MEMORANDUM OF DECISION AND ORDER
This case arises from the recall by Abbott Laboratories, Inc. (“Abbott” or “the Defendant”) of five million containers of its Similae brand infant powder formula that were potentially contaminated with beetle parts and larvae, which could cause gastrointestinal discomfort and refusal to eat. The Plaintiffs allege that Abbott engaged in unfair and deceptive practices by misrepresenting the safety of Similae and failing to timely warn consumers of the dangers associated with the contaminated product in violation of the consumer protection statutes in New York and New Hampshire.
Presently before the Court is a motion by the Plaintiffs for class certification and a motion by the Defendant to strike the Plaintiffs’ reply or, in the alternative, to file a sur-reply. For the reasons set forth below, the Court (1) denies the Defendant’s motion to
I. BACKGROUND
Abbott formulates, designs, manufactures, markets, advertises, distributes and sells infant powder formulas under the brand name Similac. In September 2010, during an internal quality review at its Sturgis, Michigan facility (“the Sturgis Facility”), Abbott detected the presence of a common warehouse beetle and its larvae in its powdered formula. Subsequently, on September 20, 2010, Abbott notified the United States Food and Drug Administration (“FDA”) “that based on its facility inspection, root cause investigation, and finished and in-process infant formula powder test results they would be initiating a product recall.” (Def. Opp., Ex. E.) As a result, on September 22, 2010, Abbott recalled five million containers of Similac infant formula products (Def. Opp., Exh. F).
The original plaintiffs in this case were Shelley A. Leonard, a resident and citizen of the State of New York (“the New York Plaintiff’); residents and citizens of the State of Texas Esther Aexander, Bridgett Herrera, and Velicia Mata (“the Texas Plaintiffs”); LeRon Davis, a resident and citizen of the State of Ohio (“the Ohio Plaintiff’); and Ashley Sullivan, a resident and citizen of New Hampshire (“the New Hampshire Plaintiff’ and collectively “the Plaintiffs”). According to the Plaintiffs, they each purchased the recalled formula during an undefined “relevant time period,” rather than purchasing a less expensive alternative, based on various statements by Abbott that indicated that Si-milac was safe for consumption by infants. The Plaintiffs also allege that their infant children became ill after consuming the contaminated Similac formula.
On October 10, 2010, the Plaintiffs commenced this action against Abbott in their individual capacity, as parents and natural guardians of their minor children, and as representatives of putative classes of similarly situated individuals from their respective states. In the original complaint, and the first amended class action complaint filed on December 2, 2010, the Plaintiffs seek declaratory, injunctive, and monetary relief. The relief is based on Abbott’s alleged unfair and deceptive acts and practices in misrepresenting that Similac was “safe for the consumption by infants” and failing to warn consumers or recall the contaminated formula sooner, in violation of: (1) New York General Business Law § 349 (“NYGBL”); (2) the Texas Deceptive Trade Practices-Consumer Protection Act (“TDTPA”), Tex.Code Bus. & Com. § 17.41, et seq.; (3) the Ohio Uniform Deceptive Trade Practices Act (“ODTPA”), Ohio Rev. Code Ann. § 4165, et seq., and Uniform Consumer Sales Practices Act (“OCSPA” and together with the ODTPA the “Ohio statutes”), Ohio Rev.Code Ann. § 1345, et seq.; and (4) the New Hampshire Consumer Protection Act (“NHCPA”), N.H.Rev.Stat. Ann. § 358-A, et seq. (collectively the “consumer protection statutes”).
On March 15, 2011, Abbott filed a motion for judgment on the pleadings seeking, among other things, the dismissal of the Plaintiffs’ claims under the consumer protection statutes and the cause of action seeking injunctive relief for failure to state a claim. On September 21, 2011, the Plaintiffs moved to amend their complaint to: (1) include Kristie Pagan in the caption of this matter as a party plaintiff and potential representative of the putative New York class; (2) remove plaintiff Shelly A. Leonard from the caption in this matter and dismiss her claims without prejudice with leave to renew her individual claims or any claims on behalf of her infant/ehild in the event the Court certifies a class under Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 23; (3) include additional factual contentions concerning the alleged false, misleading, fraudulent and deceptive business practices of the Defendant; and (4) to remove the allegation expressly waiving the New York Plaintiffs’ right to seek punitive damages under New York General Business Law § 349. Attached to the Plaintiffs’ motion to amend was a proposed second amended complaint containing these changes. Subsequently, on January 20, 2012, the Court directed the parties to submit supplemental briefing on whether the Recall program insti
On March 5, 2012, the Court issued an Order in which it (1) dismissed the plaintiff Shelly A. Leonard’s claims pursuant to Rule 41(a)(2) without prejudice with leave to renew her individual claims or any claims on behalf of her infant/child in the event the Court certified a class under the Fed. R.Civ.P. 23; (2) granted the Plaintiffs’ motion to add Kristie Pagan as a plaintiff and putative New York class representative; (3) denied the Plaintiffs’ motion to amend the complaint to remove the New York Plaintiffs express waiver of punitive damages under the NYGBL; (4) granted the Defendant’s motion for judgment on the pleadings pursuant to Rule 12(c) dismissing the Ohio Plaintiffs claims under the OCSPA and ODTPA; (5) directed the Texas Plaintiffs to provide notice to Abbott within twenty days of the date of the Order and notify the Court when they had done so and abated the Texas Plaintiffs’ TDTPA claim for sixty days after the Texas Plaintiffs served written notice; (6) denied the Defendant’s motion for judgment on the pleadings pursuant to Rule 12(c) as to the Plaintiffs’ claims under the NYGBL, NHCPA, and TDTPA; (7) granted the Defendant’s motion for judgment on the pleadings pursuant to Rule 12(c) as to the Plaintiffs’ claim for injunctive relief; (8) directed the Plaintiffs to file a second amended complaint consistent with the rulings contained within the Order within 20 days of the date of the Order and advised that if the Texas Plaintiffs did not comply with the notice requirement within twenty days of the date of the Order, the Court would consider a motion by the Defendant to dismiss any claims asserted on behalf of the Texas Plaintiffs in the second amended complaint. See Leonard v. Abbott Labs., Inc., 10-CV-4676(ADS)(WDW),
On March 13, 2012, the Plaintiffs filed a second amended complaint in compliance with the Court’s March 5, 2012 Order. The Defendant answered the Plaintiffs’ second amended complaint on March 27, 2012.
On March 23, 2012, the Plaintiffs’ moved pursuant to Fed.R.Civ.P. 23 for an Order certifying this civil litigation as a Class Action with respect to the New York and New Hampshire subclasses. They defined the putative class as (1) “all New York residents who purchased Similac products subject to the recall” and (2) “all New Hampshire residents who purchased Similac products subject to the recall.” (PI. Mem. in Support, pg. 20.) The Plaintiffs further moved to certify the plaintiff Kristie Pagan as the representative of the New York Class and the plaintiff Ashley Sullivan as the representative of the New Hampshire Class. On May 9, 2012, the Defendant submitted opposition papers to the Plaintiffs’ motion contending that the Plaintiffs had not met their burden of affirmatively demonstrating that they had met the requirements of Rule 23(a) and Rule 23(b)(3). On May 30, 2012, the Plaintiffs submitted a reply in support of their motion on May 30, 2012, which included ten exhibits not previously cited in their original motion papers.
On June 5, 2012, the Defendant moved to strike certain portions of the Plaintiffs’ reply or, in the alternative, for leave to file a sur-reply on the ground that the Plaintiffs’ reply improperly included new factual assertions, legal claims and exhibits not contained in their initial moving papers. The Plaintiffs submitted opposition papers to this motion on July 2, 2012 and the Defendant submitted its reply in support on July 9, 2012.
The Court addresses the two motions below. However, because the Court cannot analyze the Plaintiffs’ motion for class certification without first resolving the Defendant’s motion to strike certain portions of the Plaintiffs’ reply or, in the alternative, for leave to file a sur-reply, the Court will first consider the Defendant’s motion before proceeding to consideration of the Plaintiffs’ motion.
II. THE DEFENDANT’S MOTION TO STRIKE CERTAIN PORTIONS OF THE PLAINTIFFS’ REPLY OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A SUR-REPLY
“Although it is plainly improper to submit on reply evidentiary information that was
In this case, the Plaintiffs’ reply clearly raised new factual and legal issues. However, as the Defendant has submitted a sur-reply as well as supporting documentation, the Court is persuaded that they have suffered no prejudice. Toure v. Cent. Parking Sys., 05 Civ. 5237(WHP),
III. THE PLAINTIFFS’ MOTION FOR RULE 23 CLASS CERTIFICATION
A. Legal Standard
Before certifying a putative class, the Court must determine (1) whether the class meets the four Rule 23(a) requirements of numerosity, commonality, typicality and adequacy; and if so, (2) whether the class satisfies one of the three categories listed in Rule 23(b). See Brown v. Kelly,
As the Supreme Court recently observed: Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc ... [Sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and [ ] certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Frequently that rigorous analysis will entail some overlap with the merits of the plaintiffs underlying claim. That cannot be helped.
Wal-Mart Stores, Inc. v. Dukes, — U.S. —
However, in deciding certification, courts must still take a liberal rather than a restrictive approach in determining whether the plaintiff satisfies Rule 23’s requirements and may exercise broad discretion when determining whether to certify a class. See Flores v. Anjost Corp.,
1. Rule 23(a) Requirements
To qualify for class certification, the Plaintiff must first prove that the putative class meets the four threshold requirements of Rule 23(a):
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a); see also Steinberg v. Nationwide Mut. Ins. Co.,
a. Numerosity
Rule 23(a)(1), known as the numerosity requirement, requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “Impracticable,” in this context, does not mean impossible; instead Rule 23(a)(1) only requires that, in the absence of a class action, joinder would be “simply difficult or inconvenient.” Russo v. CVS Pharm., Inc.,
“There is no magic minimum number that will breathe life into a class, but generally, courts will find a class sufficiently numerous when it comprises forty or more members.” Russo,
However, “in assessing numerosity!,] a court may [also] make common sense assumptions without the need for precise quantification of the class.” Russo,
b. Commonality
“To satisfy the commonality requirement of Rule 23(a)(2), there must be ‘a showing that common issues of fact or law exist and that they affect all class members.’ ” Kowal-ski
In its recent decision in Wal-Mart Stores Inc. v. Dukes, the Supreme Court held that “[c]ommonality requires the plaintiff to demonstrate that the class members have suffered the same injury,” as opposed to simply “suffering] a violation of the same provision
c. Typicality
Rule 23(a)(3) requires that “each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability.” Robidoux,
d. Adequacy of Representation
Rule 23(a)(4)’s adequacy of representation requirement requires that a plaintiff “also show that the proposed action will fairly and adequately protect the interests of the class,” Vengurlekar v. Silverline Techs., Ltd.,
In order to satisfy Rule 23(a)(4), a “plaintiff ] first must demonstrate that class counsel is qualified, experienced, and generally able to conduct the litigation.” Id. (citations and internal quotation marks omitted). Second, a plaintiff must “show that [he has] no interests that are antagonistic to the proposed class members.” Id.
2. Rule 23(b)(3) Requirements
Once a plaintiff satisfies the four Rule 23(a) requirements, she must then also prove that the putative class is maintainable under at least one of the three categories enumerated in Rule 23(b). See Steinberg,
a. Predominance
Rule 23(b)(3)’s predominance requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation” in order to “ensure that the class will be certified only when it would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Myers,
b. Superiority
“The second prong of Rule 23(b)(3), commonly referred to as the superiority element, requires the court to examine whether a class action is superior to other methods of adjudication.” Steinberg,
(A) the interest of the members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3). See also Oakley,
B. Discussion
1. Rule 23(a) Requirements
a. Numerosity
In their initial motion papers for class certification, the Plaintiffs argue that they “easily surpass the numerosity hurdle [set forth in Rule 23(a)(1) ] and reasonably estimate at least several hundred thousand putative Class members from New York and New Hampshire who were ultimate consumers of the recalled SIMILAC products.” (Pl. Mem. in Support, pg. 9). However, the Plaintiffs point to no evidence for this claim nor explain to the Court why this is a reasonable estimate. Pecere,
Perhaps realizing their error, the Plaintiffs in their reply papers attempt to rectify this mistake by asserting that “ABBOT has provided responses to Plaintiffs’ Second Set of Interrogatories, indicating that ’182,092 end-consumer recall-notification letters were mailed between September 24, 2010 and November 30, 2010, to residential addresses in the state of New York’ and ’16,893 end-consumer recall-notification letters were mailed between September 25, 2010 and November 30, 2010, to residential addresses in the state of New Hampshire.’ ” (Pl. Reply, pg. 6.) These figures, however, still do not affirmatively demonstrate numerosity, as the class that the Plaintiffs seek to certify encompasses only those residents in New York and New Hampshire who purchased recalled Similac. As the Defendant’s responses to the Plaintiffs’ Second Set of Interrogatories explain, “the mere receipt of a recall-notification letter does not mean the recipient has any legal claim against Abbott; that the recipient purchased defective Similac; that the recipient purchased Similac at all; or that recipient is a member of the putative class in this action.” (Pl. Reply, Exh. J.) Indeed, many recipients of the recall-notification letters had actually received free samples of Similac, and thus were not purchasers (Def. Opp., Exh. C.)
While the Court may make reasonable inferences from available facts, see Vengurle-kar,
b. Commonality
Even assuming that the Plaintiffs met Rule 23(a)(l)’s numerosity requirement, the Plaintiffs have not satisfied the commonality requirement of Rule 23(a)(2). According to the Plaintiffs’ initial motion papers, the common questions in this case are:
(a) With respect to the New York class, whether ABBOTT’s deceptive acts or practices in the conduct of its business, trade or commerce of Similac products, violated § 349 of the New York General Business Law.
(b) With respect to the New Hampshire class, whether ABBOTT’s deceptive acts or practices in the conduct of its business, trade or commerce of Similac products, violated the New Hampshire Consumer Protection Act, Title XXXI, Chapter 358A, § 358a:2 et seq.
(c) Whether ABBOTT’s deceptive business practices caused injury/damage to ultimate consumers of the recalled Similac products including Plaintiffs and putative members of the class.
(Pl. Mem. in Support, pg. 10.)
However, merely raising common questions, as the Plaintiffs do in their motion papers, is not sufficient to satisfy Rule 23(a)(2). Dukes,
Moreover, the Plaintiffs’ position ignores that New York’s consumer protection statute requires that a party seeking a private right of action demonstrate an actual injury. NYGBL § 349(h) (“[A]ny person who has been injured by reason of any violation of this section may bring an action in his own name ... to recover his actual damages or fifty dollars, whichever is greater[.]”); see also Himber v. Intuit, Inc., No. 10-CV-2511 (JFBXAKT),
Here, the Plaintiffs have presented no such proof on behalf of the class members in the New York class. Rather, the evidence in this case suggests that most of the members of this class would have not suffered any injury at all because almost all of the recalled Similac did not, in fact, contain any beetle parts. Specifically, testing of a sample of the recalled Similac showed that only approximately 0.16%, or 1 per 625 containers, were actually contaminated with beetles, larvae and/or parts. (Def. Sur-Reply, Exh. A). Plaintiffs have presented no evidence that would counter these results and have only provided the Court with unsupported and misleading statements concerning the number of recalled Similac that contained beetle parts. (PL Reply, pg. 2; Def. Sur-Reply, pg. 4-5). Accordingly, the Plaintiffs have not satisfied the commonality requirement for the
With respect to the New Hampshire class, although the plain language of NHCPA § 358-A:10 “would seem to mandate that only persons injured by an unlawful act or practice may bring suit, the New Hampshire Supreme Court has held to the contrary, and has interpreted the [NHjCPA to permit plaintiffs to recover statutory damages even in the absence of an injury legally caused by the defendant.” Elmo v. Callahan, Civil No. 10-cv-286-JL,
Thus, it is not enough for the Plaintiffs to merely show that the class members of the New Hampshire class purchased recalled Si-milac; the Plaintiffs need to demonstrate that the recalled Similac that the class members purchased actually contained beetle parts. Yet, as the evidence discussed above indicates, less than 1% of all recalled Similac were even contaminated with beetle parts. Therefore, it is unlikely that most of the members of the New Hampshire class were personally affected or harmed by Abbott’s alleged deceptive acts.
Furthermore, the Plaintiffs assert “that had they know the truth that the statements they relied upon were false, misleading, deceptive and unfair and that SIMILAC products were adulterated with contaminants, including insect/beetle particles and larvae, they would have neither purchased SIMI-LAC, nor paid the premium price ABBOTT charges for.” (PI. Reply, pg. 7; see also PI. Mem., pg. 5.) However, this argument is also insufficient to satisfy the commonality requirement, because the Plaintiffs’ underlying claim — “that SIMILAC products were adulterated with contaminants, including in-secVbeetle particles and larvae” — does not cover most of the potential class members. In fact, based on the evidence available to the Court, almost all of the class members would have actually purchased non-contaminated Similac products. As such, it appears that the majority of the putative class members received exactly what they paid to receive and, thus, cannot now claim injury. See, e.g., In re McNeil Consumer Healthcare,
In addition, any attempt by the Plaintiffs to establish commonality through the availability of a minimum amount of statutory damages is without merit. The existence of a minimum amount of statutory damages does not assist the Plaintiffs in overcoming the hurdle of affirmatively demonstrating commonality, because, as explained above, the Plaintiffs need to first show that the class members have been injured or harmed in the same way. See Himber,
Lastly, in their reply papers, the Plaintiffs curiously suggest that the Supreme Court’s analysis of commonality in Dukes “has absolutely nothing to do with this ease,” (Pl. Reply, pg. 7), even though they relied upon this same analysis in their original motion papers, (Pl. Mem. in Support, pg. 10). In any event, despite the Plaintiffs’ contention, the Court find the Dukes analysis has been
In sum, the Plaintiffs have failed to meet their burden of affirmatively demonstrating they satisfy the commonality requirement of Rule 23(a)(2) and, thus, their motion for class certification must be denied.
c. Typicality
The Plaintiffs have also not satisfied the typicality requirement of Rule 23(a)(3) for many of the reasons that the commonality requirement has not been met. See Dukes,
Specifically, the claims of the Plaintiffs do not sufficiently relate to those of the proposed class, as the majority of the class members would not have purchased Similac product that contained beetle parts. Therefore, whereas the Plaintiffs seek damages for medical costs and pain and suffering, most of the members of the class would not have incurred these kinds of expenses. See Brown,
d. Adequacy of Representation
Lastly, with respect to Rule 23(a)(4)’s adequacy of representation requirement, the Court finds that the Plaintiffs have failed to affirmatively demonstrate that they will be able to adequately represent the proposed putative class as the class representatives because this “action involves a host of legal and factual issues unique to them and that are likely to distract from their representation of the class.” Id. at 479. Such issues include whether the symptoms of Plaintiff Pagan’s child were actually caused by a stomach virus and not the recalled Similac, and whether the Plaintiff Sullivan’s act of discarding her recalled Similac before it could be tested constituted spoliation of evidence. In addition, the fact that the Plaintiff Pagan’s recalled Similac product was found to not contain any beetle parts raises additional unique challenges. Consequently, “[wjhile it is settled that the mere existence of individualized factual questions with respect to the class representative’s claim will not bar class certification, class certification is inappropriate” in this case because the Plaintiffs are “subject to unique defenses which threaten to become the focus of the litigation.” Id. at 480.
As the Plaintiffs have failed to meet their burden of affirmatively demonstrating that they satisfy any of the requirements of Rule 23(a), the Court need not consider whether the Plaintiffs met the predominance and superiority requirements under Rule 23(b)(3). Nevertheless, in order to provide a more thorough analysis, the Court will proceed to evaluate whether the Plaintiffs satisfied these requirements below.
2. Rule 23(b)(3) Requirements
a. Predominance
First, because the Plaintiffs have failed to meet their burden of affirmatively demonstrating commonality under Rule 23(a)(2), they have clearly not satisfied the predominance requirement of 23(b)(3) because they have not established that common
b. Superiority
Finally, despite the Plaintiffs’ arguments to the contrary, a class action is not a superior method of adjudication for this claim and, therefore, the Plaintiff does not satisfy Rule 23(b)(3)’s superiority requirement.
As the Court has previously noted, “[t]he wisdom of the Plaintiffs’ decision to forgo the Recall program is questionable, particularly in light of the number of cases that have denied class certification in consumer class actions because a voluntary recall and/or refund program provided a superior method of compensating the putative class members.” Leonard,
“Furthermore, where, as here, individual factual issues ... predominate over common issues of fact, a class action is not a superior method for fair and efficient adjudication.” Pecere,
IY. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the Defendant’s motion to strike certain portions of the Plaintiffs’ reply is DENIED; and it is further
ORDERED, that the Defendant’s motion for leave to file a sur-reply is GRANTED; and it is further
SO ORDERED.