Case: 20-15742, 09/30/2020, ID: 11842466, DktEntry: 25, Page 1 of 58
`Docket No. 20-15742
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`In the
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`United States Court of Appeals
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`Ninth Circuit
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`For the
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`In re: COCA-COLA PRODUCTS MARKETING
`AND SALES PRACTICES LITIGATION (NO. II):
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`GEORGE ENGURASOFF, et al.,
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`Plaintiffs-Appellees,
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`v.
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`COCA-COLA REFRESHMENTS USA, INC., et al.,
`Defendants-Appellees.
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`_______________________________________
`Appeal from a Decision of the United States District Court for the Northern District of California,
`No. 4:14-md-02555-JSW ∙ Honorable Jeffrey S. White
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`BRIEF OF APPELLEES
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`KEITH M. FLEISCHMAN, ESQ.
`JOHN W. (“DON”) BARRETT, ESQ.
`JOSHUA D. GLATTER, ESQ.
`RICHARD BARRETT, ESQ.
`FLEISCHMAN BONNER & ROCCO LLP
`BARRETT LAW GROUP, P.A.
`81 Main Street, Suite 515
`Post Office Box 927
`White Plains, New York 10601
`Lexington, Mississippi 39095
`(914) 278-5100 Telephone
`(662) 834-2488 Telephone
`(917) 591-5245 Facsimile
`(662) 834-2628 Facsimile
`Attorneys for Appellees Rachel Dube, George Engurasoff, Yocheved Lazaroff,
`Michelle Marino, Paul Merritt, Joshua Ogden, Ronald Sowizrol and Thomas Woods
`Additional Counsel Listed Inside Cover
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`COUNSEL PRESS ∙ (213) 680-2300
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`PRINTED ON RECYCLED PAPER
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`BEN F. PIERCE GORE, ESQ.
`PRATT & ASSOCIATES
`1871 The Alameda, Suite 425
`San Jose, California 95126
`(408) 429-6506 Telephone
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`DAVID SHELTON, ESQ.
`SHELTON DAVIS
`1223 Jackson Avenue East, Suite 202
`Oxford, Mississippi 38655
`(662) 281-1212 Telephone
`(662) 281-1312 Facsimile
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`Attorneys for Appellees Rachel Dube, George Engurasoff, Yocheved Lazaroff,
`Michelle Marino, Paul Merritt, Joshua Ogden, Ronald Sowizrol and Thomas Woods
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`CORPORATE DISCLOSURE STATEMENT
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`Pursuant to Rule 26.1(a) of the Federal Rules of Appellate Procedure,
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`Appellees-Plaintiffs hereby state that no Plaintiff in this matter is a corporate entity
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`that requires disclosure under Rule 26.1(a) of the Federal Rules of Appellate
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`Procedure.
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`i
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`Case: 20-15742, 09/30/2020, ID: 11842466, DktEntry: 25, Page 4 of 58
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`TABLE OF CONTENTS
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`CORPORATE DISCLOSURE STATEMENT .......................................................... i
`TABLE OF CONTENTS .......................................................................................... ii
`TABLE OF AUTHORITIES .......................................................................................
`INTRODUCTION ..................................................................................................... 1
`COUNTERSTATEMENT OF ISSUES PRESENTED ............................................. 4
`STANDARD OF REVIEW ....................................................................................... 5
`COUNTERSTATEMENT OF FACTS ..................................................................... 6
`SUMMARY OF ARGUMENT ............................................................................... 14
`ARGUMENTS ......................................................................................................... 15
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`I.
`PLAINTIFFS HAVE STANDING TO OBTAIN INJUNCTIVE
`RELIEF ON THE CLASS’S BEHALF .............................................. 15
`A.
`The District Court Correctly Interpreted Davidson .................. 15
`B.
`Post-Davidson Jurisprudence Confirms That The District
`Judge Correctly Analyzed and Applied Davidson in
`Determining Article III Standing .............................................. 21
` Defendants’ Cited Authorities Are Inapposite ........................ 28
`The District Judge’s Holding that Plaintiffs Had Not
`Demonstrated That Phosphoric Acid Would Likely Be
`Removed From Coke Was Not Material to His Class
`Certification Decision ............................................................... 31
`Plaintiffs Seek to Vindicate More Than Merely Abstract
`Procedural or Regulatory Violations ........................................ 33
`Plaintiffs Adequately Established The Likelihood of
`Future Purchases or Consumption of Coke .............................. 36
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`C.
`D.
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`E.
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`F.
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`ii
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`
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`II.
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`THE DISTRICT COURT PROPERLY EXERCISED ITS
`DISCRETION IN FINDING COMMONALITY ............................... 38
`CONCLUSION ........................................................................................................ 45
`Form 8. Certificate of Compliance for Briefs
`Form 17. Statement of Related Cases Pursuant to Circuit Rule 28-2.6
`CERTIFICATE OF SERVICE
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`iii
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`TABLE OF AUTHORITIES
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`
`CASES
`Abdullah v. U.S. Sec. Associates, Inc.,
`
`731 F.3d 952 (9th Cir. 2013) ........................................................................... 6
`Adams v. Starbucks Corp.,
`
`2020 U.S. Dist. LEXIS 131380 (C.D. Cal. July 9, 2020) ....................... 22, 23
`Astor Professional Search LLC v. MegaPath Corp.,
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`2013 WL 1283810 (N.D. Ill. Mar. 27, 2013) ................................................ 40
`Babanian v. Dunkin’ Brands Grp,
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`2019 U.S. Dist. LEXIS 98673 (C.D. Cal. Jun. 12, 2018).............................. 30
`Bassett v ABM Parking Svcs, Inc.,
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`883 F.3d 776 (9th Cir. 2018) ......................................................................... 35
`Bates v. United Parcel Serv., Inc.,
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`511 F.3d 974 (9th Cir. 2007) ................................................................... 15, 40
`Charest v. Fed. Nat’l Mortg. Assoc.,
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`9. F. Supp. 3d 114 (D. Mass. 2014) ............................................................... 40
`Daniel v. Nat'l Park Serv.,
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`891 F.3d 762 (9th Cir. 2018) ......................................................................... 36
`Davidson v. Kimberly Clark,
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`889 F.3d 956 (9th Cir. 2018), cert. denied,
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`139 S. Ct. 640 (2018) ..............................................................................passim
`Dutta v. State Farm Mut. Auto Ins. Co.,
`
`895 F.3d 1176 (9th Cir. 2018) ....................................................................... 36
`Gaidon v. Guardian Life Ins. Co. of Am.,
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`94 N.Y.2d 330 (N.Y. 1999) ........................................................................... 41
`Hall v. Marriott Int’l, Inc.,
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`2020 U.S. Dist. LEXIS 148467 (S.D. Cal. Aug. 14, 2020) ........................... 24
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`iv
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`Hester v. Vision Airlines, Inc.,
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`687 F.3d 1162 (9th Cir. 2012) ......................................................................... 5
`In re Bang Energy Drink Mktg. Litig.,
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`2020 U.S. Dist. LEXIS 140353 (N.D. Cal. Feb. 6, 2020) ............................. 23
`In re Coca-Cola Prods. Mktg. & Sales Practices Litig. (No. II),
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`2020 U.S. Dist. LEXIS 53960 (N.D. Cal. Mar. 26, 2020) ............................ 33
`In re Coca-Cola Prods. Mktg. & Sales Practices Litig. II,
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`2016 U.S. Dist. LEXIS 66266 (N.D. Cal. May 19, 2016)............................. 39
`Jackson-Mau v. Walgreen Co.,
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`2019 U.S. Dist. LEXIS 189134 (E.D.N.Y. Oct. 31, 2019) ........................... 27
`Lanovaz v. Twinings N. Am., Inc.,
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`726 F. App’x 590 (9th Cir. 2018) .................................................................. 36
`Long Nguyen v. Lotus by Johnny Dung Inc.,
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`2019 U.S. Dist. LEXIS 78033 (C.D. Cal. Jan. 7, 2019) ................................ 38
`Martorella v. Deutsche Bank Nat'l Tr. Co.,
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`2015 WL 11347664 (S.D. Fla. Aug. 6, 2015) ............................................... 40
`Matyev v. Kaupustin, et al.,
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`2017 WL 1337431 (D. N.J. Apr. 7, 2017) ..................................................... 41
`Moore v. Mars Petcare US, Inc.,
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`966 F.3d 1007 (9th Cir. 2020) ....................................................................... 21
`Nemykina v. Old Navy, LLC,
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`2020 U.S. Dist. LEXIS 86073 (W.D. Wash. May 15, 2020) .................. 24, 25
`Parsons v. Ryan,
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`754 F.3d 657 (9th Cir. 2014) ........................................................................... 5
`Prescott v Bayer Healthcare LLC,
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`2020 U.S. Dist. LEXIS 136651 ............................................................... 27, 28
`Rivas v. Rail Delivery Svc.,
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`423 F.3d 1079 (9th Cir. 2005) ................................................................. 34, 35
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`v
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`Shanks v. Jarrow Formulas, Inc.,
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`2019 U.S. Dist. LEXIS 227427 (C.D. Cal. Dec. 27, 2019) ..................... 28, 29
`Smith v. Keurig Green Mt., Inc.,
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`2020 U.S. Dist. LEXIS 172826 (N.D. Cal. Sep. 21, 2020) ............................. 4
`Spokeo Inc. v. Robins,
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`136 S. Ct. 1540 (2016) ............................................................................. 33, 34
`Stearns v. Ticketmaster Corp.,
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`655 F.3d 1013 (9th Cir. 2011) ......................................................................... 6
`Tran v. Sioux Honey Ass’n, Coop.,
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`2020 U.S. Dist. LEXIS 31421 (C.D. Cal. Feb. 24, 2020) ....................... 25, 26
`Tucker v. Post Consumer Brands, LLC,
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`2020 U.S. Dist. LEXIS 71090 (N.D. Cal. Apr. 21, 2020) ............................. 26
`United States v. Hinkson,
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`585 F.3d 1247 (9th Cir. 2009) ......................................................................... 6
`United States v. Working,
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`224 F.3d 1093 (9th Cir. 2000) ......................................................................... 6
`Wisdom v. Easton Diamond Sports, LLC,
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`2019 U.S. Dist. LEXIS 24500 (C.D. Cal. Feb. 11, 2019) ............................. 38
`Wolin v. Jaguar Land Rover N. Am., LLC,
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`617 F.3d 1168 (9th Cir. 2010) ......................................................................... 6
`COURT RULES
`Federal Rules of Civil Procedure 23 .................................................................... 5, 45
`Federal Rules of Civil Procedure 23(a) ................................................................... 12
`Federal Rules of Civil Procedure 23(b)(2) .......................................... 2, 4, 12, 16, 42
`Federal Rules of Civil Procedure 23(b)(3) .............................................................. 42
`Federal Rules of Civil Procedure 23(f) .......................................................... 3, 13, 14
`Federal Rules of Civil Procedure 26(b)(2) .............................................................. 11
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`vi
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`STATUTES
`21 U.S.C. §343(k) ...................................................................................................... 8
`28 U.S.C. § 1292(b) ................................................................................................. 10
`OTHER AUTHORITIES
`21 C.F.R. § 101.22(a) ............................................................................................. 6, 7
`21 C.F.R. §10.22(a)(1) ............................................................................................... 7
`21 C.F.R. §10.22(a)(3) ............................................................................................... 7
`21 C.F.R. § 101.22(c) ................................................................................................. 8
`21 C.F.R. § 101.22(h)(1) ............................................................................................ 8
`49 C.F.R. § 376.12(c)(1) .................................................................................... 34, 35
`44 Fed. Reg. 74845 (Dec. 18, 1979). ......................................................................... 7
`General Business Law § 349 .................................................................................... 41
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`vii
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`INTRODUCTION
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`For over six years, Appellants-Defendants (referred to herein as “Coca-Cola”
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`or “Defendants”) have labored to avoid addressing the key factual question
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`presented in these consolidated lawsuits. This meritless appeal is Defendants’ latest
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`effort. This is a simple case. Is the ingredient in the soft drink Coke1 known as
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`phosphoric acid an artificial flavor and/or chemical preservative? If so, did Coca-
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`Cola illegally, deceptively, and/or unfairly labeled when it does not disclose that role
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`and instead advertised the beverage as always having been artificial flavor and
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`preservative-free? Each Plaintiff in this case purchased and/or consumed Coke, a
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`product who for years, bore a label statement that falsely boasted to Plaintiffs Class
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`members that Coke contained “no artificial flavors”, had “no preservatives added”
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`and had been so constituted “since 1886.” (the “Pemberton Claim”). Each Plaintiff
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`purchased Coke in a container whose label’s ingredient list failed to disclose that
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`phosphoric acid was either an artificial flavor or a preservative, thus confirming the
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`Pemberton Claim’s assertions. The Pemberton Claim has, at least for now, been
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`voluntarily discontinued by Coca-Cola, (though it or a similar claim could be placed
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`on the containers again at any time), but Coke’s label’s ingredient list still does not
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`1 For avoidance of confusion, by “Coke” Plaintiffs refer to that specific soft drink
`that is commonly sold in red cans or in bottles with red labels, that is sometimes
`referred to as the “original formula.” “Coke” does not include other soft drinks, such
`as Diet Coke, Cherry Coke, or Caffeine Free Coca-Cola, having similar names
`1
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`disclose phosphoric acid’s role as a preservative, nor do the labels and packages
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`disclose that Coke contains artificial flavors and preservatives. The Plaintiffs have
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`each stated that if Coke were properly labeled, they would consider purchasing it,
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`several have explained they still occasionally purchase or drink it.
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`In a thoughtful and carefully reasoned decision that remained sub judice for
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`approximately two years, District Judge White agreed that the Plaintiffs possessed
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`Article III standing, and conducted a detailed analysis of this Court’s decision in
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`Davidson v. Kimberly Clark, 889 F.3d 956 (9th Cir. 2018), cert. denied, 139 S. Ct.
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`640, (2018) and other jurisprudence to analyze that issue. Importantly, and contrary
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`to Coca-Cola’s false suggestion otherwise, Davidson did not set forth a bright line
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`test a Plaintiff must meet in order to demonstrate standing to pursue injunctive relief
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`despite that plaintiff now knowing or believing that a product was mislabeled. Any
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`such interpretation would effectively render Rule 23(b)(2) a near-dead letter in any
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`consumer class action, because the very act of filing a complaint would deprive the
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`Plaintiff of standing and undermine the remedial purposes of state consumer
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`protection laws. Nor does Davidson require a plaintiff to demonstrate that a
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`manufacturer will, someday, reform its product. Neither Plaintiffs, this Court, or the
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`District Court can divine what Coca-Cola may do in the future if phosphoric acid is
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`proven to be an artificial flavor or chemical preservative, nor do we, yet, have any
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`insights as to what Coca-Cola has considered in the past for this product’s
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`2
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`ingredients, including without limitation phosphoric acid. If, for example, Coca-
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`Cola is proven to have lied about phosphoric acid’s nature and role in the Coke, one
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`must also wonder whether highly touted “secret” formula of is “natural flavors”
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`(Def. Br. at 4) is also untrue and contains mislabeled ingredients. An injunction is
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`the only way to give Plaintiffs and the Class confidence in their future purchases,
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`and the District Court correctly understood that Davidson simply provided non-
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`exclusive examples of how plaintiffs in cases like this might possess Article III
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`standing, and concluded that Plaintiffs satisfied one of those examples – an inability
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`to rely on a label’s accuracy regarding the product’s contents. Case law issued since
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`Davidson analyzing and applying its principles overwhelmingly demonstrate that
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`the District Court’s decision was correct.
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`Faced with the reality that its strained interpretation of Davidson is unlikely
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`to succeed, Coca-Cola retreats to accussing the District Court of not conducting a
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`rigorous Rule 23 analysis and use this Rule 23(f) appeal as an inappropriate channel
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`to tout the supposed reliability of Defendants’ survey expert. As they unsuccessfully
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`attempted before the District Court, Defendants try to minimize the significance of
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`Coca-Cola’s own internal studies that clash with their own expert’s conclusions, and
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`to engage in an after-the-fact reply-rebuttal to Plaintiffs’ expert’s critique of
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`Defendants’ experts gross methodological failings which render his conclusions
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`unreliable, and, at the least, no basis to deny class certification. In truth, the District
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`3
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`Judge acted entirely within his discretion in concluding that the “battle of experts”
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`must await the merits phase of this lawsuit, and that the evidence Plaintiffs offered,
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`which was far more than merely “arguing” the infirmities of Defendants’ expert’s
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`analysis, sufficed for class certification purposes.
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`This is exactly the type of litigation which Rule 23(b)(2) class certification
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`was and is appropriate. Compare Smith v. Keurig Green Mt., Inc., 2020 U.S. Dist.
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`LEXIS 172826, at *33 (N.D. Cal. Sep. 21, 2020 (“The proposed injunctive relief—
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`an order to enjoin Keurig from advertising their products as recyclable—may be
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`granted and provide relief for all proposed class members.”) If Coke was mislabeled
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`in any one of the six states at issue, it was mislabeled in all of them, and injunctive
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`relief is the ideal way to resolve issues concerning Coca-Cola’s labeling in one
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`stroke, once it is determined if phosphoric acid is, or is not, an artificial flavor or
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`chemical preservative. The District Court’s Order should be affirmed, and merits
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`discovery should proceed apace.
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`COUNTERSTATEMENT OF ISSUES PRESENTED
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`1.
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`Did the District Court act within its discretion in finding that, under
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`Davidson v. Kimberly-Clark Corp. the Plaintiffs have standing to seek injunctive
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`relief with respect to Coke’s labeling when: (a) each Plaintiff testified that they
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`would consider purchasing Coke in the future if it were properly labeled, although
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`the amount and volume they might purchase might vary; (b) there has been no merits
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`4
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`discovery into the nature of phosphoric acid, whether any other ingredient can
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`substitute for it; (c) Coke’s labels, including its ingredient list, continue to not
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`disclose the presence of any artificial flavors or preservatives in the product; (d)
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`Coke removed the Pemberton Claim voluntarily, and could replace it with the same
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`or similar statements at any time; and (e) Defendants today still insist that phosphoric
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`acid is not an artificial flavor or preservative, and claim that no ingredient in the
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`product constitutes any such item?
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`2.
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`Did the District Court act within its discretion in granting class
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`certification after Plaintiffs identified numerous methodological flaws and issues
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`with Coca-Cola’s survey expert’s analysis and conclusions, and identified other
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`studies produced by Coca-Cola which a reasonable factfinder might find
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`demonstrate that consumers do care about whether food and beverage products
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`contain artificial flavors or preservatives?
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`STANDARD OF REVIEW
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`A district court’s decision to certify a class under Rule 23 is reviewed for
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`abuse of discretion and is evaluated for clear error as to any factual findings upon
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`which the district court relied in its certification order. Parsons v. Ryan, 754 F.3d
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`657, 673 (9th Cir. 2014) citing Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1171-
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`72 (9th Cir. 2012). “When reviewing a grant of class certification, we accord the
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`district court noticeably more deference than when we review a denial of class
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`5
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`certification.” Abdullah v. U.S. Sec. Associates, Inc., 731 F.3d 952, 956 (9th Cir.
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`2013) (citing Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1171 (9th
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`Cir. 2010)). An abuse of discretion occurs when the district court, in making a
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`discretionary ruling, relies upon an improper factor, omits consideration of a factor
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`entitled to substantial weight, or mulls the correct mix of factors but makes a clear
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`error of judgment in assaying them. Stearns v. Ticketmaster Corp., 655 F.3d 1013,
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`1018 (9th Cir. 2011) (citation omitted). Under the “clearly erroneous” review
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`standard, a district court’s factual findings may only be reversed if they are “(1)
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`illogical, (2) implausible, or (3) without “‘support in inferences that may be drawn
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`from the record.’” Abdullah, 731 F.3d at 956 (quoting United States v. Hinkson, 585
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`F.3d 1247, 1262 (9th Cir. 2009)). “Where there are two permissible views of the
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`evidence, the factfinder’s choice between them cannot be clearly erroneous.” United
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`States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc) (citations and
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`quotation marks omitted).
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`COUNTERSTATEMENT OF FACTS
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`Cokehas been sold to consumers since the 19th century, and, at all relevant
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`times, contains phosphoric acid. Under the Food, Drug and Cosmetic Act
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`(“FDCA”), FDA regulations, and California’s Sherman Law, food manufacturers
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`must disclose the presence of artificial flavorings and chemical preservatives in their
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`products. No such disclosure was ever made on Coke containers. Under 21 C.F.R.
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`6
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`§ 101.22(a), a substance constitutes an “artificial flavoring” if its function is “to
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`impart flavor,” and a substance constitutes a “chemical preservative” if, “when
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`added to food, [it] tends to prevent or retard deterioration thereof.” Phosphoric acid
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`is not derived from any of the items listed in 21 C.F.R. §10.22(a)(1): it is not a natural
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`flavor as that term is defined in §101.22(a)(3), and is also not a common salt, vinegar,
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`spice, or an oil extracted from spices. ER 486
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`Defendant admits that Phosphoric Acid is used to add tartness and acidity to
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`Coke’s flavor. Def. Br. at 4. Coca-Cola’s website (The Coca-Cola Company
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`Beverage Institute for Health & Wellness) stated that “[p]hosphoric acid is [] used
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`in certain soft drinks, including Coca-Cola to add tartness to the beverage.” ER 483.
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`That same website also identified phosphoric acid as an acidulant. ER 483, 486, and
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`stated that acidulants are “[a]cids, which include phosphoric acid and citric acid, and
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`acidic salts help to provide flavoring. They are responsible for the tart taste which
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`helps to balance the sweetness. They also help to reduce the growth of
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`microorganisms (i.e., protect the food from spoiling).” Id. The website of the
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`American Beverage Association defines phosphoric acid in the following manner:
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`“This flavoring agent in soft drinks is a preservative that provides tartness.” ER 476
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`In 1979, the FDA stated that phosphoric acid “is used” as a “flavoring agent”
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`and as a pH control agent. See 44 Fed. Reg. 74845, 74854 (Dec. 18, 1979). The
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`FDA also considers phosphoric acid to be a “common acidulent[]” found in “cola
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`7
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`soda.”2 Such acidulents are used as part of the “acidification” process, “[a]
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`technology used by processors to preserve foods by adding acids and rendering food
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`safe from harmful bacteria.” ER 487. “Acidification is one way to maintain safe
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`pH levels and keep various foods safe from harmful bacteria.” Id.
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`Food or beverages containing artificial flavors or chemical preservatives must
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`bear labeling disclosing that fact. 21 U.S. §343(k). 21 C.F.R 101.22(c) provides
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`that “[a] statement of artificial flavoring, artificial coloring, or chemical preservative
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`shall be placed on the food or on its container or wrapper, or on any two or all three
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`of these, as may be necessary to render such statement likely to be read by the
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`ordinary person under customary conditions of purchase and use of such food.”
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`Artificial flavorings and chemical preservatives must also be disclosed on labels’
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`ingredient lists. 21 C.F.R. § 101.22(h)(1).
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`Coca-Cola, however, has never disclosed on Coke containers that the
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`beverage contains artificial flavoring or a chemical preservative. Instead, between
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`2008-2015, on two-liter bottles and on 12-pack and 24-pack cartons of Coke (which
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`were purchased by Plaintiffs), Defendants employed the Pemberton Claim
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`affirmatively misrepresented that Coke contains “no artificial flavors. no
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`preservatives added. since 1886.” This deceitful catchphrase formed part of
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`Defendants’ “Pemberton” campaign (named after Coke’s original inventor John
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`2 See http://www.fda.gov/food/foodscienceresearch/toolsmaterials/ucm215830.htm.
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`Pemberton).3 The Pemberton campaign was launched to address sharp sales declines
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`attributable to health-conscious consumers, by deceiving consumers into believing
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`that Coke did not contain artificial flavors or chemical preservatives. ER 478.
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`Plaintiffs were misled by this false labelling and erroneously believed Coke
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`contained no artificial flavors or chemical preservatives. ER 477. Not only did the
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`Pemberton Claim deceive Plaintiffs and the Class, but that deception was amplified
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`by Coca-Cola’s failure to affirmatively state that Coke contained artificial flavoring
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`and a chemical preservative. ER 477.
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`In 2013 and 2014 Plaintiffs initiated a series of class action lawsuits in six (6)
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`jurisdictions: California, Illinois, New York, New Jersey, Massachusetts, and
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`Florida, which were eventually consolidated into this Multidistrict litigation. ER
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`473, 575. The original complaint, Engurasoff, et al. v. The Coca-Cola Company, et
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`al., 4:13-cv-03990-JSW, was filed on August 27, 2013, Engurasoff Dkt. No. 1. It
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`was amended on October 21, 2013. Engurasoff Dkt. No. 15. The Complaint alleges
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`that Coke is illegally labeled both with respect to omissions on its ingredient lists,
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`and the Pemberton Claim’s affirmative misstatements. On November 22, 2013,
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`3 During this same period – 2008 – 2015, at least two-thirds of Coke labels also
`contained the phrase “Original Formula.” Def. Br. at 4. Plaintiffs are not pursuing
`claims specific to that label statement, but it is nevertheless false because Coke’s
`formulation has changed several times since 1886. More importantly, the Original
`Formula statement is relevant because it reinforced the Pemberton Claim’s false
`assertion that Coke did not contain artificial flavors or chemical preservatives, and
`never had contained them since the product’s inception,
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`Defendants moved to dismiss the amended complaint. Engurasoff Dkt. No. 30. After
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`several rounds of briefing, the District Court largely denied Defendants’ motion on
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`October 21, 2014. Engurasoff Dkt. No. 73. In the interim, as noted above, on August
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`7, 2014, the Judicial Panel Multidistrict Litigation centralized Engurasoff and other
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`cases before this Court.
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`After Coca-Cola’s motion to dismiss was denied, on September 12, 2014
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`Defendants sought to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
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`MDL Dkt. No. 17. On October 6, 2014, Defendants also served answers to the
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`individual complaints filed in the actions within this multi-district litigation. MDL
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`Dkt. Nos. 32-37. On October 17, 2014 the District Court granted Defendants’
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`motion and certified an interlocutory appeal. MDL Dkt. No. 40, and also stayed the
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`MDL litigation pending that appeal. Id.
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`On January 14, 2015, this Court denied Defendants’ interlocutory appeal
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`petition. Dkt. No. 42. Thereafter Coca-Cola requested and, over Plaintiffs’
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`objection, was awarded an extended, trifurcated discovery process. MDL Dkt. No.
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`54, at 9-12, 24. Under the proposed discovery schedule, at the earliest, merits
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`discovery would not commence until mid-2017. Id. Moreover, in advance of
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`providing Plaintiffs any opportunity to propound class certification or merits
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`discovery, Defendants also requested and received an initial discovery phase limited
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`to Plaintiffs’ reliance. Id. At the first phase’s conclusion, Coca-Cola would be
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`allowed to—and did—move for summary judgment. Id. On October 2, 2015,
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`Defendants’ filed their initial motion for summary judgment. MDL Dkt. No. 100.
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`On May 19, 2016, the District Court largely denied that motion. MDL Dkt. No. 116.
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`On June 10, 2016, Plaintiffs served their first set of “Phase II” class
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`certification discovery demands.). Five days later Coca-Cola asked Plaintiffs to
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`consent to staying the lawsuit pending resolution of three appeals then-currently
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`pending before this Court; Brazil v. Dole Packaged Foods, LLC, No. 14-17480 (9th
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`Cir. filed Dec. 17, 2014), Kosta v. Del Monte Foods, Inc., No. 15-16974 (9th Cir.
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`filed Oct. 2, 2015), and Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. filed
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`July 14, 2014). Plaintiffs declined to consent and on June 20, 2016——two years
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`after ConAgra was appealed—Coca-Cola requested another stay, MDL Dkt. No.
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`119, which the District Court denied. MDL Dkt. No. 124.
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`Plaintiffs filed their class certification motion on June 16, 2017, MDL Dkt.
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`No. 160, which requested certification solely for Fed. R. Civ. P. 26(b)(2) injunctive-
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`relief-only classes. Coca-Cola filed its opposition, on July 21, 2017, MDL Dkt. No.
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`168, and Plaintiffs filed their reply on August 3, 2017. Dkt. No. 176. On October
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`11, 2017, the District Court vacated a previously scheduled oral argument, advising
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`that it would rule on the motion based on the papers. Dkt. No. 180. After briefing
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`closed, Plaintiffs submitted several statements of recent decision bearing upon class
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`certification. MDL Dkt. Nos. 181, 186, 187.
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`The District Court issued its Class Certification Order on February 14, 2020.
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`MDL Dkt. No. 218. That Order denied Plaintiffs’ Motion as to their common law
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`claims, and, after examining Rule 23(a)’s and Rule 23(b)(2)’s requirements,
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`otherwise granted the Motion. ER 2. Examining Davidson, the District Court found
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`that Plaintiffs had not demonstrated a likelihood that Coca-Cola would remove
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`phosphoric acid as an ingredient. ER10. However, the District Court recognized no
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`merits discovery had been taken yet, id., so was simply making a finding for class
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`certification purposes, rather than any definitive finding on what Defendants could
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`or might do regarding Coke’s formulation. Instead, the District Court concluded
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`that Plaintiffs fell within a different non-exclusive example enunciated in Davidson;
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`“a plaintiff might show they have standing to seek injunctive relief by plausibly
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`alleging their inability to rely on the labels would cause them to refrain from
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`purchasing a product that they otherwise would want.” ER, 9, citing Davidson at
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`970. After surveying jurisprudence, the District Court concluded that the issue
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`turned not upon the fact that phosphoric acid was one of Coke’s ingredients, but
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`instead turned upon that ingredient’s nature and role in the product, which was
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`disputed and not ascertainable from Coke’s label. ER 12. The District Court
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`proceeded to review and summarize the Plaintiff’s testimony, and concluded that
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`for each of the six states at issue – California, Florida, New York, New Jersey,
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`Illinois, and Massachusetts - - at least one plaintiff satisfied their burden to
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`Case: 20-15742, 09/30/2020, ID: 11842466, DktEntr