Duane Morris Consumer Fraud Class Action Review – 2024

to common proof. Finally, the court deemed the lead plaintiff an inadequate class representative because he lacked any understanding of the case, his role, or his responsibilities as a class representative. For these multiple reasons, the court denied the motion for class certification. In another pet food ingredient case, the plaintiff in Rydman, et al. v. Champion PetFoods USA, Inc ., 2023 U.S. Dist. LEXIS 86710 (W.D. Wash. May 17, 2023), initiated a consumer class action against Champion PetFoods, alleging that Champion ’ s pet food labels were deceptive and misleading in violation of the Washington Consumer Protection Act (WCPA). The proposed lead plaintiff specifically asserted that the dog food she purchased “contained and/or had a material risk of containing non-conforming ingredients and contaminants, such as: (i) heavy metals; (ii) non-fresh ingredients; and (iii) non-regional ingredients.” Id. at * 4. Given the presence of these ingredients, the lead plaintiff averred that statements found on the Champion PetFoods’ packaging – such as the food being “Biologically Appropriate” and containing “Fresh Regional Ingredients” –were misleading. Id. The plaintiff moved for class certification of ten separate classes pursuant to Rule 23, but the court denied the motion. The court found that the plaintiff ’ s proposed classes did not meet Rule 23 ’ s commonality or predominance requirements. Notably, the plaintiff ’ s argument failed to consider the variations from bag to bag and formula to formula. The court stated that the amount of regrinds, and therefore the exact contents for each bag, would be different for each individual bag. Thus, the court found that whether a member of any of the ten putative classes purchased a bag containing food that was inconsistent with the packaging, and whether a member was therefore deceived by the labels, was not a question with a common answer, but rather an issue that would require individualized assessment about which production lot or lots of the specific diet each person bought. Accordingly, the court denied the plaintiff ’ s motion for class certification. In a false advertising case, the plaintiffs in Vanzant, et al. v. Hill’s Pet Nutrition Inc., 2023 U.S. Dist. LEXIS 174733 (N.D. Ill. Sept. 29, 2023), alleged that Hills’ Pet Nutrition deceptively marketed their prescription diet cat food. Specifically, purchasers of Hill ’ s Pet Nutrition ’ s “Prescription Diet” pet food alleged the food ’ s packaging tricked them into believing food contained medicine when, in reality, it did not. They alleged that the defendant marketed and sold the food as therapeutic pet food, labeled it “Prescription Diet,” and advertised it as requiring a prescription from a veterinarian to purchase. None of these claims were true, according to the plaintiffs, and, in fact, they averred that the Food and Drug Administration had never evaluated the defendant ’ s food. The plaintiffs moved for class certification pursuant to Rule 23, and the court granted the motion. Numerosity was easily established where the putative class contained thousands of individual consumers who purchased the pet food. Hill ’ s Pet Nutrition argued that the different formulas of the food, the intended benefits of the diet food, and varying potential reasons for veterinary prescriptions for the food meant that individual questions predominated, thereby defeating Rule 23(a) ’ s commonality requirement. The court disagreed. It determined that these differences were irrelevant because the product, the pet food, contained the same “specific component” that was the subject of the putative class ’ s claims, i.e., the absence of any therapeutic ingredients. Hill ’ s Pet Nutrition argued that two pet owners in the putative class could not adequately represent the rights and interests of the remaining members of the putative class because these two pet owners only purchased Prescription Diet a few times. According to the defendant, having purchased the food only a handful of times, the plaintiffs could not represent the interests of other class members who could have purchased other Prescription Diet foods but chose not to. The court disagreed because the relevant issue was how the food was marketed, not how frequently a consumer interacted with a falsely advertised product. Vanzant exemplifies efforts by defendants to defeat class certification by attacking the adequacy of the proposed lead plaintiff, because establishing that one person should not be the leader of a putative class can be a much easier undertaking than establishing the requirements of Rule 23(a) as to all putative members do not exist. However, although it may seem to be an easier route to pursue for an order denying obtain class certification, courts, as in Vanzant , do not analyze adequacy any less stringently.

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