Plaintiffs alleged that Pom’s health claims for its
pomegranate juice products were false and misleading, alleging the usual
California statutory claims. They moved
to certify a nationwide class, and the court granted the motion. Pom argued that there couldn’t be
predominance for a nationwide class under Mazza. “To the extent that Pom argues that
California law cannot be applied to consumers nationwide as a matter of law,
Pom is incorrect. Mazza did not
vacate the district court's class certification as a matter of law, but rather
because defendant Honda met its burden to demonstrate material differences in
state law and show that other states' interests outweighed California's.”
Since Pom was headquartered and located solely in
California, developed its marketing strategies in California, and produced all
of its pomegranate juice products in California, application of California law
would be constitutional; Pom had the burden of showing that foreign law would
apply. But Pom didn’t meet that
burden. It provided a chart summarizing
each state’s consumer protection laws on elements such as scienter, reliance,
and timeliness, as well as remedies and defenses. But it didn’t explain which
of these foreign laws differ from California's laws. And even assuming that Pom had identified
specific differences, Pom didn’t apply them to the facts of this case to
demonstrate a true conflict. So
California law would apply to a nationwide class.
Pom argued that common questions of fact didn’t predominate
because 1) Pom disseminated several different advertisements, 2) class members
may or may not have relied on the various advertisements, 3) class members
bought Pom products for different reasons, and 4) class members' claims require
individualized damages inquiries. Nope.
The complaint alleged that Pom falsely promoted its products
as having “special benefits relating to diseases and health-related
conditions,” and as having tens of millions of dollars of medical research
behind them. “[T]he mere fact that Pom used several different advertisements to
convey its health message is not dispositive.” Pom marketed pomegranate juice as “the magic
elixir of our age,” that “helps all sorts of things in the body.” It directed its marketing staff that Pom's
“[m]ain messaging should be about heart health or longevity,” and that
“pomegranate juice[ ] promotes health and prolongs life.” Each member of the class need not hear the
exact same words; the class action mechanism would be useless if a defendant
could evade it by altering wording or format.
The court concluded:
Pom disseminated its message via
radio, billboards, and national print media over a period of several years.
Plaintiff has provided evidence that Pom succeeded in getting its message out,
including Pom's co-owner's statement that “72% of people who buy pomegranate
juice buy it for the health reason....“ Even Defendant's survey expert, Ravi
Dhar, determined that a significant majority of respondents, in excess of 90%,
cited health reasons as a motivating factor behind their purchase of Pom juice.
The questions whether Pom's representations regarding the health benefits were
material and deceived consumers predominate over individual questions regarding
specific advertisements.
Pom argued that reliance would present predominantly
individualized issues, material misrepresentations raise an inference of
reliance as to the entire class, and materiality to a reasonable consumer is subject
to common proof. Individualized damage
calculations can’t alone defeat class certification.
Superiority also favored the class action. “[T]he extent of Pom's contacts with
California and the lack of any demonstrated material conflict with the law of
other states weigh in favor of concentrating litigation of class members'
claims in this forum. Any potential management difficulties are outweighed by
the efficiencies to be gained by litigating class claims, which will almost
certainly require detailed scientific and expert evidence, all at once.” And there was no realistic alternative. Pom noted that the FTC is currently
litigating the truth of its claims, but that doesn’t necessarily provide the
class with a remedy, and individual actions aren’t realistic.
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