Class Certification Meltdown in Florida

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A district court in Florida recently denied class certification for consumers who purchased the dietary supplement “Meltdown.”  Karhu v. Vital Pharmaceutical, Inc., CASE NO. 13-60768-CIV-COHN/SELTZER (S.D. Fla. Mar. 3, 2014).  On April 3, 2013, a consumer sued Vital Pharmaceuticals, Inc. (VPX), the manufacturer of VPX Meltdown Fat Incinerator (Meltdown), alleging that VPX falsely advertised that Meltdown could “burn fat” and achieve rapid fat loss.  The lawsuit asserted claims for breach of express warranty, unjust enrichment and violations of the Florida Deceptive and Unfair Trade Practices Act.

The plaintiff sought to certify a nationwide class of consumers who purchased Meltdown since April 4, 2008 and a subclass of New York consumers.  While the court found the plaintiff had sufficiently defined the putative classes, it nevertheless denied class certification on the grounds that the case would be unmanageable as a class action.

First, the court held no practical method existed to verify membership in the proposed classes.  No central record of Meltdown customers existed.  The plaintiff urged the court to consider VPX's sales data as a method to identify members of the proposed classes.  The court rejected this method, observing that VPX primarily sold Meltdown to retailers and distributors and rarely sold directly to consumers.  Furthermore, the court deemed it unlikely that each Meltdown purchaser since 2008 had retained proof of such a small purchase.

Second, the court held that the putative nationwide class would implicate the laws of multiple states, “imposing different legal requirements and overshadowing the common factual bases of the claims.”  Applying choice-of-law principles, the court found that the law governing each class member's warranty, unjust enrichment, and unfair trade practice claims would be the law of the state where the member purchased Meltdown.  The court rejected certification on the basis that “the kaleidoscope of issues presented by the claims of the nationwide class under the many applicable state laws would produce an unmanageable parade of mini-trials.”

On March 27, 2013, the district judge determined that the court lacked subject matter jurisdiction over the plaintiff’s claims in light of the court’s recent denial of class certification, and accordingly, dismissed the action without prejudice.  The plaintiff’s failure to certify this lawsuit as a class action likely will result in a complete “meltdown” of any subsequent litigation against VPX based on similar allegations against the Meltdown product.  Without class certification, the economies of one big representative lawsuit are lost and the potential recovery for individual claims is likely too small to bear the risk of a lawsuit.

Topics:  Class Action, Class Certification, Pharmaceutical, Unfair or Deceptive Trade Practices, Vital Pharmaceuticals

Published In: Civil Procedure Updates, Communications & Media Updates, Consumer Protection Updates, Products Liability Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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