Yes, you read that right. A federal judge in California has certified a nationwide class under California’s false advertising and unfair competition laws. You may have thought that possibility was largely a thing of the past after Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012)—at least in the Ninth Circuit. Au contraire.
Pom involves claims that POM Wonderful LLC falsely advertised the purported health benefits of its pomegranate juice. Following Mazza, POM argued that plaintiffs couldn’t certify a nationwide class under California’s consumer protection laws due to the substantial differences between the consumer protection laws of individual states.
Judge Pregerson disagreed.
“Here, Plaintiffs have demonstrated that Pom is headquartered and located solely in California, developed its marketing strategies in California, and produced all of its pomegranate juice products in California. Pom does not dispute that Plaintiffs have met their burden to show that California has sufficient contacts to the claims at issue to ensure that application of California law is constitutional.” 2012 U.S. Dist. LEXIS 141150 at * 12 (C.D. Cal. Sept. 28, 2012).
The judge said the burden thus shifts to Pom to show that other states’ laws, rather than California law, should apply.
“Pom has not met its burden,” Judge Pregerson said. Id. at *13.
But here’s the kicker. The judge took Pom to task for merely submitting a chart that sets forth the material differences among various states’ consumer protection laws on the elements one would think would matter—scienter, reliance, etc.
“Perhaps relying upon the mistaken assumption that California law cannot be applied to a nationwide class as a matter of law, discussed above, Pom cites, in a footnote, to Exhibit 21 to the Declaration of Alicia D. Mew in Support of Pom’s Opposition. Exhibit 21 consists of a chart of each state’s consumer protection laws. The chart summarizes each law’s provisions regarding such elements as scienter, reliance, and timeliness, as well as remedies and defenses. Nowhere, however, does Pom indicate which of these foreign laws differ from California’s laws. Whether or not Pom’s footnoted exhibit is sufficient to satisfy Pom’s burden with respect to the first step of California’s three-part governmental interest analysis, Pom makes no attempt whatsoever to complete the remaining two steps. Even assuming, for the sake of argument, that Pom has identified specific differences between California and foreign law, nowhere does Pom apply the facts of this case to those laws or attempt to demonstrate, beyond citation to Mazza, that a true conflict exists.” Id.
These charts are the bread and butter of class action defense lawyers. So what’s the take away? Go the extra step. Make certain that you analyze how the laws in your chart differ from California’s consumer protection laws, and then explain why those differences are outcome determinative to the issues in your case.