Antitrust Law Daily Wrap Up, ADVERTISING—9th Cir.: Class certification in dietary supplement false advertising case vacated, (Jun 24, 2015)

By Michael Menzhuber, J.D., LL.M.

After finding that the federal district court in Los Angeles abused its discretion when it certified a class of purchasers of a dietary supplement in a state law action against the manufacturer of the supplement, the U.S. Court of Appeals in San Francisco vacated the district court’s order certifying the class (Cabral v. Supple LLC, June 23, 2015, per curiam).

Background. Arleen Cabral alleged that she purchased a dietary supplement (Supple) in reliance on Supple LLC’s (manufacturer) claim that its key ingredients were “clinically proven effective in treating joint pain.” Cabral asserted that the manufacturer had made misrepresentations to her and other members of a class, determined to be all persons residing in the state of California who purchased Supple for personal use and not for resale since December 2, 2007, in violation of California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA).

The district court determined that Cabral had met the prerequisites for class certification as a class in which “questions of law or fact common to class members predominate over any questions affecting only individual members.” The common issue, according the district court, was whether Supple had misrepresented to the other class members that Supple had been “clinically proven effective in treating joint pain.” The manufacturer appealed the district court’s order certifying the class.

Certification of a class. In disagreeing with the district court’s class certification, the appeals court noted that for an issue to predominate it must at least be common and there must be cohesion among the class members. The court further noted that, when the case is based upon alleged misrepresentations in advertising, it is critical that the misrepresentation in question be made to all of the class members. The record did not meet this standard because it did not support a determination that all of the class members saw, or otherwise received, the misrepresentation that Supple was “clinically proven effective in treating joint pain.”

The case is No. 13-55943

Attorneys: Deepak Gupta (Gupta Beck PLLC) for Arleen Cabral. Yoanna Silvera Binder (Manatt, Phelps & Phillips, LLP) for Supple LLC.

Companies: Supple LLC

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