The U.S. District Court for the Northern District of California denied certification in a false advertising case brought under California’s False Advertising Law (FAL), Consumers Legal Remedies Act (CLRA) and the Unfair Competition Law (UCL) because the plaintiff failed to satisfy Rule 23(a)’s commonality requirement.  The plaintiff alleged that the defendant developed, encouraged, and promoted three Unlimited Download Websites that offered media titles for a one-time fee, but only provided content that was already available for free and provided illegal content that violated copyright laws.  Plaintiff asserted three common questions in support of class certification:  (1) whether the defendant knew the products were fraudulent, but failed to suspend them or to demand changes, (2) whether the defendant was liable for facilitating and promoting the content, and (3) whether the class members suffered the same form of injury and are entitled to damages.

Citing Wal-Mart Stores, Inc. v Dukes, 131 S. Ct. 2541 (2011), the defendant argued that even if plaintiff’s proposed common questions were capable of class-wide determination, their answers have no bearing on the “validity of each plaintiff’s claims,” in part, because FAL, CLRA and UCL do not impose vicarious liability but require personal participation by the defendant in the wrongful conduct  The court agreed and, relying on Dukes, found that plaintiff’s proposed common questions were not central to defendant’s liability under FAL, CLRA, UCL, or common law.  The court found that the questions were, therefore, insufficient under Dukes to obtain class certification.

Yordy v. Plimus, Inc., Case No. 12-cv-00229 (N.D. Cal. April 15, 2014).