Dino Rikos v. The Procter & Gamble Co.
799 F.3d 497
| 6th Cir. | 2015Background
- Plaintiffs bought Align probiotic from P&G and alleged misrepresentation of digestive-health benefits.
- District court certified five single-state classes (CA IL FL NH NC) under Rule 23(b)(3).
- Filed in SD Ohio after transfer from SD California; plaintiffs sought class treatment of all Align purchasers in the five states from 3/1/2009 forward.
- Align marketed as a digestive-health supplement; its probiotic is Bifantis; scientific understanding of probiotics is still in its infancy.
- P&G argued class certification improper due to lack of commonality, predominance, and ascertainability; district court rejected these arguments and certified the classes.
- The Sixth Circuit affirmed, holding common questions predominate and the class is ascertainable; the court reserved merits for later stages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Commonality viability for Rule 23(a)(2) | Plaintiffs claim a single common question: whether Align is snake oil and provides no benefits. | P&G contends lack of a common injury and reliance; disparities in individual experiences negate commonality. | Common question exists; district court did not abuse discretion. |
| Typicality under Rule 23(a)(3) | Representative claims are typical since all arise from same marketing misrepresentation. | Claims may rely on different purchaser motivations and outcomes. | Typicality satisfied; representative claims align with class claims. |
| Predominance under Rule 23(b)(3) | Common issues (misrepresentation, causation, materiality) predominate given uniform marketing. | Individual causation/reliance and whether Align works vary by member. | Predominance shown; class-wide proof feasible for causation/reliance if misrepresentation is material and uniformly made. |
| Damages model consistency with liability (Comcast) | Full-refund damages model aligns with liability theory that Align is worthless to all. | Some evidence Align works for some consumers undermines class-wide injury. | Damages model is Comcast-compliant; full refunds appropriate if liability theory supported by common evidence. |
| Ascertainability of the class | Class defined by state purchases (CA, IL, FL, NH, NC) is ascertainable via records/receipts. | Retailer fragmentation makes ascertainment difficult, as in Carrera. | Class sufficiently ascertainable; objective criteria and available records support certification. |
Key Cases Cited
- In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) (rigorous analysis required; common questions predominate when applicable)
- Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) (Merits questions may be considered to determine Rule 23 prerequisites)
- Dukes v. Walmart Stores, Inc., 131 S. Ct. 2541 (U.S. 2011) (common questions must yield class-wide resolution; not all injuries shown at certification)
- Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (U.S. 2014) (presumption of classwide reliance; rebuttal evidence limited to predominance issues)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (U.S. 2013) (damages model must be tied to liability theory under Comcast Behrend)
- Johnson v. General Mills, Inc., 278 F.R.D. 548 (C.D. Cal. 2012) (uniform marketing can support class-wide commonality in probiotic false-advertising)
- Wiener v. Dannon Co., 255 F.R.D. 658 (C.D. Cal. 2009) (common issues in deception claims when representations are prominent on packaging)
- Fitzpatrick v. General Mills, Inc., 685 F.3d 1279 (11th Cir. 2011) (FDUTPA/Florida context; material misrepresentation can support class-wide causation)
- Suchanek v. Sturm, Foods, Inc., 764 F.3d 750 (7th Cir. 2014) (common questions when same conduct gives rise to same claims)