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Pelman v. McDonald's Corp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


October 27, 2010

PELMAN, ET AL., PLAINTIFFS,
v.
MCDONALD'S CORP. DEFENDANT.

The opinion of the court was delivered by: Pogue, Judge

OPINION AND ORDER

[Plaintiffs' motion for class certification and, in the alternative, issue class certification is denied.]

Plaintiffs in this action are New York State consumers claiming, pursuant to Section 349 of New York's General Business Law ("GBL § 349"), exposure to and injury from Defendant McDonald's Corporation's allegedly deceptive marketing scheme. Plaintiffs claim that the effect of Defendant's affirmative representations and material omissions throughout this marketing scheme -- from 1985 until the filing of this case in 2002 -- was to mislead consumers into falsely believing that Defendant's food products may be consumed on a daily basis without incurring any adverse health effects, and that, as a result of this marketing scheme, Plaintiffs and putative class members suffered injury in the form of, inter alia, the development of certain adverse medical conditions. The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332 (2000).

Before the court is Plaintiffs' motion for class certification pursuant to Federal Rule of Civil Procedure 23(b)(3) or, in the alternative, for class certification solely with respect to the litigation of issues common to all putative class members, pursuant to Rule 23(c)(4). As explained below, because establishment of the causation and injury elements of Plaintiffs' claims will necessitate extensive individualized inquiries, the court finds that the questions of law and fact which would be common to putative class members would not predominate over questions affecting only individual members. Accordingly, certification of this action for class litigation under Rule 23(b)(3) is not appropriate. See Fed. R. Civ. P. 23(b)(3).

Moreover, class certification under Rule 23(c)(4) is not appropriate at this time. Although Plaintiffs' claim contains issues which may be common to potential class members, the resolution of which is susceptible to proof by common evidence on the basis of objective standards, there is insufficient evidence to establish the existence of a class of persons who hold identical claims, on the basis of identical injuries, to those allegedly suffered by Plaintiffs -- i.e., the evidence presented is not sufficient to satisfy the numerosity requirement of Rule 23(a)(1). See, e.g., Charron v. Pinnacle Gr. N.Y., __ F.R.D. __, No. 07 Civ. 6316(CM)(RLE), 2010 WL 1752501, at *19 (S.D.N.Y. Apr. 27, 2010) (issue classes certified under Rule 23(c)(4) must satisfy the criteria of Rules 23(a) and (b) with respect to the issues certified).

The court therefore denies Plaintiffs' motion for class certification in its entirety.

BACKGROUND

A. Procedural History

Plaintiffs originally commenced this suit in the State Supreme Court of New York, Bronx County, on August 22, 2002. Plaintiffs claimed that Defendants McDonald's Corporation, McDonald's Restaurants of New York, Inc., McDonald's 1865 Bruckner Boulevard Bronx, New York, and McDonald's 2630 Jerome Avenue, Bronx, New York (collectively "McDonald's") engaged in deceptive business practices in making and selling their products, and that "this deception has caused the minors who have consumed McDonald[']s' products to injure their health by becoming obese." Pelman v. McDonald's Corp., 237 F. Supp. 2d 512, 516 (S.D.N.Y. 2003) ("Pelman I").

McDonald's removed the action to this Court on September 30, 2002, alleging that Plaintiffs had fraudulently joined non-diverse parties to defeat diversity jurisdiction under 28 U.S.C. § 1332. By opinion of January 22, 2003, the court denied Plaintiff's motion to remand back to the Supreme Court of New York, Pelman I, 237 F. Supp. 2d at 521-23, concluding that "there is no reasonable basis, based on the pleadings, for liability against the non-diverse defendants in light of the claims alleged." See id. at 521 (citation omitted); 523 ("Clearly what is at issue in this lawsuit is the national menu and national policy of McDonald's Corp., and the plaintiffs' real beef is with McDonald's Corp.").*fn2

Having satisfied itself of jurisdiction, the court, by the same opinion of January 22, 2003, granted Defendant's Rule 12(b)(6) motion to dismiss all counts of Plaintiffs' complaint for failure to state a claim upon which relief may be granted, id. at 524-43, but granted Plaintiffs leave to amend their complaint. Id. at 543.

Plaintiffs filed their first amended complaint ("FAC") on February 19, 2003. On September 3, 2003, the court again granted Defendant's renewed Rule 12(b)(6) motion, dismissing Plaintiffs' complaint in its entirety, without leave to amend. Pelman v. McDonald's Corp., No. 02 Civ. 7821 (RWS), 2003 WL 22052778, at *14 (S.D.N.Y. Sept. 3, 2003) ("Pelman II").*fn3

Plaintiffs appealed solely the district court's dismissal of counts I, II and III -- each brought under GBL § 349*fn4 -- of their FAC. Pelman v. McDonald's Corp., 396 F.3d 508, 509-11 (2d Cir. 2005) ("Pelman III").*fn5 The United States Court of Appeals for the Second Circuit ("Second Circuit") vacated the district court's dismissal of these claims, holding that, "because a private action under [GBL] § 349 does not require proof of the same essential elements (such as reliance) as common-law fraud, an action under [GBL] § 349 is not subject to the pleading-with-particularity requirements of Rule 9(b), Fed. R. Civ. P., but need only meet the bare-bones notice-pleading requirements of Rule 8(a), Fed. R. Civ. P," id. at 511 (citations omitted), and that "[s]o far as the [GBL] § 349 claims are concerned, the [FAC] more than meets the requirements of Rule 8(a)." Id. at 512 (footnote omitted).

Following a remand to this Court for further proceedings consistent with the Second Circuit's opinion in Pelman III, see Pelman III, 396 F.3d at 512, the court granted in part Defendant's Rule 12(e) motion for a more definite statement, requiring Plaintiffs to "identify the advertisements that collectively amount to the alleged deceptive nutritional scheme." Pelman v. McDonald's Corp., 396 F. Supp. 2d 439, 445 (S.D.N.Y. 2005) ("Pelman IV"). In addition, the court required Plaintiffs to provide "a brief explanation of why the advertisements are materially deceptive to an objective consumer." Id.*fn6 In addition, "in accordance with GBL § 349's requirement that [P]laintiffs' injuries be 'by reason of' [D]efendant's conduct, the court directed Plaintiffs [to] provide a brief explanation of how [P]laintiffs were aware of the nutritional scheme[] they allege to have been deceptive." Id. at 446 (citing Stutman v. Chem. Bank, 731 N.E.2d 608, 612 (N.Y. 2000)).*fn7 The court also required Plaintiffs to "outline the injuries that were suffered by each plaintiff 'by reason of' defendant's alleged deceptive nutritional scheme." Id. (quoting N.Y. Gen. Bus. L. § 349).*fn8

Plaintiffs filed their second amended complaint ("SAC") on December 12, 2005. By opinion of September 16, 2006, the court denied Defendant's motion to strike and dismiss the SAC for failure to comport with the court's orders in Pelman IV. Pelman v. McDonald's Corp., 452 F. Supp. 2d 320, 328 (S.D.N.Y. 2006) ("Pelman V").*fn9 The court noted that: the SAC identifies a number of advertisements being claimed as part of the Defendant's deceptive practices[;] . . . outlines why the advertisements are objectively deceptive[;] . . . alleges that Plaintiffs were aware of McDonald's deceptive practices through their exposure to the advertisements and statements annexed to their pleading and that such statements were disseminated in the specified fora of[] television, radio, internet, magazine, periodical, in-store poster advertisements, and press releases issued in New York State from 1985 and continuing through filing in 2002[;] . . . [and] alleges that each named Plaintiff was injured as a result of Defendant's practices, in the following respects: obesity, elevated levels of Low-Density Lipoprotein, or LDL, more commonly known as 'bad' cholesterol ["LDL"], significant or substantial increased factors in the development of coronary heart disease, pediatric diabetes, high blood pressure, and/or other detrimental and adverse health effects and/or diseases as medically determined to have been causally connected to the prolonged use of Defendant's products[].

Id. at 323 (citing SAC ¶¶ 558, 564, 570, 576, 582, 588, 594, 600, 617, 623, 629, 635, 641, 647, 653, & 659). The court then held that, because "Plaintiffs need not have seen or heard each advertisement, but rather only to have been exposed to them in some manner," id. at 324 (citing Pelman IV, 396 F. Supp. 2d at 445-46), the SAC sufficiently described how Plaintiffs were aware of the marketing scheme alleged to be deceptive, id. at 325, and that, "[c]ontrary to McDonald's contentions, . . . the SAC outlines the injuries sustained by each Plaintiff in a manner sufficient for McDonald's to answer." Id. at 326.

Now pending before the court is Plaintiffs' motion to certify the class requested in the SAC.*fn10

B. The Claims of the Second Amended Complaint ("SAC")

Count I of Plaintiffs' SAC alleges that Defendant, "its respective agents, servants, and[/]or employees, engaged in unfair and deceptive acts and practices, in violation of [GBL § 349], by allegedly representing, subjecting, exposing, and/or attempting to mislead the Plaintiffs, putative class members, New York State users and consumers, from 1985 and continuing thereafter to 2002,*fn11 that its certain foods, including but not limited to[] Chicken McNuggets, Filet-O-Fish, Chicken Sandwich, French Fries and/or Hamburgers were substantially healthier-than- in-fact, in contradiction to medically and nutritionally established acceptable guidelines." (SAC ¶ 548.)

Specifically, Plaintiffs allege that Defendant subjected, exposed and/or attempted to mislead Plaintiffs and putative class members, from 1985 until 2002, "with misleading nutritional claims, in widespread advertising campaigns, promotions, brochures, press releases, 'consumer-oriented' statements, in various media and print outlets, that its certain foods were healthy, nutritious, of a beneficial nutritional nature, and/or were easily part of anyone's healthy daily diet, each and/or all claims being in contradiction to medically and nutritionally established acceptable guidelines." (Id. at ¶ 549.*fn12 ) Plaintiffs claim that, "as a direct, foreseeable and proximate result of the Defendant's deceptive practice to misrepresent the nutritional attributes of its foods," Plaintiffs and putative Class Members suffered injury in the form of the financial costs of Defendant's products; "false beliefs and understandings as to the nutritional contents and effects of Defendant's food products"; and "obesity, elevated levels of [LDL], significant or substantial increased factors in the development of coronary heart disease, pediatric diabetes, high blood pressure and/or other detrimental and adverse health effects and/or diseases as medically determined to have been causally connected to the prolonged use of Defendant's products . . . ."*fn13

Count II of Plaintiffs' SAC alleges that Defendant, "its respective agents, servants, and[/] or employees, engaged in unfair and deceptive acts and practices, in violation of [GBL § 349], by engaging in an ingredient disclosure scheme, from 1985 and continuing thereafter to 2002, whereby the Defendant is alleged to have failed to adequately disclose its use of certain additives and that the manner of its food processing rendered certain of its foods, specifically French Fries, hash browns, chicken McNuggets, fish and/or chicken products, substantially less healthy than were represented to Plaintiffs, putative Class Members, New York State residents and consumers, in widespread advertising campaigns, 'consumer-oriented' statements, promotions, brochures, press releases, corporate nutritionist statements, and Internet disseminations, store-posters, and other means of media communications." (SAC ¶ 605.*fn14 Plaintiffs allege that, "as a direct, foreseeable and proximate result of the Defendant's deceptive ingredient disclosure scheme," Plaintiffs and putative Class Members suffered injuries identical to those claimed in Count I.*fn15

Count III of Plaintiffs' SAC alleges that Defendant, "its respective agents, servants, and[/]or employees, engaged in unfair and deceptive acts and practices, in violation of [GBL § 349], by representing, warranting and issuing promissory statements, that it provide[d], and w[ould] continue to provide, nutritional brochures including disclosures regarding the ingredients, and amount of calories, protein, carbohydrates, fat, cholesterol and sodium, on all of its products, at all its store/franchise and drive-through locations in conspicuous locations for study by consumers prior to purchase" (SAC ¶ 665), when in fact "the nutritional information which the Defendant represent[ed] and warrant[ed] was not adequately available to the Plaintiff consumers and putative Class members at a significant number of the Defendant's New York stores for inspection upon request." (Id. at ¶ 667).*fn16 Plaintiffs allege that, "by reason of the Defendant's deceptive practices, the Infant-Plaintiffs [and putative Infant Class Members] have been caused to believe said nutritional material]s were present, when in fact said data was not available[,] resulting [in] preventing the Infant-Plaintiff[s] and purchaser[s] from making informed decisions about the consumption of Defendant's certain foods." (Id. at ¶¶ 674, 676.)

Because Counts I, II, and III of Plaintiffs' SAC each claim identical injuries*fn17 as a result of the same allegedly deceptive marketing scheme*fn18 -- alleged in each count to be materially deceptive as a result of affirmative misrepresentations (Count I) and/or material omissions or non-disclosures (Counts II and III) -- the court concludes that Plaintiffs' SAC presents a single cause of action under GBL § 349.

C. Plaintiffs' Request for Class Certification

Plaintiffs' putative Class Members "consist of New York State residents, infants, and consumers, who were exposed to Defendant's deceptive business practices, and as a result thereof, purchased and consumed the Defendant['s] products in New York State stores/franchises, directly causing economic losses in the form of the financial costs of the Defendant's goods, causing significant or substantial factors in the development of diabetes, coronary heart disease, high blood pressure, obesity, elevated levels of [LDL], and/or other detrimental and adverse health effects and/or diseases as medically determined to have been causally connected to the prolonged use of Defendant's certain products." (SAC ¶ 41; see also id. at ¶¶ 530-34.)*fn19

Plaintiffs concede that "[t]he exact number of putative class members . . . [is] not known" (id. at ¶ 538), arguing that "[t]he number and identities of the class members can only be ascertained through appropriate investigation and discovery" (id.), but estimating a class size numbering in the thousands. (Id.*fn20 )*fn21

"In the event the Court finds individualized issues may predomina[te] as to causality of Class illness, including obesity and pediatric diabetes" (Pls.' Mem. Supp. Class Cert. 1), Plaintiffs ask that the court certify an issue class "for a determination of Defendant's liability for its deceptive conduct [] under [GBL § 349]." (See id.)

STANDARD OF ANALYSIS

Federal Rule of Civil Procedure 23 governs the certification of federal class actions.*fn22 "Rule 23(a) requires that a class action possess four familiar features: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. If those criteria are met, the district court must next determine whether the class can be maintained under any one of the three subdivisions of Rule 23(b)." McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 222 (2d Cir. 2008).*fn23 With respect to the requirements of Rule 23(b), Plaintiffs argue that their proposed class or issue class can be maintained under 23(b)(3) (Pls.' Mem. Supp. Class Cert. 7), which requires the court to find that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).*fn24

For purposes of this motion for class certification, the court considers the allegations in Plaintiffs' SAC as true. See Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978). However, "[i]n determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (internal quotation marks and citation omitted).

DISCUSSION

The court begins and ends its analysis of class certification with consideration of the predominance requirement of Rule 23(b)(3). Because, as explained below, Plaintiffs have failed to satisfy this element for certification, the court need not examine each remaining element individually.*fn25

"The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 623 (1997) (citation and footnote omitted). To satisfy this requirement, Plaintiffs must establish that "the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, predominate over those issues that are subject only to individualized proof." In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001) (internal quotation and alteration marks and citation omitted), abrogated in part on other grounds, In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 42 (2d Cir. 2006).

The court must therefore consider the elements of Plaintiffs' cause of action under GBL § 349, and determine whether they may be established by common, class-wide proof. See In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. 303, 310 (S.D.N.Y. 2004) (quoting In re Linerboard Antitrust Litig., 305 F.3d 145, 156 (3d Cir. 2002) ("Clearly, if proof of the essential elements of the cause of action require[s] individual treatment, then there cannot be a predominance of questions of law and fact common to the members of the class." (internal quotation marks omitted))) (additional citations omitted). A plaintiff's failure to establish that "common proof regarding the elements of the asserted claims would predominate," id., is sufficient to warrant a denial of the motion for class certification. See id.

To prevail on the elements of their cause of action under GBL § 349, Plaintiffs must prove that Defendant "[1] made misrepresentations or omissions that were likely to mislead a reasonable consumer in the plaintiff's circumstances, [2] that the plaintiff was deceived by those misrepresentations or omissions and [3] that as a result the plaintiff suffered injury." Solomon v. Bell Atl. Corp., 777 N.Y.S.2d 50, 55 (N.Y. App. Div. 2004) (citation omitted). As explained below, the court concludes that individualized inquiries are necessary to determine whether each plaintiff suffered injury as a result of being deceived by Defendant's allegedly misleading representations. Accordingly, the court decides that the cause of action fails to satisfy the predominance requirement of Rule 23(b)(3). Further, although the cause of action does present discrete issues which otherwise satisfy the criteria for Issue Class certification pursuant to Rule 23(c)(4), the court concludes that, because Plaintiffs have failed to present specific evidence of a sufficiently numerous class of individuals who were both exposed to Defendant's allegedly deceptive marketing scheme and have subsequently suffered from the same adverse medical conditions as those alleged by Plaintiffs to have been the result of their exposure, Plaintiffs have also not met their burden for Issue Class certifiability at this time. The court will explain, in turn, each of these conclusions.

A. The Cause of Action Fails to Meet Rule 23(b)(3)'s Predominance Requirement

To succeed on their GBL § 349 claim, Plaintiffs' and putative Class members' alleged injuries must have been suffered "by reason of" Defendant's alleged deceptive business practices. N.Y. Gen. Bus. L. § 349. "[W]ile the statute does not require proof of justifiable reliance, a plaintiff seeking compensatory damages must show that the defendant engaged in a material deceptive act or practice that caused actual, although not necessarily pecuniary, harm." Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741 (N.Y. 1995) (emphasis added).

Plaintiffs claim to have suffered three types of harm or injuries "by reason of" Defendant's allegedly deceptive nutritional marketing scheme -- the financial costs of Defendant's products; "false beliefs and understandings as to the nutritional contents and effects of Defendant's food products"; and "obesity, elevated levels of [LDL], significant or substantial increased factors in the development of coronary heart disease, pediatric diabetes, high blood pressure and/or other detrimental and adverse health effects and/or diseases as medically determined to have been causally connected to the prolonged use of Defendant's products."*fn26 However, allegations of "false beliefs and understandings" do not state a claim for "actual injury" under GBL § 349, Small v. Lorillard Tobacco Co., 679 N.Y.S.2d 593, 599 (N.Y. App. Div. 1998) ("Neither the case law nor the statutory language [of GBL § 349] supports [the] argument that the deception is the injury." (emphasis in original)), aff'd, 720 N.E.2d 892 (N.Y. 1999); and neither do allegations of pecuniary loss for the purchase of Defendant's products. Small, 720 N.E.2d at 898 ("[Plaintiffs] posit that consumers who buy a product that they would not have purchased, absent a manufacturer's deceptive commercial practices, have suffered an injury under [GBL] § 349. We disagree."). Accordingly, the only alleged injuries for which Plaintiffs and putative Class members may claim damages under GBL § 349 are those related to the development of certain medical conditions, as alleged in the SAC.

All proposed experts who have given their opinion in this case regarding the possibility of a causal link between the consumption of Defendant's products and the development of these medical conditions essentially agree that the presence of such causal connection, if any, depends heavily on a range of factors unique to each individual. As Dr. Raman, Defendant's proposed nutritional expert, concludes, "[b]ecause there are so many factors that contribute to obesity and to obesity related illnesses, it is improper to generalize and make assumptions as to causation in any individual." (Def.'s Mot. to Strike Class Allegations & Deny Class Cert. ("Def.'s Mot. to Strike"), Aff. of Rita P. Raman ("Raman Aff.") ¶ 6.) See, e.g., In re Rezulin, 210 F.R.D. at 66 ("[T]he issue of whether [ingestion of Defendant's product due to Defendant's failure to warn of risks] caused physical injury to a specific class member will depend on his or her unique characteristics[,] such as[,] [inter alia,] family and medical background, pre-existing medical conditions, age, gender, life style, drug or alcohol use, quantity of [product] ingested, [etc.].") As explained below, none of the testimony Plaintiffs present in support of their motion for class certification can reasonably be construed to present any evidence to the contrary.

Plaintiffs' own proposed nutritional expert, Dr. Barnard, attests to the lack of certainty with regard to a generalized causal connection between consumption of Defendant's products and the medical injuries Plaintiffs identify,*fn27 leaving aside for the moment the question of a generalized causal connection between such injuries and exposure to Defendant's nutritional marketing scheme. Dr. Barnard asserts that a general causal link between consumption of Defendant's products and the development of certain medical conditions can be determined because Defendant's products are high in fat, salt, and cholesterol, low in fiber and certain vitamins, and contain beef and cheese. (Barnard Aff. 2-3.) However, because many foods are high in fat, salt, and cholesterol, low in fiber and certain vitamins, and contain beef and cheese, and because there is no evidence to suggest that all who consume such foods develop the kinds of medical conditions which are at issue in this case, the central proposition upon which Dr. Barnard's argument is based necessarily admits the conclusion that, in the absence of individualized inquiries regarding various other factors, no necessary generalizable causal connection is manifest between the consumption of Defendant's products and the development of certain medical conditions.*fn28

Dr. Frieden, whose declaration in a prior action*fn29 is also submitted in support of Plaintiffs' motion for class certification (Pls.' Mot. for Class Cert. Ex. C ("Frieden Decl.")), similarly presents no evidence establishing a direct and necessary causal connection, obviating the need for individualized inquiries, between the consumption of Defendant's products and the development of the sort of medical conditions allegedly suffered by Plaintiffs. (See, e.g., id. at ¶ 9 ("People who are overweight are at increased risk for diabetes, heart disease, stroke, high blood pressure, arthritis, and cancer." (emphasis added)).*fn30 ) Because, as Dr. Frieden points out, "increasing weight results from an imbalance between calories consumed (nutrition) and energy expended (physical activity)" (Frieden Aff. ¶ 14), individualized inquiries predominate in this case regarding the extent of each plaintiff's consumption and energy expenditure.

The court therefore concludes that, because factual questions with regard to, at the very least, the nutritional composition of food products consumed by each plaintiff from sources other than Defendant's facilities, as well as the level of regular physical activity engaged in by each plaintiff, predominate in the inquiry with respect to an essential element of Plaintiffs' cause of action, this case is not appropriate for adjudication on a class-wide basis.*fn31 See, e.g., Yeger v. E*Trade Sec. LLC, 884 N.Y.S.2d 21, 24 (N.Y. App. Div. 2009) (decertifying class, despite a common question as to the wrongfulness of the defendant's conduct, because "this is only half the question," and whether the defendant's conduct "caused an individual class member to suffer actual damages depends upon facts so individualized that it is impossible to prove them on a class-wide basis").

Moreover, Defendant is correct that whether or not Plaintiffs' claims -- that they ate McDonald's food because they believed it to be healthier than it was in fact -- are true for any particular person is an inquiry which also requires individualized proof. (McDonald's Mem. of Law in Supp. Mot. to Strike Class Allegations & Deny Class Cert. ("Def.'s Mem. in Opp'n Class Cert.") 13.) See, e.g., Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 63 (S.D.N.Y. 2006) ("To sustain a claim under GBL § 349, [] the alleged deceptive act must be the cause of the harm asserted."); Whalen v. Pfizer, Inc., 862 N.Y.S.2d 812 (N.Y. Sup. Ct. 2005) (Table) ("[T]o satisfy the commonality requirement in a class action alleging deceptive acts and practices [under GBL § 349] . . ., the proof must show that each plaintiff was reasonably deceived by the defendant's misrepresentations and was injured by reason thereof." (emphasis in original)).

As Defendant points out, "[a] person's choice to eat at McDonald's and what foods (and how much) he eats may depend on taste, past experience, habit, convenience, location, peer choices, other non-nutritional advertising, and cost" (Def.'s Mem. in Opp'n Class Cert. 13 (citing Def.'s Mot. to Strike, Aff. Timothy P. Meyer ("Meyer Aff.") ¶¶ 2, 4-9, 18), and although "[b]eliefs about nutrition may influence a person's decision in some cases, [it will] not always [be the case]." (Id. (citing Meyer Aff. ¶ 26).)

Thus, in addition to individualized inquiries regarding the causal connection between the consumption of products of a certain nutritional make-up and the development of certain physical or medical conditions in particular plaintiffs, and in addition to individualized inquiries regarding the extent to which Defendant's establishments were the primary source of these types of products for each particular plaintiff, individualized inquiries will also predominate regarding the causal connection between each plaintiff's exposure to the allegedly misleading aspects of Defendant's advertising scheme and each Plaintiff's subsequent consumption of Defendant's allegedly injurious products. See, e.g., Naftulin v. Sprint Corp., 847 N.Y.S.2d 903 (N.Y. Sup. Ct. 2007) (Table) ("[T]he inducement to purchase defendants' services [or products] cannot be inferred and is unique to each class member." (citing Hazelhurst v. Brita Prods. Co., 744 N.Y.S.2d 31, 33 (N.Y. App. Div. 2002)); Solomon, 777 N.Y.S.2d at 54 ("Even assuming that all the members of the class saw the same advertisements, questions as to whether each individual was reasonably misled by them predominate, given the alternative sources of information about [Defendant's product] that each may have had.").*fn32

Accordingly, the court concludes that, "[w]hile some common questions concerning [Defendant's nutritional marketing scheme] exist, individual questions about causation would overwhelm them[,] [and therefore] Plaintiff[s'] Section 349 claim is not appropriate for class certification." In re Currency Conversion, 230 F.R.D. at 311.

B. Class Certification for the Litigation of Certain Issues Pursuant to Rule 23(c)(4) Is Also Not Appropriate

Having concluded that Plaintiffs' proposed Class fails to meet the predominance requirement for certification under Rule 23(b)(3), the court will now consider Plaintiffs' request to certify an Issue Class "for a determination of Defendant's liability for its deceptive conduct on consumers under [GBL] § 349." (Pls.' Mem. Supp. Class Cert. 1.)

"When appropriate, an action may be brought or maintained as a class action with respect to particular issues." Fed. R. Civ. P. 23(c)(4). Further, "a court may employ Rule 23(c)(4)[] to certify a class on a particular issue even if the action as a whole does not satisfy Rule 23(b)(3)'s predominance requirement." In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 225 (2d Cir. 2006).*fn33 "District courts should take full advantage of this provision to certify separate issues in order to reduce the range of disputed issues in complex litigation and achieve judicial efficiencies." Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-68 (2d Cir. 2001) (internal alteration and quotation marks and citations omitted) (holding issue-class certification to be appropriate where "litigating the pattern-or-practice liability phase for the class as a whole would both reduce the range of issues in dispute and promote judicial economy").

"Issue certification is especially appropriate . . . where Defendants' liability can be determined once, on a class-wide basis, through common evidence." Charron, __ F.R.D. at __, 2010 WL 1752501, at *23 (citation omitted). Moreover, where the initial elements of liability may be established on the basis of common evidence, issue certification may be an appropriate method for advancing the litigation even where the prevalence of individual inquiries regarding the element of causation precludes class certification for the action as a whole. Collins v. Olin Corp., 248 F.R.D. 95, 104 (D. Conn. 2008) ("[I]ndividual issues of causation do not preclude class certification. . . . [A]lthough the element of causation may require more individualized proof, the proof as to the other elements of [the cause of action] will be class-wide." (citing Bates v. Tenco Servs., Inc., 132 F.R.D. 160, 163-64 (D.S.C. 1990) ("Individual offers of proof of proximate cause and damages for each plaintiff will become an inevitable necessity; however, these individual questions of proof will arise whether the suit proceeds individually or as a class action.")) (footnote and additional citations omitted)).

"For particular issues to be certified pursuant to Rule 23(c)(4), the requirements of Rules 23(a) and (b) must be satisfied only with respect to those issues." Charron, __ F.R.D. at __, 2010 WL 1752501, at *19 (citing 5 Moore's Fed. Prac. § 23.86[2]).

As mentioned, there are three elements to Plaintiffs' cause of action under GBL § 349: "first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act." Stutman, 731 N.E.2d at 611 (citations omitted). As explained above, Plaintiffs essentially challenge two aspects of Defendant's advertising scheme during the years between 1985 and 2002 -- the affirmative representation of Defendant's products as allegedly healthier than in fact, and the omission of material information regarding the actual nutritional composition of Defendant's products*fn34 -- claiming that the medium of both the representation and the omission was consumer-oriented and misleading in a material way, and that Plaintiffs and putative class members were injured as a result of these deceptive acts. (SAC ¶¶ 548-681.)

While the court has concluded that proof of the element of injury as a result of the allegedly deceptive acts would require a level of individualized inquiry that precludes the class-wide litigation of the action as a whole, questions of the consumer-orientation and material deceptiveness of Defendant's acts and omissions are evaluated on the basis of objective standards, and are therefore subject to proof based on evidence common to the class of individual plaintiffs who claim or may claim exposure to and injury from these acts and omissions. See Teller v. Bill Hayes, Ltd., 630 N.Y.S.2d 769, 772-73 (N.Y. App. Div. 1995) (noting that the element of consumer-orientation in GBL § 349 "require[s] a showing of potential impact on consumers at large"); Stutman, 731 N.E.2d at 611-12 ("Whether a representation or an omission, the deceptive practice [under GBL § 349] must be likely to mislead a reasonable consumer acting reasonably under the circumstances." (citation omitted)).

In their SAC, Plaintiffs list a number of specific advertisements which they allege to comprise the nutritional scheme that is the subject of this litigation.*fn35 Plaintiffs contend that "the cumulative effect" of these representations was to constitute a marketing scheme that misleadingly "convey[ed], to the reasonable consumer, including Plaintiffs and putative Class members, that Defendant's foods are nutritious, healthy, and can be consumed easily every day without incurring any detrimental health effects[] . . . ." (SAC ¶ 508.) As the court held in Pelman IV, an extensive marketing scheme is actionable under GBL § 349, such that "[P]laintiffs need not confirm that each plaintiff saw or heard each advertisement." 396 F. Supp. 2d at 446.*fn36

The 1) existence; 2) consumer-orientation; and 3) materially misleading nature of the marketing scheme alleged by Plaintiffs as the basis of their cause of action against Defendant are each questions which can be settled upon a showing of objective evidence and legal argument. Such evidence and argumentation are commonly applicable to the entire class of existing and potential plaintiffs who claim to have been exposed to and injured by this marketing scheme.

Because these issues "are precisely the common questions of law and fact," Charron, __ F.R.D. at __, 2010 WL 1752501, at *21, and because "when a Court chooses to limit class certification only to certain common issues . . ., those issues necessarily predominate [in the resulting class action],"*fn37 the commonality and typicality requirements of Rule 23(a), as well as the predominance requirement of Rule 23(b)(3), are met, with respect to these issues, for the set of individuals in Plaintiffs' position. Persons who are in Plaintiffs' position are those persons who had not yet reached the age of twenty-one as of August 2002,*fn38 who were exposed to McDonald's nutritional marketing scheme in New York during the years from 1985 until 2002, who ate regularly at McDonald's, and who subsequently developed the same medical conditions as Plaintiffs. See id.*fn39

Further, because the representative Plaintiffs would not possess any substantial interests that are antagonistic to such putative Issue Class members, and because resolving the issues common to this putative class of plaintiffs, on the basis of common evidence in one set of class-wide determinations, is clearly a more efficient use of judicial resources than litigating exactly the same issues, on precisely the same set of facts, with respect to each individual plaintiff,*fn40 the adequacy of representation requirement of Rule 23(a) and the superiority requirement of Rule 23(b)(3) may also arguably be met.*fn41

With respect to the numerosity requirement of Rule 23(a), however, although Plaintiffs argue that "[New York State] product sales records, frequency and customer-product-use surveys can reveal hundreds of thousands [of] consumers within the ambit of the class" (Pls.' Mem. Supp. Class Cert. 16 n.10 (citation omitted)), Plaintiffs have not presented the court with any specific evidence that there are any other persons who had not yet reached the age of twenty-one as of August 2002, were exposed to McDonald's nutritional marketing scheme in New York during the years from 1985 until 2002, ate regularly at McDonald's, and subsequently developed the same medical conditions as Plaintiffs. (See generally Pls.' Mot. for Class Cert.; Pls.' Mem. Supp. Class Cert.*fn42 ) See, e.g., Amchem Prods., 521 U.S. at 594-95 ("Representatives must be part of the class and possess the same interest and suffer the same injury as the class members." (emphasis added, citation omitted)).

While Plaintiffs are correct that "reasonable inferences can [] be drawn from available facts to find numerosity" (Pls.' Mem. Supp. Class Cert. 16 n.1 (citing McNeill, 719 F. Supp. 233)), there must nevertheless be "something within the record from which it can be inferred that a class does exist." Clarkson, 783 F. Supp. at 798. Lack of knowledge as to exact class size has been held excusable in cases where "defendants alone have access to such data," id. (noting that "classes [have been] certified where the exact number of class members could not be determined by the plaintiffs because the pertinent information was within the defendants' control"), but that is not the case here. Compare, e.g., Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y. 1980) ("The exact number of affected persons is known to the defendants who have the means to identify them at will.").

Because Plaintiffs have not yet established that there are any other persons within the relevant age group who were exposed to the nutritional marketing at issue, then regularly ate at McDonald's, and subsequently developed the same medical injuries as those allegedly suffered by Plaintiffs, and because Plaintiffs have not submitted sufficient evidence from which these facts may be reasonably inferred, the court cannot conclude that the putative class of persons with claims identical to those of Plaintiffs' in this case "is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a). See, e.g., Clarkson, 783 F. Supp. at 798. Accordingly, Plaintiffs have failed to meet their burden of proving that the putative Issue Class satisfies all requirements of Rule 23, and the motion for certification of an Issue Class in this case must therefore also be denied.*fn43

CONCLUSION

For all of the foregoing reasons, Plaintiffs' motion for class certification and, in the alternative, for issue class certification, is DENIED in its entirety. The parties shall consult and submit a revised scheduling order by November 29, 2010.

It is SO ORDERED.

Donald C. Pogue Judge


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