[00:00:01] Speaker 01:
Thank you, your honor.

[00:00:02] Speaker 01:
Theodore Boutrous, representing Nestle USA.

[00:00:04] Speaker 01:
I'd like to reserve three minutes for a bottle.

[00:00:06] Speaker 01:
Thank you.

[00:00:08] Speaker 01:
Ms.

[00:00:08] Speaker 01:
Falcone's main theory in this case is that when goods are sourced from third parties overseas, many consumers care about responsible sourcing and the risks of child labor.

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Nestle USA cares deeply about those issues, too.

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And the Nestle Cocoa Plan has spent hundreds of millions of dollars supporting cocoa farmers, helping them improve their processes, combating the risk of child labor, and enabling access to quality education for children in those cocoa farming communities.

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But the question today is one of class certification.

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And here, the class of millions and millions of consumers

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rests on assumptions that every single consumer saw the statements on the 59 different labels over a decade that Ms.

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Falcon challenges, that they understood those statements as promises about the risks of child labor, even though they don't, none of the labels mention child labor.

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In fact, that's the one thing the labels all have in common.

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It rests on the assumption that

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all the consumers found those statements material and relied on them to buy the chocolate and that they would not have paid one cent for the chocolate absent the labels.

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The record does not contain evidence supporting any of those assumptions from the plaintiff, let alone all of them.

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Ms.

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Falcone, in moving for class certification where she had the burden by a preponderance of the evidence to meet Rule 23 standards, did not submit an expert opinion, surveys, any evidence regarding any of these other consumers.

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Nestle, on the other hand, submitted an expert report from Dr. Kibitz that showed affirmatively that most consumers

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would not have seen, understood, or relied on the statements in the way Ms.

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Falcone does.

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This court should reverse class certification.

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It clearly does not meet the standards of Rule 23.

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And there are also deep Article III standing questions regarding the absent class members.

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Let me start with the predominant standard, which the Supreme Court has said is demanding.

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And in Rule 23, the Supreme Court has also said that

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The standards of Rule 23 are stringent and in practice exclude most claims.

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And here, they exclude Ms.

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Falcone's claims from being certified.

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The individualized issues engulf any potential common issues.

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And I'll start with the exposure issue.

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So California law is clear, as is this court's case, is interpreting it, that before there can be a class action, consumer class action based on

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alleged misstatements in advertising or labels or anything else that there has to be a Mechanism for class-wide proof that everyone in the class was exposed and in this court's words in the maza case That it is necessary for everyone in the class to have viewed the allegedly misleading advertising How could you have missed it if you're buying the product?

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The very easily you're on it because we only look at the front at the front label

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Well, the front label, it's on the back label, so the evidence our experts show that most people I think... Which is where the Toll House recipe is and where all the nutritional information is and the content.

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And this is some place where Nestle would like you to look, right?

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Definitely would like you to... Nestle has invited you to look at the back.

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There's no question that the company knows the consumers may want information that is on the back of the label, but for different reasons.

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So there's no question some people, Ms.

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Falcone, for example, says she cared about these sustainability issues.

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But I don't understand the argument on exposure, because it's on the label.

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If this were someplace else, it was hidden in the bottom of a cereal box or something, that might be different.

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But this is sort of open and notorious, and it's right adjacent to things that Nestle

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really want you to look at.

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Your honor, I think that goes to the question, does exposure just mean potentially available to be seen in red?

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I think that's the definition the court's suggesting and then the plaintiffs have suggested.

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But this court's cases and the California Court of Appeal cases like Downey and the Target made in the USA case go one step further.

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It's whether you can

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On a class-wide basis say that all the class members or virtually are nearly universally Read the statement because that's the only way they could be injured when we're talking about information Being the injury causing mechanism the only way for an injury that goes to article 3 standing to occur is for the person to have actually First and foremost read the statement so council this would go to for example if nestle had misrepresented the number of calories In a serving I cut it cut it in half

[00:05:06] Speaker 02:
Your argument would also be a lot of people don't read that and and therefore there would be no class action even if this was a material Misrepresentation and just a clear flat-out lie well that would be a much closer case your honor because because here

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The argument is that the misstatement relates to child labor risks.

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There's nothing on the back of the label about child labor.

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That goes to the understanding point, which I can get to quickly here.

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But the understanding point seems to me to be a much stronger point than exposure.

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So maybe I'll move to that.

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Judge Dahl may have some questions on that, but at least as for me, the exposure doesn't feel like your best point.

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I'll move on your honor because I think of the understanding point again.

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I mentioned 59 different labels Oh Actually judge Bobby.

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I would like to take one point on the exposure point because it does kind of prove my point

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that they did submit, because the council probably mentioned their expert on exposure, Ms.

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Matthews.

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She came in and she did not submit a report showing that most people would have seen and read the statement.

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But even more telling, she admitted that when she bought these chocolates, she was not deceived because she did not read or see the sustainability information.

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So their own expert who came in to show exposure, that's at ER64,

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said she wasn't deceived because she didn't even see the statement.

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So it's not unrealistic to say exposure can't be established.

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But here on understanding, we have 72, or excuse me, 59 different labels over a 10-year period.

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And another burden that plaintiffs, the plaintiff has here is to show that reasonable consumers would have been likely to be deceived, which means they must have had at least

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the same understanding if they were exposed of those statements.

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And here, as I mentioned, none of the statements mention child labor risks.

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They differ in their content across the statements.

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And our expert submitted, we submitted expert evidence that showed that very few consumers would have understood

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And there was a lot of inferential leaps you have to take to see.

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First, Nestle cocoa plan, that we have to assume that a consumer would know what that was and care about it.

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We'd have to assume that they knew that responsible sourcing or sustainability had something to do with child labor risks.

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And let me again make clear, Nestle is doing, spent hundreds of millions of dollars to try to combat child labor risks and make the farming

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situation better.

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These labels didn't happen by themselves.

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Nestle spent a lot of time and effort developing the labels.

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Presumably they did it because they thought it would have a beneficial impact on their image or on sales.

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They have a hard time saying we shouldn't pay any attention to what Nestle itself has decided to say because nobody's going to understand it and be affected by it.

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That just can't be consistent with what Nestle's own behavior suggests.

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Now let me divide for a moment

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I understand your arguments is going to the damages class.

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I don't really understand them as going to the injunctive relief class.

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And do these arguments have an impact on the injunctive release class?

[00:08:33] Speaker 01:
Two things, Your Honor.

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First, on the injunctive relief class, Ms.

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Falcone, the name plaintiff, does not have standing to bring an article under our registry.

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We measure standing at the beginning.

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And the fact that Nestle's subsequent changes, the labels,

[00:08:49] Speaker 04:
doesn't mean she couldn't have standing receipt with her claim.

[00:08:53] Speaker 01:
Well, she's admitted that she thinks the labels are now perfect and that she loves them.

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And that may be an argument against injunctive relief, but it doesn't take away standing because we measure standing at the beginning.

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And you're not arguing, I didn't see any evidence that in fact, Nestle's labels were perfect at the time the lawsuit was filed.

[00:09:09] Speaker 01:
We believe they were lawful, and that goes to your first question, Your Honor.

[00:09:14] Speaker 04:
Your testimony, you're citing her testimony that they're perfect, so she can't have standing.

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That's not the point in time we measure standing.

[00:09:23] Speaker 01:
I think she has to have standing throughout, Your Honor, to obtain injunctive relief.

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You can't strip away a plaintiff simply by

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tried to say to the class representative, we've solved the problem.

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That may solve the problem in terms of whether injunctive relief is granted, but I don't think it eliminates the lawsuit.

[00:09:40] Speaker 01:
I think it does, Your Honor.

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I think that to have standing regarding future, enjoying future activity, if the future activity has ceased, there's no basis and no potential injury to the named plaintiff.

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It feels more like a mootness question than a standing question.

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I think it's both, but as to Judge Clifton's first question, of course Nestle thinks that some people care about sustainability issues, care about the supply chain and the child labor risks.

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Our argument isn't that they put this information in here because it was meaningless.

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plaintiff's burden is to show that everyone, that that was the core decision-making factor for them in purchasing these chocolate chips and other chocolate products.

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There's no evidence that that's true.

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The evidence, the only evidence, substantive evidence that was submitted before their reply brief shows the opposite, that most people do not base their chocolate-buying decisions on those factors, that most people would not have read these labels to

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deal with child labor risks, and that most people did not rely on those statements in making their purchasing decisions.

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That's just a pure Rule 23 issue that has not been satisfied.

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They did submit an expert in rebuttal, which had many, many problems under Daubert, but even that submission

[00:11:02] Speaker 01:
said, I think something like 70% of consumers would be less likely to buy if they knew cocoa was made with child labor.

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One of his findings was that 14% of people would be more likely, which of course makes no sense, to buy chocolate if there was child labor involved in the supply chain.

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How can that be commonality and predominance across the class?

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It simply cannot be.

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And back to the Article 3 standing point before I sit down.

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Here, plaintiffs are asking this court to interpret California law to not require proof that the million people in the class, the absent class members, were injured.

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It's just that they were likely to be deceived.

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They put all their chips on the reasonable consumer test and say all they have to show is that a reasonable consumer might have been deceived.

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So someone who didn't see the statements, who didn't know what they meant, did not know they had anything to do with child labor risks, who didn't rely on them, who didn't care about them, who would have bought the chocolate anyway at the same price, they would be part of the class even though they're not injured.

[00:12:19] Speaker 01:
And that just runs flat into TransUnion, the Ninth Circuit's decision in Olin, where in TransUnion the court said you have to have proof.

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proof for a class member to get damages that they have Article III standing.

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And there has to be a class-wide way to prove that.

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Otherwise, the individual issues would be incredible.

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So I'll stop there and hold off for rebuttal.

[00:12:55] Speaker 00:
Good morning may have pleased the court Paul Hoffman for the for the plaintiffs and at police to go directly to for one thing exposure I don't know that I need to say much about that everybody got this it's on the label and so that's exposure to everybody got the same level it's by definition in the class the argument made by opposing counsel that

[00:13:21] Speaker 03:
Maybe they were exposed to it, but some of them don't even care.

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They didn't even notice it.

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They didn't pay attention.

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They didn't... For exposure, it doesn't matter.

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Exposure is just you got it, right?

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And the other thing is that in terms of the understanding, it is the reasonable consumer standard.

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It's not whether our expert did it or there's an odd person that didn't understand it in a certain way.

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We don't have to show that everybody has the same understanding.

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The test under California law is whether a reasonable

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consumer would understand it.

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That's what the California law is.

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And class certification starts out, as the district judge said, with an understanding of what California law is.

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And California law has certain requirements in terms of statutory standing and in terms of what you have to show for the UCL.

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You have to show that the statements are likely to deceive the public.

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For the CLRA it's a little bit more.

[00:14:17] Speaker 04:
What is there that the reasonable consumer would have affected that person's decision or that the reasonable consumer would have decided this product is valueless?

[00:14:34] Speaker 00:
Well, I mean, first of all, I guess on the valueless issue, that goes to the theory of damages, the full refund theory of damages.

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And one of the things that

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Opposing counsel hasn't said one word about is whether the district judge abused his discretion at all The district judge went through all of the requirements went through all of the evidence Considered all of the the issues with respect to miss Falcone's Deposition considered their argument about why she shouldn't have standing it went through

[00:15:09] Speaker 00:
All of these issues and went through all of their documents.

[00:15:14] Speaker 04:
And I think I'm hearing an answer to my question.

[00:15:17] Speaker 04:
I'm sorry.

[00:15:18] Speaker 04:
What evidence is the question I posed and I'm getting kind of a fog bank is to all the things the district judge might have looked at.

[00:15:25] Speaker 04:
I'm still waiting to hear what evidence there was.

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that your reasonable consumer or that any appreciable number of consumers thought this product was valueless to get to the bottom line.

[00:15:36] Speaker 04:
That's the hardest one.

[00:15:39] Speaker 00:
The evidence that the judge relied on was the evidence, Judge Clifton, that you referred to before, which is the extensive evidence from Nestle's own documents.

[00:15:49] Speaker 04:
Let me stop you there.

[00:15:50] Speaker 04:
Let me stop you there because none of that says that all consumers are even a

[00:15:56] Speaker 04:
a majority of consumers carried those values to the point that they thought the product was valueless.

[00:16:05] Speaker 04:
What you point to were suggestions that there were consumers who would be influenced by that.

[00:16:12] Speaker 04:
But that's not the damage model you've provided.

[00:16:15] Speaker 04:
The damage you've provided requires conclusions that these consumers got nothing.

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And I didn't see any evidence at all to support that proposition.

[00:16:26] Speaker 04:
If you look at our brief at page 48, there are citations to the information there that many- Let me turn to page 48, because it talks about 57% of chocolate consumers indicating they would stop purchasing from brands that harm people, and 49% of chocolate consumers would stop purchasing brands that harm the environment.

[00:16:47] Speaker 04:
Now, those are things easier to say than perhaps perform, because your client demonstrated sometimes the chocolate weakness is powerful.

[00:16:57] Speaker 04:
But that doesn't tell me that all, let alone the substantial majority of consumers, hide those feelings.

[00:17:07] Speaker 04:
So your damage model seems to assume that everybody thinks the product is valueless and that evidence doesn't support that proposition to my mind.

[00:17:16] Speaker 00:
Well, we don't have to show that everybody feels that way.

[00:17:19] Speaker 00:
We have to show us at the merit stage.

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In other words, if we don't show that a substantial number of consumers

[00:17:26] Speaker 00:
at the merit stage on this issue, feel that way, feel it's valueless or de minimis, then we will lose the case.

[00:17:35] Speaker 04:
But you have to at this stage provide evidence to support the proposition.

[00:17:39] Speaker 00:
And I didn't see it.

[00:17:41] Speaker 00:
There is evidence in the record that Nestle understands that it is very important for a significant number of consumers to have sustainability representations.

[00:17:55] Speaker 00:
They have internal surveys, internal documents.

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There are reams of documents that we put in front of the district court in which the district court relied on to think that this is a very important issue for many consumers.

[00:18:09] Speaker 00:
The exact percentage, we don't know.

[00:18:11] Speaker 00:
But even their expert, I think, well, let me back off from that.

[00:18:18] Speaker 00:
we don't have to show that a hundred percent of consumers feel it's valueless.

[00:18:23] Speaker 00:
And first-class certification, what Comcast says is that we have to show that our theory of damages stems from our theory of liability, which this does.

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Our position is that their actual practices perpetuate child slave labor and child labor

[00:18:45] Speaker 00:
in Ivory Coast, that in fact their representations are the opposite of what they have done for decades.

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In fact, they're a major part of the problem for child slavery in Ivory Coast and deforestation.

[00:19:02] Speaker 00:
And so what we're saying is that when a reasonable consumer would see that at trial on the merits,

[00:19:09] Speaker 00:
Because for class certification, we just have to have a model that is susceptible for class-wide relief.

[00:19:15] Speaker 00:
The district judge was exactly right that our model stems from the theory of liability and that there's an easy way to calculate it from a class-wide basis.

[00:19:24] Speaker 00:
So we've satisfied.

[00:19:27] Speaker 04:
Even about a factual basis, it strikes me as laughable.

[00:19:31] Speaker 04:
Well, I think you need more than allegation.

[00:19:34] Speaker 04:
I mean, the Supreme Court's made clear, I guess, Comcast,

[00:19:37] Speaker 04:
You need evidence.

[00:19:39] Speaker 04:
You can't just have allegation.

[00:19:40] Speaker 04:
And so far, when I asked for the evidence, I'm not really getting much to support the model.

[00:19:46] Speaker 00:
Well, but Nestle spends a tremendous amount of money figuring out what impact sustainability representations have on the consuming public.

[00:19:57] Speaker 00:
which would be the reasonable consumer.

[00:19:59] Speaker 00:
They're targeting the reasonable consumer.

[00:20:02] Speaker 00:
And they understand that sustainability representations are crucial to that market.

[00:20:08] Speaker 00:
Now, again, we don't have to show that everybody will feel that it's worthless.

[00:20:13] Speaker 04:
But in the examples that Kwik said... If your daddy's model assumes that, you've got to show a pretty substantial part of the population feels that way.

[00:20:21] Speaker 04:
Otherwise, your damage model is kind of devoid of reality.

[00:20:26] Speaker 00:
On the merits, if we don't show enough of that, if our proof on the merits crew, we haven't had discovery, we haven't gone to that phase.

[00:20:33] Speaker 00:
This is about class certification.

[00:20:35] Speaker 00:
And the judge was right that there's enough evidence to support this model.

[00:20:40] Speaker 00:
Now, the exact percentage will be shown at trial by competing experts about what reasonable consumers would feel.

[00:20:50] Speaker 04:
Is the only evidence you have to point to is the evidence you pointed to on page 48?

[00:20:56] Speaker 00:
Well, it's not just the evidence on page 48.

[00:21:02] Speaker 00:
We have attached to our

[00:21:03] Speaker 00:
motion for class certification, reams of Nestle documents that show this.

[00:21:10] Speaker 00:
That they have spent years trying to figure this out and ways to say to the consuming public that we sustainably source cocoa beans when they do the opposite.

[00:21:22] Speaker 00:
And what our position is, is that when you place that in front of a trier of fact, that the trier of fact will understand

[00:21:30] Speaker 00:
that a significant number of consumers feel that way and would not buy this chocolate, because they can buy Tony Chocoloni chocolate that actually does that, as opposed to this that says it does it, but actually does the opposite.

[00:21:46] Speaker 00:
And the reasonable consumer standard also applies to the materiality question.

[00:21:53] Speaker 00:
All of the issues that the other side has said require individualized treatment are not.

[00:22:00] Speaker 00:
They're objective standards that are based on the reasonable consumer standard.

[00:22:05] Speaker 00:
And whether we're able to sustain that at trial on any of these issues is a question of the merits.

[00:22:12] Speaker 00:
And that's not at the class certification stage.

[00:22:15] Speaker 00:
And I don't think Comcast requires us at this stage to prove before discovery

[00:22:21] Speaker 00:
and before exchange of experts and everything, that what percentage at this point would feel that this is worthless, just as we wouldn't have to prove it in the examples that Kwikset gives about kosher meat or conflict diamonds or any of those things.

[00:22:40] Speaker 00:
And there's a whole series of cases that allow for a full refund model in a situation like this where people would have

[00:22:50] Speaker 00:
These kind of feelings about these kinds of representations with respect to something as severe as child slave labor And that goes back to the this court had a full refund model in the figgy case 30 years ago and so in that case stands for the proposition that if you have a tainted purchase and

[00:23:13] Speaker 00:
because of representations that if the public understood the real facts as opposed to the deception, that they wouldn't buy the product.

[00:23:25] Speaker 00:
That's our theory.

[00:23:27] Speaker 00:
And I think for class certification purposes, the judge was clearly right in finding the common issues of deception and materiality on a reasonable consumer basis.

[00:23:41] Speaker 00:
The predominance is easily found if you have those common issues that are susceptible of common proof.

[00:23:49] Speaker 00:
And then the damages model flows from that theory of liability.

[00:23:54] Speaker 00:
And there's substantial evidence in their documents at this stage of the proceedings.

[00:24:01] Speaker 03:
Council, I'd like to bring you back to standing.

[00:24:04] Speaker 03:
I have questions regarding Article III standing for you.

[00:24:06] Speaker 03:
What are we to make of the statements from Ms.

[00:24:10] Speaker 03:
Falcone that she's perfectly fine with the new labels for Nestle?

[00:24:14] Speaker 03:
Does that matter?

[00:24:14] Speaker 00:
Well, what the district judge found was that the reliance on those statements misconstrued her testimony as a whole.

[00:24:24] Speaker 00:
That her testimony as a whole was that she would not have bought the chocolate had she known the truth about what they were doing.

[00:24:32] Speaker 00:
And the same thing is true in terms of Article 3 standing for future injunctive relief.

[00:24:37] Speaker 00:
Under Davidson and DZ Reserve, what she has to be able to testify is that she would like to buy the chocolate, but she can't trust the label anymore.

[00:24:48] Speaker 00:
And she doesn't.

[00:24:48] Speaker 00:
That's what she said.

[00:24:49] Speaker 00:
Now, in a deposition, they got her to say that certain labels look nice.

[00:24:55] Speaker 00:
Well, that's not, I mean, her testimony is not that she,

[00:24:58] Speaker 00:
She knows that they've cleaned up their practices because they haven't cleaned up their practices.

[00:25:04] Speaker 00:
They still don't get their cocoa beans in a traceable way.

[00:25:07] Speaker 00:
They still don't pay people enough money to make sure that people are not taken into child slavery and trans trafficked across borders from Mali to South Ivory Coast.

[00:25:20] Speaker 00:
That hasn't changed.

[00:25:22] Speaker 00:
The representations are still deceptive.

[00:25:24] Speaker 00:
She didn't say they weren't deceptive.

[00:25:27] Speaker 00:
And so what the judge had looked through that and said, well, OK, they got her to say some things.

[00:25:32] Speaker 00:
But that's not, she had said all of the things that give her standing, both statutory standing and Article III standing.

[00:25:41] Speaker 00:
And the judge properly found that, made those findings, and didn't abuse his discretion in finding that.

[00:25:52] Speaker 00:
I don't know if there's anything else on that issue that you want.

[00:26:00] Speaker 00:
This case is about they made these representations.

[00:26:04] Speaker 00:
They didn't have to make the representations.

[00:26:06] Speaker 00:
No one forced them to make the representations.

[00:26:09] Speaker 00:
They could do business with the worst child slavers in the world if they want to.

[00:26:14] Speaker 00:
And California consumer law doesn't have anything to say about it.

[00:26:18] Speaker 00:
It only has something to say about it when they put these statements on their labels that they are engaged in sustainable sourcing, reasonable sourcing, and they do the opposite.

[00:26:29] Speaker 00:
And that's what California consumer law is designed to protect the public from.

[00:26:35] Speaker 00:
that kind of deception.

[00:26:37] Speaker 00:
And obviously, we'll have to prove that at trial.

[00:26:39] Speaker 00:
We'll have to show that a reasonable consumer would find these statements to be deceptive, and that they would find them to be material.

[00:26:49] Speaker 00:
And as Judge Clifton has pushed us on, we're going to have to show for a full refund model that a significant portion of consumers would feel so strongly about this when they know those facts.

[00:27:01] Speaker 00:
that they would not buy this product.

[00:27:03] Speaker 00:
That it's the same as someone, a fiancé that's getting an engagement ring and gets a ring that's perfectly fine, but it's from Conflict Diamonds.

[00:27:14] Speaker 00:
And that's so abhorrent to her that it's valueless.

[00:27:21] Speaker 00:
Or someone wants to kosher meat and gets something that's not kosher meat.

[00:27:26] Speaker 00:
And that's valueless, even though functionally it's meat.

[00:27:30] Speaker 00:
And functionally, this is chocolate.

[00:27:32] Speaker 00:
But our position, and what we have to prove at trial, is that a substantial number of consumers would feel that a representation that Nestle is engaged in sustainable practices when they are perpetuating one of the worst child slavery situations on the planet is something that they would not pay for.

[00:27:55] Speaker 00:
And they'll get their chocolate from somebody else.

[00:28:00] Speaker 03:
Thank you.

[00:28:06] Speaker 01:
First of all, those assertions about Nestle are just false regarding its program.

[00:28:13] Speaker 01:
There's no evidence of it.

[00:28:15] Speaker 01:
These are allegations that council makes in many, many cases, and they've never been accepted.

[00:28:20] Speaker 01:
The Nestle-Coco plan has

[00:28:22] Speaker 01:
Helped a hundred and seventy thousand children train more than a hundred thousand farmers.

[00:28:29] Speaker 01:
It's certified by the Rainforest Alliance There's no doubt about that It's rather outrageous to have him give a speech like that

[00:28:37] Speaker 01:
on this question that he just ended with, that he just described an incredibly highly individualized trial.

[00:28:44] Speaker 01:
We get to put on a defense.

[00:28:46] Speaker 01:
Nestle gets to show that each class member doesn't care about these issues.

[00:28:51] Speaker 01:
And this court in the Hodson case, which involved alleged child slave labor in the chocolate market, said, some consumers of chocolate are not concerned about the laboral practices used to manufacture the product, and noted that these issues do not

[00:29:05] Speaker 01:
have not related to chocolate's function as chocolate.

[00:29:10] Speaker 02:
That would be true in almost any of the examples that were given, for example, in Kwikset, made in USA, kosher, conflict-free.

[00:29:19] Speaker 01:
Well, in quick set, Your Honor, the court was making the point that some people would say it's valueless.

[00:29:25] Speaker 01:
This goes to Judge Clifton's point.

[00:29:27] Speaker 01:
To me, if I'm an observant Jew, the lack of kosher would be crucial to me.

[00:29:34] Speaker 01:
But it wouldn't be crucial to other people.

[00:29:36] Speaker 01:
That's the point.

[00:29:37] Speaker 01:
That's why it's individualized.

[00:29:38] Speaker 01:
So some people may think I'm not going to buy diamonds like this.

[00:29:42] Speaker 01:
Other people don't know about it.

[00:29:44] Speaker 01:
They don't care.

[00:29:45] Speaker 01:
So that's individualized Well the it was it was it not everybody cares whether all the components are made in the USA there the it was clear that you would still have the opportunity to prove and Here in federal court if there are millions of people who didn't care and weren't injured who don't understand any of these statements and

[00:30:08] Speaker 01:
Therefore were not deceived and loved their chocolate then they're not injured There's no article 3 standing for those absent class members put aside miss Falcone and and by the way your honor Can you give me a can you give me an example of can you give me example of a case in which?

[00:30:24] Speaker 02:
There's been some kind of an advertising misrepresentation in which in which we have found that class certification was correct and

[00:30:33] Speaker 02:
It's clear that everybody everybody in the world would have cared about that about that misrepresentation Well the court in your point.

[00:30:42] Speaker 02:
I think is very well made but it seems like it's also applicable in every Misrepresentation case and therefore you could never certify any misrepresentation case, and I don't think that accords with not necessarily I can't think of a case where this court has done that because

[00:30:56] Speaker 01:
it would be extraordinary.

[00:30:58] Speaker 01:
But in the context of the defendant being able to put on their case, the Mazza case is a good example where the court said, look, there were these statements.

[00:31:08] Speaker 01:
They were available, but they weren't necessarily seen by everyone.

[00:31:14] Speaker 01:
There has to be a connection to those people.

[00:31:17] Speaker 02:
The Lytle case... And that would also apply in the example that I gave you, if Nestle had just falsely misrepresented the number of calories.

[00:31:25] Speaker 02:
There'd be some people who wouldn't care.

[00:31:28] Speaker 01:
You couldn't even certify a class there, could you?

[00:31:30] Speaker 01:
Well, you'd have to look and see if the individualized issues would overwhelm the common ones.

[00:31:34] Speaker 01:
Nestle would have an opportunity, this is what Wal-Mart said, the Supreme Court said, the defendant gets a chance to put on their case in their individualized defenses.

[00:31:44] Speaker 01:
The weighing, the big error the district court made, and counsel makes it again, is the

[00:31:49] Speaker 01:
is the one that the Supreme Court rejected, the position rejected in Walmart.

[00:31:54] Speaker 01:
The merits have to be grappled with at class certification.

[00:31:58] Speaker 01:
And Judge Clifton, you were making this point.

[00:32:00] Speaker 01:
You have to look at the merits.

[00:32:01] Speaker 01:
Their claim for full value refund does not fit the liability theory.

[00:32:07] Speaker 01:
There's no way the chocolate was worthless to everybody.

[00:32:11] Speaker 01:
The law of California, the Tobacco II case, they argued that the cigarettes were worthless.

[00:32:16] Speaker 01:
Cigarettes were worthless because they weren't

[00:32:19] Speaker 01:
Safer and the California Court of Appeals said no you can go for a reduction in value.

[00:32:24] Speaker 01:
This will be highly individualized And I'll just finish with again, Miss Falcone statements.

[00:32:30] Speaker 01:
She said the company's making good progress They're putting their money where their mouth is the labels were perfect She could consult the cocoa plan website Nestle's not hiding anything counsel is just distorting the facts and

[00:32:43] Speaker 01:
I urge the court to look at the reports that are in the record from the Nestle-Coco plan.

[00:32:48] Speaker 01:
It's what companies should be doing to improve the conditions, to improve the supply chain.

[00:32:53] Speaker 01:
Thank you very much.

[00:32:54] Speaker 03:
This concludes the arguments in this case.

[00:33:00] Speaker 03:
I appreciate counsel's vigorous arguments.

[00:33:03] Speaker 03:
This case is now submitted.

[00:33:05] Speaker 03:
Thank you.