On March 16, 2017, the Southern District of California certified a class action against the manufacturer of gingko biloba and Costco Wholesale Corporation, the seller.

Plaintiff alleged, on behalf of a putative class of California purchasers of TruNature Gingko, that the product does not provide any mental clarity, memory, or mental alertness benefits. Plaintiff's claims were brought under California's unfair competition law and California's Consumer Legal Remedies Act.

The district court determined that plaintiff's proposed class action satisfied all of the requirements for certification. This was so, in large measure, because plaintiff set the bar for herself to prove that the product was in fact worthless: "According to Plaintiff, anyone who purchased TruNature Gingko suffered the same harm because they would not have purchased TruNature Gingko but for these false statements and as a result paid money for a worthless product." That is, "Plaintiff's entire lawsuit rides on her claim that TruNature Gingko provides no benefits and that the statements on the product labels are false. The answer to these questions will be the same for the entire class. Likewise, the determination of whether the statements on the label are material and likely to deceive a reasonable consumer will be the same for the entire class."

Specifically, plaintiff argued that "TruNature Gingko has no value whatsoever and that any perceived benefits by consumers are merely the result of a placebo effect." The district court concluded that, "[i]f Plaintiff can prove that TruNature Gingko does not have any impact on brain health or memory and therefore does not perform as advertised on the labels and is worthless, the putative class will be entitled to restitution of the full amount they paid for the product."

In reaching its conclusion, the district court distinguished cases where the products at issue "could provide some value to their purchasers even if they did not perform as advertised and for which it strains credulity to argue that no consumers would have purchased them if not for the allegedly false statement." Thus, the crux of plaintiff's allegations is that TruNature Gingko provides zero benefit and is completely worthless.

Korolshteyn v. Costco Wholesale Corp., No. 3:15-cv-709-CAB-RBB, 2017 WL 1020391 (S.D. Cal. Mar. 16, 2017).

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