Best of ... false advertising: unusual plaintiff fails to represent class

Marin v. ANG Newspapers, 2006 WL 3307154 (Cal.App. 1 Dist.)

Marin sought to represent a class of deceived consumers, but his special circumstances and individual problems of causation and reliance defeated his class certification attempts.

Marin was formerly employed by defendant as an advertising manager for the Oakland Tribune. He alleged that the Tribune manipulated its yearly “Best Of” contest, which allowed readers to recommend their favorite local businesses in a variety of categories. The Tribune published the results in a special advertising section where many winners advertised. Winners also received a certificate to be displayed on their premises. Marin contended that the Tribune broke ties and chose winners in categories with no votes based on which businesses were good advertisers or good prospects.

After Marin quit or was fired, he sued for wrongful termination, and then attempted to add the relevant false advertising allegations. His proposed class covered all readers who were misled by the newspaper’s deceptive “Best Of” practices, and all consumers of businesses holding themselves out to be “Best Of” contest winners who were misled.

The court of appeals upheld the trial court’s finding that membership in the proposed classes would be nearly impossible to ascertain because whether someone was misled was an individual inquiry; we can’t infer that all subscribers relied on “Best Of” rankings or were damaged if they did rely. “This is not a case where the alleged misrepresentation is so clearly material that it should be inferred that all class members relied on it to their detriment.”

Independently, the trial court properly concluded appellant was not a suitable class representative because of his divergent interests in this case. He might be tempted to compromise his false advertising claims for an overall favorable resolution of his wrongful termination case.