Robert Briseno, individually and on behalf of all others similarly situated v. Conagra Foods, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT BRISENO, individually and on
behalf of all others similarly situated,
Plaintiff-Appellee,
v.
CONAGRA FOODS, INC.,
Defendant-Appellant.
No. 15-55727
D.C. No.
2:11-cv-05379-MMM-AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted September 12, 2016
San Francisco, California
Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.
Defendant-Appellant ConAgra Foods, Inc. (“ConAgra”), appeals the district
court’s order certifying eleven statewide damages classes composed of persons
who purchased Wesson-brand cooking oils labeled “100% Natural.” Plaintiff-
Appellee Robert Briseno and other named class representatives (collectively,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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“Plaintiffs”), argue that the “100% Natural” label is false and misleading because
Wesson oils are made from genetically modified organisms (“GMOs”), which they
contend are not “natural.” As a result, Plaintiffs claim ConAgra has violated state
consumer protection statutes, breached express and implied warranties, and been
unjustly enriched. We exercise jurisdiction pursuant to 28 U.S.C. § 1292(e) and
Federal Rule of Civil Procedure 23(f), and we affirm.
I
Parties seeking class certification must satisfy the four requirements of
Federal Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and
adequacy—and at least one of the requirements of Rule 23(b). Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011). Here, the district court
certified the classes under Rule 23(b)(3), which permits class actions in which
“questions of law or fact common to class members predominate” over individual
issues and as to which litigation through the class mechanism will be “superior to
other available methods for fairly and efficiently adjudicating the controversy”—
the so-called predominance and superiority requirements.
ConAgra challenges the district court’s determinations as to typicality,

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predominance, and superiority.1 Reviewing for abuse of discretion, we conclude
that the district court’s holdings were not illogical, implausible, or unsupported by
the record. See Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1164 (9th Cir. 2014).
A
ConAgra argues that Plaintiffs’ claims differ from those of absent class
members, and are therefore atypical, in two ways.
First, ConAgra contends that although Plaintiffs claim to have actually relied
on the “100% Natural” label in deciding whether to purchase Wesson products, the
majority of absent class members did not rely on the label. That distinction is
irrelevant because the district court held that none of the certified claims require a
showing of actual reliance with respect to absent class members, and ConAgra has
not challenged that holding.
Second, ConAgra contends that Plaintiffs did not actually rely themselves on
the “100% Natural” label.2 The district court concluded otherwise based on
1 We address in a concurrently filed opinion ConAgra’s argument that the district
court erred by not requiring Plaintiffs to demonstrate an “administratively feasible”
way to identify class members.
2 To the extent this argument could be construed as challenging Plaintiff Robert
Briseno’s ability to pursue a claim under California’s Unfair Competition Law,
Cal. Bus. & Prof. Code §§ 17200-17210, in light of state-law standing
requirements, that argument was not raised in the district court and is therefore
waived.

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Plaintiffs’ declarations. Although ConAgra challenges the credibility of those
declarations, the district court’s holding was adequately supported by the record.
B
ConAgra next argues that the district court erred because individual issues
predominate over common questions with respect to both materiality and damages.
With respect to materiality, ConAgra contends Plaintiffs have not offered
evidence that a reasonable consumer would consider the “100% Natural” label
material and understand it to mean GMO-free—as they must to prevail on the
certified claims. The record contains sufficient evidence to support the district
court’s contrary conclusion. ConAgra believes that evidence is unpersuasive and
argues that its own evidence should have been given greater weight, but the district
court did not clearly err in finding otherwise for purposes of class certification.
ConAgra may advance those arguments at the merits stages of this litigation, but
they do not bear on predominance. See Amgen Inc. v. Conn. Ret. Plans & Tr.
Funds, 133 S. Ct. 1184, 1191 (2013).
With respect to damages, ConAgra argues that Plaintiffs did not proffer a
sufficient method for calculating classwide damages under Comcast Corp. v.
Behrend, 133 S. Ct. 1426 (2013). Plaintiffs propose to measure the classwide price
premium attributable to their theory of liability using two steps: First, Plaintiffs
will use hedonic regression analysis to calculate the price premium attributable to

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the “100% Natural” label; second, they will use conjoint analysis to segregate the
portion of that premium attributable to a “no-GMO” understanding of the label.
ConAgra challenges the reliability and soundness of combining these two well-
established damages models,3 but it was not an abuse of discretion for the district
court to conclude that Plaintiffs’ proffered model tracked their theory of liability
and was therefore sufficient to survive class certification. See Vaquero v. Ashley
Furniture Indus., Inc., 824 F.3d 1150, 1154 (9th Cir. 2016).
C
Finally, ConAgra argues that administering eleven statewide classes
involving various state-law claims renders class adjudication of this action
unmanageable and, therefore, inferior to other litigation methods.
The district court concluded otherwise because many of the state-law claims
raise common issues. The district court also observed that the eleven classes could
ultimately be severed for separate adjudication if necessary. Moreover, the
benefits of the class mechanism are best realized in cases like this, where the likely
recovery is too small to incentivize individual lawsuits, and the realistic alternative
to class litigation will be no adjudication at all. See Zinser v. Accufix Research
3 To support its Comcast argument, ConAgra cited an out-of-circuit district court
decision that, contrary to ConAgra’s characterization, in fact explicitly agreed with
the district court’s conclusion in this case that the damages model Plaintiffs offered
satisfied Comcast.

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Inst., Inc., 253 F.3d 1180, 1190-91 (9th Cir. 2001). Given these considerations, the
district court did not abuse its discretion in holding that Plaintiffs satisfied Rule
23(b)(3)’s superiority requirement.
AFFIRMED.

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