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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.

The majority recognized that it had “an obligation to assess the theory of liability Plaintiffs present” and concluded that the requirements of rule 23 were satisfied to pursue claims based on that theory. “[W]hether Align is ‘snake oil’ and thus does not yield benefits to anyone,” the majority held, “satisfies [Wal-Mart v.] Dukes’s commonality test in that it will “yield a common answer for the entire class and that, if true, [it] will make P&G liable to the entire class” under the relevant false-advertisings laws, regardless of whether particular putative class members were satisfied with the product. Similarly, as to the predominance requirement the majority concluded that determining the answer to the dispositive question at issue “will not turn on the individual behavior of consumers; if Align is shown to work, even for only certain individuals, then presumably Plaintiffs lose.”

The majority rejected P&G’s argument that the classes were overbroad and, therefore, presented standing issues. It concluded that “[i]f Align does not work as advertised for anyone, then every purchaser was harmed.”

Regarding ascertainability, the majority saw no reason to accept P&G’s invitation to follow Carrera v. Bayer Corp., “particularly given the strong criticism it has attracted from other courts.” The majority held that the certified classes satisfied the ascertainability requirement applied in the Sixth Circuit.

The dissenting judge found that the majority failed to apply the Supreme Court’s recent Halliburton edict that “plaintiffs wishing to proceed through a class action must actually prove—not simply plead—that their proposed class satisfies each requirement of Rule 23.” She concluded that the plaintiffs did not meet this requirement because the they “offer[ed] no proof in support of [their] argument” that Align is “snake oil,” and P&G’s evidence “tends to show the opposite.” The judge concurring with the majority suggested a practical middle ground: upon remand, the district court should bifurcate under Fed. R. Civ. P. 42(b) to address the merits of plaintiffs’ “snake oil” theory, prior to allowing further class proceedings.

Courts have increasingly been reluctant to certify classes seeking to challenge claims manufactures make regarding small-dollar consumer products purchased and used by consumers in different circumstances and for different reasons. As the Rikos decision demonstrates, however, classes can properly be certified when they target one product that is promoted to provide one benefit, where the plaintiff alleges the product does not provide that promoted benefit to anyone.

Indeed, the Rikos plaintiffs survived P&G’s multi-pronged attack because they asserted their claims with regard to only one product and went all-in, alleging that the product was completely ineffective for anyone. Whether the class can survive the merits phase remains to be seen, as, according to the majority, P&G need only demonstrate that Align is effective for any class member, and the entire class loses.

E. Colin Thompson is a shareholder with Smolker Bartlett Loeb Hinds & Sheppard in Tampa, Florida.

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