Many thanks to the blog reader who forwarded Chief Judge Vaughn R. Walker's recent class certification order in Chavez v. Blue Sky Natural Beverage Co., 2010 U.S. Dist. LEXIS 60554 (N.D. Cal. Jun. 18, 2010). The order does not appear to be available on Westlaw yet. UPDATE: The order is now available on Westlaw and has also been assigned a Federal Rules Decisions cite: Chavez v. Blue Sky Natural Beverage Co., ___ F.R.D. ___, 2010 WL 2528525 (N.D. Cal. 2010).
My prior blog post on this case is at this link.
Notably, Judge Walker followed Tobacco II's holding that only the named class representatives, and not the unnamed class members, must satisfy the UCL's post-Prop. 64 standing requirement. Chavez, 2010 U.S. Dist. LEXIS 60554 at *27-*28, *37 (citing In re Tobacco II Cases, 46 Cal.4th 298, 324 (2009)). He found no Article III bar to applying Tobacco II in federal court. See id. at *27-*28.
He further followed Tobacco II in holding that the plaintiffs' UCL claim (based on misrepresentations of the geographic origin of goods) did not require individualized proof of reliance, actual deception or injury. Id. at *29 (citing Tobacco II, 46 Cal.4th at 320). In granting class certification, he followed In re Steroid Hormone Product Cases, 181 Cal.App.4th 145 (2010), rather than Cohen v. DirecTV, Inc., 178 Cal.App.4th 966 (2009). Chavez, 2010 U.S. Dist. LEXIS 60554 at *29-*30.
In other words, this decision is as significant as the original nine post-Tobacco II cases.
Also of interest, the plaintiffs submitted the report of a marketing expert in support of class certification on the "materiality of [the defendant's] product labeling and marketing." Chavez, 2010 U.S. Dist. LEXIS 60554 at *32. Materiality was relevant to the CLRA and common-law fraud claims, which Judge Walker certified based on the doctrine of presumed reliance. Id. at *30-*31. Judge Walker considered the expert report in accordance with the standards set forth in the new Dukes v. Wal-Mart en banc opinion. Id. at *32 (citing Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 603 & n. 22 (9th Cir. 2010)).
I am occasionally asked about the use of expert testimony in false advertising cases to establish whether a particular misrepresentation or omission was material (for CLRA purposes) or likely to deceive a reasonable consumer (for UCL purposes). It makes a lot of sense as a theoretical matter (although it is not required, see Brockey v. Moore, 107 Cal.App.4th 86 (2003)). Up to now, however, the only case I could think of actually involving such testimony was Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496 (2003). The unpublished portion of that decision discussed the expert testimony in depth (see this blog post).