S.D. Cal. Shows No Love for Aphrodisiac Class Certification

by Reed Smith
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A class action claiming that a diet supplement was falsely advertised as being an aphrodisiac cries out for bad jokes and silly puns. Are we above all that?  Er… sure.  The supplement is called IntenseX.   (Get it?  Why don’t we ever see such clever marketing in law firm websites?) The case is called Sandoval  v. Pharmacare US, Inc., 2016 U.S. Dist. LEXIS 140717 (S.D. Cal. June 10, 2016).  The lead plaintiffs were from California and Florida.  Both alleged breaches of express and implied warranty, violations of California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, and violation of the federal Magnuson-Moss Warranty Act.  The plaintiffs sought certification of a nationwide class of disappointed IntenseX users.  The plaintiffs also grumbled that they would accept California and Florida classes as alternatives.  The court denied class certification, so there was a happy ending.  The court did so after marching through the Rule 23 analysis in a logical, straightforward fashion, so the bits leading up to the climactic noncertification were also happiness-inducing, if not intense.

As usual, the plaintiffs could establish numerosity and (more controversially) ascertainability.  Just as usual, the plaintiffs could not establish that common issues predominated over individual ones.  The plaintiffs asserted that common to all claims for all class members was whether the representations about aphrodisiac effects were likely to deceive a “reasonable consumer.”  But an inference of reliance was not available in this case because there was no evidence that consumers had been exposed to a widespread, long-term marketing campaign.  (The court drew a contrast to advertising for tobacco, a product we wanted to use immediately after reading this case.)  What’s more, there was no evidence of any shared understanding among consumers as to the promised effects of IntenseX.  Even if there was a way to characterize the promise of IntenseX marketing in some general way, the court ruled that the plaintiffs “did not present sufficient evidence that IntenseX is incapable of producing the promised effects.”   What would such evidence look like?  Even if there were declarations by some disappointed users recounting their sad experiences with IntenseX (think of a bizarro-world version of Dear Penthouse Forum letters), would they truly establish a causal nexus?  Consider all the comorbidities that might account for why consumers couldn’t get any satisfaction.  Maybe they misplaced their Lionel Richie records, or showed up on date-night wearing socks with sandals.

The plaintiffs also attempted to establish commonality and predominance via a federal regulation governing drug products offered over the counter for use as an aphrodisiac.  But IntenseX is a supplement, not a drug.  Different regulatory schemes apply.  Once again, the plaintiffs were frustrated.  (By the way, we discussed the applicable regulatory regimes in this litigation here, where we argued that the claims should have been preempted.)

As one might expect, the depositions of class members in a case of this nature ended up weakening, rather than strengthening, the plaintiffs’ claims and their request for class certification.  Our idea of the perfect deposition is one where the deponent has a personal incentive to answer the questions the way we, as the interrogator, want.  That must have happened here.  There were plaintiffs who “testified at their depositions that they did not suffer from the sexual-health problems they claim IntenseX falsely claimed to improve.”  The plaintiffs varied in terms of what materials they relied upon in deciding to purchase the product.  Some plaintiffs were clearly time-barred.  If nothing else, these variations from the complaint undermined the typicality requirement, and the court was not about to rewrite the complaint to solve that problem, assuming there was any solution in sight.

Moreover, the “substantial mismatch between Plaintiffs and the classes they propose to represent” means that there are plaintiffs raising claims and theories they have no standing to raise.  Some consumers have no cognizable injury.  Some already obtained full refunds.  After the SCOTUS opinion in Spokeo, it looks as if both class representatives and many absent members would have a problem with standing.  (And, after all, isn’t lack of standing really the key issue in this case?)

The court also questioned the plaintiffs’ effort to apply California law to a nationwide class.  The transactions took place all over the country, and there was no good reason for California law to cover all of them.  Even if you do not have a case involving class certification (or aphrodisiacs), the Sandoval case is worth reading if you are trying to fend off extraterritorial application of California laws. The plaintiffs wheeled out some cases that certified nationwide classes under California law, but the Sandoval court observed that “those cases did not apply Rule 23” and “they gave too little consideration to federalism and other states’ interests.”

Finally, the plaintiffs also sought certification under Rule 23(b)(2), which applies when the primary relief sought is an injunction or declaratory relief.  And yet the primary relief sought in this case was a full refund of the purchase price.  Given that the plaintiffs “can no longer be deceived by the alleged false labeling, monetary relief is necessarily their primary concern.” 

The court denied class certification.  Across the board.  We do not know if the author of the Sandoval opinion made it out to the Desert Trip concerts either of the last two weekends.  Indio and the Coachella Valley are not so far from San Diego.  We know, since we made that drive last week.  With a lineup of Dylan (Nobel Prize winner!), the Rolling Stones, Neil Young, Sir Paul McCartney, The Who, and Roger Waters, it is no wonder that the show was nicknamed Old-chella.  Given the subject matter and resolution of the Sandoval case, it is hard not to think of two Stones’ classics (both of which were played at the Desert Trip): “Can’t Get No Satisfaction” and “You Can’t Always Get what You Want.”

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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