Duane Morris Consumer Fraud Class Action Review – 2024

II. Significant Rulings In Consumer Fraud Class Actions In 2023 1. Motions For Class Certification Granted

The plaintiffs in Banks, et al. v. R.C. Bigelow, Inc., 2023 U.S. Dist. LEXIS 135167 (C.D. Cal. July 31, 2023), consisted of a group of consumers who asserted that Bigelow ’ s label on its tea, stating the manufacturing locale of the tea, was misleading. Specifically, the plaintiffs averred that Bigelow ’ s label of tea, stating that it was “Manufactured in the USA 100% Family Owned,” was misleading in violation of the California Consumer Legal Remedies Act (CLRA), common law fraud, negligent misrepresentation, and breach of express warranty. Id. at *3-4. The plaintiffs filed a motion for class certification and the court granted the motion. First, the court found that the class, at over one hundred consumers, was sufficiently numerous. The court determined that the plaintiffs’ claims were typical to those of the class members because they purchased the defendant ’ s products in part based on their belief the products were made in the USA. Bigelow argued that the plaintiffs could not credibly demonstrate reliance on the label and were thus subject to unique defenses not applicable to other class members. The court found that the fact that the plaintiffs may have considered other factors in their purchasing decisions did not make them atypical. The court also concluded that the plaintiffs and their counsel met the adequacy requirement. The court addressed commonality and predominance in tandem. The court determined that the class was bound by common questions, including: (i) whether reasonable consumers would believe, based on the label, that Bigelow ’ s products were 100% manufactured and processed in the United States, and (ii) whether its products actually were 100% manufactured and processed in the United States. The defendants argued that individual questions predominated about class members’ exposure to the label, because: (i) products with the label appeared at different times, for different durations, due to haphazard shipment to stores; and (ii) the label was not prominent enough to infer class-wide exposure. The court found that even accounting for the delay between label approval and shipping for some products, the label was printed on all products identified in the class definition throughout the vast majority of the period class period. The defendant also contended that even as to products that did bear the label, it was not sufficiently prominent to assume that all purchasers saw it and relied on its representations. The court rejected the argument. It held that the label was sufficiently prominent. The court also rejected the defendant ’ s argument that individual questions about the materiality of the 100% Manufactured in the USA label defeated predominance. For these reasons, the court granted the plaintiffs’ motion for class certification. Consumer fraud plaintiffs often seek issue certification on a discrete issue in a class action. For example, the plaintiffs in the case of In Re Fieldturf Artificial Turf Marketing And Sales Practices Litigation, 2023 U.S. Dist. LEXIS 121042 (D.N.J. July 13, 2023), were school districts, a county, a borough, and a city that purchased allegedly defective FieldTurf Duraspine fields. The plaintiffs brought claims for fraudulent concealment, statutory consumer fraud, implied warranty, and unjust enrichment based on FieldTurf ’ s representations that the fields had superior materials and designs to other similar products and a useful lifespan of more than 10 years. The plaintiffs contended that FieldTurf knew its artificial turf was defective but sold it anyway. The plaintiffs filed a motion for class certification of a defect and deception issues class under Rule 23(c)(4). The court granted the motion. The court determined that the class met all the requirements of Rule 23(a). The court stated that the issue in granting certification would be in the different state laws for different class members. The plaintiffs contended that there were two common questions that predominated over individual issues, including: (i) whether all Duraspine fields sold by FieldTurf to the class shared a common inherent defect; and (ii) whether FieldTurf knowingly omitted the facts of this common defect from the proposed class in its marketing and sales presentations. The court concluded that the plaintiffs satisfied the predominance and superiority requirements. The court reasoned that granting certification would significantly advance the litigation by determining key elements of FieldTurf ’ s liability using class-wide evidence. Accordingly, the court certified the class. The plaintiffs filed a putative consumer class action alleging that former President Donald Trump conned them with his endorsements of ACN Opportunity, LLC (ACN), a multi-level marketing company in McKoy,

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