United States: Loreto v. The Procter & Gamble Company: Southern District Of Ohio Grants Motion To Strike Class Allegations In Consumer False Advertising Case

Last Updated: December 10 2013
Article by Nicole A. Skolout

In a significant decision, the Southern District of Ohio granted, in full, the defendant's motion to strike class allegations in a consumer false advertising class action before any significant discovery had taken place or the plaintiffs filed a motion for class certification.  Loreto v. The Procter & Gamble Company, No. 1:09-cv-815, 2013 U.S. Dist. LEXIS 162752 (S.D. Ohio Nov. 15, 2013).  In addition to the fact the court granted an early motion to strike, the decision contains favorable rulings for defendants on the Article III requirement for absent class members, class overbreadth, the commonality requirement, and the individual nature of the causation (and/or reliance) elements contained in most consumer protection statutes.

The complaint alleged that P&G falsely advertised two over-the-counter cold and flu remedies in violation of each of the fifty state's consumer protection laws.  P&G moved to dismiss and in September 2010, the district court granted the motion with prejudice.  737 F. Supp. 2d 909 (S.D. Ohio 2010).  The plaintiffs appealed, and in February 2013, the Sixth Circuit Court of Appeals affirmed the dismissal of all claims except for one claim asserted under the New Jersey Consumer Fraud Act ("NJCFA") with respect to a single advertising statement (that Vitamin C "won't cure a cold, but . . . can help blunt its effects").  515 Fed. Appx. 576 (6th Cir. 2013).

After the Sixth Circuit's decision, P&G moved to strike the class allegations, relying on Rule 23(c)(1)(A) of Federal Rule of Civil Procedure, and the Sixth Circuit's decision in Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011), which confirmed the principle that a district court should determine "[a]t an early practicable time" in a case whether class treatment is appropriate.  P&G argued that the putative class consisting of all New Jersey residents who purchased the products was overbroad, and that the commonality, typicality, and predominance requirements could not be met.  In support of its motion, P&G  submitted evidence, including the packaging and advertisements for the products, copies of Vicks.com web pages from the Internet Archive, and Vicks.com website page view records.  The plaintiffs responded that the motion was premature, that further discovery was required for the court to make a determination as to whether the class could be certified, and that a motion to strike could only be granted if it was clear from the face of the complaint that a class could not be certified.

In granting the motion to strike class allegations, the court rejected the plaintiffs' arguments.  It noted that P&G had provided the court with all of the packaging and advertisements for the products which showed that the "blunt its effects" statement was not in any of the advertisements, the web pages from the Vicks.com website which showed that the statement only appeared on a "tips" page among other general health and wellness tips, and the page view records for the Vicks.com website which showed that the "tips" page received only a few thousand page views during the time the statement was on the website.  The court found that the plaintiffs did not contest or dispute any of these facts or identify any further discovery that could alter the fact that the statement did not appear in the products' advertisements.  Instead, citing to Pilgrim, the court concluded that "further discovery and briefing on the certification issue would simply postpone the inevitable conclusion that the putative class cannot be certified," and noted that the case "is precisely the type of case that Pilgrim anticipated."

The court then addressed its decision to strike the class allegations.  First, it stated that "[w]hile individual class members do not have to submit evidence of personal standing, a class cannot be certified if any members in the class would lack Article III standing."  Most class members lacked Article III standing because they "did not suffer an injury that is causally connected" to the "blunt its effects" statement since most were never even exposed to that statement.  Second, the court found, independent of the Article III requirement, that "[a] class is overbroad if it includes significant numbers of consumers who have not suffered any injury or harm."  The putative class was overly broad because it "would consist primarily of uninjured class members," most of whom had never been exposed to the "blunt its effects" statement.  Third, the court cited the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2551 (2011), and ruled that found that the "commonality requirement was not met "because there is no actionable representation that was uniformly communicated to all or most putative class members," and given that most consumers who purchased the products never saw the "blunt its effects" statement, they "could not have suffered an injury as a result of that statement."  Fourth, the typicality requirement was not met because "very few, if any, putative class members were ever even exposed to, let alone injured by the 'blunt its effects' statement, and therefore have no claim against P&G."  Finally, the court found that individual issues would predominate.  The court stated that an NJCFA claim "require[s] a 'causal relationship' between the allegedly unlawful conduct (the advertising) and class members' injuries," which could not be established on a classwide basis because the "blunt its effects" statement was not uniformly communicated to the entire class, and because "individual inquiries would be required to determine whether the 'blunt its effects' statement played a role in each class member's decision to purchase the Products."

While early motions to strike class allegations have generally been disfavored, the recent Loreto and Pilgrim decisions, along with others, indicate that defendants should consider filing an early motion to strike class allegations.  Although the success of a motion to strike will depend on the jurisdiction in which the case is pending (for example, the case law is particularly favorable in the Sixth Circuit), and the facts of the case, there is a growing body of case law that supports the notion that a court should decide the certification question early, if possible, to avoid the unnecessary expense of additional discovery and briefing where it is clear that the requirements for certification cannot be met.  In addition, the Loreto decision highlights a number of arguments that can be used to attack certification, whether in the context of a motion to strike or in opposition to a motion for class certification.  The standing of absent class members, (over)breadth of the class, and the individual nature of causation (and/or reliance) elements present in most consumer protection statutes, are important considerations for defendants in the class certification context.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions