Duane Morris Class Action Review - 2023 - Report - Page 119
To show damages were capable of class-wide determination, though, the court required
the plaintiff establish the whole class suffered damages that were traceable to the same
J&J conduct underpinning the plaintiff’s cause of action. Id. The plaintiff intended to
determine damages by measuring the changes in consumers’ likelihood of repurchasing
the product after they discovered J&J’s “oil-free” label was false, a method other courts
previously deemed viable for CLRA damages. Unpersuaded by J&J’s argument that this
model failed to account for additional ancillary factors in repurchasing trends, such as
price premiums, the court found class certification turned on whether the plaintiff’s
methodology was adequate, not how it may be executed and what conclusions it may
yield. Id. at 10. For these reasons, the court granted class certification of the plaintiff’s
class of oil-free moisturizer purchasers.
Unlike the Noohi case, in Patenaude, et al. v. Orgain, LLC, 594 F. Supp. 3d 108 (D.
Mass. 2022), the defendant successfully moved to dismiss the plaintiff’s complaint that
alleged that its vanilla-flavored milk contained deceptive labelling. The front label of the
defendant’s unsweetened almond milk read “vanilla” without any additional modifying
language, and it was the word “vanilla” that the plaintiff alleged misled him and a
putative consumer class to believe the milk actually contained vanilla. The defendant
moved to dismiss pursuant to Rule 12(b)(6) because, it argued, the plaintiff failed to
allege the defendant’s standalone use of the word “vanilla” mislead consumers to act
differently than they otherwise would have. The court found the mere reference to
“vanilla” on the product’s front label, without reference to additional terms like extract,
vanilla beans, “real vanilla,” and so on, would not mislead a reasonable customer to
believe vanilla was anything other than a flavor designation and not a guarantee product
contained vanilla as an ingredient. Accordingly, the court granted the defendant’s
motion to dismiss.
B.
Rulings Analyzing Article III Standing
Class certification is occasionally decided for reasons outside of Rule 23’s
requirements. For example, the facts of many consumer putative class actions this year
required courts to analyze issues of Article III standing before they could proceed to
deciding certification.
For example, in G.G., et al. v. Valve Corp., 579 F. Supp. 3d 1224 (W. D. Wash. 2022),
the plaintiffs, the parents of children who played video games with in-game purchasing
options, alleged the options constituted an illegal form of gambling because they
embedded them with a feature that “simulated an online slot machine . . . a gambling
feature, in what otherwise appeared to be normal video games.” While the putative
parents’ motion for certification was pending, the defendant moved for summary
judgment on the basis that the parents lacked standing to assert their Washington
Consumer Protection Act (CPA) claims because the putative lead plaintiffs never
actually gave their children money to use in video games’ purchasing options. Id. at
1232. The parents attempted to delay the standing analysis¸ arguing it can only be
properly raised at class certification, not at summary judgment. Id. The court found that
“because there is no evidence . . . the plaintiffs gave money to their children to play [the
games containing in-game purchasing options] the plaintiffs cannot, as a matter of law,
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Duane Morris Class Action Review – 2023
