Marotto v. Kellogg Co.

• Decision Date: 05 December 2019
• Docket Number: 18 Civ. 3545 (AKH)
• Citation: 415 F.Supp.3d 476
• Parties: Matthew MAROTTO on behalf of himself, all others similarly situated, and the general public, Plaintiff, v. KELLOGG COMPANY, Kellogg USA Inc., Kellogg Sales Company, Pringles LLC, and Pringles Manufacturing Co., Defendants.
• Court: U.S. District Court — Southern District of New York

415 F.Supp.3d 476

Matthew MAROTTO on behalf of himself, all others similarly situated, and the general public, Plaintiff,

v.KELLOGG COMPANY, Kellogg USA Inc., Kellogg Sales Company, Pringles LLC, and Pringles Manufacturing Co., Defendants.

18 Civ. 3545 (AKH)

United States District Court, S.D. New York.

Signed December 5, 2019

John Kerry Weston, Sacks Weston Petrelli Diamond & Millstein LLC, Philadelphia, PA, Alexander Gabriel Cabeceiras, Derek Smith Law Group, PLLC, New York, NY, for Plaintiff.

Dean N. Panos, Pro Hac Vice, Jenner & Block, Chicago, IL, Kenneth K. Lee, Alexander Smith, Christina Avedissian Aryafar, Jenner & Block LLP, Los Angeles, CA, Elizabeth Austin Edmondson, Jenner & Block LLP, New York, NY, for Defendants.

ORDER DENYING MOTION FOR CLASS CERTIFICATION

ALVIN K. HELLERSTEIN, U.S.D.J.:

Plaintiff Matthew Marotto, a chef with training in molecular gastronomy, filed this action against Defendants Kellogg Company, Kellogg USA Inc., Kellogg Sales Company, Pringles, LLC, and Pringles Manufacturing Co., alleging that Defendants, makers and marketers of Pringles Salt and Vinegar crisps (or, "Pringles"), label Pringles packaging in a way that misled Marotto and other New York consumers into wrongly believing that Pringles contain no artificial ingredients. The Complaint seeks relief under, inter alia , New York deceptive business practices law, N.Y. Gen. Bus. L. § 349, New York false advertising law, id. at § 350, and various common law theories. Plaintiff now moves to certify a class of all persons who bought Pringles in New York on or after April 1, 2012. See ECF No. 39, at 1. Plaintiff's motion is denied.

Factual Background

Defendants make and market Pringles, the familiar potato crisp snack that comes in a tubular container featuring a mustachioed mascot. See Compl., ECF No. 1, at ¶¶ 1, 17-19.¹ Pringles come in several flavors, including the flavor at issue in this matter: "Salt & Vinegar."² See id. Pringles cost under $3.00 per can. See id. at ¶ 65.

Between April 2012 and the present—the class period proposed by Marotto, see ECF No. 39, at ¶ 1—Pringles were sold under twenty different labels. See ECF No. 49, at ¶ 2. Of these twenty label iterations, four include the text: "No Artificial Flavors":

See id. at ¶¶ 3-5 (square around the language added); ECF No. 49-1; ECF No. 49-2. The parties agree that every version of Pringles labeling lists all of the product's ingredients.

Plaintiff Marotto attended the French Culinary Institute ("FCI") in Manhattan. Marotto Dep., ECF No. 49-3, at 16:14-15. As he stated at his deposition, FCI is the "number one culinary institute in the United States." Id. at 16:15-16. Marotto graduated from FCI with a focus in "classic pastry arts," and in furtherance of his studies completed courses in "molecular gastronomy," a subject which involves understanding, inter alia , the role of chemical processes in cuisine. Id. at 16:19-17:23. During his tutelage at FCI, Marotto had the opportunity to train under distinguished chef-specialists in molecular gastronomy. See id. at 18:10-17.

Since graduating from FCI, Marotto has competed on televised cooking shows, id. at 18:18-20; worked as an executive pastry chef, id. at 18:15-17; been employed in research and development for a number of culinary businesses, id. at 19:23-20:2; and started a "cryogenic ice cream" company that specializes in using liquid nitrogen to rapidly freeze ice cream, id. at 32:19; see https://www.cryocreamcorp.com (last visited Nov. 27, 2019) ("A true avant-garde chef, Matt [Marotto] is renowned for his mastery of molecular gastronomy."). Marotto explained in his testimony that he "wouldn't have been able to be employed unless [he] had an extreme amount of knowledge" in nutrition and molecular gastronomy. Id. at 20:7-9.

Marotto testified to having eaten Pringles of various varieties "more or less continuously" since childhood. Id. at 53:17-18. During most of the ten years preceding this action, Marotto stated that he became partial to the "Salt & Vinegar" flavor, buying Pringles of this type every two-to-three weeks, see id. at 55:4-15. Marotto testified at some length about the importance to him—particularly in the couple of years immediately predating this action—of purchasing only natural, high-quality ingredients. He stated that "[p]rice isn't really a concern" to him, and that he does not "really care about money," so long as he has "something that's decent or it's good quality." Id. 44:24-45:3, 51:12-13. In the interest of eating "exclusively organic food," Marotto testified that he never buys packaged food of any kind, and "even make[s] [his] own pasta." Id. at 46:11-13, 51:19-52:3.

Unfortunately, for Marotto, once he popped, the fun did, ultimately, stop. In early March 2018, Marotto was told by his wife—who, as discussed infra , is an attorney at one of the law firms seeking to represent the instant putative class, see id. at 31:22-32:5; ECF No. 39—that Pringles contain artificial flavors despite the label saying "No Artificial Flavors." Compl. at ¶ 66; Marotto Dep. at 60:4-24. The Complaint identifies the two offending artificial flavors as "sodium diacetate" and "malic acid." Compl. at ¶ 21. As is disclosed on all versions of its labeling, Pringles are made up of "2% or less" of these two flavorings. ECF No. 49, at ¶ 6; see ECF Nos 49-1, 49-2. Marotto filed suit shortly thereafter.

Procedural History

In April 2018, Marotto filed a class action on behalf of Pringles consumers, alleging that Defendants falsely indicated through Pringles' labeling that the chips contain no artificial flavors, when in fact the chips do contain such flavors. See Compl. at ¶ 4. Marotto brought claims for deceptive trade practices, N.Y. Gen. Bus. L. § 349 ; false advertising, N.Y. Gen. Bus. L. § 350 ; negligent misrepresentation; intentional misrepresentation; breach of express warranty; and breach of the implied warranty of merchantability. In November 2018, I denied Defendants' motions to transfer or stay the case, but granted their motion to dismiss Marotto's claim for breach of implied warranty, and held separately that Marotto lacks standing to pursue injunctive relief. See generally ECF No. 29.

In June 2019, Marotto moved to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(3). See ECF No. 39. Marotto's proposed class is defined in relevant part as follows: "All persons who purchased Pringles Salt and Vinegar chips ... in the state of New York, for personal or household use, and not for resale, on or after April 1, 2012." Id. at ¶ 1. Defendants filed a memorandum opposing certification. See ECF No. 48.

Discussion

Under Federal Rule of Civil Procedure 23(a), "the prerequisites for maintaining a class action are numerosity, commonality, typicality, and adequacy of representation." Ruffo v. Adidas America Inc. , No. 15-cv-5989, 2016 WL 4581344, at *1 (S.D.N.Y. Sept. 2, 2016). If an action "satisfies those prerequisites, it may be certified if it also satisfies one of the three parts of Rule 23(b)." Id. Rule 23(b)(3), under which Plaintiff here seeks certification, provides that a

class action may be maintained if Rule 23(a) is satisfied and if ... the court finds that [1] questions of law or fact common to class members predominate over any questions affecting only individual members, and [2] that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Fed R. Civ. P. 23(b)(3). As a " ‘general matter, the Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ " Weiner v. Snapple Beverage Corp. , No. 07-cv-8742, 2010 WL 3119452, at *5 (S.D.N.Y. Aug. 5, 2010) (quoting Brown v. Kelly , 609 F.3d 467, 476 (2d Cir. 2010) ). This entails asking whether the issues raised are "subject to generalized proof" or "only to individualized proof." Brown , 609 F.3d at 483 (quotation marks omitted).

Contrary to Marotto's assertion that evaluation of class certification motions is restricted to the contents of the complaint,³ well-worn precedent provides that

[i]n evaluating whether Rule 23's requirements are met, the Court conducts a "rigorous analysis," probing whether the plaintiffs have "in fact" proven each of the requirements. Comcast Corp. v. Behrend , 133 S.Ct. 1426, 1432-33 (2013).... The Court must look "behind the pleadings," even if such an inquiry "overlap[s] with the merits of the plaintiffs' underlying claim," and determine if the plaintiffs have demonstrated the Rule 23 requirements by a preponderance of the evidence. Id.

Ruffo , 2016 WL 4581344, at *2 ; see Brown v. Kelly , 609 F.3d 467, 476 (2d Cir. 2010) ("In evaluating a motion for class certification, the district court ... must resolve material factual disputes relevant to each Rule 23 requirement."); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc. , 546 F.3d 196, 204 (2d Cir. 2008) (recognizing that district courts may consider "affidavits, documents, or testimony") (quotation marks omitted).

Marotto's arguments for typicality and adequacy are, at best, dubious. For instance, common sense alone makes clear that a professional pastry chef, with years of training in molecular gastronomy at an elite culinary school, for whom (in his own words) price is of no concern when grocery shopping, and is so averse to the purchase of packaged food that he makes his own rigatoni, is neither the typical Pringles purchaser nor typical in his zealous avoidance of artificial ingredients. See Marotto Dep. at 16-21, 44-46. Adequacy is an even more awkward fit, given Marotto's testimony that, after consuming Pringles "more or less continuously" since his childhood, he was first told that Pringles contain artificial ingredients by his wife, an attorney at one of the law firms seeking to represent the putative class. See id. at 31-32, 60-61. When asked how she became aware of Pringles using artificial flavors, Marotto answered, "I...