The Ninth Circuit vacated a class certification order issued by the Central District of California, finding that common issues did not predominate because plaintiff had failed to demonstrate that the alleged misrepresentation that formed the basis of her suit had been made to all putative class members. Plaintiff alleged that defendant, Supple LLC, violated California’s Unfair Competition Law, California’s False Advertising Law, and California’s Consumer Legal Remedies Act by misrepresenting that its dietary supplement containing glucosamine hydrochloride and chondroitin sulfate “is clinically proven effective in treating joint pain.” In certifying a class of all purchasers of the supplement in the State of California since December 2, 2007, the district court held that the common issue that predominated was whether Supple had misrepresented to the class members that the supplement “is clinically proven effective in treating joint pain.” Supple successfully petitioned for leave to appeal to the Ninth Circuit pursuant to Rule 23(f).

The Ninth Circuit began its analysis by noting that, in cases based on misrepresentations, “it is critical that the misrepresentation in question be made to all class members.” In the instant case, however, the appellate court found that the record did not support a determination that the alleged misrepresentation was seen or received by all class members and, therefore, failed to satisfy this standard. On the contrary, the court found that the misrepresentation was not made in all advertising for the supplement, and “[w]hile some deviations from precise wording . . . might not be fatal to class certification, advertisements that did not declare the [supplement] to be ‘clinically proven effective in treating joint pain’ are a far cry from advertisements that did.” Accordingly, the court held that the district court abused its discretion in certifying the class and vacated the certification order. In vacating the order, the Ninth Circuit also refused plaintiff’s request to “expand the misrepresentation to a claim that the [supplement] has some efficacy,” limiting itself to the issue that was actually before the district court.

Cabral v. Supple LLC, No. 13-55943 (9th Cir. June 23, 2015).