Orrico v. Nordic Naturals, Inc.

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
NATALIE 	ORRICO, 	individually 	and 	on
behalf of all others similarly situated,
ORDER
22 CV 3195 (NRM) (CLP)
Plaintiff,
-against-
NORDIC NATURALS, INC.,
Defendant.
----------------------------------------------------------X
POLLAK, United States Magistrate Judge:
On May 31, 2022, plaintiff Natalie Orrico commenced this diversity class action against
the defendant Nordic Naturals, Inc., alleging that defendant engaged in deceptive and misleading
business practices with respect to the marketing and sales of defendant’s Nordic Naturals
Products (the “Products”) throughout New York and the rest of the country. (Compl.1 ¶ 1).
Plaintiff brings claims under New York General Business Law (“GBL”) § 349, alleging that
defendant’s improper labeling and advertising of the Products as being “natural” is misleading
because it induced plaintiff and members of the New York subclass to purchase and pay a
premium for the defendant’s Products and to use them when they would otherwise not have.
(Compl. ¶ 48; First Cause of Action). Plaintiff also alleges violations of GBL § 350, alleging
that defendant made untrue and/or misleading statements and representations causing injury to
the plaintiff and members of the New York subclass. (Id. ¶¶ 56-59; Second Cause of Action).
Plaintiff’s Third Cause of Action alleges a breach of express warranty on behalf of all class
members based on an express warranty from defendant that the Products were “natural,” and
1 Citations to “Compl.” refer to plaintiff’s Complaint, filed May 31, 2022. (ECF No. 1).
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 1 of 10 PageID #:
<pageID>

2
upon which plaintiff and class members relied when deciding to purchase defendant’s Products.
(Id. ¶¶ 65-68, 70 (listing specific warranty laws by state); Third Cause of Action).
Currently pending before this Court is plaintiff’s July 28, 2025 letter in support of a
request that expert discovery, including expert reports pursuant to Rule 26 of the Federal Rules
of Civil Procedure, be held in abeyance pending a determination by the court as to whether to
certify the class in this case. (Pl.’s Ltr.2 at 1). For the reasons set forth below, plaintiff’s motion
is granted in part and denied in part.
DISCUSSION
I. 	Plaintiff’s Motion
Plaintiff seeks to postpone expert discovery until after the motion for class certification
has been decided, arguing that expert discovery is not required at the class certification stage and
that “‘all that is required at class certification is [that] the plaintiffs must be able to show that
their damages stemmed from the defendant’s actions that created the legal liability.’” (Id.
(quoting de Lacour v. Colgate-Palmolive Co., 338 F.R.D. 324, 344 (S.D.N.Y. 2021) (quoting
Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 88 (2d Cir. 2015))); see also Comcast Corp.
v. Behrend, 569 U.S. 27, 34-35 (2013). Plaintiff argues that not only does the case law support
plaintiff’s position that certification should be briefed “at an ‘early practicable time’” before
moving on to expert discovery, but it is more efficient to hold off on expert discovery because if
plaintiff’s motion for certification is denied, there will be no need for experts on either damages
or liability. (Pl.’s Ltr. at 2 (quoting Fed. R. Civ. P. 23(c)(1)(A))). To the extent that defendant
relies on the decertification decision in Price v. L’Oréal USA, Inc., to argue that expert discovery
should occur first because of the risk of decertification, plaintiff contends that the Price court
2 Citations to “Pl.’s Ltr.” refer to plaintiff’s letter dated July 28, 2025. (ECF No. 64).
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 2 of 10 PageID #:
<pageID>

3
found that, while plaintiffs had met their burden under Comcast sufficient to warrant initial
certification, after providing the expert analysis, decertification was required because the
plaintiffs had not provided evidence necessary to sustain the expert’s damages formula. (Id.
(citing No. 17 CV 614, 2021 WL 4459115, at *4, 6 (S.D.N.Y. Sept. 29, 2021))). Accordingly,
plaintiffs seek to move for certification within 60 days and ask the Court to delay expert
discovery until after the Court rules on the certification question. (Id.)
Defendant Nordic Naturals asks the Court to enter a scheduling Order to set deadlines for
expert discovery to then be followed by plaintiff’s motion for class certification, defendant’s
anticipated motion for summary judgment, and the parties’ Daubert motions. (Def.s’ Ltr.3 at 1).
Defendant contends that in Bustamante v. KIND, LLC, the Second Circuit made it clear that in
order to sustain their claim in an “all natural” case, plaintiffs must provide admissible evidence
that shows how the phrase “‘“All Natural” . . . tends to mislead reasonable consumers acting
reasonably.’” (Id. (quoting 100 F.4th 419, 426 (2d Cir. 2024))). The Court explained that in that
case, the experts’ opinions were inadmissible because they had failed to show how a reasonable
consumer would understand the term “All Natural,” and that plaintiff’s testimony alone could not
provide an objective definition of how reasonable consumers would interpret that term.
Bustamante v. KIND, LLC, 100 F. 4th at 433.
Defendant argues that there is no evidence in the instant case to show that a reasonable
consumer acting reasonably would be deceived by the “Nordic Naturals” statement on the
company’s dietary supplement products; thus, defendant contends that summary judgment is
inevitable. (Def.’s Ltr. at 1). Defendant further contends that if plaintiff does not intend to
proffer expert testimony, then the case would be ripe for summary judgment and certification
3 Citations to “Def.’s Ltr.” refer to defendant’s letter dated July 28, 2025. (ECF No. 65).
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 3 of 10 PageID #:
<pageID>

4
motions would be unnecessary. (Id.) Defendant argues that, without having proffered any
admissible evidence or expert opinions showing how a reasonable consumer understands the
challenged label “Nordic Naturals,” plaintiff’s efforts to move for certification now are
“impractical, would waste judicial resources, and would unduly prejudice Defendant because
Orrico’s individual claim cannot survive without admissible expert evidence.” (Id. at 1-2).
Defendant contends that the lessons of Bustamante, where the record was far more developed
with multiple expert reports, are that there is no single reasonable consumer understanding of the
term “all natural,” and that unless plaintiff can provide the expert opinions necessary to sustain
the required showing, proceeding through the time and expense of a motion for class certification
is a fundamental waste of judicial resources. (Id. at 2).
II. 	Legal Standards
Rule 26(c) of the Federal Rules of Civil Procedure governs requests for a stay of
discovery, and this court has found a stay to be “appropriate pending resolution of a potentially
dispositive motion where the motion appear[s] to have substantial grounds or, stated another
way, do[es] not appear to be without foundation in law.” Chow v. SentosaCare, LLC, No. 19
CV 3541, 2020 WL 559704, at *2 (E.D.N.Y. Jan. 23, 2020) (internal citations and quotations
omitted) (alterations in original). In determining whether to grant a stay, the court may consider
the merits of the motion, the breadth of discovery and the burden of responding to it, and the risk
of prejudice to the party opposing the stay. Kanowitz v. Broadridge Fin. Sols., Inc., No. 13 CV
649, 2014 WL 1338370, at *6 (E.D.N.Y. Mar. 31, 2014).
As a threshold matter, “[c]ourts are not required to decide class certification before
reaching the merits of a case.” Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 507 (E.D.N.Y.
2017); see Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d Cir. 1998) (holding that the
“decision to award summary judgment before acting on class certification was well within the
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 4 of 10 PageID #:
<pageID>

5
discretion of the district court,” and the argument that class certification needed to be addressed
first was “without merit”); see also Carollo v. United Cap. Corp., 528 F. Supp. 3d 37, 49
(N.D.N.Y. 2021) (holding that “there is no point in reaching a decision on class certification if
the claims the class would bring are fundamentally meritless”). Indeed, holding class
certification in abeyance is appropriate where resolution of the dispositive issue will “necessarily
inform and perhaps moot” class certification issues and where the party opposing abeyance
would not be prejudiced. Authors Guild, Inc. v. Google Inc., 721 F.3d 132, 134-35 (2d Cir.
2013); see also Schultz v. Stoner, No. 00 CV 0439, 2009 WL 455163, at *17 (S.D.N.Y. Feb. 24,
2009) (holding class certification motion practice in abeyance pending resolution of dispositive
motions). As the court in R. A-G ex rel. R.B. v. Buffalo City School District Board of Education
stated, “because the purpose of early certification is for the benefit of defendants, a defendant
may waive this protection and move for a judgment on the merits before a decision on
certification.” No. 12 CV 960S, 2013 WL 3354424, at *4 (W.D.N.Y. July 3, 2013), aff’d sub
nom. R.A.G. ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., 569 F. App’x 41 (2d Cir.
2014).
The same considerations hold true in determining whether to stay discovery pending a
motion for class certification. Rule 23(a) of the Federal Rules of Civil Procedure governs class
certification, providing:
One or more members of a class may sue or be sued as
representative parties on behalf of all members 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). In addition to satisfying these prerequisites, plaintiffs must also satisfy one
of the three subdivisions of Rule 23(b): (1) that separate actions pose a risk of inconsistent
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 5 of 10 PageID #:
<pageID>

6
adjudications or would substantially impair the ability of other individuals to protect their
interests; (2) injunctive or declaratory relief is sought concerning the class as a whole; or (3)
common questions of law or fact predominate over individual questions and a class action is
superior to other methods for bringing suit. Fed. R. Civ. P. 23(b). See generally Amchem
Prods., Inc. v. Windsor, 521 U.S. 591 (1997). It is plaintiffs’ burden to establish compliance
with the requirements of Rule 23, but in analyzing the issue of certification, the court accepts as
true the allegations in the complaint regarding the merits of the claim. See D’Alauro v. GC
Servs. Ltd. P’ship, 168 F.R.D. 451, 454 (E.D.N.Y. 1996). Pursuant to Rule 23(c)(1) of the
Federal Rules of Civil Procedure, “the court can make a conditional determination of whether an
action should be maintained as a class action, subject to final approval at a later date.” Collier v.
Montgomery Cnty. Hous. Auth., 192 F.R.D. 176, 181 (E.D. Pa. 2000).
III. 	Analysis
Here, plaintiff brings claims under GBL §§ 349 and 350. To state a claim under either
section 349 or 350 of New York’s GBL, plaintiff must establish that: 1) defendants’ deceptive
acts were directed at consumers; 2) the acts were materially misleading; and 3) plaintiff was
injured as a result of this deception. See Maurizio v. Goldsmith, 230 F.3d 518, 521-22 (2d Cir.
2000); Gristede’s Foods, Inc. v. Unkechauge Nation, 532 F. Supp. 2d 439, 450 (E.D.N.Y. 2017);
Imig, Inc. v. Electrolux Home Care Prods., Ltd., No. 05 CV 529, 2007 WL 900310, at *15
(E.D.N.Y. Mar. 22, 2007). The first element may “be satisfied by showing that the conduct at
issue potentially affects similarly situated consumers.” Sykes v. Mel S. Harris & Assocs. LLC,
780 F.3d at 84 (internal citations, quotations, and alterations omitted). “Deceptive acts are
defined as those that are ‘likely to mislead a reasonable consumer acting reasonably under the
circumstances.’” Horowitz v. Stryker Corp., 613 F. Supp. 2d 271, 287 (E.D.N.Y. 2009) (quoting
Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26,
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 6 of 10 PageID #:
<pageID>

7
647 N.E.2d 741, 745, 623 N.Y.S.2d 529, 533 (1995)). In order for consumers to be misled, there
must be a consensus as to what reasonable consumers interpret the claim of the manufacturer to
mean. See Exxonmobil Inter-America, Inc. v. Advanced Info. Eng’g Servs., Inc., 328 F. Supp.
2d 443, 449 (S.D.N.Y. 2004) (holding that under GBL § 349, “liability attaches primarily where
a party’s misrepresentations . . . have the potential to be repeated in order to deceive numerous
similarly situated buyers”); Greenlight Cap., Inc. v. GreenLight (Switz.) S.A., No. 04 CV 3136,
2005 WL 13682, at *6 n.8 (S.D.N.Y. Jan. 3, 2005) (holding that GBL § 350 is “based on a
specific type of deception, to wit, false advertising”).
Defendants note that in order to prove that the challenged term “Nordic Naturals” caused
a price premium, plaintiff must offer evidence or propose a methodology by which they intend to
prove the price premium and a measure of damages resulting from their theory. (ECF No. 65 at
3 (citing Passman v. Peloton Interactive, Inc., 671 F. Supp. 3d 417, 452-53 (S.D.N.Y. 2023),
vacated on other grounds by, No. 19 CV 11711, 2025 WL 1284718 (S.D.N.Y. May 2, 2025)));
see also Price v. L’Oréal USA, Inc., 2021 WL 4459115, at *4-5. Thus, defendants argue that
plaintiff will need to obtain an expert even if the case does not result in certification of a class.
(ECF No. 65 at n.2).
In addition, in order for the court to certify a class, plaintiff must demonstrate that the
plaintiff’s claims are typical of those of the other members of the proposed class and that
common questions of fact predominate. As noted above, the plaintiff must demonstrate that the
use of the word “Naturals” in the company name is deceptive and likely to mislead a reasonable
consumer, and that there is a consensus as to what reasonable consumers would interpret the
claim to mean. As the court in In re KIND LLC “Healthy and All Natural” Litigation
recognized, the term “natural” is an undefined, ambiguous term, with no legal or regulatory
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 7 of 10 PageID #:
<pageID>

8
definition, and thus, here, the crux of plaintiff’s case is whether plaintiff can demonstrate through
expert or survey data that a reasonable consumer would agree on an interpretation of the term
“Nordic Naturals” consistent with plaintiff’s theory of deception. 627 F. Supp. 3d 269, 285-86,
295 (S.D.N.Y. 2022). In the absence of “generalized proof of deception,” courts have found that
“common issues of fact do not predominate.” de Lacour v. Colgate-Palmolive Co., No. 16 CV
8364, 2024 WL 36820, at *7 (S.D.N.Y. Jan. 3, 2024).
Although many of the cases relied on by defendants addressed the sufficiency of expert
opinions in the context of summary judgment or decertification of the class, plaintiff appears to
recognize that she has some burden at the class certification stage to demonstrate that consumers
generally interpret “natural” the way the plaintiff does. (See ECF No. 64 at 1). She cites the
court’s decision in de Lacour granting the plaintiff’s renewed motion for certification, arguing
that “where plaintiff submitted an affidavit about her reason for purchasing a ‘natural’ product
and plaintiff’s experts submitted declarations (as opposed to expert reports under Rule 26),
stating that consumers generally interpret ‘natural’ in a similar manner, ‘plaintiffs . . . offered
sufficient evidence that the “natural” claim is material.’” (Id. (citing de Lacour v. Colgate-
Palmolive Co., 338 F.R.D. at 343)).
Defendants argue that what plaintiff is seeking is “months to work with an expert witness
to develop an opinion that ‘reasonable consumers’ are deceived by the product labels at issue,”
and that plaintiffs would not have to disclose such opinions until after certification is decided.
(ECF No. 65 at 3-4). According to defendants, the schedule proposed by plaintiffs is “lopsided”
and will inevitably result in two rounds of class certification briefing. (Id. at 4). Given that
plaintiff will need expert discovery to respond to any motion for summary judgment, delaying
expert discovery until after certification is decided is not efficient. (Id.)
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 8 of 10 PageID #:
<pageID>

9
Given the need to establish typicality and predominance in order to succeed in certifying
a class, the plaintiff’s proposal to wait to develop expert evidence to establish that reasonable
consumers would interpret the term “Nordic Naturals” the same way or in a similar manner to
plaintiff until after the certification motion is decided seems counterproductive in light of the
numerous cases that have ultimately rejected the methodologies and theories proposed by other
experts in trying to establish how a “reasonable consumer” interprets the term “natural.”
Presumably, if plaintiff has experts willing to submit declarations in support of their theories,
they have already undertaken a preliminary analysis in order to support their methodologies and
conclusions. Moreover, since plaintiff is ultimately going to need an expert even if the case
proceeds on an individual basis, moving forward with at least some expert discovery at this time
will not cause undue prejudice to the plaintiff.
Thus, “because the purpose of early certification is for the benefit of defendants,” R. A-G
ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., 2013 WL 3354424, at *4, and here,
defendants are urging the delay pending expert discovery, the Court, in its discretion, denies the
request to stay all expert discovery until after the certification decision. Instead, the Court
Orders plaintiff to provide expert reports in 60 days; defendants’ responsive reports are due 60
days thereafter. Expert depositions, however, will be held in abeyance pending counsel meeting
with the Court, to determine if the case is then ripe for briefing of the class certification motion.
CONCLUSION
As set forth above, plaintiff’s motion requesting that expert discovery be stayed pending
the Court’s determination of whether to certify the class is granted in part and denied in part.
Plaintiff’s motion is denied insofar as it requests a stay of all expert discovery. Plaintiff is
Ordered to provide expert reports in 60 days, with defendants’ responsive reports due 60 days
thereafter. Expert depositions, however, will be held in abeyance for the present moment.
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 9 of 10 PageID #:
<pageID>

10
The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
December 3, 2025
/s/ Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York
Case 1:22-cv-03195-NRM-CLP Document 66 Filed 12/03/25 Page 10 of 10 PageID #:
<pageID>