Antitrust Law Daily Wrap Up, ADVERTISING NEWS: P&G denied High Court review in probiotic false representation suit, (Mar 28, 2016)

By Greg Hammond, J.D.

The U.S. Supreme Court has refused to review an order, entered by the U.S. Court of Appeals in Cincinnati, granting class certification in an action alleging that Procter & Gamble Co.’s probiotic nutritional supplement—Align—did not work as advertised (The Procter & Gamble Co. v. Rikos, Dkt. 15-835).

Procter & Gamble (P&G) purportedly markets Align to the general public as a supplement that “naturally helps build and support a healthy digestive system, maintain digestive balance, and fortify your digestive system with healthy bacteria.” Consumers alleged that they purchased Align at various stores in California, Illinois, North Carolina, Florida, and New Hampshire. They filed suit against P&G, claiming that they suffered injury in fact and lost money as a result of P&G’s unfair competition after finding that Align did not provide them with the digestive benefits it promised. The district court granted class certification and the appellate court affirmed, finding that the consumers satisfied the requirements of Federal Rule of Civil Procedure 23(a), the consumers had Article III standing, and the proposed class was sufficiently ascertainable.

In its petition for review, P&G asked three questions: (1) Whether a district court at the class certification stage must evaluate the evidence regarding whether putative class members in fact suffered a common injury, and thus that the class is sufficiently cohesive to bind all putative class members under plaintiffs’ proffered theory of liability, or whether such an inquiry should occur only at the merits stage; (2) Whether Article III permits a class to be certified on (a) the standing of the named plaintiffs or (b) the violation of a state statute, where the record demonstrates that many unnamed class members have not suffered an injury caused by the defendant’s alleged conduct; and (3) Whether a class may be certified under Federal Rule of Civil Procedure 23(b)(3) where the named plaintiffs fail to demonstrate a reliable and feasible way to ascertain class membership beyond relying on class members’ affidavits.

Attorneys: Glen D. Nager (Jones Day) for The Procter & Gamble Co. Samuel Issacharoff for Dino Rikos.

Companies: The Procter & Gamble Co.

News: Advertising