In re NJOY, Inc. Consumer Class Action Litigation (120 F. Supp. 3d 1050, 2015)

ORDER DENYING PLAINTIFFS’ • MOTION FOR CLASS CERTIFICATION

MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE

On January 17, 2014, Ben Z. Halberstam filed this putative class action on his own behalf and on behalf of a class of similarly situated Californians against NJOY, Inc., and -Sottera, Inc. (collectively, “NJOY”). On April 29, 2014, pursuant' to the parties’ stipulation, the court consolidated Halber-stam’s action with Eric McGovern v. NJOY, Inc., et al., Case No. CV14-00427 MMM (RZx). Halberstam and McGovern filed a first amended consolidated complaint on May 30, 2014. Thereafter, on July 9, 2014, they filed a second amended consolidated complaint, joining Kathryn Thomas and Paula Kolano as named plaintiffs. Thomas seeks to represent a Florida class, while Kolano seeks to represent a New York class. On August 11, 2014, NJOY filed a motion to dismiss the second amended complaint, which the court granted on October 20, 2014. As a result, on November 10, 2014, Halberstam, Thomas, and McGovern filed a third amended consolidated complaint omitting certain claims and dropping Kolano as a plaintiff. On December 10, 2014, NJOY filed a motion to dismiss the third amended complaint.

On May 20, 2015, while the motion to dismiss was still under submission, plaintiff Eric McGovern filed a notice of voluntary dismissal of his individual claims pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Seven days later, on May 27, 2015, the court granted in part and denied in part NJOY’s motion to dismiss the third amended complaint. It denied the motion to dismiss Halberstam’s and Thomas’ (collectively, “plaintiffs”) claims to the extent they were based on fraudulent omissions, and/or on NJOY’s “Resolution Solution” and “Friends Don’t Let Friends Smoke” advertisements. The court granted the motion to the extent the claims were based on NJOY’s “Try Something New in Bed” advertisement. On June 16, 2015, plaintiffs filed a fourth amended complaint, which NJOY answered on July 6, 2015.

On May 21, 2015, plaintiffs filed a motion for class certification. NJOY opposes the motion. It also filed two motions to strike declarations filed in support of class certification, which plaintiffs oppose.

I. FACTUAL BACKGROUND

A. Background Concerning Electronic Cigarettes

An electronic cigarette (“e-cigarette”) is a device that simulates a traditional tobacco cigarette. E-cigarettes use a battery-operated heating mechanism to convert a cartridge containing glycerin, glycol, natural and artificial flavors, and usually nicotine, into vapor, which the user inhales as he or she would a traditional cigarette. Since 2011, e-cigarettes have grown in popularity among smokers in the United States. NJOY is the most popular brand of e-cigarette in the nation, and has captured more than forty pércent of the e-cigarette market. This action concerns NJOY e-cigarettes marketed under the trade names “NJOY,” “NJOY Kings,” “OneJoy,” and “NPRO.”

As a result of the increasing popularity of e-cigarettes among consumers, government agencies and research facilities have conducted several studies regarding their potential health impacts and risks. These studies have concluded, among other things, that: (1) e-cigarettes ' contain measurable amounts of carcinogens, toxins, and other contaminants that are, or potentially are, disease-causing; (2) e-cigarettes have potentially harmful side effects; and (3) more studies are needed to determine the full range of health dangers associated with the use of e-cigarettes.

In 2009, for example, the United States Food and Drug Administration (“FDA”) conducted a study of two brands of e-cigarettes, one of which was NJOY. The FDA study concluded that NJOY e-cigarettes contained detectable levels of known carcinogens and toxic chemicals, and that the quality control processes used to manufacture them were inconsistent or nonexistent, as evidenced by the varying levels of nicotiné inhaled with each puff. Following the study, the FDA released a consumer health brochure and safety alert reflecting the study’s findings. In June 2012, a study published in the Journal of the American College of Chest Physicians concluded that e-cigarettes have “immediate adverse physiological] effects after short-term use that are similar to some of the effects seen in tobacco smoking,” and urged that further research be conducted concerning the health effects' of e-cigarettes.

In 2013, the German Cancer Research Center published á comprehensive' report on é-cigarettes that reviewed studies and literature in the field. The report concluded, inter alia, that e-cigarettes could not currently be “rated as safe”; that consumers typically do not have access to reliable information concerning product quality; that e-cigarettes have technical flaws (e.g., leaking ’cartridges, accidental intake of nicotine when replacing cartridges, and the possibility of unintended overdqse); and that manufacturers provide insufficient information about the ingredients used in e-cigarettes. The-, report also noted that-the liquids in e-cigarettes contain- harmful substances and ingredients that irritate a user’s airways and can lead to allergic reactions; that adverse health effects for third party bystanders could not be excluded;, and that continuing health effects on users were unknown given the lack of studies concerning the effects of long-term use of e-cigarettes.

The World Health Organization (‘WHO”) expressed concerns regarding the presence of carcinogens and other toxic chemicals in e-cigarettes in May and July 2013, concerns which were raised again in August 2013 in a separate French report on the subject. The University of California at Riverside also published -a study in 2013, reporting that there were .“harmful and potentially harmful chemicals,” as well as metal and silicate particles, in e-cigarette aerosols inhaled by users. Additionally, two studies published at the end of 2013 concluded that e-cigarettes may pose health risks not associated with the use of traditional cigarettes, and that they may. not significantly reduce the risk for heart disease associated with traditional- cigarettes.

B. Allegedly Misleading Advertisements and Representations During the Class Period

Plaintiffs allege that, during the class period, NJOY has engaged in a continuous, widespread campaign deceptively to promote > NJOY e-cigarettes as “everything you like about smoking without the things you don’t.” Plaintiffs contend the advertisements convey the message that using NJOY’ e-cigarettes is known to be safer than ■ smoking traditional cigarettes. Specifically, théy assert that, given the multiplé 'studies concluding that e-cigarettes contain carcinogens, toxins, anil other potentially harmful impurities also found in traditional cigarettes, the advertisements are false and misleading. Plaintiffs also contend NJOY’s marketing message is false arid misleading because theré is insufficient reseárch regarding the long-term effects of e-cigarettes for NJOY to assert that its products do not' pose the same health risks as traditional cigarettes. NJOY made the purportedly false and misleading statements: (1) on e-cigarette packaging; (2) in inserts to product packaging and on shipping materials; (3) in press releases; (4) in print advertisements; (5) in television advertisements; (6) in radio advertisements; and (7) on the NJOY website. Some of plaintiffs’ specific allegations concerning each of these forms of advertising are detailed below.

In December 2012, NJOY purportedly introduced a new product — NJOY Kings. Plaintiffs allege that NJOY designed Kings to look like traditional cigarettes in order to capitalize on consumers’ desire to smoke, but avoid the health dangers of traditional tobacco. NJOY purportedly launched this product in a widespread marketing campaign, the core message of which was that a consumer would “get to keep all the things [he] like[d] about smoking while losing the things [he didn’t].”

Packaging1., Plaintiffs assert that the warnings on NJOY’s. product packaging omit material information — e.g., a list of product ingredients — and in this way conceal the health risks associated with the chemicals the product contains. They contend that by failing to reference carcinogens, toxins, and impurities, and warning only of risks from nicotine and swallowing the concentrated contents of the cartridge, the packaging implies that these are the only health-related risks associated with use of the product. Plaintiffs assert that NJOY also utilized small print o.n the back of its packaging, which was difficult for consumers to read.

Plaintiffs contend that these' material omissions are reinforced by misleading statements on NJOY packaging inserts, such as: “The NJOY King provides everything you like about smoking without the things you don’t”; “Be sure to tell your friends and family about the positive impact that NJOY products are having on your life”;" and “the NJOY King gives you everything you love about the smoking experience.”

ÑJOY’s Advertising Campaigns: Plaintiffs allege that, beginning in December 2012 and January 2013, NJOY circulated advertisements that were false and misleading because they highlighted the positive aspects of e-cigarettes without referencing the negative side effects and health consequences associated with their use. Specifically, plaintiffs contend that the following NJOY advertisements and statements on the company website were misleading: (1) an advertisement stating that “[t]he most amazing thing about this cigarette ... [is that] [i]t isn’t one,” and that NJOY Kings allow users “to keep all the things [they] like about smoking while losing the things [they] don’t”;' (2) an' advertisement stating that “[finally, smokers have a real alternative____ [Y]ou get to keep the things you like about smoking, while losing the things you .don’t____ Cigarettes, you’ve met your match”; (3) an advertisement that invited consumers to “[s]tart a new relationship.... You get to keep the things you like about cigarettes while losing the things you don’t”; (4) an advertisement stating that NJOY Kings “provide[ ] everything you like about smoking without the things you dbn’t”; (5) an advértisement stating: “Try something new in bed. Finally smokers have a real alternative ... What’s not to love? Cigarettes, you’ve met your match”; and (8) an advertisement that stated: “Turning New York City into the City that Never Smokes” above the statement “Cigarettes, you’ve met your match.”.

Plaintiffs contend that an advertisement with the caption “Resolution Solution”1 was also false and misleading because it represented that NJOY e-cigarettes are a smoking cessation aid when, in fact, they are not.' Finally, they assert that an NJOY commercial titled “Friends Don’t Let Friends Smoke,” which first aired in January 20Í4, would cause a reasonable consumer to beliéve that “friends don’t let friends smoke” because of the health risks associated with traditional cigarettes, suggesting that e-cigarettes do not pose similar health risks.' ’

NJOY’s Website: Plaintiffs allege that NJOY’s website contains multiple materially false and misleading statements concerning the ingredients in e-cigarettes. Specifically, they assert that NJOY’s representations that propylene glycol, glycerin, nicotine, and natural and artificial flavors are recognized as safe for use in food or occur naturally in plants and food creates the false and misleading impression that they are safe for inhalation, when the FDA has not recognized them as safe for that purpose. Plaintiffs also allege that NJOY’s representations on its website about “regulatory compliance” misstate various district court and appellate rulings concerning its marketing practices, and mislead consumers by implying that the FDA or courts have approved NJOY’s past advertising, or .changes to its advertising that post-date the opinions.

Plaintiffs concede that NJOY had modified its website as of the date of the filing of their complaint; they contend, however, that it remains deceptive. For example, the website purportedly states that propylene glycol “provides the vapor mist that looks like tobacco smoke” without mentioning its adverse health consequences.

Finally, plaintiffs assert that NJOY knew its advertising campaign would convey to reasonable consumers that its products were safer than traditional cigarettes. • On July 26, 2012, NJOY’s executive vice president, Roy Anise, purportedly stated in an email that the company’s marketing “strategy separates NJOY from cigarettes, makes NJOY the solution, [and] will get across the ‘safer’ message.” For this reason, plaintiffs allege that NJOY and its agents intended that consumers read a safety message into its advertisements.

C. The Individual Plaintiffs and Class Claims

Halbertstam purportedly saw NJOY’s packaging and read the warnings prior to purchasing its e-cigarettes. Plaintiffs allege that Halberstam has subscribed to Rolling Stone magazine since approximately June 2012, and that he saw the NJOY advertisement that ran in Rolling Stone between December 2012 and January 2013. Halberstam also purportedly read Sports Illustrated and ESPN Magazine between December 2012 and early 2013, and saw NJOY’s “Resolution Solution” and “Try Something New in Bed” advertisements. Halberstam purchased NJOY Kings in September 2013 in Los Angeles, California; he allegedly purchased five packages of e-cigarettes intermittently on other occasions. Plaintiffs assert that, relying on NJOY’s core marketing message, Halberstam purchased the e-cigarettes because he believed them to be safe. They contend Halberstam would not have purchased NJOY e-cigarettes had he known about the potentially harmful side effects.

Halberstam alleges two claims on his behalf and on behalf of a California class: (1) violation of the, California Consumers Legal Remedies Act (“CLRA”), California Civil Code §§ 1770(a)(5), (a)(7), and (a)(9); and (2) violation of California’s Unfair Competition Law (“UCL”), California Business and Professions Code § 17200 et seq.

Thomas purchased one NJOY “OneJoy” e-cigarette in Jacksonville, Florida, in the summer of 2012. Plaintiffs allege . that Thomas saw NJOYs packaging and read the warnings prior to making the purchase; they assert she believed that the only risks associated with NJOY e-cigarettes were those disclosed on the packaging, and that e-cigarettes were generally safer than traditional cigarettes. Thomas alleges a single claim on her behalf and on behalf of a Florida class for violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), § 501.201, Florida Statutes, et seq.

D. Plaintiffs’ Request for Judicial Notice

Plaintiffs filed a request for judicial notice along with their reply in support of class certification. In it, they ask the court to take judicial notice of an amicus curiae brief of economists Robert Solow and George Akerlof filed in support of plaintiffs-appellees in Price v. Philip Morris, 219 Ill.2d 182, 302 Ill.Dec. 1, 848 N.E.2d 1 (2005). NJOY- does not oppose the request.

Under Rule 201 of the Federal Rules of Evidence, “the [c]ourt may take judicial notice of matters of public record if the facts are not subject to reasonable dispute.” Olds v. Metlife Home Loans, No. SACV 12-55 JVS' (RNBx), 2012 WL 10420298, *1 n. 1 (C.D.Cal. Mar." 19, 2012) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001)). Court orders and filings are proper subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir.2007) (noting that a court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006) (taking judicial notice of pleadings, memoranda, and other court filings); Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n. 1 (9th Cir.1996) (court may take judicial notice of pleadings and court orders in related proceedings). Courts have taken judicial notice of amicus briefs in other actions under Rule 201 as court records. See Natural Resources Defense Council v. Southwest Marine, Inc., 39 F.Supp.2d 1235, 1236 n. 1, (S.D.Cal.1999) (“The Court takes judicial notice of ... the U.S. Government’s amicus curiae brief in the same matter.- As the. brief is not a ‘fact,’ legal or adjudicative, but only legal argument, Fed. R. Evid. 201 is not a bar”), aff'd, 236 F.3d 985 (9th Cir.2000); Gooden v. SunTrust Mortg., Inc., No. 2:11-CV-02595-JAM, 2013 WL 6499250, *2 (E.D.Cal. Dec. 11, 2013) (taking judicial notice of an amicus curiae brief on the grounds that the brief is not a fact, “but only legal argument”). The court therefore grants plaintiffs’ request for judicial notice.

II. DISCUSSION

A. Motions to Strike and Evidentiary Objection^

. Before addressing the merits of the certification motion, the court must first consider the parties’ challenges to declarations filed by their respective experts. NJOY contends that the expert declarations of Thomas Maronick and Jeffrey Harris, .which plaintiffs.submitted.in support of their motion for. class certification, should be .stricken because they are.inadmissible and unreliable. Plaintiffs counter that the Maronick and Harris declarations are admissible expert testimony. They object to the declaration of Carol Scott, NJOY’s rebuttal economic expert.

1. Motions, to Strike the Testimony of Plaintiffs’ Experts

The court first considers NJOY’s challenges to plaintiffs’ experts. While courts in this circuit previously held that expert testimony was admissible in evaluating class certification motions without conducting'a rigorous analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court in Dukes expressed “doubt that this [was] so.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2554, 180 L.Ed.2d 374 (2011). After Dukes, the Ninth Circuit approved analysis under Daubert1 of the admissibility of expert testimony presented in support of or opposition to a motion for class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) (“In its analysis of Costco’s motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert ...”). • As a result, the court applies that standard to the proffered testimony of the parties’ expert witnesses.

Under Rule 702,

“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness' has applied the principles and methods reliably to the facts of the case.” Fed, R. Evid. 702.

See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (“[Rule 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a.reasonable opinion”); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (“There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy” (citations omitted)).

Before admitting expert testimony, the trial court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see also Ellis, 657 F.3d at 982 (“Under Daubert, the trial court must act as a ‘gatekeeper’ to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability' standards by making a preliminary determination that the expert’s testimony is reliable”). In conducting this preliminary assessment, the trial court is vested with broad discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Espinosa, 827 F.2d 604, 611 (9th Cir.1987) (“The decision to admit expert testimony is committed to the discretion of the district court and will not be disturbed unless manifestly erroneous”).

“The party offering the expert bears the burden of establishing that Rule 702 is satisfied.” Sundance Image Tech., Inc. v. Cone Editions. Press, Ltd., No. CV 02-2258 JM (AJB), 2007 WL 935703, *4 (S.D.Cal. Mar. 7, 2007) (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (in turn citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786)); see also Walker v. Contra Costa County, No. C 03-3723 TEH, 2006 WL 3371438, *1 (N.D.Cal. Nov. 21, 2006) (same, citing Bourjaily v. United States, 483 U.S. 171, 172, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), and In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994)).

“In determining whether expert testimony is admissible under Rule 702, the district court must keep in mind [the rule’s] broad .parameters of reliability, relevancy, and assistance to the trier of fact.” Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir.1998) (internal quotation marks omitted); see also Jinro Am. Inc. v. Secure Invests., Inc., 266 F.3d 993, 1004 (9th Cir.2001) . (“Rule 702 is applied consistent with the ‘liberal thrust’, of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony” (internal quotation marks omitted)). On a motion for class certification, it is not necessary that expert testimony resolve factual disputes going to the merits' of plaintiffs claims; instead, the testimony must be relevant in assessing “whether there was a common pattern and practice that could affect the class as a whole.”. Ellis, 657 F.3d at 983.

a. Plaintiffs’ Expert Jeffrey Harris

Jeffrey Harris is plaintiffs’ economic expert. Harris is a Professor of Economics at Massachusetts Institute of Technology (“MIT”). He has been a tenured full professor since 1998, and regularly teaches courses in health economics and microeconomics. He holds a Ph.D. in Economics from the University of Pennsylvania, an M.D. from the University of Pennsylvania, and a bachelor of arts degree from Harvard University. Harris has testified as an expert in federal and state courts, and before U.S. Congressional committees; he has also advised numerous government agencies, and served as an invited member of the National Academy of Sciences, where he was a contributor and senior reviewer of the U.S. Surgeon General’s reports on smoking and health in 1979-83, 1986, 1988, 1989, and 1996.

NJOY contends that Harris’s declaration is unreliable - under Dauberb for two reasons. First, it asserts-that Harris assumes the price premium associated with the misleading statements can be calculated by relying on other surveys' and not conducting his own. Second, it argues that Harris’s model is unreliable because it fails to provide a restitutionary measure of damages, i.e., benefit of the bargain damages. The court addresses each contention in turn.

(1) Whether Harris Can Calculate a Price Premium

Harris opines that a “reasonable consumer would be willing to pay a price premium for the perceived- value of [NJOY’s] safety claim,” and that

“[t]here are scientifically reliable methods to measure the price premium that class members - paid for the perceived value of the safety claim during the class period.... In combination with data on Defendant’s sales to class members dur- ■ ing the class period, the estimates of the price premium paid for Defendant’s safety claim can -be used to calculate class-wide damages.”

Harris asserts it is possible to determine the damages attributable to NJOY’s purportedly false safety claims by using “conjoint analysis.”

NJOY challenges Harris’s declaration on a number of bases. First, it contends that Harris relies on a “demonstrably false factual premise,”. i.e., that NJOY’s advertising campaign began in 2007 and that the advertisements were widespread. Harris states in his declaration:

“Plaintiffs’ counsel have asked me to assume that beginning in 2007, and con■tinuing during the class period, [NJOY] ‘has engaged in a consistent and pervasive marketing campaign that promotes its core marketing message that NJOY E-Cigarettes are known to be safer than traditional tobacco cigarettes or generally safe.’ Prefer to this core marketing message as the [ ] safety claim.”

NJOY asserts it “did not begin advertising its products until December 2012 (not 2007), and even • then, [its] market was disparate and the ads were limited in duration.” In Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387 (Fed.Cir.2003), the- Federal Circuit considered somewhat similar facts. Defendants filed a motion in limine to exclude plaintiffs expert testimony regarding damages alleging, inter alia, that the expert relied on “insufficient facts or data.” Id. at 1392-93. Respecting the contention that the expert had relied on insufficient facts, the court noted that “it is not the role bf the trial court to evaluate the correctness of [the] facts underlying one expert’s testimony.” Id. at 1392. Moreover, the Advisory Committee notes to Rule 702 concerning the 2000 amendment explains that the addition of a requirements that the expert’s testimony be based on “‘sufficient facts or'data’ [was] not intendéd to authorize a trial court to exclude an expert’s testimony on the ground that the court believes one version of the facts and not the other.” Thus, “when the parties’ experts rely on conflicting sets of facts, an expert may testify on his party’s version of the disputed facts.” DSU Med. Corp. v. JMS Co., 296 F.Supp.2d 1140, 1147-48 (N.D.Cal.2003) (citing Lextron, 317 F.3d at 1392). All that NJOY has shown is that, under its view of the facts, Harris’s testimony may not be convincing; that is not a valid basis for excluding Harris as an expert. The court therefore declines to do so. See IGT v. Alliance Gaming Corp., No. 2:04 CV 1676 RCJ RJJ, 2008 WL 7071468, *14 (D.Nev. Oct. 21, 2008) (“When the parties’ experts rely on conflicting sets of facts, an expert may testify on his party’s version of the disputed facts. For the foregoing reasons, Dr. Adams’s expert opinion is not improper under Rule 702”); Fresenius Med. Care Holdings, Inc. v. Baxter Int’l, Inc., No. C 03 1431 SBA, 2006 WL 1390416, *7 (NJD.Cal. May 18, 2006) (“Thus, all that Baxter has shown is that, under Baxter’s interpretation of the facts, Dr. Rubinfeld’s testimony regarding the 2008K may not be convincing. However, ‘[w]hen, as "here, the parties’ experts rely on conflicting sets of facts, it is not the rolé of the trial court to evaluate the correctness of facts underlying one expert’s testimony.’ As such, Baxter has not convincingly established that this is a valid basis for excluding Dr. Rubinfeld as an expert”); see also Nova Consulting Group, Inc. v. Engineering Consulting Servs., Ltd., 290 Fed.Appx. 727, 733 (5th Cir. Aug. 22, 2008) (Unpub.Disp.) (“ECS, however, cites nothing to show any of those assumptions render an expert’s opinion unreliable in these circumstances. Moreover, [w]hen, as here, the parties’ experts rely on conflicting sets of facts, it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony. Rather, [vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky -but admissible evidence” (internal quotation marks omitted)). Second, NJOY contends that Harris’s'opinion that a “reasonable consumer would be willing to pay a price premium for the perceived value of the [ ] safety claim,” is flawed because he did not conduct an independent survey or analysis to reach that conclusion. NJOY contends this is “contrary to . sound scientific- practice,” and that Harris “did not ‘demonstrate that he followed a scientific method embraced by at least some other experts in the field.’ ” Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D. 534, 547 (C.D.Cal.2012) (quoting Cabrera v. Cordis Corp., 134 F.3d 1418, 1423 (9th Cir.1998)). The court does not agree.

NJOY is correct that Harris did not' conduct a survey to determine whether a reasonable consumer would be willing to pay a price premium for the perceived value of a ■ safety claim. This does not automatically render his opinion or" methodology unreliable,' however. “An expert is of course permitted to testify to an opinion formed on the basis of information that is handed to rather than developed by him — information of which • he lacks first-hand knowledge and which might not be admissible in evidence no matter by whom presented.” See Matter of James Wilson Associates, 965 F.2d 160, 172-73 (7th Cir.1992). Harris cites previously conducted surveys to support his conclusion that a reasonable consumer would be willing to pay a price premium for the perceived value of a safety claim. He explains that “Economists have used the concept of willingness to pay to measure the price premium that consumers would be willing to pay for improved products or product attributes,” and further opines that such a conclusion is even more applicable in the context of e-cigarettes, “as reasonable consumers cannot directly evaluate claims that [e-cigarettes] are safe or safer than conventional tobacco cigarettes.” The studies he cites thus confirm that Harris did “followü a scientific method embraced by at least some other experts in the. field.” Cholakyan, 281 F.R.D. at 547.

Harris relies on several economic studies involving tobacco smokers, each of which found that consumers were willing to pay a price premium for purported health and safety improvements. He cites (1) a Taiwanese study that found-'cigarette smokers were willing to pay a 152% increase over the average price of a pack of cigarettes for cigarettes that had a 50% lower risk of lung cancer; (2) a Swedish study that found smokers were willing to pay the equivalent of 29% to 121% of the price of a pack of premium cigarettes for a pack of “risk-free” cigarettes; and (3) a study that found 84% of smokers were willing to pay $50 per week ($20 per week more than the price of a nicotine patch) for a treatment that offered twice as great a chance they would successfully quit smoking than a nicotine patch. NJOY does not contend, nor would it appear that it could, that Harris lacks “the requisite scientific background and familiarity with survey methodologies]” to understand the surveys on which he relies. See Elliot v. Google Inc., 45 F.Supp.3d 1156, 1168 (D.Ariz.2014). Far from demonstrating a fundamental flaw, in his methodology, therefore, the studies support Harris’s conclusion that a reasonable consumer would be willing to pay a price premium based on the perceived health benefits of e-cigarettes. .

Harris also notes that NJOY’s internal records suggest it has focused its marketing of e-eigarettes on the claim that they are. “ultimately better than, a cigarette, without the harm.” For example, a June 2013 internal document titled “Brand Strategy and TV Brainstorm Session 5.28: Notes and Outcome” observes that “[f|or 75 years there hasn’t been a solution to the problem of smoking, Now there’s the NJOY King Electronic Cigarette. If you’re a smoker or have a loved one that smokes ... finally there is a real alternative.” These documents indicate that NJOY knows consumers are willing to pay a price premium for a healthier alternative to traditional tobacco cigarettes. Thus, Harris’s opinion that a price premium can be calculated is supported not only by third party studies, but by NJOY’s own marketing documents as well.

NJOY repeatedly cites Cholakyan, 281 F.R.D. at 547, as support for its assertion that Harris was required to conduct a survey to determine if consumers are willing to pay a price premium for a healthier smoking alternative. Cholakyan does not hold that a survey is required, and it is readily distinguishable. There, an expert declaration “incorporate^] wholesale the results of two investigations conducted at the request of State Farm Insurance Company.” 281 F.R.D. at 547. The court noted that .“the fact that [the expert] quote[d] extensively from the reports indi-eate[d] not that he [wa]s using them, to confirm the validity of his opinions, but rather that he [sought] to serve as a mouthpiece for others.” Id. The declaration therefore • “offer[ed] no independent analysis or -opinion,” and was unreliable. Id. Here, there is no indication that Harris simply lifted.his opinions wholesale from the work of others. - He offers an in-depth discussion as to how, using conjoint analysis and direct method analysis, plaintiffs can isolate the price premium attributable to NJOY’s purported misstatements.

In sum, Harris’s conclusion that a price premium can be calculated is not unreliable, nor is it the result; of impermissible reliance on the opinions of other experts.

(2) Whether Harris’s Conjoint Analysis and Direct Method Analysis Are Sufficiently Reliable for Purposes of Daubert

NJOY next asserts that plaintiffs’ damages model is not tied to their theory of liability, and thus runs afoul of the Supreme Court’s decision in Comcast Corp. v. Behrend, — U.S.-, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). Harris proposes to calculate damages using either conjoint or direct method analysis. “Conjoint analysis is a statistical technique capable of using survey data to determine how consumers value a product’s individual attributes — often called the market’s willingness to pay.” Saavedra v. Eli Lilly & Co., No. 12-CV-9366-SVW, 2014 WL 7338930, *4 (C.D.Cal. Dec. 18, 2014), leave to appeal denied (Mar. 25, 2015). As Harris explains, “[i]n .conjoint analysis, survey respondents are asked to make a series of choices between different combinations of product attributes — Combining the responses to all of the choice sets, the analyst can then use established statistical methods to estimate the separate válue (or part-worth) that consumers attach to each product attribute.” He states that “[w]ith respect to the price attribute, the alternative levels can be expressed either in dollar units or in percentage terms.” Harris contends that using a percentage makes more sense, given that the purchase price of NJOY e-cigarettes varied from year to year. Thus, once the price premium for fhe safety messages is isolated, the resulting price premium attributable to the safety claim can be computed as a percentage, of the purchase-price — i.e., the safety message; was “worth” X% of the purchase price.

Direct method analysis is substantially similar. “In the direct method, representative members of the class are directly asked what they would be willing to pay for additional safety.” Thus, like conjoint analysis, this method employs “valuation surveys to measure .consumers’ willingness to pay for private and public goods that could improve their personal health.” Harris states that .survey respondents are asked to calculate.the price premium attributable to NJOY’s safety message by choosing between various safety profiles. Respondents who would buy an e-cigarette without a safety message are assigned a discount of 0 percent, reflecting a willingness to pay of 100%. Respondents who prefer a product with a safety message are asked a series of questions to ascertain their willingness to pay for the product in the absenceof the safety claim, i,e., “would you be -willing to pay 10% less for the product without' the claim;” etc. The price premium attributable to the safety claim can then be computed as the average discount across respondents.

-NJOY asserts that courts have “rejected [Harris’s] type of methodology for calculating damages” because “it fails to incorporate data regarding market pricing of the products at issue.” Whether or not NJOY’s argument has merit, it “does not affect the admissibility of [Harrises opinions. Admissibility turns on whether [Harrises methodology is sufficiently reliable; whether it satisfies Comcast and shows that a class should be certified is another question altogether — one which the court will address infra in conducting a Rule 23(b)(3) predominance analysis.” In re ConAgra Foods, Inc. (“Conagra II ”), 90 F.Supp.3d 919, 946, 2015 WL 1062756, *7 (C.D.Cal.2015); In re Processed Egg Products Antitrust Litig., 81 F.Supp.3d 412, 436, 2015 WL 337224, *22 (E.D.Pa.2015) (“Without making any pronouncements about the ultimate ability of Direct Purchaser Plaintiffs to clear the Comcast bar, the Court notes simply that, for Daubert purposes at least, the model proposed by Dr. Rausser is reliable and fits the case”).

In fact, none of the cases NJOY cites find an expert’s methodology unreliable for purposes of Daubert. Two — which involve class actions — address the adequacy of the damages methodology in light of Comcast under Rule 23(b)(3). See ConAgra II, 90 F.Supp.3d at 946-48, 2015 WL 1062756, at *7 (expressly declining to- conflate reliability under Daubert with whether a class should be certified under Comcast); Saavedra v. Eli Lilly & Co., No. CV 12-9366 SVW, 2014 WL 7338930, *7 (C.D.Cal. Dec. 18, 2014) (“For all of these reasons, Plaintiffs[ ] have failed to present a method of calculating damages that is tied to their theory of liability. The Court therefore DECLINES Plaintiffs motion to certify a damages class under Rule 23(b)(3)”), leave to appeal denied (9th Circ. Case No. 15-80000 Mar. 25, 2015).

The third decision NJOY cites concerns a preliminary injunction. See Apple, Inc. v. Samsung Electronics Co., No. CV 11-01846 LHK, 2014 WL 976898, *11 (N.D.Cal. Mar. 6, 2014), appeal dismissed (Fed. Cir. Case No. 14-1368 July 30, 2014). The court concluded that the expert’s “survey d[id] not provide a way to directly compare consumers’ willingness to pay for particular features to the overall value of the infringing devices” because it “measure[d] the market demand for the patented features in a vacuum, without relation to the actual price or value of the devices.” Id. The court made this observation, however, in “weighing the persuasiveness of [the expert’s] survey as evidence of causal nexus,” and expressly noted that it was not conducting a Daubert analysis. Id. at *13 (“Here, of course, the Court is not addressing a Daubert challenge”). Thus, although each of these decisions is unquestionably relevant in assessing whether plaintiffs have shown that they can prove damages on a classwide basis, they do not support striking Harris’s declaration as unreliable under Daubert.

NJOY makes one further argument. It asserts that even if Harris’s opinion that consumers would pay a price premium for a healthier smoking alternative is methodologically sound, it is nonetheless unreliable because he does not account for the fact that some (or perhaps many) class members did not see or rely on NJOY’s marketing, or account for possible changes in consumer perceptions. The court does not agree that any of these alleged flaws render the methodology unreliable under Daubert.

First, plaintiffs’ theory of liability rests on allegations that NJOY engaged in mass marketing for a number of years and during that time employed substantially the same false and/or misleading safety message. Harris states in his declaration that he has assumed that plaintiffs’ argument in this regard is true. In this regard, therefore, it appears Harris has remained true to the Supreme Court’s mandate in Comcast that the damages calculation be tied to the plaintiffs’ theory of liability. His theory is not unreliable because it does not account for persons who may not have seen NJOY’s advertisements. He was told to presume that the advertisements had been seen, a fact plaintiffs will have to prove to prevail on the merits. If, as NJOY contends, it turns out that many class members never saw the advertisements, then plaintiffs’ theory of liability may prove unworkable. That such a result is possible, however, does not make Hams’s opinion unreliable.

More fundamentally, NJOY does not seriously contend that Harris’s method fails to comport with accepted principles, or that his analysis is irrelevant to the issues in the case. Rather, it challenges - the weight that should be given to his testimony.

For all these reasons, the court declines to strike Harris’s declaration.

b. Plaintiffs’ Expert Thomas Maronick

NJOY also contends that the declaration of plaintiffs’ expert Thomas Maronick should be stricken because it is unreliable and thus, inadmissible under Daubert. Maronick proffers opinions as to whether NJOY’s purported misrepresentations were material to a reasonable consumer. Maronick is Professor of Marketing in the College of Business and Economics at Towson University in Tow-son, Maryland, where he teaches undergraduate and graduate courses in strategic marketing and marketing research; he has previously taught graduate and executive development courses in marketing, consumer behavior, and marketing research at a number of universities in the Baltimore and Washington DC area. His “educational background includes a BA in Philosophy from St. Thomas Seminary, an MSBA from the University of Denver, and a Doctorate in Business Administration [ ] from the University of Kentucky with a major in Marketing.” He also holds a JD from the University of Baltimore, School of Law.

Maronick conducted an online survey to determine what messages consumers take from NJOY’s advertising in order to assess the extent to which consumers found the safety message material. The universe for the survey" “was a sample of individuals 18' or older who live in the United States and have smoked [e]-[c]iga-rettes in the past three months and have tried NJOY [eRejigarettes” in the past. “[Pjanel members who met the initial age criteria were sent an email message inviting them to participate in an online survey by clicking on a link included with the email invitation. There was no mention of the topic of the survey in the email invitation. Respondents who clicked the link, i.e.,' agreed to participate in the online survey, were first asked screening questions to determine that they smoked [ej-[cjigarettes and specifically ha[d] tried NJOY brand [eRejigarettes.” Qualified respondents were then randomly assigned to one of four “blocks.” Two of the blocks saw images of an NJOY print advertisement (“Resolution Solution” or “Try Something New in Bed”), one saw a 60-second television ad for NJOY E-Cigarettes (“Friends Don’t Let Friends Smoke”), and the final block saw the front and back panel of a package of NJOY King e-cigarettes; no respondent was . assigned to more than one block or asked about the images from more than one block.

Respondents in each of the three advertising blocks (i.e., the print advertisements and commercial) were asked an open-ended question: “What does the ad say or suggest' about NJOY E-Cigarettes?” Their verbatim responses was recorded. They were then asked a closed-ended question: “Which of the following, if any, were said or suggested in the ad about NJOY E-Cigarettes?” Respondents who said the advertisement said or suggested the NJOY [e]-[c]igarettes were either “safe for your health” or “safer for your health than traditional tobacco cigarettes” were then asked: “How important, if at all, is it that NJOY [e]-[c]igarettes are safe (or safer) for your health in a person’s decision to smoke NJOY [e]-[c]iga-rettes[?j” The options ranged from “Very important” to “Not at all important.” Finally, respondents in each of the two print advertisement blocks were shown the ad a second and third time, with specific claim? highlighted and asked what the claims said or suggested about NJOY e-cigarettes. Their verbatim responses were recorded.

Respondents randomly assigned to the commercial blóek were directed to watch the video and then asked: “The NJOYad says ‘Friends don’t let friends smoke.’ Based on what is said or suggested in the ad, what is the reason why ‘Friends don’t let friends smoke?’ ” Their verbatim responses were recorded. They were then asked the same questions as respondents in the print advertisement block concerning the message communicated by the commercial and the same importance questions. Finally, they were asked to interpret the “cigarettes you’ve met your match” claim.

Respondents randomly assigned to the “package block” were shown the front and back label of an NJOY Kings package and asked: “Does the label say or suggest anything about the ingredients in NJOY [e]-[c]igarettes?’ ” Those respondents who said “Yes” were shown a list of ingredients and asked: “Based on what is said or suggested on the label, which of the following ingredients, if any, do you believe are in NJOY [e]-[c]igarettes?” The list included four ingredients found in NJOY e-cigarettes, namely “Nicotine,” “Propylene glycol,” “Glycerin,” and “Flavoring”; respondents were also given “an option to specify other ingredients the[y] ... believed were in NJOY [e]-[c]igarettes. They were then asked: “If there are health risks associated with the ingredients in NJOY E-Cigarettes, other than those listed on the NJOY E-cigarette package, how important, if at all, would it be to you that those ingredients also be listed on the NJOY package?” Possible answers ranged from “Very important” to “Not at all important.” A total of 601 respondents completed the survey, and Harris compiled the results in various tables and tabulated percentages attributable to the various responses.

A survey is admissible provided it is: (1) “conducted according to accepted principles”; and (2) “relevant” to the issues in the case. Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir.2010). As the Ninth Circuit has repeatedly held, “[Challenges to survey methodology [typically] go to the weight given the survey, not its admissibility.” Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir.1997). See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n. 8 (9th Cir.1997) (“However, ‘as long as they are conducted according to accepted principles,’ survey evidence should ordinarily be found sufficiently reliable under Dau-bert. Unlike novel scientific theories, a jury should be able to determine whether asserted technical deficiencies undermine a survey’s probative value,” quoting Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1292 (9th Cir.1992)); id. at 1143 (the fact that a survey that was conducted only in the southern portion of the state and asked leading questions went to the weight of the evidence, not the admissibility of the survey); see also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir.2001) (“Treatment of surveys is a two-step process. First, is the survey admissible? That is, is there a proper foundation for admissibility, and is it relevant and conducted according to accepted principles? This threshold question may be determined by the judge. Once the survey is admitted, however, follow-on issues ' of methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility. These are issues for a jury or, in a bench trial, the judge”); ConAgra II, 90 F.Supp.3d at 949, 2015 WL 1062756, at *8 (“The Ninth Circuit has held thát typically ‘[c]hallenges to survey methodology go to the weight given the survey, not its admissibility'”); Alcantar v. Hobart Serv., No. ED CV 11-1600 PSG (SPx), 2013 WL 156530, *4 (C.D.Cal. Jan. 15, 2013) (“[A]ny problems with the response rate affect the weight, and not the admissibility of the study”); Microsoft Corp. v. Motorola Inc., 904 F.Supp.2d 1109, 1120 (W.D.Wash.2012) (concluding that criticisms of an expert’s conjoint analysis concerned “issues of methodology, survey design, reliability, and critique of conclusions, and therefore [went] to the weight of the suiwey rather than admissibility”); Harris v. Vector Marketing Corp., 753 F.Supp.2d 996, 1001-02 (N.D.Cal.2010) (“[Plaintiff] criticizes the content of the survey conducted and prepared by [defendant’s expert] as well as the response rate to the survey. The problem for [Plaintiff] is that, as she herself admits in her brief, even challenges to defects in methodology normally affect the weight to be accorded the survey and not its admissibility”); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F.Supp. 1283, 1296 (N.D.Cal.1991) (holding that the alleged under-inclusiveness of a survey in a copyright infringement action affected “the weight of the suiwey, not its admissibility”), aff'd, 964 F.2d 965 (9th Cir.1992). NJOY challenges Maronick’s declaration on a number of grounds. None has any merit.

First, NJOY asserts that Maron-ick’s survey does not utilize a control group or include proper control questions to account for preconceived notions that consumers might have about NJOY’s products. It also contends that Maronick improperly defined the target audience. As a result, NJOY contends, the entire survey is inherently unreliable. Each of the concerns NJOY raises relates to “[t]echnical unreliability!, which] goes to the weight accorded a survey, not its admissibility.” E. & J. Gallo Winery, 967 F.2d at 1292 (quoting Prudential Ins. Co. v. Gibraltar Fin. Corp., 694 F.2d 1150, 1156 (9th Cir.1982)); PixArt Imaging, Inc. v. Avago Tech. Gen. IP (Singapore) Pte. Ltd., No. CV 10-00544 JW, 2011 WL 5417090, *5 (N.D.Cal. Oct. 27, 2011) (“Pix-Art contends that the survey and resulting analysis should nonetheless be excluded because the survey: (1) fails to address the correct universe; (2) fails to use a sample of a representative population; (3) improperly skews the survey over time; and (4) fails to use a control group. The Court finds, however, that these are precisely the sorts of technical considerations that affect only the weight, and not the admissibility of a survey. In addition, each other alleged deficiency is precisely the sort of deficiency that juries are expected to evaluate in assessing the probative value of a survey. Thus, the Court finds that all of PixArt’s objections go to the weight of Egan’s testimony and not its admissibility”); see Moroccanoil, Inc. v. Marc Anthony Cosmetics, Inc., No. CV 13-02747 DMG (AGRx), 2014 WL 5797541, *9 (C.D.Cal. Oct. 7, 2014) (“In any case, the lack of a control group alone does not render a confusion survey so fatally flawed as to be inadmissible”); Mattel, Inc. v. MCA Records, Inc., 28 F.Supp.2d 1120, 1135 (C.D.Cal.1998) (“Defendants also object that plaintiff did not use a control group to take account of those respondents who are confused ‘regardless of the stimuli present.’ ... Although the survey contains flaws, ‘technical unreliability’ goes to the weight the Court is to afford the survey, rather than its admissibility”) aff'd, 296 F.3d 894 (9th Cir.2002). In addition, Maronick used other methods to prevent bias, e.g., including “none of the above,” “don’t know/can’t recall” and “other” as possible answers to closed-ended questions. This mitigates the significance of his decision not to employ other controls.

The cases cited by NJOY do not compel a different conclusion. In Brighton Collectibles, Inc. v. RK Texas Leather Mfg., 923 F.Supp.2d 1245, 1257-58 (S.D.Cal.2013), the court excluded a handbag trade dress confusion survey that included a “line-up in which only one bag share[d] the most prominent and eye-catching features — two colors ánd silver hearts — [and this] improperly suggested to the participants that [defendants’ bag was the ‘correct’ answer.” Id. at 1257. After reaching this conclusion, the court noted that the “problem was exacerbated because [the expert] did not use a control to test the accuracy of his survey.” Id. at 1257-58. See also THOIP v. Walt Disney Co., 690 F.Supp.2d 218, 241 (S.D.N.Y.2010) (“Because the Ford Survey failed to replicate actual marketplace conditions in which consumers encountered the products at issue here and failed to use an adequate control, it is not a reliable indicator of consumer confusion. Accordingly, the Ford Survey is inadmissible”). Unlike in Brighton, there is no basis for concluding that Maronick’s survey suggested which answer was “correct.” In fact, NJOY maintains that Maronick’s survey results are so weak they do not even suggest materiality. Brighton is therefore inappo-site because the fact that the survey in that case was improperly suggestive was exacerbated by the fact there was no control group; lack of a control group alone was not a basis for exclusion. Similarly, in THOIP, the issue was not simply lack of a control group, but the fact that the consumer confusion survey failed to replicate market conditions. Neither ease supports NJOY’s assertion that lack of a control group alone renders a survey inadmissible.

NJOY’s motion to strike Maronick’s declaration really addresses the merits of plaintiffs’ certification motion rather than the motion to exclude under Daubert. Addressing questions Maronick áskfed regarding the results of NJOY’s; “Return the Favor” television advertisement, NJOY asserts that his control or validation question was wrong.' His survey design permitted respondents to answer questions concerning the advertisement only if they indicated that they had heard the phrase “friends don’t let friend’s smoke” in the commercial. NJOY ‘takes issue with Harris’s choice of a validation question because it “is spoken in under two seconds towards the latter half of the sixty-second spot, and is not displayed on screen.” It contends this renders the survey flawed because Maronick could have used a timer to detect whether respondents watched the whole video, or could have asked respondents whether they saw or heard the statement “cigarettes, you’ve met' your match” — a voiceover line that was displayed on screen at the end of the commercial twice as long as the “friends don’t let friend’s smoke” statement. This argument may well convince a jury. Whether the control question was the best or most fitting question, however, does not require exclusion of Maronick’s opinion under Daubert.

NJOY also maintains that the sample size of the televison commercial block — 91 respondents — is too small. Courts have found, comparable sample sizes sufficiently reliable to warrant admission of an opinion under Daubert. Fujifilm Corp. v. Motorola Mobility LLC, No. 12 CV 03587 WHO, 2015 WL 1737951, *10 (N.D.Cal. Apr. 8, 2015) (“Motorola argues[, inter alia, that] .the September 2011 Survey is irrelevant and unreliable because (i) its 122 person sample size ‘is not big enough to be statistically significant.’... Each of these challenges goes to weight, not admissibility”); In re Countrywide Financial Corp. Mort gage-Backed Securities Litig., 984 F.Supp.2d 1021, 1034 (C.D.Cal.2013) (“a 100 item sample size comprises sufficient data for a sample of a large population”); Lisa Frank, Inc. v. Impact Int'l, Inc., 799 F.Supp. 980, 994 (D.Ariz.1992) (stating that while the fact that only 32 persons were sampled reduced the evidentiary-weight accorded a survey, it was nonetheless of “some probative evidence”). NJOY’s concerns thus go to the weight of the evidence, not admissibility. See Fujifilm Corp., 2015 WL 1737951, at *10.

. The fact that NJOY has not raised a legitimate concern under Daubert is highlighted by its repeated citation of Procter & Gamble Co. v. Ultreo, Inc., 574 F.Supp.2d 339, 351 (S.D.N.Y.2008). The Ultreo court did not conduct a Rule 702 or Daubert analysis; neither the rule nor the case is mentioned. Rather, the court assessed the weight and credibility of survey evidence in determining whether to enter a preliminary injunction. Ultimately, the court “reject[ed] [the survey] as a basis to conclude that Ultreo’s allegedly false advertising [was] likely to mislead consumers ..., “given that “several of the responses 'to the [s]urvey reveal[ed] that respondents did in fact have preexisting beliefs concerning” the issues in the case, and that it used leading questions. Id. In deciding NJOY’s motions- to strike, the court is not assessing the weight or credibility of plaintiffs’ evidence. Thus, NJOYs serial attacks on the sufficiency of the evidence to support certification of a class are not relevant in assessing admissibility under Daubert.

NJOY also asserts that Maronick failed properly to disguise the survey selection criteria. Respondents were asked in an unbiased way what types of- tobacco products they used (i.e., traditional cigarettes or e-cigarettes); only those who identified e-cigarettes as a product they had used were directed to proceed. NJOY contends this is problematic because “a respondent would easily conclude.that the survey involved tobacco products and that they should check ‘yes’ to all products they purportedly used in the last three months.” It is unclear why NJOY is troubled by the fact that respondents knew the survey concerned tobacco products. Respondents were given a randomized list of fifteen brands of e-cigarettes, and those who said they had used e-cigarettes in the past three months, and NJOY at any time, were surveyed. NJOY does not argue that the survey improperly indicated to respondents that it concerned NJOY e-cigarettes, nor does the court discern any basis for such an argument. The fact that the survey purportedly suggested to respondents, from an early point, that it concerned tobacco products is not a reason to exclude the results as unreliable.

NJOY also 'complains that Maronick’s survey, although designed and analyzed by him, was carried out by a,third party survey company, Qualtrics.com. It cites no case law holding that surveys conducted by third parties are inherently “flawed” or unreliable, and the court has located none. What little case law there is on the subject in fact suggests there is nothing inherently problematic with having a survey conducted by a third party. Cf. Ortega v. Ogden Clinic Prof'l Corp., No. CV 13-0066 CW, 2014 WL 6751114, *1 (D.Utah Dec. 1, 2014) (relying on evidence from “retained a third-party health care consulting company t[hat] conducted] a patient survey”). More fundamentally, NJOY’s own expert — Kent Van Liere — also used a third party survey company to conduct his survey. And for his- part, Maronick contends that using internet panels such as those offered by Qualtrics.com is “a well-accepted approach in the field of consumer advertising and consumer research.” The court has no reason to conclude others wise.

Finally, NJOY appears to assert that Maronick’s survey fails to demonstrate that its advertising actually caused the consumer’s to be misled. The court need not resolve whether that is the case, however. This, of course, is not a reason to strike Maronick’s declaration under Dcm-bert. Indeed, it is not even a reason to deny plaintiffs’motion for class certification. “On a motion for class certification, it is not necessary that expert testimony resolve factual disputes going to .the merits of plaintiffs’] claim; instead, the testimony must be relevant in assessing ‘whether there was a common pattern and practice that could affect the' class as a whole.’ ” In re ConAgra Foods, Inc. (“ConAgra I ”), 302 F.R.D. 537, 549 (C.D.Cal.2014) (quo