Repeat Customers Drive Denial of Class Certification in False Advertising Wrinkle Cream Suit

by Morrison & Foerster LLP - Class Dismissed

Neutrogena recently defeated class certification in a case alleging violations of California’s false advertising laws and express warranty claims against the company in connection with the advertisement and sale of its wrinkle cream products.  Plaintiff alleged that Neutrogena falsely advertised its products as “clinically proven” to repair wrinkles and reduce signs of aging.  In addition to claiming that the product failed to work as advertised for her, Plaintiff complained that the science behind Neutrogena’s representations was “incomplete and inconclusive” at best.  According to Plaintiff, common questions predominated because all customers were misled into purchasing a “worthless product.”

California Central District Court Judge Manuel L. Real disagreed.  Chow v. Neutrogena Corp., No. CV 12-04624 R (JCx), 2013 U.S. Dist. LEXIS 17670, *1 (C.D. Cal. Jan. 22, 2013).  In an order that echoed another recent decision out of the Central District (discussed previously here), the court determined that it wasn’t sufficient that the product didn’t work for the plaintiff, or that the research behind the representations was questionable.  To certify a class would have required proof that the product didn’t work for anyone—only then could the representations be said to have misled everyone:

“For each of Plaintiff’s claims here, she must demonstrate that each class member was exposed to the advertisements, and that as to each class member, the advertisements were false or misleading—that is, that each class member suffered the same injury.” Id. at *3.

Absent such proof, Plaintiff would be unable to establish that the class was uniformly misled by Neutrogena’s representations.

Noteworthy is what appears to drive the court’s decision—that the class would include repeat, and potentially satisfied, purchasers.  In particular, the court recognized that if customers are coming back for more, the product must be working for some of them:

“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.” Id. at *5.

On this basis, the court concluded that “significant individualized questions [predominated] as to whether the product worked as advertised” and rejected Plaintiff’s bid for a presumption of reliance.

The court also offered a helpful holding on the issue of “fail-safe” classes under Rule 23(b)(3)’s manageability factor:

“An important aspect to the manageability factor is the prohibition on fail-safe classes.  Here, the class definitions provided by Plaintiff do not exclude those uninjured class members for whom the product provided the advertised benefits, therefore, the classes, as defined, are unmanageable.” Id. at *5.

The overbreadth of the class rendered it unmanageable.  The court’s reference to the prohibition on “fail-safe” classes here suggests that the manageability issue cannot be overcome by simply redefining the class to include only those consumers who were dissatisfied with the product’s performance—such an approach would violate the rule against recursive “fail-safe” class definitions.

Avon Products, Inc. faces virtually identical claims in a separate matter also pending in the Central District.  In Re: Avon Anti-Aging Skincare Creams and Products Marketing and Sales Practices Litigation, No. 2:12-cv-09084-GW-JC (filed Jan. 10, 2013).  Yet to be seen is whether Judge George H. Wu will follow the trend set by his Central District colleagues and dismiss the class claims at either the motion to dismiss or class certification phase.

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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