internal studies on consumer preference support class action treatment for weed killer claims

Martin v. Monsanto Co., No. 16–2168, 2017 WL 1115167 (C.D.
Cal. Mar. 24, 2017)
This case grants class certification, illustrating the use
of internal consumer research in class action practice.  The probabilistic nature of consumer reaction
is not necessarily a great fit with class actions, but the use of presumptions
can deal with that, as here.
Monsanto makes Roundup Weed & Grass Killer Concentrate
Plus and Roundup Weed & Grass Killer Super Concentrate. Unlike “Ready-to-Use”
Roundup, these concentrates must be diluted with water before use. A prominent
sticker on the front neck of the bottle states that the product “Makes Up to __
Gallons”:  
 

bottle with “makes up to 42 gallons” prominent on neck
On the back label of the bottle, the instructions advise
users to “Add 6 fl oz Per Gallon of Water” for Concentrate Plus, or “2 1/2 fl
oz Per Gallon of Water” for Super Concentrate. Martin alleged that, when users
follow the instructions on the back label, the concentrates only produce about
half of the amount that Monsanto claims on the front neck sticker.  Additional instructions are in a pamphlet sealed
under the back label, which can be opened before purchase, but it’s not clear
how many consumers do that. The instructions state that, for best results,
consumers should use the amounts provided on the back label, but that, for
“easy to kill weeds such as seedlings,” the purchaser may add less concentrate
per gallon of water. Only in that case will the concentrates make the amount
claimed on the neck sticker.
Martin brought the usual California advertising/warranty
claims.
Analysis of note: Monsanto argued that Martin wasn’t typical
because she “did not read the instructions prior to purchase,” but failed to
present any evidence that any significant portion of the class read the
pamphlet or fold-out prior to purchase, or, specifically, the alternative
mixing instructions for “easy to kill weeds such as seedlings.” Martin had
evidence that she acted like thousands of other purchasers. And “a plaintiff’s
individual experience with the product is irrelevant where, as here, the injury
under the UCL, FAL, and CLRA is established by an objective test…. [I]njury is
shown where the consumer has purchased a product that is marketed with a
material misrepresentation, that is, in a manner such that members of the
public are likely to be deceived.”
Monsanto argued that Martin was an inadequate class
representative because she “seeks less in damages than the purported class
members could receive outside of a class litigation through a full refund.” Monsanto’s
consumer guarantee states: “If for any reason you are not satisfied after using
this product, simply send us original proof of purchase and we will replace the
product or refund the purchase price.” But people who sought refunds weren’t
adequate class representatives, because they aren’t class representatives at
all, and members who want a refund were free to opt out.
Predominance: Monsanto argued that class members had varying
reasons for purchasing the concentrates, making materiality and reliance predominating
individual issues. But for breach of express warranty, and for violations of
the UCL and FAL, Martin didn’t need to prove individualized reliance. And,
while reliance is an element of the CLRA, “an inference of common reliance
arises if representations are material, and materiality is judged by an
objective standard rather than any understandings specific to the individual
consumer.”
At this stage of the litigation, Martin provided sufficient
evidence of materiality to the reasonable consumer to make class certification
appropriate. Monsanto’s own documents and consumer studies did the work. Monsanto
itself considered its Gallons statement to be a “key claim[ ].”  A 3,000 person consumer research study found
that “[w]hen asked what helps them make a purchase decision about what
concentrate product to buy at [the] shelf,” 42% of respondents selected “How
many gallons of product you can make,” which was the third-highest of 13
factors. Two-thirds of those who purchased concentrated herbicide did so
because of “Value (price per oz. is cheaper than ready-to-use).” When
researchers presented focus group subjects with a mock shelf of herbicide
products, they observed that “Price to gallon ‘best value’” claims caught
consumers’ eyes with “some frequency,” with “some consumers actually d[oing]
the math on their notepads for various brands.”
A presumption of reliance is inappropriate when class
members “were exposed to quite disparate information,” but here, there was no
evidence that class members could buy the products without being exposed to the
representations at issue. In “cases involving product labels,” courts
“reasonabl[y] … infer that the class members were exposed to the allegedly
misleading statement at the point of sale.”
Similarly, Martin’s damages models were tied to her theory
of liability and could be measured on a classwide basis. The “underfill”
percentage could be calculated by comparing the number of gallons made when
following the instructions on the back label with the number of gallons
promised on the neck label. This number could then be multiplied by the retail
price to obtain a standard damage amount for each bottle. This
benefit-of-the-bargain model was adequately tied to Martin’s theory of
liability on her express warranty claim and appeared to be capable of measuring
damages on a classwide basis, since the methodology was identical for every
purchaser and for any given bottle size. 
Likewise, her restitution damages model was adequately tied to her
theory of liability on the UCL, FAL, and CLRA claims and appeared to be able to
measure damages on a classwide basis.  Class
members bargained for a certain price-per-gallon: the average retail price
divided by the number of gallons promised. This number could serve as a proxy
for the actual value-per-gallon of spray solution and multiplied by the number
of gallons the products actually supplied to determine the actual value of the
products. Monsanto could challenge these models through cross-examination at
trial.

Finally, Monsanto’s refund policy didn’t make class
treatment inferior.  Under the plain
language of Fed. R. Civ. P. 23(b)(3), “[t]he analysis is whether the class
action format is superior to other methods of adjudication, not whether a class
action is superior to an out-of-court, private settlement program.” 

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