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In re Dial Complete Mktg. & Sales Practices Litigation

United States District Court, D. New Hampshire

December 8, 2015

In re: Dial Complete Marketing and Sales Practices Litigation

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          For In 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.

         For 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.

         For 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.

         For 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.

         For Sonia Herrera, Plaintiff: Mark John Geragos, Shelley Kaufman, Tamar G. Arminak, Geragos and Geragos APC, Los Angeles, CA.

         For 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.

         For Megan Peterson, Plaintiff: Douglas P. Dehler, Shepard Finkelman Miller & Shah, LLC, Milwaukee, WI.

         For Sven P. Vogtland, Plaintiff: Jordan Lucas Chaikin, Parker Waichman LLP, Bonita Springs, FL; Richard J. Arsenault, Neblett Beard & Arsenault, Alexandria, LA.

         For 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.

         For All Plaintiffs, Plaintiff: Lucy J. Karl, Shaheen & Gordon (Concord), Concord, NH; Reginald Von Terrell, The Terrell Law Group, Oakland, CA.

         For Kristina Pearson, Plaintiff: Adam J. Levitt, Grant & Eisenhofer, PA (IL), Chicago, IL; Joseph J. Siprut, Siprut PC, Chicago, IL.

         For Eric Terrell, Plaintiff: Reginald Von Terrell, The Terrell Law Group, Oakland, CA.

         For Elizabeth Poynter, Plaintiff: Adam J. Levitt, Grant & Eisenhofer, PA (IL), Chicago, IL.

         For The 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.

         For All 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.

         For Rhonda D. Jones, Movant: John C. Theisen, LEAD ATTORNEY, PRO HAC VICE, Theisen Bowers & Associates LLC, Fort Wayne, IN.

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         ORDER

         Steven J. McAuliffe, United States District Judge.

         This 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.

         Plaintiffs 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.

         Background

         Dial 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.)

         Dial 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." [1] (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 than ordinary

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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." )).

         The 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." [2] (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.)

         Dial 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.)

         The 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 those claims.[3]

         Dial 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),

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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 class-wide basis.

         Discussion

         Legal Standard for Class Certification

          In a 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).

          The 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)).

         Class 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 689 (1997)).

         There 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).

         Finally, " [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)).

         Ascertainability

          It is 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[3][a] (3d ed. 2012)). In other words, " an implicit prerequisite to class certification is that a 'class'

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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.

         However, 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))).

         In this 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.'" [4] 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)).

         Dial 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 case.

         In 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).

         Nexium, 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

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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.

         After 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 due process.

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.[5]

         It 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).

         As 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

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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 bring" ).

         For 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 Inc.:

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

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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." ).

         Indeed, 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).

         Moreover, 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.

         Finally, 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)).

         In sum, 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.[6]

         

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         Requirements of Fed.R.Civ.P. 23(a)

         I. Numerosity

          Under 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)).

         Dial 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).

         II. Commonality

          Rule 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).

         In this 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 deceptive?
3. Did the challenged claims have any economic effect on consumers?
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 misleading?

(See Pls.' Reply Br. in Supp. of Mot. for Class Certification (document no. 161) at p. 3.)

         Dial 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;

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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 question." ).

         III. Typicality

          Rule 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 citation omitted).

         In 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)).

         Typicality " 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) (quotations omitted)).

         According 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 soap.

         Spoliation " 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 143.[7]

         Because 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.

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         IV. Adequacy

          Rule 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.

         A. Adequacy of Class Counsel

         Dial 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 requirement.

         B. Adequacy of Class Representatives

          Class 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).

         Dial 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.

         Having 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.

         David ...


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