Ortega v. Natural Balance, Inc., 2014 WL 2782329, No. CV
13–5942 (C.D. Cal. June 19, 2014)
The court granted class certification for a California class
of consumers of Cobra Sexual Energy, a dietary supplement containing various
herbs, extracts, and other plant-based materials, which was allegedly falsely
marketed as having beneficial health and aphrodisiac properties and being
scientifically formulated to improve virility.
Plaintiffs alleged the usual California claims.
The court found the class ascertainable by objective
criteria: whether they purchased the products during the class period in
California for personal use (and weren’t persons connected to Natural Balance).
Only those who lost money buying Cobra were included, so the class was defined
as people who’d have standing. The fact
that there were no purchase records was irrelevant; “identifying individual
class members is not germane to ascertainability.”
Typicality: Natural Balance argued that the class
representatives’ claims weren’t typical because they had unrealistic
expectations of the product and unreasonably interpreted the packaging. But the particulars of their understanding
didn’t make them atypical: “even if each Plaintiff and class member had
somewhat varying conceptions of the results he could expect from a product
marketed as virility-enhancing, each had the same marketing-induced expectation
that the product would be virility-enhancing.”
Plaintiffs alleged that it wasn’t.
That made their claims typical, except as to class members whose claims
would be barred by the statute of limitations. They couldn’t add to the period
by arguing delayed discovery that tolled the limitations period, because that
would add “a significant dimension in which the named Plaintiffs have no personal
interest.”
Common issues predominated: falsity/misleadingness of the
packaging itself, which would be determined based on a reasonable consumer
standard and not on an individual basis.
“Plaintiffs’ other evidence—consumer surveys and expert testimony
regarding the inefficacy of Cobra’s ingredients—is also applicable on a
class-wide basis.”
Classwide causation could be presumed upon a showing of
materiality. The allegedly misleading
statements were nearly all of the statements on Cobra’s packaging, and it
strained credulity to think that a manufacturer would put only immaterial
statements on its packaging. Thus, if
plaintiffs chould show misleadingness, they could likely show materiality as
well; certainly this couldn’t be ruled out as a matter of law. It could be determined classwide because the
packaging was uniform over the entire class period.
Natural Balance argues that individual questions
predominated because plaintiffs couldn’t show that everyone was misled by the
exact same statements—the named plaintiffs allegedly relied on the package’s
image of a cobra snake and not on other statements. But both plaintiffs testified to other
statements on which they relied. And the
presumption of reliance and causation could moot any issue about which
component any individual plaintiff read or remembered.
Nor did individualized damages defeat predominance. Even if that could, by itself, defeat
certification—which it can’t—plaintiffs had a tenable theory of how to
ascertain classwide monetary relief. What they spent on Cobra could be readily
calculated using Defendant’s sales numbers and an average retail price. Natural Balance argued that this didn’t take
into account the actual value of the product to each individual. But plaintiffs
argued that the product was valueless because it provided none of the
advertised benefits and was illegal, entitling them to recover the full price. Natural Balance’s “theoretically available
defense” to this relief didn’t render damages an individualized issue that predominates
over the common issues.
The challenge of identifying class members was also
insufficient to make individual issues predominate. “[G]iven that one of the purposes of the
class action procedure is to facilitate small claims, that it is likely Defendant’s
aggregate liability could be reliably determined without imposing excess
liability, and that all parties would be bound by the litigation, individual
issues arising out of identifying class members do not predominate over common
issues and the class procedure does not unfairly prejudice Defendant.”
Unsurprisingly, the court also found superiority. Small individual claims would be difficult,
wasteful, and unlikely. Overall,
certification was appropriate.
However, the court did reject two unusual features of the
proposed notice—that Natural Balance be required to pay for it, and that it
also be required to include the notice within Cobra’s packaging. Nothing justified departing from the ordinary
plaintiff-pays rule, and requiring notice within Cobra’s packaging “would be
akin to issuing a mandatory injunction, a drastic step not warranted by the
record before the Court.”
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