September 21, 2015 Practice Points

Sixth Circuit Approves Certification of Classes to Pursue Plaintiffs' "Snake Oil" Theory of Liability

A majority rejected arguments made by pharma giant Procter & Gamble

by E. Colin Thompson

In Rikos v. The Procter & Gamble Co., No. 14-4088 (6th Cir. Aug. 20, 2015), a divided Sixth Circuit Panel, affirmed an order certifying five single-state classes of purchasers of Align, a nutritional supplement manufactured by the Procter & Gamble Company (P&G) and marketed as promoting digestive health. In so doing, the majority rejected arguments that recently have been successful in preventing or overturning certification of classes seeking to pursue claims regarding small-dollar consumer products.

The named plaintiffs alleged that Align is mere “snake oil,” “because it has not been proven scientifically that Align promotes digestive health for anyone.” Accordingly, the plaintiffs claimed that P&G’s packaging representations violated various state unfair and deceptive practice statutes.

In affirming the district court’s certification of the classes, the majority rejected P&G’s arguments that the plaintiffs failed to present evidence to prove the requisites of commonality and predominance, that plaintiffs failed to show they can prove class-wide impact and damages, that putative class members lack standing, and that the classes could not be ascertained in an administratively feasible manner. Two factors were essential to the majority’s rejection of each of P&G’s arguments: (1) the district’s court’s factual finding that “no individual would purchase Align but-for its digestive health benefits, which P&G promoted through an extensive advertising campaign”; and, (2) plaintiffs’ theory and central claim was that Align does not work as promised for anyone.

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