We reported recently on a decision from the Central District of California in which the court in part denied class certification in a case against Neutrogena because of “repeat customers” of Neutrogena’s products, thus giving rise to individualized questions over whether the product worked as advertised. Last week, another court in the Central District rejected a nearly identical argument and certified a class of purchasers of a joint supplement beverage in a false advertising suit against Supple. See Cabral v. Supple, LLC, Case No. ED 12-00085-MWF (OPx) (C.D. Cal. Feb. 14, 2013).
The case attacks Supple’s claims that the beverage’s key ingredients (i.e., glucosamine hydrochloride and chondroitin sulfate) are clinically proven effective and provide relief from joint suffering caused by arthritis. Supple opposed class certification on the ground that most consumers purchased the product numerous times and thus the “evidence here shows that the putative class includes a substantial number of satisfied customers, which demonstrates that individual issues predominate.”
Judge Fitzgerald rejected this argument. Unlike the Neutrogena case in which the court held that the existence of repeat customers rendered the class unmanageable because the class included uninjured class members for whom the product provided the advertised benefits, Judge Fitzgerald determined that harm could be determined on a class wide basis:
“The truth or falsity of Supple’s advertising will be determined on the basis of common proof—i.e., scientific evidence that the Beverage is ‘clinically proven effective’ (or not)—rather than on the question whether repeat customers were satisfied or received multiple shipments of the Beverage because of automatic renewals.”
That analysis, however, assumes that “effectiveness” of the product is an all-or-nothing proposition for purchasers. In contrast, the court in the Neutrogena case recognized that questions of effectiveness can be individualized. Chow v. Neutrogena Corp., No. CV 12-04624 R (JCx), 2013 U.S. Dist. LEXIS 17670, *5 (C.D. Cal. Jan. 22, 2013) (“Plaintiff has not shown how the Court could distinguish between repeat purchasers who actually received benefits from the product and repeat purchasers who were deceived again.”).