In re Clorox Consumer Litigation
301 F.R.D. 436
N.D. Cal.2014Background
- Plaintiffs bring a putative class action against Clorox over Fresh Step cat litter marketing claims, asserting carbon-containing odor control is superior to non-carbon products.
- Plaintiffs seek five state-based sub-classes (California, Florida, New Jersey, New York, Texas) defined by purchase location and time frame from October 2010 to present.
- The case builds on a prior Clorox dismissal order; the lead theory is that advertising and packaging misled consumers about odor control.
- Plaintiffs rely on retailer records and loyalty programs to identify class members, arguing such data can define an ascertainable class.
- Clorox markets Fresh Step with carbon-based odor claims, while Plaintiffs contend studies contradict those claims and that the messages were not uniformly disseminated.
- The court ultimately denied certification due to ascertainability failures and lack of predominance under Rule 23(b)(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ascertainability of the class | Plaintiffs can identify members via retailer data and loyalty programs | Records are insufficient or not available to identify most purchasers | Subclass definitions not ascertainable; motion denied on this ground |
| Predominance under Rule 23(b)(3) | Common questions about misrepresentation predominate | Individual reliance/exposure varies; predominance fails | Common questions do not predominate across states; class certification denied |
| State-law reliance frameworks (California) | California class-wide reliance presumption applies for material misrepresentation | Tobacco II does not justify broad exposure reliance; need exposure-based class | No class-wide presumption of reliance; California subclass denied |
| State-law reliance/causation variations (Texas, New York, New Jersey, Florida) | Uniform misrepresentation across class; causal link shown by broad exposure | Different states have distinct reliance/causation tests; individualized issues predominate | Predominance lacking in all state subclasses; certification denied |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (class-action requirements; commonality and predominance considerations)
- Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012) (mass-encompassing questions; ascertainability and common questions)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (permissive typicality and commonality; class actions)
- In re Tobacco II Cases, 46 Cal.4th 298 (Cal. 2009) (limited class-wide reliance where not all purchased saw ads)
- ConAgra Foods, Inc. v. Ford, 2014 WL 2702726 (N.D. Cal. 2014) (premised on labeling variations affecting class cohesion)