Antitrust Law Daily Wrap Up, ADVERTISING NEWS: P&G seeks High Court review in probiotic false representation suit, (Jan 6, 2016)

By Greg Hammond, J.D.

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

Consumers brought the large-scale consumer class action, alleging that Align is “snake oil” that failed to provide its advertised benefit of “promoting digestive health” to a single consumer, according to P&G’s petition for review. The plaintiffs, however, provided no evidence to support their theory that Align fails to promote digestive health for every putative class member, but—instead—promised that their expert could conduct “correctly designed randomized, double-blind and placebo controlled clinical trials” to test their theory, the petition asserts. The appellate court nevertheless affirmed class certification.

By affirming certification of the “overbroad and unsubstantiated class,” P&G claims that the appellate court waded into a series of unresolved class-action questions and circuit conflicts. First, P&G argues that the appellate court decision raises the question of whether a district court’s duty to examine class cohesiveness includes examining all of the record evidence and testing the theory of liability proffered by the named plaintiffs to ensure that the putative class actually shares the common injury.

Second, P&G claims that, by certifying a class that includes many members who have not suffered any injury from P&G’s allegedly false advertising, the Sixth Circuit affirmed a class definition that includes a clutch of members without standing. Other appellate courts have refused to certify a class when the record shows that unnamed class members lack Article III standing, according to the petition. In addition, the petition alleges that, under the Sixth Circuit’s holding, many class members’ standing rests not on their individual ability to demonstrate causation but on the violation of a state statute—a ground for standing that is rejected in other circuit courts.

Lastly, P&G argues that the High Court should grant review in this case to define the “ascertainability” requirement for class certification.

The questions presented are: (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: D. Jeffrey Ireland (Faruki Ireland & Cox) and Glen D. Nager (Jones Day) for The Procter & Gamble Co.

Companies: The Procter & Gamble Co.

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