United States: A Damages Class Is Certified, but No Standing for Declaratory and Injunctive Class

Last Updated: May 11 2017
Article by David L. Luck and D. Matthew Allen

A representative plaintiff who purchased Aveeno sunscreen products and baby bath products brought putative class actions against the products' manufacturer, Johnson & Johnson, in the United State District Court for the District of Connecticut. Both of plaintiff's asserted classes challenged Aveeno's product labeling under the Connecticut Unfair Trade Practices Act (CUTPA) and the similar consumer protection laws of several other states and the District of Columbia.

As to the sunscreen products, the plaintiff challenged Aveeno's statements that they contained "100% naturally sourced sunscreen ingredients" and provided "natural protection." As to the baby bath products, the plaintiff challenged Aveeno's statements that they consisted of a "natural oat formula."

The plaintiff sought to certify a Rule 23(b)(2) class for declaratory and injunctive relief regarding the sunscreen products. However, the district court denied certification, holding that the plaintiff lacked Article III standing because she was now aware of the defendant's allegedly deceptive advertising/marketing claims, would no longer be deceived by them, and had testified in her deposition that she did not intend to buy the products again.

As the district court explained, "[i]f a plaintiff seeks prospective injunctive relief, then she must show that she is 'likely to suffer future injury' from the challenged conduct." Because this plaintiff would suffer no future injury because of the defendant's allegedly deceptive advertising/marketing, "an injunction requiring defendant to remove any misleading claim from the products would be of no benefit to plaintiff personally." The representative plaintiff must personally have standing, if she does not, the class fails.  For this reason, the district court denied certification regarding the plaintiff's proposed Rule 23(b)(2) class concerning Aveeno's sunscreen products.

In the process, though, the court recognized that some other federal district courts had reached a different standing conclusion on similar facts, reasoning that precluding a plaintiff from suing for injunctive relief after the plaintiff has become aware of the allegedly misleading advertising would defeat the purpose of state consumer protection statutes that authorize such plaintiffs to pursue injunctive relief. In response to those contrary decisions, the Langan court reasoned that "[r]egardless of the salutary purpose of consumer protection statutes, they cannot alter the bedrock requirements for federal constitutional standing." Further, in federal court, the objectives of those laws may still be vindicated, in proper cases, through actions seeking money damages.

Regarding the plaintiff's challenge to the "natural oat formula" baby bath product labeling, she sought certification of a Rule 23(b)(3) class for money damages. The district court agreed that certification was proper as to this proposed class, which sought to proceed under the similar consumer protection laws of Connecticut and 17 other U.S. jurisdictions.

First, there was no real dispute as to numerosity. The proposed class clearly involved millions of dollars and thousands of customers.

Second, Rule 23(a)'s commonality requirement was met because the class members suffered the same alleged injury from violations of the same, or substantially similar, consumer protection laws. Per the district court, the "natural oat formula" labeling claim was "indisputably made to the whole class," and the plaintiff's experts – whom the court refused to exclude on Daubert/F.R.E. 702 grounds – provided evidence that the "natural oat formula" advertising claim was material to reasonable consumers and led them to pay a price premium. The typicality requirement was satisfied for the same reasons.

Adequacy was also satisfied despite the representative plaintiff's preexisting friendship with one of her legal counsel. The district court recognized that this type of non-intimate, non-financial acquaintance between the representative plaintiff and one of her lawyers did not create a fundamental conflict between her and the other class members. Further, the representative plaintiff's general knowledge of the suit and review of the operative complaint before filing were sufficient to apprise her of the action.

Rule 23(b)(3)'s predominance and superiority requirements were also satisfied. As to predominance, the class members' claims were subject to generalized proof regarding the reasonably perceived nature of the defendant's advertising claims; the defendant's own internal documents recognized the significance of this labeling/advertising and the fact that consumers were willing to pay a premium for "natural" products; and the consumer-protection laws of the relevant jurisdictions were substantially similar.

As to superiority, a class action was the best means of resolving this dispute because "the relatively modest damages that might be recovered by any single consumer would likely make the cost of individual litigation prohibitive."

Finally, the district court rejected an "ascertainability" argument asserted by the defendant. According to the court, it was administratively feasible to identify the class members through affidavits of purchase.

Langan v. Johnson & Johnson Consumer Companies, Inc., No. 3:13-CV-1470 (JAM), 2017 WL 985640 (D. Conn. Mar. 13, 2017).

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.

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