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June 10, 2015 Practice Points

The Unpurchased Consumer Products Issue in Class Actions

By Elizabeth M. Chiarello and Jamie Gliksberg

Plaintiffs' counsel are increasingly bringing class action lawsuits challenging product lines or groups of products where the named plaintiffs have not purchased all of the products at issue. For example, a named plaintiff may seek to represent a class of all juice purchasers (including orange juice, apple juice, and grape juice) even though she only purchased grape juice. Below, we address the various approaches courts take when confronted with this scenario.

Some courts dismiss the claims related to unpurchased products at the pleading stage on the ground that the plaintiff lacks standing to sue over a product she did not purchase. See, e.g., Garcia v. Kashi, Co., 43 F. Supp. 3d 1359, 1393 (S.D. Fla. Sept. 5, 2014) ("a named plaintiff in a consumer class action lacks standing to challenge a non-purchased product because there is no injury-in-fact as to that product"); Leonhart v. Nature's Path Foods, Inc., No. 5:13-CV-0492-EJD, 2014 WL 1338161, at *4 (N.D. Cal. Mar. 31, 2014) ("many courts in this district have found that claims regarding unpurchased products similar to [p]laintiff's do not survive a motion to dismiss"). But see, e.g., Brady v. Basic Research, L.L.C., No. 13-CV-7169 SJF, 2015 WL 1542094, at *5 (E.D.N.Y. Mar. 31, 2015) ("there are sufficient similarities between the purchased products [and other products in the complaint] to withstand the motion [to dismiss]"). Other courts table the issue until the class certification stage. See e.g., Kumar v. Salov N. Am. Corp., No. 14-CV-2411-YGR, 2015 WL 457692, at *5 (N.D. Cal. Feb. 3, 2015) ("Whether [plaintiff] can properly represent a class of persons who purchased other products is a matter to be considered at the class certification stage, not the pleading stage").

At the class certification stage, some courts have denied class certification for lack of typicality where the named plaintiff seeks to represent a class of consumers who bought products that she herself did not buy. See, e.g., Allen v. Hyland's Inc., 300 F.R.D. 643, 662–63 (C.D. Cal. 2014) (denying class certification for lack of typicality where no named plaintiff purchased and/or relied upon the packaging statements for certain challenged products); Major v. Ocean Spray Cranberries, Inc., No. 5:12-CV-03067, 2013 WL 2558125 EJD, at *4 (N.D. Cal. June 10, 2013) ("The primary reason behind the Court's determination that the typicality requirement has not been met is that Plaintiff's proposed classes are so broad and indefinite that they encompass products that she herself did not purchase.").

Other courts considering class certification have held that a plaintiff may represent absent class members who purchased different products, so long as the product or alleged defect are "substantially similar." See e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 599 (3d Cir. 2012) (finding no typicality problem and stating that "[w]hen a class includes purchasers of a variety of different products, a named plaintiff that purchases only one type of product satisfies the typicality requirement if the alleged misrepresentations or omissions apply uniformly across the different product types.").

Finally, if a class is certified, there is still an opportunity to argue to a jury that not everyone in the class experienced problems with the same products, and therefore the jury should find in favor of the defendant. See, e.g., In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 855–56 (6th Cir. 2013), cert. denied sub nom., Whirlpool Corp. v. Glazer, 134 S. Ct. 1277 (2014) (granting class certification and denying a motion for decertification where defendants argued that most of the machines purchased did not have the mold issues alleged). Commentators have suggested that the fact that the trial was over 20 different models of washers may be one reason why the jury found for Whirlpool in its Front-Loading Washer litigation.

While the success of arguments about unpurchased products may depend in part on the jurisdiction in which counsel find themselves, the foregoing illustrates that there are multiple opportunities for defense counsel to attempt to end the case with respect to products a named plaintiff did not purchase. If arguments are unsuccessful at the pleadings stage, the next question is whether the plaintiff can show that she is typical at the class certification stage, or that the products she purchased are "substantially similar" to those purchased by the class, and defense counsel would be well advised to provide affirmative discovery if they are not. In all events, unpurchased products may ultimately be useful at trial to show that there was no classwide defect.

Keywords: products liability, litigation, onsumer product, class action, unpurchased

Elizabeth M. Chiarello and Jamie Gliksberg are with Sidley Austin LLP in Chicago, Illinois.

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