In food marketing litigation, class certification is a major hurdle for would-be class plaintiffs, but a recent case out in the Central District of California may have lowered the bar with a flexible approach to class certification.
In Forcellati v. Hyland, the plaintiffs, on behalf of a purported class, allege that Hyland, Inc. misrepresented its Hyland’s Homeopathic products as providing fast, safe and effective relief from cold and flu symptoms when in fact they are merely placebos.
The court certified the nationwide class over Hyland’s opposition. The allegations spanned five different products, all with different ingredients, made to treat different symptoms, and all with varying advertisements. According to the Forcellati v. Hyland court, the only relevant question was whether the defendants “misrepresent that their products safely and effectively treat cold and flu symptoms when, in fact, they have no medicinal value whatsoever.”1
Neither did the Forcellati court find problem with an inability to adequately measure damages, a common snag for class certification. Instead, the court gave wide latitude for different damage calculations. For example, the court acknowledged many class members would have to self-identify (having lost the product and proof of purchase), increasing the risk of fraudulent class members. The court held, however, that any purported fraudulence would not impact Hyland because damages would be based on total sales, not the number of class members. The court gave little weight to the possibility that false claims would dilute recovery for bona fide class members, noting that only a small percentage of the class typically seeks relief. Even if recovery was somehow diluted due to false claims, the court found that alternative “preferable to absent class members’ only realistic alternative: no recovery at all.”2
This flexible approach to class certification may create new opportunities for would-be class action plaintiffs. The Forcellati opinion suggests class certification is possible even with numerous differences in product composition, purpose, and methods of advertising, within the same case, as well as problems accurately measuring damages.
Forcellati likely will be appealed to the Ninth Circuit. Given the significant departure from prior class certification rulings3, the Court of Appeal may likely take the matter on. In the meantime, defendants of class actions should expect to see this reasoning echoed by plaintiffs’ class counsel in class certification motions in the Central District of California and beyond. While the Forcellati decision alone may not signal an erosion of previously rigorous certification requirements, this trend is worth following closely.
1 Forcellati v. Hyland's, Inc., CV 12-1983-GHK MRWX, 2014 WL 1410264 *9 (C.D. Cal. Apr. 9, 2014).
3 See, e.g., Mazza v. Amer. Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012), (“[V]ariances in state law overwhelm common issues and preclude predominance for a single nationwide class.”); Wiener v. Dannon Co., Inc., 255 F.R.D. 658, 666 (C.D. Cal. 2009) (denying class certification where claims spanned multiple products addressing various symptoms, different studies substantiated their health benefits, and each product had different advertising and marketing); Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D. 534, 557-558 (C.D. Cal. 2012) (“the evidence of variation among class vehicles indicates that [the plaintiff’s] ownership of one type of class vehicle does not necessarily render his claims typical of the class as a whole.”)