United States Court of Appeals For the Second Circuit August Term 2023

Argued: January 10, 2024 Decided: May 2, 2024

No. 22-2684-cv

CHARITY BUSTAMANTE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AMANDA SHORT; SARAH THOMAS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED; and ELIZABETH LIVINGSTON,

Plaintiffs-Appellants,

AMY CAVANAGH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; ROBERT O’BRIEN, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; MAYRA GALVEZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; CHRIS C. GALVEZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; BRANDON KAUFER; DENA KARNEZIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; DANIELLE COOPER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; LEE JACKSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; CHARLIE MCDONALD; BENJAMIN KARTER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED AND THE GENERAL PUBLIC; MELANIE HOUSE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; ERICH ZANDER; BONNIE BURKETT; and BARRY A. COHEN,

Plaintiffs, v.

KIND, LLC, A NEW YORK LIMITED LIABILITY COMPANY,

Defendant-Appellee,

Appeal from the United States District Court for the Southern District of New York No. 1:15MD02645, Naomi Reice Buchwald, Judge.

Before: MENASHI, LEE, AND MERRIAM, Circuit Judges.

KIND, LLC markets, advertises, and distributes various snack foods, including granola bars. In this multidistrict litigation, plaintiffs-appellants assert that the phrase “All Natural” that appeared on the labels of KIND products is deceptive and misleading. Plaintiffs seek damages on behalf of themselves and three classes, based on common law fraud, as well as consumer protection and false advertising laws in New York, California, and Florida. By memorandum and order dated September 9, 2022, the District Court for the Southern District of New York (Buchwald, J.) granted KIND’s motion for summary judgment, concluding, in relevant part, that plaintiffs had failed to establish how a reasonable consumer would understand the term “All Natural.” The District Court held that this was fatal to plaintiffs’ claims because without showing how a reasonable consumer understood the term plaintiffs could not explain how or why they were materially deceived. In reaching this conclusion, the District Court granted KIND’s motion to preclude two of plaintiffs’ expert opinions from the summary judgment record, and granted KIND’s motion to decertify the classes. Plaintiffs timely appealed. For the reasons set forth below, we hold that the District Court did not abuse its discretion in precluding the opinions of plaintiffs’ experts. We also hold that because plaintiffs failed to present admissible evidence of what a reasonable consumer would expect of KIND products labeled “All Natural,” the District Court did not err in concluding that there was no triable issue of fact as to whether reasonable consumers would be misled by the “All Natural” labeling. Because we affirm the District Court’s grant of summary judgment, plaintiffs’

2 arguments regarding class decertificatio