Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AMENDED MOTION FOR CLASS CERTIFICATION MARGARET M. MORROW, District Judge. On June 28, 2011, Robert Briseno filed a complaint against ConAgra; between October and December 2011, the court consolidated several cases filed against ConA-gra under the caption above. On January 12, 2012, plaintiffs filed a First Consolidated Amended Complaint. On February 24, 2012, ConAgra filed a motion to dismiss, which the court granted in part and denied in part on November 15, 2012. On December 19, 2012, plaintiffs filed a Second Consolidated Amended Complaint. On February 20, 2014, they filed a motion seeking an order permitting the withdrawal of several named plaintiffs and the dismissal of their claims; the court granted this motion on May 5, 2014. The same day, plaintiffs filed a motion for class certification. On June 2, 2014, Con-Agra filed a motion to strike the declarations of plaintiffs’ experts, Colin B. Weir and Charles M. Benbrook. The next day, plaintiffs filed a motion seeking an order permitting the withdrawal of named plaintiffs Bonnie McDonald and Phyllis Scarpelli and the dismissal of their claims. The court subsequently granted plaintiffs’ motion and permitted McDonald and Scarpelli to withdraw as named plaintiffs on July 31, 2014. On August 1, 2014, the court denied plaintiffs’ motion for class certification, but granted them leave to file an amended motion for class certification. Plaintiffs did so on September 8, 2014. ConAgra opposed the amended motion on October 6, 2014. The same day, it filed a motion to strike various declarations filed in support of plaintiffs’ amended motion. Plaintiffs oppose ConAgra’s motion to strike. I. BACKGROUND A. Factual Background Plaintiffs are consumers residing in eleven different states who purchased Wesson Oils between January 2007 and their entry into this case. They allege that from at least June 27, 2007 to the present, ConA-gra Foods, Inc. (“ConAgra”) deceptively and misleadingly marketed its Wesson brand cooking oils, made from genetically-modified organisms (“GMO”), as “100% Natural.” Throughout the proposed class period, every bottle of Wesson Oil carried a front label stating that the product was “100% Natural.” Plaintiffs seek to certify eleven statewide classes as follows: “All persons who reside in the States of California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, or Texas who have purchased Wesson Oils within the applicable statute of limitations periods established by the laws of their state of residence (the ‘Class Period’) through the final disposition of this and any and all related actions.” Plaintiffs allege claims for violation of state consumer protection laws, breach of express warranty, breach of the implied warranty of merchantability, and unjust enrichment. Specifically, they plead the following claims: • California: (1) California Consumer Legal Remedies Act, California Civil Code §§ 1750 et seq. and California Unfair Competition Law, California Business & Professions Code §§ 17200 et seq. and §§ 17500 et seq.; (2) California Commercial Code § 2813; California Commercial Code § 2314. • Colorado: (1) Colorado Consumer Protection Act, Colorado Revised Statutes §§ 6-1-101 et seq.; (2) Colorado Revised Statutes § 4-2-313; (3) Colorado Revised Statutes § 4-2-314; (4) Unjust Enrichment. • Florida: (1) Florida Deceptive and Unfair Trade Practices Act, Florida Statutes Annotated §§ 501.201 et seq.; (2) Unjust Enrichment. • Illinois: (1) Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Illinois Compiled States §§ 505/1 ■ et seq.; (2) Unjust Enrichment. • Indiana: (1) Indiana Code § 26-1-2-318; (2) Indiana Code § 26-1-2-314; (3) Unjust Enrichment. • Nebraska: (1) Nebraska Consumer Protection Act, Nebraska Revised Statutes §§ 59-1601 et seq.; (2) Nebraska Revised Statutes § 2-313; (3) Nebraska Revised Statutes § 2-314; (4) Unjust Enrichment. • New York: (1) New York Consumer Protection Act, New York General Business Law §§ 349 et seq.; (2) N.Y. U.C.C. Law § 2-313; (3) Unjust Enrichment. • Ohio: (1) Ohio Consumer Sales Practices Act, Ohio Revised Code §§ 1345.01 et seq.; (2) Unjust Enrichment. • Oregon: (1) Oregon Unfair Trade Practices Act, Oregon Revised Statutes §§ 646.605 et seq.; (2) Oregon Revised Statutes § 72-3130; (3) Unjust Enrichment. • South Dakota: (1) South Dakota Deceptive Trade Practices and Consumer Protection Law, South Dakota Codified Laws §§ 37-24-1 et seq.; (2) S.D. Cod. Laws § 57A-2-313; (3) South Dakota Codified Laws § 57A-2-314; (4) Unjust Enrichment. • Texas: (1) Texas Deceptive Trade Practices-Consumer Protection Act, Texas Business & Commerce Code §§ 17.41 et seq.; (2) Unjust Enrichment. B. ConAgra’s Request for Judicial Notice ConAgra requests that the court take judicial notice of ten documents and various attached exhibits, each of which has previously been filed in this action, in support of its opposition to plaintiffs’ amended motion for class certification. Specifically, ConAgra asks that the court take judicial notice of: (1) the Declaration of Colin B. Weir in Support of Plaintiffs’ Motion for Class Certification and for Appointment of Counsel, which plaintiffs filed on May 5, 2014 as Docket No. 243; (2) the Declaration of Raquelle Hunter in Opposition to Plaintiffs’ Motion for Class Certification and Appointment of Counsel, which ConA-gra filed on June 2, 2014 as Docket No. 266; (3) the Declaration of Dominique M. Hanssens, Ph.D., in Opposition to Plaintiffs’ Motion for Class Certification and Appointment of Counsel, with attached appendices and exhibits, which ConAgra filed on June 2, 2014 as Docket No. 267; (4) the Declaration of Keith R. Ugone in Opposition to Plaintiffs’ Motion for Class Certification, with attached appendices and exhibits, which' ConAgra filed on June 2, 2014 as Docket No. 268; (5) the Declaration of Robert B. Hawk in Opposition to Plaintiffs’ Motion for Class Certification, with attached exhibits, which ConAgra filed on June 2, 2014 as Docket No. 269; (6) the Declaration of Stacy R. Hovan in Opposition to Plaintiffs’ Motion for Class Certification, with attached exhibits, which ConAgra filed on June 2, 2014 as Docket No. 270; (7) the Declaration of Marcella Thompson in Opposition to Plaintiffs’ Motion for Class Certification, which ConAgra filed on June 2, 2014 as Docket No. 271; (8) the Rebuttal Declaration of Colin B. Weir in Support of Plaintiffs’ Reply Memorandum of Points and Authorities in Further Support of Plaintiffs’ Motion for Class Certification, which plaintiffs filed on June 30, 2014 as Docket No. 285; (9) the Declaration of Dr. Elizabeth Howlett, which plaintiffs filed on June 30, 2014 as Docket No. 288; and (10) the court’s Order Denying Plaintiffs’ Motion for Class Certification, which was entered on August 1, 2014 as Docket No. 350. It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence. “Judicial notice is. properly taken of public records, such as transcripts, orders, and decisions made by ... courts or administrative agencies.” See Wayne v. Leal, No. 07 CV 1605 JM (BLM), 2009 WL 2406299, *4 (S.D.Cal. Aug. 4, 2009); Molus v. Swan, No. 05cv452-MMA (WMc), 2009 WL 160937, *2 (S.D.Cal. Jan. 22, 2009) (“Courts also may take judicial notice of their own records,” citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.1986)). The court may thus taken judicial notice of the filings and order referenced in ConA-gra’s request for judicial notice. See NovelPoster v. Javitch Canfield Group, No. 13-CV-05186-WHO, 2014 WL 5594969, *4, n. 7 (N.D.Cal. Nov. 3, 2014) (“In conjunction with the motion, defendants requested judicial notice of various documents, including NovelPoster’s ex parte application for a temporary restraining order in this case and this Court’s subsequent order .... Defendants’ request for judicial notice of the TRO application and order is GRANTED”); see also In re Linda Vista Cinemas, L.L.C., 442 B.R. 724, 740 n. 7 (Bankr.D.Ariz.2010) (stating that “[t]he court takes judicial notice of its own records,” specifically, a declaration attached to the opposition to a preliminary injunction motion, citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980)). Accordingly, the court grants ConAgra’s request for judicial notice, “although [ConAgra] [is] advised for future reference that [it] need not seek judicial notice of documents previously filed in the same case.” “An accurate citation will suffice.” NovelPoster, 2014 WL 5594969 at *4 n. 7. II. DISCUSSION A. ConAgra’s Motion to Strike and Evidentiary Objections Before addressing the merits of the certification motion, the court must first consider ConAgra’s challenges to declarations filed by the named plaintiffs and plaintiffs’ experts. ConAgra contends that the expert declarations of Colin B. Weir and Elizabeth Howlett, Ph.D. submitted in support of plaintiffs’ amended motion for class certification, as well as the reply declarations of Weir, Howlett, Benjamin M. Ben-brook, Ph.D., and Dr. John C. Kozup, should be stricken because they are inadmissible and unreliable. It also asserts that the court should strike the newly filed declarations of the named plaintiffs because each is a “sham” declaration that is immaterial to plaintiffs’ amended motion for class certification. Plaintiffs counter that the Weir and Howlett declarations are admissible expert testimony and that the named plaintiffs’ new declarations are consistent with their prior deposition testimony. 1. Evidentiary Objections to the Testimony of Plaintiffs’ Experts The court first considers ConAgra’s challenges to plaintiffs’ experts. While courts in this circuit previously held that expert testimony was admissible in evaluating class certification motions without conducting a rigorous analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court in Dukes expressed “doubt that this [was] so.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2554, 180 L.Ed.2d 374 (2011). After Dukes, the Ninth Circuit approved analysis under Daubert of the admissibility of expert testimony presented in support of or opposition to a motion for class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) (“In its analysis of Costco’s motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert ... ”). As a result, the court applies that standard to the proffered testimony of the parties’ expert witnesses. Under Rule 702, “[i]f scientific, technical, or other specialized knowledge will- assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” - Fed.R.Evid. 702. See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (“[Rule 702]’ consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion”); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) (“There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy” (citations omitted)). Before admitting expert testimony, the trial court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see also Ellis, 657 F.3d at 982 (“Under Daubert, the trial court must act as a ‘gatekeeper’ to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards by making a preliminary determination that the expert’s testimony is reliable”). In conducting this preliminary assessment, the trial court is vested with broad discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Espinosa, 827 F.2d 604, 611 (9th Cir.1987) (“The decision to admit expert testimony is committed to the discretion of the district court and will not be disturbed unless manifestly erroneous”). “The party offering the expert bears the burden of establishing that Rule 702 is satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. CV 02-2258 JM (AJB), 2007 WL 935703, *4 (S.D.Cal. Mar. 7, 2007) (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (in turn citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786)); see also Walker v. Contra Costa County, No. C 03-3723 TEH, 2006 WL 3371438, *1 (N.D.Cal. Nov. 21, 2006) (same, citing Bourjaily v. United States, 483 U.S. 171, 172, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), and In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994)). “In determining whether expert testimony is admissible under Rule 702, the district court must keep in mind [the rule’s] broad parameters of reliability, relevancy, and assistance to the trier of fact.” Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir.1998) (internal quotation marks omitted); see also Jinro Am. Inc. v. Secure Invests., Inc., 266 F.3d 993, 1004 (9th Cir.2001) (“Rule 702 is applied consistent with the ‘liberal thrust’ of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony” (internal quotation marks omitted)). On a motion for class certification, it is not necessary that expert testimony resolve factual disputes going to the merits of plaintiffs claims; instead, the testimony must be relevant in assessing “whether there was a common pattern and practice that could affect the class as a whole.” Ellis, 657 F.3d at 983. a. Plaintiffs’ Expert Colin B. Weir Colin Weir is plaintiffs’ economic expert. Weir is Vice President of Economics and Technology, Inc. (“ETI”), a research and consulting firm specializing in economics, statistics, regulation, and public policy. Weir has worked at the firm for eleven years. He holds an MBA from the High Technology program at Northeastern University, and a Bachelors of Arts- degree in Business Economics from the .College of Wooster. Weir’s academic studies included work on hedonic regression analysis and conjoint analysis. His work at ETI involves econometric and statistical analysis, multiple linear regression, statistical sampling, micro and macroeconomic modeling, and other types of economic analyses. Weir has testified as an expert in federal and state courts, and before the Federal Communications Commission and state regulatory commissions. He has also consulted on a variety of consumer and wholesale products cases, calculating damages related to household appliances, herbal remedies, HBC beauty products, food products, electronics, and computers. Weir opines that: “[I]t is possible to determine damages, with a reasonable degree of specificity, certainty, and accuracy, attributable to ConAgra’s conduct of placing the ’100% Natural’ claim on the label of every bottle of Wesson Oil by applying the scientifically valid economic methodology of hedonic regression to common, class-wide, aggregate historical retail price and attribute data for Wesson Oil and competing cooking oils to calculate a class wide Price Premium, and then multiplying that Price Premium by the total retail amounts all Class Members paid for Wesson Oil to yield total class-wide damages.” He also opines that it is possible to determine damages attributable to ConAgra’s labeling of Wesson Oils as “100% Natural” through the use of a “conjoint analysis survey.” In its August 1 order, the court struck Weir’s declaration because he failed to provide a reliable damages model for calculating classwide damages. The court stated: “Here, unlike-the experts in Ralston [v. Mortg. Investors Grp., Inc., No. 08-536-JF (PSG), 2011 WL 6002640, *9 (N.D.Cal. Nov. 30, 2011),] or Hemmings [v. Tidyman’s, Inc., 285 F.3d 1174 (9th Cir.2002) ], Weir does not provide a damages model that lacks certain, variables or functionality. Rather, he provides no damages model at all. Although the methodologies he describes may very well be capable of calculating damages in this action, Weir has made no showing that this is the case. He does not identify any variables he intends to build into the models, nor does he identify any data presently in his possession to which the models can be applied. The court is thus left with only Weir’s assurance that he can build a model to calculate damages. Stated differently, his declaration is ‘so incomplete as to be inadmissible as irrelevant.’ Hemmings, 285 F.3d at 1188 (quoting Bazemore [v. Friday 1, 478 U.S. [385,] 400 n. 10 [106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) ]). See Building Indus. Ass’n of Wash. v. Wash. State Bldg. Code Council, 683 F.3d 1144, 1154 (9th Cir.2012) (district court did not abuse its discretion in rejecting the declaration of an expert who ‘offered unsupported assertions’ with ‘no data forming the basis for [the expert’s] assumptions or conclusions’); see id. (‘The party offering expert testimony has the burden of establishing its admissibility’). Accordingly, the court finds that Weir’s declaration does not satisfy the requirements of Rule 702. The court therefore grants ConAgra’s motion to strike Weir’s declaration, and will not consider his testimony in deciding the certification motion.” ConAgra argues that Weir’s testimony continues to lack a reliable factual foundation and thus should be stricken by the court and not considered in deciding plaintiffs’ amended motion for class certification. It maintains that Weir’s declaration is flawed in the same ways that his original declaration was defective. Specifically, ConAgra asserts that “Weir fails to identify any data in his possession to which the [hedonic regression] model can be applied or any variables that he intends to build into the model.” ConAgra contends that Weir’s failure to identify the data that would form the basis for his regression analysis leaves the court with nothing but “assurances that are based on incomplete data, [that are] vague assertions regarding variables and likely, outcomes, and [that] are, ultimately false.” The court does not agree. As ConAgra notes, the court previously rejected Weir’s original declaration and proposed regression methodology because he failed to identify, inter alia, the variables he intended to build into the models and the data he possessed to which the models could be applied. Weir’s declaration in support of plaintiffs’ amended class certification remedies these shortcomings. Weir has prepared a preliminary regression model, in which the dependent variable of the proposed methodology being measured is the product’s price/price premium. The model employs a number of independent variables as potential explanatory variables impacting price. Weir states that his preliminary hedonic regression of the price of Wesson Oil products “analyze[s] twenty [] product attributes,” including the brand of oil, the “natural” claim at issue in this litigation, other product label claims, oil variety (e.g., canola, corn, blend, or vegetable), the size of the bottle of oil, promotional prices, and time period. Weir used data from various spreadsheets and reports reflecting historical price, cost, profit and attribute information for Wesson Oils and competitor brands. He obtained this data from twelve spreadsheets produced by ConAgra reflecting (1) internal data related to Wesson Oil products only, and (2) “scanner data” collected by market research companies such as Information Resources, Inc. (“IRI”) and Nielsen, which registers, in real time, price, quantity, and other information about products as they are being purchased by consumers. Weir also received three spreadsheets directly from IRI, which reflect oil sales data from 2009 to mid-2014 on an national and state basis. While Weir acknowledges that this is all the price, cost, and attribute data he has received at this point, the data “affirm[s] [his] understanding that more geographically and temporally specific” can be obtained, and can be used for “more refined regressions.” ConAgra contends Weir has failed to show that the data required to perform a hedonic regression analysis exists or is obtainable; it asserts that the data it provided is not useful in performing the analysis, and becomes useful only after he has isolated the appropriate price premium. It also argues that “Weir’s attribute-related data (1) is incomplete and does not accurately reflect the attributes of [the] products [he] chose[ ] for analysis ..., (2) does not control for historical label claims and label changes, and (3) does not control for other variables that have been shown to affect prices (e.g., geographic locations, sales channels, and retailers).” As support for its assertion that Weir has not shown that he can calculate a price premium associated with 100% Natural claim, ConAgra cites the opinions of its expert, Keith R. Ugone, Ph.D. Dr. Ugone concludes that Weir’s proposed methodology for calculating classwide damages is flawed in several respects; most notably, Ugone asserts' that Weir’s proposed regression analysis cannot isolate the price premium attributable to the purportedly unlawful and misleading conduct plaintiffs allege here, i.e., leading consumers to believe that Wesson Oils do not contain GMOs when, in fact, they do. He also contends that Weir improperly calculates damages on a nationwide basis, rather than on a state-by-state basis consistent with the subclasses proposed for each state, and that Weir inappropriately performed an “expansion” of his data set in an attempt to reflect the number of transactions he believed took place. The court is not persuaded that any of Ugone’s criticisms indicate that Weir’s methodology is unreliable or that he cannot offer an opinion in support of plaintiffs’ amended motion for class certification. As respects Ugone’^ criticism that the methodology does not satisfy the requirement articulated in Comcast Corp. v. Behrend, — U.S.-, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) — i.e., that damages be capable of measurement on a classwide basis — this does not affect the admissibility of Weir’s opinions. Admissibility turns on whether Weir’s methodology is sufficiently reliable; whether it satisfies Comcast and shows that a class should be certified is another question altogether — one which the court will address infra in conducting a Rule 23(b)(3) predominance analysis. Ugone’s remaining criticisms are similarly unavailing. While it is true that a damages model likely will have to calculate the alleged price premium for smaller geographic areas since plaintiffs seek certification of eleven state subclasses, and, as both Weir and Ugone recognize, prices vary from one state to another, Weir’s failure to perform a state-by-state regression analysis at the class certification stage does not compel the conclusion that his methodology is unreliable, and that his opinion should be stricken. Weir states that there is “more geographically and temporally specific information” available from IRI and Nielsen that he was not able to obtain prior to submitting his declaration in support of the certification motion. He reports that the same preliminary regression analysis described in his declaration can be performed using more specific geographical and temporal data. While Ugone asserts that “significant price variation exists across geographic areas ... which could influence a price premium analysis ... and that Weir may not “obtain[ ] the same claimed positive, significant [price premium] estimates [when he conducts a regression analysis on a statewide basis], this suggests only that Weir’s testimony may not be helpful to plaintiffs, not that his methodology is unreliable. Thus, the fact that Weir has not yet conducted a hedonic regression analysis with respect to each of plaintiffs’ proposed state classes does not render his methodology unreliable, particularly given that he has identified the information he is attempting to obtain that will permit him to conduct such an analysis; that he has stated the state by state analysis will be conducted in the same manner as his nationwide analysis; and that he has explained why he is not in possession of the information needed to complete the analysis at this time. ConAgra also asserts that Weir expanded the data set so that he could opine— erroneously — that his results are statistically significant when they are not. In reply, however, Weir notes that economists regularly use data expansion when performing hedonic regression. More importantly, Weir asserts that “expansion of the data and analytic weights will produce an identical coefficient in the regression,” i.e., the same coefficient used to measure the price premium attributable to the “100% Natural” claim. Weir’s reply declaration assuages the concerns raised in Ugone’s reply declaration. The court therefore concludes that Weir’s expansion of the data set does not undercut the reliability of his methodology. To the extent the parties’ experts disagree on this point, the court concludes that the disagreements go to the weight of the results produced by Weir’s regression methodology, not to its reliability. See, e.g., Apple iPod iTunes Antitrust Litig., No. 05-CV-0037 YGR, 2014 WL 4809288, *5-6 (N.D.Cal. Sept. 26, 2014) (“Finally, the Court rejects Apple’s argument that the analysis predicts a constant, immediate overcharge that Apple claims is not consistent with the notion of a gradual lock-in over time. Apple purports to demonstrate that Noll’s own admissions ‘are irreconcilable with the single, unchanging overcharge amount predicted -by his damages model.’ That argument ultimately is one of weight, not evidence of the unreliability of the regression analyses themselves”); Edwards v. National Milk Producers Federation; No. C 11-04766 JSW, 2014 WL 4643639, *6 (N.D.Cal. Sept. 16, 2014) (“Upon review of the evidence and Defendants’ arguments regarding Dr. Connor’s expert reports,- the Court finds that any failure to consider relevant factors goes to the weight of the evidence, as opposed to admissibility”). For all these reasons, the court concludes that Weir’s methodology is sufficiently reliable. ConAgra’s motion to strike his declaration is therefore denied. b. Plaintiffs’ Expert: Elizabeth Howlett, Ph.D. ConAgra also moves to strike the expert declaration of Elizabeth Howlett, Ph.D. Specifically, it to exclude: (1) Howlett’s opinions concerning the Kozup survey, as well as the underlying survey itself; and (2) Howlett’s opinions related to her proposed conjoint analysis methodology. (1) Kozup Survey ConAgra first seeks to strike the Kozup survey, and Howlett’s opinions concerning it, asserting that it is unreliable and inadmissible, and does not provide a sufficient foundation upon which Howlett can base expert opinions. ConAgra cites several admissions by Howlett during her deposition that it contends render the survey, and her opinions, inadmissible: (1) Howlett admitted that the description of GMOs used in the Kozup survey “alarmed and confused survey respondents”; (2) she admitted that the survey sample was too small to provide accurate results for different states’ populations; and.(3) she admitted that the non-response rate was high and likely made the results unreliable. Plaintiffs respond that any deficiencies in the survey affect its weight, not its admissibility. The Ninth Circuit has held that typically “Challenges to survey methodology go to the weight given the survey, not its admissibility.” Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir.1997). See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n. 8 (9th Cir.1997) (“However, ‘as long as they are conducted according to accepted principles,’ survey evidence should ordinarily be found sufficiently reliable under Daubert. Unlike novel scientific theories, a jury should be able to determine whether asserted technical deficiencies undermine a survey’s probative value,” quoting Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1292 (9th Cir.1992)); id. at 1143 (the fact that a survey that was conducted only in the southern portion of the state and asked leading questions went to the weight of the evidence, not the admissibility of the survey); see also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir.2001) (“Treatment of surveys is a two-step process. First, is the survey admissible? That is, is there a proper foundation for admissibility, and is it relevant and conducted according to accepted principles? This threshold question may be determined by the judge. Once the survey is admitted, however, follow-on issues of methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility. These are issues for a jury or, in a bench trial, the judge”); Alcantar v. Hobart Serv., No. ED CV 11-1600 PSG (SPx), 2013 WL 156530, *4 (C.D.Cal. Jan. 15, 2013) (“[A]ny problems with the response rate affect the weight, and not the admissibility of the study”); Microsoft Corp. v. Motorola Inc., 904 F.Supp.2d 1109, 1120 (W.D.Wash.2012) (criticisms of a conjoint analysis concerned “issues of methodology, survey design, reliability, and critique of conclusions, and therefore [went] to the weight of the survey rather than admissibility”); Harris v. Vector Marketing Corp., 753 F.Supp.2d 996, 1001-02 (N.D.Cal.2010) (“[Plaintiff] criticizes the content of the survey conducted and prepared by [defendant’s expert] as well as the response rate to the survey. The problem for [Plaintiff] is that, as she herself admits in her brief, even challenges to defects in methodology normally affect the weight to be accorded the survey and not its admissibility”); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F.Supp. 1283, 1296 (N.D.Cal.1991) (holding that the alleged under-inclusiveness of a survey in a copyright infringement action affected “the weight of the survey, not its admissibility”), aff'd, 964 F.2d 965 (9th Cir.1992), cert. denied, 507 U.S. 985, 113 S.Ct. 1582, 123 L.Ed.2d 149 (1993). Recognizing that most challenges to a survey such as Kozup’s go to its weight rather than its admissibility, ConAgra maintains that Howlett’s admissions show that the underlying methodology used to conduct the survey is flawed and unreliable, and that it thus does not satisfy Dau-bert. The court agrees. The Ninth Circuit has held that before a survey can be admitted • it must: (1) be “conducted according to accepted principles”; and (2) be “relevant” to the issues in the case. Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., 618 F.3d 1025, 1036 (9th Cir.2010); see also Citizens Fin. Group, Inc. v. Citizens Nat’l Bank, 383 F.3d 110, 121 (3d Cir.2004) (excluding survey results because the “methodology was fundamentally flawed,” and rejecting a contention that flawed methodology went to the weight, rather than the admissibility, of the survey). Howlett did not participate in designing or administering the Kozup survey. She asserts, in conclusory fashion, however, that the “[sjurvey adheres to the guidelines and procedures [in the Reference Guide on Survey Research published by the American Bar Foundation] in order to ensure that this research can help inform the [c]ourt about important consumer beliefs and behaviors with regards to the 100% Natural’ claim on the labels of Wesson Oils.” Howlett provides no specifics as to why she reached this conclusion regarding the survey’s design and administration and does not respond substantively to ConAgra’s critiques of the survey methodology. ConAgra charges that the language the survey uses to describe GMOs — e.g., “bacteria,” “virus,” or “toxic to certain insects” — may have alarmed and confused survey respondents, skewing the results. The court is not convinced, as ConAgra argues, that Daubert compels the use of definitions provided by the FDA or the USDA to ensure reliability. ConAgra cites the fact that 51 percent of respondents responded incorrectly to a “manipulation” question after reviewing this description of the GMO process, however; the manipulation question was designed to ensure that survey respondents understood the definition of the GMO process. Despite Howlett’s assertion that the survey’s description of the GMO process is accurate based on her work as an FDA consultant, she concedes that the-manipulation question indicates some misunderstanding among the survey respondents. Given this fact, and the fact that she did not participate in designing or administering the survey, the court cannot credit her conclusory assertion that the methodology of the survey is reliable. ConAgra also argues that the survey’s sample size is too small to provide valid and reliable evidence about the studied population. Courts regularly find that concerns that a survey’s sample size is too small or unrepresentative do not preclude its admission, but go to the weight to be accorded the survey results. See South-land Sod Farms, 108 F.3d at 1143 n. 8 (“However, ‘as long as they are conducted according to accepted principles,’ survey evidence should ordinarily be found sufficiently reliable under Daubert. Unlike novel scientific theories, a jury should be able to determine whether asserted technical deficiencies undermine a survey’s probative value,” quoting Gallo Winery, 967 F.2d at 1292); id. at 1143 (the fact that a survey was conducted only in the southern portion of the state and that it asked leading questions went to the weight of the evidence, not the admissibility of the survey); Lewis Galoob Toys, Inc., 780 F.Supp. at 1296 (holding that the alleged under-inclusiveness of a survey in a copyright infringement action affected “the weight of the survey, not its admissibility”). Courts generally reach this conclusion once they are satisfied that the survey has been “conducted according to accepted principles,” however. Fortune Dynamic, Inc., 618 F.3d at 1036. Howlett concedes that she does not know the sampling method used in the Kozup survey, and additionally that the sample does not approximate the relevant characteristics of the population being surveyed. Howlett further acknowledges that the non-responsive rate on the Kozup survey was 95%, which is even higher than the 92% non-responsive rate that formed the basis for his opinion that the Hanssen survey was unreliable. Although the court previously noted that a survey’s non-responsive rate generally goes to the weight of the results rather than their admissibility, given Howlett’s inability to validate that the survey was reliably designed and administered, such concerns reasonably suggest that the survey’s methodology may be flawed. Finally, ConAgra notes that 53 of the survey respondents failed an “attention check” question designed to ensure the validity of the results. Howlett testified that the responses of individuals who failed the “attention check” question should have been excluded from the survey; she was unsure, however, whether they had been. In sum, Howlett’s testimony demonstrates that she is not sufficiently familiar with the methodology used to design and administer the survey to opine that it was “conducted according to accepted principles” and reliable. See In re TMI Litigation Cases Consolidated II, 922 F.Supp. 1038, 1046-48 (M.D.Pa.1996) (excluding as unreliable an epidemiological analysis in which the epidemiologist did not include a description of study design and at his deposition acknowledged that he had not participated in conducting the study). (2) Conjoint Analysis ConAgra next seeks to exclude Howlett’s opinions on the basis that she is not qualified to offer testimony concerning the conjoint analysis she states can be used to calculate damages. ConAgra contends that Howlett lacks relevant training and experience to opine on conjoint analysis. It notes that Howlett has published only one peer-reviewed article concerning conjoint analysis, which appeared in the 1990’s. It asserts she has never been qualified by any court to testify as an expert on conjoint analysis, has never performed a conjoint analysis to determine or assign a price premium for a particular feature of a product, and is not aware of any conjoint analysis that has been used to estimate a fair price premium. In the Ninth Circuit, an expert may be qualified to offer a particular opinion either as a result of practical training or academic experience. Thomas v. Newton Int'l Enterprises, 42 F.3d 1266, 1269 (9th Cir.1994) (“[T]he advisory committee notes emphasize that Rule 702 is broadly phrased and intended to embrace more than a narrow definition of qualified expert”); Rogers v. Raymark Industries, Inc., 922 F.2d 1426, 1429 (9th Cir.1991) (“A witness can qualify as an expert through practical experience in a particular field, not just through academic training”). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (“[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience”). “The threshold for qualification is low for.purposes of admissibility; mini-, mal foundation of knowledge, skill, and experience suffices.” PixArt Imaging, Inc. v. Avago Tech. Gen. IP (Singapore) Pte. Ltd., No. C 10-00544 JW, 2011 WL 5417090, *4 (N.D.Cal. Oct. 27, 2011). Prior experience need not consist of prior expert testimony on the same issue. See Matuez v. Lewis, No. CV 11-7411-JVS (JPR), 2012 WL 3582122, *8 (C.D.Cal. May 9, 2012), report and recommendation adopted, 2012 WL 3582629 (C.D.Cal. Aug. 20, 2012) (“If witnesses could not testify for the first time as experts, we would have no experts”). Howlett’s academic training and practical experience qualify her to testify to the calculation of damages using a conjoint analysis. She holds a Ph.D. from Duke University in Marketing, with a focus on Behavioral Decision Research and Theory; her coursework involved conjoint analysis. Howlett has also taught conjoint analysis extensively at the undergraduate and graduate levels, and has conducted more than thirty studies using conjoint analysis. She serves on the editorial review board of the Journal of Consumer Affairs and the Journal of Public Policy & Marketing, both of which extensively cover conjoint analysis techniques. Finally, she has been retained as an expert on conjoint analysis in two cases in this district — Forcellati v. Hyland’s, Inc., CV 12-1983 GHK (MRWx), and Fagan v. Neutrogena Corp., CV 13-01316 SVW (OPx). Her combination of educational training and professional experience suffices to qualify her under Rule 702. ConAgra next argues that Howlett’s testimony lacks a rehable factual foundation because she “has [not previously] combined the results of a hedonic regression analysis and a conjoint analysis ..., and 'is unaware” that “anyone else in any peer-reviewed article ... has ever [done so] ... to assign a price premium to a sub-feature.” ConAgra contends Howlett’s conjoint analysis is unreliable because: (1) she admits that “hedonic regression is ‘over her head,’ ” but accepts Weir’s analysis without question; (2) she identifies only six attributes to include in the conjoint analysis, but does not explain how she selected these six; and (3) she proposes a novel and unsupported method of conducting a conjoint analysis. Plaintiffs counter that ConAgra’s criticisms of Howlett’s proposed conjoint analysis go to the weight, but not the admissibility, of her opinions. They assert that ConAgra’s criticism of Weir’s hedonic regression analysis does not impact Howlett’s methodology because conjoint analysis occurs independent of hedonic regression; Howlett’s conjoint analysis assesses the percentage of the “100% Natural” claim that is attributable to the absence of GMOs as opposed to other “non-natural” aspects of the Wesson Oils. This percentage can then be multiplied against the price premium associated with the “100% Natural” calculated by Weir. Plaintiffs also dispute ConAgra’s claim that Howlett has not fully designed the proposed conjoint analysis, noting that she describes at length the procedures and rationale supporting her methodology. ConAgra’s arguments are unavailing. As an initial matter, the court has rejected ConAgra’s challenges to Weir’s methodology. More fundamentally, as plaintiffs note, Howlett’s conjoint analysis will be used to .calculate a percentage of the price premium attributable to the “100% Natural” label that reflects consumers’ belief it means the product contains no GMOs. Even if Weir’s methodology were unreliable, this would not make Howlett’s methodology unreliable as well; at most, it would affect the accuracy of the damages calculation reached by combining the results of hedonic regression and conjoint analysis. • Contrary to ConAgra’s suggestion, moreover, Howlett does explain why she chose to limit her analysis to six attributes and why she chose the attributes she did. Finally, the fact that conjoint analysis has not been used to isolate the exact attribute for which Howlett uses it here does not automatically render her methodology and conclusions unreliable. It is Howlett’s experience with conjoint analysis and the details of her proposed methodology that determine reliability. Having considered these factors, the court concludes that Howlett’s thorough explanation of her methodology and her background in performing similar conjoint analyses, suffice to satisfy Daubert and Rule 702. Accordingly, ConAgra’s motion to strike Howlett’s testimony concerning her conjoint analysis is denied. 2. Evidentiary Objections to the Reply Declarations of Plaintiffs’ Experts Plaintiffs submitted reply declarations from their experts Weir, Howlett, Ben-brook, and Kozup in response to ConA-gra’s opposition to plaintiffs’ amended certification motion and ConAgra’s motion to strike. ConAgra contends each declaration contains improper new evidence, argument, and opinion raised for the first time in reply and should not be considered by the court. In general, a court will not consider evidence submitted for the first time in reply without giving the opposing party an opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.1996) (the district court should not consider new evidence presented in a reply without giving the non-movant an opportunity to respond); see Green v. Baca, 219 F.R.D. 485, 487 n. 1 (C.D.Cal.2003) (exercising discretion to consider evidence presented in reply but affording plaintiff an opportunity to depose a key declarant). Evidence submitted in direct response to evidence raised in the opposition, however, is not “new.” Edwards v. Toys “R” Us, 527 F.Supp.2d 1197, 1205 n. 31 (C.D.Cal.2007) (“Evidence is not ‘new,’ however, if it is submitted in direct response to proof adduced in opposition to a motion”); see Terrell v. Contra Costa County, 232 Fed.Appx. 626, 629 n. 2 (9th Cir.2007) (Unpub. Disp.) (evidence adduced in reply was not new where “[t]he Reply Brief addressed the same set' of facts supplied in Terrell’s opposition to the motion but provides the full context to Terrell’s selected recitation of the facts”). a. Weir Reply Declaration ConAgra seeks to strike paragraphs 2-8, 10-11, 13-60, and 64-72 of Weir’s reply declaration because “Weir goes far beyond his original opinions, attempting to lend support to Dr. Howlett’s methods.” The court cannot agree with ConAgra’s contention that each paragraph identified in the reply supporting their motion to strike and in their evidentiary objections constitutes “new evidence” or opinions not directly responsive to the arguments in ConAgra’s opposition. Paragraphs 2 through 8 provide a summary of Dr. Ugone’s criticisms of Weir’s amended declaration and his regression methodology, and Weir’s responses to each. The information in these paragraphs is directly responsive to Dr. Ugone’s critique and ConAgra’s arguments and is thus properly submitted in reply. Similarly, paragraphs 10 and 11 of the Weir reply declaration do not offer new evidence or opinion; rather, they reiterate Weir’s “opinion that, if Plaintiffs are correct as to their theory of liability — that it was a violation of law for ConAgra to have placed the T00% Natural’ claim on the label of each bottle of Wesson Oil — then the total (i.e. Class-wide) economic harm suffered by Plaintiffs and all other members of the proposed Class is the amount of additional money they paid for Wesson Oil because of the presence of the ‘100% Natural’ claim on the -label of every bottle of Wesson Oil they purchased.” Because this is not new argument or opinion, and is directly responsive to ConAgra’s opposition, the court declines to strike paragraphs 10 and 11 of Weir’s reply declaration. The court also finds unpersuasive ConA-gra’s assertion that paragraphs 13 through 49 of Weir’s reply declaration should be stricken. The information in these paragraphs is directly responsive to Dr. Ugone’s criticisms of Weir’s hedonic regression analysis — indeed, as can be seen from the headings Weir uses, his reply declaration is structured to respond to each criticism Ugone makes. The court thus declines to strike the paragraphs. The remaining portions of the Weir reply declaration that ConAgra seeks to strike — paragraphs 50-60 and 64-72 — are a closer question. As ConAgra notes, Weir proffers opinions concerning the reliability of Howlett’s conjoint analysis, and thus does more than respond to ConA-gra’s criticism of his methodology and opinions. As the court noted in the first class certification order, however, and as ConAgra is aware, Weir was designated as an expert both with respect to hedonic .regression analysis and conjoint analysis. Because Weir offers opinions concerning the reliability of Howlett’s conjoint analysis that respond directly to ConAgra’s criticisms of her methodology, his reply declaration is appropriate. Con-Agra cites no authority indicating that an expert who has been designated to testify on a subject cannot file a reply declaration responding to the opposing party’s criticism of a second expert’s opinions on that subject. Accordingly, the' court declines to strike the remaining paragraphs of Weir’s reply declaration because they do not constitute “new evidence,” and respond directly to evidence proffered by ConAgra in its opposition. See Edwards v. Toys ‘R’ Us, 527 F.Supp.2d 1197, 1205 n. 31 (C.D.Cal.2007) (“Evidence is not ‘new,’ however if it is submitted in direct response to proof adduced in opposition to a motion”); see also Terrell v. Contra Costa County, 232 Fed.Appx. 626, 629 n. 2 (9th Cir.2007) (Unpub. Disp.) (holding that evidence adduced in reply was not new where “[t]he Reply Brief addressed the same set of facts supplied in Terrell’s opposition to the motion but provides the full context to Terrell’s selected recitation of the facts”). b.Howlett Reply Declaration ConAgra next argues that the court should strike paragraphs 5-70 of Howlett’s reply declaration because in those paragraphs, she offers opinions based on her “post-deposition review” of the Kozup survey, as well as new opinions derived from conversations she had with Dr. Kozup about the survey. It asserts that the new evidence would be prejudicial because it will be unable to respond substantively to the information. The court cannot agree. As an initial matter, the opinions in Howlett’s reply declaration respond directly to ConAgra’s criticisms of Kozup’s survey in its motion to strike. More fundamentally, plaintiffs do not rely on the declaration as support for their amended certification motion. Rather, it is apparent that Howlett offers the declaration solely in opposition to ConAgra’s motion to strike her original declaration. Accordingly, the new “evidence” and “opinions” are not offered in “reply,” but rather in opposition to the motion to strike. ConAgra had adequate opportunity to respond substantively to the declaration in its reply supporting the motion to strike; it could, had it wanted, proffered additional evidence that responded directly to the opinions offered in Howlett’s declaration. Accordingly, the court concludes that Howlett’s reply declaration is not new evidence offered for the first time in reply, and denies ConAgra’s request to strike paragraphs 5-70 of the declaration. c.Benbrook Reply Declaration ConAgra next argues that Dr. Ben-brook should not be permitted to explain his definition of genetically modified, food products — which was included in the Kozup survey — because Howlett, who initially presented the survey, was unable to explain why such an “inflammatory description” was used. The court is not persuaded that Benbrook’s declaration constitutes “new evidence.” Ben-brook’s opinion responds directly to Con-Agra’s attack on the definitional language in its opposition and its citation of How-lett’s testimony concerning the biased nature of the word choice. Accordingly, ConAgra’s request that Benbrook’s reply declaration be stricken is denied. d.Kozup Reply Declaration Finally, ConAgra contends that Dr. Kozup’s reply declaration should be stricken in its entirety because, at no time during the pendency of the litigation have plaintiffs designated Kozup as an expert witness. As a result, ConAgra contends, it has not had an opportunity to depose Kozup or otherwise test the veracity of his statements. Plaintiffs respond that ConAgra cannot claim prejudice because it “knew of Dr. Kozup’s involvement since at least June 30, and it could have noticed his deposition at any time but did not.” The purpose of the disclosure requirements of Rule 26 is to avoid surprise and allow each party to prepare to cross-examine those experts the opponent has indicated will be called at trial. See Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (Fed.Cir.2013) (“The purpose of the expert disclosure rule is to ‘provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses,’ ” quoting Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir.2008)). Here, the court issued a modified scheduling order that addressed, inter alia, the filing of an amended motion for class certification and set specific dates by which plaintiffs and defendant had to make ex-' pert witnesses on whom they intended to rely in connection with the amended motion available for deposition. Plaintiffs did not submit Dr. Kozup’s declaration in support of their original class certification motion; rather, they proffered Howlett’s testimony to offer opinions concerning the survey. Nor did plaintiffs indicate, at any prior to the filing of his declaration in support of their reply, that they intended to rely on Dr. Kozup’s testimony in connection with the amended motion. Given this history, ConAgra could not reasonably have been expected to intuit that plaintiffs intended to offer Kozup’s testimony in reply to its opposition to the amended motion. Because ConAgra had no notice that plaintiffs intended to rely on Dr. Kozup as an expert "witness and thus no opportunity to depose him or otherwise test the veracity of his statements and opinions, Kozup’s expert declaration, filed for the first time with plaintiffs’ reply, is untimely. Thus, the court strikes the Kozup declaration in its entirety and will not consider it in deciding the amended certification motion. See Provenz, 102 F.3d at 1483. 3. Evidentiary Objections to the Testimony of Named Plaintiffs In support of their amended motion for class certification, plaintiffs submitted the declarations of: (1) Robert Briseno; (2) Jill Crouch; (3) Julie Palmer; (4) Pauline Michael; (5) Dee Hopper-Kercheval; (6) Kelly McFadden; (7) Maureen Towey; (8) Rona Johnston; and (9) Anita Willman. With the exception of Michael, each plaintiff asserts, inter alia, that he or she would be “very interested” in buying Wesson Oils labeled “100% Natural” if they did not contain GMOs; each plaintiff alternatively states that he or she “might consider” or “will consider” purchasing Wesson Oils in the future if they continue to contain GMOs and ConAgra stops labeling them “100% Natural.” ConAgra contends that the declarations “strain credulity past the breaking point and should be disregarded by this Court as ‘shams’ because they are demonstrably attorney-drafted, preprinted forms, placed in front of complicit witnesses and signed without any serious thought by those witnesses as to the truth of the matter asserted, and contrary to all of their prior averments and/or testimony.” a. Whether the Declarations Should Be Stricken Because They Were Not Prepared by the Declarant As an initial matter, ConAgra contends that the court should strike the declarations because they are “shams” — drafted by someone other than the declarants and signed by the declarants “without any serious thought ... as to the truth of the matter asserted.” As ConAgra and its attorneys well know, most declarations submitted in connection with civil litigation in state and federal courts are prepared by attorneys for clients and witnesses, and thereafter executed by the clients and/or witnesses under penalty of perjury. If the declaration a lawyer has prepared is incorrect or inconsistent with the declarant’s recollection or beliefs, the declarant can refuse to sign the document that has been prepared. See Kuntz v. Sea Eagle Diving Adventures Corp., 199 F.R.D. 665, 669 (D.Haw.2001) (“The court is at a loss to understand Kuntz’s argument that the Declarations Procedure forces his attorneys to ‘create’ evidence by requiring them to decide what to include and what to omit from a declaration. Attorneys consider exactly the same issues in deciding what to say and what not to say during Uve testimony. Presumably counsel who questions a live witness is well aware from discovery what counsel may justifiably expect the witness to say. Counsel has the same background with the witness when drafting a declaration. With both live testimony and a declaration, a witness may refuse to state what counsel anticipates. The ethics of the situation simply do not change depending on the medium”). The court therefore denies ConAgra’s motion to strike the named plaintiffs’ declarations on the basis that they were attorney-drafted and signed “without serious thought” by the declarants. b. Whether the Declarations Should Be Stricken Under the “Sham Affidavit” Rule ConAgra next asserts that the named plaintiffs’ declarations conflict with their theory of the case, and with their prior discovery responses and deposition testimony. In their responses and at their depositions, plaintiffs indicated that they no longer purchased Wesson Oils after learning that they contained GMOs. The declarations they filed in support of the amended certification motion state, however, that they would consider purchasing the products even if they contained GMOs so long as ConAgra were required to remove the “100% Natural” label. Plaintiffs counter that the affidavits are not “shams,” but provide context for their pri- or responses and clarify them. Under the “sham affidavit rule,” which is most often invoked in the context of a motion for summary judgment, “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Van Asdale v. International Game Technology, 577 F.3d 989, 998 (9th Cir.2009) (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991)); see Agricola Baja Best, S. De. R.L. de C.V. v. Harris Moran Seed Co., 44 F.Supp.3d 974, 984, 2014 WL 4385450, *6 (S.D.Cal.2014) (“Harris Moran argues that Baja Best’s experts’ declarations are inadmissible because the declarations contradict prior deposition testimony. Under the sham affidavit rule, ‘a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony,’ ” citing Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.2012) (in turn quoting Van Asdale, 577 F.3d at 998)); Pacific Ins. Co. v. Kent, 120 F.Supp.2d 1205, 1213 (C.D.Cal.2000) (“Kent points to his later deposition testimony as proof of a genuine issue of fact concerning his ownership experience. But, the ‘general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony,’ ” citing Kennedy, 952 F.2d at 266). Where a declaration appears to contradict an earlier declaration or deposition testimony, the court must make a factual determination as to whether the declaration is an attempt to create a “sham” issue of fact. Kennedy, 952 F.2d at 267. An affidavit is not a sham if: (1) it “merely elaborates] upon, explain[s] or clarifies] prior testimony,” Messick v. Horizon Industries, Inc., 62 F.3d 1227, 1281 (9th Cir.1995); (2) if “the witness was confused at that time of the earlier testimony and provides an explanation for the confusion,” Kent, 120 F.Supp.2d at 1213 (citing Kennedy, 952 F.2d at 266); or (3) if the declaration concerns newly discovered evidence, id. See Agricola, 44 F.Supp.3d at 984, 2014 WL 4385450 at *6 (“To ensure appropriate application of the rule, the Ninth Circuit imposes two limitations. First, the Court must ‘make a factual determination that the contradiction [is] actually a sham.’ This limitation is intended to ensure the Court ‘does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony.’ Second, ‘the inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous.’ A declaration that ‘elaborates upon, explains, or clarifies prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy [or] a mistake ... afford no basis for excluding an opposition affidavit’ ” (citations omitted)). A court should apply the sham affidavit rule “with caution,” Van Asdale, 577 F.3d at 998, and only in situations where “the inconsistency between a party’s deposition testimony and subsequent affidavit [is] clear and unambiguous,” id. See also Agricola, 44 F.Supp.3d at 984, 2014 WL 4385450 at *6 (“[I]nvoking the rule too aggressively may ‘ensnare parties who may have simply been confused during their deposition testimony and may encourage gamesmanship by opposing attorneys,’” citing Van Asdale, 577 F.3d at 998). (1) Whether the Court Should Strike Plaintiffs’ Declarations Because They Conflict With the Second Amended Complaint and Plaintiffs’ Discovery Responses ConAgra first asserts that the declarations must be stricken because they are “inconsistent with [plaintiffs’ theory of the case and discovery responses.” It cites allegations in the second amended complaint pleading that plaintiffs were harmed because they were “induced” to “consume a product with a GMO,” and that they would