We recently blogged about one of the recent “class standing” decisions holding that a named plaintiff has standing to represent a class on false advertising claims challenging products the named plaintiff never purchased with labels the named plaintiff never saw. According to that decision, so long as the products that were purchased by the named plaintiff were “sufficiently similar” to the products purchased by the putative class, the named plaintiff had the requisite “sufficient ‘personal stake’ in the litigation” for standing purposes. For example, a named plaintiff who purchased only a few varieties of green tea had standing to sue in the name of a nationwide class challenging similar advertising of dozens of other tea varieties.
Even as some courts have found in favor of plaintiff on this threshold standing question, however, they recognize that it is but a single step along the way to class certification. Another major hurdle these plaintiffs face is to demonstrate that their claims are “typical” of those class members who purchased different products. In a recent decision, the Northern District of California made clear that this hurdle often will be insurmountable.
In Major v. Ocean Spray Cranberries, Inc., 2013 WL 2558125 (N.D. Cal. June 10, 2013), the plaintiff alleged that Ocean Spray’s product labels were false or deceptive in violation of California’s consumer protection laws. The plaintiff herself had bought only a few Ocean Spray products. But that didn’t stop her from suing in the name of a nationwide class of all purchasers of the entire gamut of Ocean Spray’s “100% Juice” products, “Sparkling” beverages, “Juice Drinks,” and “Cherry” products.
In ruling on class certification, Judge Davila started with Rule 23(a)(3)’s requirement “that Plaintiff’s claims be typical of those that would be advanced by the proposed class.” Judge Davila explained that typicality requires that “in determining whether to certify a class a district court must ‘ensure that the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees’ interest will be fairly represented.’” Among other things, “‘a class representative must . . . suffer the same injury as the class members.’”
Judge Davila added that when these principles are applied to “cases involving several products at issue—like the one presently before the Court—district courts have held that the typicality requirement has not been met where the ‘named plaintiff . . . purchased a different product than that purchased by unnamed plaintiffs.’” Judge Davila concluded that this case was no different, and held that “the proposed class representative . . . has not met her burden of showing that her claims are typical of those of the proposed class members.”
As Judge Davila explained, “[T]he typicality requirement has not been met” because “Plaintiff’s proposed classes are so broad and indefinite that they encompass products that she herself did not purchase” and “had nothing to do with.” Thus, purchasing Ocean Spray’s “Diet Sparkling Pomegranate Blueberry drink,” as the named plaintiff did, does not satisfy the typicality requirement over the entirety of Ocean Spray’s “Sparkling” line of products, because the various products may have differing labels and nutrition claims.
Plaintiff’s counsel responded to the decision by saying they intended “to refine” the complaint “to address the court’s articulated opinion.” [San Jose Judge Sets Up Roadblock for Plaintiff’s Lawyers in Food Labeling Case (LA Daily Journal June 12, 2013).] We’ll see.