Flodin v. Central Garden & Pet Company

Background

John Flodin and Aaron Brand brought a proposed class action against Central Garden & Pet Company and Breeder’s Choice Pet Foods, Inc. They alleged that marketing for AvoDerm dog and cat food—including the product name, logo, labels, avocado images, and statements that the products were made “with avocados”—misled consumers into believing that avocado was a main ingredient or appeared in significant quantities. Plaintiffs asserted claims under California consumer-protection and false-advertising laws, Washington’s Consumer Protection Act, and unjust-enrichment law. They sought certification of California and Washington subclasses covering household purchasers from March 8, 2017, through December 1, 2020.

Expert-evidence motions

Defendants moved to exclude the testimony of plaintiffs’ experts Steven P. Gaskin, Colin B. Weir, and Robert Klein. The court explained that, at the class-certification stage, it would consider the reliability and relevance of the expert evidence and give appropriate weight to it, rather than treating possible inadmissibility alone as a reason to exclude the evidence. The court therefore denied the motions to exclude and stated that it would consider the parties’ arguments about the reliability of the expert testimony when evaluating class certification.

Motion to strike

Defendants also asked the court to strike plaintiffs’ reliance on Food and Drug Administration communications and Association of American Feed Control Officials guidelines as new liability theories. Plaintiffs responded that they offered those materials as evidence of materiality under the reasonable-consumer standard, not as separate theories of liability. The court agreed and denied the motion to strike, allowing the materials to be considered as evidence.

Class-certification standards and standing

Under Rule 23 of the Federal Rules of Civil Procedure, plaintiffs seeking class certification must satisfy requirements including numerosity, commonality, typicality, and adequacy. For the type of class sought here, Rule 23(b)(3) also requires that common questions predominate over individual questions and that a class action be superior to other methods of resolving the dispute.

The court found that plaintiffs had Article III standing because they alleged that, absent the Avocado Representations, they would not have purchased the products or would have paid less for them. The court also rejected defendants’ arguments that the plaintiffs’ deposition testimony showed that the representations were not misleading or that Aaron Brand had not relied on them. The court concluded that the plaintiffs had standing to bring their claims.

The court also found that the plaintiffs’ claims met Rule 23’s typicality requirement. Although plaintiffs may have considered other facts or representations before purchasing AvoDerm products, the court concluded that defendants had not shown that those issues created a defense likely to become the focus of the litigation.

Commonality, predominance, and the damages model

The court agreed with defendants that plaintiffs had not presented a class-wide method of calculating damages tied to their theory of liability. Rule 23(b)(3) requires a damages model capable of measuring damages attributable to the conduct that allegedly created liability, and the model must be usable on a class-wide basis.

Plaintiffs proposed a conjoint survey. Gaskin would survey 400 relevant customers to estimate the price premium consumers would pay for dry dog food described as “Made with Avocado.” Weir would then apply that estimated price-premium percentage to total AvoDerm sales during the proposed class period.

The court found a mismatch between that model and plaintiffs’ liability theory. Plaintiffs’ theory focused on whether the marketing falsely implied that avocado was a main ingredient or present in a principal amount. The proposed survey, however, measured the value of a product being “Made with Avocado” generally. It did not distinguish between a consumer’s willingness to pay for a product containing any avocado and willingness to pay for a product containing avocado in a particular amount or as a main ingredient.

The court noted that Gaskin could not explain how the “Made with Avocado” claim connected to the alleged misrepresentation about avocado being a main ingredient. Plaintiffs did not respond to this part of defendants’ argument in their reply brief or in Gaskin’s rebuttal report. The court treated that silence as a concession and found that plaintiffs had not provided an adequate model for damages and restitution. Because the proposed model failed for that reason, the court did not reach defendants’ other arguments about the damages methodology.

Disposition

Judge Jon S. Tigar denied plaintiffs’ motion for class certification. The court also denied defendants’ motions to exclude the expert testimony and denied defendants’ motion to strike the arguments concerning Food and Drug Administration and Association of American Feed Control Officials materials. The court set a further case-management conference for November 19, 2024, and required an updated joint case-management statement by November 12, 2024.