Kathleen Goegel is a 2019 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.
Bowling v. Johnson & Johnson is a bit of a repeat in the realm of the “Food Court” litigation the WLF Legal Pulse routinely covers. This is yet another case with a frequent-flier plaintiff attempting to get ahead of the Food and Drug Administration’s (FDA) trans-fat fade out. However, what makes this case unique is the reasoning behind the court’s denial of class certification.
Suzannah Bowling is seeking class certification under Rule 23 for her suit against Johnson & Johnson and its subsidiary, McNeil Nutritionals, LLC. Bowling claims that the defendants’ on-label “no trans-fat” representation misled her and the putative class members into paying more money for the butter substitute Benecol than the product was worth. Benecol, she argued, in fact does contain a trace amount of trans-fat. However, Benecol contained such a low percentage of trans-fat that FDA regulations compelled it to list the amount on the food label as “zero grams trans-fat.” In addition to the economic harm, Bowling alleges that she faced intestinal distress after purchasing and consuming Benecol.
This particular suit is not Bowling’ first food-labeling suit, nor is it her first suit against Johnson & Johnson or McNeil. She previously sued Johnson & Johnson and McNeil and signed a covenant not to sue it or any of its subsidiaries again in return for money.
In order for a class to be certified, the plaintiff must meet four requirements under Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and adequate representation. U.S. District Court for the Southern District of New York Judge Allison J. Nathan found fault with Bowling’s suit on two Rule 23 grounds: typicality and adequate representation. Because two particular defenses Johnson & Johnson was likely to raise—the covenant not to sue and inaccuracies in her personal claim—had the potential to become the focus of the litigation, Judge Nathan refused to certify the class.
Because of a previous mislabeling suit against Johnson & Johnson and McNeil, Bowling signed a covenant not to sue Johnson & Johnson, McNeil, or any of their related entities. Although it was not clear to Judge Nathan how applicable this covenant would be or what remedy would be available, litigation over those questions would be a deterrent from the reason for this suit, which is to determine whether Johnson & Johnson mislabeled Benecol. Overall, the covenant not to sue was a unique defense against only Bowling and would have interfered with the claim that brought about the class.
The court focuses on two key areas of inconsistency in Bowling’s testimony. The first is Bowling’s testimony about purchasing Benecol. Bowling testified that she bought the product from a Walmart in May, June, or the second half of 2011. However, Johnson & Johnson’s records show that Walmart did not sell Benecol during that period. The second is Bowling’s testimony about contacting Johnson & Johnson to request a refund for the product. Bowling testified that she attempted to contact Johnson & Johnson by phone and in writing. However, once again, Johnson & Johnson’s records tell a different story. They have no record of Bowling reaching out to them. These testimonial inconsistencies create a class-certification issue because, as the court says, “the plaintiff’s credibility is so vulnerable to attack that the plaintiff is subject to unique defenses making [her] claim atypical and antagonistic to other members of the class.”
Frequent-flier class representatives offer advantages not only to the lawyers that represent them, but also, ironically, to the lawyers representing the businesses they sue. When a plaintiffs’ lawyer identifies a new litigation opportunity, the frequent flier is ready and willing to sign their name to another complaint. However, frequent fliers also bring with them baggage that businesses’ attorneys can exploit. The Bowling case reflects two of those problems. Litigation settlements often include agreements by the plaintiff not to sue the defendant again. A dispute over whether such a covenant applies to bar a future suit involves issues unique to the named representative, and is thus antithetical to the concept of a class action. Frequent fliers are, by their nature, profit-motivated, so they may be more likely to embellish or modify the facts to meet the requirements of the legal claim. That, again, involves an individual inquiry. Plaintiffs’ lawyers should view Bowling as a cautionary tale. Judges presiding over class actions, especially those of the Food Court variety, should follow Judge Nathan’s example and closely scrutinize the claims of frequent-flier plaintiffs.
Of course, the plaintiffs’ lawyers who filed the suit could very well pursue another Benacol purchaser making the very same legal arguments. But at least the defense lawyers’ arguments for dismissal, and the judge’s faithful application of Rule 23, may have grounded at least one frequent flier.