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So Much For “Improved Memory”: Prevagen Class Decertified Post-Trial Due To Lead Plaintiff’s Forgetful Testimony

A California district court recently decertified, after a jury trial, a class of vitamin supplement purchasers in a false advertising case.  As we detailed in a prior post, a federal judge declared a mistrial in the same case earlier this this year after the jury deadlocked.  The case, Racies v Quincy Bioscience, LLC, 15-cv-00292 (N.D. Cal.) (Gilliam, J.), was already interesting because certified class actions rarely make their way to trial.   And it is rarer still for a district court to decertify a class following a trial.  But setting those procedural quirks aside, the opinion may prove useful for defendants seeking to decertify or defeat putative classes on typicality and predominance grounds.  

First, some background:  The named plaintiff in Racies alleged that Quincy—a supplement maker—had deceptively advertised that its brain health supplement Prevagen (1) “improves memory” and (2) “supports brain function, sharper mind, and clearer thinking.”  Back in 2017, the court certified a damages class consisting of all California purchasers of Prevagen products, reasoning that the plaintiff was typical of the putative class members, because he said at his deposition that he “was motivated to purchase” the supplement because of those two representations.  And because Prevagen was not “marketed for uses other than improving brain health,” the court held, the plaintiffs could prove class-wide reliance.  The “improves memory” and “supports brain function” claims, the court reasoned, must have been a “substantial factor” in “Plaintiff’s—and all consumers’—purchasing decisions.”

But then the parties went to trial, and the named plaintiff faced a live cross-examination.  Unlike at his deposition, the named plaintiff testified “couldn’t honestly tell” whether he purchased any Prevagen products bearing either of the allegedly misleading representations.  Even more curious:  Despite claiming at class certification that “every package of Prevagen” included the allegedly misleading (1) “improves memory’” or (2) “supports brain function” message, at trial, plaintiff’s counsel did not introduce “a single Prevagen bottle” or product label containing those statements.  The evidence instead showed that the named plaintiff might have purchased a Quincy product bearing a different claim: “Brain Cell Protection.”  But the label on that bottle did not include any representations about “improv[ing] memory” or “support[ing] healthy brain function.”

Ultimately, the jury could not return a verdict, and in January of this year, the court declared a mistrial.  Last month, the court granted Quincy’s motion for decertification, concluding that the named plaintiff’s trial testimony was fatal to Rule 23’s adequacy, typicality and predominance requirements.  First, the court found that the named was neither typical of the absent class members nor an adequate representative, because he couldn’t recall whether “he saw and relied on the representations on which he claims the other class members relied.”  Although Rule 23’s typicality and adequacy requirements did “not require Plaintiff to recite verbatim the precise language of the alleged representation,” he at least needed to “establish that he saw the same alleged misrepresentations that are on the products” to demonstrate his suitability as a class representative. 

Second, the court held that the plaintiff couldn’t satisfy Rule 23(b)(3)’s predominance requirement.  Each of the plaintiff’s state-law claims include a “reliance” element, which requires proof that purchasers saw and relied upon the challenged labeling statements to their detriment.  The court had presumed class-wide reliance at class certification based on the plaintiff’s arguments that all class members would have seen the challenged claims on the product labels when making a purchase decision.  But that presumption collapsed at trial, because of “Plaintiff’s admission that he couldn’t honestly say whether he was exposed to the alleged misrepresentations that were the basis of the class being certified.”  Put simply, when the named plaintiff himself could not even recall having seen and relied on the challenged statement, the court could not presume that the entire class relied on the statement. 

Although the court decertified the class, it denied the defendant’s motion for judgment as matter of law on the plaintiff’s individual claims.  Applying the deferential standard for JMOLs, the court concluded that “many questions” remained about “what product the plaintiff bought and what the label on that product said.”  A few weeks later, the parties dismissed the case by stipulation.

Although the procedural posture of the Racies trial is a bit unusual, the court’s post-trial decision offers some important takeaways for false advertising class actions generally.  For starters, class certification orders are not carved in stone.  Courts will decertify a class, even before trial, when new evidence shows class-wide resolution is no longer appropriate.  And even if a certified class makes it to trial, the “common issues” linking class members may fall apart when the named representatives are subjected to cross-examination.   There are, of course, considerable risks to trying a class action, but Racies shows the potential rewards to defendants that decline to settle even after class certification is granted.

Second, Racies demonstrates the importance of pressing named plaintiffs vigorously on their personal experiences of purchasing the challenged products.  Rule 23’s typicality, predominance, and adequacy requirements (in addition to Article III standing) turn on whether the class representative’s story can withstand scrutiny.  Here, when asked directly, the named plaintiff could no longer even recall buying a product bearing the allegedly false label claims.  And that, the court held, made it impossible for him to show his claims were typical or that common questions predominated over individual ones.  That same logic should apply when other class representatives cannot recall the details—what the label said, why they were interested in the product, etc.—of their purchases.  It behooves defendants to test the named plaintiffs’ stories—and expose any memory lapses and credibility issues—at the first opportunity.

Finally, the decision reinforces the limits of the “presumption” of classwide reliance that California courts sometimes apply in mislabeling class actions.  We have doubts that such a “presumption” is ever appropriate—at least in federal court—given the Supreme Court’s clear statements that “[a] party seeking class certification must affirmatively demonstrate his compliance” with Rule 23’s requirements, and that “[a]ctual, not presumed, conformance” with those requirements is “indispensable.”  Regardless, that “presumption” can be rebutted through evidence that class members—in this case, even a single one—did not necessarily see or rely upon the challenged labeling claim when buying the product.  Defendants should think creatively about ways to demonstrate that consumers do not uniformly view or rely upon a marketing claim, even when that claim appears directly on product packaging