The recent Southern District of California’s decision in Conde v. Sensa reveals ways to defeat class certification, but more interestingly, provides a detailed analysis in dicta on typicality—a certification requirement that generally receives less attention than the others. See id., No. 14-cv-51 JLS WVG, 2018 U.S. Dist. LEXIS 154031 (S.D. Cal. Sep. 10, 2018).
There, plaintiffs alleged that Sensa engaged in false advertising and breach of warranties in relation to Sensa’s “Weight-Loss Systems.” The products were “tastant crystals” meant to be sprinkled on consumers’ food that were intended to cause consumers to feel full faster and eat less food. In marketing their products, Sensa advertised that users would “‘lose up to 30lbs or more in just 6 months’ without requiring the user to diet or exercise.” Id. at *5.
Defendants argued against class certification, alleging that 84 percent of the proposed class were subject to arbitration agreements, that each individual purchaser’s claims would be governed by the laws of their individual home state, and that several of the issues had already been resolved by an FTC settlement through which many plaintiffs had already received significant relief. The court agreed, finding that plaintiffs failed to meet their burden of predominance. The court explained it would have to spend a significant amount of time determining whether each purchaser was subject to an arbitration agreement and, then, whether each remaining plaintiff’s claims were proven under the applicable states’ laws.Furthermore, the court found that a class action was not a superior mechanism given the prior FTC settlement.
Even though the court ultimately denied class certification, it went out of its way to explain why plaintiff otherwise met the typicality requirement. Specifically, defendants argued that the named plaintiff, Ms. Stokes, was atypical of her class in six ways, including: she (1) did not purchase Sensa to lose weight, but rather to maintain it; (2) experienced side effects uncommon to the class; (3) used only one of three class products; (4) did not rely on all representations by Sensa; (5) had never seen or purchased Sensa on their website; and (6) spent $5,000 on the product over five years because she was satisfied with it. The court discussed each argument in turn.
First, the court found that Stokes’s reasons for buying the product and the fact that she experienced uncommon side effects were not relevant to the typicality analysis because “she still suffered the same injury as the Class members: monetary loss from purchasing a product based on alleged misrepresentations.” Id. at *19. Further, the court noted, Stokes was “not seeking relief for the side effects [she] experienced from using Sensa.” Id. at *19-20. Although “[i]t is undeniable that Plaintiff used only one of three of the Class Products,” all class products claimed to have the same result, and the marketing and ingredients of the products were “substantially similar,” so this too did not cause Stokes to be atypical of the Class. Id. at *22–24.
Second, in response to defendants’ argument that Stokes never saw or read the representations made on the website that the majority of consumers had seen, the court concluded that this was immaterial because Stokes had seen the same advertisements on retail boxes, television ads, and infomercials. Id. at *24–25.
The climax of the typicality analysis, however, was defendants’ argument and Stokes’s admittance that she continued to buy the product for five years because she was satisfied with Sensa. Nevertheless, in finding Stokes satisfied typicality, the court explained that “[i]t is irrelevant that Stokes liked the Class Product while using it—she is not seeking to represent a Class of people who gained weight as a result of Sensa or disliked the Class Product.” Id. The court instead emphasized that the focus should be “on the Defendants’ conduct and Plaintiff’s legal theory.” Id. at *21.
The court’s conclusion disregards the fact that putative class members, unlike Stokes, were likely dissatisfied with the product and may, therefore, have more to lose than Stokes. Given Stokes’s satisfaction with the product, it could be argued that she received the benefit of her bargain and thus, may not share the same stakes in the litigation as the class of consumers who did not. To what degree this analysis in dicta will be persuasive in future cases remains to be seen.
Cassandra Love-Olivo is an associate at Weil, Gotshal & Manges LLP in New York, New York.