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Did You See That?  Defeating Class Certification Where Class Members Did Not See the Challenged Advertisement

In putative class actions alleging false advertising, plaintiffs often argue that class certification is appropriate because the language being challenged appeared on the defendant’s marketing materials or product label, thereby making the class members’ experience—and the question(s) to be resolved—common.  These plaintiffs invariably claim that individualized questions of deception and reliance do not defeat certification, because consumer protection statutes employ an objective, “reasonable consumer” test that does not turn on what each individual class member actually thought or believed.

However, there is often evidence that many of the purported class members did not even see the challenged statement(s) in the first place.  Courts have generally held that, objective test or no, class certification is not appropriate in cases where it cannot be assumed that all or nearly all class members actually viewed the challenged statement—for example, where the challenged statement was written in small type or placed on the product’s back label, or was not present on some label versions at all.  This blog post discusses three circumstances in which this defense has been used successfully to defeat class certification.

Rule 23 and Statutory Reliance and Causation Requirements

In order to obtain class certification in a consumer class action, plaintiffs must prove that the elements of Rule 23 are satisfied, including the Rule’s commonality, typicality, and predominance requirements.  Courts’ analyses of these criteria often turn on whether plaintiffs can prove, through common evidence, the deception, reliance, and/or causation elements of their state-law causes of action.  To make that showing, plaintiffs need to establish, as a threshold matter, that every class member was exposed to the challenged advertising claim.  However, if a potential class member did not see the challenged advertisement, she necessarily was not deceived by that statement, she necessarily did not rely on that statement, and the statement necessarily could not have caused her to purchase the product. 

Therefore, defendants often argue—and courts routinely agree—that class certification is inappropriate if resolution of plaintiffs’ claims would require individualized inquiries into whether each class member actually saw the challenged statement.  Courts recognize that hundreds or thousands of such individual inquiries would predominate over any common questions, thereby making adjudication by class action inferior to other methods.  This outcome commonly arises in three circumstances: where the challenged statement appears in a print, television, or online advertisement (rather than on a product label); where the challenged statement appeared for just a limited time in the product’s lifespan (on only one of multiple label versions); and where the challenged statement appeared in small type or an inconspicuous location on the label.

Challenges to Print, Television or Online Advertising

In some instances, purported class actions may take aim at statements (or omissions) in places other than a product’s label, such as in print, on a website, or in television advertisements. In these cases, because the advertisement is typically disseminated only to an indeterminate subset of all purchasers, many or even most consumers who bought a particular product may never have seen the particular advertising statement at issue.  For example, in Mazza v. American Honda Motor Co., plaintiffs alleged that Honda failed to disclose issues with its braking system in television and magazine advertisements and on its website.[1]  The Ninth Circuit reversed the district court’s order granting class certification, explaining that it would be improper to apply a “presumption of reliance … because it is likely that many class members were never exposed to the allegedly misleading advertisements” at all.

The court in Zakaria v. Gerber Products Co. reached the same conclusion.[2]  Plaintiffs there claimed that Gerber falsely stated in print advertisements, television commercials, and on its website that Gerber baby formula reduced the risk of allergic reactions.  However, defendants were able to show that “most of these advertisements or promotions occurred for short periods of time,” such as a television commercial that ran for five weeks and a magazine article that “ran intermittently for approximately 14 months.”  Accordingly, the court refused to certify a class based on the alleged misstatements in the print, television, and online advertisements.

One notable case where the court reached the opposite conclusion is In re Tobacco II Cases. [3]  There, plaintiffs challenged print advertisements for cigarettes as falsely disputing the link between smoking and lung cancer.  The trial court granted class certification, rejecting defendants’ argument that certification was improper because proving causation required individualized inquiries.  The Supreme Court of California affirmed, explaining that because the record showed that defendants had engaged in a “decades-long,” “extensive” advertising campaign, it was reasonable to presume that the challenged advertising was viewed by each class member and caused his or her alleged injury—thereby avoiding the need for individualized causation inquiries.  Later cases, such as the ones discussed above, have made clear that Tobacco II is largely confined to its facts, given the exceptional nature of the advertising campaign at issue in that particular case. 

Challenges to Language that Appeared on a Subset of Many Label Versions

Another group of cases in which courts have denied certification involve circumstances where the challenged language did not appear on every version of the product’s label, leading to non-uniform reliance or causation across class members.  As a general matter, some statutory claims permit a presumption of reliance or causation when a uniform labeling claim is at issue.  But that presumption is readily overcome when the claim did not actually appear on some versions on the label that class members viewed.  For example, in In re Clorox Consumer Litigation, plaintiffs challenged a claim on Fresh Step cat litter stating that the product was more effective at eliminating cat odors than other similar products.[4]  However, Clorox showed that the product packaging had changed many times during the class period, and that ten versions of the packaging did not include the challenged statement.  Based on this evidence, the court concluded that the plaintiffs had not proven that “many, or even most, members of the proposed classes [saw], much less rel[ied] upon” the challenged statement.  The court denied class certification on this basis because individualized inquiries into reliance and causation would predominate over common questions.

Similarly, in Pfizer Inc. v. Superior Court, the plaintiffs claimed that Listerine mouthwash product labels misleadingly suggested that the product could replace the use of dental floss in reducing plaque and gingivitis.[5]  The trial court granted class certification, but the California Court of Appeal reversed.  The appellate court pointed to evidence showing that over half of Listerine bottles sold during the class period had labels that did not contain the challenged floss-comparison statement, and therefore “the majority of class members who purchased Listerine” necessarily did so for reasons unrelated to the challenged statement.  As that court explained, however far the so-called presumption of reliance may reach, “one who was not exposed to the alleged misrepresentations and therefore could not possibly have lost money or property as a result of the [challenged conduct] is not entitled to restitution.”  This warranted reversal of the class certification order.

Challenges to Labeling Statements in Small Print or Inconspicuous Placement

Finally, a presumption of uniform reliance and causation can be rebutted when the challenged statement appeared in small print on a product label or in a location where many consumers might not have noticed it.  For example, in Hadley v. Kellogg Sales Co., plaintiffs alleged that Kellogg’s falsely touted the health benefits of several products by using the phrase “wholesome goodness” on the product label.[6]  The phrase appeared on a back panel of the product packaging, in a small font, and in the middle of a block of text.  This was enough for the court to conclude that the statement was not “prominently displayed,” such that an inference of classwide exposure was not warranted.  The court distinguished another challenged statement (“lightly sweetened”) that appeared “in the center of the front panel” of the product packaging, which it found was sufficiently prominent to infer classwide exposure.

So too in Zakaria, the baby formula case discussed above.  The court found that the challenged statements regarding a lower risk of allergies appeared in “small font and sometimes located on the back or inside cover” of the product, as shown in the image below.[7]  For this reason too, the court rejected an inference that all consumers in the proposed class would have seen—let alone relied on—the challenged statement.

In some cases, defendants are able to go beyond inferences from text placement and font size and proffer actual empirical evidence demonstrating that the vast majority of class members did not see the challenged statement.  For example, in Clorox (the cat litter case), the defendant conducted a survey showing that just 11 percent of consumers read the back panel of the cat litter packaging, where the challenged statement appears.[8]  The court found this to be “powerful evidence,” which further supported its conclusion that most members of the proposed classes did not see the challenged statements.

Even more direct evidence was proffered in Sevidal v. Target Corp., in which the plaintiffs challenged the accuracy of a “Made in USA” claim for certain products listed on Target’s website.[9]  The “Made in USA” statement was visible only if the viewer clicked on an “Additional Info” link on the main product page, and Target submitted clickthrough data showing that the vast majority of actual members of the putative class did not click on the “Additional Info” link before making the purchases at issue in the case.  Based on this evidence, the appeals court affirmed the denial of class certification because individualized inquiries would be required to determine whether each class member had been exposed to the “Made in USA” statement by clicking on the “Additional Info” icon.

Similarly, the Ninth Circuit in Moorer v. StemGenex Med. Grp., Inc. rejected a class definition that included consumers who did not see a challenged statement on the defendant’s website.[10]  The plaintiffs claimed that StemGenex misleadingly marketed its stem cell treatment by posting allegedly deceptive “Patient Satisfaction Ratings” on its website.  The Ninth Circuit explained that the proposed class was overbroad to the extent it included those who viewed the website but did not scroll down and view the Patient Satisfaction Ratings.  The appeals court remanded with instruction to the district court to limit the class definition to only those consumers who saw the Patient Satisfaction Ratings.  Of course, determining who actually scrolled down and saw those ratings is an individualized question, so this narrowing of the class definition may ultimately require decertification of the class altogether.

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Predominance and superiority are good targets for defendants looking to defeat class certification in false advertising cases, and defendants have fared well in doing so where the record suggests or shows that a significant portion of the proposed class did not even see the challenged advertising statement.  Defendants should carefully consider what evidence can be gathered from their records or developed through survey evidence, expert testimony, or plain common sense in anticipation of opposing a class certification motion. 

To read an adapted version of this blog post published in Law360, please click here.

[1] 666 F.3d 581, 585-86 (9th Cir. 2012). 

[2] 2016 U.S. Dist. LEXIS 184861 (C.D. Cal. Mar. 23, 2016). 

[3] 46 Cal. 4th 298, 308 (Cal. 2009). 

[4] 301 F.R.D. 436, 439 (N.D. Cal. 2014). 

[5] 182 Cal. App. 4th 622, 625 (Cal. App. Div. 2010).

[6] 324 F. Supp. 3d 1084, 1091 (N.D. Cal. 2018).

[7] 2016 U.S. Dist. LEXIS 184861, at * 22. 

[8] 301 F.R.D. at 444. 

[9] 189 Cal. App. 4th 905 (Cal. App. Div. 2010). 

[10] 830 Fed. App’x 218 (9th Cir. 2020).