Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 1 of 47
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`---------------------------------------X
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`IN RE:
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`KIND LLC “HEALTHY AND ALL NATURAL”
`LITIGATION
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`This Document Relates to All Actions
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`---------------------------------------X
`NAOMI REICE BUCHWALD
`UNITED STATES DISTRICT JUDGE
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`MEMORANDUM AND ORDER
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`15-MD-2645 (NRB)
`15-MC-2645 (NRB)
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`This case arises out of a challenge to the labelling on
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`certain snacks sold by KIND LLC (“KIND”). Plaintiffs are
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`individuals who purchased KIND products displaying an “All
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`Natural/Non GMO” label, who allege that the label was deceptive or
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`misleading.1 This label was discontinued by 2017. While
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`plaintiffs initially challenged numerous claims that appeared on
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`the labels of KIND products, the only issue remaining in this
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`litigation is whether certain KIND products are properly described
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`as “All Natural.” Plaintiffs seek damages on behalf of themselves
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`and three classes, pursuant to New York’s General Business Law
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`(“GBL”) §§ 349 and 350; California’s Consumers Legal Remedies Act
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`(“CLRA”), Cal. Civ. Code § 1750, et seq., Unfair Competition Law
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`(“UCL”), Cal. Bus. & Prof. Code § 17200, et seq., and False
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`Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500, et seq.;
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`and Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”)
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`“GMO” is an abbreviation for “genetically modified organism.”
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`1
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`1
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 2 of 47
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`Fla. Sta. § 501.201, et seq.; and various common law claims.
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`Presently before the Court are: (1) defendant’s motion for summary
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`judgment; (2) defendant’s motion to decertify the classes; and (3)
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`Daubert motions from both plaintiffs and defendant to disqualify
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`each of the five experts in this case, who testify in support of
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`and opposition to the motion for summary judgment.2 For the
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`following reasons, defendant’s motion for summary judgment is
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`granted, defendant’s motions to disqualify the opinions of Dr.
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`Dennis and Dr. Toutov are granted, defendant’s motion to decertify
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`the classes is granted, and the remaining motions are denied as
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`moot.3
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`2
`Specifically, defendant challenges plaintiffs’ experts, Dr. J. Michael
`Dennis, who opines on a reasonable consumer’s understanding of “All Natural”
`and whether the “All Natural” statement was material to consumers, ECF No. 241;
`Dr. Anton Toutov, who opines on the naturalness of the ingredients in KIND
`products, ECF No. 244; and Dr. Stephen Hamilton, who opines on whether consumers
`were injured by the “All Natural” statement, ECF No. 254. Plaintiffs challenge
`defendant’s experts Dr. Ran Kivetz, ECF No. 275, who opines in opposition to
`Dr. Dennis’s and Dr. Hamilton’s reports, and Dr. Catherine Adams Hutt, ECF No.
`269, who opines in opposition to Dr. Toutov’s report.
`3
`The parties also submitted briefing regarding whether this Court should
`consider the supplemental declarations of plaintiffs’ experts Stephen Hamilton,
`J. Michael Dennis, and Anton Toutov submitted in connection with the pending
`motion for summary judgment. ECF Nos. 297, 303. Defendant contends that these
`declarations contain new expert opinions from plaintiffs’ experts that were
`undisclosed in discovery and should therefore be stricken. ECF No. 297.
`Plaintiffs contend that these declarations simply “reinforce” the opinions the
`experts previously offered. ECF No. 303. The Court agrees with defendant, but
`finds that, regardless of whether this Court considers the supplemental expert
`declarations, the Court’s conclusions regarding the admissibility of the expert
`opinions in this action and the merits are unchanged. As such, the issue is
`moot.
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`2
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 3 of 47
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`I. Background
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`A. Procedural History
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`The present multidistrict litigation (“MDL”) has been pending
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`since 2015. Its history is entwined with certain actions of the
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`Food and Drug Administration (“FDA”) regarding particular
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`labelling statements. A brief overview of the history of this
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`action and the FDA action prior to the present motions is therefore
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`necessary.
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`1. The FDA Warning Letter and Lawsuit Commencement
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`In March 2015, the Food and Drug Administration (“FDA”) issued
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`a “warning letter” triggered by the following “about KIND”
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`statement that appeared on some KIND labels:
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`At KIND we do things differently and try to avoid
`false compromises. Instead of “or” we say “and.”
`Healthy and tasty, convenient and wholesome,
`economically sustainable and socially impactful.
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`ECF No. 83 at 2. Specifically, the FDA asserted that KIND’S
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`“healthy and tasty” language was an “implied nutrient content
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`claim” subject to regulations set forth in 21 C.F.R. § 101.65, and
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`that certain KIND products did not meet the FDA’s saturated fat
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`content requirements necessary to describe food as “healthy.” ECF
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`No. 52, Ex. A at 1-2.4 In response, KIND argued that many
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`universally recognized healthy foods such as almonds, avocados, or
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`4
`The FDA did not comment on KIND’s use of the phrase “All Natural.” ECF
`No. 52, Ex. A.
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`3
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 4 of 47
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`salmon contain saturated-fat levels exceeding the limits
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`prescribed by 21 C.F.R. § 101.65. ECF No. 83 at 2. Before any
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`further action from the FDA, numerous “copycat” private lawsuits
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`were filed, alleging that consumers were deceived by the “About
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`KIND” statement, which were later transferred into this MDL. Id.
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`The initial complaints challenged representations displayed on the
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`packaging of the KIND products that claimed the products were “all
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`natural,” “healthy,” “+,” “plus,” and a “good source of fiber”
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`with “no trans fats,” arguing that the products contained little
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`nutritional value, high levels of saturated fat, and genetically
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`modified, synthetic, or other non-natural ingredients. ECF No. 1
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`at 1-2. These cases were transferred to this District and
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`consolidated in an MDL before the late Judge Pauley. Id.
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`2. The FDA Signals Imminent Rulemaking Regarding “All
`Natural” Labeling and the Case Is Stayed
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`In November 2015, the FDA announced the “establishment of a
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`docket to receive information and comments on the use of the term
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`‘natural’ in the labeling of human food products, including foods
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`that are genetically engineered or contain ingredients produced
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`through the use of genetic engineering.” Use of the Term “Natural”
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`in the Labeling of Human Food Products; Request for Information
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`and Comments, 80 FR 69905-01, 2015 WL 6958210. These proceedings
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`were based on applications from citizen petitions and “three
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`Federal district courts” seeking guidance on whether certain
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 5 of 47
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`products “may be labeled as ‘Natural,’ ‘All Natural,” and/or ‘100%
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`Natural.’” 80 FR 69905-01, 2015 WL 6958210. Following the FDA’s
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`announcement, KIND moved to dismiss the claims against it, or in
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`the alternative, to stay the action pending the FDA’s promulgation
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`of a rule addressing the word “natural” on labels. See ECF No.
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`65-66. It is somewhat ironic that the spark for the various
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`lawsuits flamed out when in April 2016 — after the briefing of
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`KIND’s first motion to dismiss in this action but prior to oral
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`argument on the motion — the FDA withdrew the objections to KIND
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`products outlined in its warning letter and conceded that its
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`“regulations concerning nutrient content claims are due for a
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`reevaluation in light of evolving nutrition research.” ECF No.
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`73-5. One month later, plaintiffs voluntarily dismissed their
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`“healthy” claims. ECF No. 74. Judge Pauley granted the stay
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`defendant requested, reasoning that the FDA seemed prepared to
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`address core issues in the case and a stay would reduce the risk
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`of inconsistent outcomes. ECF No. 83 at 7-12. Judge Pauley also
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`dismissed any “Non GMO” claim without prejudice, finding that the
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`plaintiffs had not properly pled a cause of action because they
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`had not alleged that any specific KIND products contained GMOs.5
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`Id. at 12-13.
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`5
`Judge Pauley noted that it was not entirely clear from the complaint
`whether plaintiffs’ intent was to file a standalone “Non GMO” claim. ECF No.
`83 at 13.
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`5
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`3. Plaintiffs Resurrect the “Non GMO” Claim
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`During the pendency of the stay, plaintiffs filed an amended
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`consolidated class action complaint. ECF No. 84 (“ACC”). The ACC
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`alleged in part that plaintiffs, who resided in New York,
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`California, and Florida, had been deceived by the “All Natural/Non
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`GMO” claim on KIND packaging. Id. ¶¶ 1, 7-10. Defendant moved to
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`dismiss the “Non GMO” claim, ECF No. 100, arguing that plaintiffs
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`had still failed to state a claim, ECF No. 101. Plaintiffs opposed
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`the motion and moved to lift the stay. ECF No. 108. Judge Pauley
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`denied the motion to dismiss, reasoning that the plaintiffs had
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`sufficiently pled their “Non GMO” claim by alleging that testing
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`revealed that certain KIND products contained GMOs and plaintiffs
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`relied on the “All Natural” and “Non GMO” representations on the
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`KIND packaging in purchasing the products. ECF No. 125. Judge
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`Pauley also denied plaintiffs’ motion to lift the stay and stayed
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`prosecution of the “Non GMO” claim until August 15, 2018, in
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`anticipation of the completion of the United States Department of
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`Agriculture’s (“USDA’s”) work on establishing a national GMO
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`standard, which was expected on July 29, 2018. Id. at 12.
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`4. The Stay Is Lifted and the Classes Are Certified
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`On August 15, 2018, following publication of the USDA’s non-
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`GMO standard, plaintiffs again moved to lift the stay on both the
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`“Non GMO” and “All Natural” claims. ECF No. 128. This time, Judge
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`Pauley granted the motion, reasoning that there was no reason to
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 7 of 47
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`continue the stay on the “Non GMO” claims, and that it was prudent
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`to lift simultaneously the stay on the “All Natural” claims to
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`avoid piecemeal litigation. ECF No. 140.
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`On January 17, 2020, plaintiffs moved to certify three Rule
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`23(b)(3) damages classes: (1) all persons who purchased the
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`Products in New York for their personal use and not for resale at
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`any time since April 17, 2009 (the “New York Class”); (2) all
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`persons who purchased the Products in California for their personal
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`use and not for resale at any time since April 17, 2011 (the
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`“California Class”); and (3) all persons who purchased KIND's
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`Products in Florida for their personal use and not for resale at
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`any time since April 17, 2011 (the “Florida Class”). ECF No. 168.
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`Plaintiffs also sought certification of injunctive classes
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`pursuant to Rule 23(b)(2). On March 24, 2021, Judge Pauley granted
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`the motion to certify the New York, California, and Florida
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`classes, but denied plaintiffs’ request to certify the injunctive
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`classes. ECF No. 216. After Judge Pauley’s death, the case was
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`transferred to this Court. ECF No. 219. Thereafter, the parties
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`completed discovery, and the instant motions were filed.
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` B. Plaintiffs and the Remaining Claims6
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`As evident from the above history, the scope of the claims in
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`6
`The following facts are principally drawn from the Rule 56.1 statement
`submitted by defendant on January 21, 2022, ECF No. 251; plaintiffs’ response
`and objections to the 56.1 statement filed on March 4, 2022, ECF No. 282; and
`defendant’s subsequent response to the 56.1 statement, ECF No. 309 (collectively
`“56.1”); as well as the exhibits to the declaration of Kerri Borders, ECF No.
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 8 of 47
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`this case has sharply contracted since the commencement of this
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`suit. Plaintiffs have abandoned all challenges to the KIND labels,
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`except for their challenge to the “All Natural” claim.
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`Specifically, they now only challenge the “All Natural” portion of
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`the “All Natural/Non GMO” statement that appeared on three of
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`KIND’s product lines: KIND Core Bars (nut-based snack bars); KIND
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`Healthy Grain Bars (grain-based snack bars); and KIND Healthy Grain
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`Clusters (non-bar bags of granola). 56.1 ¶ 1.7 In the ACC,
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`plaintiffs offered five definitions relating to the term
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`259 and the exhibits to the declaration of Tina Wolfson, ECF No. 286. Where the
`Court relies on facts drawn from any of the 56.1 Statements, it has done so
`because the record evidence supports the statements, no rule of evidence bars
`admission, and the opposing party has not disputed the facts or has not done so
`with citations to admissible evidence.
`7
`Specifically, plaintiffs challenge 39 KIND products. These are (1) Fruit
`& Nut: Almond & Apricot; (2) Fruit & Nut: Almond & Coconut; (3) Fruit & Nut:
`Almonds & Apricots in Yogurt; (4) Fruit & Nut: Apple Cinnamon Pecan; (5) Fruit
`& Nut: Blueberry Vanilla Cashew; (6) Fruit & Nut: Dark Chocolate Almond &
`Coconut; (7) Fruit & Nut: Fruit & Nut Delight; (8) Fruit & Nut: Fruit and Nuts
`in Yogurt; (9) Fruit & Nut: Nut Delight; (10) Fruit & Nut: Peanut Butter and
`Strawberry; (11) Nut & Spices: Caramel Almond and Sea Salt; (12) Nut & Spices:
`Dark Chocolate Mocha Almond; (13) Nut & Spices: Dark Chocolate Chili Almond;
`(14) Nut & Spices: Dark Chocolate Cinnamon Pecan; (15) Nut & Spices: Dark
`Chocolate Nuts and Sea Salt; (16) Nut & Spices: Madagascar Vanilla Almond; (17)
`Nut & Spices: Cashew and Ginger Spice; (18) Nut & Spices: Maple Glazed Pecan
`and Sea Salt; (19) Nut & Spices: Honey Roasted Nuts & Sea Salt; (20) Plus:
`Almond Walnut Macadamia with Peanuts + Protein; (21) Plus: Peanut Butter Dark
`Chocolate + Protein; (22) Plus: Blueberry Pecan + Fiber; (23) Plus: Almond
`Cashew With Flax + Omega 3; (24) Healthy Grains Bar: Dark Chocolate Chunk; (25)
`Healthy Grains Bar: Peanut Butter Dark Chocolate; (26) Healthy Grains Bar: Maple
`Pumpkin Seeds With Sea Salt; (27) Healthy Grains Bar: Oats and Honey With
`Toasted Coconut; (28) Healthy Grains Bar: Vanilla Blueberry; (29) Healthy Grains
`Clusters: Fruit & Nut Clusters; (30) Healthy Grains Clusters: Peanut Butter
`Whole Grains Clusters; (31) Healthy Grains Clusters: Banana Nut Clusters; (32)
`Healthy Grains Clusters: Cinnamon Oat Clusters With Flax Seeds; (33) Healthy
`Grains Clusters: Maple Quinoa Clusters With Chia Seeds; (34) Healthy Grains
`Clusters: Oats & Honey Clusters With Toasted Coconut; (35) Healthy Grains
`Clusters: Raspberry Clusters With Chia Seeds; (36) Healthy Grains Clusters:
`Vanilla Blueberry Clusters With Flax Seeds; (37) Plus: Dark Chocolate Cherry
`Cashew + Antioxidants; (38) Plus: Pomegranate Blueberry Pistachio +
`Antioxidants; and (39) Plus: Cranberry Almond + Antioxidants with Macadamia
`Nuts (collectively the “KIND products” or the “Products.”) ACC ¶ 1.
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 9 of 47
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`“natural.”8 Id. ¶ 3.
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`KIND has discontinued the “All Natural/Non GMO” label. Id.
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`¶ 6.9 KIND contends that this change began in 2014 on a rolling
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`basis, but plaintiffs state it is unclear how long it took for the
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`change to appear on products reaching stores, or when the “All
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`Natural” label ceased to appear on products sold to consumers.
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`Id. ¶ 6. Partial images of the packaging designs for KIND Core
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`bars depicting the challenged statements (left) and revised
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`statements (right) are below:10
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`8
`Plaintiffs offer the New Oxford American Dictionary definition, (ACC ¶ 39
`(“existing in or caused by nature; not made or caused by humankind”)); the FDA's
`policy, see 58 C.F.R. §§ 2302, 2407, (ACC ¶ 41 (defining the outer boundaries
`of the use of the term “natural” as “meaning that nothing artificial or synthetic
`(including all color additives regardless of source) has been included in, or
`has been added to, a food that would not normally be expected to be in the
`food”)); the USDA's definition, (ACC ¶¶ 43–45 (“(1) the product does not contain
`any artificial flavor or flavorings, color ingredient, or chemical preservatives
`... or any other artificial or synthetic ingredient, and (2) the product and
`its ingredients are not more than minimally processed” (alteration in
`original))); and Congress's definition of synthetic, 7 U.S.C. § 6502(21)–(22),
`(ACC ¶ 46 (“defin[ing] synthetic to mean a substance that is formulated or
`manufactured by a chemical process or by a process that chemically changes a
`substance extracted from naturally occurring plant, animal, or mineral sources,
`except that such term shall not apply to substances created by naturally
`occurring biological processes” (quotation marks omitted))).
`9
`It appears that by 2017, KIND had discontinued all labels that depicted
`the “All Natural” claim. ECF No. 181. In their briefing on the motion to
`decertify the classes, plaintiffs do not dispute this end date. ECF No. 287.
`Further, KIND’s 30(b)(6) fact witness, Elle Lanning, testified that “[t]o the
`best of [her] knowledge [removal of the all natural label] would have happened
`on a rolling basis from 2014 potential through 2015 or early 2016.” 56.1 ¶ 6
`(quoting ECF No. 280-1 52:2-8).
`10
`It also appears that certain of the KIND products had the “Non GMO” label
`replaced by a “No Genetically Engineered Ingredients.” ECF No. 216 at 22.
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`Id. ¶ 7. Likewise, the challenged packaging for the KIND Plus
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`Cranberry Almond + Antioxidants bar, which also displayed the claim
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`and is emblematic of the packaging of KIND Plus Antioxidants bars,
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`is depicted below:
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`Id. ¶ 8.
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`Each of the plaintiffs purchased certain KIND products and
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`advances a different understanding of the “All Natural”
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`representation. We briefly detail their claims below:
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`Plaintiff Amanda Short is a resident of New York. Id. ¶ 9.
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`Short alleges that between November 2012 and when she filed this
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`lawsuit in 2015, she purchased the Fruit & Nut Almond & Apricot
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`10
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`Core Bar, Dark Chocolate Cherry Cashew + Antioxidant Core Bars,
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`and Nuts & Spices Dark Chocolate Nuts & Sea Salt Core Bars. Id.
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`¶ 10; ACC ¶ 7; ECF No. 259-3 (“Short Dep. Tr.”) 13:3-7. Short
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`testified that she believed that “natural” meant the Products were
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`made from whole nuts, fruits, and whole grains. 56.1 ¶ 12. She
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`also testified that it was possible that consumers could have
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`different understandings about what “all natural” meant with
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`respect to the Products. Id. ¶ 13.
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`Plaintiff Sarah Thomas is also a resident of New York. Id.
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`¶ 14. Thomas claims that between January 2014 and when she became
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`involved in this lawsuit in 2015, she weekly purchased KIND
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`products, including Fruit & Nut Almond & Coconut Core Bars, Peanut
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`Butter Dark Chocolate + Protein Core Bars, Nuts & Spices Dark
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`Chocolate Nuts Chili Almond Core Bars, Nuts & Spices Cashew &
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`Ginger Spice Core Bars, and Nuts & Spices Dark Chocolate Nuts &
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`Sea Salt Core Bars. Id. ¶ 15; ACC ¶ 8; ECF No. 259-2 (“Thomas
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`Dep. Tr.”) 14:6-17. Thomas testified that her understanding of
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`“All Natural” was that “the ingredients were not synthetic, not
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`chemicals, [but were] natural ingredients.” 56.1 ¶ 17. Thomas
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`also testified that it was possible that what a consumer thought
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`about a natural food product in 2011 might be different from what
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`a consumer thought about a natural food product in 2016. Id. ¶
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`18.
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`Plaintiff Charity Bustamante is a resident of California.
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`Id. ¶ 19. She claims that she purchased the Peanut Butter Dark
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`Chocolate + Protein Core Bars, Nuts & Spices Dark Chocolate Nuts
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`& Seal Salt Core Bars, KIND Cranberry Almond + Antioxidants with
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`Macadamia Nuts Core Bars, and Dark Chocolate Cherry Cashew +
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`Antioxidants Core Bars, but has “probably not” purchased a KIND
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`product since 2015. Id. ¶ 20; ACC ¶ 9; ECF No. 259-4 (“Bustamante
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`Dep. Tr.”) 59:8-10. Bustamante did not recall if she ever
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`purchased KIND Healthy Grain Bars or Healthy Grain Clusters. 56.1
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`¶ 21. Bustamante testified at her deposition that she purchased
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`KIND products because she understood them to be a healthy, non-
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`GMO snack, and stopped when she realized that they might not be
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`healthy or non-GMO. Id. ¶ 22. She also testified at her deposition
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`that she thought that an all natural product would be one without
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`GMO ingredients and one that would be “good for” her. Bustamante
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`Dep. Tr. 131:13-19. In her declaration filed in support of class
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`certification, Bustamante stated that she said that she relied on
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`KIND’s representation that the products were “All Natural.” 56.1
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`¶ 22.
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`Plaintiff Elizabeth Livingston is a resident of Florida, who
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`alleges that she purchased the Fruit & Nut Almond & Coconut Core
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`Bars, Peanut Butter Dark Chocolate + Protein Core Bars, and Dark
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`Chocolate Cherry Cashew + Antioxidants Core Bars during the
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`“relevant time period,” but not since filing her lawsuit in 2015.
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`Id. ¶¶ 26-27; ACC ¶ 10; ECF No. 259-1 (“Livingston Dep. Tr.”) 9:15-
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`17. Livingston testified that she believed that a natural product
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`would be one that is “pull[ed] out of the Earth” or “dirt,” or
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`“untouched.” Id. ¶ 29. Livingston also testified that “[n]ot
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`everybody” agrees with her understanding of “All Natural,” and
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`that “other consumers who buy KIND bars may think all natural means
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`something different than [she does].” Id. ¶ 30.
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`II. Legal Standard
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`A. Standard for Summary Judgment
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`In order for summary judgment to be granted, the movant must
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`
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`show “that there is no genuine dispute as to any material fact and
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`that the movant is entitled to judgment as a matter of law.” Fed.
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`R. Civ. P. 56(a). “[W]here the nonmovant will bear the ultimate
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`burden of proof at trial on an issue, the moving party’s burden
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`under Rule 56 will be satisfied if he can point to an absence of
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`evidence to support an essential element of the nonmoving party’s
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`claim.” Brady v. Town of Colchester, 863 F.2d 205, 210-11 (2d.
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`Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
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`Unlike on a motion to dismiss or a motion for class certification,
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`where the allegations in the plaintiffs’ complaint are accepted as
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`true, at summary judgment, plaintiffs must demonstrate
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`“significant probative evidence,” which a reasonable factfinder
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`could rely on to decide in their favor. Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 249 (1986) (quotation marks and citation
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 14 of 47
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`omitted). “The mere existence of a scintilla of evidence in
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`support of the plaintiff’s position will be insufficient[.]” Id.
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`at 252. Plaintiffs may not rely upon “conclusory statements or
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`mere allegations,” they must “go beyond the pleadings, and by . .
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`. affidavits, or by the depositions, answers to interrogatories,
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`and admissions on file, designate specific facts showing that there
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`is a genuine issue for trial.” Davis v. New York, 316 F.3d 93,
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`100 (2d Cir. 2002) (quotation marks and citations omitted). “[A]
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`complete failure of proof concerning an essential element of the
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`nonmoving party’s case necessarily renders all other facts
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`immaterial.” Crawford v. Franklin Credit Mgmt., 758 F.3d 473, 486
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`(2d Cir. 2014) (quoting Celotex, 477 U.S. at 323) (alteration in
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`original).
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`B. Plaintiffs’ Claims
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`As noted earlier, plaintiffs bring statutory claims under New
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`York, California, and Florida law, as well as common law claims
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`for breach of warranty, unjust enrichment, and negligent
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`misrepresentation. However, regardless of the claim asserted, as
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`the below summary of the claims demonstrates, there is substantial
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`overlap between the elements of the claims. To prevail, plaintiffs
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`must demonstrate: (1) a deceptive act; (2) materiality; and (3)
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`injury.
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`14
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 15 of 47
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`1. New York Statutory Claims
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`The General Business Law (“GBL”) provides that “[d]eceptive
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`acts or practices in the conduct of any business, trade or commerce
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`or in the furnishing of any service in this state are hereby
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`declared unlawful.” N.Y. Gen. Bus. L. § 349. To establish a prima
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`facie case under GBL §§ 349 or 350, “a plaintiff must demonstrate
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`that (1) the defendant's deceptive acts were directed at consumers,
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`(2) the acts are misleading in a material way, and (3) the
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`plaintiff has been injured as a result.” Maurizio v. Goldsmith,
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`230 F.3d 518, 521-22 (2d Cir. 2000). Materiality under §§ 349 and
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`350 of the GBL is an objective inquiry; a deceptive act is defined
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`as one “likely to mislead a reasonable consumer acting reasonably
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`under the circumstances.” Id.
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`2. The California Statutory Claims
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`Claims brought under California’s Unfair Competition Law
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`(“UCL”), False Advertising Law (“FAL”), and Consumer Legal
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`Remedies Act (“CLRA”) “are governed by the ‘reasonable consumer’
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`test.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.
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`2008). “Under the reasonable consumer standard, [plaintiffs] must
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`show that members of the public are likely to be deceived.” Id.
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`(quotation marks omitted). Relief under the UCL, FAL, and CLRA is
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`available without individualized proof of “reliance and injury, so
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`long as the named plaintiffs demonstrate injury and causation.”
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`Guido v. L’Oreal, USA, Inc., 284 F.R.D. 468, 482 (C.D. Cal. 2012).
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 16 of 47
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`“A presumption, or at least an inference, of reliance arises under
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`the UCL and FAL whenever there is a showing that a
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`misrepresentation was material.” McCrary v. Elations Co., 2014 WL
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`1779243, at *14 (C.D. Cal. Jan. 13, 2014) (alteration omitted).
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`3. The Florida Statutory Claims
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`Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”)
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`employs a similar framework as New York and California for false
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`and deceptive advertising claims. “A claim under FDUTPA has three
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`elements: (1) a deceptive or unfair practice; (2) causation; and
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`(3) actual damages.” Siever v. BWGaskets, Inc., 669 F. Supp. 2d
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`1286, 1292 (M.D. Fla. 2009). FDUTPA employs a “hybrid standard,”
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`which can be “objectively established as to mindset but
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`subjectively established as to context.” In re Motions to Certify
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`Classes Against Court Reporting Firms for Charges Relating to Word
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`Indices, 715 F. Supp. 2d 1265, 1282 (S.D. Fla. 2010), aff’d sub
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`nom. Webber v. Esquire Deposition Servs., LLC, 439 F. App’x 849,
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`851 (11th Cir. 2011). To prevail on a claim, the plaintiffs must
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`show that a reasonable consumer would have been deceived. See
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`Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla. Dist. Ct. App.
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`2000) (“[T]he question is not whether the plaintiff actually relied
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`on the alleged deceptive trade practice, but whether the practice
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`was likely to deceive a consumer acting reasonably in the same
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`circumstances.”). As Judge Pauley concluded, “broadly speaking,
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`the statutes contain the same three elements . . . (1) the
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 17 of 47
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`deceptive act, (2) materiality, and (3) injury.” ECF No. 216 at
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`21.
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`4. Common Law Claims
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`Plaintiffs also bring common law claims for negligent
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`misrepresentation, breach of express and implied warranty, and
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`unjust enrichment. These claims are similarly premised on
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`plaintiffs establishing a deceptive and misleading act and fail if
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`plaintiffs cannot meet the statutory standard. See Barreto v.
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`Westbrae Nat., Inc., 518 F. Supp. 3d 795, 806 (S.D.N.Y. 2021)
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`(dismissing common law claims because plaintiffs did not plead
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`statutory GBL claims, and, in particular, that label was
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`“materially misleading”).
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`C. Standard for Admissible Expert Testimony under Rule
`702 and Daubert
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`The parties have also filed motions to disqualify each other’s
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`experts. Expert testimony is admissible under Rule 702 of the
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`Federal Rules of Evidence, which provides in full:
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`A witness who is qualified as an expert by knowledge,
`skill, experience, training, or education may testify in
`the form of an opinion or otherwise if: (a) the expert’s
`scientific, technical, or other specialized knowledge
`will help the trier of fact to understand the evidence
`or to determine a fact in issue; (b) the testimony is
`based on sufficient facts or data; (c) the testimony is
`the product of reliable principles and methods; and (d)
`the expert has reliably applied the principles and
`methods to the facts of the case.
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`Under the Supreme Court’s decisions in Daubert v. Merrell Dow
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`Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 18 of 47
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`469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119
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`S.Ct. 1167, 143 L.Ed.2d 238 (1999), this Court has a “‘gatekeeping’
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`function under Rule 702,” under which we are “charged with ‘the
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`task of ensuring that an expert's testimony both rests on a
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`reliable foundation and is relevant to the task at hand.’”
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`Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d
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`Cir. 2002) (quoting Daubert, 509 U.S. at 597). “[T]he proponent
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`of expert testimony has the burden of establishing by a
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`preponderance of the evidence that the admissibility requirements
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`of Rule 702 are satisfied[.]” United States v. Williams, 506 F.3d
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`151, 160 (2d Cir. 2007). The Second Circuit has distilled Rule
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`702’s requirements into three broad criteria: (1) qualifications;
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`(2) reliability; and (3) relevance and assistance to the trier of
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`fact. See Nimely v. City of New York, 414 F.3d 381, 396–97 (2d
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`Cir. 2005).
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`III. Discussion
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` Defendant argues that plaintiffs fail at the first hurdle
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`because they have failed to demonstrate that the “All Natural”
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`claim on KIND products is deceptive or misleading. We agree and
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`find this failure fatal to plaintiffs’ case.
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`Central to defendant’s argument is the “reasonable consumer”
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`standard, which requires plaintiffs seeking recovery under the
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`various consumer protection statutes at issue in this case to show
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`that a “reasonable consumer would have been misled by the
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 19 of 47
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`defendant’s conduct.” See Ackerman v. Coca–Cola Co., No. 09 Civ.
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`0395 (JG), 2010 WL 2925955, at *15 (E.D.N.Y. July 21, 2010)
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`(analyzing claims under the GBL, UCL, FAL, and CLRA); In re Frito-
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`Lay N. Am., Inc. All Nat. Litig., No. 12-MD-2413 (RRM) (RLM), 2013
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`WL 4647512, at *13 (E.D.N.Y. Aug. 29, 2013) (applying reasonable
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`consumer standard to claims brought under GBL, UCL, FAL, CLRA and
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`FDUPTA).
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`The reasonable consumer standard is an “objective standard.”
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`Barton v. Pret A Manger (USA) Ltd., 535 F. Supp. 3d 225, 236
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`(S.D.N.Y. 2021). The reasonable consumer standard requires more
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`than a mere possibility that the defendant’s label “might
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`conceivably be misunderstood by some few consumers viewing it in
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`an unreasonable manner.” Ebner v. Fresh, Inc., 838 F.3d 958, 965
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`(9th Cir. 2016) (internal quotation marks and citation omitted).
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`“Rather, the reasonable consumer standard requires a probability
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`that a significant portion of the general consuming public or of
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`targeted consumers, acting reasonably in the circumstances, could
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`be misled.” Id. (internal quotation marks and citation omitted).
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`“[U]pon [defendant’s] Motion for Summary Judgment, it is incumbent
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`upon [plaintiff] to introduce evidence that could support a finding
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`that reasonable consumers believe” the plaintiffs’ proffered
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`theory of deception. Tran v. Sioux Honey Ass’n, Coop., 471 F.
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`Supp. 3d 1019, 1026 (C.D. Cal. 2020) (granting summary judgment to
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`defendant where plaintiff challenged honey displaying a “100%
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`Case 1:16-cv-00959-NRB Document 39 Filed 09/09/22 Page 20 of 47
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`Pure” label because plaintiff failed “to introduce evidence that
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`could support a finding that reasonable consumers beli