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In re Scotts EZ Seed Litig.

United States District Court for the Southern District of New York

January 26, 2015, Decided; January 26, 2015, Filed

12 CV 4727 (VB)

Opinion

 [*403]  MEMORANDUM DECISION

Briccetti, J.:

Lead plaintiffs Michael Arcuri, David Browne, Gwen Eskinazi, Stacy Lonardo, Lance Moore, Vance Smith, and Nancy Thomas (collectively, "plaintiffs" or "lead plaintiffs") bring this putative consumer class action against defendants The Scotts Miracle-Gro Company, Inc., and The Scotts Company LLC (collectively, "Scotts" or "defendants"). Plaintiffs allege numerous causes of action for false advertising, breach of warranty, and unjust enrichment under New York and California law.1

Now pending is plaintiffs' motion for class certification. (Doc. #72). For the following reasons, the motion is GRANTED in part and DENIED in part. Also pending are defendants' motion to exclude the opinions of plaintiffs' damages expert (Doc. [**3]  #88), and plaintiffs' motions to strike certain evidence offered by defendants (Docs. ##103, 105). Those motions are DENIED.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d).

BACKGROUND

The parties have submitted briefs, and declarations with supporting exhibits, which reflect the following factual background.

Scotts produces and sells Scotts Turf Builder EZ Seed ("EZ Seed"), which combines "premium grass seed with an innovative mulch and slow release fertilizer as an all-in-one product." (Faust Decl. ¶ 5). According to Scotts, "[i]n addition to protecting the [grass] seeds and helping to keep moisture in the underlying soil, the mulch in EZ Seed acts as an absorbent growing medium to promote seed germination and seedling establishment." (Id. ¶ 7). EZ Seed comes in six varieties, called "flavors": EZ Seed Sun & Shade, EZ Seed Tall Fescue, EZ Seed Bermudagrass, EZ Seed Dog Spot Repair for Sun & Shade, EZ Seed Dog Spot Repair for Tall Fescue, and EZ Seed Ultimate Winter Lawn Mix. (Sass Decl. ¶ 5). All six flavors are distributed to retailers in California, and all but EZ Seed Bermudagrass and EZ Seed Ultimate Winter Lawn Mix are distributed to retailers in New York. From EZ Seed's launch [**4]  in January 2009 through the end of 2013, 1,524,812 packages of EZ Seed were sold in California, and 992,338 packages were sold in New York.

According to a previous version of the packaging on all six flavors, EZ Seed grows grass "50% thicker with half the water" compared to "ordinary seed" (the "50% thicker claim").2 (Marchese Decl. Ex. J). To back  [*404]  up its claims regarding EZ Seed's effectiveness, Scotts offers purchasers of EZ Seed a "No Quibble Guarantee," which provides:

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304 F.R.D. 397 *; 2015 U.S. Dist. LEXIS 9116 **

IN RE SCOTTS EZ SEED LITIGATION

Prior History: In re Scotts EZ Seed Litig., 2013 U.S. Dist. LEXIS 73808 (S.D.N.Y., May 22, 2013)

CORE TERMS

Seed, plaintiffs', damages, premium, thicker, consumer, class member, class certification, class action, predominate, classwide, theory of liability, express warranty, quotation, marks, grass, grow, common question, ascertainability, misleading, refund, defendants', purchasers, packages, warranty, products, certification, worthless, certify, merits

Civil Procedure, Special Proceedings, Class Actions, Prerequisites for Class Action, Prerequisites for Class Action, Numerosity, Commonality, Typicality, Contracts Law, Defenses, Volunteers, Defenses, Demurrers & Objections, Affirmative Defenses, Accord & Satisfaction, Adequacy of Representation, Class Members, Maintainability, Predominance, Superiority, Antitrust & Trade Law, Consumer Protection, False Advertising, State Regulation, Deceptive & Unfair Trade Practices, Business & Corporate Compliance, Contracts Law, Breach, Breach of Warranty, Types of Commercial Transactions, Sales of Goods, Warranties, Breach of Contract Actions, Elements of Contract Claims, Types of Contracts, Quasi Contracts, Certification of Classes