Vanilla class action certified based on sufficient survey evidence

Vizcarra v. Unilever U.S., Inc., 2023 WL 2364736, No.
4:20-cv-02777 YGR (N.D. Cal. Feb. 24, 2023)

Hey, it’s a certified class in a vanilla case: Vizcarra
alleged that Breyers Natural Vanilla Ice Cream misleadingly communicated that
it contained vanilla flavor derived exclusively from the vanilla plant. The
cartons “said ‘Natural Vanilla’ in large, light green letters against a black
background, contained pictures of two vanilla beans and vanilla flowers and a
scoop of the ice cream with noticeable specks purporting to be actual vanilla
beans.” She brought the usual
California claims

Previously, the court found that Vizcarra didn’t show
commonality or predominance, because her expert’s opinions were based on
consumer-perception and materiality surveys that did not specifically test the
effect of the vanilla representations on consumers’ beliefs and purchasing
decisions, and the proposed damages model didn’t measure the resulting price
premium, if any. Her expert did more surveys and returned.

Based on the results of the revised surveys, her expert
concluded that (1) a reasonable consumer in California perceives the Vanilla
Representations to convey that all of the vanilla flavor comes from vanilla
extract made from the vanilla plant, which answers the common question of
likelihood of deception that is integral to her claims under the UCL and FAL;
and (2) that the Vanilla Representations were material to the purchasing
decisions of a reasonable consumer in California, which answers the common
question of materiality that is integral to her claim under the CLRA.

Unilever argued that the survey still didn’t do the job
because it didn’t test “a stimulus that removed the Vanilla Representations but
was otherwise identical to the package of the ice cream at issue.” The revised
perception survey involved presenting to respondents an un-branded ice cream
product that displayed only the Vanilla Representations on the front label of
the product. 78.7% of respondents reported that they believed that “all of the
vanilla flavor” comes from the vanilla plant; 16.6% perceived that “not all of
the vanilla flavor” comes from the vanilla plant; and 4.7% were not sure. Unilever
argued that this survey couldn’t distinguish the effect of the Vanilla
Representations on survey respondents’ perceptions from the effect of the
survey respondents’ pre-existing beliefs or biases, including about the Breyers
brand and vanilla ice cream in general, and that the questions were leading. Vizcarra
rejoined that the survey (including the stimuli) were designed so that the
survey would measure the effect of the Vanilla Representations directly while
avoiding the risk that the results of the study would be “contaminated by
pre-existing beliefs” of respondents or other biases, including pre-existing
beliefs associated with the Breyers brand. Vizcarra met her burden to show by a
preponderance of the evidence that her expert’s opinions were capable of
answering the question of whether a reasonable consumer is likely to be
deceived by the Vanilla Representations. “Unilever’s criticisms boil down to a
disagreement as to Dr. Dennis’ survey design choices, which go to the weight to
be accorded to Dr. Dennis’ survey results and opinions when determining the
merits of Vizcarra’s claims at trial.”

CLRA: “The requirements for stating a claim under the CLRA differ
from those for a claim under the UCL and FAL because a CLRA plaintiff can
obtain damages, as well as equitable relief and other remedies.” Thus, a CLRA
plaintiff must “show not only that a defendant’s conduct was deceptive but that
the deception caused them harm.” However, “[c]ausation, on a classwide basis,
may be established by materiality. If the trial court finds that material
misrepresentations have been made to the entire class, an inference of reliance
arises as to the class.” Vizcarra’s expert’s materiality survey was also
capable of answering that question on a classwide basis. The revised survey
measured the extent to which a product having the Vanilla Representations is
preferred over the product not having the Vanilla Representations in the
context of purchasing behavior. 88.8% of respondents indicated that they would
prefer to purchase the product that had the Vanilla Representations; and 11.2%
indicated that they would prefer to purchase the product that did not have the
Vanilla Representations. Unilever objected that they weren’t shown a real
product, but the survey “does test and does speak to the effect of the Vanilla
Representations on consumers’ purchasing decisions, consistent with Vizcarra’s
theory of liability, … with a sufficient degree of reliability such that a
reasonable factfinder at trial could find, based on Dr. Dennis’ opinions, that
the Vanilla Representations were material to a reasonable consumer’s purchasing
decisions.” The expert explained that he designed the survey and stimuli to
measure the effect of the Vanilla Representations while minimizing the effect
of potential confounding factors, such as respondents’ pre-existing beliefs and

Predominance: Damages must be capable of measurement on a
class-wide basis. While the model “must measure only those damages attributable
to” the plaintiff’s theory of liability, the calculations “need not be exact”
at the certification stage. A revised price premium model using contingent
valuation, which had been proposed, but not yet studied, by Vizcarra’s expert, would
suffice. Contingent valuation methodology has been widely accepted as a
reliable method for calculating damages on a class-wide basis in false
advertising and mislabeling cases. The expert proposed to use actual, historical
pricing data for the ice cream product at issue in calculating the price
premium, which serves to incorporate supply-side factors into the price premium
analysis, answering one of Unilever’s key criticisms; the jury could consider
the weight of these opinions.

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