Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Marketer brings class heightened ascertainability argument to High Court, (Oct 29, 2015)
Law Firms Mentioned:Orrick, Herrington & Sutcliffe LLP | Venable LLP
Organizations Mentioned:Direct Digital, LLC | Orrick Herrington | Venable, LLP
By Greg Hammond, J.D.
The marketer of the dietary supplement Instaflex is challenging a decision by the U.S. Court of Appeals in Chicago, which upheld class certification in a consumer fraud suit and rejected the notion that Federal Rule of Civil Procedure 23(b)(3) imposes a heightened ascertainability requirement (Direct Digital, LLC v. Mullins, Dkt. 15-549).
A consumer filed suit against Direct Digital, LLC, alleging that the company fraudulently represented that its product, Instaflex, relieves joint discomfort. Specifically, the consumer claimed that the statements on Instaflex labels and marketing materials—including “relieve discomfort,” “improve flexibility,” “increase mobility,” “support cartilage repair,” “scientifically formulated,” and “clinically tested for maximum effectiveness”—were fraudulent because the primary ingredient, glucosamine sulfate, was nothing more than a sugar pill and there was no scientific support for those claims. Mullins alleged consumer fraud under the Illinois Consumer Fraud and Deceptive Business Practices Act and brought consumer protection claims under the laws of nine other states.
The district court granted class certification and Direct Digital appealed, claiming the lower court abused its discretion in certifying the class without first finding that the class was “ascertainable,” and by concluding that the efficacy of a health product can qualify as a “common” question under Rule 23(a)(2). The U.S. Court of Appeals in Chicago affirmed, rejecting the notion that Rule 23(b)(3) imposes a heightened “ascertainability” requirement.
The petition asks, “May a court certify a class under Federal Rule of Civil Procedure 23(b)(3) where the plaintiff fails to make any showing of a reliable and administratively feasible means for ascertaining class membership?”
Attorneys: E. Joshua Rosenkranz (Orrick, Herrington & Sutcliffe LLP) and Daniel S. Silverman (Venable LLP) for Direct Digital, LLC.
Companies: Direct Digital, LLC
News: Advertising ConsumerProtection