1 Zev B. Zysman (176805) [email protected] 2 LAW OFFICES OF ZEV B. ZYSMAN APC 15760 Ventura Boulevard, 16th Floor 3 Encino, California 91436 Telephone: (818) 783-8836 4 Jordan L. Lurie (130013) 5 [email protected] Robert K. Friedl (134947) 6 [email protected] CAPSTONE LAW APC 7 1840 Century Park East, Suite 450 Los Angeles, California 90067 8 Telephone: (310) 556-4811

9 Leigh A. Parker (170565) [email protected] 10 WEISSLAW LLP 1516 South Bundy Drive, Suite 309 11 Los Angeles, California 90025 Telephone: (310) 208-2800 12 Attorneys for Plaintiff and the 13 Proposed Settlement Class

14

15 UNITED STATES DISTRICT COURT

16 CENTRAL DISTRICT OF CALIFORNIA 17 NILOOFAR SAEIDIAN, on Behalf of Case No. 09-cv-06309 SJO (JRPx) 18 Herself and All Others Similarly Situated, CLASS ACTION 19 Plaintiff, PLAINTIFF’S MEMORANDUM OF 20 LAW IN SUPPORT OF UNOPPOSED 21 v. MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION 22 THE COCA COLA COMPANY, SETTLEMENT 23 Defendant. Date: March 28, 2016 Time: 10:00 a.m. 24 Room: Courtroom 1 – 2nd Floor Judge: Honorable S. James Otero 25 26 27 28

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 TABLE OF CONTENTS 2

3 I. PRELIMINARY STATEMENT ...... 1

4 II. SUMMARY OF THE CASE AND PROCEDURAL HISTORY ...... 2

5 A. Procedural History...... 2

6 B. Counsel’s Efforts in Achieving this Settlement ...... 5

7 C. Uncertainty Regarding the Outcome ...... 6

8 III. THE PROPOSED SETTLEMENT IS A FAIR AND 9 REASONABLE DISTRIBUTION OF BENEFITS TO CLASS

10 MEMBERS ...... 7

11 A. The Proposed Notice Program Satisfies the Requirements

12 of Due Process ...... 8

13 B. The Settlement Provides Significant Value to Class

14 Members Through Cash Refunds and Product Vouchers ...... 9

15 C. The Settlement Includes a Commitment From Coca-Cola 16 That It Is No Longer Selling the Product and Has No 17 Plans to Reintroduce It, As Well As a Donation by Coca-

18 Cola of $300,000 in Goods To a Charitable Organization...... 12

19 IV. THE COURT SHOULD CERTIFY A CLASS FOR

20 SETTLEMENT ...... 13

21 A. Numerosity ...... 14

22 B. Commonality ...... 14

23 C. Typicality ...... 16

24 D. Fair and Adequate Representation ...... 17

25 E. Common Questions of Law and Fact Predominate Over 26 Any Questions Affecting Only Individual Members, And 27 A Class Action Is Superior To Other Methods of

28 Adjudication ...... 17 Page i PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 1. Common Questions Predominate Over Individual

2 Issues …………………………………………… ...... 18

3 2. A Class Action is the Superior Method to Settle this

4 Controversy ...... 20

5 V. THE FINAL APPROVAL HEARING SHOULD BE

6 SCHEDULED ...... 23

7 VI. CONCLUSION ...... 24 8 9 10 11 12 13 14 15

16 17 18 19 20 21 22

23 24 25 26 27 28

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1 TABLE OF AUTHORITIES 2

3 FEDERAL CASES 4 Alberto v. GMRI, Inc., 252 F.R.D. 652 (E.D. Cal. 2008) ...... 8 5 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ...... 18, 21, 22 6 Browder v. Fleetwood Enters., Inc., No. ED CV 07-01180 SGL, 7 2008 WL 4384245 (C.D. Cal. 2008) ...... 15 8 Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992) ...... 7 9 Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) ...... 8 10 Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) ...... 21 11 Ebin v. Kangadis Food, Inc., 297 F.R.D. 561 (S.D.N.Y. 2014) ...... 20 12 Ellis v. Costco Wholesale Corp., 240 F.R.D. 627 (N.D. Cal. 2007) ...... 14 13 Foos v. Ann, Inc., 2013 U.S. Dist. LEXIS 136918 14 (S.D. Cal. Sept. 14, 2013) ...... 12 15 Gallucci v. Boiron, Inc., 2012 U.S. Dist. LEXIS 157039 16 (S.D. Cal. Oct. 31, 2012) ...... 20 17 Galluci v. Gonzales, 603 F. App’x 533 (9th Cir. 2015) ...... 20 18 Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982) ...... 16, 18 19 Hanlon v. Chrysler, 150 F.3d 1011 (9th Cir. 1998)...... passim 20 In re Alexia Foods, Inc. Litig., No. 11-cv-06119-PJH 21 (N.D. Cal. Dec. 12, 2013) ...... 23 22 In re Ashanti Goldfields Secs. Litig., No. CV 00 0717(DGT), 23 2004 WL 626810 (E.D.N.Y. Mar. 30, 2004) ...... 14 24 In re Blech Sec. Litig., 187 F.R.D. 97 (S.D.N.Y. 1999) ...... 14 25 In re Checking Account Overdraft Litig., 307 F.R.D. 656 26 (S.D. Fla. 2015)...... 19 27 In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 28 2010 WL 3239460 (9th Cir. 2010) ...... 12

Page iii PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 In re NVIDIA Corp. Deriv. Litig., No. C-06-06110-SBA, 2 2008 WL 5382544 (N.D. Cal. Dec. 22, 2008) ...... 7, 8 3 In re Online DVD-Rental Antitrust Litig., 779 F.3d 934 (9th Cir. 2015)...... 11 4 In re Prudential Ins. Co. Of Am. Sales Practice Litig., 5 962 F. Supp. 450 (D.N.J. 1997) ...... 21 6 In Re Sony SXRD Rear Projection Television Class Action Litigation, 7 2008 WL 1956267 (S.D.NY. 2008) ...... 19 8 In re Wireless Facilities, Inc. Sec. Litig. II, 253 F.R.D. 607 9 (S.D. Cal. 2008) ...... 13 10 Ivie v. Kraft Foods Global, Inc., 2015 WL 183910 11 (N.D. Cal. Jan. 14, 2015) ...... 6, 10 12 Johnson v. General Mills, Inc., 2013 U.S. Dist. LEXIS 90338 13 (C.D. Cal. June 17, 2013) ...... 20 14 Johnson v. General Mills, No. 10-cv-00061, 2013 WL 3213832 15 (C.D. Cal. June 17, 2013) ...... 22 16 Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas 17 Sands, Inc., 244 F.3d 1152 (9th Cir. 2001) ...... 18 18 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) ...... 13 19 Morey v. Louis Vuitton North America, Inc., 2014 U.S. Dist. LEXIS 20 3331 (S.D. Cal. Jan. 10, 2014) ...... 12 21 Morgan v. Laborers Pension Trust Fund, 81 F.R.D. 669 22 (N.D. Cal. 1979) ...... 15 23 Negrete v. Allianz Life Ins. Co. Of North America, 238 F.R.D. 482 24 (C.D. Cal. 2006) ...... 21 25 Nelson v. Bennett, 662 F. Supp. 1324 (E.D. Cal. 1987) ...... 7 26 Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615 27 (9th Cir. 1982) ...... 7, 8 28

Page iv PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 Pom Wonderful LLC v. Coca Cola Co., 727 F. Supp. 2d 849 2 (C.D. Cal. 2010) ...... 2 3 Rodriguez v. It’s Just Lunch, Int’l, 300 F.R.D. 125 (S.D.N.Y. 2014) ...... 20 4 Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1992) ...... 16 5 Rossi v. P&G, 2013 U.S. Dist. LEXIS 143180 (D.N.J. Oct. 3, 2013) ...... 20 6 Simpson v. Fireman’s Fund Ins. Co., 231 F.R.D. 391 (N.D. Cal. 2005) ...... 16 7 Slaven v. BP Am., Inc., 190 F.R.D. 649 (C.D. Cal. 2000) ...... 14 8 United Desert Charities v. Sloan Valve Company, et al., 9 No. 12-cv-06878-SJO (C.D. Cal. Aug. 25, 2014) ...... 23 10 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996) ...... 21 11 Van Bronkhorst v. Safeco Corp., 529 F.2d 943 (9th Cir. 1976) ...... 7 12 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ...... 14 13 Weiner v. Dannon, 255 F.R.D. 658 (C.D. Cal. 2009) ...... 19, 21 14 Young v. Polo Retail, LLC, 2007 U.S. Dist. LEXIS 27269 15 (N.D. Cal. Mar. 28, 2007) ...... 12 16 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) ...... 21 17

18 STATE CASES 19 Vasquez v. Superior Court, 4 Cal. 3d 800 (1971) ...... 21 20

21 FEDERAL STATUTES 22 15 U.S.C. §§ 1051 et seq. (Lanham Act) ...... 3 23 21 U.S.C. §§ 301 et seq. (Food, Drug and Cosmetic Act (FDCA)) ...... 3, 4, 6 24 21 U.S.C. § 329(a) (Food & Drug Administration Act (FDA)) ...... 3 25 28 U.S.C. § 1332(d) Class Action Fairness Act (CAFA)) ...... 11, 12 26 28 U.S.C. § 1712(e) ...... 11 27 Fed. Prac. & Proc. § 1778 ...... 18 28 Fed. R. Civ. P. 23 ...... 2, 13

Page v PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 Fed. R. Civ. P. 23(a) ...... 13, 16 2 Fed. R. Civ. P. 23(a)(1) ...... 14 3 Fed. R. Civ. P. 23(a)(2) ...... 14, 16 4 Fed. R. Civ. P. 23(a)(3) ...... 16 5 Fed. R. Civ. P. 23(a)(4) ...... 17 6 Fed. R. Civ. P. 23(b)...... 13 7 Fed. R. Civ. P. 23(b)(3) ...... passim 8 Fed. R. Civ. P. 23(e) ...... 7 9 Fed. R. Civ. P. 26(f) ...... 3 10

11 STATE STATUTES 12 Cal. Bus. & Prof. Code §§ 17200 et seq. 13 (Unfair Comp. Law (UCL)) ...... 3, 4, 19 14 Cal. Bus. & Prof. Code §§ 17500 et seq. 15 (False Advertising Law (FAL)) ...... 3, 4, 19 16

17 SECONDARY AUTHORITIES 18 7A C.A. Wright, A.R Miller, & M. Kane, 19 Federal Practice & Procedure (2d ed. 1986) ...... 17 20 Manual for Complex Litigation § 21.63 commentary ...... 8 21 www.flavoredjuicesettlement.com ...... 9 22 www.minutemaid.com ...... 9 23 24

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Page vi PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. PRELIMINARY STATEMENT 3 By this motion, Plaintiff Niloofar Saeidian respectfully requests preliminary 4 approval of the proposed nationwide settlement of this class action with Defendant 5 The Coca-Cola Company (“Coca-Cola”). The proposed settlement, set forth in the 6 concurrently filed Settlement Agreement and Release (the “Agreement”), will 7 bring to an end a case that has been pending for over six years, and provides 8 significant relief to Settlement Class Members through one hundred percent cash 9 refunds, fully transferable vouchers for free Coca-Cola products, and assurance 10 from The Coca-Cola Company that it has stopped selling Minute Maid Enhanced 11 Pomegranate Blueberry Flavored Blend of 5 Juices (the “Product”) and has no 12 plans to reintroduce it into the market. 13 In addition to providing substantial relief to the Settlement Class, Coca-Cola 14 will pay for the costs of notice and settlement administration estimated not to 15 exceed $400,000. This includes a robust Notice Plan to be conducted by Angeion 16 Group, a well-regarded and experienced claims administrator. Coca-Cola also 17 will pay Class Counsel’s attorneys’ fee and expenses, which will not exceed 18 $700,000 (and is well below the actual combined lodestar), and a modest incentive 19 award of $5,000 to the Class Representative separate and apart from payments 20 made to Settlement Class Members. 21 The Agreement is the result of hard-fought and arm’s-length settlement 22 discussions commencing with a full-day mediation at JAMS conducted by the 23 Honorable Richard A. Kramer (Ret.), and followed by many months of further 24 negotiations, often with the further assistance of Judge Kramer. The Parties 25 negotiated the payment of attorneys’ fees and costs, over and above the class 26 relief, only after reaching agreement upon all other terms of this Agreement, with 27 the direct assistance of Judge Kramer. In sum, the Agreement provides 28 meaningful monetary relief and non-monetary relief for Settlement Class Page 1 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 Members who purchased the Product during the Settlement Class Period. 2 This case satisfies the requirements of Federal Rule of Civil Procedure 23 3 under the relaxed standards adopted by this Circuit for purposes of settlement. 4 Accordingly, Plaintiff respectfully requests that the Court enter an Order which: 5 (1) preliminarily approves the Class settlement; (2) certifies the Settlement Class 6 for the purpose of effectuating the settlement; (3) approves the form and method 7 of notice of the settlement and of the pendency of the litigation to the Settlement 8 Class and order that such notice be given; and (4) schedules a hearing for final 9 approval of the settlement. Coca-Cola supports the proposed resolution to this 10 Action, and while it admits no liability under the Agreement, Coca-Cola has no 11 objection to the entry of this Order. 12 II. SUMMARY OF THE CASE AND PROCEDURAL HISTORY 13 This case has a long and complicated procedural history, including a motion 14 for class certification, a motion for judgment on the pleadings, three motions for 15 summary judgment, a motion for reconsideration, extensive discovery, a stay 16 while a related case proceeded to the Supreme Court, extensive settlement 17 negotiations, and finally, this Agreement. 18 A. Procedural History 19 Plaintiff filed her original class action complaint on August 28, 2009, six 20 and a half years ago. Plaintiff’s claims were substantially similar to claims made 21 by Pom Wonderful, in Pom Wonderful LLC v. Coca Cola Co., 727 F. Supp. 2d 22 849, 871 (C.D. Cal. 2010) (Otero, J.), aff’d in part, vacated in part, remanded, 679 23 F.3d 1170 (9th Cir. 2012), rev’d, 134 S. Ct. 2228 (2014) (the “Pom Case”). 24 In the complaint, Plaintiff alleged that the labeling, packaging, advertising 25 and marketing methods used by Coca-Cola were false and misleading because 26 they created the impression that the Product primarily contained pomegranate and 27 blueberry juices, and that Coca-Cola had sought to capitalize on consumers’ desire 28 for the healthful and nutritional benefits provided by pomegranate and blueberry Page 2 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 juice. In truth, the product contained very little pomegranate or blueberry juice 2 and was actually composed of mostly cheap filler juices, such as apple and grape 3 juices. As a result, Plaintiff alleged that she and other members of the class 4 overpaid for the Product, in that they did not get the high quality juices they 5 believed they were purchasing. Plaintiff asserted claims under California Business 6 & Professions Code §§17200, et seq. (“UCL”) and California Business & 7 Professions Code §§17500, et seq. (“FAL”). 8 Defendant answered Plaintiff’s Complaint in October 2009, and the Parties 9 submitted a Joint Discovery Plan pursuant to Fed. R. Civ. P. 26(f) in November 10 2009, and began discovery from both sides. In March 2010, Plaintiff moved for 11 class certification. Defendant opposed class certification, and filed a concurrent 12 motion for judgment on the pleadings in April 2010. Both Parties thereafter 13 moved for summary judgment. All four dispositive motions were fully briefed 14 when, on October 8, 2010, less than two months before trial was scheduled to 15 begin, this Court stayed this case due to developments in the Pom Case. 16 Specifically, this Court held that Pom Wonderful’s state-law claims failed 17 for lack of standing, and that Pom Wonderful’s federal claim under the Lanham 18 Act was precluded by the Food Drug and Cosmetic Act (the “FDCA”) and FDA 19 regulations governing the labeling for flavored juice blends. Pom Wonderful 20 appealed those rulings, and the Court determined that, because the issues on 21 appeal in the Pom Case overlapped with issues in this Action, a stay would 22 promote judicial economy. The Court then struck the four fully briefed dispositive 23 motions in this Action as moot, without prejudice to the motions being refiled at a 24 later date. 25 The Pom Case followed a lengthy appellate process. With respect to Pom’s 26 state-law claims, the Ninth Circuit vacated this Court’s standing ruling and 27 remanded the state-law claims to this Court for further proceedings. This Court 28 then held that Pom’s state-law claims were expressly preempted by the FDCA and Page 3 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 barred by California’s safe harbor doctrine, and Pom appealed that ruling. 2 Meanwhile, with respect to Pom’s federal claim, the Ninth Circuit affirmed this 3 Court’s ruling that Pom’s federal claim was precluded by the FDCA, but the U.S. 4 Supreme Court reversed that decision on June 12, 2014. Pom at that point 5 voluntarily dismissed its appeal from the dismissal of its state-law claims, which 6 left this Court’s preemption and safe-harbor rulings as to Pom’s state-law claims 7 undisturbed. 8 On the heels of the Supreme Court decision, in June 2014, a putative 9 consumer class action based on similar allegations to those asserted in this Action 10 was filed in Florida entitled Stansfield v. The Minute Maid Company, Case No. 11 14-cv-290 (N.D. Fla.). Thereafter, on October 10, 2014, Coca-Cola filed a MDL 12 Motion to Transfer the Stansfield action requesting that Panel on Multidistrict 13 Litigation (the “Panel”) coordinate and/or consolidate the Stansfield action with 14 this Action in the Central District pending before this Court. Plaintiff Saeidian 15 opposed the MDL transfer motion. On February 5, 2015, following oral argument 16 in Florida, the Panel denied the MDL transfer motion. The Florida district court 17 subsequently dismissed the Stansfield action, finding that state-law claims 18 challenging the Product’s name and label were expressly preempted. 19 The Court lifted the stay in this Action on February 23, 2015. On March 16, 20 2015, Plaintiff filed a First Amended Complaint and on April 6, 2015, Coca-Cola 21 filed a renewed motion for summary judgment, asserting that Plaintiff’s UCL and 22 FAL claims are preempted by the FDCA and barred by California’s safe harbor 23 doctrine. This Court denied Defendant’s motion on July 6, 2015. Defendant 24 moved for reconsideration of that decision on August 26, 2015, which this Court 25 denied on September 15, 2015. While this motion was pending, the Parties 26 engaged in a day-long mediation before the Hon. Judge Kramer (Ret.) on 27 September 9, 2015. The Parties did not reach an agreement that day, but resumed 28 extensive settlement discussions for the remainder of the year with Judge Page 4 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 Kramer’s assistance. The Parties reached a tentative agreement regarding the 2 terms of a proposed settlement in December 2015. 3 B. Counsel’s Efforts in Achieving this Settlement 4 Class Counsel has dedicated significant time and resources to this case over 5 the course of the past six years. Class Counsel prepared the initial complaint, 6 amended complaint, memoranda of law in support of class certification; a 7 memorandum of law in opposition to Defendant’s motion for judgment on the 8 pleadings; memoranda of law in support of Plaintiff’s motion for summary 9 judgment and in opposition to Defendant’s two motions for summary judgment; 10 and a memorandum of law in opposition to Defendant’s motion for 11 reconsideration of its renewed motion for summary judgment. In connection with 12 Plaintiff’s motion for class certification and summary judgment, Plaintiff retained 13 a consumer survey expert, Dr. Michael Belch, who conducted an exhaustive 14 consumer survey regarding the advertising of the Product at considerable expense 15 to Class Counsel. 16 In addition, Class Counsel engaged in an extensive period of discovery. 17 Class Counsel served detailed class and merits discovery requests, including one 18 set of special interrogatories, one set of requests for admission, and two sets of 19 document requests, resulting in the production of nearly 200,000 pages of 20 documents which Class Counsel reviewed. Throughout discovery, Class Counsel 21 participated in hours of meet-and-confers with Defendant’s counsel. Class 22 Counsel also took three depositions of Defendant’s employees, and served seven 23 subpoenas on third party advertising and marketing firms that did work for Coca- 24 Cola. Class Counsel also prepared responses to one set of special interrogatories 25 and requests for admission, two sets of requests for production served by Coca- 26 Cola, and prepared for and attended Plaintiff’s all-day deposition. Class Counsel 27 has also reviewed all the deposition transcripts and expert reports in the Pom Case. 28 This case has required significant resources by Class Counsel, in extensive Page 5 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 time and money required to litigate this case against a sophisticated and well- 2 represented Defendant. As a result of these efforts, Class Counsel is fully 3 informed of the merits of this Action and the proposed settlement. 4 C. Uncertainty Regarding the Outcome 5 Plaintiff is confident in the merits of her claims, but as with any litigation, 6 the outcome of this case is far from certain. Many issues remain to be determined, 7 and there is no guarantee that a trial would result in a liability finding against 8 Defendant. Nor is it assured that recovery would be awarded to Plaintiff or Class 9 Members. If the Parties did not reach a settlement, Defendant would have 10 undoubtedly asserted it had no liability whatsoever to the Class and, that even in 11 the event liability were established, it was uncertain whether Class Members could 12 recover damages in the full amount of the purchase price of the Products, as 13 permitted under the Settlement. See Ivie v. Kraft Foods Global, Inc., 2015 WL 14 183910, at *2 (N.D. Cal. Jan. 14, 2015) (advocating for the price premium model 15 rather than awarding the full purchase price of the misbranded products). 16 Moreover, even if Plaintiff were to prevail at class certification and trial, 17 any relief to Plaintiff and Class Members could be substantially delayed, and 18 perhaps overturned, on appeal. Defendant has maintained throughout this case 19 that Plaintiff’s claims are preempted by the FDCA and barred by California’s safe 20 harbor ruling. While this Court rejected Defendant’s motion for summary 21 judgment on those grounds, Defendant has the right to appeal that determination 22 after entry of a final judgment, and it is possible that the Ninth Circuit could reach 23 a different conclusion, especially when two courts—the Stansfield court and this 24 Court in the Pom Case—previously held that similar claims are preempted. As 25 such, in the absence of the settlement, Plaintiff would have faced significant 26 litigation risks and no substantial prospect of obtaining a better result on behalf of 27 the Class Members. Therefore, this settlement provides complete relief to the 28 Class without the delay and risk of further litigation. Page 6 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 III. THE PROPOSED SETTLEMENT IS A FAIR AND REASONABLE 2 DISTRIBUTION OF BENEFITS TO CLASS MEMBERS 3 Federal Rule of Civil Procedure 23(e) requires judicial approval for any 4 compromise of claims brought on a class basis. Approval of a proposed 5 settlement is a matter within the discretion of the district court. See, e.g., Class 6 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). This discretion 7 should be exercised in the context of a public policy which strongly favors the 8 pretrial settlement of class action lawsuits. Id.; Officers for Justice v. Civil Serv. 9 Comm’n, 688 F.2d 615, 625 (9th Cir. 1982) (“Voluntary conciliation and 10 settlement are the preferred means of dispute resolution . . . .”); Van Bronkhorst v. 11 Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976); In re NVIDIA Corp. Deriv. Litig., 12 No. C-06-06110-SBA, 2008 WL 5382544, at *2 (N.D. Cal. Dec. 22, 2008). As 13 the Court in Nelson v. Bennett explained: 14 [T]he suggestion that there is no federal policy to encourage 15 settlement truly borders on the absurd. Not only have federal 16 courts long recognized the public policy in favor of the 17 settlement of complex securities actions, but the Ninth Circuit 18 in particular has stated: “It hardly seems necessary to point out 19 that there is an overriding public interest in settling and 20 quieting litigation. This is particularly true in class action suits 21 . . . which frequently present serious problems of management 22 and expense.” Especially in these days of burgeoning federal 23 litigation, the promotion of settlement is as a practical matter, 24 an absolute necessity. 25 662 F. Supp. 1324, 1334 (E.D. Cal. 1987) (internal citations omitted) (quoting Van 26 Bronkhorst, 529 F.2d at 950). 27 Beyond this strong judicial policy favoring settlements, “the Court need 28 only conclude that the settlement of the claims on the agreed upon terms is within Page 7 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 the range of possible approval.” In re NVIDIA Corp., 2008 WL 5382544, at *2. 2 In making this determination, the Court evaluates whether the settlement is “fair, 3 reasonable, and adequate,” and that it is “not the product of fraud or overreaching 4 by, or collusion between, the negotiating parties.” Id. (quoting Officers for Justice 5 v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir.1982). The court need not 6 “engage in analysis as rigorous as is appropriate for final approval.” Manual for 7 Complex Litigation, § 21.63 commentary, p. 489; see also Alberto v. GMRI, Inc., 8 252 F.R.D. 652, 665 (E.D. Cal. 2008) (stating that the court need do no more than 9 a “cursory review of the terms of the parties’ settlement for the purpose of 10 resolving any glaring deficiencies”). 11 An evaluation of the costs and benefits of settlement must be tempered by a 12 recognition that any compromise involves concessions of the part of all of the 13 settling parties. In re NVIDIA Corp., 2008 WL 5382544, at *3. Indeed, “the very 14 essence of a settlement is compromise, a yielding of absolutes and an abandoning 15 of higher hopes.” Id. (quoting Officers for Justice, 688 F.2d at 624) (internal 16 quotation marks omitted). As the Fifth Circuit noted in Cotton v. Hinton, 559 F.2d 17 1326, 1330 (5th Cir. 1977): “The trial court should not make a proponent of a 18 proposed settlement justify each term of settlement against a hypothetical or 19 speculative measure of what concessions might have been gained” (internal 20 quotation marks omitted). 21 Applying the foregoing standards in this case, the proposed settlement 22 between Plaintiff and Coca-Cola should be preliminarily approved. 23 A. The Proposed Notice Program Satisfies the Requirements of Due 24 Process 25 Defendant has retained Angeion Group, which has developed a robust 26 notice program that reaches the maximum number of Settlement Class Members 27 practicable. As set forth in the Declaration of Steven Weisbrot, attached as 28 Exhibit A to the Settlement Agreement, the Notice Plan will consist of a Page 8 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 combination of online advertisements and an advertisement in People magazine. 2 This combined plan will reach approximately 70.2% of Class Members, which 3 satisfies due process. See also Agreement, §§6.6-6.7. 4 Class Members will be directed to a Settlement Website, 5 www.flavoredjuicesettlement.com, where claimants can easily locate all court 6 documents and information regarding the settlement. Settlement class members 7 will also be able to submit claims through an easy-to-use online submission 8 program on the Settlement Website. Angeion will also establish a toll-free 9 telephone support program, which will provide Settlement Class Members with 10 general information about the settlement, answers to frequently asked questions, 11 and the opportunity to request more information and to receive a claim form by 12 mail, which they can subsequently submit by mail. In addition, Coca-Cola will 13 place a direct link on the Minute Maid website (www.minutemaid.com) that will 14 connect directly to the Settlement Website, allowing users who visit the Minute 15 Maid website to locate information about the settlement and submit claims online. 16 Agreement, §§6.3, 6.8, 6.9. 17 This Notice Plan satisfies the requirements for due process, provides class 18 members with readily available information regarding the settlement, and provides 19 a straightforward, easy method for submitting claims online. 20 B. The Settlement Provides Significant Value to Class Members 21 Through Cash Refunds and Product Vouchers 22 Settlement Class Members can file a claim for full cash refunds pertaining 23 to their purchases of the Product during the 90-day Class Period. Settlement Class 24 Members who provide a Proof of Purchase, such as a sales receipt, print out from 25 a loyalty program, or other relevant documentation will receive full cash refunds 26 for all purchases so documented. To obtain the cash payment, Class Members 27 need only fill out and submit a simple, straight-forward Claim Form where the 28 claimant provides his or her name, address, telephone number, and the total Page 9 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 amount of their actual purchase(s) of the Product during the Class Period. There is 2 no cap on the total amount of money that will be refunded to those Settlement 3 Class Members who provide Proof of Purchase. The Claim Forms can be 4 submitted online via the Settlement Website at www.flavoredjuicesettlement.com 5 or downloaded and submitted by U.S. Mail. Settlement Class Members will also 6 be able to request a copy of the Claim Form by calling a toll-free number operated 7 by the Settlement Administrator or writing the Settlement Administrator. 8 Agreement, §§4.1, 4.3. This relief is arguably more than claimants would have 9 been able to obtain at trial, because it refunds the full purchase price of the 10 Products, rather than limiting damages to the price premium attributable to 11 Defendant’s alleged misrepresentations. See Ivie, 2015 WL 183910, at *2. 12 At the Settlement Class Member’s election, Coca-Cola will provide Product 13 Replacement Vouchers (the “Vouchers”) to Class Members who purchased the 14 Product, but do not provide a Proof of Purchase. Agreement, §4.2. The Vouchers 15 are redeemable for a free product replacement(s) of an eligible product. Eligible 16 Coca-Cola products include products sold under the Minute Maid, Simply, 17 Smartwater, Vitaminwater, Vitaminwater Zero, and Honest Tea brands. Class 18 Members’ claims will be honored on a first-come, first served basis until the 19 number of Vouchers claimed reaches 200,000. Agreement, §§4.2.1, 4.2.3, 4.2.4. 20 In order to receive a Voucher(s), Settlement Class Members need only 21 submit a short Claim Form where the claimant provides his or her name, address, 22 telephone number, the number of Products (any size) purchased during the Class 23 Period, and attesting that they purchased the Product(s). Agreement, §§4.2.2. 24 This option for recovery is significant because it ensures that Class Members can 25 participate in a manner that is convenient and does not require them to maintain or 26 submit proof of past purchases. 27 For each bottle of the Product purchased, Class Members will receive one 28 Voucher, with a maximum recovery of two Vouchers. The Vouchers in this case Page 10 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 may be used for the purchase of any product under the Minute Maid, Simply, 2 Smartwater, Vitaminwater, Vitaminwater Zero, and Honest Tea brands, and have a 3 maximum value of $4.99, which is intended to cover the full purchase price of the 4 product. Class Members may submit one Claim Form per household. Absolutely 5 no cash is required to redeem a Voucher for an eligible product as the Vouchers 6 cover the entire purchase price of the eligible product. The maximum value of a 7 single Voucher is $4.99, or $9.98 for a total of two (2) Vouchers. Vouchers are 8 valid for eighteen (18) months and are fully transferable. Agreement, §§4.2.3, 9 4.2.5-4.2.8. 10 Courts have regularly held that vouchers like those to be distributed to Class 11 Members in this case constitute valuable compensation. Moreover, in a recent 12 decision, the Ninth Circuit determined that vouchers do not constitute a “coupon 13 settlement” within the Class Action Fairness Act (“CAFA”) and are not subject to 14 the heightened scrutiny required under 28 U.S.C. § 1712(e). As explained by the 15 Ninth Circuit, in CAFA’s findings and purposes, “Congress emphasized its 16 concern about settlements when class members receive little or no value” in cases 17 in which “class members receive nothing more than promotional coupons to 18 purchase more products from the defendants” and are required to “hand over more 19 of their own money before they can take advantage of the coupon, and they often 20 are only valid for select products or services.” In re Online DVD-Rental Antitrust 21 Litig., 779 F.3d 934, 950–51 (9th Cir. 2015) (citing S. Rep. No. 109-14 at 15 22 (2005)). The Ninth Circuit contrasted those concerns with the settlement before it, 23 which gave class members $12 gift cards to spend on any item sold at Walmart. 24 Id. at 951. The gift cards could be used on multiple products, were “freely 25 transferrable,” and “did not require consumers to spend their own money,” which 26 the court found to be appropriate relief to the class. Id. Accordingly, the Court 27 should follow the example of Online DVD and find that the Vouchers, like the gift 28 cards in Online DVD, are not “coupons” within the meaning of CAFA. Page 11 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 District courts in the Ninth Circuit have consistently reached the same 2 conclusion in class action settlements that offer gift cards or vouchers. See Morey 3 v. Louis Vuitton North America, Inc., 2014 U.S. Dist. LEXIS 3331 (S.D. Cal. Jan. 4 10, 2014) (emphasizing that coupons and vouchers are “not equivalent” and 5 reasoning that a “voucher is more like a gift card or cash where there is an actual 6 cash value, is freely transferable, and does not require the class members to spend 7 any additional money in order to realize the benefits of the settlement”); Foos v. 8 Ann, Inc., 2013 U.S. Dist. LEXIS 136918 (S.D. Cal. Sept. 14, 2013) (holding that 9 $15 gift cards to Ann Taylor stores were not “coupons” under CAFA because 10 class members “will have the opportunity to receive free merchandise, as opposed 11 to merely discounted merchandise”) (emphasis in original); Young v. Polo Retail, 12 LLC, 2007 U.S. Dist. LEXIS 27269 (N.D. Cal. Mar. 28, 2007) (approving 13 settlement that distributed gift cards that were fully transferable; “this enables 14 class members to obtain cash – something all class members find useful”). 15 C. The Settlement Includes a Commitment From Coca-Cola That It 16 Is No Longer Selling the Product and Has No Plans to 17 Reintroduce It, As Well As a Donation by Coca-Cola of $300,000 18 in Goods To a Charitable Organization. 19 In addition to distributing an unlimited amount of cash refunds to class 20 members with proof of purchase, 200,000 Vouchers worth $4.99 each, and 21 separately covering the costs of notice and administration of this lawsuit 22 (approximately $400,000), attorneys’ fees and costs (up to $700,000), and an 23 incentive payment ($5,000)1, Coca-Cola has also affirmed that, while this case was 24 pending, it stopped selling the Product, and that it has no plans to reintroduce it in 25 26 1 Pursuant to In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 2010 27 WL 3239460 (9th Cir. 2010), Class Counsel will file an application to the Court for a fee and expense award and incentive award no later than 14 days in advance 28 of the deadline for filing objections. Page 12 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 the United States. This relief provides additional value to Class Members, who 2 will not be subject to the labeling and advertising that Plaintiff alleged was false 3 and misleading. Coca-Cola has also agreed to donate $300,000 in goods to 4 Feeding America, a charitable organization, in connection with this settlement. 5 IV. THE COURT SHOULD CERTIFY A CLASS FOR SETTLEMENT 6 “Parties may settle a class action before class certification and stipulate that 7 a defined class be conditionally certified for settlement purposes.” In re Wireless 8 Facilities, Inc. Sec. Litig. II, 253 F.R.D. 607, 610 (S.D. Cal. 2008) (citing Molski 9 v. Gleich, 318 F.3d 937 (9th Cir. 2003)). For the purpose of conditionally 10 certifying the class for settlement purposes, the Court evaluates the relevant 11 factors under Rule 23: 12 (1) the class is so numerous that joinder of all members is impracticable; 13 (2) there are questions of law or fact common to the class; 14 (3) the claims or defenses of the representative parties are typical of the 15 claims or defenses of the class; and 16 (4) the representative parties will fairly and adequately protect the 17 interests of the class. 18 Fed. R. Civ. Pro. 23(a); see also In re Wireless Facilities, Inc., 253 F.R.D. at 610. 19 In addition, Plaintiff must establish that one of the factors under Rule 23(b) 20 is met: (1) there is a risk of inconsistent or unfair adjudication if parties proceed 21 with separate actions; (2) the defendant acted or refused to act on grounds 22 generally applicable to the class, making injunctive or declaratory relief 23 appropriate to the class as a whole; or (3) common questions of law or fact 24 predominate and class resolution is superior to other available methods for fair and 25 efficient adjudication of the controversy. Fed. R. Civ. Pro. 23(b). 26 Here, the Settlement Class satisfies the Rule 23(a) elements of numerosity, 27 commonality, typicality, and adequacy of representation, and additionally satisfies 28 Rule 23(b)(3), as set forth in full below. Page 13 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 A. Numerosity 2 To satisfy numerosity, Rule 23(a)(1) requires that the proposed class be “so 3 numerous that joinder of all members is impracticable.” Fed. R. Civ. Pro. 4 23(a)(1). “Impracticability means difficulty or inconvenience of joinder; the rule 5 does not require impossibility of joinder.” In re Ashanti Goldfields Secs. Litig., 6 No. CV 00 0717(DGT), 2004 WL 626810, at *11 (E.D.N.Y. Mar. 30, 2004) 7 (quoting In re Blech Sec. Litig., 187 F.R.D. 97, 103 (S.D.N.Y. 1999)). Plaintiff 8 need not allege the exact number or identity of class members to satisfy the 9 numerosity requirement. See Ellis v. Costco Wholesale Corp., 240 F.R.D. 627, 10 637 (N.D. Cal. 2007). “As a general matter, courts have found that numerosity is 11 satisfied when the class size exceeds 40 members.” Slaven v. BP Am., Inc., 190 12 F.R.D. 649, 654 (C.D. Cal. 2000). 13 Here, the numerosity requirement is clearly satisfied. Among other things, 14 Defendant is one of the largest beverage manufacturers in the United States. The 15 Settlement Class is comprised of thousands of consumers who purchased the Juice 16 Product, spread geographically throughout the United States. This overwhelming 17 number of class members demonstrates that joinder is both difficult and 18 impracticable. Accordingly, Rule 23(a)(1)’s numerosity requirement is readily 19 satisfied. 20 B. Commonality 21 Next, Rule 23(a)(2) requires a showing of “questions of law or fact common 22 to the Class.” Fed. R. Civ. Pro. 23(a)(2). “Commonality requires the plaintiff to 23 demonstrate that the class members have suffered the same injury.” Wal-Mart 24 Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). This means that the class 25 members’ claims “must depend on a common contention . . . of such a nature that 26 it is capable of classwide resolution – which means that determination of its truth 27 or falsity will resolve an issue that it is central to the validity of each one of the 28 claims in one stroke.” Id. “What matters to class certification . . . is not the Page 14 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 raising of common ‘questions’ – even in droves – but, rather the capacity of a 2 classwide proceeding to generate common answers apt to drive the resolution of 3 the litigation.” Id. As the Ninth Circuit has noted, “All questions of fact and law 4 need not be common to satisfy the rule. The existence of shared legal issues with 5 divergent factual predicates is sufficient, as is a common core of salient facts 6 coupled with disparate legal remedies within the class.” Hanlon v. Chrysler, 150 7 F.3d 1011, 1019 (9th Cir. 1998). 8 Here, there are ample issues of both fact and law that are common to the 9 members of the Class. The common and unifying allegations in the action are, 10 inter alia, whether Defendant made false and/or misleading misrepresentations 11 and/or omissions on the label of the product packaging and advertising with 12 respect to the actual pomegranate and blueberry juice content of the Product and 13 whether Defendant’s representations and/or omissions have misled or are likely to 14 mislead the Class into believing that the Product contains more pomegranate and 15 blueberry juice than it actually does. Commonality is satisfied here, for settlement 16 purposes, by the existence of these common factual issues. Courts have 17 consistently certified classes in cases involving a course of conduct arising out of 18 a common nucleus of operative facts. See Browder v. Fleetwood Enters., Inc., No. 19 ED CV 07-01180 SGL, 2008 WL 4384245, at *6 (C.D. Cal. 2008) (holding that 20 commonality existed because defendant was alleged to have given the same 21 defective instruction to all class members). 22 Moreover, Plaintiff’s claims are brought under legal theories common to the 23 class as a whole. Alleging a common legal theory is alone enough to establish 24 commonality. See Morgan v. Laborers Pension Trust Fund, 81 F.R.D. 669, 676 25 (N.D. Cal. 1979). Here, all of the legal theories and causes of action, particularly 26 those based on common law (breach of express warranty, negligent 27 misrepresentation, and unjust enrichment) asserted by Plaintiff are common to all 28 Settlement Class Members. Consumers who purchased the Product can establish Page 15 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 their claims via uniform and common proof, namely, that Plaintiff and the Class 2 did not receive any disclosure on the product packaging that the Product contains 3 very little pomegranate or blueberry juice. Because this case challenges Coca- 4 Cola’s labeling and advertising that contained the same representations and/or 5 omissions, this is sufficient to demonstrate commonality under Rule 23(a)(2). 6 Thus, the determination of whether the Defendant’s labeling and advertising is or 7 is not misleading will resolve a central issue on a classwide basis in “one stroke.” 8 C. Typicality 9 The typicality requirement of Rule 23(a)(3) is met if the claims of the 10 named plaintiff are typical of the class, though “they need not be substantially 11 identical.” Hanlon, 150 F. 3d at 1020. Rather, factual differences may exist 12 between the class and the named plaintiff, provided the claims arise from the same 13 events or course of conduct and are based upon the same legal theories. Id. The 14 typicality and commonality elements under Rule 23(a) “tend to merge” because 15 both assess whether the claims of the class and the named plaintiffs are 16 sufficiently interrelated to make class treatment appropriate. Gen. Tel. Co. of 17 Southwest v. Falcon, 457 U.S. 147, 157 n. 13 (1982). Moreover, the focus is “‘on 18 the defendants’ conduct and plaintiff’s legal theory,’ not the injury caused to the 19 plaintiff.” Simpson v. Fireman’s Fund Ins. Co., 231 F.R.D. 391, 396 (N.D. Cal. 20 2005) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). 21 Here, Plaintiff’s claims arise from the same factual matrix and are based on 22 the same legal theory as the claims of the absent class members. The claims of 23 Plaintiff and the other Class Members all arise from the “same course of 24 events” - that is, Coca-Cola’s identical representations and/or omissions on the 25 product label concerning the pomegranate and blueberry juice content of the 26 product - and each Class Member would have been required to make the same 27 legal arguments to prove Coca-Cola’s liability. Plaintiff and the Settlement Class 28 allege they have suffered or are likely to suffer the same type of injury as a result Page 16 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 of purchasing the Product. Plaintiff’s claims are thus typical of the claims of the 2 members of the Class. 3 D. Fair and Adequate Representation 4 Rule 23(a)(4) requires the court to ensure that “the representative parties 5 will fairly and adequately protect the interests of the class.” This factor requires 6 (1) that the proposed representative Plaintiff does not have conflicts of interest 7 with the proposed class, and (2) that Plaintiff is represented by qualified and 8 competent counsel. Hanlon, 150 F. 3d at 1020. 9 Under this standard, Plaintiff will fairly and adequately protect the interests 10 of the class. Plaintiff’s interests are fully aligned with the Class Members, and no 11 conflict of interest exists. The adequacy of Plaintiff and her counsel is also 12 evidenced by the settlement negotiated with Defendant, which provides for 13 significant relief to the Settlement Class. Further, Plaintiff is represented by 14 competent counsel who have outstanding records of accomplishments in the 15 prosecution of complex consumer class actions in both state and federal courts. 16 See Declaration of Zev B. Zysman In Support of Motion for Preliminary 17 Approval, ¶¶12-13, and Exhibit A. 18 E. Common Questions of Law and Fact Predominate Over Any 19 Questions Affecting Only Individual Members, And A Class 20 Action Is Superior To Other Methods of Adjudication 21 Plaintiffs seek certification of a Settlement Class under Rule 23(b)(3), in 22 that “the actual interests of the parties can be served best by settling their 23 difference in a single action.” Hanlon, 150 F.3d at 1022 (quoting 7A C.A. Wright, 24 A.R Miller, & M. Kane, Federal Practice & Procedure §1777 (2d ed. 1986). There 25 are two fundamental conditions to certification under Rule 23(b)(3): (1) questions 26 of law or fact common to the members of the class predominate over any 27 questions affecting only individual members; and (2) a class action is superior to 28 other available methods for the fair and efficient adjudication of the controversy. Page 17 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 Fed. R Civ. P. 23(b)(3); Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. 2 Las Vegas Sands, Inc., 244 F.3d 1152, 1162-63 (9th Cir. 2001); Hanlon, 150 F.3d 3 at 1022. Rule 23(b)(3) encompasses those cases “in which a class action would 4 achieve economies of time, effort, and expense, and promote . . . uniformity of 5 decision as to persons similarly situated, without sacrificing procedural fairness or 6 bringing about other undesirable results.” Amchem Prods., Inc. v. Windsor, 521 7 U.S. 591, 615 (1997) (citations omitted and alterations in original). Moreover, 8 when assessing predominance and superiority, the Court may consider that the 9 class will be certified for settlement purposes only. Id. at 618-620. Accordingly, 10 considerations of potential management problems for trial need not be considered 11 in the settlement context. Id. at 621. 12 1. Common Questions Predominate Over Individual Issues 13 The Rule 23 (b)(3) predominance inquiry “tests whether proposed classes 14 are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 15 U.S. at 623. “Predominance is a test readily met in certain cases alleging 16 consumer . . . fraud . . .” Id. “When common questions present a significant aspect 17 of the case and they can be resolved for all members of the class in a single 18 adjudication, there is clear justification for handling the dispute on a representative 19 rather than on an individual basis.” Fed. Prac. & Proc., § 1778; Gen. Tel. Co. of 20 Southwest v. Falcon, 457 U.S. 147, 157 n.l3 (1982) (noting that commonality and 21 typicality tend to merge). 22 The predominance requirement is satisfied here. Plaintiff’s and Class 23 Members’ claims are based on the identical misrepresentations and/or omissions 24 concerning the actual pomegranate and blueberry juice content that Coca-Cola 25 made on the label of every single bottle it sold to the Class Members. There were 26 no variances in their content from one consumer to the next. All purchasers were 27 uniformly exposed to the identical labeling. As such, Plaintiff alleges that Class 28 Members are entitled to the same legal remedies based on the same alleged Page 18 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 wrongdoing. The central issues for every Class Member are whether Defendant 2 engaged in unlawful, unfair, misleading, or deceptive business acts or practices in 3 violation of the UCL and FAL, whether Defendant is liable for negligent 4 misrepresentation and breach of express warranty, whether Defendant has been 5 unjustly enriched, and whether Plaintiff and Class Members are entitled to any 6 damages, restitution, and/or other monetary relief, and if so, the amount and nature 7 of such relief. 8 Under these circumstances, there is sufficient basis to find that the 9 requirements of Rule 23(b)(3) are present. See Weiner v. Dannon, 255 F.R.D. 10 658, 669 (C.D. Cal. 2009) (predominance satisfied when alleged misrepresentation 11 of product’s health benefits were displayed on every package); Hanlon, 150 F.3d 12 at 1022-23 (“[G]iven the limited focus of the action, the shared factual predicate 13 and the reasonably inconsequential differences in state law remedies, the proposed 14 class was sufficiently cohesive to survive Rule 23(b)(3) scrutiny.”); In Re Sony 15 SXRD Rear Projection Television Class Action Litigation, 2008 WL 1956267 16 (S.D.NY. 2008) (class treatment in the context of nationwide settlement-only is 17 proper because allegations regarding Sony’s violations of, inter alia, the various 18 states express and implied warranties subject to the same generalized proof). 19 Furthermore, the Second Amended Complaint adds claims for common law 20 causes of action, which ensure that common questions of law predominate over 21 the nationwide class. Courts routinely certify nationwide classes in false 22 advertising cases, particularly in cases that bring claims under the common law. 23 See In re Checking Account Overdraft Litig., 307 F.R.D. 656, 675 (S.D. Fla. 2015) 24 (granting class certification in nationwide suit alleging unjust enrichment and 25 concluding that, where defendant allegedly misled class members through uniform 26 misrepresentations, “minor variations in the elements of unjust enrichment under 27 the laws of the various states” do not defeat class certification) (citation, quotation 28 marks, and ellipses omitted); Rodriguez v. It’s Just Lunch, Int’l, 300 F.R.D. 125, Page 19 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 135–36 (S.D.N.Y. 2014) (certifying nationwide class for common law fraud 2 claims where plaintiffs demonstrated materially uniform misrepresentations to 3 class members); Ebin v. Kangadis Food, Inc., 297 F.R.D. 561 (S.D.N.Y. 2014) 4 (certifying nationwide class of purchasers of oil allegedly mislabeled as “100% 5 olive oil”); Rossi v. P&G, 2013 U.S. Dist. LEXIS 143180, at *1 (D.N.J. Oct. 3, 6 2013) (certifying and approving settlement in consumer class action over allegedly 7 false labeling for Crest Sensitivity toothpaste); Johnson v. General Mills, Inc., 8 2013 U.S. Dist. LEXIS 90338, at *1 (C.D. Cal. June 17, 2013) (granting final 9 approval to nationwide settlement in suit over “digestive health” claims in yogurt); 10 Gallucci v. Boiron, Inc., 2012 U.S. Dist. LEXIS 157039, at *1 (S.D. Cal. Oct. 31, 11 2012), aff’d sub nom. Galluci v. Gonzales, 603 F. App’x 533 (9th Cir. 2015) 12 (approving nationwide class settlement in suit over labeling and advertising of 13 homeopathic product). The predominance requirement is clearly satisfied in this 14 case, as the Second Amended Complaint asserts claims for breach of express 15 warranty, unjust enrichment, and negligent misrepresentation on behalf of a 16 nationwide class of consumers. Variations in the elements of each cause of action 17 in each state (if any) do not defeat the undeniable fact that common issues 18 predominate over any individual variation in class members’ claims in light of the 19 uniform misrepresentations and omissions made by Coca-Cola in its labeling and 20 advertising of the Product. 21 2. A Class Action is the Superior Method to Settle this 22 Controversy 23 Rule 23(b)(3) sets forth the relevant factors for determining whether a class 24 action is superior to other available methods for the fair and efficient adjudication 25 of the controversy. These factors include: (i) the class members’ interest in 26 individually controlling separate actions; (ii) the extent and nature of any litigation 27 concerning the controversy already begun by or against class members; (iii) the 28 desirability or undesirability of concentrating the litigation of the claims in the Page 20 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 particular forum; and (iv) the likely difficulties in managing a class action. Fed. 2 R. Civ. P. 23(b)(3); see Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 3 1190-92 (9th Cir. 2001). “[C]onsideration of these factors requires the court to 4 focus on the efficiency and economy elements of the class action so that cases 5 allowed under subdivision (b)(3) are those that can be adjudicated most profitably 6 on a representative basis.” Zinser, 253 F.3d at 1190 (citations omitted); see also 7 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996) (finding the 8 superiority requirement may be satisfied where granting class certification “will 9 reduce litigation costs and promote greater efficiency”). Application of the Rule 10 23(b)(3) “superiority” factors shows that a class action is the preferred procedure 11 for this Settlement. 12 First, the amount of damage to which an individual class member would be 13 entitled is not large. Zinser, 253 F.3d at 1191; Wiener, 255 F.R.D. at 671. It is 14 neither economically feasible, nor judicially efficient, for the tens of thousands of 15 Class Members to pursue their claims against Defendant on an individual basis. 16 Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 338-39 (1980); Hanlon, 150 17 F.3d at 1023; Vasquez v. Superior Court, 4 Cal. 3d 800, 808 (1971). 18 Second, except for this Action, Plaintiff is unaware of any other actions by 19 Class Members against Defendant asserting similar claims as here. 20 Third, certification would be superior because concentrating this litigation 21 in one forum would not only prevent the risk of inconsistent outcomes but would 22 also “reduce litigation costs and promote greater efficiency.” Negrete v. Allianz 23 Life Ins. Co. Of North America, 238 F.R.D. 482, 493 (C.D. Cal. 2006). 24 Finally, the question here is “whether reasonably foreseeable difficulties 25 render some other method of adjudication superior to class certification.” In re 26 Prudential Ins. Co. Of Am. Sales Practice Litig., 962 F. Supp. 450, 525 (D.N.J. 27 1997). Since this Action will now settle, the Court need not consider issues of 28 manageability relating to the trial. As the Supreme Court recognized in Amchem, Page 21 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 for certification of a settlement class “predominance is a test readily met in certain 2 cases alleging consumer or securities fraud or violations of the antitrust laws.” Id. 3 at 625. The Court explained that predominance “tests whether proposed classes 4 are sufficiently cohesive to warrant adjudication by representation.” Id. at 623. 5 Accordingly, when “[c]onfronted with a request for settlement-only class 6 certification, a district court need not inquire whether the case, if tried, would 7 present intractable management problems . . . for the proposal is that there be no 8 trial.” Id. at 620. 9 Indeed, under these same guiding principles, the Ninth Circuit has upheld 10 settlement-only class certification in nationwide settlements. In Hanlon, the Ninth 11 Circuit found predominance met for purpose of certifying a nationwide vehicle 12 defect settlement class applying each individual’s state consumer protection laws. 13 Relying on Amchem and in discussing the elements of Rule 23(b)(3), the Ninth 14 Circuit noted, “although some class members may possess slightly differing 15 remedies based on state statute or common law, the actions asserted by the class 16 representatives are not sufficiently anomalous to deny class certification. On the 17 contrary, to the extent distinct remedies exist, they are local variants of a generally 18 homogenous collection of causes which include products liability, breaches of 19 express and implied warranties, and ‘lemon laws.’” Id. at 1022. Accordingly, the 20 Ninth Circuit upheld certification of the nationwide settlement-only class 21 explaining that “idiosyncratic differences between state consumer protection laws 22 are not sufficiently substantive to predominate over the shared claims.” Id. at 23 1022-23. 24 Therefore, there are no serious manageability difficulties presented by 25 conditionally certifying this case for nationwide settlement purposes only, such as 26 choice of law issues. See Johnson v. General Mills, No. 10-cv-00061, 2013 WL 27 3213832, at *1 (C.D. Cal. June 17, 2013) (nationwide class certified for settlement 28 purposes); United Desert Charities v. Sloan Valve Company, et al., No. 12-cv- Page 22 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 06878-SJO, ECF No. 147 (C.D. Cal. Aug. 25, 2014) (same); In re Alexia Foods, 2 Inc. Litig., No. 11-cv-06119-PJH, ECF No. 66 (N.D. Cal. Dec. 12, 2013) (same). 3 As this case will not go to trial if finally approved, all that would remain is claims 4 administration if the settlement is granted final approval. Therefore, Plaintiff has 5 satisfied the requirements of Rule 23(b)(3). 6 V. THE FINAL APPROVAL HEARING SHOULD BE SCHEDULED 7 The last step in the settlement approval process is a Final Approval Hearing 8 at which this Court may hear all evidence and argument to determine whether to 9 grant final approval to the settlement. Plaintiff respectfully requests that the Court 10 set the following schedule for final approval of the settlement: 11 12 Serving Notice on Appropriate Federal Within 10 days following the filing of 13 and State Officials Proposed Settlement Agreement 14 15 Commencement of Class Notice to the Within 30 days after Preliminary 16 Class Members (“Notice Date”) Approval 17 Last day for filing Plaintiff’s Motion for No later than 14 days prior to the 18 19 Attorneys’ Fees, Costs, and Incentive Objection Deadline

20 Award 21 Last day for Class Members to Opt-Out Within 90 days from the Notice Date 22

23 or submit Objections to Settlement

24 Last day for filing Motion for Final No later than 14 days prior to Final 25 Approval and Response to any Approval Hearing 26 27 Objections 28 Page 23 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 Final Approval Hearing On August 29, 2016 at 10:00 a.m. or 2 first available date thereafter 3

4

5 VI. CONCLUSION 6 For the foregoing reasons, the Parties respectfully request that this Court (1) 7 preliminarily approve the terms of the settlement reached by the Parties; (2) certify 8 the Settlement Class for the purpose of effectuating the settlement; (3) approve the 9 form and method of notice of the settlement and of the pendency of the litigation 10 to the Class and order that such notice be given; and (4) set a hearing for Final 11 Approval of the settlement. 12 13 Dated: February 26, 2016 /s/ Zev B. Zysman 14 LAW OFFICES OF ZEV B. ZYSMAN 15 A Professional Corporation 15760 Ventura Boulevard, 16th Floor 16 Encino, CA 91436 Telephone: (818) 783-8836 17 Facsimile: (818) 783-9985

18 Attorneys for Plaintiff and the Proposed Settlement Class 19 20 21 22

23 24 25 26 27 28 Page 24 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT