Dino Rikos v. The Procter & Gamble Co. , 799 F.3d 497 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0199p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DINO RIKOS et al., ┐
Plaintiffs-Appellees, │
│
│ No. 14-4088
v. │
>
│
THE PROCTER & GAMBLE COMPANY, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:11-cv-00226—Timothy S. Black, District Judge.
Argued: June 16, 2015
Decided and Filed: August 20, 2015
Before: MOORE and COOK, Circuit Judges; COHN, District Judge.*
_________________
COUNSEL
ARGUED: Brian J. Murray, JONES DAY, Chicago, Illinois, for Appellant. Timothy G. Blood,
BLOOD HURST & O’REARDON, San Diego, California, for Appellees. ON BRIEF: Brian J.
Murray, JONES DAY, Chicago, Illinois, D. Jeffrey Ireland, FARUKI IRELAND & COX P.L.L.,
Cincinnati, Ohio, Joanne Lichtman, BAKER & HOSTETLER LLP, Cleveland, Ohio, Chad A.
Readler, Rachel Bloomekatz, JONES DAY, Columbus, Ohio, for Appellant. Timothy G. Blood,
Leslie E. Hurst, Thomas J. O’Reardon II, BLOOD HURST & O’REARDON, San Diego,
California, for Appellees.
MOORE, J., delivered the opinion of the court in which COHN, D.J., joined. COHN,
D.J. (pg. 37), delivered a separate concurring opinion. COOK, J. (pp. 38–40), delivered a
separate dissenting opinion.
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.
1
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. The named plaintiffs-appellees (“Plaintiffs”)
are three individuals who purchased Align, Procter & Gamble’s (“P&G”) probiotic nutritional
supplement, and found that the product did not work as advertised—that is, it did not promote
their digestive health. Plaintiffs subsequently brought suit, alleging violations by P&G of
various state unfair or deceptive practices statutes because it has not been proven scientifically
that Align promotes digestive health for anyone. On June 19, 2014, the district court certified
five single-state classes from California, Illinois, Florida, New Hampshire, and North Carolina
under Federal Rule of Civil Procedure 23(b)(3) comprised of “[a]ll consumers who purchased
Align . . . from March 1, 2009, until the date notice is first provided to the Class.” On appeal,
P&G contends that the district court abused its discretion in granting Plaintiffs’ motion for class
certification. For the reasons set forth below, we AFFIRM the district court’s judgment granting
class certification to Plaintiffs.
I. BACKGROUND
A. Facts
Align contains a patented probiotic strain, Bifidobacterium infantis 35624 (“Bifantis”),
which it developed in the 1990s and early 2000s in partnership with Alimentary Health, a
company based in Ireland. Sealed App. at 497. According to the World Health Organization,
probiotics are “live microorganisms . . . which when administered in adequate amounts confer a
health benefit to the host.” R. 108-8 (Komanduri Decl. ¶ 12) (Page ID #1596). “While there is a
consensus within the medical and scientific communities that utilizing bacteria as a therapeutic
measure in human disease is promising, current knowledge of the use of bacteria for these
purposes remains fairly primitive.” Id. ¶ 13 (Page ID #1596). Although a limited number of
probiotics have been approved as prescription treatments for pouchitis and infectious diarrhea,
the overall “[m]edical understanding of probiotics in humans is still in its infancy.” Id. ¶¶ 13–14
(Page ID #1596–97).
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 3
Align is not a prescription probiotic. Instead, it is marketed to the general public as a
supplement that “naturally helps build and support a healthy digestive system, maintain digestive
balance, and fortify your digestive system with healthy bacteria.” Appellant Br. at 12
(alterations omitted). In addition, unlike some other non-prescription probiotics, Align is not
included as an add-on ingredient to another consumer product (e.g., yogurt), but is rather sold in
a capsule that is “filled with bacteria and [otherwise] inert ingredients.” R. 140 (Dist. Ct. Order
at 30) (Page ID #6444).
P&G began selling Align in various test markets in October 2005, with sales
representatives dropping off samples to doctors’ offices in St. Louis, Boston, and Chicago.
Sealed App. at 410. P&G was also able to sell a limited amount of product online, although
“physician-driven sales outpaced internet-driven sales by about 2:1.” Id. One of the initial
hurdles faced by P&G was convincing consumers of the product’s value, particularly given
Align’s premium price point. See id. at 535 (company document noting that “[v]alue is a trial
barrier due to the premium price point of $29.99. Probiotics on shelf at major retailers range
from $9.99-$29.99. Of note, other probiotics detailed through physicians cost upwards of $45”)
(emphasis added). After a successful rollout across multiple markets, P&G launched Align
nationwide in 2009, promoting Align through a comprehensive advertising campaign, which
included in-person physician visits, television and print advertisements, in-store displays, and
product packaging. Appellant Br. at 11–12.
B. Procedural History
Dino Rikos, Tracey Burns, and Leo Jarzembrowski, the named plaintiffs-appellees, are
residents of Illinois, Florida, and New Hampshire, respectively. From 2009 to 2011, Rikos,
Burns, and Jarzembrowski were “exposed to and saw Procter & Gamble’s claims by reading the
Align label.” R. 85 (Second Amended Class Action Compl. ¶¶ 10–12) (Page ID #963–64). In
reliance on P&G’s claims of Align’s effectiveness, they proceeded to purchase Align at various
stores in California, Illinois, North Carolina, Florida, and New Hampshire.
In their complaint, Plaintiffs allege that they “suffered injury in fact and lost money as a
result of the unfair competition described [t]herein” after finding that Align did not provide them
with the digestive benefits that it promised to provide. Id. Plaintiffs initially filed suit in the
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 4
United States District Court for the Southern District of California, but the case was eventually
transferred to the Southern District of Ohio. R. 25 (S.D. Cal. Dist. Ct. Order at 4) (Page ID
#374). In January 2014, Plaintiffs filed a motion and memorandum in support of class
certification. Sealed App. at 15–63. In their motion, Plaintiffs requested that the district court
certify the following five single-state classes and appoint them as class representatives:
California Class (Represented by Plaintiff Dino Rikos): All consumers who
purchased Align in California from March 1, 2009, until the date notice is first
provided to the Class.
Illinois Class (Represented by Plaintiff Dino Rikos): All consumers who
purchased Align in Illinois from March 1, 2009, until the date notice is first
provided to the Class.
Florida Class (Represented by Plaintiff Tracey Burns): All consumers who
purchased Align in Florida from March 1, 2009, until the date notice is first
provided to the Class.
New Hampshire Class (Represented by Plaintiff Leo Jarzenbowski [sic]): All
consumers who purchased Align in New Hampshire from March 1, 2009, until the
date notice is first provided to the Class.
North Carolina Class (Represented by Plaintiff Tracey Burns): All consumers
who purchased Align in North Carolina from March 1, 2009, until the date notice
is first provided to the Class.
Excluded from each of the Classes are the defendant, its officers, directors, and
employees, and those who purchased Align for the purpose of resale.
Id. at 16.
After hearing oral argument from both sides, the district court issued an order granting
Plaintiffs’ motion for class certification. In its order, the district court made clear that it was not
attempting to provide a ruling on the merits of the case (i.e., whether or not Align promotes
digestive health), but was instead reviewing only whether Plaintiffs had presented sufficient
evidence to satisfy Federal Rule of Civil Procedure 23. R. 140 (Dist. Ct. Order at 5–6) (Page ID
#6419–20). It then determined that class certification was proper. Id. at 1, 38 (Page ID #6415,
6452). P&G has timely appealed.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 5
II. ANALYSIS
A. Standard of Review
“Class certification is appropriate if the [district] court finds, after conducting a ‘rigorous
analysis,’ that the requirements of Rule 23 have been met.” In re Whirlpool Corp. Front-
Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851 (6th Cir. 2013) (quoting Walmart Stores,
Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)). Nonetheless, we have noted that “[t]he district
court maintains substantial discretion in determining whether to certify a class, as it possesses the
inherent power to manage and control its own pending litigation.” Beattie v. CenturyTel, Inc.,
511 F.3d 554, 559 (6th Cir. 2007) (internal quotation marks omitted). We review the district
court’s decision to grant or deny class certification under an abuse-of-discretion standard. Id.“An abuse of discretion occurs when we are left with the definite and firm conviction that the
[district] court . . . committed a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors or where it improperly applies the law or uses an erroneous legal
standard.” United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002) (alterations in original)
(internal quotation marks omitted).
B. Rule 23(a)1
1. Plaintiffs Have Sufficiently Demonstrated Commonality
Federal Rule of Civil Procedure 23(a)(2) states that “[o]ne or more members of a class
may sue or be sued as representative parties on behalf of all members only if . . . there are
questions of law or fact common to the class.” “Commonality requires the plaintiff to
demonstrate that the class members have suffered the same injury.” Dukes, 131 S. Ct. at 2551(internal quotation marks omitted).
P&G contends that, like the plaintiffs in Dukes, Plaintiffs here have failed sufficiently to
demonstrate commonality. According to P&G, Dukes requires that named plaintiffs present
evidence proving that class members suffered an actual common injury to establish
commonality. Appellant Br. at 25–26. P&G argues that Plaintiffs here have presented only
1
P&G has not challenged on appeal two other requirements of Federal Rule of Civil Procedure 23(a),
numerosity and adequacy of representation.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 6
anecdotal evidence that Align does not work for them—Plaintiffs have “presented no evidence
that the reported consumer benefits [of Align to all purchasers] were due solely to the placebo
effect.” Id. at 29. Instead, P&G claims that “consumer satisfaction—and repeat purchasing—is
probative of Align’s benefits to consumers.” Id. In addition, P&G notes that at least some
studies appear to conclude that Align is effective in promoting digestive health.2
P&G misconstrues Plaintiffs’ burden at the class-certification stage. Whether the district
court properly certified the class turns on whether Plaintiffs have shown, for purposes of Rule
23(a)(2), that they can prove—not that have already shown—that all members of the class have
suffered the “same injury.” Dukes, 131 S. Ct. at 2551. The Supreme Court in Dukes did not
hold that named class plaintiffs must prove at the class-certification stage that all or most class
members were in fact injured to meet this requirement. Rather, the Court held that named
plaintiffs must show that their claims “depend upon a common contention” that is “of such a
nature that it is capable of classwide resolution—which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Id. (emphases added). In other words, named plaintiffs must show that there is a common
question that will yield a common answer for the class (to be resolved later at the merits stage),
and that that common answer relates to the actual theory of liability in the case.
Since Dukes, the Supreme Court has made clear that “Rule 23 grants courts no license to
engage in free-ranging merits inquiries at the certification stage. Merits questions may be
considered to the extent—but only to the extent—that they are relevant to determining whether
the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans
& Trust Funds, 133 S. Ct. 1184, 1194–95 (2013) (emphasis added); see also In re Whirlpool,
722 F.3d at 851–52 (“[D]istrict courts may not turn the class certification proceedings into a
dress rehearsal for the trial on the merits.” (internal quotation marks omitted)); Gooch v. Life
Investors Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012) (explaining that although
“conformance with Rule 23(a) . . . must be checked through rigorous analysis, . . . it is not
always necessary . . . to probe behind the pleadings before coming to rest on the certification
2
Although not relevant to the commonality inquiry, Plaintiffs point to flaws in the scientific studies relied
upon by P&G that Plaintiffs claim mean that it has not been proven with proper scientific analysis that Align works
for anyone who takes it. See, e.g., Sealed App. at 42–44.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 7
question, because sometimes there may be no disputed factual and legal issues that strongly
influence the wisdom of class treatment” (internal quotation marks omitted)).
A brief overview of the class claims in Dukes illustrates the Supreme Court’s more
limited holding than what P&G claims. The named plaintiffs were “three current or former Wal-
Mart employees who allege[d] that the company discriminated against them on the basis of their
sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of
1964.” Dukes, 131 S. Ct. at 2547. They sought to have a class certified of “[a]ll women
employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have
been or may be subjected to Wal–Mart’s challenged pay and management track promotions
policies and practices.” Id. at 2549 (internal quotation marks omitted). Significantly, “[t]hese
plaintiffs . . . [did] not allege that Wal–Mart ha[d] any express corporate policy against the
advancement of women.” Id. at 2548. Rather, plaintiffs “claim[ed] that the discrimination to
which they have been subjected [was] common to all [of] Wal–Mart’s female employees”
because “a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps
subconsciously, the discretionary decisionmaking of each one of Wal–Mart’s thousands of
managers—thereby making every woman at the company the victim of one common
discriminatory practice.” Id.The Supreme Court rejected this theory, finding that the plaintiffs had failed to
demonstrate that “there are questions of law or fact common to the class.” Fed. R. Civ. P.
23(a)(2). After reviewing the details of Wal-Mart’s discretionary promotion policy, the Court
noted that, “[i]n such a company, demonstrating the invalidity of one manager’s use of discretion
will do nothing to demonstrate the invalidity of another’s.” Dukes, 131 S. Ct. at 2554. Thus,
“[a] party seeking to certify a nationwide class will be unable to show that all the employees’
Title VII claims will in fact depend on the answers to common questions.” Id. The plaintiffs,
the Court noted, had presented no evidence that managers at Wal-Mart had exercised their
discretion in the same way—i.e., that they had used it to discriminate against women. It would
have been possible for some managers to discriminate in favor of women, for others to
discriminate against women, and for still others not to discriminate at all. Id.No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 8
Here, in contrast, Plaintiffs have identified a common question—whether Align is “snake
oil” and thus does not yield benefits to anyone, Appellee Br. at 7—that will yield a common
answer for the entire class and that, if true, will make P&G liable to the entire class. The district
court conducted a sufficient analysis of the record evidence in finding commonality here. It
concluded that no individual would purchase Align but-for its digestive health benefits, which
P&G promoted through an extensive advertising campaign. If Align does not provide any such
benefits, then every class member was injured in the sense that he or she spent money on a
product that does not work as advertised. No more investigation into the merits (i.e., whether
Align actually works) is needed for purposes of satisfying Rule 23(a)(2)’s commonality
requirement.3 Thus, although P&G argues that some class members were not injured because
they kept buying Align—a sign that Align works, says P&G—that is not the right way to think
about “injury” in the false-advertising context. The false-advertising laws at issue punish
companies that sell products using advertising that misleads the reasonable consumer. See, e.g.,
Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (“Appellants’ claims under
these California statutes [the Unfair Competition Law and the Consumer Legal Remedies Act]
are governed by the ‘reasonable consumer’ test. . . . Under the reasonable consumer standard,
Appellants must show that members of the public are likely to be deceived.” (internal quotation
marks omitted)). Whether consumers were satisfied with the product is irrelevant. See, e.g.,
McCrary v. Elations Co., LLC, No. EDCV 13-00242 JGB, 2014 WL 1779243, at *14 (C.D. Cal.
Jan. 13, 2014) (“Defendant’s concern that some putative class members were happy with
Elations and thus were uninjured is unpersuasive. The requirement of concrete injury is satisfied
when the Plaintiffs and class members . . . suffer an economic loss caused by the defendant,
namely the purchase of defendant’s product containing misrepresentations.” (alteration and
3
Neither FTC v. Pantron I Corporation, 33 F.3d 1088 (9th Cir. 1994), nor In re Whirlpool support P&G’s
argument that the district court did not sufficiently consider the merits of the case to grant class certification.
Pantron was not a class action, and thus the decision cited conducts a full merits analysis. The evidence we noted
that the district court properly considered in In re Whirlpool related to whether there was in fact a common question
capable of a common answer. Specifically, we highlighted evidence that confirmed that mold the class claimed was
due to design defects in Whirlpool products occurred “despite variations in consumer laundry habits.” 722 F.3d at
854. Such evidence was critical to disproving Whirlpool’s claim that “proof of proximate cause must be determined
individually for each plaintiff in the class,” i.e., that the class’s common question would not yield a common answer.
Id. Significantly, however, we did not examine whether the named plaintiffs had presented evidence that the alleged
design defects in Whirlpool products had in fact proximately caused the mold of which they complained. That issue
went solely to the merits of the case. Similarly, the evidence P&G has presented here that it claims the district court
insufficiently examined goes solely to the merits of the case, not to whether Plaintiffs’ common question will yield a
common answer.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 9
internal quotation marks omitted)). In fact, courts have held that it is misleading to state that a
product is effective when that effectiveness rests solely on a placebo effect. See, e.g., FTC v.
Pantron I Corporation, 33 F.3d 1088, 1100–01 (9th Cir. 1994).
P&G has failed to identify a single false-advertising case where a federal court has denied
class certification because of a lack of commonality. See, e.g., In re Scotts EZ Seed Litig.,
304 F.R.D. 397, 405 (S.D.N.Y. 2015) (“A common question with respect to the first theory of
liability is whether EZ Seed grows grass. If plaintiffs can prove EZ Seed ‘does not grow at all’
and thus is worthless, plaintiffs will be entitled to relief.”); Ries v. Ariz. Beverages USA LLC,
287 F.R.D. 523, 537 (N.D. Cal. 2012) (“By definition, all class members were exposed to such
representations and purchased AriZona products, creating a common core of salient facts.
Courts routinely find commonality in false advertising cases that are materially indistinguishable
from the matter at bar.” (emphasis added) (internal quotation marks and citation omitted)); see
also Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014) (distinguishing Dukes
from consumer false-advertising class actions by noting that “[w]here the same conduct or
practice by the same defendant gives rise to the same kind of claims from all class members,
there is a common question. . . . In this case, the plaintiffs’ claims and those of the class they
would like to represent all derive from a single course of conduct by Sturm: the marketing and
packaging of GSC”).
In addition, as Plaintiffs point out, every court has, when presented with the opportunity,
found commonality sufficient to satisfy Rule 23(a)(2) where plaintiffs have alleged that
probiotics are ineffective. See, e.g., Johnson v. Gen. Mills, Inc., 278 F.R.D. 548, 551 (C.D. Cal.
2012) (“Mr. Johnson has presented sufficient facts to show that all of the class members’ claims
have at their heart a common contention: Defendants made a material misrepresentation
regarding the digestive health benefits of YoPlus that violated the UCL and the CLRA. The
class members all assert they were misled by a common advertising campaign that had little to
no variation.”); Wiener v. Dannon Co., 255 F.R.D. 658, 664–65 (C.D. Cal. 2009) (“The proposed
class members clearly share common legal issues regarding Dannon’s alleged deception and
misrepresentations in its advertising and promotion of the Products.”).
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 10
In Fitzpatrick v. General Mills, Inc., 635 F.3d 1279 (11th Cir. 2011), for instance,
plaintiff Julie Fitzpatrick brought suit under the Florida Deceptive and Unfair Trade Practices
Act (“FDUTPA”) against General Mills, alleging that the company had made “false and
misleading claims that YoPlus provides digestive health benefits that other yogurt products do
not.” Id. at 1281. “YoPlus is ordinary yogurt supplemented with probiotic bacteria, inulin, and
vitamins A and D. The mixture of probiotic bacteria and inulin in YoPlus allegedly provides
habitual consumers with digestive health benefits by aiding in the promotion of digestive health.”
Id. Fitzpatrick moved to certify a class of “all persons who purchased YoPlus in the State of
Florida.” Id. The district court granted Fitzpatrick’s motion. Fitzpatrick v. Gen. Mills, Inc.,
263 F.R.D. 687 (S.D. Fla. 2010). On the issue of commonality, the district court explained
“[w]hether General Mills’ claim that Yo–Plus aids in the promotion of digestive health is
‘deceptive’ is a mixed question of law and fact common to every class member seeking damages
under the FDUTPA.” Id. at 696. The district court continued that “[e]ven though a few
consumers likely purchased Yo–Plus for reasons unrelated to Yo–Plus’ purported digestive
health benefits, . . . the Court is convinced that a significant number of Yo–Plus consumers
purchased Yo–Plus because of its purported digestive health benefit, which is, as General Mills’
marketing documents plainly state, Yo–Plus’ primary distinguishing feature.” Id.at 696–97. The
Eleventh Circuit did not discuss the commonality requirement on appeal. Fitzpatrick, 635 F.3d
at 1282. It did note, however, that “[t]he district court’s analysis . . . [was] sound and in accord
with federal and state law.” Id. at 1283.4
As the preceding false-advertising cases make clear, the district court correctly found that
Plaintiffs have demonstrated that their claims share a common question—whether Align is
“snake oil” and thus does not yield benefits to anyone. Appellee Br. at 7. That common
question will yield a common answer for the entire class that goes to the heart of whether P&G
will be found liable under the relevant false-advertising laws. That is all Dukes requires.
4
The Eleventh Circuit ultimately vacated the district court’s decision and remanded the case to the district
court, but for a reason unrelated to its commonality findings. The district court’s “class definition limit[ed] the class
to those who purchased YoPlus ‘to obtain its claimed digestive health benefit,’ which takes into account individual
reliance on the digestive health claims.” 635 F.3d at 1283. However, the Eleventh Circuit found that proof of
individual reliance is unnecessary under the relevant law in Florida (a claim evaluated in more detail below), and
thus the district court’s “analysis would lead one to believe that the class [sh]ould be defined as ‘all persons who
purchased YoPlus in the State of Florida.’” Id. n.1.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 11
2. Plaintiffs’ Claims Are Typical Of The Class
Federal Rule of Civil Procedure 23(a)(3) requires plaintiffs to show that “the claims or
defenses of the representative parties are typical of the claims or defenses of the class.” As the
Supreme Court made clear in Dukes, “[t]he commonality and typicality requirements of Rule
23(a) tend to merge.” 131 S. Ct. at 2551 n.5 (alteration in original) (internal quotation marks
omitted); see also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 7A Federal Practice
and Procedure § 1764 (3d ed. 2005) (“Thus, many courts have found typicality if the claims or
defenses of the representatives and the members of the class stem from a single event or a
unitary course of conduct, or if they are based on the same legal or remedial theory. Of course,
when this is true the typicality standard is closely related to the test for the common-question
prerequisite in subdivision (a)(2).” (footnotes omitted)). Indeed, in challenging the district
court’s finding of typicality, P&G largely repeats its arguments against commonality. Appellant
Br. at 30–32.
P&G does appear to make a slight variation of its consumer-satisfaction argument by
contending that “many of the unnamed class members have no interest in pursuing restitution,
nor in crippling the product. Indeed, this lawsuit may be antithetical to their interests.” Id. at 31.
The district court considered and rejected this argument in its order granting class certification.
See R. 140 (Dist. Ct. Order at 19) (Page ID #6433) (“Defendant advertised to all that the
proprietary probiotic bacteria in Align provides proven digestive health benefits. The question is
not whether each class member was satisfied with the product, but rather whether the purchaser
received the product that was advertised.”). The district court’s conclusion is consistent with
those of other district courts who have reviewed similar arguments. See, e.g., Johnson,
278 F.R.D. at 552 (“Both Mr. Johnson’s and the fourth generation purchasers’ claims center on
the assertion that in deciding to purchase YoPlus they relied to their detriment on the allegedly
false digestive health message communicated by Defendants. Mr. Johnson’s claims are,
therefore, ‘reasonably co-extensive’ with those of the fourth generation purchasers, and he
satisfies the typicality requirement.”). Consistent with its findings on commonality, the district
court did not abuse its discretion in finding that “the claims or defenses of the representative
parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 12
C. Rule 23(b)(3): Plaintiffs Have Demonstrated That Common Questions Will
Predominate Over Individualized Inquiries In Assessing the Merits of Their
Claims
“[E]ach class meeting [the] prerequisites [of Rule 23(a)] must also pass at least one of the
tests set forth in Rule 23(b).” Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998)
(en banc). Plaintiffs have sought certification under Federal Rule of Civil Procedure 23(b)(3),
which states that a class action may be maintained only if “the court finds that the questions of
law or fact common to class members predominate over any questions affecting only individual
members.”5
P&G contends that the district court erred in four separate but related ways. First, it
alleges that some individuals were not actually exposed to P&G’s marketing campaign—that
some individuals purchased Align upon receiving advice from a family member, friend, or
physician. Second, it claims that, under the state laws at issue, individual issues of causation and
reliance predominate over the common questions that allegedly affect all members of the class.
Third, P&G claims that Align does actually work for many purchasing it, and thus Plaintiffs
cannot prove injury on a classwide basis. Finally and relatedly, P&G claims that Plaintiffs’
damages model is inconsistent with their theory of liability and that individual calculation of
damages will be necessary.
1. Actual Exposure
According to P&G, “significant numbers of consumers became aware of and purchased
Align based on sources of information unrelated to the advertising at issue,” and thus individual
proof that class members purchased Align because of its advertising will be necessary, thereby
defeating predominance. Appellant Br. at 40. P&G contends that “[d]octors do not simply
recommend Align based on P&G’s professional marketing. Doctors make independent decisions
based on their review of the science, experience, and expertise.” Appellant Reply Br. at 25. In
support of its point, P&G relies on Minkler v. Kramer Laboratories, Inc., No. 12-9421, 2013 WL
5P&G has not challenged on appeal the district court’s holding that the other element of Rule 23(b)(3) is
met, “that a class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3).
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 13
3185552, at *4 (C.D. Cal. Mar. 1, 2013), and In re American Medical Systems, Inc., 75 F.3d
1069, 1085 (6th Cir. 1996).
These cases are, however, readily distinguishable from the case at hand. In In re
American Medical Systems, we made clear that our decision to vacate the district court’s
conditional certification order was based “on the extraordinary facts of [the] case.” 75 F.3d at
1074. In that case, the plaintiff brought suit over alleged defects in a number of different
prosthetic devices, although the plaintiff had problems only with one of the ten types of
prosthetics manufactured by American Medical Systems. We determined class certification to
be inappropriate because we held that the claims at issue—strict liability; fraudulent
misrepresentation; negligent testing, design, and manufacture; and failure to warn—would
“differ depending upon the model and the year [the prosthetic] was issued.” Id. at 1081.
“Proof[] . . . will also vary from plaintiff to plaintiff because complications with an AMS device
may be due to a variety of factors, including surgical error, improper use of the device,
anatomical incompatibility, infection, device malfunction, or psychological problems.” Id.Thus, on the issue of predominance, we noted that, “[a]s this case illustrates, the products are
different, each plaintiff has a unique complaint, and each receives different information and
assurances from his treating physician. Given the absence of evidence that common issues
predominate, certification was improper.” Id. at 1085.
Minkler—an unpublished district court decision from a court outside of the Sixth
Circuit—involved a plaintiff seeking certification of a class consisting of “[a]ll persons
domiciled or residing in the State of California who ha[d] purchased a Fungi–Nail anti-fungal
product.” 2013 WL 3185552, at *1. The plaintiff purchased Fungi-Nail in order to treat some
discoloration of his toenail, which he believed was a nail fungus. Id. In finding class
certification inappropriate, the district court did note that some members of the proposed class
purchased Fungi-Nail based “on the recommendations of physicians or pharmacists, and the
appearance of the products’ packaging would not have been important to their purchasing
decision.” Id. at *4. Yet the district court also noted that “Fungi–Nail is marketed for use as a
treatment for ringworm, athlete’s foot and other conditions that can appear in places other than
‘on nails.’” Id. It was not, in other words, necessarily even marketed for treatment of the
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 14
plaintiff’s condition, and “Defendants [even] raise[d] significant doubts as to whether Plaintiff
actually ha[d] a fungal infection.” Id.
The facts in this case paint a far different picture. Unlike the plaintiff in American
Medical Systems, Plaintiffs here do not take aim at a panoply of P&G products. They focus their
attention on Align. Plaintiffs all purchased Align because it allegedly promoted digestive health.
That is the only reason to buy Align. In addition, Plaintiffs here have produced evidence
showing that P&G undertook a comprehensive marketing strategy with a uniform core message,
even if its packaging has changed somewhat over time: buy Align because it will help promote
your digestive health. See Sealed App. at 253–55. That marketing campaign focused on
physician recommendations, with many sales representatives dropping off samples in various
doctors’ offices over a multi-year period. Id. at 255.
The district court’s decision to certify the proposed class is also in accord with the
decision of courts in other consumer-products class action cases. In Johnson, for instance, the
plaintiff—like Plaintiffs here—“presented evidence demonstrating that Defendants marketing
campaign was prominent and not limited to statements made on the YoPlus packaging.”
278 F.R.D. at 551 (emphasis added). The Johnson court made clear that the form of presentation
was irrelevant: “Regardless of how the message was communicated, the claims brought by Mr.
Johnson on behalf of the class under the UCL and the CLRA center around a common question:
Did Defendants state a false claim of a digestive health benefit that a reasonable person would
have been deceived by, for purposes of the UCL, or would have attached importance to, for
purposes of the CLRA?” Id. Likewise, in Wiener, defendant Dannon “contend[ed] that a class-
wide inference of proof is not appropriate in this case, because purchasers were not uniformly
exposed to Dannon’s advertising claims and the materiality of the misrepresentation is an issue
unique to each purchaser, as Dannon’s consumer surveys show that purchasers bought the
Products for different reasons.” 255 F.R.D. at 668. Echoing the language in Johnson, the district
court held that “[r]egardless of whether every class member was exposed to Dannon’s television,
print, and internet advertisements, the record clearly establishes that Dannon’s alleged
misrepresentations regarding the clinically proven health benefits of the Products are
prominently displayed on all of the Products’ packaging, a fact that Dannon has never
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 15
contested.” Id. at 669. “Because, by definition, every member of the class must have bought one
of the Products and, thus, seen the packaging, Plaintiffs have succeeded in showing that the
alleged misrepresentations were made to all class members.” Id.; see also In re ConAgra Foods,
Inc., No. CV 11-05379 MMM, 2015 WL 1062756, at *46 (C.D. Cal. Feb. 23, 2015) (noting that
“it is undisputed that ConAgra made the same alleged misrepresentation on each bottle of
Wesson Oils purchased by class members” in finding predominance on the issue of
causation/reliance).
The facts at issue in Johnson and Wiener are identical to the ones at issue here.
Regardless of how customers first heard about Align—whether through P&G’s direct advertising
campaign, through a physician who had learned about Align through a P&G sales representative,
or through a friend or family member who had used Align—they nonetheless decided to
purchase the product only for its purported health benefits. Although P&G contends that a
doctor could recommend Align based on “her independent judgment,” that argument is belied by
the fact that P&G developed Bifantis, the probiotic behind Align, and P&G, in turn, developed
the marketing campaign to promote Align. In light of this point, the Johnson and Wiener
decisions, and the differences between the facts at issue here and the facts in American Medical
Systems and Minkler, the district court did not abuse its discretion in rejecting P&G’s contention
that certain class members did not rely on P&G advertising in making their decision to buy
Align.
2. State Laws
On a related point, P&G also claims that Plaintiffs cannot prove reliance and causation,
which P&G claims are required by the false-advertising laws at issue, on a classwide basis.
Appellant Br. at 41. We examine each of these false-advertising laws below. We conclude that,
under each of the five laws, Plaintiffs can prove causation and/or reliance on a classwide basis
provided that (1) the alleged misrepresentation that Align promotes digestive health is material
or likely to deceive a reasonable consumer, and (2) P&G made that misrepresentation in a
generally uniform way to the entire class.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 16
a. California
Rikos seeks “certification of claims arising under Cal. Bus. & Prof. Code § 17200(California’s Unfair Competition Law or ‘UCL’), Cal. Civ. Code § 1750 (California’s
Consumers Legal Remedies Act or ‘CLRA’), and breach of express warranty.” Sealed App. at
19–20. None of these causes of action require individualized proof of reliance or causation such
that classwide proof will never suffice.
In In re Tobacco II Cases, 207 P.3d 20 (Cal. 2009), the California Supreme Court held
that, “[t]o state a claim under . . . the UCL . . . based on false advertising or promotional
practices, it is necessary only to show that members of the public are likely to be deceived.” Id.
at 29 (internal quotation marks omitted). “[T]he UCL’s focus [is] on the defendant’s conduct . . .
in service of the statute’s larger purpose of protecting the general public against unscrupulous
business practices.” Id. at 30. Thus “relief under the UCL is available without individualized
proof of deception, reliance and injury” for absent class members. Id. at 35. Plaintiffs thus need
not show that every purchaser of Align in California relied on the product’s advertising. Courts
have qualified, however, that if the defendant made disparate misrepresentations to the class,
then there still may be issues of predominance. Stearns v. Ticketmaster Corp., 655 F.3d 1013,
1020 (9th Cir. 2011) (“We do not, of course, suggest that predominance would be shown in
every California UCL case. For example, it might well be that there was no cohesion among the
members because they were exposed to quite disparate information from various representatives
of the defendant. See, e.g., . . . Kaldenbach v. Mut. of Omaha Life Ins. Co., 178 Cal. App. 4th
830, 849–50 (2009).”).
It is true that, “[u]nlike the UCL, . . . plaintiffs in a CLRA action [must] show not only
that a defendant’s conduct was deceptive but that the deception caused them harm.” Mass. Mut.
Life Ins. Co. v. Superior Court, 97 Cal. App. 4th 1282, 1292 (Cal. Ct. App. 2002). However,
“[c]ausation as to each class member is commonly proved more likely than not by materiality.
That showing will undoubtedly be conclusive as to most of the class.” Id. (internal quotation
marks omitted). Thus, “plaintiffs satisfy their burden of showing causation as to each by
showing materiality as to all. . . . ‘[I]f the trial court finds material misrepresentations were made
to the class members, at least an inference of reliance would arise as to the entire class.’” Id. at
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 17
1292–93 (quoting Vasquez v. Superior Court, 484 P.2d 964, 973 (Cal. 1971)). Materiality is
measured by an objective standard: “[m]ateriality of the alleged misrepresentation generally is
judged by a reasonable man standard. In other words, a misrepresentation is deemed material if
a reasonable man would attach importance to its existence or nonexistence in determining his
choice of action in the transaction in question.” In re Steroid Hormone Prod. Cases, 181 Cal.
App. 4th 145, 157 (Cal. Ct. App. 2010), as modified on denial of reh’g (Feb. 8, 2010) (internal
quotation marks omitted); see also Stearns, 655 F.3d at 1022–23; In re ConAgra Foods,
2015 WL 1062756, at *34.
Finally, proof of individualized reliance or causation is not necessary under California
law to establish breach of an express warranty. Under California law, “[a]n express warranty is a
term of the parties’ contract.” In re ConAgra Foods, 2015 WL 1062756, at *35. “Product
advertisements, brochures, or packaging can serve to create part of an express warranty.”
Rosales v. FitFlop USA, LLC, 882 F. Supp. 2d 1168, 1178 (S.D. Cal. 2012). “[T]o prevail on a
breach of express warranty claim, the plaintiff must prove (1) the seller’s statements constitute
an affirmation of fact or promise or a description of the goods; (2) the statement was part of the
basis of the bargain; and (3) the warranty was breached.” Weinstat v. Dentsply Int’l, Inc.,
180 Cal. App. 4th 1213, 1227 (Cal. Ct. App. 2010) (internal quotation marks omitted). “Proof of
reliance on specific promises or representations is not required.”6 In re ConAgra Foods,
2015 WL 1062756, at *35 (and citing cases); see also Weinstat, 180 Cal. App. 4th at 1227 (“The
lower court ruling rests on the incorrect legal assumption that a breach of express warranty claim
requires proof of prior reliance. While the tort of fraud turns on inducement, as we explain,
breach of express warranty arises in the context of contract formation in which reliance plays no
role.”); Rosales, 882 F. Supp. 2d at 1178 (“Product advertisements, brochures, or packaging can
serve to create part of an express warranty. While this does not require that plaintiff relied on the
individual advertisements, it does require that plaintiff was actually exposed to the advertising.”).
6
The case cited by P&G that states that reliance is required cites a decision that predates California’s
Uniform Commercial Code (“UCC”). Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (Cal. Ct.
App. 1986) (“In order to plead a cause of action for breach of express warranty, one must allege the exact terms of
the warranty, plaintiff’s reasonable reliance thereon, and a breach of that warranty which proximately causes
plaintiff injury. (See Burr v. Sherwin Williams Co. (1954) 42 Cal. 2d 682 . . . .”)). Section 2313 of California’s
UCC governs breach of express warranty claims. Weinstat, 180 Cal. App. 4th at 1227. However, as the Weinstat
court explained, although “[p]re-Uniform Commercial Code law governing express warranties required the
purchaser to prove reliance on specific promises made by the seller,” a close analysis of the text and official
comments to the UCC reveals that “[t]he Uniform Commercial Code . . . does not require such proof.” Id.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 18
However, “class treatment of breach of express warranty claims is only appropriate if plaintiffs
can demonstrate that the alleged misrepresentation would have been material to a reasonable
consumer.” In re ConAgra Foods, 2015 WL 1062756, at *36.
b. Illinois
Rikos also seeks “certification of claims arising under the Illinois Consumer Fraud and
Deceptive Business Practices Act (‘ICFA’).” Sealed App. at 20. A claim under the ICFA
requires: “(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the
plaintiff rely on the deception, (3) the occurrence of the deception in a course of conduct
involving trade or commerce, and (4) actual damage to the plaintiff that is (5) a result of the
deception.” De Bouse v. Bayer AG, 922 N.E.2d 309, 313 (Ill. 2009). When the deceptive act
alleged is a misrepresentation, that misrepresentation must be “material” and “is established by
applying a reasonable person standard.” In re ConAgra Foods, 2015 WL 1062756, at *45.
Reliance is not required to establish an ICFA claim. Id. (citing cases). However, to establish the
last two elements of an ICFA claim, plaintiffs must show “that the allegedly deceptive act
‘proximately caused any damages’ suffered by the plaintiff.” Id. (quoting De Bouse, 922 N.E.2d
at 313); see also Clark v. Experian Info. Solutions, Inc., 256 F. App’x 818, 821 (7th Cir. 2007)
(“We concluded that ‘a private cause of action under the ICFA requires a showing of proximate
causation.’” (quoting Oshana v. Coca–Cola Co., 472 F.3d 506, 514–15 (7th Cir. 2006))). As
part of proving proximate causation, a plaintiff must “receive, directly or indirectly,
communication or advertising from the defendant.” De Bouse, 922 N.E.2d at 316.
It is true that courts have denied class certification of ICFA claims on the grounds that
individual issues of proving proximate causation predominate over common issues. See, e.g.,
Siegel v. Shell Oil Co., 612 F.3d 932, 935–36 (7th Cir. 2010) (holding that individualized
inquiries regarding “why a particular plaintiff purchased a particular brand of [the product]”
were necessary to establish harm to each class member under the ICFA and, thus, common
issues could not predominate); In re Glaceau Vitaminwater Mktg. & Sales Practice Litig., No.
11-CV-00925 DLI RML, 2013 WL 3490349, at *8 (E.D.N.Y. July 10, 2013) (citing other cases);
Oshana v. Coca-Cola Co., 225 F.R.D. 575, 586 (N.D. Ill. 2005) (“To establish proximate
causation, each individual must provide evidence of his or her knowledge of the deceptive acts
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 19
and purported misstatements. This showing requires an individual analysis of the extent to
which Coca-Cola’s marketing played a role in each class member’s decision to purchase fountain
diet Coke.” (citations omitted)).
As Plaintiffs note, ICFA claims do not necessarily require individualized proof of
causation such that class certification is never proper. Appellee Br. at 40 n.5. Rather, “where the
representation being challenged was made to all putative class members, Illinois courts have
concluded that causation is susceptible of classwide proof and that individualized inquiries
concerning causation do not predominate if plaintiffs are able to adduce sufficient evidence that
the representation was material.” In re ConAgra Foods, 2015 WL 1062756, at *46 (and citing
cases); see also In re Glaceau Vitaminwater Mktg. & Sales Practice Litig., 2013 WL 3490349, at
*9 (“Illinois courts have certified classes asserting violations of the ICFA, where the defendant
engaged in ‘uniform’ conduct toward the class, and the successful adjudication of the named
plaintiff’s claims would establish a right to recovery for all class members.”); S37 Mgmt., Inc. v.
Advance Refrigeration Co., 961 N.E.2d 6, 16 (Ill. App. Ct. 2011) (“The defendant argues that
individual issues regarding deception and damages preclude class certification in this case.
However, just as we found in P.J.’s Concrete, where a defendant is alleged to have acted
wrongfully in the same manner toward the entire class, the trial court may properly find common
questions of law or fact that predominate over questions affecting only individual members.”).
c. Florida
Burns seeks “certification of claims arising under the Florida Deceptive and Unfair Trade
Practices Act, Fla. Stat. §501.201 et seq. (‘FDUTPA’)”. Sealed App. at 20. “A claim under
FDUTPA has three elements: (1) a deceptive or unfair practice; (2) causation; and (3) actual
damages.” Siever v. BWGaskets, Inc., 669 F. Supp. 2d 1286, 1292 (M.D. Fla. 2009). The
Florida Supreme Court has not addressed whether reliance and/or causation requires
individualized proof. Like Illinois, Florida courts of appeals and federal courts interpreting
Florida law have reached somewhat diverging conclusions. In re Sears, Roebuck & Co. Tools
Mktg. & Sales Practices Litig., No. 05 C 4742, 2012 WL 1015806, at *7–9 (N.D. Ill. Mar. 22,
2012) (noting this tension in the case law applying the FDUTPA).
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 20
Many courts have held that the FDUTPA does not require proof of actual, individualized
reliance; rather, it requires only a showing that the practice was likely to deceive a reasonable
consumer. In re ConAgra Foods, 2015 WL 1062756, at *42 (“Claims under the FDUTPA are
governed by a ‘reasonable consumer’ standard, obviating the need for proof of individual
reliance by putative class members.”); Office of the Att’y Gen. v. Wyndham Int’l, Inc., 869 So. 2d
592, 598 (Fla. Dist. Ct. App. 2004) (“When addressing a deceptive or unfair trade practice claim,
the issue is not whether the plaintiff actually relied on the alleged practice, but whether the
practice was likely to deceive a consumer acting reasonably in the same circumstances. . . .
[U]nlike fraud, a party asserting a deceptive trade practice claim need not show actual reliance
on the representation or omission at issue.”); Davis v. Powertel, Inc., 776 So. 2d 971, 973–74
(Fla. Dist. Ct. App. 2000) (“A party asserting a deceptive trade practice claim need not show
actual reliance on the representation or omission at issue. . . . [T]he question is not whether the
plaintiff actually relied on the alleged deceptive trade practice, but whether the practice was
likely to deceive a consumer acting reasonably in the same circumstances.”); Latman v. Costa
Cruise Lines, N.V., 758 So. 2d 699, 703 (Fla. Dist. Ct. App. 2000) (“[M]embers of a class
proceeding under the [FDUTPA] need not individually prove reliance on the alleged
misrepresentations. It is sufficient if the class can establish that a reasonable person would have
relied on the representations.” (internal quotation marks omitted)). In Fitzpatrick, 635 F.3d at
1283, the Eleventh Circuit affirmed the “legal analysis of the district court,” which included the
district court’s conclusion that the FDUTPA’s “causation requirement is resolved based on how
an objective reasonable person would behave under the circumstances.” Fitzpatrick, 263 F.R.D.
at 695.
If the defendants did not make a generally uniform material misrepresentation to the
entire class, other courts have held that plaintiffs do need to show individualized causation. The
sole case cited by P&G, Appellant Br. at 39 n.6, falls into this camp. Miami Auto. Retail, Inc. v.
Baldwin, 97 So. 3d 846, 857 (Fla. Dist. Ct. App. 2012) (“FDUTPA requires proof of each
individual plaintiff’s actual (not consequential) damage and defendant’s causation of damage.”).
However, Miami Automotive Retail did not involve a “uniform representation,” a circumstance in
which the court noted “individual reliance may not be necessary under FDUTPA.” Id. The
district court in In re Sears, Roebuck & Co. Tools Marketing & Sales Practices Litigation
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 21
similarly distinguished this latter group of cases requiring proof of individual causation on the
grounds that, unlike in the Latman and Davis line of cases, these cases did not involve one
product advertised by a generally uniform theme to all consumers. 2012 WL 1015806, at *10.
d. New Hampshire
Jarzembrowski seeks “certification of claims arising under the New Hampshire
Consumer Protection Act, N.H.R.S.A. 358-A et seq. (the ‘New Hampshire CPA’).” Sealed App.
at 20. Very few New Hampshire cases are on point, but the limited case law indicates that proof
of individual reliance or causation is not required under the New Hampshire CPA.
In Mulligan v. Choice Mortgage Corp. USA, a federal district court explained that:
New Hampshire courts use an objective standard to determine whether acts or
practices are unfair or deceptive in violation of the CPA. In order to come within
the CPA, [t]he objectionable conduct must attain a level of rascality that would
raise an eyebrow of someone inured to the rough and tumble of the world of
commerce. For such conduct to be actionable, the plaintiff need not show that he
or she actually relied on the deceptive acts or practices . . . . Rather, a CPA
plaintiff need only establish a causal link between the conduct at issue and his or
her injury.
No. CIV. 96-596-B, 1998 WL 544431, at *11 (D.N.H. Aug. 11, 1998) (internal quotation marks
and citations omitted); see also Leonard v. Abbott Labs., Inc., No. 10-CV-4676 ADS WDW,
2012 WL 764199, at *20 (E.D.N.Y. Mar. 5, 2012) (“[T]he New Hampshire statute also does not
include the elements of reliance or scienter.”). The Mulligan court described the “causal link” as
requiring that a plaintiff “show[] only that their injuries . . . [were] a consequence of [the
defendant’s] allegedly unfair and deceptive practices.” 1998 WL 544431, at *12.
Greater clarity on the proof necessary to establish causation can be found in decisions
from Massachusetts courts interpreting its analogous consumer fraud statute, to which “the New
Hampshire Supreme Court frequently looks for guidance.” Id. at *11 n.7. The Massachusetts
Court of Appeals has held that causation under its consumer fraud statute “is established if the
deception could reasonably be found to have caused a person to act differently from the way he
[or she] otherwise would have acted,” and “can also be established by determining whether the
nondisclosure [or misrepresentation] was of a material fact” because “[m]ateriality . . . is in a
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 22
sense a proxy for causation.” Casavant v. Norwegian Cruise Line, Ltd., 919 N.E.2d 165, 169
(Mass Ct. App. 2009), aff'd, 952 N.E.2d 908 (2011) (first alteration in original). Materiality is an
objective inquiry. See id. The sole case cited by P&G, Appellant Br. at 39 n.6, does not
contradict this case law, because that case interpreted a different statute regarding unfair,
deceptive, or unreasonable collection practices. Gilroy v. Ameriquest Mortgage Co., 632 F.
Supp. 2d 132, 137–38 (D.N.H. 2009).
e. North Carolina
Finally, Burns also seeks certification of claims arising under North Carolina’s Unfair
and Deceptive Trade Practices Act, N.C. Gen. Stat. §75-1.1 et seq. (“UDTPA”). Sealed App. at
20. “To state a claim under the UDTPA, a claimant must allege (1) an unfair or deceptive act or
practice (2) in or affecting commerce (3) which proximately caused injury to the plaintiff or his
business.” Rahamankhan Tobacco Enters. Pvt. Ltd. v. Evans MacTavish Agricraft, Inc., 989 F.
Supp. 2d 471, 477 (E.D.N.C. 2013). The North Carolina Supreme Court recently clarified that
“a claim under section 75–1.1 stemming from an alleged misrepresentation does indeed require a
plaintiff to demonstrate reliance on the misrepresentation in order to show the necessary
proximate cause.” Bumpers v. Cmty. Bank of N. Virginia, 747 S.E.2d 220, 226 (N.C. 2013).
“Actual reliance is demonstrated by evidence [that the] plaintiff acted or refrained from acting in
a certain manner due to [the] defendant’s representations.” Williams v. United Cmty. Bank,
724 S.E.2d 543, 549 (N.C. Ct. App. 2012) (internal quotation marks omitted). Plaintiffs base
their claim under the UDTPA on misrepresentations by P&G regarding Align’s efficacy. R. 85
(Second Amended Compl. ¶ 113) (Page ID #985). Thus, they must show actual reliance.
The issue, therefore, is whether North Carolina recognizes any circumstances under
which classwide proof might suffice to show reliance. In Bumpers, which did not involve the
issue of class certification, the North Carolina Supreme Court did describe the evidence
necessary to prove reliance as focused on the mental state of the plaintiff and his/her decision-
making process, which would seem to be difficult to prove on a classwide basis. Bumpers, 747
S.E.2d at 227 (“In making this inquiry we examine the mental state of the plaintiff. . . . . In the
context of a misrepresentation claim brought under section 75–1.1, actual reliance requires that
the plaintiff have affirmatively incorporated the alleged misrepresentation into his or her
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 23
decision-making process: if it were not for the misrepresentation, the plaintiff would likely have
avoided the injury altogether.”). No North Carolina decision applying a presumption of reliance
in class actions like that in California under the CLRA could be identified. The one case cited by
Plaintiffs doing so, In re Milo’s Dog Treats Consolidated Cases, is a federal district court
decision and gave no explanation or support for its conclusion that its discussion of reliance
under California law “is equally applicable to North Carolina’s UDTPA.” 9 F. Supp. 3d 523,
544 (W.D. Pa. 2014).
However, the North Carolina Supreme Court has held that reliance can be proved
circumstantially, not just from direct testimony from the plaintiff. Rowan Cnty. Bd. of Educ. v.
U.S. Gypsum Co., 428 S.E.2d 648, 661 (N.C. 1992) (“This Court has recognized that proof of
circumstances from which the jury may reasonably infer the fact is sufficient in proving the
element of reliance.” (internal quotation marks omitted)). Moreover, the North Carolina Court of
Appeals has held that a trial court erred in holding that a class action bringing a claim of fraud
can never be certified because “establishing the elements of fraud requires Plaintiff to make
individual showings of facts on the element of reliance.” Pitts v. Am. Sec. Ins. Co., 550 S.E.2d
179, 189 (N.C. Ct. App. 2001) (internal quotation marks omitted), aff’d, 356 N.C. 292 (2002).
As the court explained, “although individualized showings may be required in actions for fraud,
this does not in and of itself preclude a finding of the existence of a class” so long as common
issues predominate. Id. at 190. The court added that “the benefit of allowing consumer fraud
actions to proceed as class actions must be considered when determining whether the element of
reliance, an individual issue, renders a class non-existent.” Id. at 189. The court then held that
common issues predominated. Id. at 190. While its reasoning is sparse, the court appeared to
focus on the general uniformity in the defendant’s conduct towards the class, but did not spell
out whether or how it was finding a classwide presumption of reliance or inferring reliance based
on the identical circumstances faced by the class members. Id.
f. Summary of State Laws
As this survey of the relevant state laws demonstrates, Plaintiffs can prove causation
and/or reliance on a classwide basis provided that (1) the alleged misrepresentation that Align
promotes digestive health is material or likely to deceive a reasonable consumer, and (2) P&G
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 24
made that misrepresentation in a generally uniform way to the entire class. As previously
discussed, both factors are met here. The first factor is met—there is only one reason to buy
Align, to promote digestive health, and thus the alleged misrepresentation would be material to
or likely to deceive a reasonable consumer. As to the second factor, P&G undertook a
comprehensive marketing strategy with a generally uniform core message such that all class
members were likely exposed to the alleged misrepresentation. At a minimum, all class
members saw P&G’s advertising on Align’s packaging.
Although a somewhat closer call, we believe that this classwide proof—that the alleged
misrepresentation is material and was made in a generally uniform manner to all class
members—would also suffice in North Carolina to show actual reliance such that individual
issues would not predominate. The Eleventh Circuit’s discussion in Klay v. Humana, Inc.,
382 F.3d 1241 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond
& Indem. Co., 553 U.S. 639 (2008), is instructive on how classwide circumstantial evidence in
this case likely satisfies the individual reliance requirement under the UDTPA (although the case
admittedly did not involve the UDTPA). Physicians brought a class action alleging that various
HMOs had defrauded them, in part based on misrepresentations that the HMOs would reimburse
them for medically necessary services plaintiffs provided to the HMOs’ insureds. Id. at 1259.
The court explained that “while each plaintiff must prove his own reliance in this case, we
believe that, based on the nature of the misrepresentations at issue, the circumstantial evidence
that can be used to show reliance is common to the whole class. That is, the same considerations
could lead a reasonable factfinder to conclude beyond a preponderance of the evidence that each
individual plaintiff relied on the defendants’ representations.” Id. The court noted that the
defendant made a uniform representation to class members. Id. And the court explained, “[i]t
does not strain credulity to conclude that each plaintiff, in entering into contracts with the
defendants, relied upon the defendants’ representations and assumed they would be paid the
amounts they were due” because the promise to reimburse was a central reason physicians would
sign the agreements. Id. Similarly, in this case the alleged misrepresentation that Align
promotes digestive health is the reason to buy Align. Thus, a jury could “legitimate[ly] infer[]
[reliance classwide] based on the nature of the alleged misrepresentations at issue.” Id.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 25
3. Whether Align Actually Works
Echoing its commonality argument, P&G claims that it has put forth unrebutted evidence
that Align actually works—that it provides digestive health benefits for at least some of its
consumers—and thus Plaintiffs will not be able to prove injury on a classwide basis. Appellant
Br. at 33–37. The dissent also focuses on this argument. Even if P&G had not produced such
proof, P&G argues that scientific evidence might establish that Align “provides benefits for some
purchasers, but not all—the exact middle ground Plaintiffs ignore,” and thus it would still be
necessary to determine whether Align works for each individual class member to prove injury,
such that common issues do not predominate. Appellant Reply Br. at 7. P&G cites several cases
in which it claims that courts required class plaintiffs to provide some evidence of actual
classwide injury to establish predominance at the class certification stage. Appellant Br. at 34–
36.
As an initial matter and as already discussed, Plaintiffs contest whether the studies
produced by P&G actually demonstrate that Align works for some individuals. Contrary to what
the dissent claims, Plaintiffs have not tacitly conceded that Align works for individuals with IBS.
Plaintiffs point to methodological flaws and problems with the studies on the effectiveness of
Align for individuals with IBS to question the scientific validity of the studies in their own right,
in addition to questioning whether those studies can be used to claim Align works for healthy
individuals. See, e.g., R. 9 (Amended Compl. ¶¶ 36–37) (Page ID #73–74) (for example, noting
that in one study of women with IBS cited by P&G on its website, “the study tested
Bifidobacterium infantis 35624 at amounts (referred to as ‘colony-forming units’ or ‘CFUs’)
different than what is present in Align® probiotic supplement” and “[t]he study authors
expressly emphasized the variability of results depending on the amount of CFUs”). Although
P&G and the dissent claim that Plaintiffs’ own expert appeared to concede, in his deposition, that
Align might have worked for one of his patients having digestive health issues, Dr. Komanduri
stated later in the deposition that he did not know whether Align was helpful for his patient
because it actually worked or because of a placebo effect. See R. 133 (Dep. of Srinadh
Komanduri at 29–30, 58) (Page ID #5748, 5755).
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 26
More fundamentally, however, P&G’s and the dissent’s argument attacks a theory of
liability that Plaintiffs have not actually presented—that Align is not effective unless it works for
100% of consumers who take it. Appellant Br. at 32. However, what Plaintiffs actually argue is
that it has not been shown that Align works for anyone, i.e., that Align is “snake oil.” Appellee
Br. at 7. Thus, under Plaintiffs’ theory of liability, P&G’s claim that Align works for some
individuals goes solely to the merits; it has no relevance to the class certification issue. In re
Scotts EZ Seed Litig., 304 F.R.D. at 408 (“Under plaintiffs’ first theory of liability, nobody was
able to grow grass using EZ Seed. Plaintiffs will succeed or fail on this theory based on whether
they are able to prove EZ Seed is worthless. Defendants’ argument that the products worked for
some individual class members goes to the proof of the merits of plaintiffs’ claims. Any
argument that challenges the merits of plaintiffs’ allegations about the uniform inefficacy of [EZ
Seed] has no bearing on the Rule 23 predominance inquiry.” (internal quotation marks and
citation omitted)); Delarosa v. Boiron, Inc., 275 F.R.D. 582, 594 (C.D. Cal. 2011) (“Defendant’s
arguments that it can present proof that Coldcalm worked for some individual class members
goes to the proof of the merits of Plaintiff’s claim, not to the common question as to the overall
efficacy of the product.”); Fitzpatrick, 263 F.R.D. at 701 (holding that “General Mills’ other
objection, that Yo–Plus might have worked for some consumers, does not preclude a finding of
predominance; that question is largely encompassed by the predominant—and, according to
Plaintiff, binary—issue of whether science supports General Mills’ claim that Yo–Plus aids in
the promotion of digestive health”). We have an obligation to assess the theory of liability
Plaintiffs present to us, rather than dismiss it as mere artful pleading, and Plaintiffs’ theory of
liability—that Align is entirely ineffective—is hardly unprecedented in the consumer fraud
context as these cases demonstrate.
Plaintiffs have presented sufficient evidence in the form of testimony from Dr.
Komanduri that their theory of liability—that Align is worthless—is capable of resolution
through classwide scientific proof such that common issues predominate. R. 108-8 (Komanduri
Decl. at 2–4) (Page ID #1596–98). Specifically, Dr. Komanduri attested that whether Align
works for anyone can be tested by “correctly designed randomized, double-blind and placebo
controlled clinical trials testing relevant outcomes.” Id. ¶ 15 (Page ID #1597). The studies that
P&G’s own expert cites and the dissent highlights as allegedly demonstrating that Align in fact
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 27
has been proven to work for some individuals (such as those with IBS) are of a similar kind. R.
115 (Merenstein Decl. at 12–16) (Page ID #4302–06). At the merits stage, Plaintiffs will have
the opportunity to put forth their own scientific evidence on Align’s efficacy and to present
expert testimony more fully contesting the accuracy of these studies and others P&G may
produce. The key point at the class-certification stage is that this kind of dueling scientific
evidence will apply classwide such that individual issues will not predominate. In other words,
assessing this evidence will generate a common answer for the class based on Plaintiffs’ theory
of liability—whether Align in fact has been proven scientifically to provide digestive health
benefits for anyone. That common answer, of course, may be that Align does work for some
subsets of the class. That does not transform this classwide evidence into individualized
evidence that precludes class certification, however. Neither P&G nor the dissent has articulated
how evidence that Align might work for some sub-populations actually would necessitate
individualized mini-trials that should preclude class certification. Rather, the more
straightforward impact of this evidence is simply that it may prevent Plaintiffs from succeeding
on the merits.
The possibility that, at a later point in the litigation, the district court may choose to
revisit the issue of class certification rather than dismiss the case if assessment of the fully
developed evidence presented by both parties suggests Align actually works for some sub-
populations is hardly as unprecedented or problematic as the dissent suggests. “Federal Rule of
Civil Procedure 23 provides district courts with broad discretion to determine whether a class
should be certified, and to revisit that certification throughout the legal proceedings before the
court.” Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001) (emphasis added),
abrogation on other grounds recognized in Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir.
2014). If later evidence disproves Plaintiffs’ contentions that common issues predominate, “the
district court may consider at that point whether to modify or decertify the class.” Daffin v. Ford
Motor Co., 458 F.3d 549, 554 (6th Cir. 2006); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 160 (1982) (“Even after a certification order is entered, the judge remains free to modify it
in the light of subsequent developments in the litigation.”). This possibility, however, is not a
reason to deny class certification now when Plaintiffs have demonstrated that their current theory
of liability will be proved or disproved through scientific evidence that applies classwide.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 28
Moreover, the cases P&G cites do not hold that establishing predominance means that
named plaintiffs must produce actual proof at the class-certification stage of classwide injury,
here that Align is “snake oil.” On predominance specifically, we emphasized in In re Whirlpool
that “the [Amgen] Court repeatedly emphasized that the predominance inquiry must focus on
common questions that can be proved through evidence common to the class.” In re Whirlpool,
722 F.3d at 858 (emphasis added). In other words, named plaintiffs must show that they will be
able to prove injury through common evidence, not that they have in fact proved that common
injury. Or, as the Amgen Court expanded, “While Connecticut Retirement certainly must prove
materiality to prevail on the merits, we hold that such proof is not a prerequisite to class
certification. Rule 23(b)(3) requires a showing that questions common to the class predominate,
not that those questions will be answered, on the merits, in favor of the class.” Amgen, 133 S.
Ct. at 1191. Here, “an inability of the plaintiff class ‘to prove [that Align does not work for
anyone] would not result in individual questions predominating. Instead, a failure of proof on
th[is] issue . . . would end the case.’” In re Whirlpool, 722 F.3d at 858 (quoting Amgen, 133 S.
Ct. at 1191). See also id. at 860 (“To the extent that Comcast Corp. reaffirms the settled rule that
liability issues relating to injury must be susceptible of proof on a classwide basis to meet the
predominance standard, . . . that requirement is met in this case.” (emphasis added)).
The two cases cited by P&G are better characterized as holding that the plaintiffs had not
demonstrated that the alleged injuries were capable of resolution by classwide proof that would
predominate over individual issues. Pilgrim v. Universal Health Card, LLC involved a class
action claiming health care programs were falsely advertised as providing “consumers access to
a network of healthcare providers that had agreed to lower their prices for members.” 660 F.3d
943, 945 (6th Cir. 2011). We affirmed the district court’s denial of class certification in part on
the basis of lack of predominance. Id. at 947–48. Although we noted that there was evidence
that “the program apparently satisfied some consumers,” id. at 948, our holding actually rested
on the fact that the “program did not operate the same way in every State and the plaintiffs
suffered distinct injuries as a result.” Id. at 947–48. As previously discussed, this case involves
one product with a uniform marketing scheme and message that either does not work for anyone
or does work at least for some individuals.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 29
Similarly, the decision in Phillips v. Philip Morris Cos., 298 F.R.D. 355 (N.D. Ohio
2014), denying class certification in a false advertising challenge to Philip Morris’s claim that
light cigarettes had low tar hinged on the plaintiffs’ inability to prove that a common injury could
be proved. First, “there [was] no inherent design defect that rendered the product less valuable,”
and “[t]he potential to realize an injury from the product . . . depend[ed] upon the manner in
which each consumer used the product and the unique characteristics of each consumer.” Id. at
368. Second, the court noted that some consumers might have purchased the cigarettes for a
reason unrelated to the alleged misrepresentation about lower tar and nicotine, such as flavor. Id.
n.20. Here, however, there is only one reason to buy Align: its digestive health benefits. And
whether or not Align works as promised for anyone—the issue here—is a scientific question that
will not turn on the individual behavior of consumers; if Align is shown to work, even for only
certain individuals, then presumably Plaintiffs lose.
In the other two cases cited by P&G, the courts denied class certification because there
was a disconnect between the class’s theory of liability and the class’s damages model, not
because the named plaintiffs had not conclusively proved injury to the entire class at the class-
certification stage, as P&G claims. As discussed in the next subsection, there is no similar
disconnect here.
In In re Rail Freight Fuel Surcharge Antitrust Litigation-MDL No. 1869, for example, the
D.C. Circuit denied class certification because the damages model presented by the plaintiffs
could not reliably prove classwide injury in fact, i.e., it would “detect[] injury where none could
exist.” 725 F.3d 244, 252–53 (D.C. Cir. 2013). It was in this context that the D.C. Circuit stated
that it “do[es] expect the common evidence to show all class members suffered some injury.” Id.
at 252. However, the D.C. Circuit did not alter the normal rule that named plaintiffs need only
show at the class-certification stage “that they can prove, through common evidence, that all
class members were in fact injured by the alleged conspiracy,” not that they have in fact proved
that injury. Id. (emphasis added).
Similarly, in Parko v. Shell Oil Co., the Seventh Circuit held that the district court abused
its discretion in certifying a class because of a disconnect between the class’s damages model
and its liability theory. 739 F.3d 1083 (7th Cir. 2014). The class alleged nuisance and related
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 30
torts on the basis of alleged groundwater contamination occurring over a 90-year period. Id. at
1084. The court, in finding a lack of predominance, did note that the plaintiffs had presented
nothing more than “unsubstantiated allegation.” Id. at 1086. But the unsubstantiated allegation
was not whether the groundwater was actually contaminated, as P&G claims, but the plaintiffs’
claim that they “intend[ed] to rely on common evidence and a single methodology to prove both
injury and damages” that was sound and plausible. Id. Thus, the Seventh Circuit reversed class
certification because the district court had not “investigated the realism of the plaintiffs’ injury
and damage model in light of the defendants’ counterarguments.” Id. Specifically, the plaintiffs
proposed to measure damages “by the effect of the groundwater contamination on the value of
the class members’ properties,” but the defendants pointed out that the plaintiffs did not own the
groundwater underneath their property and that their water supply did not come from that
groundwater. Id. at 1084, 1086. Thus, it was not clear how contamination in the groundwater
could affect property values. Id. at 1086. It was this disconnect between the plaintiffs’ damages
model and their liability theory that led the Seventh Circuit to deny class certification.7
Moreover, our holding today is consistent with the Supreme Court’s recent decision in
Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014). In that case, the Supreme
Court held that, at the class-certification stage, defendants in private securities fraud class actions
must be able to present evidence rebutting a particular presumption of classwide reliance
available in these kinds of cases. 134 S. Ct. at 2417. The Halliburton Court’s holding is limited
to allowing rebuttal evidence on issues that affect predominance, not evidence that affects only
the merits of a case. Id. at 2416. Given Plaintiffs’ theory of liability in this case, the evidence
that P&G has presented fails this test—it affects only the merits of this case, not predominance.
Even if the evidence P&G presented did affect predominance, however, it is not clear how P&G
7
Further evidence that the plaintiffs’ failure to prove that the groundwater was in fact contaminated was
immaterial to the Seventh Circuit’s decision is found in the case that the Seventh Circuit cites as properly granting
class certification, Mejdreck v. Lockformer Co., No. 01 C 6107, 2002 WL 1838141 (N.D. Ill. Aug. 12, 2002).
Parko, 739 F.3d at 1087. As described by the Parko court, in that case “the leakage of the noxious solvent was
claimed to have contaminated the water supply, as noted by the district court.” Id. (emphasis added). In other
words, the plaintiffs had not actually proved that the water supply was contaminated for most class members at the
class-certification stage; rather, they had articulated a coherent theory of injury and damages because they alleged
that the contaminated water had entered the water supply, and therefore more clearly could affect property values.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 31
alleges the district court violated Halliburton given that P&G was not prevented from putting
forth this evidence.8
4. Whether Plaintiffs’ Damages Model Is Consistent With Their Liability
Theory
Finally and relatedly, P&G claims that Plaintiffs have “failed to provide any viable
method to determine or award classwide damages, as required by Comcast Corp. v. Behrend, 133
S. Ct. [1426,] 1433 [(2013)],” because P&G presented evidence that some class members
benefited from Align, or the scientific evidence could establish Align works for some
individuals. Appellant Br. at 43–44.
The premise of this argument suffers from the same problems with P&G’s preceding
argument. Plaintiffs are claiming that Align works for no one, and if they are correct, all class
members suffered from the same injury, buying a product that does not work as advertised. If
Align in fact is proven scientifically to work for some individuals, Plaintiffs will lose on the
merits.
Moreover, Plaintiffs’ damages model—a full refund of the purchase price for each class
member—satisfies Comcast. In that case, the Supreme Court held that courts must conduct a
“rigorous analysis” to ensure at the class-certification stage that “any model supporting a
plaintiff’s damages case [is] consistent with its liability case,” i.e., that the model “measure[s]
only those damages attributable to that theory” of liability. Comcast, 133 S. Ct. at 1433 (internal
quotation marks omitted). That is the case here. A full refund for each class member is
appropriate because, as the district court explained, there is no reason to buy Align except for its
purported digestive benefits—“[i]t is a capsule filled with bacteria and inert ingredients. If, as
alleged, the bacteria does nothing, then the capsule is worthless.” R. 140 (Dist. Ct. Order at 30)
8
P&G also argues in its reply brief that Plaintiffs have at most presented evidence that P&G’s claims about
Align are unsubstantiated, but false advertising claims require affirmative proof of falsity, not just lack of
substantiation. Appellant Reply Br. at 16–19. P&G argues that lack of substantiation claims are within the sole
province of the Federal Trade Commission and other regulatory agencies. Id. at 17. P&G’s argument goes to the
merits of the case, not to whether class certification is proper. Indeed, all of the cases cited by P&G involve
discussions of the merits of false advertising claims and do not indicate that this distinction is at all relevant to
whether a class should be certified. Whether the standard is affirmative proof of falsity or lack of substantiation, the
evidence necessary to prove this issue will be the same for the entire class such that individual issues will not
predominate.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 32
(Page ID #6444). Whether purchasers were nevertheless satisfied with Align does not affect the
propriety of a full-refund damages model. See, e.g., Forcellati v. Hyland’s, Inc., No. CV 12-
1983-GHK MRWX, 2014 WL 1410264, at *9 (C.D. Cal. Apr. 9, 2014) (holding that restitution
is the appropriate damages model even for satisfied customers if the plaintiffs prove that
“Defendants’ products are placebos, and that the products’ effectiveness arises solely as a result
of the placebo effect”) (internal quotation marks omitted). And this analysis is the same for all
class members: “either 0% or 100% of the proposed class members were defrauded. There is no
evidence that some proposed class members knew of the alleged falsity of Defendant’s
advertising yet purchased Align anyway.” R. 140 (Dist. Ct. Op. at 31) (Page ID #6445). Thus,
Plaintiffs’ damages model measures only damages attributable to its theory of liability, i.e., that
P&G is liable if it is not proven scientifically that Align helps anyone, and thus satisfies
Comcast. See, e.g., In re Scotts EZ Seed Litig., 304 F.R.D. at 412 (holding that a “full
compensatory damages model, under which consumers would receive a full refund for their
purchases of EZ Seed[,] . . . matches plaintiffs’ first theory of liability—that EZ Seed does not
grow grass, and is thus valueless,” and therefore “satisfies Comcast because it measures damages
properly if EZ Seed is valueless” (internal quotation marks omitted)).
In sum, the district court did not abuse its discretion in determining that common issues
will predominate over individual issues in resolving the key merits issue of this case—whether
Align promotes digestive health for anyone.
D. Standing
P&G also contends that the class is overbroad and thus raises Article III standing issues
because Plaintiffs have failed to produce evidence that most of the class suffered an injury, i.e.,
that Align did not work for them. Appellant Br. at 45–47. This argument again misconstrues the
basic theory of liability at issue in this case. Under Plaintiffs’ theory of liability, P&G falsely
advertised to every purchaser of Align. As the district court put it, there is no reason to purchase
Align except for its promised digestive health benefits. If Align does not work as advertised for
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 33
anyone, then every purchaser was harmed, and a direct line can be drawn from P&G’s
advertising campaign and the decision to buy Align.9
E. The Proposed Class is Sufficiently Ascertainable
Finally, P&G contends that the proposed class is not ascertainable because “Plaintiffs
have failed to demonstrate that there is a ‘reliable’ and ‘administratively feasible’ method for
identifying the class members.” Appellant Br. at 50. Most consumers do not buy Align directly
from P&G. Instead, they purchase the product from a commercial retailer, either in stores or
online. This circumstance, P&G contends, makes ascertainability impossible—there is no
plausible way to verify that any one single individual actually purchased Align. In making this
point, P&G relies on the Third Circuit’s decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d
Cir. 2013).
The district court did not abuse its discretion in holding that the class is sufficiently
ascertainable. In our circuit, the ascertainability inquiry is guided by Young v. Nationwide
Mutual Insurance Co., 693 F.3d 532 (6th Cir. 2012). And under Young, Plaintiffs have produced
evidence sufficient to show that the class is ascertainable. We see no reason to follow Carrera,
particularly given the strong criticism it has attracted from other courts. See, e.g., Mullins v.
Direct Digital, LLC, No. 15-1776, 2015 WL 4546159, at *7 (7th Cir. July 28, 2015) (declining to
follow Carrera because “[t]he Third Circuit’s approach in Carrera, which is at this point the
high-water mark of its developing ascertainability doctrine, goes much further than the
established meaning of ascertainability and in our view misreads Rule 23”); In re ConAgra
Foods, Inc., 302 F.R.D. 537, 566 (C.D. Cal. 2014) (discussing Carrera and noting that
“ConAgra’s argument would effectively prohibit class actions involving low priced consumer
goods—the very type of claims that would not be filed individually—thereby upending ‘[t]he
policy at the very core of the class action mechanism’” (quoting Amchem Prods, Inc. v. Windsor,
521 U.S. 591, 617 (1997))). Even if Carrera governed, there are a number of factual differences
that make a finding of ascertainability more appropriate here.
9
P&G urges us to enter a circuit split over whether it is sufficient that the named class plaintiff has
standing, regardless of whether unnamed class members do. Appellant Br. at 48–50. Because reaching this
argument requires accepting P&G’s inaccurate characterization of Plaintiffs’ theory of liability in this case, we do
not find it necessary to evaluate this claim.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 34
In Young, the named plaintiffs sued their respective insurance companies, alleging “that
their insurer charged them a local government tax on their premiums when either the tax was not
owed or the tax amount owed was less than the insurer billed.” 693 F.3d at 535. The district
court certified a class of “[a]ll persons in the Commonwealth of Kentucky who purchased
insurance from or underwritten by [Defendant insurer] . . . and who were charged local
government taxes on their payment of premiums which were either not owed, or were at rates
higher than permitted.” Id. at 536 (second alteration in original). On appeal, the insurance
companies argued “that the class definition [was] not administratively feasible” because the
plaintiffs’ class description was not “sufficiently definite so that it [would be] administratively
feasible for the court to determine whether a particular individual is a member.” Id. at 538.
We rejected this argument. We noted that “[f]or a class to be sufficiently defined, the
court must be able to resolve the question of whether class members are included or excluded
from the class by reference to objective criteria.” Id. (internal quotation marks omitted). The
plaintiffs had presented such a class, because class membership could be determined by
reviewing factors such as “the location of the insured risk/property” and “the local tax charged
and collected from the policyholder.” Id. at 539. Unlike the Third Circuit in Carrera, we
considered—and rejected—the defendants’ claim “that the class properly could [not] be certified
without . . . 100% accuracy.” Id. Instead, we agreed with the district court’s conclusion that “the
subclasses can be discerned with reasonable accuracy using Defendants’ electronic records and
available geocoding software, though the process may require additional, even substantial,
review of files.” Id. (emphasis added) (internal quotation marks omitted). The court added that
“[i]t is often the case that class action litigation grows out of systemic failures of administration,
policy application, or records management that result in small monetary losses to large numbers
of people. To allow that same systemic failure to defeat class certification would undermine the
very purpose of class action remedies.” Id. at 540.
This same reasoning applies to the instant case. The proposed class is defined by
objective criteria: anyone who purchased Align in California, New Hampshire, Illinois, North
Carolina, or Florida. As in Young, these single state sub-classes can be determined with
reasonable—but not perfect—accuracy. Doing so would require substantial review, likely of
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 35
internal P&G data. But as the district court pointed out, such review could be supplemented
through the use of receipts, affidavits, and a special master to review individual claims. R. 140
(Dist. Ct. Order at 13–15) (Page ID #6427–29).
Even if we were to apply Carrera, there are significant factual differences that make this
class more ascertainable. In Carrera, the plaintiff brought a class action against Bayer
Corporation, “claiming that Bayer falsely and deceptively advertised its product One–A–Day
WeightSmart.” 727 F.3d at 304. “Carrera allege[d] [that] Bayer falsely claimed that
WeightSmart enhanced metabolism by its inclusion of epigallocatechin gallate, a green tea
extract.” Id. Carrera moved to certify a class consisting of “all persons who purchased
WeightSmart in Florida,” which the district court granted. Id. In vacating and remanding the
district court’s order, the Third Circuit held that Carrera’s proposed class was not sufficiently
ascertainable under the methods proposed by Carrera. Id. at 308–11.
First, Carrera proposed “using retailer’s records of sales made with loyalty cards . . . , and
records of online sales.” Id. at 308. The Third Circuit rejected this approach. It noted that
“there is no evidence that a single purchaser of WeightSmart could be identified using records of
customer membership cards or records of online sales.” Id. at 309 (emphasis added). Still, the
court maintained that, “[d]epending on the facts of a case, retailer records may be a perfectly
acceptable method of proving class membership.” Id. at 308–09. Second, Carrerra proposed
taking affidavits from various class members, the veracity of which could be assessed by a
private firm tasked with administering class settlements. The Third Circuit likewise rejected this
approach. It noted that this method “does not show [that] the affidavits will be reliable,” thereby
undercutting Bayer’s due-process interests. Id. at 311.10
10
It is worth noting that the Third Circuit subsequently has cautioned against a broad reading of Carrera.
In Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015), the court discussed the ascertainability requirement in detail.
The Third Circuit noted that Carrera “only requires the plaintiff to show that class members can be identified.” Id.
at 164 (quoting Carrera, 727 F.3d at 308 n.2). “Carrera,” in other words, only “stands for the proposition that a
party cannot merely provide assurances to the district court that it will later meet Rule 23’s requirements.” Id. In
Byrd, the Third Circuit went on to characterize the defendants’ “reliance on Carrera” as “misplaced.” Id. at 170.
“In Carrera, we concluded that the plaintiffs’ proposed reliance on affidavits alone, without any objective records to
identify class members or a method to weed out unreliable affidavits, could not satisfy the ascertainability
requirement.” Id. (emphasis added). On the other hand, the Byrds—like Plaintiffs in this case—“presented the
District Court with multiple definitions of class members and simply argued that a form similar to those provided
could be used to identify household members.” Id.; see also id. (“There will always be some level of inquiry
required to verify that a person is a member of a class.”). To emphasize the point, the Third Circuit stated that,
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 36
Here, in contrast, there is “evidence that a single purchaser [in the proposed class] . . .
could be identified using records of customer membership cards or records of online sales.” Id.
at 309 (emphasis added). P&G’s own documents indicate that more than half of its sales are
online. Sealed App. at 514. At a minimum, online sales would provide the names and shipping
addresses of those who purchased Align. In addition, studies conducted by P&G reveal that an
overwhelming number of customers learned about Align through their physicians. See Sealed
App. at 160–61 (documenting surveys showing 39% to 80% of all users hearing about Align
through a physician). Unlike the proposed class in Carrera, P&G could verify that a customer
purchased Align by, for instance, requesting a signed statement from that customer’s physician.
Store receipts and affidavits can supplement these methods.
In sum, the district court did not abuse its discretion in finding the proposed class to be
sufficiently ascertainable. As the district court pointed out, there is significant evidence that
Plaintiffs could use traditional models and methods to identify class members. See R. 140 (Dist.
Ct. Op. at 12–15) (Page ID #6426–29). These methods satisfy Young.
III CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment granting class
certification.
“[c]ertainly, Carrera does not suggest that no level of inquiry as to the identity of class members can ever be
undertaken. If that were the case, no Rule 23(b)(3) class could ever be certified.” Id. at 171.
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 37
_________________
CONCURRENCE
_________________
AVERN COHN, District Judge, concurring. I concur in the lead opinion and have this to
add. As I read Plaintiffs’ false-advertising claims, they are predicated on the proposition that
Align has no digestive health benefits to anyone, and that there is no reason to purchase Align
other than for its promised digestive health benefits. On return to the district court, given the
disagreements between the lead opinion and dissent, I believe the district judge, before
proceeding further, should consider bifurcation under Fed R. Civ. P. 42(b) the issue of the
digestive health benefits of Align. If, as Plaintiffs claim, there is no scientific evidence that
Align promotes digestive heath for anyone, the case can proceed in the regular course. If, on the
other hand, Plaintiffs’ proofs fail to establish that Align has no digestive health benefits, the case
should be dismissed. See, e.g., Gillie v. Law Office of Eric A. Jones, LLC, No. 2:13-CV-212,
2013 WL 6255693 (S.D. Ohio Dec. 4, 2013) (to conserve judicial resources, bifurcating under
Rule 42(b) issues relating to liability, such as whether defendants are considered “debt
collectors” under the Fair Debt Collection Practices Act), granting defendants’ motion for
summary judgment on liability, 37 F. Supp. 3d 928 (S.D. Ohio 2014), vacated and remanded,
785 F.3d 1091 (6th Cir. 2015); see generally Susan E. Abitanta, Bifurcation of Liability and
Damages in Rule 23(b)(3) Class Actions: History, Policy, Problems, and a Solution, 36 Sw. L.J.
743, 744 (1982) (discussing the economic benefits of bifurcation in class actions).
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 38
_________________
DISSENT
_________________
COOK, Circuit Judge, dissenting. Recent Supreme Court precedent clearly holds that
“plaintiffs wishing to proceed through a class action must actually prove—not simply plead—
that their proposed class satisfies each requirement of Rule 23.” Halliburton Co. v. Erica P.
John Fund, Inc., 134 S. Ct. 2398, 2412 (2014); see also Comcast Corp. v. Behrend, 133 S. Ct.
1426, 1432 (2013); Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194
(2013); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). District courts may
certify a class only where the plaintiff presents “evidentiary proof” sufficient to withstand
“rigorous analysis” of Rule 23’s requirements. Comcast, 133 S. Ct. at 1432. Nothing about the
district court’s analysis here was rigorous, and the majority papers over this abuse of discretion
by claiming that any further inquiry would result in an impermissible “dress rehearsal” for trial.
More often than not, however, a district court’s “‘rigorous analysis’ will entail some overlap with
the merits of the plaintiff’s underlying claim.” Dukes, 131 S. Ct. at 2551–52 (quoting Gen. Tel.
Co. of Sw. v. Falcon, 457 U.S. 147, 614 (1982)). And this case is no exception to that rule.
Because the majority opinion conflicts with the Supreme Court’s Rule 23 jurisprudence, I
dissent.
Plaintiffs proclaim that Align is “snake oil” that produces nothing more than a placebo
effect. But Plaintiffs offer no proof in support of this argument, and all the available evidence
tends to show the opposite: that consumers benefit more or less from Align based on their
individual gastrointestinal health. P&G’s scientific studies and anecdotal evidence tend to show,
at the very least, that patients suffering from irritable bowel syndrome (IBS) benefit from Align.
Plaintiffs tacitly acknowledge as much in their amended complaint, challenging the design of
these studies and arguing that P&G relies on an impermissible string of inferences to conclude
that Align also benefits “healthy” people.
Plaintiffs’ attempt to distinguish Align’s impact on IBS sufferers from its effect on the
general population exposes the flaw in their proposed class definition. At this stage, Plaintiffs
must demonstrate that they can disprove Align’s efficacy for every member of the class at one
No. 14-4088 Rikos et al. v. The Procter & Gamble Co. Page 39
time. The class certified by the district court includes all consumers who purchased Align, IBS
patients and “healthy” consumers alike. Because the evidence tends to show that these two
groups respond differently to Align, Plaintiffs have failed to meet their burden of showing that
their theory of liability lends itself to common investigation and resolution. See Dukes, 131 S.
Ct. at 2551 (stating that the benchmark for commonality is a classwide proceeding’s ability to
generate common answers rather than counsel’s ability to formulate common questions).
Furthermore, Plaintiffs offer no proof that the benefits associated with Align result solely
from a placebo effect. Their expert, Dr. Komanduri, expressed no opinion on the question and
declined to confront any of P&G’s studies directly. He dismissed all these trials as too
unscientific, although he has yet to study the product himself and acknowledges that the IBS
symptoms of at least one of his patients improved after taking Align. In lieu of an expert
opinion, Dr. Komanduri promised to design and conduct a clinical trial that will prove
definitively whether Align works as advertised, notwithstanding the experts who already
conclude that it works for at least some consumers. With nothing more than that promise, the
district court certified a class of millions across five states. In doing so, the court impermissibly
shifted the burden to P&G, forcing it to disprove the commonality and predominance elements of
Rule 23.
To avoid confronting these flaws, the majority quotes Amgen’s admonition that “[m]erits
questions may be considered to the extent—but only to the extent—that they are relevant to
determining whether the Rule 23 prerequisites for class certification are satisfied.” 133 S. Ct. at
1195. But whether Align works similarly for each class member is relevant to certification and
therefore not beyond the scope of the court’s rigorous analysis. See Dukes, 131 S. Ct. at 2551–
52 (“The class determination generally involves considerations that are enmeshed in the factual
and legal issues comprising the plaintiff’s cause of action.” (quoting Falcon, 457 U.S. at 160)).
If Align works to varying degrees—or at all—depending on each member’s unique physiology,
then the question of Align’s efficacy involves myriad individual inquiries. See Comcast, 133 S.
Ct. at 1432 (“The party must also satisfy through evidentiary proof at least one of the provisions
of Rule 23(b).”). This fundamental defect will not disappear by allowing Plaintiffs to define the
question at an impossibly high level of abstraction. As the case proceeds, the problems with the
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district court’s certification order will become painfully clear. Either the court will have to
whittle down the class definition every time P&G produces a study showing that patients with a
certain makeup benefit from Align or the court must award judgment to P&G and preclude class
members with colorable claims from recovery because it defined the class too broadly in the first
place.
By discounting the evidence presented at the certification stage, moreover, the majority
affirms a class definition that includes a clutch of members without standing. E.g., Kohen v.
Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009) (“[A] class should not be certified if
it is apparent that it contains a great many persons who have suffered no injury at the hands of
the defendant . . . .” (citations omitted)); Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d
Cir. 2006) (“The class must therefore be defined in such a way that anyone within it would have
standing.”). The class definition includes all purchasers of Align despite the fact that Plaintiffs
offer no proof to rebut the studies showing that the product improves digestive health for IBS
patients. The only evidence before the court shows that IBS patients suffered no injury (because
Align works as-advertised for them), and therefore Plaintiffs have failed to show a properly
defined class. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“[E]ach element
must be supported in the same way as any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required at the successive stages of the
litigation.”). Unless Plaintiffs muster some evidence rebutting the IBS studies, their claim is
already doomed.
For these reasons, the Supreme Court requires plaintiffs to affirmatively prove that
common questions both exist and predominate. Though Plaintiffs artfully frame the question in
a binary fashion, a rigorous analysis of their evidence shows that resolution of the Plaintiffs’
question cannot apply universally to all class members. Plaintiffs offer nothing in support of
their claim that Align benefits no one. Instead, they nitpick P&G’s competent evidence, trot out
an expert without any opinion as to the supplement’s efficacy, and promise to conduct the
definitive trial of Align that accounts for all variables of human physiology. Dukes and its
progeny teach us that this is insufficient to justify class certification. I must dissent.