nos. 313, 318, 321, 333 and 336);
(4) GRANTS the Defendantsâ consent motion to substitute exhibit (ECF No. 328);
(5) CERTIFIES a class action on behalf of the following classes, pursuant to Fed. R.
Civ. P. 23:
(i) The âNationwide Class,â consisting of âall persons who purchased VSL#3 in
the United States from June 1, 2016 through June 19, 2019.â
(ii) The âFlorida Class,â consisting of âall persons who purchased VSL#3 in
Florida from June 1, 2016 through June 19, 2019.â
(iii)The âIdaho Class,â consisting of âall persons who purchased VSL#3 in Idaho
from June 1, 2016 through June 19, 2019.â
(iv) The âIllinois Class,â consisting of âall persons who purchased VSL#3 in
Illinois from June 1, 2016 through June 19, 2019.â
(v) The âKentucky Class,â consisting of âall persons who purchased VSL#3 in
Kentucky from June 1, 2016 through June 19, 2019.â
(vi) The âMassachusetts Class,â consisting of âall persons who purchased VSL#3
in Massachusetts from June 1, 2016 through June 19, 2019.â
(vii) The âMichigan Class,â consisting of âall persons who purchased VSL#3
in Michigan from June 1, 2016 through June 19, 2019.â
(viii) The âNew Jersey Class,â consisting of âall persons who purchased VSL#3
in New Jersey from June 1, 2016 through June 19, 2019.â
(ix) The âWashington Class,â consisting of âall persons who purchased VSL#3 in
Washington from June 1, 2016 through June 19, 2019.â
(x) The âWisconsin Class,â consisting of âall persons who purchased VSL#3 in
Wisconsin from June 1, 2016 through June 19, 2019.â
(6) APPOINTS the Plaintiffs as the representatives of the Classes as follows:
(i) All Plaintiffs are appointed as class representatives for the Nationwide Class;
(ii) Plaintiff Krista Karo is appointed as class representative for the Florida Class;
(iii)Plaintiff Arlene Reed-Cossairt is appointed as class representative for the
Idaho Class;
(iv) Plaintiff James Tettenhorst is appointed as class representative for the Illinois
Class;
(v) Plaintiff Peter Stavros is appointed as class representative for the Kentucky
Class;
(vi) Plaintiff David Starr is appointed as class representative of the Massachusetts
Class;
(vii) Plaintiff Edmund Quiambao is appointed as class representative for the
Michigan Class;
(viii) Plaintiff Bernadette Mavrikos is appointed as class representative for the
New Jersey Class;
(ix) Plaintiff Jeremy Hansen is appointed as class representative for the
Washington Class; and
(x) Plaintiff Heather Farkas is appointed as class representative for the Wisconsin
Class; and
(7) APPOINTS Shapiro Haber & Urmy LLP and Schulman Bhattacharya, LLC as Class
Counsel for each of the Classes.
A separate Order shall issue.
IT IS SO ORDERED.
s/Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
United States District JudgeCase Information
- Court
- D. Maryland
- Decision Date
- April 30, 2025
- Status
- Precedential