Krommenhock v. Post Foods, LLC
- William Orrick
- 3:16-cv-04958
- U.S. District Court · Northern District of California
- 6
In Krommenhock v. Post Foods, Judge Orrick denied Post’s requests, granted additional class counsel, and granted limited sealing while unsealing other filings.
Post Foods, LLC, the plaintiffs and the certified class, Sidney W. Jackson, III, and the parties responsible for the specified sealed filings were affected by the order.
What happened
In Krommenhock v. Post Foods, LLC, Post asked to seek reconsideration of the court’s earlier class-certification and expert-evidence rulings and sought permission for an immediate appeal. Plaintiffs asked the court to appoint Sidney W. Jackson, III, as additional class counsel.
The court denied Post’s request to file a reconsideration motion and denied its request for a certificate allowing an immediate appeal. The court said Post had not shown the required grounds for reconsideration or immediate appellate review. The court granted plaintiffs’ request to appoint Jackson as additional class counsel.
Judge William H. Orrick also granted Post’s request to keep a limited amount of information about formulas, production costs, pricing strategy, and pricing analysis sealed, while ordering other filings unsealed or revised with narrower redactions. The case was directed to move forward toward class notice and case-management discussions.
The detailed version
- Krommenhock v. Post Foods, LLC · No. 3:16-cv-04958
- William Orrick
- May 11, 2020
Background
The court considered several motions after its March 9, 2020 order granting plaintiffs’ motion for class certification and resolving motions concerning expert evidence. Post Foods, LLC asked for permission to file a motion asking the court to reconsider that earlier order. Post also sought certification for an immediate appeal under 28 U.S.C. § 1292(b). Plaintiffs asked the court to appoint Sidney W. Jackson, III, as additional class counsel. The parties also presented requests concerning which filings and information should remain sealed.
Motion for leave to seek reconsideration
Post argued that the court had failed to consider material facts and legal arguments about whether plaintiffs’ damages model matched their liability theory under Comcast Corp. v. Behrend. Post also argued that plaintiffs’ price-premium model failed to account for supply-side factors.
The court stated that it had considered all of the parties’ material facts and arguments, including the extensive briefing and exhibits. It rejected Post’s arguments even assuming Post had satisfied the applicable local-rule requirements, which the court found it had not. The court concluded that Post’s objections to the damages model concerned possible over-inclusiveness and the amount of damages, rather than showing that the model itself failed to match plaintiffs’ liability theory. The court also said it had already considered and addressed Post’s arguments concerning the conjoint survey and supply-side conditions. The court denied Post’s motion for leave to file a motion for reconsideration.
Motion for a certificate for immediate appeal
Post asked for certification under 28 U.S.C. § 1292(b) so it could seek immediate appellate review of the court’s denial of Post’s summary-judgment motion. Post identified two proposed issues: whether its First Amendment defense to plaintiffs’ consumer-protection claims was controlling, and what supply-side factors a conjoint survey used to show a price premium must address.
The court explained that this type of immediate appeal is reserved for exceptional cases and requires a controlling legal question, substantial grounds for disagreement, and a likelihood that an immediate appeal would materially advance the end of the case. Regarding the First Amendment issue, the court said it had already addressed Post’s cited cases and that Post had not identified a case directly addressing the question presented. Regarding the survey issues, the court said those matters had been included in the class-certification and expert-evidence proceedings and that Post’s stated remedy, if any, was to seek review under Rule 23(f). The court found no justification for separately certifying the issues under § 1292(b) and denied Post’s motion for a certificate of appealability.
Additional class counsel
Plaintiffs asked the court to appoint Sidney W. Jackson, III, as additional class counsel because the expert work and trial would be extensive and complex. The court found that Jackson would adequately represent the class and was qualified to do so. The court granted plaintiffs’ motion to appoint additional class counsel.
Motions to seal
Post identified a narrowed set of information that it sought to keep under seal under the standard requiring compelling justifications. The information concerned formulas, production costs, pricing strategy, and pricing analysis. The court granted the motions to seal this limited information.
The court ordered filing parties to submit revised versions of specified filings, redacting only the information identified as allowable for sealing. It ordered the clerk to unseal most sealed materials in several docket entries, while allowing specifically identified reports, exhibits, declarations, and other materials to remain under seal. The order also directed that additional specified filings be unsealed.
Case management
The court directed the parties to discuss class notice and the case-management schedule before the May 27, 2020 case-management conference. It stated that the case should move forward, while noting that the schedule and class-notice process could be reassessed if Post sought Rule 23(f) review and the case were stayed.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.