NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`FILED
`
`
`DEC 9 2020
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`
`JENNIFER REITMAN; et al.,
`
`
`Plaintiffs-Appellants,
`
`
` v.
`
`CHAMPION PETFOODS USA, INC.;
`CHAMPION PETFOODS LP,
`
`
`Defendants-Appellees.
`
` No. 19-56467
`
`D.C. No.
`2:18-cv-01736-DOC-JPR
`
`
`MEMORANDUM*
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`David O. Carter, District Judge, Presiding
`
`Argued and Submitted November 10, 2019
`Pasadena, California
`
`Before: PARKER,** CHRISTEN, and WATFORD, Circuit Judges.
`
`
`*
`This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
`
`
`**
`The Honorable Barrington D. Parker, Jr., United States Circuit Judge
`for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
`1
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`FILED
`
`
`DEC 9 2020
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`
`JENNIFER REITMAN; et al.,
`
`
`Plaintiffs-Appellants,
`
`
` v.
`
`CHAMPION PETFOODS USA, INC.;
`CHAMPION PETFOODS LP,
`
`
`Defendants-Appellees.
`
` No. 19-56467
`
`D.C. No.
`2:18-cv-01736-DOC-JPR
`
`
`MEMORANDUM*
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`David O. Carter, District Judge, Presiding
`
`Argued and Submitted November 10, 2019
`Pasadena, California
`
`Before: PARKER,** CHRISTEN, and WATFORD, Circuit Judges.
`
`
`*
`This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
`
`
`**
`The Honorable Barrington D. Parker, Jr., United States Circuit Judge
`for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
`1
`
`
`
`
`
`Plaintiffs-Appellants (“Reitman”)1 filed this putative class action on behalf
`
`of themselves and other consumers in California who purchased allegedly
`
`mislabeled dog food products sold by Defendants-Appellees (“Champion”).2 They
`
`appeal the district court’s denial of their motion for class certification. See Fed. R.
`
`Civ. P. 23. We review a district court’s refusal to certify a class for abuse of
`
`discretion. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939 (9th Cir.
`
`2009). We see none and we affirm.
`
`The district court concluded that Reitman had failed to satisfy Rule
`
`23(b)(3)’s predominance requirements. Specifically, the district court found that,
`
`although all dog food packages may have a common message, whether that
`
`message is misleading could only be determined by separately examining each bag
`
`because the packaging of each bag contains different information. Reitman argues
`
`that the district court erred by focusing its predominance analysis only on
`
`affirmative misrepresentations and failing to consider allegedly uniform and
`
`material omissions from the dog food bag packaging. We disagree.
`
`
`1
`Plaintiffs-Appellants are Jennifer Reitman, Carol Shoaff, and Erin
`Grant. We refer to them collectively as “Reitman.”
`
`
`2
`Similarly, we refer to Defendants-Appellants Champion Petfoods
`USA, Inc. and Champion Petfoods LP collectively as “Champion.”
`2
`
`
`
`
`
`The district court’s conclusion that individualized inquiries requiring bag-to-
`
`bag determinations predominate over common questions applies whether the
`
`misrepresentations are based on affirmative statements on, or omissions from, the
`
`packaging. And Reitman does not explain how creating subclasses based on diets
`
`would cure the need for individualized bag-to-bag inquiries. Accordingly, the
`
`district court correctly held that the predominance requirement had not been
`
`satisfied and that creating subclasses would be futile.
`
`The district court also properly found that Reitman’s damages models failed
`
`to satisfy the standard set out in Comcast Corp. v. Behrend, 569 U.S. 27 (2013).
`
`Reitman’s “price premium” model failed to measure the price difference
`
`attributable to misleading statements on, or omissions from, the packaging. In
`
`other words, the model measured only the differing customer expectations based
`
`on various corrective statements in the abstract and failed to measure the
`
`“difference between what the plaintiff paid and the value of what the plaintiff
`
`received.” In re Vioxx Class Cases, 103 Cal. Rptr. 3d 83, 96 (Cal. Ct. App. 2009);
`
`see also Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 989 (9th Cir.
`
`2015).
`
`Moreover, the district court correctly found that a full refund model was
`
`inappropriate for Reitman’s proposed pentobarbital subclass because there were
`
`
`
`3
`
`
`
`potential class members who never purchased bags with contaminant.
`
`Additionally, “[a] full refund may be available . . . when the plaintiffs prove the
`
`product had no value to them.” In re Tobacco Cases II, 192 Cal. Rptr. 3d 881, 895
`
`(Cal. Ct. App. 2015). Thus, Reitman’s failure to explain why a risk of
`
`contamination renders the product completely valueless for even those class
`
`members who did purchase a contaminated bag was a sufficient basis for rejecting
`
`the subclass they posited.
`
`Finally, the district court applied the correct standard in denying Reitman’s
`
`request to create a liability-only class or issue classes under Rule 23(c)(4). The
`
`district court concluded, while acknowledging that predominance was not required
`
`for certifying a class under Rule 23(c)(4), that numerous individualized issues
`
`affecting determinations of liability make Rule 23(c)(4) certification inefficient.
`
`Indeed, Rule 23(c)(4) enables a district court to certify an issue class “[w]hen
`
`appropriate,” but a court does not abuse its discretion when it declines to do so
`
`because certifying a class does not “materially advance[] the disposition of the
`
`litigation as a whole.” William B. Rubenstein, 2 Newberg on Class Actions 4:90
`
`(5th ed. 2012); see also Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th
`
`Cir. 1996) (finding that the “district court abused its discretion by not adequately
`
`considering the predominance requirement before certifying the [issue] class”).
`
`
`
`4
`
`
`
`Because Reitman failed to show that Rule 23(c)(4) certification was “appropriate,”
`
`the district court did not abuse its discretion when it denied certification.
`
`We have considered the remainder of Reitman’s arguments and find them to
`
`be without merit. Thus, the district court’s denial of class certification is
`
`AFFIRMED.
`
`
`
`5
`
`
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