Duane Morris Consumer Fraud Class Action Review – 2024

certification, the district court needed to consider the specific elements of each state ’ s claims to determine if reliance issues were common or individualized. Based on the reliance element, the Eleventh Circuit determined that there were three types of claims at issue, including: (i) claims that did not require proof of reliance; (ii) claims that did require individual proof of reliance; and (iii) claims that required proof of reliance but may be presumed. The Eleventh Circuit found that the claims from Texas, New York, and Tennessee, which required individualized proof of reliance, were not appropriate for class certification. The Eleventh Circuit, however, upheld the district court ’ s ruling granting class certification for claims brought under Florida, New York, Washington, and Missouri consumer fraud laws, as these laws allowed a presumption that the entire class relied on Ford ’ s advertising statements about the cars. Finally, the Eleventh Circuit remanded the district court ’ s ruling on whether the plaintiffs could establish reliance on a class-wide basis for claims brought under California ’ s common law fraud structure and its Unfair Competition, False Advertising, and Consumers Legal Remedies statutes and claims from California and Texas with consumers alleging breach of implied warranty and violations of the federal Magnuson-Moss Warranty Act. The Eleventh Circuit concluded that the district court should further consider whether reliance could be presumed on a class-wide basis and whether common questions predominated over individual ones for those claims. For these reasons, the Eleventh Circuit affirmed in part, reversed in part, and remanded the district court ’ s ruling. In Vizcarra, et al. v. Unilever United States, Inc., 2023 U.S. Dist. LEXIS 38208 (N.D. Cal. Feb. 24, 2023), the plaintiff, a consumer, filed a class action alleging that the defendant ’ s Breyers Natural Vanilla Ice Cream labeling was misleading to customers as having its vanilla flavor derived exclusively from the vanilla plant. The plaintiff brought: (i) claims under the unlawful, unfair, and fraudulent prongs of California ’ s Unfair Competition Law (UCL); (ii) a claim for false and misleading advertising in violation of California ’ s False Advertising Law (FAL); and (iii) a claim for violations of the California Consumer Legal Remedies Act (CLRA). The plaintiff filed a motion for class certification pursuant to Rule 23, and the court granted the motion. The plaintiff argued that the question of whether the vanilla representation was likely to deceive a reasonable consumer could be resolved with common proof, namely the opinions of an expert, who conducted a “consumer perception” survey, which he designed with the purpose of testing the effect of the vanilla representation on California purchasers’ perceptions of vanilla-flavored ice cream. Id. at *25. The survey involved presenting to respondents an un-branded ice cream product that displayed only the vanilla representation – that its vanilla flavor was derived exclusively from the vanilla plant – on the front label of the product. Results of the survey showed that 78.7% of respondents reported that they believed that “all of the vanilla flavor” comes from the vanilla plant; 16.6% perceived that “not all of the vanilla flavor” comes from the vanilla plant; and 4.7% were not sure. Id. The expert therefore concluded that a reasonable consumer in California perceived the vanilla representation to convey that all of the vanilla flavor comes from vanilla extract (from the vanilla plant). The court determined that a factfinder at trial could, based on the expert ’ s opinions, find that a reasonable consumer would likely be deceived by the vanilla representation. The court concluded that the expert ’ s explanations for his methodology and survey design and the undisputed fact that he had decades of experience in survey research and design, that the revised survey and its results, as well as the expert ’ s opinions based thereon, were sufficiently reliable and could sustain a jury finding that a reasonable consumer in California was likely to be deceived by the vanilla representations. Accordingly, the court concluded that the expert ’ s opinions were capable of answering the common question of likelihood of deception on a class-wide basis such that class certification would be appropriate. Id. at *31. As a result, the court granted the plaintiff ’ s motion for class certification. The plaintiff in White, et al. v. General Motors LLC, 2023 U.S. Dist. LEXIS 79295 (D. Colo. May 5, 2023), a consumer, filed a class action alleging that the defendant sold vehicles with faulty engines because, among other defects, the piston rings failed to keep oil in the crankcase, thereby resulting in the consumption of an abnormally high quantity of oil, and far exceeding industry standards for oil

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