1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0199p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

D INO R IKOS et al., Plaintiffs-Appellees ,

v

.

T HE P ROCTER & G AMBLE C OMPANY , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 14-4088

Appeal from the United St ates District Court for the Southern District of Ohio at Cincinnati. No. 1:11-cv-00226—Timothy S. Black, District Judge. Argued: June 16, 2015 Decided and Filed: August 20, 2015
Before: MOORE and COOK, Circu it Judges; COHN, District Judge. *

_________________ COUNSEL

ARGUED: Brian J. Murray, JONES DAY, Chicago, Il linois, for Appellant. Timothy G. Blood, BLOOD HURST & O’REARDON, San Di ego, California, for Appellees. ON BRIEF: Brian J. Murray, JONES DAY, Chicago, Illinois, D. Jef frey Ireland, FARUKI IR ELAND & COX P.L.L., Cincinnati, Ohio, Joanne Li chtman, BAKER & HOSTETLER LLP, Cleveland, Ohio, Chad A. Readler, Rachel Bloomekatz, JONES DAY, Colum bus, Ohio, for Appellant. Timothy G. Blood, Leslie E. Hurst, Thomas J. O’Reardon II, BLOOD HURST & O’RE ARDON, San Diego, California, for Appellees.
MOORE, J., delivered the opinion of the court in which COHN, D.J., joined. COHN, D.J. (pg. 37), delivered a separate concurri ng opinion. COOK, J. (pp. 38–40), delivered a separate dissenting opinion.

* The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation. 

### >No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 2

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. The named plaintiffs-appellees (“Plaintiffs”) are three individuals who purchased Align, Proc ter & Gamble’s (“P&G”) probiotic nutritional supplement, and found that the product did not wo rk as advertised—that is, it did not promote their digestive health. Plaint iffs subsequently brought suit, alleging violations by P&G of various state unfair or deceptive practices statutes because it has not been proven scientifically that Align promotes digestive health for anyone . On June 19, 2014, the district court certified five single-state classes from Ca lifornia, Illinois, Florida, New Hampshire, and North Carolina under Federal Rule of Civil Procedure 23(b)(3) comprised of “[a]ll consumers who purchased Align . . . from March 1, 2009, until the date notice is first provided to the Class.” On appeal,
P&G contends that the district court abused its discretion in gr anting Plaintiffs’ motion for class certification. For the reasons set forth below, we AFFIRM the district court’s judgment granting
class certification to Plaintiffs.

I. BACKGROUND

A. Facts
Align contains a patent ed probiotic strain, Bifidobacterium infantis 35624 (“Bifantis”), which it developed in the 1990s and early 2000s in partnershi p with Alimentary Health, a company based in Ireland. Sealed App. at 497. According to the Worl d Health Organization, probiotics are “live microorganisms . . . which wh en administered in adequate amounts confer a health benefit to the host.” R. 108-8 (Komanduri Decl. ¶ 12) (Page ID #1596). “While there is a
consensus within the medical and scientific comm unities that utilizing bacteria as a therapeutic measure in human disease is promising, curren t knowledge of the use of bacteria for these purposes remains fairly primitive.” Id. ¶ 13 (Page ID #1596). Although a limited number of probiotics have been approved as prescription tr eatments for pouchitis and infectious diarrhea, the overall “[m]edical understanding of probiotics in humans is still in its infancy.” Id. ¶¶ 13–14 (Page ID #1596–97).No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 3

Align is not a prescription probi otic. Instead, it is marketed to the general public as a supplement that “naturally helps build and support a healthy digestive syst em, maintain digestive balance, and fortify your diges tive system with healthy bacter ia.” Appellant Br. at 12 (alterations omitted). In addition, unlike some other non-prescription probiotics, Align is not included as an add-on ingredient to another cons umer product (e.g., yogurt), but is rather sold in a capsule that is “filled with bacteria and [otherwise] inert i ngredients.” R. 140 (Dist. Ct. Order at 30) (Page ID #6444).
P&G began selling Align in various test markets in October 2005, with sales representatives dropping off samples to doctors’ offices in St. Louis, Boston, and Chicago. Sealed App. at 410. P&G was also able to sell a limited amount of product online, although “physician-driven sales outpaced inte rnet-driven sales by about 2:1.” Id. One of the initial hurdles faced by P&G was convinc ing consumers of the product’s value, particularly given Align’s premium price point. See id. at 535 (company document noting that “[v]alue is a trial barrier due to the premium pri ce point of $29.99. Probiotics on sh elf at major retailers range from $9.99-$29.99. Of note, other probiotics detailed through physicians cost upwards of $45”) (emphasis added). After a successful rolloutacross multiple markets, P&G launched Align nationwide in 2009, promoting Align through a comprehensive advertising campaign, which included in-person physician visits , television and print advertisem ents, in-store displays, and product packaging. Appellant Br. at 11–12.
B. Procedural History
Dino Rikos, Tracey Burns, and Leo Jarzembrowski, the named plaintiffs-appellees, are residents of Illinois, Florid a, and New Hampshire, respec tively. From 2009 to 2011, Rikos, Burns, and Jarzembrowski were “exposed to and saw Procter & Ga mble’s claims by reading the Align label.” R. 85 (Second Amended Class Action Compl. ¶¶ 10–12) (Page ID #963–64). In reliance on P&G’s claims of Align’s effectiveness, they proceeded to purchase Align at various stores in California, Illinois, North Carolina, Florida, and New Hampshire.
In their complaint, Plaintiffs allege that they “suffered injury in fact and lost money as a result of the unfair competition described [t]herei n” after finding that Align did not provide them with the digestive benefits that it promised to provide. Id. Plaintiffs initially filed suit in theNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 4

United States District Court for th e Southern District of Californ ia, but the case was eventually
transferred to the Southern Distri ct of Ohio. R. 25 (S.D. Cal. Dist. Ct. Order at 4) (Page ID #374). In January 2014, Plaintiffs filed a motion and memorandum in support of class certification. Sealed App. at 15–63. In their motion, Plaintiffs re quested that the district court certify the following five single-state classes and appoint them as cl ass representatives:
California Class (Represented by Plaintiff Dino Rikos) : All consumers who purchased Align in California from March 1, 2009, until the date notice is first provided to the Class. Illinois Class (Represented by Plaintiff Dino Rikos) : All consumers who purchased Align in Illinois from March 1, 2009, until the date notice is first provided to the Class. Florida Class (Represented by Plaintiff Tracey Burns) : All consumers who purchased Align in Florida from March 1, 2009, until the date notice is first provided to the Class. New Hampshire Class (Represented by Plaintiff Leo Jarzenbowski [sic] ) : All consumers who purchased Align in New Hampshire from March 1, 2009, until the date notice is first pr ovided to the Class. North Carolina Class (Represented by Plaintiff Tracey Burns) : All consumers who purchased Align in Nort h Carolina from March 1, 2009, until the date notice is first provided to the Class. Excluded from each of the Classes are the defendant, its officers, directors, and employees, and those who purchased Align for the purpose of resale.

Id. at 16.
After hearing oral argument fr om both sides, the district c ourt issued an order granting
Plaintiffs’ motion for class certifica tion. In its order, the district court made clear that it was not attempting to provide a ruling on the merits of the case (i.e., whether or not Align promotes digestive health), but was instead reviewing on ly whether Plaintiffs had presented sufficient evidence to satisfy Federal Rule of Civil Procedure 23. R. 140 (Dis t. Ct. Order at 5–6) (Page ID #6419–20). It then determined that class certification was proper. Id. at 1, 38 (Page ID #6415, 6452). P&G has timely appealed.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 5

II. ANALYSIS

A. Standard of Review
“Class certification is appropr iate if the [district] court finds, after conducting a ‘rigorous analysis,’ that the requirements of Rule 23 have been met.” In re Whirlpool Corp. FrontLoading Washer Prods. Liab. Litig., 722 F.3d 838, 851 (6th Cir. 2013) (quoting Walmart Stores,
Inc. v. Dukes , 131 S. Ct. 2541, 2551 (2011)). Nonetheless, we have noted that “[t]he district court maintains substantial discretion in determining whether to certify a class, as it possesses the inherent power to manage and co ntrol its own pending litigation.” Beattie v. CenturyTel, Inc. , 511 F.3d 554, 559 (6th Cir. 2007) (internal quotation marks omitted). We review the district court’s decision to grant or de ny class certification under an abuse-of-dis cretion standard. Id

. “An abuse of discretion occurs when we are left with the definite and firm conviction that the [district] court . . . committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors or where it improperly applies the law or uses an erroneous legal
standard.” United States v. Haywood , 280 F.3d 715, 720 (6th Cir. 2002) (alterations in original) (internal quotation marks omitted).

B. Rule 23(a) 1

1. Plaintiffs Have Sufficien tly Demonstrated Commonality
Federal Rule of Civil Procedure 23(a)(2) states that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if . . . there are questions of law or fact common to the cla ss.” “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury.” Dukes , 131 S. Ct. at 2551 (internal quotation marks omitted).

P&G contends that, lik e the plaintiffs in Dukes , Plaintiffs here have failed sufficiently to demonstrate commonality. According to P&G, Dukes requires that named plaintiffs present evidence proving that class members suffere d an actual common injury to establish commonality. Appellant Br. at 25–26. P&G argues that Plaintiffs here have presented only

1 P&G has not challenged on appeal two other requirements of Federal Rule of Civil Procedure 23(a), numerosity and adequacy of representation.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 6

anecdotal evidence that Align does not work for them —Plaintiffs have “presented no evidence that the reported consumer benefits [of Align to all purchasers] were due solely to the placebo
effect.” Id. at 29. Instead, P&G claims that “consum er satisfaction—and repeat purchasing—is probative of Align’s bene fits to consumers.” Id. In addition, P&G notes that at least some studies appear to conclude that Align is effective in promoting digestive health. 2

P&G misconstrues Plaintiffs’ burden at the clas s-certification stage. Whether the district court properly certified the cla ss turns on whether Plaintiffs ha ve shown, for purposes of Rule 23(a)(2), that they can prove —not that have already shown—that all members of the class have suffered the “same injury.” Dukes , 131 S. Ct. at 2551. The Supreme Court in Dukes did not hold that named class plaintiffs mu st prove at the class-certificati on stage that all or most class members were in fact injured to meet this re quirement. Rather, the Court held that named plaintiffs must show that their claims “dep end upon a common contention” that is “of such a
nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validityof each one of the claims in one stroke.”
Id. (emphases added). In other words, named pl aintiffs must show that there is a common question that will yield a common answer for the cl ass (to be resolved later at the merits stage),
and that that common answer relates to the actual theoryof liability in the case.

Since Dukes , the Supreme Court has made clear that “Rule 23 grants co urts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be
considered to the extent— but only to the extent —that they are relevant to determining whether the Rule 23 prerequisites for clas s certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans
& Trust Funds , 133 S. Ct. 1184, 1194–95 (2013) (emphasis added); see also In re Whirlpool , 722 F.3d at 851–52 (“[D]istrict courts may not turn the class certification proceedings into a dress rehearsal for the trial on the merits.” (internal quotation marks omitted)); Gooch v. Life Investors Ins. Co. of Am. , 672 F.3d 402, 417 (6th Cir. 2012) (explaining that although “conformance with Rule 23(a) . . . must be check ed through rigorous analysis, . . . it is not always necessary . . . to probe behind the plea dings before coming to rest on the certification

2 Although not relevant to the commonality inquiry, Plaintiffs point to flaws in the scientific studies relied upon by P&G that Plaintiffs claim meanthat it has not been proven with proper scientific analysis that Align works for anyone who takes it. See, e.g. , Sealed App. at 42–44.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 7

question, because sometimes there may be no dis puted factual and legal issues that strongly
influence the wisdom of class treatmen t” (internal quotation marks omitted)).

A brief overview of the class claims in Dukes illustrates the Supreme Court’s more limited holding than what P&G claims. The named plaintiffs were “three current or former WalMart employees who allege[d] that the company di scriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of
1964.” Dukes , 131 S. Ct. at 2547. They sought to have a class certified of “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal–Mart’s ch allenged pay and management track promotions policies and practices.” Id. at 2549 (internal quotation marks omitted). Significantly, “[t]hese plaintiffs . . . [did] not allege that Wal–Mart ha[d] any expr ess corporate policy against the
advancement of women.” Id. at 2548. Rather, plaintiffs “clai m[ed] that the discrimination to which they have been subjected [was] common to all [of] Wal–Mart’s female employees” because “a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaki ng of each one of Wal–Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.” Id.
The Supreme Court rejected this theory, fi nding that the plaintiffs had failed to demonstrate that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). After reviewing the details of Wal-Mart’s discreti onary promotion policy, the Court noted that, “[i]n such a company, demonstrating the inva lidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Dukes , 131 S. Ct. at 2554. Thus, “[a] party seeking to certify a nationwide cla ss will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” Id. The plaintiffs, the Court noted, had presented no evidence thatmanagers at Wal-Mart had exercised their discretion in the same way—i.e., that they had us ed it to discriminate against women. It would have been possible for some ma nagers to discriminate in fa vor of women, for others to discriminate against women, and for still others not to discri minate at all. Id.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 8

Here, in contrast, Plaintiffs have identifie d a common question—whether Align is “snake oil” and thus does not yield benefits to anyone , Appellee Br. at 7—that will yield a common answer for the entire class and that, if true, will ma ke P&G liable to the entire class. The district court conducted a sufficient analysis of the reco rd evidence in finding commonality here. It
concluded that no individual woul d purchase Align but-for its dige stive health benefits, which P&G promoted through an extensive advertising campaign. If Align does not provide any such benefits, then every class member was injured in the sense that he or she spent money on a product that does not work as advertised. No mo re investigation into the merits (i.e., whether Align actually works) is needed for purposes of satisfying Rule 23(a)(2)’s commonality requirement. 3 Thus, although P&G argues that some cl ass members were not injured because they kept buying Align—a sign that Align works, says P&G—that is not the right way to think about “injury” in the false-advertising context. The false-advertising laws at issue punish companies that sell products using advertising that misl eads the reasonable consumer. See, e.g. , Williams v. Gerber Prods. Co. , 552 F.3d 934, 938 (9th Cir. 2008) (“Appellants’ claims under these California statutes [the Unfair Competitio n Law and the Consumer Legal Remedies Act] are governed by the ‘reasonable consumer’ test. . . . Under the reasonable consumer standard, Appellants must show that memb ers of the public are likely to be deceived.” (internal quotation marks omitted)). Whether consumers were sa tisfied with the product is irrelevant. See, e.g. , McCrary v. Elations Co., LLC , No. EDCV 13-00242 JGB, 2014 WL 1779243, at *14 (C.D. Cal. Jan. 13, 2014) (“Defendant’s concern that so me putative class members were happy with Elations and thus were uninjured is unpersuasive. The requirement of concrete injury is satisfied
when the Plaintiffs and class members . . . su ffer an economic loss caused by the defendant, namely the purchase of defendant’s product cont aining misrepresentati ons.” (alteration and

3 Neither FTC v. Pantron I Corporation , 33 F.3d 1088 (9th Cir. 1994), nor In re Whirlpool support P&G’s argument that the district court did not sufficiently cons ider the merits of the case to grant class certification. Pantron was not a class action, and thus the decision cited conducts a full merits analysis. The evidence we noted that the district court properly considered in In re Whirlpool related to whether there was in fact a common question capable of a common answer. Specifically, we highlighted evid ence that confirmed that mold the class claimed was due to design defects in Whirlpool products occurred “despite variations in consumer laundry habits.” 722 F.3d at 854. Such evidence was critical to disproving Whirlpool’s claim that “proof of proximate cause must be determined individually for each plaintiff in the cl ass,” i.e., that the class’s common ques tion would not yield a common answer. Id . Significantly, however, we did not examine whether the named plaintiffs had presented evidence that the alleged design defects in Whirlpool products had in fact proximatel y caused the mold of which they complained. That issue went solely to the merits of the case. Similarly, the evid ence P&G has presented here that it claims the district court insufficiently examined goes solely to the merits of the case, not to whether Plaintiffs’ common question will yield a
common answer.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 9

internal quotation marks omitted)). In fact, courts have held that it is misleading to state that a product is effective when th at effectiveness rests sole ly on a placebo effect. See, e.g. , FTC v. Pantron I Corporation , 33 F.3d 1088, 1100–01 (9th Cir. 1994).
P&G has failed to identify a single false-advertising case where a federal court has denied
class certification because of a lack of commonality. See, e.g. , In re Scotts EZ Seed Litig. , 304 F.R.D. 397, 405 (S.D.N.Y. 2015) (“A common ques tion with respect to the first theory of liability is whether EZ Seed grows grass. If plai ntiffs can prove EZ Seed ‘does not grow at all’ and thus is worthless, plaintiffs will be entitled to relief.”); Ries v. Ariz. Beverages USA LLC , 287 F.R.D. 523, 537 (N.D. Cal. 2012) (“By definition, all class members were exposed to such representations and purchased AriZona products, cr eating a common core of salient facts.
Courts routinely find commonality in false advertising cases that are materially indistinguishable from the matter at bar.” (emphasis added) (i nternal quotation marks and citation omitted)); see also Suchanek v. Sturm Foods, Inc. , 764 F.3d 750, 756 (7th Cir. 2014) (distinguishing Dukes from consumer false-advertising class actions by noting that “[w]here the same conduct or practice by the same defendant gi ves rise to the same kind of cl aims from all class members, there is a common question. . . . Inthis case, the plaintiffs’ clai ms and those of the class they would like to represent all derive from a single course of conduct by Sturm: the marketing and packaging of GSC”).
In addition, as Plaintiffs point out, every court has, when presented with the opportunity, found commonality sufficient to satisfy Rule 23( a)(2) where plaintiffs have alleged that probiotics are ineffective. See, e.g. , Johnson v. Gen. Mills, Inc. , 278 F.R.D. 548, 551 (C.D. Cal. 2012) (“Mr. Johnson has presen ted sufficient facts to show that all of the class members’ claims
have at their heart a common contention: De fendants made a material misrepresentation regarding the digestive health be nefits of YoPlus that violat ed the UCL and the CLRA. The class members all assert they were misled by a common advertising campa ign that had little to no variation.”); Wiener v. Dannon Co. , 255 F.R.D. 658, 664–65 (C.D. Cal. 2009) (“The proposed class members clearly share common legal is sues regarding Dannon’s alleged deception and misrepresentations in its advertisi ng and promotion of the Products.”).No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 10

In Fitzpatrick v. General Mills, Inc. , 635 F.3d 1279 (11th Cir. 2011), for instance, plaintiff Julie Fitzpatrick broughtsuit under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) against General Mills, alle ging that the company had made “false and misleading claims that YoPlus provides digestiv e health benefits that other yogurt products do
not.” Id. at 1281. “YoPlus is ordinary yogurt supplemen ted with probiotic bacteria, inulin, and vitamins A and D. The mixture of probiotic ba cteria and inulin in Yo Plus allegedly provides habitual consumers with digestive health benefits by aiding in the promotion of digestive health.”
Id. Fitzpatrick moved to certify a class of “all pe rsons who purchased YoPlus in the State of
Florida.” Id. The district court granted Fitzpatrick’s motion. Fitzpatrick v. Gen. Mills, Inc. , 263 F.R.D. 687 (S.D. Fla. 2010). On the issue of commonality, the dist rict court explained “[w]hether General Mills’ claim that Yo–Plus ai ds in the promotion of digestive health is ‘deceptive’ is a mixed question of law and fact common to every class member seeking damages
under the FDUTPA.” Id. at 696. The district court co ntinued that “[e]ven though a few consumers likely purchased Yo–Plus for reasons unrelated to Yo–Plus’ purported digestive health benefits, . . . the Court is convinced that a signific ant number of Yo–Plus consumers purchased Yo–Plus because of its purported digestiv e health benefit, which is, as General Mills’ marketing documents plainly state, Yo–P lus’ primary distinguishing feature.” Id. at 696–97. The
Eleventh Circuit did not discuss th e commonality requirement on appeal. Fitzpatrick , 635 F.3d at 1282. It did note, however, that“[t]he district court’s analys is . . . [was] sound and in accord
with federal and state law.” Id. at 1283. 4

As the preceding false-advertising cases make cl ear, the district court correctly found that
Plaintiffs have demonstrated that their claims share a co mmon question—whether Align is “snake oil” and thus does not yield benefits to anyone . Appellee Br. at 7. That common question will yield a common answer for the entir e class that goes to the heart of whether P&G will be found liable under the relevant false-advertising laws. That is all Dukes requires.

4 The Eleventh Circuit ultimately vacatedthe district court’s decision and remanded the case to the district court, but for a reason unrelated to its commonality findings. The district court’s “class definition limit[ed] the class to those who purchased YoPlus ‘to obtain its claimed digestive health benefit,’ which takes into account individual reliance on the digestive health claims.” 635 F.3d at 12 83. However, the Eleventh Circuit found that proof of individual reliance is unnecessary under the relevant law in Florida (a claim evaluated in more detail below), and thus the district court’s “analysis would lead one to believe that the class [sh]ould be defined as ‘all persons who purchased YoPlus in the State of Florida.’” Id. n.1.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 11

2. Plaintiffs’ Claims A re Typical Of The Class

Federal Rule of Civil Procedure 23(a)(3) requires plaintiffs to show that “the claims or defenses of the representative part ies are typical of the claims or defenses of the class.” As the Supreme Court made clear in Dukes , “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” 131 S. Ct. at 2551 n.5 (alte ration in original) (internal quotation marks omitted); see also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 7A Federal Practice and Procedure § 1764 (3d ed. 2005) (“Thus, many courts have found typicality if the claims or defenses of the representatives and the members of the class stem from a single event or a unitary course of conduct, or if they are based on the same legal or remedial theo ry. Of course, when this is true the typicality standard is cl osely related to the testfor the common-question prerequisite in subdivision (a)(2).” (footnotes omitted)). Indeed, in challenging the district court’s finding of typicality, P&G largely repeat s its arguments against commonality. Appellant
Br. at 30–32.
P&G does appear to make a slight variati on of its consumer-satisfaction argument by contending that “many of the unnamed class memb ers have no interest inpursuing restitution, nor in crippling the product. Indeed, this lawsuit may be antithetical to their interests.” Id. at 31.
The district court considered and rejected this argument in its order granting class certification.
See R. 140 (Dist. Ct. Order at 19) (Page ID #6433) (“Defendant advertised to all that the proprietary probiotic bact eria in Align provides pr oven digestive health bene fits. The question is
not whether each class member was satisfied with the product, but rather whether the purchaser received the product that was advertised.”). The district court’s conclusi on is consistent with
those of other district courts who have reviewed similar arguments. See, e.g. , Johnson , 278 F.R.D. at 552 (“Both Mr. Johnson’s and the f ourth generation purchasers’ claims center on the assertion that in deciding to purchase YoPlus they relied to their detriment on the allegedly false digestive health message communicated by Defendants. Mr. J ohnson’s claims are, therefore, ‘reasonably co-extensive’ with those of the fourth generation purchasers, and he satisfies the typicality requirement.”). Consiste nt with its findings on commonality, the district
court did not abuse its discretion in finding that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 12

C. Rule 23(b)(3): Plaintiffs Have Demonstrated That Common Questions Will Predominate Over Individualized Inquiries In Assessing the Merits of Their Claims “[E]ach class meeting [the] prerequisites [of Ru le 23(a)] must also pass at least one of the tests set forth in Rule 23(b).” Sprague v. Gen. Motors Corp. , 133 F.3d 388, 397 (6th Cir. 1998) (en banc). Plaintiffs have s ought certification under Federal Rule of Civil Procedure 23(b)(3), which states that a class action may be maintained only if “the court finds that the questions of law or fact common to class members predominat e over any questions aff ecting only individual
members.” 5

P&G contends that the district court erred in four separate but related ways. First, it alleges that some individuals were not actually exposed to P&G’s marketing campaign—that some individuals purchased Align upon receivi ng advice from a family member, friend, or physician. Second, it claims that, under the state laws at issue, individual issues of causation and reliance predominate over the common questions that allegedly affect all members of the class. Third, P&G claims that Align does actually work for many purchasing it, and thus Plaintiffs cannot prove injury on a classwide basis. Fina lly and relatedly, P&G claims that Plaintiffs’ damages model is inconsistent with their theory of liability and that i ndividual calculation of damages will be necessary.
1. Actual Exposure
According to P&G, “significant numbers of consumers became aware of and purchased Align based on sources of information unrelated to the advertising at issue,” and thus individual proof that class members purchased Align because of its advertising will be necessary, thereby defeating predominance. Appellant Br. at 40. P&G contends that “[d]octors do not simply recommend Align based on P&G’s professional marketing. Doctor s make independent decisions
based on their review of the scie nce, experience, and expertise.” Appellant Reply Br. at 25. In support of its point, P&G relies on Minkler v. Kramer Laboratories, Inc. , No. 12-9421, 2013 WL

5 P&G has not challenged on appeal the district court’s holding that the other element of Rule 23(b)(3) is met, “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 13

3185552, at *4 (C.D. Cal. Mar. 1, 2013), and In re American Medical Systems, Inc. , 75 F.3d 1069, 1085 (6th Cir. 1996).
These cases are, however, readily disti nguishable from the case at hand. In In re American Medical Systems , we made clear that our decisi on to vacate the district court’s
conditional certification order was based “on the extraordinary facts of [the] case.” 75 F.3d at 1074. In that case, the plainti ff brought suit over alleged def ects in a number of different prosthetic devices, although the plaintiff had problems only with one of the ten types of prosthetics manufactured by American Medical Syst ems. We determined class certification to be inappropriate because we held that the claims at issue—strict liability; fraudulent misrepresentation; negligent testing, design, and manufacture; and failure to warn—would “differ depending upon the model and the year [the prosthetic] was issued.” Id. at 1081. “Proof[] . . . will also vary from plaintiff to pl aintiff because complicatio ns with an AMS device may be due to a variety of factors, includi ng surgical error, improper use of the device, anatomical incompatibility, infection, devi ce malfunction, or psychological problems.” Id. Thus, on the issue of predominance, we noted that , “[a]s this case illustrates, the products are different, each plaintiff has a unique complaint, and each receives different information and assurances from his treating physician. Given the absence of evidence that common issues predominate, certification was improper.” Id . at 1085.

Minkler —an unpublished district court decision from a court outside of the Sixth Circuit—involved a plaintiff seeking certifica tion of a class consisting of “[a]ll persons domiciled or residing in the State of California who ha[d] purchased a Fungi–Nail anti-fungal product.” 2013 WL 3185552, at *1. The plaintiff purchased Fungi-Nail in order to treat some discoloration of his toenail, wh ich he believed was a nail fungus. Id. In finding class certification inappropriate, the district court di d note that some members of the proposed class purchased Fungi-Nail based “on the recommendati ons of physicians or pharmacists, and the appearance of the products’ pack aging would not have been im portant to their purchasing
decision.” Id. at *4. Yet the district court also noted that “Fungi–Nail is marketed for use as a treatment for ringworm, athlete’s foot and other conditions that can appear in places other than
‘on nails.’” Id. It was not, in other words, necessarilyeven marketed for treatment of theNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 14

plaintiff’s condition, and “Defendants [even] rais e[d] significant doubts as to whether Plaintiff actually ha[d] a fungal infection.” Id.
The facts in this case paint a far differe nt picture. Unlike the plaintiff in American Medical Systems , Plaintiffs here do not take aim at a pa noply of P&G products. They focus their attention on Align. Plaintiffs all purchased Align because it allegedly promoted digestive health. That is the only reason to buy Align. In add ition, Plaintiffs here have produced evidence showing that P&G undertook a comprehensive mark eting strategy with a uniform core message, even if its packaging has changed somewhat over time: buy Align because it will help promote your digestive health. See Sealed App. at 253–55. That ma rketing campaign focused on physician recommendations, with many sales repr esentatives dropping off samples in various doctors’ offices over a multi-year period. Id. at 255.

The district court’s decision to certify the proposed class is also in accord with the
decision of courts in other consum er-products class action cases. In Johnson , for instance, the plaintiff—like Plaintiffs here—“presented ev idence demonstrating that Defendants marketing campaign was prominent and not limited to statements made on the YoPlus packaging .” 278 F.R.D. at 551 (emphasis added). The Johnson court made clear that the form of presentation was irrelevant: “Regardless of how the messa ge was communicated, the claims brought by Mr.
Johnson on behalf of the class under the UCL and the CLRA center around a common question:
Did Defendants state a fa lse claim of a digestive health be nefit that a reasonable person would have been deceived by, for purposes of the UCL, or would have attached importance to, for purposes of the CLRA?” Id. Likewise, in Wiener , defendant Dannon “contend[ed] that a classwide inference of proof is not appropriate in this case, because purchasers were not uniformly exposed to Dannon’s advertising claims and the mate riality of the misrepresentation is an issue unique to each purchaser, as Dannon’s consumer surveys s how that purchasers bought the
Products for different reasons.” 255 F. R.D. at 668. Echoing the language in Johnson , the district court held that “[r]egardless of whether every class member was exposed to Dannon’s television, print, and internet advertis ements, the record clearly establishes that Dannon’s alleged misrepresentations regarding the clinically proven health benefits of the Products are prominently displayed on all of the Products ’ packaging, a fact that Dannon has neverNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 15

contested.” Id. at 669. “Because, by definition, every memb er of the class must have bought one of the Products and, thus, seen the packaging, Plaintiffs have succeeded in showing that the alleged misrepresentations were made to all class members.” Id. ; see also In re ConAgra Foods,
Inc. , No. CV 11-05379 MMM, 2015 WL 1062756, at *46 (C .D. Cal. Feb. 23, 2015) (noting that “it is undisputed that ConAgra made the same alleged misrepresentation on each bottle of Wesson Oils purchased by class members” in finding predominance on the issue of causation/reliance).

The facts at issue in Johnson and Wiener are identical to the ones at issue here. Regardless of how customers fi rst heard about Align—w hether through P&G’s direct advertising campaign, through a physician who had learned about Align through a P&G sales representative, or through a friend or family member who had used Align—they nonetheless decided to purchase the product only for its purported health benefits. Although P&G contends that a doctor could recommend Align base d on “her independent judgment,” that argument is belied by the fact that P&G developed Bifantis, the prob iotic behind Align, and P&G, in turn, developed the marketing campaign to promote A lign. In light of this point, the Johnson and Wiener decisions, and the differences between the facts at issue here and the facts in American Medical Systems and Minkler , the district court did no t abuse its discretion in re jecting P&G’s contention that certain class members did not rely on P& G advertising in making their decision to buy Align.

2. State Laws
On a related point, P&G also claims that Pl aintiffs cannot prove reliance and causation, which P&G claims are required by the false-advert ising laws at issue, on a classwide basis. Appellant Br. at 41. We examine each of these fals e-advertising laws below. We conclude that, under each of the five laws, Plaintiffs can prove causation and/or reliance on a classwide basis provided that (1) the alleged misr epresentation that Align promotes digestive health is material or likely to deceive a reasonable consumer, a nd (2) P&G made that mi srepresentation in a generally uniform way to the entire class.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 16

a. California

Rikos seeks “certification of claims aris ing under Cal. Bus. & Prof. Code § 17200 (California’s Unfair Competition Law or ‘U CL’), Cal. Civ. Code § 1750 (California’s Consumers Legal Remedies Act or ‘CLRA’), and breach of express warranty.” Sealed App. at 19–20. None of these causes of action require indi vidualized proof of reliance or causation such that classwide proof will never suffice.

In In re Tobacco II Cases , 207 P.3d 20 (Cal. 2009), the Ca lifornia Supreme Court held that, “[t]o state a clai m under . . . the UCL . . . based on false advertising or promotional practices, it is necessary only to show that memb ers of the public are likely to be deceived.” Id. at 29 (internal quotation marks om itted). “[T]he UCL’s focus [is] on the defendant’s conduct . . . in service of the statute’s larger purpose of protecting the general publ ic against unscrupulous business practices.” Id. at 30. Thus “relief under the UCL is available without individualized proof of deception, reliance and inju ry” for absent class members. Id . at 35. Plainti ffs thus need not show that every purchaser of Align in Califo rnia relied on the produc t’s advertising. Courts have qualified, however, that if the defendant made disparate misrepresentations to the class, then there still may be i ssues of predominance. Stearns v. Ticketmaster Corp. , 655 F.3d 1013, 1020 (9th Cir. 2011) (“We do not, of course, s uggest that predominance would be shown in every California UCL case. For example, it migh t well be that there was no cohesion among the members because they were exposed to quite disp arate information from various representatives
of the defendant. See, e.g. , . . . Kaldenbach v. Mut. of Omaha Life Ins. Co., 178 Cal. App. 4th 830, 849–50 (2009).”).
It is true that, “[u]nlike the UCL, . . . plaintiffs in a CLRA action [must] show not only that a defendant’s conduct was deceptive butthat the deception caused them harm.” Mass. Mut. Life Ins. Co. v. Superior Court , 97 Cal. App. 4th 1282, 129 2 (Cal. Ct. App. 2002). However, “[c]ausation as to each class me mber is commonly proved more likely than not by materiality. That showing will undoubtedly be conclusive as to most of the class.” Id. (internal quotation marks omitted). Thus, “plaintiffs satisfy their burde n of showing causation as to each by showing materiality as to all. . . . ‘[I]f the trial court finds material misrepresentations were made to the class members, at least an inference of re liance would arise as to the entire class.’” Id. atNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 17

1292–93 (quoting Vasquez v. Superior Court , 484 P.2d 964, 973 (Cal. 1971)). Materiality is measured by an objective standard: “[m]aterialityof the alleged misrepre sentation generally is judged by a reasonable man standard. In other words, a misrepresent ation is deemed material if a reasonable man would attach importance to its existence or nonexistence in determining his
choice of action in the tr ansaction in question.” In re Steroid Hormone Prod. Cases , 181 Cal. App. 4th 145, 157 (Cal . Ct. App. 2010), as modified on denial of reh’g (Feb. 8, 2010) (internal quotation marks omitted); see also Stearns , 655 F.3d at 1022–23; In re ConAgra Foods , 2015 WL 1062756, at *34.
Finally, proof of individualized reliance or causation is not necessary under California
law to establish breach of an express warranty. Under California law, “[a]n express warranty is a term of the parties’ contract.” In re ConAgra Foods , 2015 WL 1062756, at *35. “Product advertisements, brochures, or packaging can serv e to create part of an express warranty.” Rosales v. FitFlop USA, LLC , 882 F. Supp. 2d 1168, 1178 (S.D. Cal. 2012). “[T]o prevail on a breach of express warranty claim, the plaintiff must prove (1) the seller’s statements constitute an affirmation of fact or promise or a descriptio n of the goods; (2) the statement was part of the basis of the bargain; and (3) the warranty was breached.” Weinstat v. Dentsply Int’l, Inc ., 180 Cal. App. 4th 1213, 1227 (Cal. Ct. App. 2010) (int ernal quotation marks omitted). “Proof of reliance on specific promises or representations is not required.” 6 In re ConAgra Foods , 2015 WL 1062756, at *35 (and citing cases); see also Weinstat, 180 Cal. App. 4th at 1227 (“The lower court ruling rests on the in correct legal assumption that a breach of express warranty claim requires proof of prior reliance. While the tort of fraud turns on inducement, as we explain, breach of express warranty arises in the context of contract formation in which reliance plays no role.”); Rosales, 882 F. Supp. 2d at 1178 (“Product advertis ements, brochures, or packaging can serve to create part of an express warranty. While this does not require that plaintiff relied on the individual advertisements, it does require that plaintiff was actua lly exposed to the advertising.”).

6 The case cited by P&G that states that reliance is required cites a decision that predates California’s Uniform Commercial Code (“UCC”). Williams v. Beechnut Nutrition Corp. , 185 Cal. App. 3d 135, 142 (Cal. Ct. App. 1986) (“In order to plead a cause of action for breach of express warranty, one must allege the exact terms of the warranty, plaintiff’s reasonable re liance thereon, and a breach of that warranty which proximately causes plaintiff injury. (See Burr v. Sherwin Williams Co . (1954) 42 Cal. 2d 682 . . . .”)). Section 2313 of California’s UCC governs breach of express warranty claims. Weinstat , 180 Cal. App. 4th at 1227. However, as the Weinstat court explained, although “[p]re-Uniform Commercial Code law governing express warranties required the purchaser to prove reliance on specific promises made by the seller,” a close analysis of the text and official comments to the UCC reveals that “[t]he Uniform Commercial Code . . . does not require such proof.” Id.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 18

However, “class treatment of bre ach of express warranty claims is only appropriate if plaintiffs can demonstrate that the alleged misrepresentat ion would have been ma terial to a reasonable
consumer.” In re ConAgra Foods , 2015 WL 1062756, at *36.

b. Illinois

Rikos also seeks “certification of claims ar ising under the Illinois Consumer Fraud and Deceptive Business Practices Ac t (‘ICFA’).” Sealed App. at 20. A claim under the ICFA requires: “(1) a deceptive act or practice by the defendant, (2) th e defendant’s intent that the plaintiff rely on the deception, (3) the occurr ence of the deception in a course of conduct involving trade or commerce, and (4) actual damage to the plaintiff that is (5) a result of the deception.” De Bouse v. Bayer AG , 922 N.E.2d 309, 313 (Ill. 2009). When the deceptive act alleged is a misrepresentation, that misrepresent ation must be “material” and “is established by applying a reasonable person standard.” In re ConAgra Foods , 2015 WL 1062756, at *45. Reliance is not required to establish an ICFA claim. Id. (citing cases). However, to establish the last two elements of an ICFA claim, plainti ffs must show “that the allegedly deceptive act ‘proximately caused any damages’ suffered by the plaintiff.” Id. (quoting De Bouse , 922 N.E.2d at 313); see also Clark v. Experian Info. Solutions, Inc. , 256 F. App’x 818, 821 (7th Cir. 2007) (“We concluded that ‘a private cause of acti on under the ICFA requires a showing of proximate causation.’” (quoting Oshana v. Coca–Cola Co., 472 F.3d 506, 514–15 (7th Cir. 2006))). As part of proving proximate causation, a plainti ff must “receive, dire ctly or indirectly, communication or advertising from the defendant.” De Bouse , 922 N.E.2d at 316.

It is true that courts have denied class certific ation of ICFA claims on the grounds that individual issues of prov ing proximate causatio n predominate over common issues. See, e.g. , Siegel v. Shell Oil Co., 612 F.3d 932, 935–36 (7th Cir. 2010) (holding that individualized inquiries regarding “why a particular plaintiff purchased a particular brand of [the product]” were necessary to establish harm to each cl ass member under the IC FA and, thus, common issues could not predominate); In re Glaceau Vitaminwater Mktg. & Sales Practice Litig. , No. 11-CV-00925 DLI RML, 2013 WL 3490349, at *8 (E.D.N .Y. July 10, 2013) (citing other cases);
Oshana v. Coca-Cola Co. , 225 F.R.D. 575, 586 (N.D. Ill. 2005) (“To establish proximate causation, each individual must provide evidence of his or her knowledge of the deceptive actsNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 19

and purported misstatements. This showing require s an individual analysis of the extent to which Coca-Cola’s marketing play ed a role in each class membe r’s decision to purchase fountain diet Coke.” (citations omitted)).

As Plaintiffs note, ICFA claims do not necessarily require individualized proof of causation such that class certification is never pr oper. Appellee Br. at 40 n.5. Rather, “where the representation being cha llenged was made to all putative class members, Illinois courts have concluded that causation is susceptible of clas swide proof and that individualized inquiries concerning causation do not predomin ate if plaintiffs are able to adduce sufficient evidence that the representation was material.” In re ConAgra Foods , 2015 WL 1062756, at *46 (and citing cases); see also In re Glaceau Vitaminwater Mktg. & Sales Practice Litig. , 2013 WL 3490349, at *9 (“Illinois courts have certified classes asserting violations of the ICFA, where the defendant engaged in ‘uniform’ conduct toward the class, and the successful adjudication of the named plaintiff’s claims would es tablish a right to recoveryfor all class members.”); S37 Mgmt., Inc. v. Advance Refrigeration Co., 961 N.E.2d 6, 16 (Ill. App. Ct. 2011) (“The defendant argues that individual issues regarding deception and damage s preclude class certifi cation in this case. However, just as we found in P.J.’s Concrete, where a defendant is alleged to have acted wrongfully in the same manner toward the entire class, the trial court may properly find common questions of law or fact that predominate ove r questions affecting onl y individual members.”).

c. Florida

Burns seeks “certification of cl aims arising under the Florid a Deceptive and Unfair Trade Practices Act, Fla. Stat. §501.201 et seq . (‘FDUTPA’)”. Sealed App. at 20. “A claim under FDUTPA has three elements: (1) a deceptive or unfair practice; (2) causation; and (3) actual damages.” Siever v. BWGaskets, Inc. , 669 F. Supp. 2d 1286, 1292 (M .D. Fla. 2009). The Florida Supreme Court has not addressed wh ether reliance and/or causation requires individualized proof. Like Illin ois, Florida courts of appeals and federal courts interpreting
Florida law have reached some what diverging conclusions. In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig. , No. 05 C 4742, 2012 WL 1015806, at*7–9 (N.D. Ill. Mar. 22, 2012) (noting this tension in the case law applying the FDUTPA).No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 20

Many courts have held that the FDUTPA does not require proof of actual, individualized reliance; rather, it requires onl y a showing that the practice wa s likely to deceive a reasonable

consumer. In re ConAgra Foods , 2015 WL 1062756, at *42 (“Claims under the FDUTPA are governed by a ‘reasonable consumer’ standar d, obviating the need fo r proof of individual reliance by putative class members.”); Office of the Att’y Gen. v. Wyndham Int’l, Inc., 869 So. 2d 592, 598 (Fla. Dist. Ct. App. 2004) (“When addressing a deceptive or unfair trade practice claim, the issue is not whether the plaintiff actually relied on the alleged practice, but whether the practice was likely to deceive a consumer acting reasonably in the same circumstances. . . . [U]nlike fraud, a party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue.”); Davis v. Powertel, Inc., 776 So. 2d 971, 973–74 (Fla. Dist. Ct. App. 2000) (“A part y asserting a deceptive trade pr actice claim need not show actual reliance on the representation or omission at issue. . . . [T]he question is not whether the plaintiff actually relied on the alleged deceptiv e trade practice, but whether the practice was likely to deceive a consumer acting reasonably in the same circumstances.”); Latman v. Costa Cruise Lines, N.V. , 758 So. 2d 699, 703 (Fla. Dist. Ct. A pp. 2000) (“[M]embers of a class proceeding under the [FDUTPA] need not i ndividually prove reliance on the alleged misrepresentations. It is sufficient if the class can establish that a reas onable person would have relied on the representations.” (internal quotation marks omitted)). In Fitzpatrick , 635 F.3d at 1283, the Eleventh Circuit affirmed the “legal anal ysis of the district court,” which included the
district court’s conclusion that the FDUTPA’s “causation requirement is resolved based on how an objective reasonable person would behave under the circumstances.” Fitzpatrick , 263 F.R.D.
at 695.
If the defendants did not make a generally uniform material misrepresentation to the entire class, other courts have held that plain tiffs do need to show individualized causation. The sole case cited by P&G, Appellant Br . at 39 n.6, falls into this camp. Miami Auto. Retail, Inc. v.
Baldwin , 97 So. 3d 846, 857 (Fla. Dist. Ct. App. 2012) (“FDUTPA require s proof of each individual plaintiff’s actual (not consequential) damage and defendant’s causation of damage.”). However, Miami Automotive Retail did not involve a “uniform repr esentation,” a circumstance in
which the court noted “indivi dual reliance may not be ne cessary under FDUTPA.” Id. The
district court in In re Sears, Roebuck & Co. Tools Marketing & Sales Practices LitigationNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 21

similarly distinguished this latter group of cases requiring proof of individual causation on the grounds that, unlike in the Latman and Davis line of cases, these cases did not involve one product advertised by a generallyuniform theme to all cons umers. 2012 WL 1015806, at *10.
d. New Hampshire

Jarzembrowski seeks “certific ation of claims arising under the New Hampshire Consumer Protection Act, N.H.R.S.A. 358-A et seq. (the ‘New Hampshire CPA’).” Sealed App. at 20. Very few New Hampshire cases are on point, but the limited case law indicates that proof
of individual reliance or cau sation is not required under the New Hampshire CPA.

In Mulligan v. Choice Mortgage Corp. USA , a federal district court explained that:
New Hampshire courts use an objective standard to determine whether acts or practices are unfair or deceptive in violation of the CPA. In order to come within the CPA, [t]he objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of

commerce. For such conduct to be actionable, th e plaintiff need not show that he or she actually relied on the deceptive acts or practices . . . . Rather, a CPA plaintiff need only establish a causal link between the conduct at issue and his or her injury.
No. CIV. 96-596-B, 1998 WL 544431, at *11 (D.N .H. Aug. 11, 1998) (internal quotation marks and citations omitted); see also Leonard v. Abbott Labs., Inc. , No. 10-CV-4676 ADS WDW, 2012 WL 764199, at *20 (E.D.N.Y. Mar. 5, 2012) (“[T]he New Hamp shire statute also does not
include the elements of reli ance or scienter.”). The Mulligan court described the “causal link” as requiring that a plai ntiff “show[] only that their injuries . . . [were] a consequence of [the defendant’s] allegedly unfair and decep tive practices.” 1998 WL 544431, at *12.
Greater clarity on the proof necessary to establish causation can be found in decisions from Massachusetts courts interp reting its analogous consumer fraud statute, to which “the New Hampshire Supreme Court freque ntly looks for guidance.” Id. at *11 n.7. The Massachusetts Court of Appeals has held that causation under its consumer fraud statute “is established if the deception could reasonably be found to have caused a person to act differently from the way he [or she] otherwise would have ac ted,” and “can also be establis hed by determining whether the nondisclosure [or misrepresentation] was of a material fact” becaus e “[m]ateriality . . . is in aNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 22

sense a proxy for causation.” Casavant v. Norwegian Cruise Line, Ltd. , 919 N.E.2d 165, 169 (Mass Ct. App. 2009), aff'd , 952 N.E.2d 908 (2011) (first alteration in original). Ma teriality is an objective inquiry. See id. The sole case cited by P&G, Appellant Br. at 39 n.6, does not contradict this case law, becau se that case interpreted a diffe rent statute regarding unfair, deceptive, or unreasonable collection practices. Gilroy v. Ameriquest Mortgage Co. , 632 F. Supp. 2d 132, 137–38 (D.N.H. 2009).

e. North Carolina
Finally, Burns also seeks certification of claims arising under North Carolina’s Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. §75-1.1 et seq. (“UDTPA”). Sealed App. at 20. “To state a claim under the UDTPA, a claimant mu st allege (1) an unfair or deceptive act or practice (2) in or affecting comme rce (3) which proximately caused injury to the plaintiff or his
business.” Rahamankhan Tobacco Enters. Pvt. Ltd. v. Evans MacTavish Agricraft, Inc. , 989 F. Supp. 2d 471, 477 (E.D.N.C. 2013). The North Caroli na Supreme Court recently clarified that “a claim under section 75–1.1 stemming from an alle ged misrepresentation does indeed require a plaintiff to demonstrate reliance on the misrep resentation in order to show the necessary proximate cause.” Bumpers v. Cmty. Bank of N. Virginia , 747 S.E.2d 220, 226 (N.C. 2013). “Actual reliance is demonstrated by evidence [that the] plaintiff acted or refrained from acting in a certain manner due to [the] defendant’s representations.” Williams v. United Cmty. Bank , 724 S.E.2d 543, 549 (N.C. Ct. App. 2012) (internal quo tation marks omitted). Plaintiffs base their claim under the UDTPA on misrepresentations by P&G regarding Align’s efficacy. R. 85 (Second Amended Compl. ¶ 113) (Page ID #985). Thus, they must show actual reliance.

The issue, therefore, is whether North Carolina recognizes any circumstances under which classwide proof might suffice to show reliance. In Bumpers , which did not involve the issue of class certification, the North Carolin a Supreme Court did describe the evidence necessary to prove reliance as fo cused on the mental state of the plaintiff and hi s/her decisionmaking process, which would seem to be difficult to prove on a classwide basis. Bumpers , 747 S.E.2d at 227 (“In making this inqu iry we examine the mental state of the plaintiff. . . . . In the context of a misrepresentati on claim brought under section 75–1.1, actual reliance requires that the plaintiff have affirmatively incorporated the alleged misrepresentation into his or herNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 23

decision-making process: if it we re not for the misrepresentation, the plaintiff would likely have avoided the injury altogeth er.”). No North Caroli na decision applying a presumption of reliance
in class actions like that in California under the CL RA could be identified. The one case cited by Plaintiffs doing so, In re Milo’s Dog Treats Consolidated Cases , is a federal district court decision and gave no explanation or support for its conclusion that its discussion of reliance under California law “is equally applicable to North Carolina ’s UDTPA.” 9 F. Supp. 3d 523, 544 (W.D. Pa. 2014).
However, the North Carolina Supreme Court has held that reliance can be proved circumstantially, not just from di rect testimony from the plaintiff. Rowan Cnty. Bd. of Educ. v. U.S. Gypsum Co. , 428 S.E.2d 648, 661 (N.C. 1992) (“This C ourt has recognized that proof of circumstances from which the jury may reasonabl y infer the fact is sufficient in proving the element of reliance.” (internal quotation marks omitte d)). Moreover, the North Carolina Court of Appeals has held that a trial court erred in hold ing that a class action br inging a claim of fraud

can never be certified because “establis hing the elements of fraud requires Plaintiff to make individual showings of facts on the element of reliance.” Pitts v. Am. Sec. Ins. Co. , 550 S.E.2d 179, 189 (N.C. Ct. App. 2001) (int ernal quotation marks omitted), aff’d , 356 N.C. 292 (2002). As the court explained, “although in dividualized showings may be re quired in actions for fraud, this does not in and of itself preclude a finding of the existence of a cl ass” so long as common issues predominate. Id. at 190. The court added that “the benefit of allowing consumer fraud actions to proceed as class actions must be cons idered when determining whether the element of reliance, an individual issue, renders a class non-existent.” Id. at 189. The court then held that common issues predominated. Id. at 190. While its reasoning is sp arse, the court appeared to focus on the general uniformity in the defendant ’s conduct towards the cl ass, but did not spell out whether or how it was finding a classwide pres umption of reliance or inferring reliance based
on the identical circumstances faced by the class members. Id.
f. Summary of State Laws
As this survey of the relevant state laws demonstrates, Plaintiffs can prove causation
and/or reliance on a classwide ba sis provided that (1) the allege d misrepresentation that Align promotes digestive health is ma terial or likely to deceive a reasonable consumer, and (2) P&GNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 24

made that misrepresentation in a generally unif orm way to the entire class. As previously discussed, both factors are met here. The first factor is met—there is only one reason to buy Align, to promote digestive healt h, and thus the alleged misreprese ntation would be material to or likely to deceive a reasonable consumer . As to the second factor, P&G undertook a comprehensive marketing strategy with a generall y uniform core message such that all class members were likely exposed to the alleged mi srepresentation. At a minimum, all class
members saw P&G’s advertis ing on Align’s packaging.
Although a somewhat closer call, we believe that this classwide proof—that the alleged misrepresentation is material and was made in a generally uniform manner to all class
members—would also suffice in North Carolina to show actual reliance such that individual issues would not predominate. Th e Eleventh Circuit’s discussion in Klay v. Humana, Inc. , 382 F.3d 1241 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond
& Indem. Co. , 553 U.S. 639 (2008), is instructive on how classwide circumst antial evidence in this case likely satisfies the individual reliance requirement under the UDTPA (although the case admittedly did not involve the UDTPA). Physicians brought a class action alleging that various HMOs had defrauded them, in part based on misr epresentations that the HMOs would reimburse them for medically necessary services plaintiffs provide d to the HMOs’ insureds. Id. at 1259. The court explained that “while each plaintiff must prove his own reliance in this case, we believe that, based on the nature of the misrepresentations at issue, the circumstantial evidence
that can be used to show reliance is common to th e whole class. That is, the same considerations
could lead a reasonable factfinde r to conclude beyond a preponderanc e of the evidence that each individual plaintiff relied on the defendants’ representations.” Id. The court noted that the defendant made a uniform repres entation to class members. Id. And the court explained, “[i]t does not strain credulity to conclude that each pl aintiff, in entering into contracts with the defendants, relied upon the defe ndants’ representations and assumed they would be paid the amounts they were due” because the promise to reimburse was a central reason physicians would sign the agreements. Id. Similarly, in this case the alle ged misrepresentation that Align promotes digestive health is the reason to buy Align. Thus, a jury could “legitimate[ly] infer[] [reliance classwide] based on th e nature of the alleged misrepresentations at issue.” Id.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 25

3. Whether Align Actually Works
Echoing its commonality argument, P&G claims th at it has put forth unrebutted evidence that Align actually works—that it provides digestive health benef its for at least some of its
consumers—and thus Plaintiffs will not be able to prove injury on a classwide basis. Appellant
Br. at 33–37. The dissent also focuses on this ar gument. Even if P&G had not produced such proof, P&G argues that scientific evidence might es tablish that Align “provides benefits for some purchasers, but not all—the exac t middle ground Plaintiffs ignore,” and thus it would still be necessary to determine whether Align works for each individual class member to prove injury, such that common issues do not predominate. A ppellant Reply Br. at 7. P&G cites several cases in which it claims that courts required class plaintiffs to provide some evidence of actual classwide injury to establish predominance at the class certification stage. Appellant Br. at 34–
36.
As an initial matter and as already discusse d, Plaintiffs contest whether the studies produced by P&G actually demonstrat e that Align works for some i ndividuals. Contrary to what the dissent claims, Plaintiffs have not tacitly conceded that Align works for individuals with IBS. Plaintiffs point to methodological flaws and probl ems with the studies on the effectiveness of Align for individuals with IBS to question the scie ntific validity of the studies in their own right,
in addition to questioning whether those studies can be used to claim Align works for healthy
individuals. See, e.g. , R. 9 (Amended Compl. ¶¶ 36–37) (Pag e ID #73–74) (for example, noting that in one study of women with IBS cited by P&G on its website, “the study tested Bifidobacterium infantis 3562 4 at amounts (referred to as ‘c olony-forming units’ or ‘CFUs’) different than what is presen t in Align® probiotic supple ment” and “[t]he study authors expressly emphasized the variability of re sults depending on the amount of CFUs”). Although
P&G and the dissent claim that Plaintiffs ’ own expert appeared to concede, in his deposition, that Align might have worked for one of his patient s having digestive healthissues, Dr. Komanduri stated later in the deposition th at he did not know whether A lign was helpful for his patient because it actually worked or because of a placebo effect. See R. 133 (Dep. of Srinadh Komanduri at 29–30, 58) (Page ID #5748, 5755).No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 26

More fundamentally, however, P&G’s and the dissent’s argument attacks a theory of liability that Plaintiffs have not actually pres ented—that Align is not e ffective unless it works for 100% of consumers who take it. Appellant Br. at 32. However, what Plaintiffs actually argue is that it has not been shown that Align works for anyone , i.e., that Align is “snake oil.” Appellee
Br. at 7. Thus, under Plaintiffs’ theory of liability, P&G’s claim that Align works for some individuals goes solely to the merits; it has no relevance to the class certification issue. In re Scotts EZ Seed Litig. , 304 F.R.D. at 408 (“Under plain tiffs’ first theory of liability, nobody was able to grow grass using EZ Seed. Plaintiffs will succeed or fail on this theory based on whether they are able to prove EZ Seed is worthless. Defendants’ argument that the products worked for some individual class members goe s to the proof of the merits of plaintiffs’ claims. Any argument that challenges the mer its of plaintiffs’ allegations a bout the uniform inefficacy of [EZ Seed] has no bearing on the Rule 23 predomin ance inquiry.” (internal quotation marks and citation omitted)); Delarosa v. Boiron, Inc. , 275 F.R.D. 582, 594 (C.D. Cal. 2011) (“Defendant’s arguments that it can present proof that Coldca lm worked for some individual class members goes to the proof of the merits of Plaintiff’s claim, not to the common question as to the overall efficacy of the product.”); Fitzpatrick , 263 F.R.D. at 701 (holding that “Gen eral Mills’ other objection, that Yo–Plus might have worked for so me consumers, does not preclude a finding of predominance; that question is largely enco mpassed by the predominant—and, according to Plaintiff, binary—issue of whethe r science supports General Mills’ claim that Yo–Plus aids in the promotion of digestive health”). We have an obligation to assess the theory of liability Plaintiffs present to us, rather than dismiss it as mere artful pleading, a nd Plaintiffs’ theory of liability—that Align is entirely ineffective—is hardly unprecedented in the consumer fraud
context as these cases demonstrate.
Plaintiffs have presented sufficient evid ence in the form of testimony from Dr. Komanduri that their theory of liability—that Align is worthl ess—is capable of resolution through classwide scientific proof such that co mmon issues predominate. R. 108-8 (Komanduri Decl. at 2–4) (Page ID #1596–98). Specifically, Dr. Komanduri at tested that whether Align
works for anyone can be tested by “correctly designed randomized, double- blind and placebo controlled clinical trials testing relevant outcomes.” Id. ¶ 15 (Page ID #1597). The studies that P&G’s own expert cites and the di ssent highlights as allegedly dem onstrating that Align in factNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 27

has been proven to work for some individuals (suc h as those with IBS) are of a similar kind. R. 115 (Merenstein Decl. at 12–16) (Page ID #4302–06). At the merits stage, Plaintiffs will have the opportunity to put forth thei r own scientific evidence on Align’s efficacy and to present expert testimony more fully contesting the accuracy of these studies and others P&G may produce. The key point at the cl ass-certification stage is that this kind of dueling scientific evidence will apply classwide such that individual issues will not predominate. In other words, assessing this evidence will generate a common answer for the class based on Plaintiffs’ theory of liability—whether Align in f act has been proven scientificallyto provide digestive health benefits for anyone. That common answer, of c ourse, may be that Align does work for some
subsets of the class. That does not transform this classwide evidence into individualized evidence that precludes class cert ification, however. Neither P&G nor the dissent has articulated how evidence that Align might work for some sub-populations actually would necessitate
individualized mini-trials th at should preclude class certi fication. Rather, the more straightforward impact of this ev idence is simply that it may prevent Plaintiffs from succeeding
on the merits.
The possibility that, at a late r point in the litigation, the district court may choose to
revisit the issue of class certifi cation rather than dismiss the case if assessment of the fully developed evidence presented by both parties suggests Align actually works for some subpopulations is hardly as unprecedented or problematic as the dissent suggests. “Federal Rule of Civil Procedure 23 provides distri ct courts with broad discretion to determine whether a class should be certified, and to revisit that certification throughout the legal proceedings before the

court .” Armstrong v. Davis , 275 F.3d 849, 871 n.28 (9th Cir. 2001) (emphasis added), abrogation on other grounds recognized in Nordstrom v. Ryan , 762 F.3d 903, 911 (9th Cir. 2014). If later evidence disproves Plaintiffs’ contentions that common issues predominate, “ the district court may consider at that point whether to modify or decertify the class.” Daffin v. Ford
Motor Co. , 458 F.3d 549, 554 (6 th Cir. 2006); see also Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 160 (1982) (“ Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.”). This possibility, however, is not a reason to deny class certification now when Plaintiffs have demonstrated that their current theory of liability will be proved or disproved thr ough scientific evidence that applies classwide.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 28

Moreover, the cases P&G cites do not hold that establishing predominance means that named plaintiffs must produce actu al proof at the class-certificat ion stage of classwide injury, here that Align is “snake oil.” On predominance specifically, we emphasized in In re Whirlpool that “the [ Amgen ] Court repeatedly emphasi zed that the predominance inquiry must focus on common questions that can be proved through evidence common to the class.” In re Whirlpool , 722 F.3d at 858 (emphasis added). In other word s, named plaintiffs must show that they will be
able to prove injury through common evidence, not that they have in fact proved that common injury. Or, as the Amgen Court expanded, “While Connecticut Retirement certainly must prove materiality to prevail on the merits, we hold th at such proof is not a prerequisite to class certification. Rule 23(b)(3 ) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.” Amgen , 133 S. Ct. at 1191. Here, “an inability of the plainti ff class ‘to prove [that Align does not work for anyone] would not result in indivi dual questions predominating. Instead, a failure of proof on th[is] issue . . . would end the case.’” In re Whirlpool , 722 F.3d at 858 (quoting Amgen , 133 S. Ct. at 1191). See also id. at 860 (“To the extent that Comcast Corp. reaffirms the settled rule that liability issues relating to injury must be susceptible of proof on a classwide basis to meet the predominance standard, . . . that requirement is met in this case.” (emphasis added)).
The two cases cited by P&G are better characte rized as holding that the plaintiffs had not demonstrated that the alleged injuries were capable of resolution by classw ide proof that would predominate over individual issues. Pilgrim v. Universal Health Card, LLC involved a class action claiming health care programs were falsel y advertised as providing “consumers access to a network of healthcare providers that had agreed to lower thei r prices for members.” 660 F.3d 943, 945 (6th Cir. 2011). We affirmed the district c ourt’s denial of class ce rtification in part on the basis of lack of predominance. Id. at 947–48. Although we noted that there was evidence that “the program apparently satisfied some consumers,” id. at 948, our holding actually rested on the fact that the “program di d not operate the same way in every State and the plaintiffs suffered distinct injuries as a result.” Id. at 947–48. As previously discussed, this case involves one product with a uniform marketing scheme and message that either does not work for anyone
or does work at least for some individuals.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 29

Similarly, the decision in Phillips v. Philip Morris Cos. , 298 F.R.D. 355 (N.D. Ohio 2014), denying class certifica tion in a false advertising challenge to Philip Morris’s claim that light cigarettes had low tar hinged on the plain tiffs’ inability to prove that a common injury could be proved . First, “there [was] no inhe rent design defect that rende red the product less valuable,” and “[t]he potential to reali ze an injury from the product . . . depend[ed] upon the manner in which each consumer used the product and the unique characteristics of each consumer.” Id. at 368. Second, the court noted that some consumer s might have purchased the cigarettes for a reason unrelated to the alleged misrepresentation about lower tar and nicotine, such as flavor. Id. n.20. Here, however, there is only one reason to buy Align: its di gestive health benefits. And whether or not Align works as promised for anyone —the issue here—is a sc ientific question that will not turn on the individual behavior of consumers; if Align is shown to work, even for only certain individuals, then pr esumably Plaintiffs lose.
In the other two cases cited by P&G, the cour ts denied class certification because there was a disconnect between the class’s theory of liability and the class’s damages model, not because the named plaintiffs had not conclusivelyproved injury to the entire class at the classcertification stage, as P&G claims. As discu ssed in the next subsection, there is no similar
disconnect here.

InIn re Rail Freight Fuel Surcharge Antitrust Litigation-MDL No. 1869 , for example, the
D.C. Circuit denied class certification because the damages model presented by the plaintiffs could not reliably prove classwide injury in fact , i.e., it would “detect[] injury where none could exist.” 725 F.3d 244, 252–53 (D.C. Cir. 2013). It was in this context that the D.C. Circuit stated that it “do[es] expect the common eviden ce to show all class members suffered some injury.” Id. at 252. However, the D.C. Circui t did not alter the normal rule that named plaintiffs need only
show at the class-certif ication stage “that theycan prove , through common evidence, that all class members were in fact injured by the alleged conspiracy,” not that th ey have in fact proved that injury. Id. (emphasis added).
Similarly, in Parko v. Shell Oil Co. , the Seventh Circuit held that the district court abused its discretion in certifying a class because of a disconnect between the class’s damages model and its liability theory. 739 F .3d 1083 (7th Cir. 2014). The cla ss alleged nuisance and relatedNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 30

torts on the basis of alleged groundwater cont amination occurring over a 90-year period. Id. at 1084. The court, in finding a lack of predominance, did note that the plaintiffs had presented nothing more than “unsubstantiated allegation.” Id. at 1086. But the unsubstantiated allegation was not whether the groundwater wa s actually contaminated, as P& G claims, but the plaintiffs’ claim that they “intend[ed] to rely on comm on evidence and a single methodology to prove both injury and damages” that was sound and plausible. Id. Thus, the Seventh Circuit reversed class
certification because the district court had not “inve stigated the realism of the plaintiffs’ injury and damage model in light of the defendants’ counterarguments.” Id. Specifically, the plaintiffs proposed to measure damages “by the effect of the groundwater c ontamination on the value of the class members’ properties,” but the defendants pointed out that the plaintiffs did not own the groundwater underneath their property and that their water supply did not come from that groundwater. Id. at 1084, 1086. Thus, it was not clear how contamination in the groundwater could affect property values. Id. at 1086. It was this disconnect between the plaintiffs’ damages model and their liability theory that led th e Seventh Circuit to de ny class certification. 7

Moreover, our holding today is consistent wi th the Supreme Court’ s recent decision in Halliburton Co. v. Erica P. John Fund, Inc. , 134 S. Ct. 2398 (2014). In that case, the Supreme Court held that, at the class-cert ification stage, defendants in priv ate securities fraud class actions must be able to present evidence rebutting a particular presumption of classwide reliance
available in these kinds of cas es. 134 S. Ct. at 2417. The Halliburton Court’s holding is limited to allowing rebuttal evidence on issues that aff ect predominance, not evidence that affects only
the merits of a case. Id. at 2416. Given Plaintiffs’ theory of liability in this case, the evidence that P&G has presented fails this test—it affects only the merits of this case, not predominance. Even if the evidence P&G presented did affect predominance, however, it is not clear how P&G

7 Further evidence that the plaintiffs’ failure to prove that the groundwa ter was in fact contaminated was immaterial to the Seventh Circuit’s decision is found in the case that the Seventh Circuit cites as properly granting class certification, Mejdreck v. Lockformer Co. , No. 01 C 6107, 2002 WL 1838141 (N.D. Ill. Aug. 12, 2002). Parko , 739 F.3d at 1087. As described by the Parko court, in that case “the leakage of the noxious solvent was claimed to have contaminated the water supply , as noted by the district court.” Id. (emphasis added). In other words, the plaintiffs had not actually proved that the wate r supply was contaminated for most class members at the class-certification stage; rather, they ha d articulated a coherent theory of injury and damages because they alleged that the contaminated water had entered the water supply, and therefore more clearly c ould affect property values.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 31

alleges the district court violated Halliburton given that P&G was not prevented from putting
forth this evidence. 8

4. Whether Plaintiffs’ Damages Model Is Consistent With Their Liability Theory Finally and relatedly, P&G claims that Plain tiffs have “failed to provide any viable
method to determine or award cla sswide damages, as required by Comcast Corp. v. Behrend , 133 S. Ct. [1426,] 1433 [(2013)],” because P&G presen ted evidence that some class members benefited from Align, or the scientific evid ence could establish Align works for some individuals. Appellant Br. at 43–44.
The premise of this argument suffers fromthe same problems with P&G’s preceding argument. Plaintiffs are claiming that Align works for no one , and if they are correct, all class members suffered from the same injury, buying a pr oduct that does not work as advertised. If Align in fact is proven scientifically to work for some individuals, Plaintiffs will lose on the
merits.
Moreover, Plaintiffs’ damages model—a full refund of the purchase price for each class
member—satisfies Comcast . In that case, the Supreme Cour t held that courts must conduct a “rigorous analysis” to ensure at the class-certif ication stage that “any model supporting a plaintiff’s damages case [is] consis tent with its liability case,” i.e., that the model “measure[s] only those damages attributable to that theory” of liability. Comcast , 133 S. Ct. at 1433 (internal quotation marks omitted). That is the case here . A full refund for each class member is appropriate because, as the district court explai ned, there is no reason to buy Align except for its purported digestive benefits—“[i]t is a capsule filled with bacteria and inert ingredients. If, as alleged, the bacteria does nothing, th en the capsule is worthless.” R. 140 (Dist. Ct. Order at 30)

8 P&G also argues in its reply brief that Plaintiffs have at most presented eviden ce that P&G’s claims about Align are unsubstantiated, but false advertising claims re quire affirmative proof of falsity, not just lack of substantiation. Appellant Reply Br. at 16–19. P&G argues that lack of substantiation claims are within the sole province of the Federal Trade Commission and other regulatory agencies. Id. at 17. P&G’s argument goes to the merits of the case, not to whether cl ass certification is proper. Indeed, all of the cases cited by P&G involve discussions of the merits of false advertising claims and do not indicate that this distinction is at all relevant to whether a class should be certified. Whether the standard is affirmative proof of falsity or lack of substantiation, the evidence necessary to prove this issue will be the same for the entire class such that individual issues will not predominate.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 32

(Page ID #6444). Whether purchasers were nevert heless satisfied with A lign does not affect the propriety of a full-refund damages model. See, e.g. , Forcellati v. Hyland’s, Inc. , No. CV 12- 1983-GHK MRWX, 2014 WL 1410264, at *9 (C.D. Cal. Apr. 9, 2014) (holdi ng that restitution is the appropriate damages model even for satisfied customers if the plaintiffs prove that “Defendants’ products are placebos, and that the pr oducts’ effectiveness arises solely as a result of the placebo effect”) (internal quotation marks om itted). And this analysis is the same for all class members: “either 0% or 100% of the proposed class members were defrauded. There is no evidence that some proposed class members knew of the alleged falsity of Defendant’s advertising yet purchased Align an yway.” R. 140 (Dist. Ct. Op. at 31) (Page ID #6445). Thus, Plaintiffs’ damages model measures only damages attr ibutable to its theory of liability, i.e., that P&G is liable if it is not proven scientifically that Align helps anyone , and thus satisfies
Comcast

. See, e.g. , In re Scotts EZ Seed Litig. , 304 F.R.D. at 412 (holding that a “full compensatory damages model, under which co nsumers would receive a full refund for their purchases of EZ Seed[,] . . . ma tches plaintiffs’ first theory of liability—that EZ Seed does not grow grass, and is thus valuel ess,” and therefore “satisfies Comcast because it measures damages properly if EZ Seed is valueless” (internal quotation marks omitted)).

In sum, the district court did not abuse its discretion in determining that common issues will predominate over individual issues in resolv ing the key merits issue of this case—whether Align promotes digestive health for anyone

. D. Standing

P&G also contends that the cla ss is overbroad and thus raises Article III standing issues because Plaintiffs have failed to produce evidence that most of the class suffered an injury, i.e., that Align did not work for them. Appellant Br. at 45–47. This argument again misconstrues the basic theory of liability at issue in this case. Under Plaintiffs’ theory of liability, P&G falsely advertised to every purchaser of Align. As the di strict court put it, there is no reason to purchase Align except for its promised digestive health bene fits. If Align does not work as advertised forNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 33

anyone , then every purchaser was harmed, and a direct line can be drawn from P&G’s advertising campaign and the decision to buy Align. 9

E. The Proposed Class is Sufficiently Ascertainable
Finally, P&G contends that the proposed cla ss is not ascertainable because “Plaintiffs
have failed to demonstrate that there is a ‘rel iable’ and ‘administratively feasible’ method for identifying the class members.” Appellant Br. at 50. Most consumers do not buy Align directly from P&G. Instead, they purchase the product from a commercial retailer, either in stores or online. This circumstance, P&G contends, makes ascertainability impossible—there is no plausible way to verify that any one single individual actually purchased A lign. In making this point, P&G relies on the Thir d Circuit’s decision in Carrera v. Bayer Corp. , 727 F.3d 300 (3d Cir. 2013).

The district court did not abuse its discretio n in holding that the class is sufficiently
ascertainable. In our ci rcuit, the ascertainabilityinquiry is guided by Young v. Nationwide
Mutual Insurance Co. , 693 F.3d 532 (6th Cir. 2012). And under Young , Plaintiffs have produced
evidence sufficient to show th at the class is ascertainable. We see no reason to follow Carrera , particularly given the strong criticism it has attracted from other courts. See, e.g. , Mullins v. Direct Digital, LLC , No. 15-1776, 2015 WL 4546159, at *7 (7th Cir. July 28, 2015) (declining to
follow Carrera because “[t]he Third Circuit’s approach in Carrera, which is at this point the high-water mark of its devel oping ascertainability doctrine, goes much further than the established meaning of ascertainability and in our view misreads Rule 23”); In re ConAgra Foods, Inc. , 302 F.R.D. 537, 566 (C.D. Cal. 2014) (discussing Carrera and noting that “ConAgra’s argument would effectively prohibit class actions involving low priced consumer goods—the very type of claims that would notbe filed individually—thereby upending ‘[t]he policy at the very core of the class action mechanism’” (quoting Amchem Prods, Inc. v. Windsor , 521 U.S. 591, 617 (1997))). Even if Carrera governed, there are a number of factual differences that make a finding of ascertain ability more appropriate here.

9 P&G urges us to enter a circuit split over whether it is sufficient that the named class plaintiff has standing, regardless of whether unnamed class members do. Appellant Br. at 48–5 0. Because reaching this argument requires accepting P&G’s inaccurate characterization of Plaintiffs’ theory of liab ility in this case, we do not find it necessary to evaluate this claim.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 34

In Young , the named plaintiffs sued their respect ive insurance companies, alleging “that their insurer charged them a local government ta x on their premiums when either the tax was not
owed or the tax amount owed was less than the insurer billed.” 693 F.3d at 535. The district court certified a class of “[a] ll persons in the Commonwealthof Kentucky who purchased insurance from or underwritten by [Defendant insurer] . . . and who were charged local government taxes on their payment of premiums wh ich were either not ow ed, or were at rates higher than permitted.” Id. at 536 (second alteration in original). On appeal, the insurance companies argued “that the class definition [was ] not administratively feasible” because the plaintiffs’ class description was not “sufficiently definite so that it [would be] administratively
feasible for the court to determine whether a particular i ndividual is a member.” Id. at 538.
We rejected this argument. We noted that “[f]or a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria.” Id. (internal quotation marks omitted). The plaintiffs had presented such a class, because class membership could be determined by reviewing factors such as “the location of the insured risk/prope rty” and “the local tax charged and collected from the policyholder.” Id. at 539. Unlike the Third Circuit in Carrera , we considered—and rejected—the defe ndants’ claim “that the class pr operly could [not] be certified without . . . 100% accuracy.” Id. Instead, we agreed with the distri ct court’s conclusion that “the
subclasses can be discerned with reasonable ac curacy using Defendants’ electronic records and available geocoding software, though th e process may require additional, even substantial , review of files.” Id. (emphasis added) (internal quotation marks omitted). The court added that “[i]t is often the case that class action litigati on grows out of systemic failures of administration, policy application, or records ma nagement that result in small monetary losses to large numbers of people. To allow that same systemic failure to defeat class certifi cation would undermine the very purpose of class action remedies.” Id. at 540.
This same reasoning applies to the instan t case. The proposed class is defined by objective criteria: anyone who purchased Align in California, New Hampshire, Illinois, North Carolina, or Florida. As in Young , these single state sub-classes can be determined with reasonable—but not perfect—accur acy. Doing so would require substantial review, likely ofNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 35

internal P&G data. But as the district court pointed out, such review could be supplemented through the use of receipts, affidavits, and a spec ial master to review individual claims. R. 140 (Dist. Ct. Order at 13–15) (Page ID #6427–29).
Even if we were to apply Carrera , there are significant factual differences that make this
class more ascertainable. In Carrera , the plaintiff brought a class action against Bayer Corporation, “claiming that Bayer falsely and deceptively advertised its product One–A–Day WeightSmart.” 727 F.3d at 304. “Carrera allege[d] [tha t] Bayer falsely claimed that WeightSmart enhanced metabolism by its inclusi on of epigallocatechin gallate, a green tea
extract.” Id. Carrera moved to certify a class cons isting of “all pers ons who purchased WeightSmart in Florida,” which the district court granted. Id. In vacating and remanding the district court’s order, the Thir d Circuit held that Carrera’s pr oposed class was not sufficiently ascertainable under the methods proposed by Carrera. Id. at 308–11.
First, Carrera proposed “using reta iler’s records of sa les made with loyalty cards . . . , and
records of online sales.” Id. at 308. The Third Circuit rejected this approach. It noted that
“there is no evidence that a single purchaser of WeightSmart could be id entified using records of customer membership cards or records of online sales.” Id. at 309 (emphasis added). Still, the court maintained that, “[d]epending on the facts of a case, retailer records may be a perfectly acceptable method of proving class membership.” Id. at 308–09. Second, Carrerra proposed taking affidavits from various class members, the veracity of which could be assessed by a private firm tasked with administering class settle ments. The Third Circuit likewise rejected this approach. It noted that this method “does not show[that] the affidavits w ill be reliable,” thereby undercutting Bayer’s due-process interests. Id. at 311. 10

10 It is worth noting that the Third Circuit subsequently has cautioned against a broad reading of Carrera. In Byrd v. Aaron’s Inc. , 784 F.3d 154 (3d Cir. 2015), the court discu ssed the ascertainability requirement in detail. The Third Circuit noted that Carrera “only requires the plaintiff to show that class members can be identified. ” Id. at 164 (quoting Carrera , 727 F.3d at 308 n.2). “ Carrera ,” in other words, only “stands for the proposition that a party cannot merely provide assurances to the district court that it will later meet Rule 23’s requirements.” Id . In Byrd , the Third Circuit went on to char acterize the defendants’ “reliance on Carrera ” as “misplaced.” Id. at 170. “In Carrera , we concluded that the plaintiffs’ proposed reliance on affidavits alone, without any objective records to identify class members or a method to weed out unreliable affidavits , could not satisfy the ascertainability requirement.” Id. (emphasis added). On the other hand, the Byrds—like Plai ntiffs in this case—“presented the District Court with multiple definitions of class members and simply argued that a form similar to those provided could be used to identify household members.” Id .; see also id. (“There will always be some level of inquiry required to verify that a person is a member of a cla ss.”). To emphasize the point, the Third Circuit stated that,No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 36

Here, in contrast, there is “evidence that a single purchaser [in the proposed class] . . . could be identified using records of customer me mbership cards or records of online sales.” Id. at 309 (emphasis added). P&G’s own documents indi cate that more than half of its sales are online. Sealed App. at 514. At a minimum, online sales would provide the names and shipping addresses of those who purchased Align. In addition, studies conducted by P&G reveal that an overwhelming number of customers learne d about Align through their physicians. See Sealed App. at 160–61 (documenting surveys showing 39% to 80% of all users hearing about Align through a physician). Unlike the proposed class in Carrera , P&G could verify that a customer purchased Align by, for instance, requesting a signed statement from that customer’s physician. Store receipts and affidavits can supplement these methods.

In sum, the district court did not abuse its di scretion in finding the proposed class to be sufficiently ascertainable. As the district court pointed out, there is significant evidence that
Plaintiffs could use traditional models and methods to identify class members. See R. 140 (Dist. Ct. Op. at 12–15) (Page ID #6426–29). These methods satisfy Young

.
III CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment granting class
certification.

“[c]ertainly, Carrera does not suggest that no level of inquiry as to the identity of class members can ever be undertaken. If that were the case, no Rule 23(b)(3) class could ever be certified.” Id. at 171.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 37

_________________

CONCURRENCE

_________________ AVERN COHN, District Judge, c oncurring. I concur in the l ead opinion and have this to
add. As I read Plaintiffs’ fals e-advertising claims, they are pr edicated on the proposition that Align has no digestive health benefits to anyone , and that there is no r eason to purchase Align other than for its promised digestive health benef its. On return to the district court, given the disagreements between the lead opinion and di ssent, I believe the district judge, before proceeding further, should consider bifurcatio n under Fed R. Civ. P. 42(b) the issue of the digestive health benefits of Ali gn. If, as Plaintiffs claim, ther e is no scientific evidence that Align promotes digestive heath for anyone , the case can proceed in th e regular course. If, on the other hand, Plaintiffs’ proofs fail to establish that Align has no digestive hea lth benefits, the case
should be dismissed. See, e.g. , Gillie v. Law Office of Eric A. Jones, LLC , No. 2:13-CV-212, 2013 WL 6255693 (S.D. Ohio Dec. 4, 2013) (to conserve judicial resources, bifurcating under Rule 42(b) issues relating to liability, such as whether defendants are considered “debt
collectors” under the Fair DebtCollection Practices Act), granting defendants’ motion for summary judgment on liability , 37 F. Supp. 3d 928 (S.D. Ohio 2014), vacated and remanded , 785 F.3d 1091 (6th Cir. 2015); see generally Susan E. Abitanta, Bifurcation of Liability and Damages in Rule 23(b)(3) Class Actions: Hi story, Policy, Probl ems, and a Solution , 36 Sw. L.J. 743, 744 (1982) (discussing the economic benefits of bifurcation in class actions).No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 38

_________________ DISSENT

_________________ COOK, Circuit Judge, dissenting. Recent S upreme Court precedent clearly holds that “plaintiffs wishing to proceed through a class action must actually prove —not simply plead— that their proposed class satisfies each requirement of Rule 23.” Halliburton Co. v. Erica P. John Fund, Inc. , 134 S. Ct. 2398, 2412 (2014); see also Comcast Corp. v. Behrend , 133 S. Ct. 1426, 1432 (2013); Amgen Inc. v. Conn. Ret. Plans & Trust Funds , 133 S. Ct. 1184, 1194 (2013); Wal-Mart Stores, Inc. v. Dukes , 131 S. Ct. 2541, 2551 (2011). District courts may certify a class only where the plaintiff presen ts “evidentiary proof” sufficient to withstand “rigorous analysis” of Ru le 23’s requirements. Comcast , 133 S. Ct. at 1432. Nothing about the district court’s analysis here wa s rigorous, and the majority papers over this abuse of discretion by claiming that any further inquiry would result in an impermissible “dress rehearsal” for trial. More often than not, however, a district court’s “‘ri gorous analysis’ will en tail some overlap with the merits of the plaintiff’s underlying claim.” Dukes , 131 S. Ct. at 2551–52 (quoting Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 614 (1982)). And this case is no exception to that rule. Because the majority opinion c onflicts with the Supreme Court’ s Rule 23 jurisprudence, I
dissent.
Plaintiffs proclaim that Align is “snake oi l” that produces nothing more than a placebo
effect. But Plaintiffs offer no proof in support of this argument , and all the available evidence tends to show the opposite: th at consumers benefit more or less from Align based on their individual gastrointestinal health. P&G’s scientific studies and anecdotal evidence tend to show, at the very least, that patients suffering from irritable bowel syndrome (IBS) benefit from Align. Plaintiffs tacitly acknowledge as much in thei r amended complaint, challenging the design of these studies and arguing that P& G relies on an impermissible st ring of inferences to conclude that Align also benefits “healthy” people.
Plaintiffs’ attempt to distinguish Align’s imp act on IBS sufferers from its effect on the general population exposes the flaw in their proposed class definition. At th is stage, Plaintiffs must demonstrate that they can disprove Align’ s efficacy for every member of the class at oneNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 39

time. The class certified by the district court includes all consumers wh o purchased Align, IBS patients and “healthy” consumers alike. Becaus e the evidence tends to show that these two groups respond differently to Align, Plaintiffs ha ve failed to meet their burden of showing that their theory of liability lends itself to common investigation and resolution. See Dukes , 131 S. Ct. at 2551 (stating that the benchmark for comm onality is a classwide proceeding’s ability to generate common answers rather than counsel’s ability to formulate common questions).

Furthermore, Plaintiffs offer no proof that the benefits associated with Align result solely from a placebo effect. Their expert, Dr. Ko manduri, expressed no opinion on the question and declined to confront any of P& G’s studies directly. He dismissed all these trials as too unscientific, although he has yet to study the product himself and acknowledges that the IBS symptoms of at least one of his patients improve d after taking Align. In lieu of an expert opinion, Dr. Komanduri promised to design a nd conduct a clinical trial that will prove definitively whether Align works as advertis ed, notwithstanding the experts who already
conclude that it works for at l east some consumers. With nothi ng more than that promise, the
district court certified a class of millions across five states. In doing so, the court impermissibly shifted the burden to P&G, forcing it to dispro ve the commonality and predominance elements of
Rule 23.
To avoid confronting these fl aws, the majority quotes Amgen ’s admonition that “[m]erits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” 133 S. Ct. at 1195. But whether Align works similarly for each cl ass member is relevant to certification and therefore not beyond the scope of th e court’s rigorous analysis. See Dukes , 131 S. Ct. at 2551– 52 (“The class determination genera lly involves considerations that are enmeshed in the factual and legal issues comprising the plai ntiff’s cause of action.” (quoting Falcon , 457 U.S. at 160)). If Align works to varying degrees—or at a ll—depending on each member’s unique physiology, then the question of Align’s efficacy i nvolves myriad individual inquiries. See Comcast , 133 S. Ct. at 1432 (“The party must also satisfy through eviden tiary proof at least one of the provisions of Rule 23(b).”). This fundamental defect will no t disappear by allowing Plaintiffs to define the question at an impossibly high leve l of abstraction. As the case pr oceeds, the prob lems with theNo. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 40

district court’s certification order will become painfully clear. Either the court will have to whittle down the class definition every time P&G produces a study showing that patients with a certain makeup benefit from Align or the court must award judgment to P&G and preclude class
members with colorable claims fr om recovery because it defined th e class too broadly in the first place.
By discounting the evidence presented at the ce rtification stage, mo reover, the majority
affirms a class definition that includes a clutch of member s without standing. E.g. , Kohen v. Pac. Inv. Mgmt. Co. LLC , 571 F.3d 672, 677 (7th Cir. 2009) (“[A] class should not be certified if it is apparent that it contains a great many pers ons who have suffered no injury at the hands of the defendant . . . .” (citations omitted)); Denney v. Deutsche Bank AG , 443 F.3d 253, 264 (2d Cir. 2006) (“The class must theref ore be defined in such a way th at anyone within it would have standing.”). The class definition includes all purchasers of Align despite the fact that Plaintiffs offer no proof to rebut the studies showing that the product improves digestive health for IBS patients. The only evidence before the court shows that IBS patient s suffered no injury (because Align works as-advertised for them), and theref ore Plaintiffs have failed to show a properly
defined class. See Lujan v. Defe nders of Wildlife , 504 U.S. 555, 561 (1992) (“[E]ach element must be supported in the same way as any other matter on which th e plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence re quired at the successive stages of the litigation.”). Unless Plaintiffs muster some evidence rebutting the IBS studies, their claim is already doomed.
For these reasons, the Supreme Court requires plaintiffs to affirmatively prove that common questions both exist and predominate. Though Plaintiffs artfully frame the question in a binary fashion, a rigorous analysis of their evidence shows that resolution of the Plaintiffs’ question cannot apply universally to all class members. Plainti ffs offer nothing in support of their claim that Align benefits no one. Instead, they nitpick P&G’s competent evidence, trot out an expert without any opinion as to the s upplement’s efficacy, and promise to conduct the definitive trial of Align that accounts for all variables of human physiology. Dukes and its progeny teach us that this is insufficient to justify class ce rtification. I must dissent.