Lipton v. Chattem, Inc.
2013 U.S. Dist. LEXIS 17216
N.D. Ill.2013Background
- Lipton brings a putative Illinois class action against Chattem for allegedly selling Dexatrim Max contaminated with hexavalent chromium.
- Plaintiff asserts only economic injuries and asserts state-law ICFA, intentional misrepresentation, breach of implied warranty of merchantability, and unjust enrichment claims.
- Chattem moved to dismiss for lack of standing and for failure to state a claim; the court dismissed the implied warranty claim but denied otherwise.
- Lipton moves under Rule 23 to certify a class defined as Illinois residents who purchased a Dexatrim product listing chromium as an ingredient for their own household use since May 3, 2006.
- The court denies class certification, finding Lipton inadequate under Rule 23(a)(4) and that the claims do not satisfy Rule 23(b)(2) or Rule 23(b)(3).
- The case will proceed as an individual action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Lipton as class representative | Lipton is representative for claims of the class without bias. | Lipton has significant defenses that are: (i) she would have bought Dexatrim even if hexavalent chromium were listed; (ii) she did not know what hexavalent chromium was. | Lipton is inadequate under Rule 23(a)(4). |
| Rule 23(b)(2) applicability | Class seeks injunctive/declaratory relief against continuing conduct. | Chattem ceased chromium use; injunctive relief moot and damages predominate. | Rule 23(b)(2) not applicable; relief not predominantly injunctive and moot. |
| Rule 23(b)(3) predominance | Common questions predominate due to labeling deception and damages. | Individualized questions about deception, reliance, and damages predominate. | Predominance not satisfied; liability is individualized across subgroups. |
| Superiority of class treatment | Class treatment would be superior to many individual suits. | Mini-trials would overwhelm the benefits of class treatment. | Not superior; individual adjudication preferred. |
Key Cases Cited
- Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584 (7th Cir.1993) (adequacy requires lack of any arguable defense against the class)
- CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir.2011) (adequacy is the proper rubric for class representative analysis)
- Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir.2010) (class certification may involve merits overlap; must ensure requirements are satisfied)
- Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883 (7th Cir.2011) (predominance requires cohesive issues; defenses considered)
- Oshana v. Coca-Cola Co., 472 F.3d 506 (7th Cir.2006) (private ICFA action requires proof of causation and deception)
- Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir.2012) (fraud plaintiffs must show reliance and damages)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (class certification often overlaps with merits; cohesion required)
- Thorogood v. Sears, Roebuck & Co., 547 F.3d 742 (7th Cir.2008) (cautionary approach to consumer fraud class certification)