Wednesday, June 15, 2022

dog joint health supplement class action certified

Lytle v. Nutramax Laboratories, Inc., No. ED CV 19-0835 FMO (SPx), 2022 WL 1600047 (C.D. Cal. May 6, 2022)

Plaintiffs brought a putative class action asserting CLRA and other state consumer protection claims. Defendants sell allegedly falsely advertised Cosequin canine joint health supplements, which contain glucosamine and chondroitin as the main active ingredient. Defendants’ joint health claims allegedly “are refuted by peer-reviewed, randomized, controlled clinical trials[.]”

Plaintiffs offered, at the class certification stage, an expert on materiality. His experience in the advertising industry was sufficient to allow him to testify, even though he “did not conduct any surveys, focus groups, or formal research to form the basis of his materiality opinions.” California courts have “expressly rejected the ‘view that a plaintiff must produce a consumer survey or similar extrinsic evidence to prevail on a claim that the public is likely to be misled by a representation.’ ”

Likewise, plaintiffs offered a marketing professor’s testimony proposing a model to establish that “damages are capable of measurement on a classwide basis.” “[A] plaintiff is not required to actually execute a proposed conjoint analysis to show that damages are capable of determination on a class-wide basis with common proof” at the class certification stage. And this was relevant because all proposed class members saw at least one of the challenged label claims.

Common questions included whether members of the public were likely to be deceived by the challenged joint health claims, falsity, and materiality. Defendants argued that the challenged statements were exclusively on the back, not the front, but courts have certified such cases, and anyway, at least one of the contested claims, such as “Joint Health Supplement,” was on the front of each product, and the back label claims were “nonetheless prominent.”

Plaintiffs’ claims were typical even though some had older dogs/dogs with arthritis. They weren’t trying to recover for individualized physical injury to their dogs, but for overpaying for advertised benefits that allegedly weren’t available. Nor did it matter that some named plaintiffs didn’t adhere strictly to the label directions to give three tablets per day for the first 4-6 weeks. “[D]efendants cite no evidence that plaintiffs’ dogs or, for that matter, any dogs, would have received the benefits set forth in the contested label representations had plaintiffs used the product as directed. Nor did defendants provide any evidence that all or most members of the proposed class strictly adhered to defendants’ instructions for administering Cosequin.” Anyway, the deception-based nature of the injury meant these variations wouldn’t defeat typicality.

Nor did different delivery mechanisms for the product matter, since they all made similar claims. “While some class members may have purchased a slightly different type of Cosequin than plaintiffs, that ‘does not defeat typicality because the alleged misrepresentation was the same as to each type of’ Cosequin product purchased by the class. In other words, ‘Plaintiff[s’] claims ... have nothing to do with the unique characteristics of the various [Cosequin] products; they have to do only with what is allegedly shared by all those products.’”  

Finally, the fact that one named plaintiff kept buying the product even after he started to have “doubts” did not defeat typicality. The allegations here were that the product didn’t work at all.

Predominance: California courts often find predominance satisfied in CLRA cases because “causation, on a classwide basis, may be established by materiality[,]” meaning that “[i]f the trial court finds that material misrepresentations have been made to the entire class, an inference of reliance arises as to the class.” That was the case here. Expert testimony could establish falsity and deception, as well as materiality. And classwide exposure could be inferred from the visibility of the statements before purchase on the package. Given that “a plaintiff is not required to allege that the challenged misrepresentations were the sole or even the decisive cause of the injury-producing conduct,” the fact that the labels varied in other ways didn’t matter given that the contested label claim, “Joint Health Supplement,” “appeared prominently on each of the products purchased by the proposed class, and a review of the labels indicates that the statement was featured consistently across different label designs.”

Nor did plaintiffs have to establish that consumers’ understanding of the label claims was uniform. “[T]he standard requires only that the Court find there is a probability that reasonable consumers could be misled, not that they all believed [the claim] means the same thing.” Since not even survey data—which would never give a uniform result—is required to establish predominance, uniformity is even less so.

Defendants’ expert reports did not show that individual issues predominated on materiality. Not only was this a question that went to the merits, which could be answered on a classwide basis, the reports were flawed. For example, one expert showed survey respondents different images of Cosequin product packaging, with half of the respondents shown images that were “modified to only remove the challenged claims,” but the modified images still included the “Joint Health Supplement” statement prominently displayed on the front of the label, and that was a contested claim. It was not enough to remove the smaller-font “Joint Health Support.”

Damages: “[C]lass wide damages calculations under the CLRA are particularly forgiving[,]” because “California law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation.” Conjoint analysis could satisfy the standard. It didn’t matter whether many consumers were satisfied with the product, given that the complaint here was deception. “[Defendant’s] advertising messages are the focus of the claims, not customer satisfaction, and therefore consumer satisfaction is irrelevant.... There is [ ] no need to examine whether consumers were satisfied with the product to find an injury.” The damages model was consistent with the theory of liability, and that was all that was required.

Class certified.

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