Duane Morris Class Action Review - 2023 - Report - Page 118
First, the court found Rule 23(a) commonality was clearly satisfied where the plaintiff’s
claims contemplated two, class-wide questions, including: (i) whether J&J’s “oil-free”
language was deceptive; and (ii) whether that deception was important to a reasonable
customer in making their decision to purchase the product. Id. at *4. Likewise, the court
found any remaining questions of law or fact implicated by the plaintiff’s claims could be
resolved on a class-wide basis with proof that a reasonable person, not the individual
purchaser him or herself, would be deceived by the product’s oil-free packaging. “To
show likelihood of deception, the plaintiff must establish that every member of the
putative class was exposed to the alleged misrepresentation.” Id. at *4-5.
Unlike In Re Suffolk University and Day, et al. v. GEICO, certification of the plaintiff’s
class in Noohi turned on a different Rule 23(b)(3) consideration: predominance. Once it
determined questions of law and fact common to the class existed, the court needed to
determine whether those common questions predominated over questions affecting
individuals. Id. at 5. In making this decision, the court assessed whether the common
questions were central to the plaintiff’s claims and consider the evidence necessary to
answer them. “If each class member could have relied on the plaintiff’s evidence and
methods to establish liability if he or she had brought an individual action, predominance
will be satisfied. However, the plaintiff is not required to show, at this stage, that the
class will, actually, prevail on the merits of those questions.” Id. at *6. Additionally, the
CLRA claim required proof of damages, so just like the Suffolk student class and the
Day insureds class, the plaintiff needed to show CLRA damages were capable of
measurement on a class-wide basis. Id. at *6.
The plaintiff offred a deception expert to evidence the first predominance inquiry whether J&J’s use of the term “oil-free” could deceive purchasers. Id. at 6. J&J
challenged the admissibility of the plaintiff’s expert’s report on grounds they lacked
scientific support and failed to establish the expert’s expertise. Applying the Daubert
standard, the court agreed with J&J that the expert’s report failed to point to any
objective source of information to show the expert followed a reliable scientific method.
Therefore, the court ruled that the report of the plaintiff’s expert was inadmissible at the
Rule 23 stage. Id. at *7. However, because there was no indication the expert was
incapable of presenting his deception conclusions in an admissible manner at summary
judgment or trial, the court ruled the report’s inadmissibility would not ultimately defeat
predominance. Id.
Because an objective standard applied to the class’s second predominance inquiry - the
materiality of J&J’s alleged deception - the court ruled the plaintiff need not ultimately
prove at the Rule 23 class certification stage that the oil-free packaging played a role in
each and every class member’s decision to purchase the product. Id. at *8. The court
clarified that “it does not matter, here, how Noohi will prove that the packaging language
was important to a reasonable person, because any individual class member could rely
on that same evidence in their own, individual case.” Id. at *9. So, to satisfy the second
predominance inquiry, the plaintiff needed only to show exposure to the oil-free
packaging language occurred on a class-wide basis. Id. J&J never disputed its “oil-free”
language appeared in its product’s name, so the court concluded that the plaintiff
sufficiently demonstrated materiality could be resolved on a class-wide basis. Id.
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Duane Morris Class Action Review – 2023
