On May 4, the Northern District of California decertified a class of California consumers who had purchased Prevagen brain health supplements manufactured by defendant Quincy Bioscience, LLC (“Quincy”) after finding that the named plaintiff’s trial testimony about his purchase of the products at issue defeated typicality and predominance.

• The plaintiff brought claims under California’s Unfair Competition Law and Consumers Legal Remedies Act on behalf of a putative class of California consumers, alleging that Quincy falsely claimed that Prevagen “improved memory” and supported “healthy brain function, sharper mind, and clearer thinking.”
• The court initially certified a class consisting of California consumers who purchased certain Prevagen products, finding at the class certification stage that the plaintiff purchased Prevagen based on representations that it improved memory and supported brain function.
  • The court found that the plaintiff’s claims were typical of those of the absent class members because Prevagen was not marketed for any uses other than improving memory and brain function and the representations about those alleged benefits were a substantial factor in all consumers’ purchasing decisions.
  • As for predominance, the court found that the representations about Prevagen would have been material to a reasonable consumer and that all consumers would have been exposed to the same claims, thereby permitting a presumption of reliance.
• During trial, the plaintiff testified that he purchased Prevagen because he was dealing with some “memory recall issues” and believed that Prevagen could help him based on representations on the packaging. In an ironic turn of events, however, he could not remember whether the label on the bottle he purchased made any representations related to memory improvement. In fact, his product receipt indicated that he purchased a Prevagen “Brain Cell Protection” product, the packaging of which said nothing about memory improvement. And the plaintiff had thrown out the bottle, so he could not produce proof related to the label itself.
• At the close of the plaintiff’s case-in-chief, both parties moved for judgment as a matter of law and Quincy moved to decertify the class for lack of typicality and predominance given the plaintiff’s trial testimony. When the jury remained deadlocked after several days of deliberation, the court declared a mistrial. Four months later, the court decertified the class.
  • As for typicality, the court found that the plaintiff’s trial testimony “was equivocal as to whether he saw and relied on the representations on which he claim[ed] the other class members relied.” Specifically, the plaintiff testified that he could not recall the specific label he saw, and the only label he offered into evidence at trial did not contain the representations about improving memory. As a result, the plaintiff had not shown that his claims were typical of the claims of the putative class members who saw a different label.
  • As for predominance, the court found at the certification stage that the plaintiff was entitled to a presumption of reliance because the alleged misrepresentations were made to all class members. But given the plaintiff’s admission at trial that he could not remember whether he was exposed to the memory-improvement representations, the presumption of reliance was no longer warranted.
• The court’s ruling underscores the importance of honing in on facts that differentiate a named plaintiff from the class members even after a class has been certified, including at trial. As the Ninth Circuit has recognized, “the manner and evidence required at the preliminary class certification stage is not the same as at the successive stages of the litigation—i.e., at trial.” The court’s ruling further demonstrates that if the plaintiff does not meet his burden of presenting evidence at trial sufficient to show that class certification was warranted, the class should be decertified.
• The case is Racies v. Quincy Bioscience, LLC, No. 15-cv-00292-HSG (N.D. Cal.), and you can read more here.