Classified Class Action Blog

  • All Topics
  • Contributors
  • About
  • Contact
  • Subscribe

Certification Unhealthy: Ninth Circuit Vacates Order Certifying Class of Dietary Supplement Purchasers

July 2, 2015 by Carlton Fields

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).

Print Friendly, PDF & Email

« Previous Article

A Message From the Eighth Circuit Regarding the TCPA

Next Article »

Party Waived Right to Compel Arbitration by Waiting to Raise the Defense Until After Class Certification and Shortly Before Trial
Avatar

About Carlton Fields

Get Weekly Updates!

2020 Class Action Survey – Now Available!

DOWNLOAD NOW
Carlton Fields Logo A blog focused on the latest class action developments and trends by the attorneys of Carlton Fields.

Search

Topics

Industries/Practices
  • Construction
  • Consumer Finance & Banking
  • Food & Beverage
  • Health Care
  • Insurance
  • Labor, Employment & ERISA
  • Manufacturing & Products
  • Pharmaceutical
  • Privacy & Technology
  • Securities
  • Telecommunications

Substantive/Procedural
  • Arbitration
  • CAFA
  • Certification
    • Adequacy
    • Ascertainability
    • Commonality
    • Numerosity
    • Predominance
    • Superiority
    • Typicality
  • Decertification
  • Settlements
  • Standing
  • Striking of Class Allegations

Courts/Jurisdiction
  • Federal District Courts
  • Federal Circuit Courts of Appeal
  • United States Supreme Court
  • State Courts

Monthly Archives

Recent Articles

  • MDL Court Denies Class Certification of Proposed “NAS Babies” Class
  • What’s Good for Trial Is Good for Class Certification: Fifth Circuit Rules That Daubert Applies at Class Certification Stage
  • One Game, One Stadium: Eleventh Circuit Spikes Collateral Challenge to Tampa Bay Buccaneers Proposed Class Action Settlement

Get Weekly Updates!

Carlton Fields

  • carltonfields.com
  • Practices
  • Industries
  • Class Action Survey

Related Industries/Practices

  • National Class Actions
  • National Trial Practice
  • Appellate & Trial Support
  • Our Class Action Experience

Classified: The Class Action Blog

  • All Topics
  • Contributors
  • About
  • Contact

Classified Logo
© 2014–2021 Carlton Fields, P.A. · Carlton Fields practices law in California as Carlton Fields, LLP · All Rights Reserved · Privacy Policy · Disclaimer

Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please contact us. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites. This site may be considered attorney advertising in some jurisdictions.