Hadley v. Kellogg Sales Co. (324 F. Supp. 3d 1084, 2018)

LUCY H. KOH, United States District Judge

Plaintiff Stephen Hadley ("Plaintiff") brings the instant putative class action against Defendant Kellogg Sales Company ("Kellogg") for allegedly misleading statements on Kellogg's food product packaging. Before the Court are (1) Plaintiff's motion for class certification; and (2) Kellogg's motion to exclude the opinion testimony of Steven P. Gaskin. Having considered the parties' briefing, the relevant law, and the record in this case, the Court GRANTS in part DENIES in part Plaintiff's motion for class certification, and DENIES Kellogg's motion to exclude the opinion testimony of Steven P. Gaskin.

I. BACKGROUND

A. Factual Background

Kellogg is a "multi-billion dollar food company that manufactures, markets, and sells a wide variety of cereals and bars, among other foods." ECF No. 62, Second Amended Complaint ("SAC") ¶ 108. Plaintiff alleges that Kellogg has "positioned itself in the market as a purportedly 'healthy' brand of processed food, by using various labeling statements to suggest its foods, especially its cereals and bars, are healthy choices." Id. ¶ 112.

Plaintiff "has been a frequent cereal eater for many years." Id. ¶ 249. Over the past several years, Plaintiff has purchased Kellogg's breakfast cereals and cereal bars. Id. ¶ 250-51. During that time period, Plaintiff allegedly "tried to choose healthy options, and has been willing to pay more for cereals he believes are healthy." Id. ¶ 249.

This case concerns statements on the packaging for breakfast cereals and cereal bars sold by Kellogg that indicate that Kellogg's products are healthy when excess added sugar allegedly causes those products to be unhealthy. Plaintiff alleges that eight of Kellogg's product lines are sold with misleading packaging. See SAC ¶¶ 120-23. Four of those product lines are relevant to the instant order: (1) Kellogg's Raisin Bran; (2) Kellogg's Frosted Mini-Wheats; (3) Kellogg's Smart Start-Original Antioxidants; and (4) Nutri-Grain Soft-Baked Breakfast Bars. See id. ; ECF No. 129 at 1.

In general, Kellogg's products are alleged to contain 9 to 16 grams of total sugar per serving and are 18% to 40% added sugar by calorie. See SAC App. 1. Plaintiff alleges that the consumption of added sugar can have significant health impacts on individuals. Specifically, Plaintiff states that people in the United States consume excess added sugar, that people can become addicted to added sugar, and that excess added sugar consumption has been empirically linked to metabolic syndrome, type 2 diabetes, cardiovascular disease, liver disease, obesity, inflammation, high cholesterol, hypertension, Alzheimer's disease, and some cancers. SAC ¶¶ 9-107.

Moreover, Plaintiff alleges that the American Heart Association ("AHA") has found that a person is "safe" to consume up to 5% of his or her daily calories in added sugar, which amounts to approximately 25 grams of added sugar on a 2000 calorie diet. Id. ¶ 26. On the other hand, the United States Food and Drug Administration ("FDA") has concluded that the Daily Recommended Value ("DRV") of added sugars is 10% of a person's daily calories, or approximately 50 grams of added sugar. Based on these values, Plaintiff alleges that Kellogg's products are unhealthy because they contain a higher percentage of added sugar (18%-40% of total calories per serving) than the daily "safe" percentage of added sugar recommended by the AHA or the DRV recommended by the FDA.

Plaintiff asserts that the packaging for Kellogg's products displays multiple statements touting the health and wellness benefits of consuming Kellogg's products that are misleading (the "challenged statements" or "challenged health statements"). Specifically, Plaintiff challenges Kellogg's use of statements that contain the terms "healthy," "nutritious," or "wholesome." SAC ¶ 186-89. Plaintiff alleges that these statements assert that Kellogg's products are healthy when they are in fact not healthy because of the presence of added sugar. Id. ¶ 189. Further, Plaintiff alleges that a number of statements, such as "lightly sweetened," imply that Kellogg's products are lower in sugar, when they actually are composed of 18% to 40% added sugar. Id. ¶¶ 215-19.

Some of the products at issue allegedly display multiple challenged health statements. For example, Plaintiff states that the packaging for Raisin Bran displays "HEART HEALTHY," "Start with a healthy Spoonful," and "Invest in your health invest in yourself." Id. ¶ 128. On the other hand, other products only have a single challenged statement. For example, on the packaging for Nutri-Grain Soft-Baked Breakfast Bars, Plaintiff only challenges the statement "wholesome goodness." See ECF No. 130 Exhs. 19-22.

B. Procedural History

On August 29, 2016, Plaintiff filed a complaint. ECF No. 1. On October 31, 2016, Kellogg filed a motion to dismiss. ECF No. 22. In lieu of filing a response, on November 14, 2016, Plaintiff filed a First Amended Complaint ("FAC"). ECF No. 27.

On December 8, 2016, Kellogg filed a motion to dismiss the FAC. ECF No. 44. On January 5, 2017, Plaintiff filed an opposition, ECF No. 49, and on January 19, 2017, Kellogg filed a reply. ECF No. 50. On March 21, 2017, the Court granted Kellogg's motion to dismiss Plaintiff's FAC. ECF No. 56.

On April 5, 2017, Plaintiff filed a second amended complaint ("SAC"). See SAC. Plaintiff's SAC alleges five causes of action, including (1) violation of the California False Advertising Law ("FAL"); (2) violation of the California Consumers Legal Remedies Act ("CLRA"); (3) violation of the California Unfair Competition Law ("UCL") under the fraudulent, unfair, and unlawful prongs; (4) breach of express warranty; and (5) breach of the implied warranty of merchantability. Id.

On April 19, 2017, Kellogg filed a motion to dismiss Plaintiff's SAC. ECF No. 62. On May 3, 2017, Plaintiff filed an opposition, ECF No. 65, and on May 10, 2017, Kellogg filed a reply. ECF No. 66. On August 10, 2017, the Court granted in part and denied in part Kellogg's motion to dismiss Plaintiff's SAC. ECF No. 76.

On April 30, 2018, Plaintiff filed a motion for class certification. ECF No. 129 ("Mot."). Plaintiff seeks to certify the following class, which is composed of four subclasses, under Federal Rule of Civil Procedure 23(b)(3) :

[A]ll persons in California who, on or after August 29, 2012, purchased for household use and not for resale or distribution:

Raisin Bran Subclass: Kellogg's Raisin Bran (including Omega-3) or Kellogg's Raisin Bran Crunch Cereals in a 13.7 oz., 14.3 oz., 18.2 oz., 18.7 oz., 23.5 oz., 24.8 oz., 29 oz., 30.3 oz., 43.3 oz., 56.6 oz., or 76.5 oz. package stating "heart healthy."

Smart Start Subclass: Kellogg's Smart Start Original Antioxidants cereal in a 17.3 oz. package.

Frosted Mini-Wheats Subclass: Kellogg's Frosted Mini-Wheats Bite Size (Original, Maple Brown Sugar, Strawberry, or Blueberry varieties), Big Bites (Original variety), Little Bites (Chocolate or Cinnamon Roll varieties), or Touch of Fruit in the Middle (Mixed Berry and Raspberry varieties) cereals in a 15.2 oz., 15.5 oz., 15.8 oz., 16.5 oz., 18 oz., 21 oz., or 24 oz. package.

Nutri-Grain Soft-Baked Breakfast Bar Subclass: Kellogg's Nutri-Grain Soft-Baked Breakfast Bars (Blueberry, Strawberry, Cherry, Raspberry, and Variety Pack varieties), in 8-bar, 9-bar, 16-bar, or 24-bar counts with packaging stating, "the wholesome goodness you need to shine your brightest!"

Id. at 1.

Kellogg filed an opposition to Plaintiff's motion for class certification on June 11, 2018, ECF No. 159 ("Opp."), and Plaintiff filed a reply on July 2, 2018. ECF No. 194 ("Reply").

Kellogg also filed a motion based on Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to exclude the opinion testimony of one of Plaintiff's damages experts, Steven P. Gaskin, on June 11, 2018. ECF No. 167 ("Gaskin Daubert Mot."). Plaintiff filed an opposition to Kellogg's Daubert motion on June 25, 2018, ECF No. 181, and Kellogg filed a reply on July 2, 2018. ECF No. 188.

II. LEGAL STANDARD

Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Rule 23 does not set forth a mere pleading standard. To obtain class certification, plaintiffs bear the burden of showing that they have met each of the four requirements of Rule 23(a) and at least one subsection of Rule 23(b). Zinser v. Accufix Research Inst., Inc. , 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir. 2001). "A party seeking class certification must affirmatively demonstrate ... compliance with the Rule[.]" Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).

Rule 23(a) provides that a district court may certify a class only if: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). That is, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy of representation to maintain a class action. Mazza v. Am. Honda Motor Co., Inc. , 666 F.3d 581, 588 (9th Cir. 2012).

If all four prerequisites of Rule 23(a) are satisfied, the Court must also find that the plaintiff "satisf[ies] through evidentiary proof" at least one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend , 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). The Court can certify a Rule 23(b)(1) class when plaintiffs make a showing that there would be a risk of substantial prejudice or inconsistent adjudications if there were separate adjudications. Fed. R. Civ. P. 23(b)(1). The Court can certify a Rule 23(b)(2) class if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Finally, the Court can certify a Rule 23(b)(3) class if the Court finds that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

"[A] court's class-certification analysis must be 'rigorous' and may 'entail some overlap with the merits of the plaintiff's underlying claim[.]' " Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds , 568 U.S. 455, 465-66, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013) (quoting Dukes , 564 U.S. at 351, 131 S.Ct. 2541 ); see also Mazza , 666 F.3d at 588 (" 'Before certifying a class, the trial court must conduct a 'rigorous analysis' to determine whether the party seeking certification has met the prerequisites of Rule 23.' " (quoting Zinser , 253 F.3d at 1186 ) ). This "rigorous" analysis applies to both Rule 23(a) and Rule 23(b). Comcast , 569 U.S. at 34, 133 S.Ct. 1426 (stating that Congress included "addition[al] ... procedural safeguards for (b)(3) class members beyond those provided for (b)(1) or (b)(2) class members (e.g., an opportunity to opt out)" and that a court has a "duty to take a 'close look' at whether common questions predominate over individual ones").

Nevertheless, " Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage." Amgen , 568 U.S. at 466, 133 S.Ct. 1184. "Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id. If a court concludes that the moving party has met its burden of proof, then the court has broad discretion to certify the class. Zinser , 253 F.3d at 1186.

III. DISCUSSION

As discussed above, Plaintiff seeks class certification under Rule 23(b)(3). Kellogg does not contest that Plaintiff has satisfied the numerosity and commonality requirements of Rule 23(a), as evidenced by the fact that Kellogg's opposition to Plaintiff's motion for class certification does not meaningfully address these requirements. See generally Opp. The Court agrees that Plaintiff has satisfied the numerosity and commonality requirements of Rule 23(a). First, with regards to numerosity, Plaintiff has provided evidence that "the unit and dollar sales" of the Kellogg products at issue in the instant case "suggest at least thousands of Class Members" bought these products during the class period. Mot. at 16; see Twegbe v. Pharmaca Integrative Pharmacy, Inc. , 2013 WL 3802807, *3 (N.D. Cal. July 17, 2013) ("[T]he numerosity requirement is usually satisfied where the class comprises 40 or more members."). Second, as to commonality, the Court finds that there are numerous common questions of law and fact, such as whether the challenged health statements are unlawful, unfair, deceptive, or misleading when affixed to products containing 9 to 16 grams of sugar per serving (or "an average of 12.2 grams of added sugar" per serving, Opp. at 18). See Jones v. ConAgra Foods, Inc. , 2014 WL 2702726, at *5 (N.D. Cal. June 13, 2014) (finding that class claims had common issue of "whether the '100% natural' and 'free of artificial ingredients & preservatives' labels are unlawful, unfair, deceptive, or misleading when affixed to products containing citric acid and/or calcium chloride").

Kellogg also does not contest that Plaintiff has satisfied the superiority requirement of Rule 23(b)(3). The Court agrees that superiority is met in the instant case. As Plaintiff correctly observes, individual class members are likely to have little "interest in controlling individual actions because the product[s]" at issue in the instant case cost "under about $5." Mot. at 25; see Wolin v. Jaguar Land Rover N. Am., LLC , 617 F.3d 1168, 1175 (9th Cir. 2010) (stating that "[w]here recovery on an individual basis would be dwarfed by the cost of litigating on an individual basis, this factor weighs in favor of" finding that the superiority requirement is satisfied). Further, no significant manageability concerns are apparent, and in any event, there is a " 'well-settled presumption that courts should not refuse to certify a class merely on the basis of manageability concerns.' " Briseno v. ConAgra Foods, Inc. , 844 F.3d 1121, 1128 (9th Cir. 2017) (quoting Mullins v. Direct Digital, LLC , 795 F.3d 654, 663 (7th Cir. 2015) ); see also In re Visa Check/MasterMoney Antitrust Litig. , 280 F.3d 124, 141 (2d Cir. 2001) (listing "management tools available to" district courts).

Kellogg opposes Plaintiff's motion for class certification on nearly every other front. Kellogg first asserts a handful of arguments for why Plaintiff has failed to establish Rule 23(b)(3) predominance. See Opp. at 12-34. Then, Kellogg briefly argues that Plaintiff does not satisfy the typicality and adequacy requirements of Rule 23(a). See id. at 34-35. The Court addresses these arguments in turn.

A. Rule 23(b)(3) Predominance

Under Rule 23(b)(3), plaintiffs must show "that the questions of law or fact common to class members predominate over any questions affecting only individual members." Fed. R. Civ. P. 23(b)(3). The Rule 23(b)(3) predominance requirement is "even more demanding" than Rule 23(a)'s commonality counterpart. Comcast , 569 U.S. at 34, 133 S.Ct. 1426. Predominance "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem , 521 U.S. at 623, 117 S.Ct. 2231 (citation omitted). The Ninth Circuit has held that "there is clear justification for handling the dispute on a representative rather than an individual basis" if "common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication." Hanlon , 150 F.3d at 1022. As the United States Supreme Court recently explained, "[t]he predominance inquiry asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues." Tyson Foods, Inc. v. Bouaphakeo , --- U.S. ----, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:49 (5th ed. 2012) ). "When 'one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.' " Id. (quoting 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1778 (3d ed. 2005) ).

Plaintiff argues that common issues predominate in the instant class action for each of Plaintiff's four theories of liability. First, with regards to Plaintiff's theory that the challenged health statements amount to affirmative misrepresentations that violate California's FAL, CLRA, and the UCL's "fraudulent" prong (the "affirmative misrepresentation theory"), Plaintiff points out that under these statutes, the issue of whether a particular statement on a product's packaging or labeling is "either actually misleading or ... has a capacity, likelihood or tendency to deceive or confuse the public," Williams v. Gerber Prods. Co. , 552 F.3d 934, 938 (9th Cir. 2008) (internal quotation marks omitted), is "judged by the effect [that statement] would have on a reasonable consumer." Mot. at 18 (quoting Lavie v. Procter & Gamble Co. , 105 Cal. App. 4th 496, 506-07, 129 Cal.Rptr.2d 486 (2003) ). In other words, "California's UCL, 'FAL and CLRA rely on the same objective test." Tait v. BSH Home Appliances Corp. , 289 F.R.D. 466, 480 (C.D. Cal. 2012) (emphasis added). This objective test focuses on the "reasonable consumer," Lavie , 105 Cal. App. 4th at 507, 129 Cal.Rptr.2d 486, or, put another way, on whether "members of the public are likely to be deceived." In re Tobacco II Cases , 46 Cal. 4th 298, 312, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009). Further, Plaintiff cites cases that affirm that "[t]his objective test renders claims under the UCL, FAL, and CLRA ideal for class certification because they will not require the court to investigate class members' individual interaction with the product." Mot. at 19 (quoting Tait , 289 F.R.D. at 480 (internal quotation marks omitted) ).

Second, Plaintiff's theory that Kellogg deceptively "hides" and "omits ... information regarding the products' high sugar content" in violation of the FAL, CLRA, and the UCL's "fraudulent" prong (the "deceptive omission theory"), SAC ¶ 209, is subject to the same objective test. Plaintiff states that he "has substantial common evidence on which to bring the Class's [deceptive] omission claims to trial," including common evidence "of Kellogg's knowledge" and "that the omitted information was material." Mot. at 20.

Third, as to Plaintiff's theory that "certain labeling claims" on the products at issue in the instant case "violate[ ] FDA regulations" and therefore violate the UCL's "unlawful" prong (the "unlawful misbranding theory"), Plaintiff argues that "Kellogg's liability for such misbranding is a predominating common question because 'proving the ... unlawful prong of the UCL ... does not depend upon any issues specific to individual consumers.' " Mot. at 20 (quoting Lilly v. Jamba Juice Co. , 308 F.R.D. 231, 242 (N.D. Cal. 2014) ) (alterations adopted). "Rather, 'the label is either illegal or it is not,' and that determination will apply to all Class Members the same." Id. (quoting Ang v. Bimbo Bakeries USA, Inc. , 2014 WL 1024182, at *8 (N.D. Cal. Mar. 13, 2014) ) (alteration adopted).

Fourth, regarding Plaintiff's theory that the challenged statements amounted to warranties that were breached by Kellogg (the "breach of warranty theory"), Plaintiff states that " '[w]hether such statements constitute an express warranty, and whether that warranty was breached ... are issues subject to common and generalized proof.' " Id. at 21 (quoting Martin v. Monsanto Co. , 2017 WL 1115167, at *7 (C.D. Cal. Mar. 24, 2017) ) (alterations adopted). Further, Plaintiff asserts that " 'because reliance is not an element of express warranty claims under California law, common questions predominate and class action treatment is appropriate.' " Id. (quoting In re Scotts EZ Seed Litig. , 304 F.R.D. 397, 411 (S.D.N.Y. 2015) ) (alteration adopted).

Additionally, Plaintiff argues that the three damages models proposed by Plaintiff are "consistent with [Plaintiff's] theories of liability, and capable of measuring classwide damages." Id. at 21-25.

Kellogg advances five arguments for why common issues do not predominate over individual ones in the instant case. First, Kellogg argues that "individual issues predominate because most people never saw the challenged statements." Opp. at 12-16. Second, Kellogg asserts that "individual issues predominate because the health impact of consuming added sugar-and thus the alleged falsity of the challenged statements-differs for each consumer." Id. at 16- 20. Third, Kellogg contends that "Plaintiff's proposed damages models cannot competently assess class-wide damages." Id. at 20-29. Fourth, Kellogg argues that "Plaintiff has not provided any evidence of classwide deception or materiality." Id. at 29-32. Finally, Kellogg asserts that "Plaintiff's alternative theories of liability"-that is, Plaintiff's deceptive omission, unlawful misbranding, and breach of warranty theories of liability-"are also not subject to common proof." Id. at 32-34. The Court addresses each of Kellogg's arguments in turn.

1. Exposure to Challenged Statements

Kellogg first argues that "most people" who bought the Kellogg products at issue in the instant case "never saw the challenged statements." Id. at 12. Based on this assertion, Kellogg's appears to argue that Plaintiff cannot satisfy the predominance requirement because, according to Kellogg, the Court would have to determine which consumers actually saw the challenged statements on an individualized, consumer-by-consumer basis in order to determine the exact scope of Kellogg's liability. Kellogg's argument proceeds in two parts. First, Kellogg asserts that "Kellogg consumers were not uniformly exposed to the challenged statements over the class period for Raisin Bran, Nutri-Grain, and Smart Start." Id. Second, Kellogg argues that "there is no indication that every consumer-let alone most consumers-saw or relied upon" either (1) the "lightly sweetened" statement displayed "on the front of each package of Frosted Mini-Wheats and Smart Start"; or (2) the "wholesome goodness" statement displayed on the back panel of some Nutri-Grain boxes. Id. at 15-16 & n.5. The Court considers these assertions in turn.

a. Lack of Uniform Exposure to Challenged Statements on Packaging for Raisin Bran, Nutri-Grain, and Smart Start

Kellogg points out that many of the "challenged statements did not appear on the packaging for a substantial portion ... of the class period." Id. at 13. Specifically, Kellogg states that during the class period, (1) "Invest in Your Health, Invest in Yourself" appeared on only 17.6% of all Raisin Bran and Raisin Bran Crunch packages; (2) "the 'heart health' statement did not appear on versions of the packaging for a significant portion of Raisin Bran and Raisin Bran Crunch products from January 2014 to February 2015; May 2016 to October 2016; and April 2017 to present-a total of 33 months and counting during the class period"; (3) "Start with a Healthy Spoonful" appeared on only 13.9% of all Raisin Bran and Raisin Bran Crunch packages; (4) 55.3% of Nutri-Grain boxes "did not have the 'wholesome goodness' text"; (5) "Invest in Your Health, Invest in Yourself" appeared on only 27.3% of all Smart Start packages; and (6) "Nutrients for Every Day" appeared on less than 15% of all Smart Start packages. Id. at 13-14. Kellogg asserts that under Ninth Circuit law, "such a lack of uniform and consistent exposure dooms class certification." Id. at 14; see In re Hyundai and Kia Fuel Economy Litig. , 881 F.3d 679, 705 (9th Cir. 2018) (reversing class certification because "factual differences regarding [the class members'] exposure to the misleading statements translate into significant legal differences regarding the viability of these class members' claims"); Mazza , 666 F.3d at 596 (holding that "[i]n the absence of [a] massive advertising campaign" "where there was little doubt that almost every class member had been exposed to defendants' misleading statements," "the relevant class must be defined in such a way as to include only members who were exposed to advertising that is alleged to be materially misleading").

However, Kellogg acknowledges that Plaintiff "sidestep[s]" this "lack of uniform and consistent exposure" problem "by defining the subclasses to include only those individuals who purchased versions of the products that included the challenged statements on the packaging." Opp. at 14. For example, in order to account for the fact that not all Raisin Bran and Raisin Bran Crunch packaging displayed a "heart healthy" statement during the class period, Plaintiff has defined the Raisin Bran Subclass to include only the "persons in California" who bought Raisin Bran or Raisin Bran Crunch in a "package stating 'heart healthy. ' " Mot. at 1 (emphasis added). By defining the Raisin Bran Subclass in this way, Plaintiff has ensured that all Raisin Bran Subclass members were by definition exposed to a "heart healthy" statement, and has thereby eliminated all "factual differences regarding ... exposure" to that statement that could give rise to predominance issues. In re Hyundai , 881 F.3d at 705.

Kellogg argues that Plaintiff should not be allowed to define the subclasses in this way because such an allowance would enable Plaintiff to "effectively evade a lack of uniform exposure by gerrymandering the class to encompass only those individuals who saw specific advertisements and labels over a years-long period while excluding those who did not." Opp. at 14. However, Kellogg marshals no persuasive arguments or case law to demonstrate why narrowly defining classes in fraudulent product labeling cases "to encompass only those individuals who saw [the] specific" challenged health statements is inappropriate. Id. On the contrary, this appears to be an accepted and uncontroversial approach to class definition. See Astiana v. Kashi Co., 291 F.R.D. 493, 500 (S.D. Cal. 2013) (certifying a class of "all [California] customers who purchased Kashi products during the class period that were labeled as containing 'Nothing Artificial.' "); cf. Inland Empire-Immigrant Youth Collective v. Nielsen , 2018 WL 1061408, at *8 (C.D. Cal. Feb. 26, 2018) ("As for the requirement that class members 'have suffered the same injury,' Dukes , 564 U.S. at 349-50, 131 S.Ct. 2541, the narrow tailoring of the class definition-to include only those individuals who lost their DACA without notice and did not commit disqualifying criminal offenses-ensures commonality of injury."). Indeed, Plaintiff's allegedly improper "gerrymandering" of the class definitions in the instant case-for example, defining the Raisin Bran Subclass to include only those California consumers who bought Raisin Bran or Raisin Bran Crunch in a "package stating 'heart healthy,' " Mot. at 1-appears to align neatly with the Ninth Circuit's directive in Mazza that "the relevant class must be defined in such a way as to include only members who were exposed to advertising that is alleged to be materially misleading." 666 F.3d at 596.

The only case that Kellogg cites in support of its argument is this Court's order denying class certification in Bruton v. Gerber Products Co. , 2018 WL 1009257 (N.D. Cal. Feb. 13, 2018). In particular, Kellogg asserts that in Bruton , "[t]his Court rejected th[e] precise [class definition]

tactic" used by Plaintiff in the instant case because "even though the plaintiffs' counsel [in Bruton ] tried to define the class to include only those who purchased products labeled with 'one or more of the following [challenged] claims,' this Court nonetheless held that individual issues predominated because the Court would need to determine whether each consumer purchased a product with one of the challenged statements." Opp. at 14 (quoting Bruton , 2018 WL 1009257 at *2 ). Kellogg misreads this Court's Bruton class certification order. In that order, while discussing the viability of the plaintiff's proposed damages model, the Court did note that 66 of the 69 products at issue "had multiple label iterations with material variation-some labels contained the challenged statements, some did not." Id. at *10 (internal quotation marks omitted). The Court concluded that this was problematic for the proposed damages model because "the proposed [damages model] presumes [that the plaintiff] will be able to determine precisely when consumers were buying Gerber products with the challenged label statements, and when consumers were buying Gerber products without the challenged label statements," but that assumption was "mistaken." Id. at *11. Thus, in Bruton , the Court clearly did not disapprove of how the plaintiff narrowly defined the class to include only those California consumers who purchased products labeled with "one or more" of the challenged statements at issue in that case. Id. at *2. Instead, the Court merely determined that the plaintiff's proposed damages model was rendered unworkable by the fact that some of the products at issue in Bruton did not display the challenged statements for some stretches of time during the class period. See id. at *11. As discussed below, Kellogg raises this issue with regards to Plaintiff's proposed hedonic regression damages model.

In sum, the Court concludes that, contrary to Kellogg's view, Plaintiff properly defined the subclasses narrowly in order to avoid the individualized issues that would have otherwise arisen from the variations in the packaging for Raisin Bran, Nutri-Grain, and Smart Start during the class period.

b. "Lightly Sweetened" and "Wholesome Goodness"

Kellogg points out that although "each package of Frosted Mini-Wheats and Smart Start" sold during the class period displayed a "lightly sweetened" statement "as part of the phrase 'lightly sweetened whole grain cereal' or 'lightly sweetened, toasted multi-grain flakes,' " that statement only "appear[ed] in miniscule font" and was "not featured or highlighted-whether measured by size, unique font, placement, coloring, or any other metric." Opp. at 15. Similarly, Kellogg further states that "the phrase 'wholesome goodness' appeared only on the back panel of some Nutri-Grain boxes." Id. at 16 n.5. Kellogg asserts that this is significant for class certification purposes because "[c]ourts have ... h[e]ld that class certification is inappropriate if some class members may not have seen the allegedly misleading statement, even if it appeared on each package." Id. at 15. In other words, the crux of Kellogg's argument is that because the "lightly sweetened" and "wholesome goodness" statements were not sufficiently prominently displayed on the packaging for Frosted Mini-Wheats, Smart Start, and Nutri-Grain, class certification is inappropriate for those statements and/or products.

However, the only case that Kellogg cites to reinforce its argument-this Court's order denying class certification in Philips v. Ford Motor Co. , 2016 WL 7428810 (N.D. Cal. Dec. 22, 2016) -plainly does not support Kellogg's assertion that "class certification is inappropriate if some class members may not have seen the allegedly misleading statement, even if it appeared on each package." Opp. at 15. The key predominance issue in Philips was not about whether certain allegedly misleading statements were sufficiently prominently displayed on product packaging. Instead, the plaintiffs in Philips alleged that Ford fraudulently concealed a power steering defect in certain vehicles, and this Court concluded that the plaintiffs could not satisfy the predominance requirement because "an unknown number of class members saw warnings regarding [the alleged power steering defect] in the owner's manual" for the vehicles, and therefore "the Court would be forced to conduct individual inquiries to discover which class members read the owner's manual and which did not." Philips , 2016 WL 7428810 at *23. Exposure to statements displayed on the outside of a product's packaging is clearly more likely, and therefore much easier to infer, than exposure to statements buried in the middle of an owner's manual. Indeed, courts have repeatedly recognized that "[w]here the alleged misrepresentation appears on the label or packaging of each item being sold, class-wide exposure to it may be inferred." Zakaria v. Gerber , 2016 WL 6662723, at *8 (N.D. Cal. Mar. 23, 2016) ; see Ehret v. Uber Techs., Inc. , 148 F.Supp.3d 884, 895 (N.D. Cal. 2015) ("On the other hand, in numerous cases involving claims of false-advertising, class-wide exposure has been inferred because the alleged misrepresentation is on the packaging of the item being sold. In such a case, given the inherently high likelihood that in the process of buying the product, the consumer would have seen the misleading statement on the product and thus been exposed to it, exposure on a classwide basis may be deemed sufficient."); see also Tait , 289 F.R.D. at 482 ("Thus, Mazza stands for the unremarkable proposition that it is difficult to certify a class where the class members are not all exposed to the same representations. This proposition has no relevance to the present case, where Plaintiffs' theory is that Defendant's omissions violated the UCL, FAL, and CLRA and that partial representations on the product itself are misleading.").

That being said, the court in Zakaria also recognized that an inference of class-wide exposure to an alleged misrepresentation affixed to a product's packaging might not be warranted if the alleged misrepresentation is not sufficiently prominently displayed on the packaging. Specifically, the Zakaria court observed that one of the alleged misrepresentations in that case-a statement claiming that Gerber's "Good Start Gentle" product could reduce "the risk of atopic dermatitis"-was displayed "in small font" in the middle of a block of text "on the back ... cover" of the product. 2016 WL 6662723 at *8. The court found that because this alleged misrepresentation was not "prominently displayed," "it cannot be inferred that there is a 'high likelihood that in the process of buying the product, the consumer would have seen the misleading statement on the product and thus been exposed to it.' " Id. (quoting Ehret , 148 F.Supp.3d at 895 ). Subsequently, the Zakaria court contrasted this alleged misrepresentation with another alleged misrepresentation-a statement claiming that Gerber's "Good Start Gentle" could reduce the risk of developing allergies-and found that an inference of class-wide exposure to the allergy statement was warranted because the allergy statement was "displayed prominently on the top front of the Good Start Gentle containers." Id.

In the instant case, the Court finds that class-wide exposure to the "wholesome goodness" phrase on Nutri-Grain packaging cannot be inferred. Much like the "atopic dermatitis" statement in Zakaria , "wholesome goodness" only appeared (1) on the back panel of the Nutri-Grain packaging; (2) "in small font"; and (3) in the middle of a block of text. 2016 WL 6662723 at *8 ; see ECF No. 160-7; ECF No. 130 Exhs. 19-22. Thus, the "wholesome goodness" phrase on Nutri-Grain packaging was not sufficiently "prominently displayed" to warrant an inference of class-wide exposure. Zakaria , 2016 WL 6662723 at *8.

However, the Court cannot say the same for the "lightly sweetened" statement displayed on the packaging for Frosted Mini-Wheats and Smart Start. Although this statement does appear in relatively small font "as part of the phrase 'lightly sweetened whole grain cereal' or 'lightly sweetened, toasted multi-grain flakes,' " Opp. at 15, it is displayed in the center of the front panel of the packaging for Frosted Mini-Wheats and Smart Start, and is not located in the middle of a block of text. See ECF Nos. 160-5 & 160-6. As a result, the Court cannot conclude that an inference of class-wide exposure to the "lightly sweetened" statement is unwarranted.

Because class-wide exposure to the "wholesome goodness" phrase on Nutri-Grain packaging cannot be inferred, in order to resolve Kellogg's liability for that phrase, the Court would have to engage in individualized inquiries to discover which members of the Nutri-Grain Soft-Baked Breakfast Bar Subclass actually saw "wholesome goodness" and which did not. Additionally, the "wholesome goodness" phrase is the only statement on the packaging for Nutri-Grain Soft-Baked Breakfast Bars that Plaintiff challenges as misleading. See ECF No. 130 Exhs. 19-22. As a result, Plaintiff fails to meet Rule 23(b)(3)'s predominance requirement for his proposed Nutri-Grain Soft-Baked Breakfast Bar Subclass. Accordingly, the Court DENIES Plaintiff's motion for class certification as to the proposed Nutri-Grain Soft-Baked Breakfast Bar Subclass.

2. Individualized Health Effects

Kellogg's second argument against predominance is that "the alleged falsity of the challenged statements" "differs for each consumer" because "the health impact of consuming [the] added sugar" in the Kellogg products at issue in the instant case varies person-by-person, depending on, inter alia, a person's "age, gender, metabolism, general eating habits, activity level, genetic factors, and other health conditions." Opp. at 16-17. Kellogg asserts that "the challenged statements are false" or misleading to a particular person only if "the amount of added sugar [in the products at issue] causes physical harm " to that specific person "in the form of increased risk of diabetes, heart disease, and other ailments." Id. at 16 (emphasis added). Therefore, Kellogg states that "if consumption of Kellogg'[s] ... cereal has no negative impact on a specific person's health, then the challenged statements (such as 'wholesome goodness' or 'heart health') are not false as to that person." Id.

Kellogg's argument is not well-taken. As mentioned above, under the FAL, CLRA, and the "fraudulent" prong of the UCL, the issue of whether a particular statement on a product's packaging or labeling is false, deceptive, or materially misleading is evaluated according to an objective "reasonable consumer" standard. Lavie , 105 Cal. App. 4th at 507, 129 Cal.Rptr.2d 486 ; see Yumul v. Smart Balance, Inc. , 733 F.Supp.2d 1117, 1125 (C.D. Cal. 2010) (explaining that a "reasonable consumer" standard applies to product mislabeling claims under FAL, CLRA, and UCL). Thus, contrary to Kellogg's view, the actual physical "impact" of the products at issue on any "specific [class member's] health" has no bearing on whether the challenged health statements are false, deceptive, or materially misleading under the FAL, CLRA, or the "fraudulent" prong of the UCL. Opp. at 16. Instead, the falsity or deceptiveness of the challenged health statements on the products at issue will be determined based solely on whether the health statements are likely to deceive or mislead a hypothetical reasonable consumer in light of the amount of added sugar that Kellogg puts into those products. As a result, "the alleged falsity of the challenged statements" will not "differ[ ] for each consumer" based on that consumer's individual health circumstances, and thus there will be no need to inquire into each class member's "unique circumstances." Opp. at 16.

Kellogg's unpersuasive argument appears to stem from a mistaken assumption that the injury that Plaintiff is seeking to redress in the instant case is physical in nature. For example, Kellogg relies on two false advertising cases, Gartin v. S & M NuTec LLC , 245 F.R.D. 429 (C.D. Cal. 2007), and Pelman v. McDonald's Corp. , 272 F.R.D. 82 (S.D.N.Y 2010), in which the plaintiffs sought to recover for physical harms caused by the allegedly false advertising on behalf of putative classes. Opp. at 17; see Gartin , 245 F.R.D. at 432-33 (explaining that the plaintiffs alleged that the defendant failed to "disclose certain dangers associated with" defendant's dog treats, and that the plaintiffs sought to recover for the physical harms suffered by their dogs as a result of the defendant's failure to disclose these risks); Pelman , 272 F.R.D. at 84-85 ("Plaintiffs claim that the effect of Defendant's affirmative representations and material omissions throughout this marketing scheme-from 1985 until the filing of this case in 2002-was to mislead consumers into falsely believing that Defendant's food products may be consumed on a daily basis without incurring any adverse health effects, and that, as a result of this marketing scheme, Plaintiffs and putative class members suffered injury in the form of, inter alia, the development of certain adverse medical conditions ."(emphasis added) ). In both Gartin and Pelman , class certification was denied because individual factual issues regarding whether the challenged products actually caused physical harm to each of the class members would predominate over common questions. See Gartin , 245 F.R.D. at 436 ("Individual factual issues are likely to predominate the disposition of the class members' claims. For example, individual factual issues will predominate the determination of whether any alleged defects in Greenies proximately caused putative class members' pets' injuries .... Other unique factors will also affect the causation analysis, such as the dog's unique medical history, environment, age, and diet."); Pelman , 272 F.R.D. at 94 ("The court therefore concludes that, because factual questions with regard to, at the very least, the nutritional composition of food products consumed by each plaintiff from sources other than Defendant's facilities, as well as the level of regular physical activity engaged in by each plaintiff, predominate in the inquiry with respect to an essential element of Plaintiffs' cause of action, this case is not appropriate for adjudication on a class-wide basis."). Kellogg relies on both Gartin and Pelman to argue that the predominance requirement has not been satisfied in the instant case. See Opp. at 17.

However, as Plaintiff points out, the instant action does not seek redress for any physical harms caused by Kellogg's packaging statements. Instead, Plaintiff "is seeking to recover for the economic injury caused by Kellogg representing that its ... foods are healthy." Reply at 4. Chacanaca v. Quaker Oats Co. , 752 F.Supp.2d 1111 (N.D. Cal. 2010), a case that involved health statements that are similar to those in the instant case, is instructive on this point. In Chacanaca , the plaintiffs brought a putative class action asserting that the defendant violated the FAL, CLRA, and UCL by "label[ing] and market[ing]" "defendant's Chewy Bars product ... to suggest that they are in fact wholesome and healthful" even though the Chewy Bars contained "dangerous amounts of trans fat." Id. at 1114. The defendant in Chacanaca argued that the plaintiffs failed to "establish[ ] an injury in fact" for Article III standing purposes because they "categorically failed to plead any health-related ailments or impact from consumption of the trans fat-laden snacks." Id. at 1124-25. The court rejected this argument, explaining that the plaintiffs "correctly point out that the particular harm for which they seek redress is not health related. Rather, the claims sound in deception, unfairness and false advertising." Id. at 1125. The Chacanaca court further explained that "[t]he injury alleged here is the purchase of food products that contain an ingredient the plaintiffs find objectionable." Id. As in Chacanaca , "the particular harm for which" Plaintiff "seek[s] redress" in the instant case "is not health related" in any relevant sense. Id. Instead, like the plaintiff in Chacanaca , Plaintiff seeks redress for economic injuries caused by Kellogg's challenged health statements. As a result, both Gartin and Pelman are inapposite and do not have any bearing on whether the predominance requirement of Rule 23(b)(3) is satisfied in the instant case.

Kellogg's reliance on In re Vioxx Class Cases , 180 Cal. App. 4th 116, 103 Cal.Rptr.3d 83 (2009), Opp. at 17, is also unavailing. In Vioxx , the plaintiffs brought a putative class action alleging that Merck violated the FAL, CLRA, and UCL because it "knew about" certain "dangers of Vioxx"-"a pain-relieving drug" manufactured and marketed by Merck-but nonetheless "engaged in a campaign to hide or explain away those risks." 180 Cal. App. 4th at 120, 103 Cal.Rptr.3d 83. The Vioxx court denied class certification in part because "the materiality of any" alleged misrepresentations by Merck about the risks of Vioxx could not "be presumed" on a class-wide basis, and instead had to be evaluated on an individualized basis. Id. at 134, 103 Cal.Rptr.3d 83. According to the Vioxx court, this was because (1) consumers could only obtain Vioxx through a prescription from a physician; and therefore (2) in addition to Merck's representations about the risks of Vioxx, "physicians consider many patient-specific factors in determining" whether to prescribe Vioxx, "including the patient's history and drug allergies, the condition being treated, and the potential for adverse reactions with the patient's other medications." Id. Thus, because "all of these patient-specific factors are a part of" a physician's decision to prescribe Vioxx, a court would have to engage in individualized patient-by-patient inquiries to determine whether Merck's representations about the risks of Vioxx were actually material "to any particular prescribing decision." Id.

In contrast to Vioxx , access to the cereal products at issue is not similarly restricted and is generally available to all consumers. Thus, access is in no way determined on an individualized basis by third-party medical professionals who are required to take patient-specific factors into account when making prescription decisions. In other words, in the instant case, because consumers do not need to obtain Kellogg's cereal products by prescription, there is no risk that the materiality of the challenged statements will vary from class member to class member because of the patient-specific determinations inherent in any physician's prescription decision-making process.

For these reasons, the Court disagrees with Kellogg's contention that "individual issues predominate" in the instant case "because the health impact of consuming added sugar ... differs for each consumer." Opp. at 16.

3. Damages Models

Although individual damages calculations alone do not make class certification inappropriate under Rule 23(b)(3), see Leyva v. Medline Indus., Inc. , 716 F.3d 510, 514 (9th Cir. 2013) ("[T]he amount of damages is invariably an individual question and does not defeat class action treatment."), the United States Supreme Court has held that the plaintiff bears the burden of providing a damages model showing that "damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3)." Comcast , 569 U.S. at 35, 133 S.Ct. 1426. The damages model "must measure only those damages attributable to" the plaintiff's theory of liability. Id. If the plaintiff does not offer a plausible damages model that matches her theory of liability, "the problem is not just that the Court will have to look into individual situations to determine the appropriate measure of damages; it is that Plaintiffs have not even told the Court what data it should look for." In re MyFord Touch Consumer Litig. , 2016 WL 7734558, at *15 (N.D. Cal. Sept. 14, 2016) (" MyFord Touch I ").

Kellogg's third predominance argument is that none of Plaintiff's proposed damages models satisfy the requirements set forth in Comcast. See Opp. at 20-29. Plaintiff proposes three damages models: (1) a "[c]onjoint analysis"; (2) a "hedonic regression"; and (3) an "advantage realized model." Mot. at 22-25. Plaintiff states that both the conjoint analysis and the hedonic regression correspond with Plaintiff's affirmative misrepresentation theory of liability, while the advantage realized model corresponds with Plaintiff's deceptive omission theory of liability. See id. The Court considers each of these damages models in turn.

a. Conjoint Analysis

As discussed above, Plaintiff's affirmative misrepresentation theory of liability is that (1) the challenged health statements amount to affirmative misrepresentations that violate the FAL, the CLRA, and the UCL's "fraudulent" prong; and (2) these misrepresentations caused consumers (including Plaintiff) to "pa[y] more for the Kellogg cereals and bars" than they otherwise would have. SAC ¶ 273. In other words, consumers "would only have been willing to pay less" for these Kellogg products-or would have been "unwilling to purchase them at all"-"absent the [challenged health] statements" identified by Plaintiff. Id. Accordingly, one of Plaintiff's damages experts, Steven Gaskin, proposes a "choice-based conjoint analysis" damages model. ECF No. 134 ("Gaskin Decl.") at 4. As Gaskin notes, "[t]he general idea behind conjoint analysis is that the market value for a particular product is driven by features or descriptions of features embodied in that product." Id. at 7. Survey respondents are therefore asked to choose between different sets of product attributes, the responses are aggregated, and statistical methods are then used to determine the value (often termed "partworth") that consumers attach to each specific attribute. Id. at 7-10; In re NJOY, Inc. Consumer Class Action Litig. , 120 F.Supp.3d 1050, 1073 (C.D. Cal. 2015) (discussing conjoint analysis).

In the instant case, Gaskin proposes to ask survey respondents to choose between hypothetical cereal or breakfast bar products that differ in brand, flavor, labeling statements, price, and, for the survey corresponding to Kellogg's Frosted Mini Wheats, biscuit size. Gaskin Decl. at 16-21. Gaskin states that "[t]he range of prices [he] propose[s] to use in this conjoint analysis mirrors those actually observed in the market and is based on actual sales data."

Id. at 12. Gaskin also proposes to use in his conjoint analysis quantity figures that reflect the quantities of the challenged products that were actually sold during the class period, in order to further "account[ ] for appropriate market considerations, including the fact that the number of Kellogg's Raisin Bran, Frosted Mini Wheats, [and] Smart Start ... purchased is fixed as a matter of history, which is to say that their sale is a matter of historical fact." Id. at 11. Additionally, Gaskin explains that the set of labeling statements shown to survey respondents will be comprised of a mixture of the alleged affirmative misrepresentations (for example, "Heart Healthy") and some "distractor" statements (for example, "Excellent Source of Fiber"). Id. at 17-21.

Gaskin states that, based on these survey inputs, the conjoint analysis will yield estimates of the "market price premia" associated with the alleged affirmative misrepresentations in the instant case. Id. at 11. In other words, the conjoint analysis will isolate the monetary value that consumers in the cereal market (as it existed over the class period) attached to the alleged affirmative misrepresentations. It is well-established that the " 'price premium' attributable to" an alleged misrepresentation on product labeling or packaging is a valid measure of damages in a mislabeling case under the FAL, CLRA, and UCL. Brazil v. Dole Packaged Foods, LLC , 660 F. App'x 531, 534 (9th Cir. 2016) ; see Werdebaugh v. Blue Diamond Growers , 2014 WL 2191901, at *22 (N.D. Cal. May 23, 2014) ("The proper measure of restitution in a mislabeling case is the amount necessary to compensate the purchaser for the difference between a product as labeled and the product as received."). Accordingly, Plaintiff asserts that Gaskin's proposed conjoint analysis satisfies Comcast 's requirement that Plaintiff's damages model must "measure only those damages attributable to" Plaintiff's affirmative misrepresentation theory of liability. 569 U.S. at 35, 133 S.Ct. 1426 ; see Mot. at 24.

Kellogg advances two sets of arguments against Gaskin's proposed conjoint analysis. First, Kellogg argues that the conjoint analysis fails to satisfy Comcast because it only seeks to measure people's subjective willingness to pay, or demand, without considering the supply side of the equation-or, put another way, "other market factors that determine a product's price." Opp. at 21-23. Second, Kellogg asserts that the conjoint analysis "suffers from egregious methodological flaws that doom it under" Daubert , and explicitly references its motion to exclude Gaskin's opinion testimony under Daubert. Opp. at 23-24 (citing Gaskin Daubert Mot. at 9-19). The Court addresses these arguments in turn.

i. Supply-Side Factors

As discussed above, Kellogg argues that Gaskin's proposed conjoint analysis measures "consumers' subjective willingness to pay for the challenged statement[s]"-or in other words, consumer demand-without considering the supply side of the equation. Opp. at 21. Consequently, according to Kellogg, the conjoint analysis cannot possibly "calculate the price premium charged by Kellogg for the challenged statement[s]" because " 'the ultimate price of a product is a combination of market demand and market supply.' " Id. (quoting Apple, Inc. v. Samsung Elecs. Co. , 2014 WL 976898, at *2 (N.D. Cal. Mar. 6, 2014). Kellogg relies on two cases in particular, In re NJOY and Saavedra v. Eli Lilly & Co. , 2014 WL 7338930 (C.D. Cal. Dec. 18, 2014), see Opp. at 22-23, both of which rejected proposed conjoint analyses because those analyses looked "only 'to the demand side of the market equation,' converting what is properly 'an objective evaluation of relative fair market values into a seemingly subjective inquiry of what an average consumer wants.' " In re NJOY , 120 F.Supp.3d at 1119 (quoting Saavedra , 2014 WL 7338930 at *5 ); see also id. (stating that the damages expert's conjoint analysis "provide[d] only a model for testing what a consumer is willing to pay, without considering other factors in a functioning marketplace"); id. at 1122 ("[T]he willingness to pay for products with or without the message ... does not permit the court to calculate the true market price of NJOY e-cigarettes absent the purported misrepresentations. Plaintiffs' damages methodology is therefore deficient under Comcast [.]").

Kellogg is correct that, in cases where price premia are the relevant measure of damages, courts have repeatedly rejected conjoint analyses that only measure demand-side willingness-to-pay. However, courts have also found that conjoint analyses can adequately account for supply-side factors-and can therefore be utilized to estimate price premia without running afoul of Comcast -when (1) the prices used in the surveys underlying the analyses reflect the actual market prices that prevailed during the class period; and (2) the quantities used (or assumed) in the statistical calculations reflect the actual quantities of products sold during the class period. For example, in In re Dial Complete Marketing and Sales Practices Litigation , 320 F.R.D. 326 (D.N.H. 2017), the court approved a proposed conjoint analysis where the plaintiffs argued that the conjoint analysis had adequately "account[ed] for the supply side" because "the supply element of the supply and demand price function is fixed" in the analysis "and is set, or included, in the [market] price[s] paid for" the product at issue. Id. at 334 (emphasis added). The court further noted that the proposed conjoint analysis was "one in which quantity (the number of products with the offending claims actually sold) is held constant ... in determining" the price premium, id. at 336 (emphasis added), which means that the conjoint analysis used a "quantity" figure that matched the quantity of the challenged product that was actually sold during the class period. The court explained that the reason the proposed conjoint analysis "held" quantity "constant" in this manner was because the conjoint analysis sought to calculate the price premium attributable to the challenged labeling statement by first "calculat[ing] the highest price in the actual market at which Dial could have sold the same number of products without the challenged [statement]." Id. (emphasis added); see also In re MyFord Touch Consumer Litig. , 291 F.Supp.3d 936, 969-71 (N.D. Cal. 2018) (" MyFord Touch II ") (approving a nearly identical proposed conjoint analysis from the same expert and finding that the conjoint analysis adequately accounted for supply-side factors "by assuming that the supply-the quantity-was fixed"); Davidson v. Apple, Inc. , 2018 WL 2325426, at *22 (N.D. Cal. May 8, 2018) (finding that a proposed conjoint analysis from the same expert adequately "account[ed] for the supply side of the equation" by holding supply (and therefore quantity) constant).

Similarly, in Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc. , 2018 WL 3126385 (N.D. Cal. June 26, 2018), the court rejected the defendant's argument that the plaintiffs' proposed conjoint analysis ignored supply-side factors and "only considered a consumer's willingness to pay in the conjoint survey." Id. at *8. The court concluded that, contrary to the defendant's position, the proposed conjoint analysis "calculated the price premium consumers paid for the [challenged] claim, and not just a theoretical willingness to pay," because, among other things, the conjoint survey (1) "used actual market-clearing prices as the basis for the prices in the survey"; and (2) "took into account the fixed quantity of supply of [the product] because those sales occurred in the past. " Id. at *8 (emphases added) (internal quotation marks omitted). Likewise, in In re Lenovo Adware Litigation , 2016 WL 6277245 (N.D. Cal. Oct. 27, 2016), the court found that a proposed conjoint analysis adequately "ensure[d] that the results [of the conjoint analysis] would 'reflect the market' "-and not just demand-side willingness-to-pay-by (1) incorporating the market " 'pric[es] of the [products] at issue [and of] comparable [products]' " into the survey; and (2) holding quantity constant "because all sales of the [products] at issue have occurred in the past." Id. at *21 (internal quotation marks omitted).

In the instant case, the Court finds that, contrary to Kellogg's view, Gaskin's proposed conjoint analysis adequately accounts for supply-side factors and does not merely measure demand-side willingness-to-pay. Like the conjoint analyses in Dial , MyFord Touch II , Davidson , Fitzhenry-Russell , and Lenovo Adware , Gaskin's proposed conjoint analysis (1) utilizes prices that "mirror[ ] those actually observed in the market" and that are "based on actual sales data," Gaskin Decl. at 12; and (2) holds quantity constant-by using the quantities of the challenged products that were actually sold during the class period-in order to "account[ ]" for "the fact that the number of Kellogg's Raisin Bran, Frosted Mini Wheats, [and] Smart Start ... purchased is fixed as a matter of history, which is to say that their sale is a matter of historical fact." Id. at 11. Plaintiff explains that these measures adequate