Townsend v. Monster Beverage Corp. (303 F. Supp. 3d 1010, 2018)

Order (1) DENYING in part and GRANTING in part Defendants' Motion to Strike Stefan Boedeker's Expert Report and Testimony, (Doc. No. 109);

(2) DENYING in part and GRANTING in part Defendants' Motion to Strike Thomas Maronick's Expert Report and Testimony, (Doc. No. 110);

(3) DENYING in part and GRANTING in part Plaintiffs' Motion to Exclude Kent Van Liere's Expert Report, (Doc. No. 129);

(4) DENYING in part and GRANTING in part Plaintiffs' Motion to Exclude Keith Ugone's Expert Report, (Doc. No. 137 (redacted); Doc. No. 150 (unredacted) );

(5) DENYING Plaintiffs' Motion to Exclude Eva Lilja's Declaration, (Doc. No. 130);

(6) DENYING Plaintiffs' Motion for Class Certification, (Doc. No. 95)

Virginia A. Phillips, United States District Judge On June 26, 2017, Plaintiffs Matthew Townsend and Ted Cross (collectively, "Plaintiffs") filed their Motion for Class Certification. (Doc. No. 95 ("Motion").) Defendants Monster Beverage Corporation and Monster Energy Company (collectively, "Defendants" or "Monster") opposed the Motion on October 31, 2017, (Doc. No. 122 ("Opposition") ), and Plaintiffs replied on December 5, 2017, (Doc. No. 126 (Reply"); Doc. No. 134). Both parties also filed motions to strike or exclude testimony, expert reports, and declarations over the course of the briefing period, which are discussed in Section II below.

After consideration of the papers filed in support of, and in opposition to, the both parties' motions, as well as argument advanced at the March 19, 2018 hearing, the Court rules as follows.

I. BACKGROUND

A. Procedural Background

Plaintiffs bring this putative class action against Defendants, seeking redress for Monster's allegedly "unfair and deceptive business and trade practices on behalf of anyone who purchased for personal consumption any of the Monster-branded energy drinks sold under the Monster Rehab® brand name and the original Monster Energy®." (Doc. No. 51 ("Second Amended Complaint" or "SAC") ¶ 1.)

In the operative Second Amended Complaint, Plaintiffs allege six claims: (1) violations of California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq . ("UCL"); (2) violations of California's False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq . ("FAL"); (3) violations of California's Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq . ("CLRA"); (4) breach of express and implied warranty; (5) violations of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq . ; and (6) unjust enrichment. (See SAC.)

The Court dismissed Plaintiffs' Second Amended Complaint in its entirety on November 12, 2013. (Doc. No. 72.) Plaintiffs appealed the Court's ruling as to their first three claims-the UCL claim, FAL claim, and CLRA claim. (Doc. No. 89.) The Ninth Circuit affirmed the Court's dismissal of all claims by one of the named plaintiffs, Alec Fisher, all off-label claims, and the on-label claims related to caffeine-content. (Doc. No. 79.) The Ninth Circuit remanded for further proceedings Plaintiffs' UCL, FAL, and CLRA claims insofar as they challenge four specific on-label representations. (Doc. No. 79.) The court determined remand was appropriate because "[a]lthough the [four on-label] statements upon which Townsend and Cross relied were not strictly false, it is plausible that they were misleading, which is all that California law requires." (Doc. No. 79 at 4.)

This case now proceeds on the narrowed UCL, FAL, and CLRA claims, which Plaintiffs seek to bring as a class action in the instant Motion.

B. Factual Background

The four on-label representations that remain at issue are:

• "Hydrates Like a Sports Drink" ("Hydrates statement");

• "Re-hydrate;"

• "Consume Responsibly-Max 1 can every 4 hours, with limit 3 cans per day. Not recommended for children, people sensitive to caffeine, pregnant women or women who are nursing." ("Consume Responsibly statement"); and

• "It's an ideal combo of the right ingredients in the right proportion to deliver the big bad buzz that only Monster can." ("Ideal Combo statement")

(Mot. at 1-2.)

Plaintiffs allege these four statements are misleading for varied reasons. They claim that the Hydrates statement is misleading because "[t]o the extent that energy drinks, including Monster Drinks, have any hydrating qualities, they do not hydrate like a sports drink. Sports drinks contain water, salt and sugar, and are designed to replenish the electrolytes and energy one's body loses during exercise." (SAC ¶ 36 (emphasis in original).) Further, Plaintiffs aver the Hydrates and Re-hydrate statements are misleading because "consumption of [Monster Rehab drinks] as prescribed on the label could cause severe dehydration because the combination of caffeine and guarana in energy drinks acts as a diuretic." (SAC ¶ 111.) With respect to the Consume Responsibly and Ideal Combo statements, Plaintiffs allege both statements are misleading regarding "potential health risks associated with frequent consumption of Monster Drinks." (SAC ¶¶ 41, 113-14.)

Townsend avers that the Consume Responsibly statement led him to believe the drinks were "safe (or not unsafe)" to consume within the recommended limits. (SAC ¶ 24.) Similarly, Cross claims he understood the Ideal Combo and Consume Responsibly to mean the drinks were "safe (or not unsafe)" to consume within the recommended limits. (SAC ¶ 25.) Yet, despite their beliefs and understandings of the safety of Defendants' drinks, they both allege that consuming Defendants' drinks was injurious to their health. (SAC ¶¶ 24-25.) They both also both assert that they would not have paid a premium for Defendants' drinks if they knew the drinks exposed them to health risks. (SAC ¶¶ 24-25.)

Plaintiffs claim the challenged statements were uniformly made on the labels of particular types of Monster Drink cans. (Mot. at 1.) Specifically, they allege the Ideal Combo and Consume Responsibly statements appeared on Monster Energy's Original Green can, and the Hydrates, Re-hydrate, and Consume Responsibly statements appeared on relevant types of Monster Rehab cans. (Mot. at 1-2; Opp'n at 3.) The relevant types of Monster Rehab cans are Rehab Lemonade, Rehab Orangeade, Rehab Green Tea, Rehab Rojo Tea, and Rehab Protean. (Mot. at 1; Opp'n at 3.)

Plaintiffs contend the challenged statements were uniformly made and others were and are similarly affected by purchasing Monster Drinks at a premium for the marketed purpose. (SAC ¶¶ 70-82.) They thus seek to certify the following two classes under Federal Rule of Civil Procedure 23 :

(1) All persons who purchased the Original Monster Energy drink for personal use and not for resale from December 12, 2008 to the present ("Energy Class'); and

(2) All persons who purchased Monster Rehab Tea + Lemonade _ Energy, Monster Rehab Rojo Tea + Energy, Monster Rehab Green Tea + Energy, Monster Rehab Protean + Energy, and Monster Rehab Tea + Orangeade + Energy (collectively, "Monster Rehab") for personal use and not for resale from March 1, 2011 to the present ("Rehab Class").

(Mot. at 1.)

II. EVIDENTIARY MOTIONS AND OBJECTIONS

The Court first addresses the parties' evidentiary motions and objections in order to determine the scope of evidence to be considered in resolving the instant Motion for Class Certification. Defendants filed two Motions to Strike, (Doc. Nos. 109, 110), as well as Objections (Doc. No. 153). Plaintiffs filed three Motions to Exclude, (Doc. Nos. 130, 137, 153). These motions and objections are addressed in turn below.

A. LEGAL STANDARD FOR EXPERT WITNESSES

Federal Rule of Evidence Rule 702 governs the admissibility of expert testimony and provides,

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

In Daubert v. Merrell Dow Pharmaceuticals, Inc. , the Supreme Court announced that the trial court acts as a "gatekeeper" to the admission of expert scientific testimony and must ensure that all admitted expert testimony is "not only relevant but reliable." 509 U.S. 579, 589, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Supreme Court later clarified that this gatekeeping function extended beyond scientific testimony to all expert testimony. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

The proponent of the expert testimony has the burden of proving that the proposed expert testimony is admissible under Federal Rule of Evidence 702, Daubert , and its progeny. Lust ex rel. Lust v. Merrell Dow Pharm., Inc. , 89 F.3d 594, 598 (9th Cir. 1996). This means "the district court can exclude an expert's opinion if the expert fails to identify and defend the reasons" for his conclusions. Id. Where the expert's testimony is not the product of peer-reviewed research produced outside the course of litigation, "the expert 'must explain precisely how [he] went about reaching [his] conclusions and point to some objective source ... to show that [he has] followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in [his] field.' " Id. at 597 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc. , 43 F.3d 1311, 1318-19 (9th Cir. 1995) (" Daubert II ") ) (formatting in original).

An expert's testimony is relevant when the testimony is "relevant to the task at hand, ... i.e. , that it logically advances a material aspect of the proposing party's case." Daubert II , 43 F.3d at 1315 (9th Cir. 1995) (quoting Daubert , 509 U.S. at 597, 113 S.Ct. 2786 ). Relevancy requires opinions that would assist the trier of fact in reaching a conclusion necessary to the case. See Kennedy v. Collagen Corp. , 161 F.3d 1226, 1230 (9th Cir. 1998).

"A trial court has broad latitude not only in determining whether an expert's testimony is reliable, but also in deciding how to determine the testimony's reliability." Ellis v. Costco Wholesale Corp. , 657 F.3d 970, 982 (9th Cir. 2011) ; see also Gen. Elec. Co. v. Joiner , 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (holding that the trial court's decision in admitting or excluding expert testimony will be reviewed for abuse of discretion). "In determining the reliability of a proffered expert, courts 'scrutinize not only the principles and methods used by the expert, but also whether those principles and methods have been properly applied to the facts of the case.' " Claudia Morales, et al. v. Kraft Foods Group, Inc., et al. , No. CV-14-04287-JAK (PJWx), 2017 WL 2598556, at *10 (C.D. Cal. June 9, 2017) (quoting Fed. R. Evid. 702 Advisory Committee's Note (2000 Amendment) ). "[T]he district court must keep in mind Rule 702'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).

The Ninth Circuit has clarified that some challenges to experts' testimony and reports affect the weight, rather than the admissibility, of the expert's opinion: "Disputes as to the strength of an expert's credentials, faults in his use of a particular methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility, of his testimony." Kennedy , 161 F.3d at 1231 (internal formatting omitted) (quoting McCullock v. H.B. Fuller Co. , 61 F.3d 1038, 1044 (2d Cir. 1995). Still, the Supreme Court has cautioned that "conclusions and methodology are not entirely distinct from one another." Gen. Elec. , 522 U.S. at 146, 118 S.Ct. 512. As such, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id. Nothing in either Daubert or the Federal Rules of Evidence requires the admission of opinion evidence connected to existing data "only by the ipse dixit of the expert." Id.

B. DEFENDANTS' MOTION TO STRIKE STEFAN BOEDEKER'S EXPERT REPORT AND TESTIMONY

Plaintiffs designated Stefan Boedeker as an economic damages expert. (Doc. No. 125 ("Boedeker Opp'n") at 1-4.) Mr. Boedeker is a statistician and economist by training. (Doc. No. 95-6 ("Boedeker Report") at 1.) Plaintiffs retained Mr. Boedeker "to develop an economic loss model to quantify the damages, if any, suffered by the proposed class that are attributable to the four misstatements" at issue in this action. (Boedeker Report at 6.) Defendants argue Mr. Boedeker's report and testimony should be stricken on multiple grounds, discussed below.

i. Mr. Boedeker's report

Mr. Boedeker conducted a consumer survey and choice-based conjoint analysis. (Boedeker Report at 45.) "The general idea behind Conjoint Analysis is that consumers' preferences for a particular product are driven by features or descriptions of features embodied in that product. Conjoint Analysis ... stud[ies] consumers' decision-making processes, determining trade-offs between products, features, and price, as well as quantifying consumers' gains and/or losses of utility when choosing between different alternatives." (Boedeker Report ¶ 68.)

Mr. Boedeker sought to determine the premium paid for contested attributes. "An attribute is a tangible characteristic or feature of a product (color, price, etc.) or an intangible claim or statement made about a product ("100% organic," "toxin free," etc.). Each attribute is made up of a varying number of levels-the minimum being two levels." (Doc. No. 134-1, Ex. 1 ("Boedeker Rebuttal") ¶ 97.) "By observing how respondents evaluate products in response to changes in the underlying attribute levels offered at different price levels, it is possible to estimate the impact (utility) each attribute level has on overall product preference and ultimately product choice." (Boedeker Rebuttal ¶ 99.)

To measure the premium paid for each attribute, Mr. Boedeker measured the impact of the following relevant statements in his survey: (1) "Long Lasting Energy;" (2) "RE-HYDRATE to Bring You Back;" (3) "Hydrates like a Sports Drink;" (4) "Ideal Combo of the Right Ingredients in the Right Proportion;" and (5) "Safe level of consumption incorrectly specified on label" or "Safe level of consumption correctly specified on label." (Boedeker Report, Ex. B.) Mr. Boedeker also measured which drink features drove respondents' purchasing decisions. (Boedeker Report at 29-30.)

Based on the results of this survey and his analysis, Mr. Boedeker opined that survey respondents would have paid $1.82 less for a product that had only the Monster flavors and none of the attributes Plaintiffs allege Defendants falsely claimed. (Boedeker Report at 45.) He estimated that "Re-hydrate to bring you back" adds $0.66 in value to the can; "Hydrates like a sports drink" adds $0.41 in value; "Ideal Combo of the Right Ingredients in the Right Proportion" adds $0.58 in value; and the safe levels of consumption statement adds $1.61 in value. (Boedeker Report at 43-44.)

ii. Mr. Boedeker's conclusions regarding the Re-hydrate, Consume Responsibly, and Ideal Combo statements lack support.

Defendants contend Mr. Boedeker's survey data and conclusions regarding the price impact of the Re-hydrate, Consume Responsibly, and Ideal Combo statements are unreliable because the survey presented materially different versions of the statements. (See Doc. No. 109 ("Boedeker Mot.") at 7-13.) The Court agrees that the alterations render his data and opinions as to these statements unreliable and irrelevant.

In order for Plaintiffs to meet the Rule 23(b)(3) requirement of predominance, they must show that the same representations were specifically made to each class member. Gonzalez v. Proctor and Gamble Co. , 247 F.R.D. 616, 624-26 (S.D. Cal. 2007) ; see also Caro v. Procter & Gamble Co. , 18 Cal. App. 4th 644, 668-69, 22 Cal.Rptr.2d 419 (1993) (finding a common question did not predominate where the proposed class of consumers were exposed to varying juice descriptors). Additionally, under Rule 23(b)(3), Plaintiffs must also present a damages model measuring only the damages attributable to their liability theory. Comcast Corp. v. Behrend , 569 U.S. 27, 35, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). Liability for UCL, FAL, and CLRA violations require a factfinder to determine that a defendant's particular representations are false or likely to mislead a reasonable consumer. See Kwikset Corp. v. Superior Court , 51 Cal. 4th 310, 326-329, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) ; see also Doc. No. 79 at 2 (finding plaintiff Fisher did not have standing because he failed to allege that he relied on any specific misrepresentation by Defendant). The exact wording of each statement is thus critical to Plaintiffs' claims and class certification.

Plaintiffs argue Mr. Boedeker's alterations to the statements are justifiable, within the purview of his expertise, and consistent with general principles of conjoint analysis. (Boedeker Opp'n at 17-20.) The Court disagrees, particularly in light of Mr. Boedeker's explanations-or lack thereof-of the changes. Mr. Boedeker's abbreviation of the Ideal Combo statement, description of the Consume Responsibly statement, and embellishment of the Re-hydrate statement renders his survey as it relates to these statements irrelevant and any conclusions drawn from it and extrapolated to the actual alleged misrepresentations unreliable.

1. Ideal Combo statement

Regarding the Ideal Combo statement, Mr. Boedeker shortened "It's the ideal combo of the right ingredients in the right proportion to deliver the big bad buzz that only Monster can" to "Ideal combo of the right ingredients in the right proportion." When asked during his deposition the reason for excluding "to deliver the big bad buzz" from his survey, Mr. Boedeker replied:

That was ... mainly the spacing issue. If these boxes get too big and there's too much wording in there then, yeah, distract almost like the participants. Because my study was not the goal to measure the consumer's interpretation of these statements, but my study was more like there's a statement of that kind and what is the difference between having that statement versus not having [ ] that statement.

(Doc. No. 114, Ex. B ("Boedeker Dep.") at 166:19-167:10.) In other words, Mr. Boedeker's explanation was that the boxes in the grid of attributes were too small to fit the entire Ideal Combo statement. He provides no further explanation as to his determination that 21 words would distract survey respondents while 10 words would not. Mr. Boedeker further testified that he would have no way to determine the impact of the words "to deliver the big bad buzz" on consumers. (Boedeker Dep. At 168: 18-169:13.)

Plaintiffs argue that Mr. Boedeker's omission of the latter half of the Ideal Combo statement was a "reasonable judgment call" because he included "the actionable portion" of the statement while omitting the "puffery portion." (Boedeker Opp'n at 18-19.) This argument is unpersuasive for multiple reasons.

First, Mr. Boedeker's testimony does not support this explanation for his decision, as detailed above. Second, whether a statement or a portion of a statement is puffery is a legal conclusion that Mr. Boedeker is not qualified to make. See Newcal Industries, Inc. v. Ikon Office Solution , 513 F.3d 1038, 1053 (9th Cir. 2008) ("[T]he determination of whether an alleged misrepresentation 'is a statement of fact' or is instead 'mere puffery' is a legal question ... A statement is considered puffery if the claim is extremely unlikely to induce consumer reliance.")

Finally, and most importantly, the second half of the statement is essential to understanding its meaning because it informs the consumer what purpose the phrase "right ingredients in the right proportion" serves. Without the latter half of this statement, the consumer is left guessing whether the ingredients are the "ideal combo" for energy, hydration, flavor, or any other possible attributes an energy drink might tout. Plaintiffs' Second Amended Complaint supports this by alleging that Plaintiff Cross "understood [the Ideal Combo statement] to mean that Monster Drinks were safe (or not unsafe) for consumption and would provide energy without exposing people to health risks." (SAC ¶ 25(a).) Thus, not only does Mr. Boedeker's survey fail to measure the specific Ideal Combo statement, his survey fails to capture the "sentiment" of the statement. The Court finds Mr. Boedeker's conclusion regarding the premium associated with the Ideal Combo statement is unsupported and unreliable.

2. Re-hydrate statement

Plaintiffs allege Defendants' on-label "Re-hydrate" claim is false or misleading because Monster beverages are not hydrating. (Mot. at 4; see also SAC ¶¶ 34, 87, 111.) Mr. Boedeker's survey measured the impact of the statement, "Re-hydrate to bring you back." When asked at his deposition why he chose this phrase, he responded, "I don't recall any specific reasoning why I chose those particular words." (Boedeker Dep. 147:6-13.) His own interpretation of the phrase was, "rehydration to bring you back is bringing you back to a level of activity, energy." (Boedeker Dep. 148:7-10.) As to how respondents may have interpreted the phrase, Mr. Boedeker testified that there "[may be] potentially as many different interpretations as there are survey respondents." (Boedeker Dep. 148:21-24.)

Plaintiffs provide no explanation for the change in the Re-hydrate statement, despite Plaintiffs' burden to show that Mr. Boedeker's report satisfies Rule 702. Plaintiffs only offer a general explanation that the recommended methodology for conjoint analysis includes using concise statements with concrete meanings in describing attributes of the product at issue. (Boedeker Opp'n at 18.) Expanding the Re-hydrate statement conflicts with this objective, as Mr. Boedeker's own subjective interpretation of the statement illustrates. Instead of focusing on the hydration portion of the embellished statement, his interpretation focused on the energy invoked by the "bring you back" portion of the statement. This explanation reveals the importance of using the precise language of the statements at issue. Additionally, adding language that confuses the re-hydrates and hydration attributes with energy may be particularly critical to the analysis since Mr. Boedeker's survey shows that the energy attribute of a drink is a much stronger market driver than the hydration attribute. (Boedeker Report at 30.)

Mr. Boedeker's inability to articulate any reason for changing the statement, particularly when the change makes the meaning of the representation less clear, significantly undercuts Plaintiffs' plea that Mr. Boedeker should be afforded great deference to design his survey as he sees fit in view of his expertise. Given Plaintiffs' claims, Mr. Boedeker's alteration of the Re-hydrate statement renders his survey as to this statement irrelevant and unreliable.

3. Consume Responsibly statement

Plaintiffs allege the statement "Consume Responsibly-Max 1 can per four hours, with limit 3 cans per day. Not recommended for children, people sensitive to caffeine, pregnant women or women who are nursing" is misleading because "consuming even three Monster Drinks (or less) per day as prescribed on the label can be unsafe for adults, and especially unsafe for the youth and children [who] Monster target[s] with its marketing." (SAC ¶ 90.) Mr. Boedeker's survey did not provide this statement or any equivalent statement for the respondents to assess; instead, he described in broad terms the type of statement that might be on such a label by providing the options: "safe level of consumption incorrectly specified;" "safe level of consumption correctly specified;" "no information on label regarding safe level of consumption;" or nothing at all. (Boedeker Report, Ex. B.) Mr. Boedeker testified that he designed the question such that there was "a product choice that as the participant knows there's a safety statement on a label, they know it is correct, incorrect or it is not there at all and I want to see how does that determine [demand]." (Boedeker Dep. 297:22-298:7.)

Mr. Boedeker's analysis of the "safe level of consumption" statements is untethered to Plaintiffs' theory of liability. Plaintiffs allege they relied on the Consume Responsibly statement to determine the amount that is safe to consume. (SAC ¶¶ 24, 25(a).) Plaintiffs' allegation is rooted in the assumption that the level of consumption is correctly specified. Comparing the price impact of a correct, rather than an incorrect, safety statement is irrelevant; only a label perceived as being correct is at issue here. Further, assigning a safety label the descriptor of "correct" or "incorrect" presumes that a consumer is making this determination at all, as well as potentially influencing such a statement's weight.

Finally, the term "safe consumption" is materially different from "consume responsibly;" as the Court has already discussed, the exact words matter in false advertising claims. The exact statements on the label are at issue here; a generic safety label, which Mr. Boedeker made the object of his survey, is not. (Boedeker Dep. 305:11-18.) Mr. Boedeker's survey results thus do not assess the premium paid for the Consume Responsibly statement; it only assesses the value of various generic safety labels.

In sum, the Court agrees with Plaintiffs that Mr. Boedeker's expertise is in determining whether the presence of words on a label affects the price of a product, but this does not ameliorate his survey's shortcomings. To be relevant to this action, the words he is evaluating must in fact be the words on Defendants' labels. See Kwikset , 51 Cal. 4th at 326-27, 120 Cal.Rptr.3d 741, 246 P.3d 877 ("[A] plaintiff proceeding on a claim of misrepresentation as the basis of his or her UCL action must demonstrate actual reliance on the allegedly deceptive or misleading statements." (citations and formatting omitted) ); cf. In re Tobacco II Cases , 46 Cal. 4th 298, 325-29, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009) (finding "where ... a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the plaintiff relied on particular advertisement or statements" in order to successfully plead a claim under the UCL). Mr. Boedeker cannot measure only the "sentiment of the words" for three of the alleged misstatements and then use these results to determine "the price premium attributable to each of the [actual] misstatements." (Boedeker Opp'n at 13, 17.) The data he collected does not support such conclusions.

In order to evaluate the price premium attributable to each of the alleged misstatements, Mr. Boedeker would have had to conduct a survey that included the specific statements themselves. See Gonzalez , 247 F.R.D. at 623-24 (denying class certification where class members may have relied on different representations under California precedent "that refused to certify a class when the plaintiffs could not allege that the same representations were specifically made to each class member."). He did this for only one of the misstatements-the Hydrates statement. The Court therefore finds that his survey results, conclusions, and testimony regarding the Re-hydrate, Ideal Combo, and Consume Responsibly statements are irrelevant and unreliable, hence must be stricken.

iii. Defendants' remaining criticisms of Mr. Boedeker's testimony goes to the weight of his testimony, not its admissibility.

Defendants attack Mr. Boedeker's testimony on relevance grounds, arguing (1) he did not measure how consumers interpret the statements he included in his survey; and (2) he cannot calculate restitution because he did not consider any real-world wholesale or retail pricing information. (Boedeker Mot. at 15-19.) Defendants also contend that Mr. Boedeker's survey suffers from the following methodological flaws: (1) failure to define and draw the relevant universe appropriately; (2) inclusion of some attributes and omission of others, leading to biased and unreliable results; and (3) failure to replicate market conditions. (Boedeker Mot. at 19-22.)

In addition to countering each of these attacks on substantive grounds, Plaintiffs argue that any challenges to survey methodology go to the weight, rather than the admissibility, of the survey. (Boedeker Opp'n at 20.) The admissibility threshold for survey evidence in the Ninth Circuit is notably low. The offering party need only show that the survey is relevant and conducted according to accepted principles. Fortune Dynamic Inc. v. Victoria's Secret Stores Brand Mgmt., Inc. , 618 F.3d 1025, 1036 (9th Cir. 2010) (quoting Wendt v. Host Int'l, Inc. , 125 F.3d 806, 814 (9th Cir. 1997) ); see also 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6268.1 (2d ed.) ("A 'principle' is a theory that can be used to explain the meaning of observations."). "[I]ssues 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." Clicks Billiards, Inc. v. Sixshooters, Inc. , 251 F.3d 1252, 1263 (9th Cir. 2001) ; see also 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6268.1 (2d ed.) ("While 'principles' refers to the theories an expert employs to explain observed facts, 'methods' refers to how the expert collects data and derives theories or opinions from them.") (emphasis in original).

Here, Defendants' remaining survey criticisms fall into the latter category. The substantive Ninth Circuit case law Defendants cite all address challenges like theirs in the course of the Rule 23(b) analysis. See Werdebaugh v. Blue Diamond Growers , No. 12-CV-02724-LHK, 2014 WL 7148923, at *8 (N.D. Cal. Dec. 15, 2014) (addressing challenges to the plaintiff's damages model as part of the Rule 23(b)(3) predominance inquiry); Brazil v. Dole Packaged Foods, LLC , No. 12-CV-01831-LHK, 2014 WL 5794873 (N.D. Cal. Nov. 6, 2014) (same); Morales , 2017 WL 2598556, at *26 (same).

Mr. Boedeker's survey data as to the Hydrates statement meets the threshold for admissibility. Defendants do not contest that conjoint analysis as a general matter may be used to calculate damages in FAL, CLRA, and UCL cases. Additionally, Mr. Boedeker's survey is probative of consumers' perception and valuation of the Hydrates statement and is therefore relevant to the Court's Rule 23(b)(3) predominance analysis.

While the Court finds merit in Defendants' challenges to Mr. Boedeker's survey methodology, the Court deems it more appropriate to address these arguments in its Rule 23(b)(3) predominance analysis. See In re 5-Hour Energy Mktg. and Sales Practices Litig. , No. 13-ML-2438-PSG (PLAx), 2017 WL 2559615, at *4-5 (C.D. Cal. June 7, 2017) (addressing the defendants' challenges to the reliability of the plaintiffs' damages expert in the court's Rule 23(b) analysis instead of as an evidentiary question because the issues raised were "closely intertwined with the Rule 23(b) predominance analysis.").

iv. Conclusion

For the foregoing reasons, the Court GRANTS Defendants' Motion to Strike Mr. Boedeker's testimony and report as it relates to the Ideal Combo, Re-hydrate, and Consume Responsibly statements. The Court DENIES Defendants' Motion to Strike Mr. Boedeker's testimony and report as it relates to the Hydrates statement.

C. DEFENDANTS' OBJECTIONS TO NEW EVIDENCE SUBMITTED WITH PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION (I.E. , PORTIONS OF THOMAS MARONICK'S SUPPLEMENTAL REPORT)

Defendants object to new evidence included in Dr. Maronick's Supplemental Report, (Doc. No. 134-2 ("Maronick Suppl.") ) and request that the Court strike it. (Doc. No. 152 ("Maronick Obj.").) The evidence at issue is Dr. Maronick's Study 2 and the portions of Dr. Maronick's Supplemental Report based on Study 2, i.e. , Paragraphs 3c, 11-14, and 61-88, filed in support of Plaintiffs' Reply. (Maronick Obj.)

Plaintiffs submitted Dr. Maronick's original report in support of their Motion on June 26, 2017. This report contains data and results from a survey Dr. Maronick conducted between May 15 and 22, 2017. (Doc. No. 95-5.) Defendants took Dr. Maronick's deposition on September 6, 2017 and filed a Motion to Strike Dr. Maronick as an expert on October 16, 2017. (Doc. No. 110; Maronick Obj. at 1.) Plaintiffs opposed Defendants' motion on November 13, 2017, and Defendants replied on December 5, 2017. (Doc. Nos. 124, 128.) The same day Defendants filed their reply, Plaintiffs filed their reply in support of their Motion for Class Certification and disclosed for the first time Dr. Maronick's second survey (Study 2), which he conducted approximately two months earlier, between October 5 and 11, 2017. (Maronick Obj. at 2; Maronick Suppl. ¶ 67.)

Dr. Maronick states in his Supplemental Report that he designed Study 2 to "address any perceived flaws in my [original study], and to assess what impact, if any, these minor errors had on the resulting data and conclusions." (Maronick Suppl. ¶ 3(c).) "Specifically, [Dr. Maronick] wanted to evaluate whether there were substantial differences in the survey results if participants were asked if they 'purchased' Monster products instead of whether they 'consumed' them." (Maronick Suppl. ¶ 62.) He also rephrased other questions in response to Defendants' critiques and adjusted his survey population. (Maronick Suppl. ¶ 62.)

Defendants object that Plaintiffs failed to disclose the report before Defendants filed their reply brief in support of the Motion to Strike Dr. Maronick's report. Thus, Defendants argue, they were prejudiced because they had no opportunity to evaluate and respond to his conclusions based on Study 2. (Maronick Obj. at 2.) Defendants therefore request the Court strike Study 2, or, in the alternative, allow Defendants the opportunity to re-depose Dr. Maronick and file either a sur-reply to Plaintiffs' Motion for Class Certification or a supplemental brief in support of Defendants' motion to strike his report. (Maronick Obj. at 4.)

Plaintiffs first argue Defendants should have filed their Objection as a motion to strike, thus triggering Local Rule 7-3. This argument lacks merit; parties routinely challenge new evidence filed in support of a reply by objecting to such new evidence. See e.g.

S.E.C. v. Platforms Wireless Intern. Corp. , 617 F.3d 1072, 1087 n. 9 (9th Cir. 2010) (recognizing that the proper way for the defendant to challenge the plaintiff's new evidence submitted with their reply brief would be to file an objection).

Next, Plaintiffs argue Dr. Maronick's Study 2 is not new evidence because it uses the same methodology, evaluates the same statements, and arrives at the same conclusions. (Doc. No. 160 ("Maronick Obj. Opp'n") at 1-6.) These arguments lack merit-Dr. Maronick's Study 2 is new evidence. It consists of several substantive changes to the design of the original survey, and the redesigned survey generated a new data set analyzed by Dr. Maronick.

Dr. Maronick generated an entirely new data set, a critical factor making this distinguishable from the cases Plaintiffs cite in support of their argument that Study 2 is admissible. There is a distinction between advancing rebuttal arguments or means of evaluating existing underlying data or information, as discussed in cases cited by Plaintiffs, and generating entirely new data or information which could not conceivably have been appraised by the opposing party's expert. See Ohio Six Ltd. v. Motel 6 Operating L.P. , No. CV 11-08102-MMM (Ex), 2013 WL 12125747, at *16-17 (C.D. Cal. Aug. 7, 2013) (permitting a rebuttal expert to offer a different means of valuing damages based on the same underlying information); In re Beer Antitrust Litig. , No. C-97-20644-JF, 2002 WL 1285320 (N.D. Cal. Apr. 3, 2002) (permitting a supplementary expert declaration that presents rebuttal arguments, not new evidence); Zkey Investments, LLC v. Facebook Inc. , 225 F.Supp.3d 1147, 1158-59 (C.D. Cal. 2016) (finding textbooks and other patents the defendant's expert relied upon in rebutting the plaintiff's expert did not constitute new evidence).

The other three cases cited by Plaintiffs are inapposite because the court in each case considered the admissibility of expert testimony under Federal Rules of Civil Procedure 26 and 37. See A.C.T. 898 Prods. v. W.S. Indus., Inc. , No. CV 16-0476, 2017 WL 2992741, at *2-3 (C.D. Cal. Apr. 11, 2017) ; Negrete v. Allianz Life Ins. Co. of N. America , No. CV 05-06838-CAS (MANx), 2013 WL 6535164, at *25-26 (C.D. Cal. Dec. 9, 2013) ; Jones v. Weatherby, Inc. , No. CV 08-210-JLQ, 2009 U.S. Dist. Lexis 62211, at *16-20 (E.D. Wash. July 20, 2009) (also finding the defendant's supplementary expert report admissible because the plaintiff had prevented the earlier examination of the existing physical evidence that yielded new evidence, and the defendant offered to move jointly to re-open discovery to permit its expert to be deposed).

Generally, "reply briefs are limited in scope to matters either raised by the opposition or unforeseen at the time of the original motion." Burnham v. City of Rohnert Park , 1992 WL 672965, at *1 n. 2 (N.D. Cal. May 18, 1992) (citing Lujan v. National Wildlife Federation , 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).) "New evidence submitted as part of a reply is improper" because it does not allow the defendant an adequate opportunity to respond. Morris v. Guetta , 2013 WL 440127, *8 (C.D. Cal. Feb. 4, 2013). For this reason, the district court may decline to consider new evidence or arguments raised in reply, and generally "should not consider the new evidence without giving the non-movant an opportunity to respond." Provenz v. Miller , 102 F.3d 1478, 1483 (9th Cir. 1996) ; Deirmenjian v. Deutsche Bank, A.G. , 2006 WL 4749756, at *6 n. 52 (C.D. Cal. Sept. 25, 2006).

The new evidence presented in the Reply must be stricken. Plaintiffs had two months to disclose Dr. Maronick's Study 2 and could have included it in their opposition to Defendants' Motion to Strike Dr. Maronick's testimony and report. They failed to do so. This failure is particularly troublesome since Plaintiffs contend that Dr. Maronick's Study 2 bolsters the validity of Dr. Maronick's first report; the timing of Plaintiffs' disclosure of the new evidence thus appears aimed at strategically limiting Defendants' opportunity to respond. Whatever Plaintiffs' motives in the timing of Study 2's disclosure, the Court is unwilling to alter the scheduling order for this case and further postpone the hearing on the Motion for Class Certification as would be required to allow Defendants time to cross-examine and respond to the new evidence where such delays could have easily been prevented by Plaintiffs' earlier disclosure of the new survey evidence. See Getz v. Boeing Co. , 654 F.3d 852, 868 (9th Cir. 2011) (requiring the district court to permit the defendant an opportunity to respond to the plaintiff's new evidence filed in a reply prior to considering the evidence).

For the foregoing reasons, the Court SUSTAINS Defendants' Objection to Dr. Maronick's Supplemental Report and correspondingly STRIKES Dr. Maronick's Study 2 and Paragraphs 3c, 11-14, and 61-88 of Dr. Maronick's Supplemental Report.

D. DEFENDANTS' MOTION TO STRIKE THOMAS MARONICK'S EXPERT REPORT AND TESTIMONY

Plaintiffs retained Dr. Thomas Maronick "to design and implement an online survey to assess[ ] consumers' perceptions of claims made on certain [...] varieties of Monster energy drink cans that are at issue in this litigation." (Doc. No. 98 ("Maronick Report") ¶ 4.) To this end, Dr. Maronick conducted a survey of people 18 years or older who drink Monster-branded energy drinks. (Maronick Report ¶ 14.) Survey participants were then shown one of four statements and then asked what the statement means to them in both an open-ended and close-ended question format. (Maronick Report ¶¶ 15-17.) The four statements shown were (1) "The ideal combo of the right ingredients in the right proportion to deliver the big buzz that only Monster can;" (2) "Re-hydrate;" (3) "We have a new drink. One that can do it all: a triple threat that quenches thirst, hydrates like a sports drink, and brings you back after a hard day's night;" and (4) "CONSUME RESPONSIBLY-Max 1 can every 4 hours, with limit 3 cans per day. Not recommended for children, people sensitive to caffeine, pregnant women or women who are nursing." (Maronick Report ¶¶ 15-17, 23-31.) Participants were also asked their reasons for drinking Monster Energy Drinks. (Maronick Report ¶¶ 21-22.)

Based on the data collected in this survey, Dr. Maronick offered a series of conclusions regarding why consumers buy Monster Energy Drinks, what the tested language communicates to consumers, and the degree of importance buyers place on particular statements. (Maronick Report ¶¶ 34-39.) Plaintiffs offer Dr. Maronick's survey and conclusions to show "how the materiality of a reasonable consumer's perception is a common question of fact to the class as a whole" as part of Plaintiffs' Rule 23(b)(3) predominance showing. (Doc. No. 124 ("Maronick Opp'n") at 6.) Defendants move to exclude the entirety or, alternatively, portions of Dr. Maronick's survey and conclusions on various grounds, discussed in turn below. (See Doc. No. 110 ("Maronick Mot.).)

i. Relevancy of Dr. Maronick's report

Defendants argue Dr. Maronick's survey is not helpful, and hence should be stricken, because he did not ask survey participants about why they purchased Monster energy drinks; he asked only their understanding of each statement. (Maronick Mot. at 10-11.) As Dr. Maronick testified at his deposition, "the purpose of [the] study was not to measure [the] incremental impact, it was to measure consumers' perceptions of the statements that were made on [Defendants'] cans." (Doc. No. 114-1, Ex. A ("Maronick Dep.") at 79:12-15.)

"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.' " In re 5-Hour Energy Mktg. and Sales Practices Litig. , 2017 WL 2559615, at *3 (quoting Ellis , 657 F.3d at 983 ). Here, Plaintiffs offer Dr. Maronick's survey to show materiality, a key component of the predominance inquiry. In the context of CLRA, FAL, and UCL claims, "[a] misrepresentation is judged to be 'material' if 'a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question.' " Kwikset Corp. , 51 Cal. 4th at 332-33, 120 Cal.Rptr.3d 741, 246 P.3d 877 (quoting Engalla v. Permanente Medical Group, Inc. , 15 Cal.4th 951, 976-977, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997) ); see also Forcellati v. Hyland's, Inc. , 2014 WL 1410264, at *9 (C.D. Cal. Apr. 9, 2014) ("For purposes of class certification, the UCL, FAL, and CLRA are materially indistinguishable." (citing Delarosa v. Boiron, Inc. , 275 F.R.D. 582, 589 n. 3 (C.D. Cal. 2011) ). A statement may be considered material even if it does not affect a reasonable consumer's assessment of the pecuniary advantage of the transaction if the misstatement would affect another "sentimental" consideration. Rest. 2d Tort § 538 (1977) ; see e.g. Kumar v. Salov North America Corp. , No. 14-CV-2411-YGR, 2016 WL 3844334, at *8 (N.D. Cal. July 15, 2016) (finding that a misrepresentation regarding a product's origin may be a material misrepresentation); In re Steroid Hormone Product Cases , 181 Cal. App. 4th 145, 157, 104 Cal.Rptr.3d 329 (2010) (finding that the legality of possessing or selling a product may be material to a consumer's purchasing decision).

One question presented in this case is whether a reasonable consumer, when determining whether to purchase one of Defendants' products, would find it important that the statements at issue were false or misleading. Part and parcel of this inquiry is an understanding of how reasonable consumers perceive and interpret the statements at issue. This understanding is necessary to determine whether Defendants' products did not in fact have the properties Defendants led consumers to believe they had. Dr. Maronick's survey is relevant to this inquiry because it provides insight into how respondents understood Defendants' labels, even if it does not measure the impact of this understanding on consumers' ultimate purchasing decisions. The Court therefore DENIES Defendants' Motion to Strike Dr. Maronick's report and testimony on relevancy grounds.

ii. Dr. Maronick's survey data and conclusions regarding the Ideal Combo statement are unreliable

Defendants challenge Dr. Maronick's survey as it relates to the Ideal Combo statement because his questions do not accurately reflect the challenged statement: he omitted the word "bad" from the "big bad buzz" portion of the Ideal Combo statement. (Maronick Mot. at 19-20; Maronick Report at ¶¶ 23-24.) Dr. Maronick then asked respondents what this shortened statement meant to them in both open-ended and close-ended question formats. (Maronick Report at ¶¶ 23-24.)

When deposed about why he omitted the word "bad" from his questions regarding this statement, he responded, "That was a typo. I didn't even realize it wasn't there until now." (Maronick Dep. at 106:19-20.) When asked whether the omission influenced respondents' answers, he replied that he could not "speculate as to whether it would have an impact" because he does not know. (Maronick Dep. at 107:17-23.) Dr. Maronick stated he "would expect that it would have no impact" on the accuracy of his results, but provided no explanation as to why not. (Maronick Dep. at 107:3-11.)

Later, in his Supplemental Report dated November 30, 2017, in which he responded to Defendants' criticisms of his report, he notes in a footnote: "The word 'bad' was inadvertently left out of the [Ideal Combo] statement. However, there is no evidence that the omission had any effect, let alone a measurably significant one, on consumers' responses." (Maronick Suppl. at 26, n. 39.) Dr. Maronick also provides no evidence that the omission did not have any effect on consumers' responses, and Dr. Maronick does not contradict his deposition testimony that he does not know one way or the other whether the word "bad" would have changed the survey responses. (Maronick Dep. at 112:6-13.) Plaintiffs do not provide any other evidence regarding the consequence, or lack thereof, of the omission of the word "bad" on survey responses.

Plaintiffs' only response is that "Defendants cite no authority stating a survey question must contain every word of a challenged statement or particular phrase in order for the results to be admissible." (Maronick Opp'n at 20.) As previously noted, the proponent of the expert testimony, Plaintiffs here, has the burden of proving the admissibility and defending the reliability of the proposed expert's testimony. Lust ex rel. Lust , 89 F.3d at 597-98. Thus, Plaintiffs' tactic of attacking the sufficiency of Defendants' arguments rather than pointing to affirmative evidence indicating the reliability of their expert's testimony is unpersuasive.

As discussed in detail in Section II.B(ii) supra , the specific representations are critical in false advertising cases. Plaintiffs and Dr. Maronick provide no evidence to show that consumers understand "The ideal combo of the right ingredients in the right proportion to deliver the big buzz that only Monster can" in the same way as the complete Ideal Combo statement. They even decline to explain why Dr. Maronick "expects" the word "bad" would not have an impact on survey respondents' perception of the statement. The Court therefore concludes that Dr. Maronick's survey cannot reliably be extrapolated to provide evidence of consumers' understanding of the Ideal Combo statement. See Schudel v. Gen. Elec. Co. , 120 F.3d 991, 997 (9th Cir. 1997), abrogated on other grounds by Weisgram v. Marley Co. , 528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000) (finding the district court abused its discretion in admitting expert testimony when the witness could not establish it was acceptable to extrapolate conclusions not directly tied to the underlying data). Hence, the Court finds Dr. Maronick's survey results regarding the shortened Ideal Combo statement irrelevant, and any conclusions propounded regarding the complete Ideal Combo statement unsupported.

Accordingly, the Court STRIKES paragraphs 23, 24 and 35 as well as the phrase "Monster Energy as having the ideal combination of ingredients to provide energy in the appropriate balance and" in paragraph 39 from Dr. Maronick's report.

iii. Dr. Maronick's conclusions regarding why consumers buy Defendants' beverages are unreliable

Defendants argue Dr. Maronick's conclusions that (1) "the 'Consume Responsibly' warning on cans of Monster Energy Drinks is clearly important to [sic ] Monster Energy Drink buyers," (Maronick Report at ¶ 38); and (2) "consumers rely on Monster's statements on can labels to buy Monster Energy drinks," (Maronick Report at ¶ 39), are not supported by his survey and thus unreliable. (Maronick Mot. at 11-14.) Defendants argue that because Dr. Maronick's survey did not determine whether respondents had ever purchased a Monster Energy drink nor measure the impact the challenged statements had on purchasing decisions, Dr. Maronick cannot conclude what is "clearly important" to purchasers nor why purchasers buy Monster Energy drinks. (Mot. at 13.)

Plaintiffs concur that Dr. Maronick did not opine on whether the challenged statements factored into consumers' purchasing decisions. (Maronick Opp'n at 13.) Nevertheless, Plaintiffs argue Dr. Maronick can validly infer that his survey respondents purchased Monster Energy drinks. (Maronick Opp'n at 12-14.) In support, Plaintiffs cite Dr. Maronick's deposition testimony in response to the question why he did not ask survey respondents to identify the drink they most frequently purchased:

In my judgment[,] they are the same thing. In my experience[,] these are something that they buy for themselves. This isn't the kind of thing where the primary food shopper would be buying it for a family.... They are buying it. They are drinking it. They are the ones that are holding this can in their hand. So I think that was the appropriate language to use.

(Doc. No. 124-1 ("Maronick Dep. II") at 72:4-14.) Neither Plaintiffs nor Dr. Maronick point to any objective source in support of this opinion, such as relevant market research, nor provide any further support for it.

The proponent of an expert is required to show that the witness's testimony is based on something "more than subjective belief or unsupported speculation." Daubert , 509 U.S. at 590, 113 S.Ct. 2786. Plaintiffs fail to show that Dr. Maronick's assumption that energy drink consumers are energy drink purchasers is grounded in anything other than his unsupported speculation. Additionally, Dr. Maronick's conclusions regarding what is important to purchasers and what statements purchasers rely upon in deciding to buy Monster products is disconnected from the survey data. The Court therefore concludes these conclusions are unsupported and unreliable.

Accordingly, the Court STRIKES paragraph 38 and the first sentence of paragraph 39.

iv. Dr. Maronick's conclusion regarding the contradictory nature of the representations at issue is unreliable

Defendants argue Dr. Maronick presents "absolutely no" support for the following conclusion in paragraph 39 of his report: "However, I find labels on Monster Rehab that say it re-hydrates or hydrates like a sports drink juxtaposed with a 3 cans per day consumption limit are inherently contradictory since sports drinks generally have no consumption limits on their labels." (Maronick Mot. at 13.) They highlight that Dr. Maronick's survey "includes no questions concerning whether respondents viewed any of the Challenged Statements as contradictory." (Maronick Mot. at 13.) The Court also notes that his report does not contain any kind of survey or discussion of sports drinks. (See Maronick Report.)

Plaintiffs respond that this is a "common-sense observation based upon his survey results" and makes "logical sense." (Maronick Opp'n at 11.) Plaintiffs do not explain how this "observation" is in any way derived from his survey and there is no such connection apparent to the Court. Further, Dr. Maronick's expertise is in marketing generally, and he does not profess to have any particular expertise in sports drinks. Such a general observation is therefore outside the scope of his expertise. The Court finds that this conclusion is ipse dixit and must be excluded.

Accordingly, the Court STRIKES the last sentence of paragraph 39 of Dr. Maronick's report.

v. Defendants' remaining criticisms of Dr. Maronick's report go to the weight, not the admissibility, of the survey evidence

Defendants lob a number of criticisms against the methodology Dr. Maronick employed in his survey, arguing he (1) did not appropriately define the relevant universe; (2) did not draw a representative sample of respondents; (3) omitted a control group, making it impossible for him to know whether respondents' perceptions are the results of the challenged statements or other factors; (4) failed to replicate marketplace conditions; and (5) asked suggestive or vague questions. (Maronick Mot. at 14-19.) In addition to disputing each attack, Plaintiffs argue these criticisms go to the weight, rather than the admissibility, of Dr. Maronick's survey. The Court agrees.

As discussed in Section II.B(iii) supra , challenges to the methodology used in gathering survey evidence goes to the weight, rather than the admissibility, of a survey in the Ninth Circuit. The enumerated criticisms here are all concern Dr. Maronick's methodology. Thus, as with Mr. Boedeker's survey evidence, the Court considers these criticisms in the Court's Rule 23(b) predominance analysis as they relate to the weight of the survey evidence.

vi. Conclusion

For the foregoing reasons, the Court GRANTS Defendants' Motion to Strike Dr. Maronick's testimony and report as to paragraphs 23, 24, 35, and 38, as well as paragraph 39 such that only the following remains: "Consumers perceive ... Monster Rehab as providing hydration 'like a sports drink.' Moreover, I find that consumers pay attention to consumption limits, (e.g., 'Limit 3 cans per day') when present on a label." The Court DENIES Defendants' Motion as to the remainder of Dr. Maronick's report and testimony.

E. PLAINTIFFS' MOTION TO EXCLUDE KENT D. VAN LIERE'S EXPERT REPORT

Defendants retained Kent D. Van Liere to "design and conduct research to evaluate the messages consumers take from the labels and the extent to which allegedly misleading statements on the labels ... were likely to influence purchasers' purchase decisions." (Doc. No. 114-6 ("Van Liere Report") ¶ 1.) To accomplish this, Dr. Van Liere conducted four surveys. (Van Liere Report at 356.) Studies 1 and 2 examined consumers' reasons for purchasing the relevant Monster beverages, and Studies 3 and 4 examined how consumers understood Defendants' labels and how the representations affected their purchasing decisions. (Van Liere Report at 367-385.)

Defendants further retained Dr. Van Liere to evaluate the reliability of Mr. Boedeker's and Dr. Maronick's surveys. (Van Liere Report ¶ 2.) As to Mr. Boedeker's report, Defendants specifically asked Dr. Van Liere to assess whether the survey "reliably measures the value to purchasers of various attributes related to the claimed statements and whether the survey is designed to yield reliable results." (Van Liere Report ¶ 2.)

Plaintiffs attack Dr. Van Liere's survey and report on multiple grounds, addressed in turn below.

i. Dr. Van Liere is qualified to opine on Mr. Boedeker's consumer survey, but not to opine on the results of Mr. Boedeker's quantitative analysis

Plaintiffs direct a limited challenge to Dr. Van Liere's qualifications, arguing he is not qualified to evaluate Mr. Boedeker's report because (1) Dr. Van Liere is not educated or trained as an economist or statistician; and (2) Dr. Van Liere is incapable of performing or replicating Mr. Boedeker's survey. (Doc. No. 129 ("Van Liere Mot.") at 4-5.)

Dr. Van Liere obtained a Ph.D in Sociology with a specialization in research methods and statistics in 1979. (Van Liere Report at 409.) He has published extensively in journals, including on the use of sample surveys in product liability litigation, as well as technical reports that focus on consumer attitudes, choices, and behavior. (Van Liere Report at 348, 419-21.) Additionally, during his 30-year career he has conducted "several hundred studies for leading corporations and government agencies, including studies of employees, consumers, and businesses." (Van Liere Report ¶ 6.) Finally, earlier in his career, Dr. Van Liere was a tenured Associate Professor at the University of Tennessee, where he "taught undergraduate and graduate level courses in statistics, survey research methods, and social psychology." (Van Liere Report ¶ 7.)

The Court finds Dr. Van Liere's education, training, and experience qualifies him as an expert on the methodology, reliability, and design of consumer surveys, as well as the interpretations of their results. Five of the six criticisms Dr. Van Liere directed against Mr. Boedeker's report are within the scope of Dr. Van Liere's expertise. (See Van Liere Report ¶¶ 95-119.)

The final criticism Dr. Van Liere makes against Mr. Boedeker's report-that Mr. Boedeker's conjoint study produces an unrealistically large "economic loss"-is based on the reliability of Mr. Boedeker's quantitative methods. (See Van Liere Report ¶¶ 120-121.) In this subsection, Dr. Van Liere concludes: "Given the price range that Monster Energy products typically sell for, Mr. Boedeker's estimate is simply implausible. Put another way, Mr. Boedeker's results suggest that, for example, for an Original Green or Rehab drink priced at $2.24, approximately 81 percent of the value purchasers assign to that product are attributable to the four claims at issue, the majority of which appear on the back or side of the product label." (Van Liere Report ¶ 121.) The reasoning for this conclusion is somewhat underdeveloped, but it is necessarily tied to Mr. Boedeker's quantitative analysis through which he arrived at his economic loss numbers totaling $1.82. Dr. Van Liere is not qualified to opine on Mr. Boedeker's quantitative methods, and Defendants do not contend that they proffer him as an expert on quantitative methods. (Boedeker Opp'n at 5.) Consequently, paragraph 120 and 121 of Dr. Van Liere's report must be excluded.

As to their second criticism, Plaintiffs provide no evidence or grounds for their assertion that Dr. Van Liere is incapable of replicating Mr. Boedeker's survey. Plaintiffs also provide no case law supporting this ground for exclusion. The only case cited in their motion, Cholakyan v. Mercedes-Benz USA, LLC , 281 F.R.D. 534 (C.D. Cal. 2012), does not suggest otherwise. In Cholakyan , the court excluded the contested expert because "[t]he evidence he has adduced does not adequately demonstrate that [he] exercised independent judgment; rather, it strongly suggests he took [another expert's] conclusions, engaged in little, if any, evaluation of their merits, and reprod