United States District Court, D. New Hampshire
In re: Dial Complete Marketing and Sales Practices Litigation
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Re: Dial Complete Marketing and Sales Practices Litigation,
In re: Eugene A. Schoon, Sidley Austin LLP (IL), Chicago, IL;
John-Mark Turner, Sheehan Phinney Bass & Green PA
(Manchester), Manchester, NH.
Michelle Carter, Plaintiff: Eric D. Holland, Gerard B.
Schneller, Randall Seth Crompton, Holland Groves Schneller
Stolze, LLC, St. Louis, MO; Lucy J. Karl, Shaheen & Gordon
(Concord), Concord, NH.
Jonathan Cessna, Plaintiff: David C. Rash, LEAD ATTORNEY,
Rash Law Offices PA, Weston, FL; Charles E. Schaffer, Levin,
Fishbein, Sedran & Berman, Philadelphia, PA; Eric D. Holland,
Gerard B. Schneller, Randall Seth Crompton, Steven J. Stolze,
Holland Groves Schneller Stolze, LLC, St. Louis, MO.
Alicia Gentile, Plaintiff: Jayne Arnold Goldstein, LEAD
ATTORNEY, Shepard Finkelman Miller & Shah LLP, Weston, FL;
James C. Shah, PRO HAC VICE, Shepherd Finkelman Miller & Shah
LLP, Media, PA; Thomas D. Mauriello, Mauriello Law Firm APC,
San Clemente, CA.
Sonia Herrera, Plaintiff: Mark John Geragos, Shelley Kaufman,
Tamar G. Arminak, Geragos and Geragos APC, Los Angeles, CA.
Jenny Marazzi, Plaintiff: D. Scott Kalish, Scott Kalish Co,
LLC, Cleveland, OH; Frank E. Piscitelli, Jr., Piscitelli Law
Firm (HH), Highland Heights, OH; John R. Climaco, John A.
Peca, Jr., Climaco Wilcox Peca Tarantino & Garofoli Co LPA,
Cleveland, OH; Patrick G. Warner, Climaco Wilcox Peca
Tarantino & Garofoli, Columbus, OH.
Megan Peterson, Plaintiff: Douglas P. Dehler, Shepard
Finkelman Miller & Shah, LLC, Milwaukee, WI.
Sven P. Vogtland, Plaintiff: Jordan Lucas Chaikin, Parker
Waichman LLP, Bonita Springs, FL; Richard J. Arsenault,
Neblett Beard & Arsenault, Alexandria, LA.
David Walls, Plaintiff: Charles E. Schaffer, Levin, Fishbein,
Sedran & Berman, Philadelphia, PA; Christopher M. Ellis,
Bolen Robinson & Ellis, LLP, Decatur, IL; Eric D. Holland,
Gerard B. Schneller, Randall Seth Crompton, Holland Groves
Schneller Stolze, LLC, St. Louis, MO.
Plaintiffs, Plaintiff: Lucy J. Karl, Shaheen & Gordon
(Concord), Concord, NH; Reginald Von Terrell, The Terrell Law
Group, Oakland, CA.
Kristina Pearson, Plaintiff: Adam J. Levitt, Grant &
Eisenhofer, PA (IL), Chicago, IL; Joseph J. Siprut, Siprut
PC, Chicago, IL.
Eric Terrell, Plaintiff: Reginald Von Terrell, The Terrell
Law Group, Oakland, CA.
Elizabeth Poynter, Plaintiff: Adam J. Levitt, Grant &
Eisenhofer, PA (IL), Chicago, IL.
Dial Corporation, other Dial Corporation, other The Dial
Corporation, Inc., Defendant: John C. Theisen, LEAD ATTORNEY,
PRO HAC VICE, Theisen Bowers & Associates LLC, Fort Wayne,
IN; Allison W Reimann, Eugene A. Schoon, Sidley Austin LLP
(IL), Chicago, IL; Amy Bloom, PRO HAC VICE, Beasley Kramer &
Galardi, P.A., West Palm Beach, FL; Chad W. Pekron, Robert
Ryan Younger, Quattlebaum Grooms Tull & Burrow PLLC, Little
Rock, AR; Edwin John U, Eugene F. Assaf, Kirkland & Ellis
(DC), Washington, DC; Elizabeth M. Chiarello, Richard D.
Raskin, Sidley Austin LLP, Chicago, IL; John E. Galvin, III,
Jonathan H. Garside, Fox Galvin, LLC, St. Louis, MO; Karl A.
Bekeny, Robert C. Tucker, Tucker Ellis & West, LLP,
Cleveland, OH; Patricia Elaine Lowry, Squire Sanders &
Dempsey, LLP (FL), West Palm Beach, FL; Paul E. Benson,
Michael Best & Friedrich, LLP, Milwaukee, WI; Robert H.
Miller, John-Mark Turner, Sheehan Phinney Bass & Green
(Manchester), Manchester, NH.
Defendants, Defendant: Eugene A. Schoon, Sidley Austin LLP
(IL), Chicago, IL; John-Mark Turner, Sheehan Phinney Bass &
Green (Manchester), Manchester, NH; Robert H. Miller, Sheehan
Phinney Bass & Green PA (Manchester), Manchester, NH.
Rhonda D. Jones, Movant: John C. Theisen, LEAD ATTORNEY, PRO
HAC VICE, Theisen Bowers & Associates LLC, Fort Wayne, IN.
J. McAuliffe, United States District Judge.
consolidated, multi-district litigation is brought by
consumers in Arkansas, California, Florida, Illinois,
Louisiana, Missouri, Ohio, and Wisconsin, on behalf of
themselves and similarly situated consumers in those states.
Plaintiffs say that defendant, The Dial Corporation ("
Dial" ), continually misrepresented the antibacterial
properties of its " Dial Complete" branded soaps.
They advance claims under their respective state consumer
protection/unfair trade practices statutes, as well as
statutory and common law causes of action for breach of
warranty and unjust enrichment.
move to certify a class consisting of each state's
purported class members, for a total of eight subclasses,
defined as follows: " All persons residing in [the
state] who purchased Dial Complete Antibacterial Foaming Hand
Soap for household use at any point in time from Dial
Complete's commercial launch in 2001 through the
present." Dial objects.
manufactures Dial Complete Foaming Antibacterial Hand Wash.
(" Dial Complete" ), an antibacterial liquid hand
wash. (See Def.'s Br. in Opp. to Class Certification
(document no. 86) p. 4.) Since 2002, Dial has shipped
158,370,479 units to retailers and distributors in the United
States for sale to retail consumers. (See Pls.' Mot. for
Class Certification (document no. 57), Exh. 15 at p. 8.)
Complete's product labels feature claims asserting that
Dial Complete " Kills 99.99% of Germs*," that it is
" #1 Doctor Recommended**," and " Kills more
germs than any other liquid hand soap."  (See
Pls.' Mot. for Class Certification (document no. 57), at
Exhs. 1, 5.) In the past, Dial Complete labels have included
the claims: " Superior Germ Kill," " 10x More
Effective Germ Kill," " Protects your family better
liquid hand soap," and " Kills 10x More
Germs." (See id. at Exhs. 2-4.) Those claims appear on
the product packaging of every bottle of Dial Complete sold.
(See id. at Exh. 13 (Deposition of Dial's Vice President
of Marketing for Personal Care Products, Christopher Sommer
(" Sommer Dep." ) at 156:8-11 (" On the base
level, we try and maintain a consistent look and feel, and to
point of fact, we would only have, to my knowledge, one
standard [product] design at any given time being produced
for Dial Complete." ); see also, id. at 195:16-18
(" [Dial] intend[s] to have a consistent appearance and
messaging across our primary packaging." )).
plaintiffs challenge those claims (collectively, the "
challenged claims" ), arguing that they are false and
misleading because the label statements about germ-killing
efficacy are not true, and are unsupported by scientific
evidence or substantiation. (See Pls.' Br. in Supp. of
Mot. for Class Certification (document no. 57) at p. 5;
Consolidated Class Action Compl. ¶ 69.) According to
plaintiffs, " [t]here is no credible evidence that any
triclosan containing hand wash as used by consumers in
community settings protects those consumers from disease or
illness better than ordinary hand soaps that do not contain
triclosan."  (Id.; see also Consolidated
Class Action Compl. ¶ ¶ 70-76.) In support of that
position, plaintiffs rely, in part, on the conclusion of
their expert, Dr. Allison E. Aiello, that the veracity of the
challenged claims can be evaluated through common evidence,
and that, " based on [her] preliminary review," the
challenged claims are " false, deceptive, and/or
misleading." (See Pls.' Mot. for Class Certification
(document no. 57), Exh. 20 at p. 25.)
vigorously disputes Dr. Aiello's conclusions, as well as
plaintiffs' allegations relating to Dial Complete's
efficacy. Dial argues that the product has been extensively
tested, and " [a]lthough other antibacterial hand soaps
contain the same active ingredient as Dial Complete
(triclosan), none is as effective in killing common household
germs." (Def's. Br. in Opp. to Class Certification
(document no. 86) at p. 5.) In support, Dial points to the
conclusions of its own expert, Rhonda Jones, that the
efficacy studies she has reviewed " substantiate the
claims that Dial has made about Dial Complete." (Expert
Report of Rhonda Jones (document no. 86-76) at p. 34.)
Consolidated Amended Complaint advances four causes of
action: violation of the consumer protection laws of
Arkansas, California, Florida, Illinois, Missouri, Ohio, and
Wisconsin (count one); breach of express warranty under the
laws of Arkansas, California, Florida, Illinois, Louisiana,
Missouri, and Ohio (count two); breach of implied warranty
under the laws of Arkansas, California, Florida, Louisiana,
Missouri, and Ohio (count three); and unjust enrichment under
the law of all eight states (count four). Plaintiffs seek
class certification pursuant to Fed.R.Civ.P. 23 for each of
posits that class treatment is not appropriate in this case
for several reasons. First, Dial argues, the class is not
ascertainable at the certification stage without the need for
extensive individual inquiries. Second, Dial contends that
plaintiffs cannot establish predominance or superiority using
generalized proof. According to Dial, individual issues of
reliance, causation, damages, and defenses specific to the
named plaintiffs or certain class members will overwhelm any
common issues. In support of its argument, Dial points to
evidence in the record purporting to show that some consumers
choose Dial Complete for reasons unrelated to the challenged
claims, such as fragrance, bottle shape, or its foamy
consistency. (See, e.g., Def's. Br. in Opp. to Class
Certification (document no. 86),
Exh. 15 (Dial Hand Washing Segmentation Study)) Finally, Dial
argues that the plaintiffs have failed to present a
functional damages model, and therefore have not met their
burden of demonstrating that damages can be proven on a
Standard for Class Certification
purported class action, the " party seeking
certification must establish 'the elements necessary for
class certification: the four requirements of [Rule] 23(a)
and one of the several requirements of Rule 23(b).'"
Kenneth R. v. Hassan, 293 F.R.D. 254, 263 (D.N.H.
2013) (quoting In re Relafen Antitrust Litig., 218
F.R.D. 337, 341 (D. Mass. 2003) (citing Smilow v.
Southwestern Bell Mobile Sys., 323 F.3d 32, 38 (1st Cir.
2003))). " Whether the movant has carried that burden is
a question the district court must resolve through a rigorous
analysis of Rule 23's requirements. Id. (citing
General Tel. Co. of Southwest v. Falcon, 457 U.S.
147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)) (internal
quotation marks omitted). " A party seeking class
certification must affirmatively demonstrate his compliance
with [Rule 23] -- that is, he must be prepared to prove that
there are in fact sufficiently numerous parties, common
questions of law or fact, etc." Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180
L.Ed.2d 374 (2011) (emphasis in original).
court's analysis " may 'entail some overlap with
the merits of the plaintiff's underlying
claim.'" Amgen Inc. v. Connecticut Ret. Plans
and Trust Funds, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308,
(2013) (quoting Wal-Mart, 131 S.Ct. at 2551)). But the
overlap must necessarily be limited, for " Rule 23
grants courts no license to engage in free-ranging merits
inquiries at the certification stage." Id. at
1194-1195. Rather, " [m]erits questions may be
considered to the extent -- but only to the extent -- that
they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied."
Id. at 1195. In short, " [b]y sifting the
abundant evidence through the sieve of the legal claims, [a]
court [will] satisf[y] the requirement to perform a
'rigorous analysis.'" Glazer v. Whirlpool
Corp., 722 F.3d 838, 852 (6th Cir. 2013) (quoting
Wal-Mart, 131 S.Ct. at 2551)).
Certification under Rule 23
Plaintiffs seeking to certify a class under Rule 23 must
first satisfy Rule 23(a)'s requirements -- numerosity,
commonality, typicality and adequacy of representation -- and
also one of the three prerequisites set forth in Rule 23(b).
See S. States Police Benevolent Ass'n v. First Choice
Armor & Equip., Inc., 241 F.R.D. 85, 87 (D. Mass. 2007)
(citing Smilow, 323 F.3d at 38; Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d
are three possible bases for class certification under Rule
23(b). Under the third, litigation may proceed as a class
action if the four criteria of Rule 23(a) are satisfied, and
the court finds that: (1) the questions of law or fact common
to class members predominate over any questions affecting
only individual members, and (2) a class action is superior
to other available methods for fairly and efficiently
adjudicating the controversy. See Fed.R.Civ.P. 23(b)(3).
" [i]n addition to the explicit requirements of Rule 23,
courts generally recognize the 'implicit requirement'
that the class definition must be sufficiently definite to
allow the court, parties, and putative class members to
ascertain class membership." Kenneth R., 293
F.R.D. at 263 (citing Shanley v. Cadle, 277 F.R.D.
63, 67-68 (D. Mass. 2011)).
common sense that for a court to certify a class action, the
class must be " sufficiently defined," meaning, in
this circuit, that " the court must be able to resolve
the question of whether class members are included or
excluded from the class by reference to objective
criteria." Matamoros v. Starbucks, Corp., 699
F.3d 129, 139 (1st Cir. 2012) (quoting James Wm. Moore et
al., Moore's Federal Practice § 23.21[a] (3d ed.
2012)). In other words, " an implicit prerequisite to
class certification is that a 'class'
exist -- that is, it must be 'administratively feasible
to determine whether a particular individual is a
member.'" Donovan v. Philip Morris USA, Inc.,
No. CIV.A. 06-12234-DJC, 2012 WL 957633, at *26 (D.
Mass. Mar. 21, 2012) (quoting Kent v. SunAmerica Life
Ins. Co., 190 F.R.D. 271, 278 (D. Mass. 2000) (citing 7C
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1760 (2d ed. 1972))); see In re Bank of
Am. Home Affordable Modification Program (HAMP) Contract
Litig., No. MDL 10-2193-RWZ, 2013 WL 4759649, at *3 (D.
Mass. Sept. 4, 2013) (" [T]he class must be defined by
objective criteria" so that it is "
administratively feasible for the court to determine whether
a particular individual is a member" ). Courts often
refer to this unremarkable fact as the ascertainability
requirement. See Donovan, 2012 WL 957633, at *26.
a " class need only be determinable by 'stable and
objective factors' at the outset of a case; not every
class member must be identified, but the class must be
sufficiently ascertainable to permit a court to 'decide
and declare who will receive notice, who will share in any
recovery, and who will be bound by the judgment.'"
Id. (quoting Kent, 190 F.R.D. at 278
(citing Crosby v. Soc. Sec. Admin. of the U.S., 796
F.2d 576, 580 (1st Cir. 1986))).
case, Dial relies upon a recent Third Circuit case,
Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013)
and its progeny, in an attempt to graft an almost, if not
completely, insurmountable burden on plaintiffs in
small-claim consumer class action cases. Dial asks this court
to adopt a heightened ascertainability requirement as defined
in Carrera, and summarized by the Seventh Circuit as follows:
" (1) the class must be defined with reference to
objective criteria (consistent with long-established law . .
.; ) and (2) there must be a 'reliable and
administratively feasible mechanism for determining whether
putative class members fall within the class
definition.'"  Mullins v. Direct Dial,
LLC, 795 F.3d 654, 662 (7th Cir. 2015) (quoting Byrd
v. Aaron's Inc., 784 F.3d 154, 163 (3d Cir. 2015)).
argues that named plaintiffs' and the class members'
" lack of objective proof of their purchases of Dial
Complete" (e.g., the lack of receipts) render the class
unascertainable, and that Dial's due process rights would
be violated if it did not have the opportunity to challenge
each potential class member's memory regarding purchase
and price, thus requiring thousands of individualized
mini-trials to establish class membership, and rendering
self-identification by affidavit ineffective. (Def.'s Br.
in Opp. to Class Certification (document no. 86) at pp.
37-38; see also Def.'s Surreply in Opp. to Class
Certification (document no. 175) at pp. 2-7.) Dial expresses
similar concerns relating to whether the predominance and
superiority requirements of Rule 23(b)(3) are met in this
support of its argument, Dial points to the First
Circuit's recent decision in In re Nexium Antitrust
Litig., 777 F.3d 9, 19 (1st Cir. 2015), in which the
court of appeals quoted Carrera for the proposition that a
proposed class mechanism must be administratively feasible:
" [a]t the class certification stage, the court must be
satisfied that, prior to judgment, it will be possible to
establish a mechanism for distinguishing the injured from the
uninjured class members. The court may proceed with
certification so long as this mechanism will be
'administratively feasible,' . . . and protective of
defendants' Seventh Amendment and due process
rights." (quoting Carrera, 727 F.3d at 307).
however, does not appear to support Dial's argument. At
issue in Nexium was whether class certification was
permissible when the class included a de minimus
number of uninjured parties. 777 F.3d at 14. The defendant
argued in part that the class should not have been certified
because the plaintiffs had failed to establish a mechanism
for distinguishing injured from uninjured class members.
Id. at 18.
noting that the plaintiffs had yet to propose a mechanism for
limiting recovery to injured parties, the court considered
how an injury could be established:
[Another] . . . approach would be to establish injury through
testimony by the consumer that, given the choice he or she
would have purchased the generic. Such testimony, if
unrebutted, would be sufficient to establish injury in an
individual action. And if such consumer testimony would be
sufficient to establish injury in an individual suit, it
follows that similar testimony in the form of an affidavit or
declaration would be sufficient in a class action. There
cannot be a more stringent burden of proof in class actions
than in individual actions. " Rigorous analysis,"
[Gen. Tel. Co. Of Sw. v.] Falcon, 457 U.S.
[147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)], of Rule 23
requirements does not require raising the bar for plaintiffs
higher than they would have to meet in individual suits.
Thus, we have confidence that a mechanism would exist for
establishing injury at the liability stage of this case,
compliant with the requirements of the Seventh Amendment and
Id. at 20-21 (emphasis added). Thus, the court of
appeals for this circuit has plainly supported the view that
testimonial affidavits and declarations are an acceptable
methodology for establishing class membership at the
liability stage of a case.
bears mention that Carrera's heightened ascertainability
standard has been rejected by the Sixth and Seventh Circuits.
See Rikos v. Procter & Gamble Co., 799 F.3d 497, 525
(6th Cir. 2015) (" We see no reason to follow Carrera,
particularly given the strong criticism it has attracted from
other courts." ); Mullins, 795 F.3d 654, 662 (7th Cir.
2015) (" The Third Circuit's approach in Carrera,
which is at this point the high-water mark of its developing
ascertainability doctrine, goes much further than the
established meaning of ascertainability and in our view
misreads Rule 23." ); but see Karhu v. Vital
Pharma., Inc., 621 Fed.Appx. 945, 2015 WL 3560722 (11th
Cir. Jun. 9, 2015) (applying Carrera's heightened
standard). Courts in the Ninth Circuit and the Second Circuit
have also rejected Carerra's approach. See McCrary v.
Elations Co., LLC, No. EDCV 13-00242 JGB OP, 2014 WL
1779243, at *7 (C.D. Cal. Jan. 13, 2014) (finding a class
ascertainable where " the proposed class definition
simply identifies purchasers of Defendant's products that
included the allegedly material misrepresentations" when
" the alleged misrepresentations appeared on the actual
packages of the products purchased" because " there
is no concern that the class includes individuals who were
not exposed to the misrepresentation" ) (quoting
Astiana v. Kashi Co., 291 F.R.D. 493, 500 (S.D. Cal.
2013)); Lilly v. Jamba Juice Co., 308 F.R.D. 231,
238 (N.D. Cal. 2014); Ebin v. Kangadis Food, Inc.,
297 F.R.D. 561, 566-67 (S.D.N.Y. 2014).
courts rejecting Carrera's approach to ascertainability
in consumer class actions have realized, in each of those
cases, " [e]ssentially, [d]efendant's concern is
that class members do not have actual proof that they belong
in the class," for purposes of ascertainability,
causation, and damages. McCrary, 2014 WL 1779243, at
*7. However, if those arguments " were correct,
'there would be no such thing as a consumer class
action.'" Id. (quoting Ries v. Arizona
Beverages USA LLC, 287 F.R.D. 523, 535 (N.D. Cal. 2012)
(finding ascertainability satisfied where class members were
required to self-identify that they purchased iced tea with
" natural" on the label during the class period));
see also Mullins, 795 F.3d at 662 (" In
general, we think imposing this stringent version of
ascertainability does not further
any interest of Rule 23 that is not already adequately
protected by the Rule's explicit requirements. On the
other side of the balance, the costs of imposing the
requirement are substantial. The stringent version of
ascertainability effectively bars low-value consumer class
actions, at least where plaintiffs do not have documentary
proof of purchases, and sometimes even when they do." );
Ebin, 297 F.R.D. at 567 (permitting
self-identification in a consumer marketing misrepresentation
case and certifying the class notwithstanding potential class
members' lack of receipts because it would " render
class actions against producers almost impossible to
those reasons, the court is not persuaded by the reasoning of
Carrera and its progeny. As expressed by a member of the
Third Circuit in a concurring opinion in Byrd v. Aaron's
In 2012 [the Third Circuit] adopted a second element, namely,
requiring district courts to make certain that there is
" a reliable, administratively feasible" method of
determining who fits into the class, thereby imposing a
heightened evidentiary burden. Marcus, 687 F.3d at 594. We
have precluded class certification unless there can be
objective proof " beyond mere affidavits" that
someone is actually a class member. Id.; accord
Carrera v. Bayer Corp., 727 F.3d 300, 308-12 (3d
Cir. 2013). This concept has gained traction in recent years.
I submit that this " business record" or "
paper trail" requirement is ill-advised. In most
low-value consumer class actions, prospective class members
are unlikely to have documentary proof of purchase, because
very few people keep receipts from drug stores or grocery
stores. This should not be the reason to deny certification
of a class. As Judge Ambro's dissent from the denial of
the petition for rehearing en banc in Carrera noted, "
[w]here a defendant's lack of records ... make it more
difficult to ascertain the members of an otherwise
objectively verifiable low-value class, the consumers who
make up that class should not be made to suffer."
Carrera v. Bayer Corp., No. 12-2621, 2014 WL
3887938, at *3 (3d Cir. May 2, 2014) (Ambro, J. dissenting).
Records are not the only way to prove that someone is in a
class. It is the trial judge's province to determine what
proof may be required at the claims submission and claims
administration stage. It is up to the judge overseeing the
class action to decide what she will accept as proof when
approving the claim form. Could not the judge decide that, in
addition to an individual's " say so" that he
is a member of the class, the claimant needs to submit an
affidavit from another household member or from his doctor
corroborating his assertion that he did, in fact, take Bayer
aspirin? Is that not permissible and appropriate? Yet, we
foreclose this process at the outset of the case by requiring
that plaintiffs conjure up all the ways that they might find
the evidence sufficient to approve someone as a class member.
This puts the class action cart before the horse and confuses
the class certification process, as this case makes manifest.
The irony of this result is that it thwarts " [t]he
policy at the very core of the class action mechanism,"
i.e., " to overcome the problem that small recoveries do
not provide the incentive for any individual to bring a solo
action prosecuting his or her rights." Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 617, 117 S.Ct.
2231, 138 L.Ed.2d 689 (1997) (quoting Mace v. Van Ru
Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)).
Indeed, " [a] class action solves this problem by
aggregating the relatively paltry potential recoveries into
something worth someone's (usually an attorney's)
labor." Id. We have effectively thwarted
small-value consumer class actions by defining
ascertainability in such a way that consumer classes will
necessarily fail to satisfy for lack of adequate
substantiation. Consumers now need to keep a receipt or a
can, bottle, tube, or wrapper of the offending consumer items
in order to succeed in bringing a class action.
784 F.3d 154, 173-75 (3d Cir. 2015), as amended (Apr. 28,
2015) (Rendell, J., concurring); see also Daniel Luks,
Ascertainability in the Third Circuit: Name that Class
Member, 82 Fordham L.Rev. 2359, 2393-2397 (2014) (urging the
rejection of the Carrera standard
of ascertainability " so as not to destroy consumer
class actions" ); Lilly, 308 F.R.D. at 238
(" Adopting the Carrera approach would have significant
negative ramifications for the ability to obtain redress for
consumer injuries. Few people retain receipts for low-priced
goods, since there is little possibility they will need them
later to verify that they made the purchase. Yet it is
precisely in circumstances like these, where the injury to
any individual consumer is small, but the cumulative injury
to consumers as a group is substantial, that the class
certification mechanism provides one of its most important
social benefits. In the absence of a class action, the injury
would go unredressed." ); Ebin, 297 F.R.D. at
567 (" the class action device, at its very core, is
designed for cases like this where a large number of
consumers have been defrauded but no one consumer has
suffered an injury sufficiently large as to justify bringing
an individual lawsuit." ).
the leading treatise on class action lawsuits has confirmed
that a " simple statement or affidavit may be sufficient
where claims are small or are not amenable to ready
verification." Alba Conte & Herbert B. Newberg, Newberg
on Class Actions § 18:54 (4th ed.); see also
Mullins, 795 F.3d at 667 (" In most cases, the
expected recovery is so small that we question whether many
people would be willing to sign affidavits under penalty of
perjury saying that they purchased the good or service."
); Donovan v. Philip Morris USA, 2012 WL 957633, at
*26-27 (suggesting methods other than customer receipts to
verify purchase of consumer products are acceptable,
including incentive programs and customer self-identification
where incentive to lie would be minimal, when class
definition is sufficiently clear).
to the extent that Dial's argument is motivated by
concerns about the submission of fraudulent or mistaken
claims, Dial " has provided no evidence . . . that
claims of this magnitude have provoked the widespread
submission of inaccurate or fraudulent claims."
Mullins, 795 F.3d at 667. But, even if Dial had
submitted such evidence, " courts are not without tools
to combat this problem during the claims administration
process. They can rely, as they have for decades, on claim
administrators, various auditing processes, sampling for
fraud detection, follow-up notices to explain the claims
process, and other techniques tailored by the parties and the
court to take into account the size of the claims, the cost
of the techniques, and an empirical assessment of the
likelihood of fraud or inaccuracy." Id.
every bottle of Dial Complete sold featured the challenged
claims. As discussed by the court in Ault v. J.M. Smucker
Co., " [c]ourts across the country have expressed doubt
that a class is ascertainable in cases . . . where only
certain products on the market during the class period
contain the allegedly misleading labels." 310 F.R.D. 59,
65, (S.D.N.Y. 2015) (discussing cases). However, such cases
are distinguishable from this action, where " the
uniformity of the products" makes " it far easier
for a potential class member to recall whether they had
purchased the good containing the misrepresentation."
Id. (quoting Randolph v. J.M. Smucker Co.,
303 F.R.D. 679, 689 (S.D. Fla. 2014)).
the plaintiffs proposed class definition is " not
vague," and it adequately " identifies a particular
group of individuals" (purchasers of Dial Complete).
Mullins, 795 F.3d at 660. The plaintiffs'
proposed classes are defined by objective criteria -- whether
the potential class members purchased Dial Complete
containing the challenged claims on the packaging during a
fixed time period -- and the potential class members can be
feasibly identified by sworn affidavits of purchase, among
other methods. The plaintiffs have not impermissibly created
a " fail-safe" class, a class " defined in
terms of success on the merits." Id.
Consequently, the classes are sufficiently ascertainable to
warrant class certification.
of Fed.R.Civ.P. 23(a)
Rule 23(a)(1), the class must be " so numerous that
joinder of all members is impracticable." Fed.R.Civ.P.
23(a)(1). " The numerosity requirement 'has two
components, the number of class members and the
practicability of joining them in a single case.'"
Kenneth R. v. Hassan, 293 F.R.D. at 265 (quoting
Rolland v. Celluci, No. CIV A 98-30208-KPN, 1999 WL
34815562, at *3 (D. Mass. Feb. 2, 1999)). " [N]umbers
alone are not usually determinative," rather both the
number of potential class members and their geographic
distribution are relevant to the numerosity determination.
In re Tyco Int'l, Ltd., 2006 DNH 91, 2006 WL
2349338, at *1 (D.N.H. 2006) (quoting Andrews v. Bechtel
Power Corp., 780 F.2d 124, 131-32 (1st Cir. 1985)).
does not meaningfully contest that this element is satisfied,
and the evidence before the court suggests that Dial has
shipped millions of units of Dial Complete to retailers and
distributors in the United States since the product's
launch. (See Pls.'s Mot. for Class Certification
(document no. 57), Exh. 15 at p. 8). Based on that volume,
the class is sufficiently numerous to satisfy Rule 23(a).
23(a)(2) requires that there be " questions of law or
fact common to the class." Fed.R.Civ.P. 23(a)(2). "
Although a court need find only a 'single common
question,' a certain rigor, as prescribed by the Supreme
Court in Wal-Mart, must attend the commonality inquiry."
Kenneth R., 293 F.R.D. at 265 (quoting
Wal-Mart, 131 S.Ct. at 2556 (quotation and alterations
omitted)). The Supreme Court explained that commonality
" requires the plaintiff to demonstrate that the class
members have 'suffered the same injury.'"
Id. at 266 (quoting Wal-Mart, 131
S.Ct. at 2551). The Court further stated that " claims
must depend upon a common contention" that is "
capable of classwide resolution -- which means that the
determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in
one stroke." Wal-Mart, 131 S.Ct. at 2551.
" 'What matters to class certification,'"
the Court emphasized, " 'is not the raising of
common questions -- even in droves -- but, rather the
capacity of a classwide proceeding to generate common answers
apt to drive the resolution of the litigation.'"
Kenneth R., 293 F.R.D. at 266 (quoting Wal-Mart, 131
S.Ct. at 2551 (quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L.Rev.
97, 132 (2009)) (emphasis in original).
case, plaintiffs have identified four questions of law or
fact common to potential class members:
1. Did the Dial Corporation claim that consumer use of Dial
Complete provides greater health benefit than consumer use of
regular soap and water on the packaging of every bottle of
Dial Complete sold?
2. Were Dial's representations false, misleading, or
3. Did the challenged claims have any economic effect on
4. How much, if anything, must Dial pay in restitutionary
damages to consumers who purchased Dial Complete, if the
challenged claims are shown to be false, deceptive or
(See Pls.' Reply Br. in Supp. of Mot. for Class
Certification (document no. 161) at p. 3.)
does not meaningfully contest that such common questions
exist, only whether they predominate over individual
questions of reliance, causation, and damages sufficiently to
satisfy Rule 23(b)(3). After careful consideration, the court
is satisfied that answers to the common questions, even
excluding the damages question, would " drive the
resolution of the litigation." Wal-Mart, 131
S.Ct. at 2551;
see Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 757
(7th Cir. 2014) (finding " that the question whether the
[defendant's] packaging was likely to deceive a
reasonable consumer is common. The claims of every class
member will rise or fall on the resolution of that
23(a)(3) requires that " the claims or defenses of the
representative parties [be] typical of the claims or defenses
of the class." Fed.R.Civ.P. 23(a)(3). " The
typicality analysis is designed to ensure that class
representatives, in pursuing their own interests,
concurrently will advance those of the class." In re
Hannaford Bros. Co. Customer Data Sec. Breach Litig.,
293 F.R.D. 21, 27 (D. Me. 2013). The claims of class
representatives " are 'typical' when their
claims 'arise from the same event or practice or course
of conduct that gives rise to the claims of other class
members, and . . . are based on the same legal
theory.'" Id. (quoting Garcia-Rubiera
v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009)) (further
other words, the typicality requirement is satisfied if the
class representative's claims are not likely to " be
subject to unique defenses that would divert attention from
the common claims of the class," In re Tyco
Int'l, Ltd. Multidistrict Litig., 2007 DNH 75, 2007
WL 1703067, at *2 (D.N.H. 2007) (quoting In re Bank of
Boston Corp. Sec. Litig., 762 F.Supp. 1525, 1532 (D.
Mass. 1991) (quotations omitted)), and where the court need
not " make highly fact-specific or individualized
determinations in order to establish a defendant's
liability to each class member." Id. (quoting
Collazo v. Calderon, 212 F.R.D. 437, 443 (D.P.R.
2002) (quotations omitted)).
" should be determined with reference to the
defendant's actions, not with respect to particularized
defenses it might have against certain class members."
In re Neurontin Mktg. & Sale Practices Litig., 244
F.R.D. 89, 106 (D. Mass. 2007) (quoting Wagner v.
NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996)
to Dial, the named plaintiffs' claims are not typical
because they are subject to unique spoliation defenses due to
the named plaintiffs' failure to retain receipts for
their purchases of Dial or other hand soaps since the parties
exchanged discovery requests in March 2012. This argument is
premised on the notion that the named plaintiffs' and
potential class members' receipts for Dial Complete and
substitute products are relevant to the determination of
class membership and damages. Dial argues that the
plaintiffs' failure to preserve receipts is prejudicial
because Dial will be unable to determine: (1) whether
plaintiffs ever purchased Dial Complete; (2) whether
plaintiffs paid more for Dial Complete than an alternative
" can be defined as the failure to preserve evidence
that is relevant to pending or potential litigation."
Jimenez-Sanchez v. Caribbean Restaurants, LLC, 483
F.Supp.2d 140, 143 (D.P.R. 2007). However, as discussed above
in the context of ascertainability, because potential class
members are highly unlikely to retain receipts for such small
purchases, the plaintiffs are not required to rely solely on
receipts to prove class membership. Thus, the named
plaintiffs' and potential class members' receipts are
not strictly relevant to the claims or defenses in this case,
rendering Dial's purported individual spoliation defenses
inapplicable. See Jimenez-Sanchez, 483 F.Supp.2d at
the named plaintiffs' claims arise from the same alleged
misrepresentations on the packaging of Dial Complete as those
of the potential class members, they are typical of the
alleged class claims.
23(a)(4)'s adequacy requirement will be satisfied if
" the representative parties will fairly and adequately
protect the interests of the class." Fed.R.Civ.P.
23(a)(4). The adequacy requirement has two components. First,
plaintiffs must show that " counsel chosen by the
representative party is qualified, experienced and able to
vigorously conduct the proposed litigation." Andrews
v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir.
1985). Second, plaintiffs must show " that the interests
of the [class representatives] will not conflict with the
interests of any of the class members." Id.
Adequacy of Class Counsel
does not argue that class counsel is inadequate, and the
court having previously found class counsel adequate (see
document no. 20) (" Order granting Partially Assented-to
Majority Plaintiffs Group's Motion for Designation of
Lucy J. Karl as Interim Lead Counsel and Approval of Proposed
Leadership Structure" ), class counsel satisfies the
Adequacy of Class Representatives
representatives are not required to have " expert
knowledge" about the case, and may rely heavily on class
counsel for guidance. In re Relafen Antitrust
Litig., 231 F.R.D. 52, 69 (D. Mass. 2005) (further
citation omitted). " A 'perceived lack of subjective
interest' is ordinarily insufficient to disqualify
proposed class representatives." In re Tyco,
2006 DNH 91, 2006 WL 2349338, at *2 (quoting Kirkpatrick
v. J.C. Bradford & Co., 827 F.2d 718, 728 (11th Cir.
1987)). However, a named plaintiff would be inadequate if he
or she possesses " so little knowledge of and
involvement in the class action that [he or she] [is] unable
or unwilling to protect the interests of the class against
the possibly competing interests of the attorneys."
Id. (quoting Kirkpatrick, 827 F.2d
at 727). The adequacy requirement is satisfied " unless
[the class representatives'] participation is so minimal
that they virtually have abdicated to their attorneys the
conduct of the case." Id. (quoting Kirkpatrick,
827 F.2d at 728).
argues that the named plaintiffs are inadequate because of
the alleged receipt-related spoliation defenses uniquely
applicable to them -- an argument the court has already
rejected. Dial further argues that the named plaintiffs are
inadequate because they do not understand or agree with the
theory of the case, and because one of the named plaintiffs,
Eric Capdeville, has been effectively absent from the case
and another named plaintiff, Alicia Gentile, has filed for
bankruptcy while failing to disclose her claim.
read the transcripts submitted by the plaintiffs and Dial in
this case, the court is satisfied that the named plaintiffs
are sufficiently cognizant of the claims and issues in this
case to serve as named plaintiffs, with three exceptions.