Fitzhenry-Russell v. Pepper Snapple Grp. Inc.

Fitzhenry-Russell v. Pepper Snapple Grp. Inc.

Opinion

 [*598]  ORDER GRANTING CLASS CERTIFICATION; ORDER DENYING MOTION TO EXCLUDE; ORDER GRANTING IN PART AND DENYING IN PART DR. PEPPER'S MOTION TO SEAL

Re: Dkt. Nos. 180, 183, 185

In this putative consumer class action, plaintiffs Jackie Fitzhenry-Russell and Geghman Margaryan allege defendants Dr. Pepper Snapple Group, Inc. and Dr. Pepper/Seven Up, Inc.¹ defrauded California consumers by selling Canada Dry Ginger Ale with the phrase "Made From Real Ginger" emblazoned on its packaging when, in fact, Canada Dry does not contain the type of, or amount of, ginger consumers would expect. Instead, Canada Dry contains a ginger derivative, ginger oleoresin. Plaintiffs allege that as a result of this misleading packaging, Dr. Pepper was wrongfully able to charge a 4% price premium on Canada Dry.

Plaintiffs move to certify a class of Canada Dry consumers in California, and Dr. Pepper opposes the motion. At the same time, Dr. Pepper moves to exclude plaintiffs' expert declarations in support of class certification.

Because the Court finds that Federal Rules of Civil Procedure 23(a) and (b)(3) are satisfied, the Court GRANTS plaintiffs' motion for class certification. The Court DENIES the motion [**3]  to exclude. Moreover, the Court GRANTS IN PART and DENIES IN PART Dr. Pepper's motion to seal portions of its opposition brief, and certain exhibits.

I. BACKGROUND

A. The Parties

There are two named plaintiffs in this action: Fitzhenry-Russell and Margaryan. Fitzhenry-Russell was a Canada Dry purchaser for many years before she allegedly realized that it contained no ginger. She claims she was exposed to both the "Made From Real Ginger" claim on Canada Dry packaging, and defendant's television commercials advertising Canada Dry. Dkt. No. 97 at 17. In the complaint, it states that over the past two years, she purchased approximately one case of Canada Dry per year, but before that, she purchased one case per month. Id. at 16. Fitzhenry-Russell claims that had she known Canada Dry's "true nature," she would either not have purchased the drink, or would have paid less for it. Id. at 18.

Margaryan, on the other hand, purchased Canada Dry one time believing that it contained ginger root. Id. at 19. The complaint alleges that but for the phrase "Made From Real Ginger" on the label, which Margaryan relied on, he would not have purchased Canada Dry. Id. at 19-20.

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