In a recent federal California district court decision, Chow v. Neutrogena Corp, the Court denied plaintiff’s motion seeking to certify a nationwide class of consumers alleging that Neutrogena falsely represented that certain anti-wrinkle products were “clinically proven” to a cause a person to look younger. The district court held that plaintiff, when put to the “rigorous analysis” required by the Supreme Court’s watershed decision in Wal-Mart Stores, Inc. v. Dukes did not satisfy the elements required to obtain class certification.
The Court began, relying on Dukes, by denying plaintiff’s request to seek certification of an injunctive class only, pursuant to Federal Rule of Civil Procedure 23(b)(2), noting that “given the magnitude of the dollar amount of restitution at stake and the lack of adequate injunctive remedy to relieve the alleged class injuries, it is evident that money damages are the true purpose of this action.” The Court went on to reject certification under the more stringent Rule 23(b)(3) requirements, which mandate class certification only if questions of law or fact common to class members are predominate over questions affecting only individual members. In particular, the Court noted that there were significant individualized questions about whether the product worked as advertised, and “[r]esolving this question would necessitate consulting each class member individually to determine if they experienced the advertised result.” Thus, the Court rejected plaintiff’s suggestion in her motion papers that the allegation of “paying for a worthless product” was sufficient to establish a common injury.
The decision further held that plaintiff’s Consumer Legal Remedies Act (CLRA) and express warranty claims failed for the additional reason that demonstrating reliance was an individualized issue. The Court rejected the argument that the alleged misrepresentations could be subject to an inference of classwide reliance, particularly because a significant number of consumers were repeat purchasers. The Court noted that plaintiff failed to provide “significant proof to distinguish between mere favorability toward products bearing the Neutrogena brand . . . and reliance upon specific advertised benefits” or to distinguish “repeat purchasers who actually received benefits.”
The decision highlights the obstacles plaintiffs may face in obtaining certification of consumer class actions in the post-Dukes environment. And it suggests that at least some courts will not consider simply asserting that all purported class members suffered the same injury of “paying for a worthless product” as sufficient to satisfy the commonality standard, but will apply a far more rigorous analysis.