Cruz-Alvarez_FFeatured Expert Contributor – Civil Justice/Class Actions

Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P. (co-authored with Talia Zucker, Shook, Hardy & Bacon L.L.P.)*

The U.S. Court of Appeals for the Sixth Circuit’s recent decision in Rikos v. The Procter & Gamble Company was a setback to Rule 23 jurisprudence, but as is often the case, there is a silver lining—Judge Deborah Cook’s dissenting opinion.  Judge Cook penned a thoughtful dissent that unravels the analytical shortcomings of the majority’s opinion, and demonstrates the conflict that exists between the majority opinion and the Supreme Court’s Rule 23 jurisprudence.

This lawsuit arose when three consumers (“Plaintiffs”), each residing in different states, purchased the product Align, a probiotic nutritional supplemental designed to promote digestive health, but believed it did not work as advertised. They subsequently brought this action against Procter & Gamble (“P&G”), the manufacturer of Align, claiming violations of various state unfair and deceptive practices because Align did not promote digestive health for anyone.

Thereafter, Plaintiffs sought class certification in various states where they resided and purchased Align. P&G opposed class certification and lost. The district court certified five single-state classes comprised of “[a]ll consumers who purchased Align . . . from March 1, 2009, until the date notice is first provided to the class.” In doing so, the district court was clear that it was not offering a ruling on the merits of the claim, but was instead reviewing only whether Plaintiffs had presented evidence to satisfy Rule 23. P&G appealed the decision to certify the class, maintaining that Plaintiffs failed to demonstrate all the necessary requirements under Federal Rule of Civil Procedure 23, namely (1) commonality and (2) typicality. P&G also argued that Plaintiffs failed to demonstrate that common issues predominated over individualized ones.

As to the first element, commonality, P&G argued that Plaintiffs failed to present evidence that the class members suffered an actual common injury; instead, Plaintiffs only offered anecdotal evidence that Align did not work for them. The Sixth Circuit rejected this argument, finding that P&G misconstrued Plaintiff’s burden at the certification stage, which is simply that they can prove that all members of the class have suffered the same injury—not that they have already proved it. In so concluding, the Court provided a brief overview of Wal-Mart Stores, Inc. v. Dukes, where the Supreme Court refused to certify a class of Wal-Mart employees claiming discrimination because the commonality requirement could not be satisfied. The Sixth Circuit distinguished Dukes and noted that its holding was much more limited than what P&G claimed. At bottom, Plaintiffs have identified a common question—whether Align is “snake oil” and thus does not yield benefits to anyone—that will yield a common answer for the entire class. As to the second element, typicality, P&G largely repeated its commonality argument with a slight variation. It maintained that many of the unnamed class members have no interest in pursuing restitution or crippling the product. The Sixth Circuit rejected this argument.

Finally, P&G contended that the district court erred in four ways when it concluded that common questions of law or fact predominate over individual questions. The Sixth Circuit rejected all four of P&G’s arguments. For purposes of this discussion, we will address just one of those reasons—that Align does actually work for many purchasing it, therefore Plaintiffs cannot prove injury on a class-wide basis. According to P&G, it put forth unrebutted evidence that Align works for some people, making it necessary to determine whether Align works for each individual class member, such that common issues do not predominate. In response, Plaintiffs contested whether P&G studies actually demonstrate that Align works, cited methodological flaws with the studies, and presented expert testimony on the issue. The Sixth Circuit sided with Plaintiffs, explaining that dueling scientific evidence at the merits stage will generate a common answer for the class—whether it has been scientifically proven that Align provides digestive health benefits for anyone. Evidence that Align might work for some people does not necessitate mini-trials that should preclude class certification. Rather, it might just prevent Plaintiffs from a victory.

Here is where Judge Cook strongly disagrees. And she is right. Recent Supreme Court precedent is clear that when plaintiffs wish to proceed with a class action, they must actually prove that their proposed class satisfies the requirements of Rule 23. It is not enough just to plead facts.

With that in mind, the underlying flaw in the majority’s rationale is its failure to recognize that Plaintiffs offered nothing in support of their claim that Align is “snake oil” and benefits no one. In fact, there was evidence to the contrary. P&G’s scientific studies and anecdotal evidence demonstrate that, at the very least, consumers suffering from irritable bowel syndrome benefit from Align. And herein lies the rub. The evidence is clear that different people respond differently to Align, making it impossible for Plaintiff to ever prove that Align benefits no one. As a result, resolution of this theory of liability does not “lend itself to common investigation and resolution”—a necessary element of class certification.

As the dissent points out, the fundamental problems with class certification will become painstakingly clear as the case proceeds. The court will be forced to either whittle down the class as studies demonstrate its efficacy or enter judgment for P&G. Moreover, the broad spectrum of this class includes consumers, such as irritable bowel syndrome patients, who have suffered no injury, thereby implicating another issue—standing.

*Mr. Cruz-Alvarez and Ms. Zucker have authored, along with Shook Hardy colleagues Jennifer Voss and Jarred Sher, a Monograph that WLF will be releasing shortly on the preemption doctrine.