Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Clorox avoids subclass certification in cat litter ad case, (Jul 30, 2014)

By Greg Hammond, J.D.

Fresh Step cat litter consumers were unable to obtain certification of five subclasses in a deceptive advertising and consumer protection suit against The Clorox Company. In denying the motion for class certification, the federal district court in San Francisco determined that the subclasses were not ascertainable and common questions of fact did not predominate over individual issues (In re Clorox Consumer Litigation, July 28, 2014, Conti, S.).

Background. Clorox is the maker of Fresh Step cat litter, the only cat litter product that allegedly uses carbon as opposed to baking soda to eliminate odors. Purchasers of Fresh Step claimed that Clorox’s marketing campaign conveyed that its litter was more effective at eliminating cat odors than other similar products that do not contain carbon. Consequently, consumers from California, Florida, New Jersey, New York, and Texas filed a class action, alleging that Clorox’s statements were false, misleading, and contradicted by scientific studies. The consumers moved for certification of five subclasses, one subclass for each state where consumers purchased Fresh Step.

Ascertainability. According to the court, Fresh Step consumers were required to demonstrate that each subclass was currently and readily ascertainable based on objective criteria. Because the consumers intended to rely on retailer records to demonstrate ascertainability, they were required to demonstrate that such records could be used to identify class members.

First, the court determined that consumers failed to identify any method to determine who purchased Fresh Step cat litter during the class period. In addition, it found that consumer affidavits would be insufficient to identify the class, as none of the named consumers kept their receipts; many consumers could not remember when they bought cat litter, or the size, type, or brand they purchased; and one of the named plaintiffs could not even remember if she purchased Fresh Step during the class period.

The court also concluded that relying on retailer records would not be an administratively feasible method of determining membership in the subclasses, as only two out of 16 retailers could help identify a substantial number of plaintiffs. Consequently, the five subclasses were deemed not ascertainable, and the motion for class certification was denied.

Predominance. Fresh Step consumers also had the burden of demonstrating that questions common to the class members predominated over individual questions. The questions in this case concerned Clorox’s advertising claims that Fresh Step is superior to other cat litter products. Clorox argued that common questions do not predominate in this case, because many—if not most—members of the proposed subclasses did not see or rely on the alleged misleading superiority claims. The company offered evidence that only 11 percent of consumers read the back panel of cat litter packaging that contained the superiority message.

The court agreed with Clorox, noting that: (1) television commercials that aired the allegedly misleading statements ran for only a small portion of the class period; and (2) the superiority claims appeared in small print on the back of a minority of Fresh Step packages. Having reviewed the causation and reliance requirements in California, Florida, New Jersey, New York, and Texas, the court concluded that the consumers failed to demonstrate the proposed classes were uniformly exposed to the allegedly misleading messages. Consequently, common questions did not predominate over individual issues in the five states, and the motion for certification was denied.

The case number is 12-00280 SC.

Attorneys: Anthony David Phillips (Berman DeValerio) for Megan Sterritt. Kenneth Kiyul Lee (Jenner & Block LLP) for The Clorox Co.

Companies: The Clorox Co.

Cases: Advertising StateUnfairTradePractices CaliforniaNews