Consumer Fraud Class Action Review – 2025

Class action litigation in the consumer fraud area has exponentially increased over the past several years. Most consumer fraud class actions come with the possibility of excessive payouts for corporations. We hope the Consumer Fraud Class Action Review – 2025 will demystify some of the complexities of consumer fraud class action litigation through our analysis of trends and significant rulings that enable corporate counsel to make informed decisions in dealing with complex litigation risks.

DISCLAIMER The material in this Review is of the nature of general commentary only. It is not meant as or offered as legal advice on any particular issue and should not be considered as such. The views expressed are solely those of the authors. In addition, the authors disclaim any and all liability to any person in respect of anything and of the consequences of anything done wholly or partly in reliance on the contents of this Review. This disclaimer is from the Declaration of Principles jointly adopted by the Committee of the American Bar Association and a Committee of Publishers and Associations.

CITATION FORMATS All citations in the Consumer Fraud Class Action Review are designed to facilitate research. If available, the preferred citation of the opinion included in the West bound volumes is used, such as Jama, et al. v. State Farm Mutual Automotive Insurance Co ., 113 F.4th 924 (9th Cir. 2024). If the decision is not available in the preferred format, a Lexis or Westlaw cite from the electronic database is provided, such as Nelipa, et al. v. TD Bank, N.A., 2024 U.S. Dist. LEXIS 106766 (E.D.N.Y. June 17, 2024). If a ruling is not available in one of these sources, the full case name and docket information is included, such as Fitzgerald, et al. v. Wildcat , Case No. 20-CV-44 (W.D. Va. Dec. 13, 2024). E-BOOK HIGHLIGHTS The Consumer Fraud Class Action Review is available for use on a smartphone, laptop, tablet, or any personal electronic reader by using any e-book reader application. E-book reading allows users to quickly scroll, highlight important information, link directly to different sections of the Review, and bookmark pages for quick access at a later time. The e-book is designed for easy navigation and quick access to informative data. The e-book is available by scanning the below QR code:

Consumer Fraud Class Action Review – 2025

NOTE FROM THE EDITOR Class action litigation generally involves high stakes that can keep corporate counsel and senior management awake at night. Within the vast realm of class action litigation, consumer fraud class actions remain at the forefront. A wide variety of conduct gives rise to consumer fraud claims. These cases can impact a company’s market share and reputation in a significant manner, creating substantial pressure on decision-makers who must navigate the associated risks and exposures. The Consumer Fraud Class Action Review serves multiple purposes. It aims to clarify the complexities of class action litigation and provide corporate counsel with up-to-date insights into the evolving nuances of Rule 23 and other types of representative proceedings. Through this publication, we seek to offer an analysis of emerging trends and key rulings, empowering our clients to make informed decisions when managing complex litigation risks. Defending class actions is a cornerstone of Duane Morris’ litigation practice. We hope this book, which reflects the collective experience and expertise of our class action defense team, will help our clients identify key trends in the case law and offer practical strategies for handling consumer fraud class action litigation. Sincerely,

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CONTRIBUTORS

Consumer Fraud Class Action Review – 2025

GLOSSARY AND KEY U.S. SUPREME COURT DECISIONS Adequacy Of Representation – Plaintiffs must show adequacy of representation per Rule 23(a)(4) to secure class certification. It requires representative plaintiffs and their counsel to be capable of fairly and adequately protecting the interests of the class. Amchem Products, Inc. v. Windsor, et al. , 521 U.S. 591 (1997) – Windsor is the U.S. Supreme Court decision that elucidated the requirements in Rule 23(b), insofar as common questions must predominate over any questions affecting only individual class members and class resolution must be superior to other methods for the adjudication of the claims. Ascertainability – Although not an explicit requirement of Rule 23, some courts hold that the members of a proposed class must be ascertainable by objective criteria. Comcast Corp. v. Behrend, et al. , 569 U.S. 27 (2013) – Comcast is the U.S. Supreme Court decision that interpreted Rule 23(b)(3) to require that, for questions of law or fact common to the class, the plaintiffs’ damages model must show damages are capable of resolution on a class-wide basis. Commonality – Plaintiffs must show commonality per Rule 23(a)(2) to secure class certification. This requires that common questions of law and fact exist as to the proposed class members. Class – A group of individuals that has suffered a similar loss or alleged illegal experience on whose behalf one or more representatives seek to bring suit. Class Action – The civil action brought by one or more plaintiffs in which they seek to sue on behalf of themselves and others not named in the suit but alleged to have suffered the same or similar harm. Class Certification – The judicial process in which a court reviews the submissions of the parties to determine whether the plaintiffs have met their burden of showing that class treatment is the most appropriate form of adjudication. Collective Action – A type of representative proceeding governed by 29 U.S.C. § 216(b) where one or more plaintiffs seeks to bring suit on behalf of others who must affirmatively opt-in to join the litigation. It is applicable to claims under the Fair Labor Standards Act, the Age Discrimination in Employment Act, or the Equal Pay Act. Cy Pres Fund – In class action settlement agreements, this is the money set aside for distribution to a § 501(c) organization when class members do not return a settlement claim form and money is left over after distribution to the class. Decertification – Following an order granting conditional certification of a collective action or certification of a class action, a defendant can move for decertification based on the grounds that the members of the collective action are not actually similarly-situated or that the requirements of Rule 23 are no longer satisfied for the class action. Epic Systems Inc. v. Lewis, et al. , 138 S. Ct. 1612 (2018) – Epic Systems is the U.S. Supreme Court decision holding that arbitration agreements requiring individual arbitration and waiving a litigant ’ s right to bring or participate in class actions are enforceable under the Federal Arbitration Act. Opt-In Procedures – Under 29 U.S.C. § 216(b), a collective action member must opt-in to join the lawsuit before he or she may assert claims in the lawsuit or be bound by a judgment or settlement. Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class members are bound by the court ’ s judgment unless they opt-out after receiving notice of the lawsuit. Numerosity – Plaintiffs must show that their proposed class is sufficiently numerous that adding each class

Consumer Fraud Class Action Review – 2025

member to the complaint would be impractical. This is a requirement for class certification imposed by Rule 23(a)(1). Ortiz, et al. v. Fibreboard Corp., 527 U.S. 815 (1999) – Ortiz is the U.S. Supreme Court ruling that interpreted Rule 23(b)(3) to require personal notice and an opportunity to opt-out of a class action where money damages are sought in a class action. Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, the plaintiffs must show that common questions predominate over any questions affecting individual members. Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions in federal courts and requires that a party seeking class certification meet four requirements of section (a) and one of three requirements under section (b) of the rule. Rule 23(a) – It prescribes that a class meet four requirements for purposes of class certification, including numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) – To secure class certification, a class must meet one of three requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and if prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members or adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied and questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Similarly-Situated – Under 29 U.S.C. § 216, employees may bring suit on behalf of themselves and others who are similarly-situated. The standard is not clearly defined in the statute and many courts have found that, if plaintiffs make a preliminary showing that they are similarly-situated to those they seek to represent, conditional certification is appropriate. A finding in this regard is usually not based on the merits of the claims. Superiority – The Rule 23(b)(3) requirement that a class action can be permitted only if class resolution is the superior method of adjudicating the claims. Typicality – The plaintiffs’ claims and defenses must be typical to those of proposed class members’ claims. This is required by Rule 23(a)(3). Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) – Wal-Mart is the U.S. Supreme Court ruling that tightened the commonality requirement of Rule 23(a)(2) and held that judges must conduct a “rigorous analysis” to determine whether there is a “common” contention central to the validity of the claims that is “capable of class-wide resolution.”

Consumer Fraud Class Action Review – 2025

TABLE OF CONTENTS

Page

I. Executive Summary ............................................... .............................................1 II. Significant Rulings In Consumer Fraud Class Actions..... ...............................2 1. Motions For Class Certification Granted. ..................................................... 2 2. Motions For Class Certification Denied........................................................ 8 3. Rulings On Decertification Issues .............................................................. 13 4. Rulings On Other Issues.............................................................................. 14 III. Top Consumer Fraud Class Action Settlements In 2024 .............................. 17 Index Of 2024 Consumer Fraud Class Action Rulings............................................. 19

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Consumer Fraud Class Actions I. Executive Summary

For more than seven decades, class actions have been one of the most effective procedural tools used to vindicate the rights of consumers who - had they attempted to pursue relief individually - may have been unsuccessful. Within the vast realm of class action litigation, consumer fraud class actions remain at the forefront. Consumer fraud class actions typically involve a group of consumers who believe they were participating in a legitimate business transaction, but due to an alleged deceptive or fraudulent practice, the consumers were defrauded. A wide variety of conduct gives rise to consumer fraud claims. For example, if a business or merchant makes misleading statements about a retail product’s origin, quality, or potential use, over-exaggerates a product ’ s benefits, imposes classic bait-and-switch tactics on consumers – wherein consumers are forced to make decisions based on inaccurate or incomplete information – or charges fees or surcharges that are unrelated to the subject of the merchant’s transaction with the consumer, a claim for consumer fraud will arise because these actions may harm consumers. Such claims may be based on a variety of theories including federal and state statutory laws, as well as common law and quasi-contract theories. Just as the type of actionable conduct varies, so too do the industries within which consumer fraud claims abound. In last several years, for example, the beauty and cosmetics industries saw a boom in consumer fraud class actions for mislabeled products that physically harmed unknowing consumers. Other consumer fraud claims arise over things like household appliances, hidden fees, faulty warranties, deceptive credit reporting practices, and even for misrepresentations about the concentration of THC in cannabis products. In 2024, consumer fraud class actions ran the gamut of false advertising and false labeling claims. The products at issue included everything from cannabis to nuts. Every state has consumer protection laws, and consumer fraud class actions require courts to analyze these statutes both with respect to plaintiffs’ claims, and also with respect to a choice-of-law analysis when a complaint seeks to impose liability upon multiple states’ consumer protection laws. Careful analysis and attention to the allegations is paramount, and often, factual issues prevent dismissal of claims at the pleading stage. Thus, a defendant faced with a consumer fraud class action often will have to defend the matter at least through class-wide discovery. A helpful tool in this regard is a bifurcated discovery process wherein the first stage of discovery can focus on class allegations and class certification, and the second phase of discovery can focus on the actual merits of the case. In 2024, courts granted plaintiffs’ motions for class certification in consumer fraud lawsuits approximately 57% of the time.

Consumer Fraud Class Action Review – 2025

II. Significant Rulings In Consumer Fraud Class Actions In 2024 1. Motions For Class Certification Granted

In 2024, many courts certified various classes and sub-classes of consumers after analyzing the putative groups against the requirements of Rule 23 and the numerosity, commonality, adequacy, and typicality standards set forth by case law binding their respective jurisdiction. In Nelipa, et al. v. TD Bank, N.A., 2024 U.S. Dist. LEXIS 106766 (E.D.N.Y. June 17, 2024), the plaintiffs filed a class action against the defendant, TD Bank, for alleged violations of the Electronic Fund Transfer Act (EFTA) and for breach of TD’s Personal Deposit Account Agreement. Essentially, the plaintiffs claimed that unknown perpetrators impersonated TD Bank employees to trick them into providing access to the plaintiffs’ bank accounts, which the perpetrators then used to conduct unauthorized transactions. The plaintiffs reported these “imposter scams” and the subsequently fraudulent transactions to TD Bank, but TD Bank refused to treat the transactions as “unauthorized” and denied their fraud claims. Id. at *2. These denials, the plaintiffs contended, were consistent with TD Bank’s “policy and practice” of denying claims of unauthorized transfers in circumstances where the accountholder was defrauded into approving the transactions or providing access to their account, and that this policy violated the EFTA and the plaintiffs’ Personal Deposit Account Agreement they had with T.D. Bank. Id. The court granted the plaintiffs’ motion for class certification, focusing its analysis on the numerosity, commonality, and typicality requirements of Rule 23. First, the court found that the plaintiffs’ analyzed data, which established that thousands of TD Bank accountholders could fit within their proposed class definition, satisfied the plaintiffs’ burden of showing numerosity. The court ruled that proposed classes included current and former TD Bank accountholders who were defrauded, reported unauthorized transactions, and had their claims denied by TD Bank for specific, albeit various, reasons. This definition, the court determined, allowed for clear identification of class members based on TD Bank’s records. Furthermore, considering the low individual stakes each proposed member had, particularly in light of the potential class size, consolidating claims into a single class action was the superior method of adjudication according to the court. Second, the court determined the proposed class of plaintiffs met Rule 23’s commonality and typicality requirements because whether TD Bank’s policy of denying claims where customers provided access to fraudsters violated the EFTA and the Deposit Agreement was a common legal question among them that was capable of resolution for all class members. The court reasoned that common

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evidence, such as TD Bank’s standardized policies and business records, would provide answers common to all members of the proposed class and that individual questions would not predominate the central issue, i.e., whether TD Bank’s policy violated the EFTA. Moreover, the lead plaintiffs’ experiences aligned with those of the proposed class, and they were determined adequate to represent the class’s interests. Accordingly, the court granted the plaintiffs’ motion for class certification. The plaintiff in Callantine, et al. v. 4E Brands North America, LLC , 2024 U.S. Dist. LEXIS 216038 (N.D. Ind. Nov. 27, 2024), filed a class action alleging that the defendant sold hand sanitizer contaminated with methanol, despite labeling it as safe and effective with 70% ethyl alcohol in violation of the Indiana Deceptive Consumer Sales Act (IDCSA). The plaintiff filed a motion for class certification of a class consisting of all Indiana residents who purchased Blumen hand sanitizer containing methanol within the past two years. The court granted the motion. The defendant, a Texas-based company, distributed Blumen-branded hand sanitizer in Indiana during the COVID-19 pandemic. The product’s labeling claimed that it was made with 70% ethyl alcohol, yet some batches contained methanol, a toxic substance. In July 2020, the FDA discovered methanol in some Blumen products and recommended a recall. The plaintiff purchased Blumen hand sanitizer in July 2020, and both she and her children suffered symptoms consistent with methanol poisoning. The court determined that the proposed class was ascertainable because it was defined clearly – as all Indiana residents who purchased methanol-contaminated hand sanitizer - and based on objective criteria, such as the presence of methanol. The court rejected the defendant’s argument that determining class membership would be overly complicated, noting that ascertainability focuses on whether class members can be identified, not on the administrative difficulty of managing the class. The court found that the class was sufficiently numerous, as the class likely contained at least 10,000 members. The court agreed with the plaintiff’s contention that there were common legal and factual issues across the class, particularly whether the defendant’s deceptive representations about its product’s safety and ingredients violated the IDCSA. The court concluded that the common issues, such as whether the labels were deceptive and whether the defendant’s actions violated the IDCSA, were central to the case. The court also ruled that the plaintiff’s claims were typical of the class because her experience with the harmful hand sanitizer and its deceptive labeling was like that of other class members. The court opined that the plaintiff could fairly and adequately represent the class as her interests were aligned with the goal of obtaining class-wide relief under the IDCSA for deceptive practices. As to the Rule 23(b) factors, the court found that common issues, such as whether the defendant misrepresented the contents and safety of the hand sanitizer, predominated over individual questions, such as the precise extent of each class member’s injury. Furthermore, the court determined that a class action would be the superior method of handling the case, as it would allow for efficient resolution of the claims, particularly given the extensive evidence about the contamination and recall process. For these reasons, the court granted the plaintiff’s motion for class certification. In Cohen, et al. v. Allegiance Administrators, LLC, 2024 U.S. Dist. LEXIS 186644 (S.D. Ohio Oct. 14, 2024), the plaintiffs filed a class action against the defendants Allegiance Administrators, LLC (Allegiance) and Autoguard Advantage Corporation (Autoguard) for allegedly wrongfully denying claims under their “Extra Wear & Tear Protection Waiver” (the Waiver). Id. at *2. The Waiver was sold to lessees of vehicles to cover the cost of excess wear and tear charges assessed when returning a leased vehicle. The plaintiffs claimed that the defendants had a practice of denying legitimate claims for reasons not supported by the Waiver’s terms and conditions. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court denied the motion. The defendants argued that class treatment would not be appropriate, because the reasons for denying claims often required subjective review of the individual facts and circumstances of each claim, such as photographs or measurements of the damage, which could not be applied uniformly to all class members. The court, however, examined whether the defendants had a consistent practice of denying claims based on extracontractual reasons, such as “collision damage” or excessive scratches and dents, and found sufficient evidence in the claims reports and deposition testimony supporting the plaintiffs’ theory. Id. at *14-15. The court found that the practice of denying claims based on these reasons was improper under the terms of the Waiver and could be objectively identified in the claims data. The court opined that the proffered testimony from claims adjusters and managers, along with internal reports, confirmed that the defendants’ practice was to wrongfully deny claims for collision damage. The court also stated that the common question of whether the defendants denied claims under the Waiver for non-contractual reasons and whether such denials constituted a breach of contract could be resolved on a class-wide basis. Accordingly, the court granted the plaintiffs’ motion for class certification. A group of consumers in Moore, et al. v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC , 2024 U.S.

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Dist. LEXIS 16388 (N.D. Cal. Jan. 30, 2024), filed a class action alleging that the defendant’s labeling on ChapStick products stating “100% Natural” were misleading because the products contained synthetic ingredients. Id. at *2-3. The plaintiffs alleged claims pursuant to California’s Unfair Competition Law (UCL), False Advertising Law (FAL), Consumers Legal Remedies Act (CLRA), breach of warranty, and for unjust enrichment. The court granted in part and denied in part the plaintiffs’ motion for class certification. In this case, the court made several determinations as to the admissibility of expert testimony that was submitted to establish or refute the four requirements of Rule 23 certification. First, the court excluded the testimony of the GlaxoSmithKline’s expert witness, Dr. Steven Dentali, because it failed to establish how a reasonable consumer would understand the product’s labels. Likewise, the court excluded Dr. Anton Toutov’s testimony because it failed to address a consumer’s perspective on product labeling. The court also denied the defendant’s motion to exclude the plaintiffs’ expert, Dr. Michael Dennis, because the objections GlaxoSmithKline lodged against Dr. Dennis’ survey design and reliability did not actually attack the admissibility of his report. In another loss for the defendant, the court admitted Colin B. Weir’s testimony, because it found Weir’s testimony provided relevant economic analysis on damages and price premiums. Despite its favorable rulings on the admissibility of the testimony of the plaintiffs’ experts, the court ultimately found that the plaintiffs did not satisfy their burden on the predominance requirement of Rule 23. Because the court determined the individual damages calculation and individual variations in consumer experience fell short of predominance, it only certified a class of plaintiffs seeking non-monetary relief. The plaintiffs in Sinatro, et al. v. Barilla America, Inc., 2024 U.S. Dist. LEXIS 94628 (N.D. Cal. May 28, 2024), were consumers of the defendant’s pasta products. The plaintiffs alleged that the defendant’s labeling of pasta products as “ITALY’S #1 BRAND OF PASTA®,” was false and misled consumers into believing the products were made in Italy with Italian ingredients, when the defendant was based in Illinois. Id. at *2. The plaintiffs argued that consumers perceive Italian products, including pasta, as higher quality, and therefore were willing to pay more for Italian products. Accordingly, they argued, defendant Barilla’s deliberate marketing strategy to exploit this perception violated the Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA). The plaintiffs successfully certified a proposed class of California residents who purchased the Barilla products within the past four years. First, Barilla did not contest that the plaintiffs had met the numerosity requirement of Rule 23. Next, the court determined the plaintiffs met the commonality requirement because issues regarding the likelihood of deception and materiality could be resolved through common proof, and damages could be measured on a class-wide basis by evaluating what consumers paid and what they would have paid absent the alleged misrepresentation. Moreover, the court found that common issues regarding the alleged misleading marketing scheme – including the likelihood of deception and materiality – could be resolved with common proof. The plaintiffs also offered an expert report that provided a damages calculation using conjoint analysis to quantify the market price premium associated with the challenged representation, which, plaintiffs submitted, would form the basis for calculating class-wide damages. The court concluded that a class action was a superior method of adjudication over adjudications of small individual recoveries, particularly when those individual recoveries were viewed relative to litigation costs. Accordingly, to promote judicial economy, efficiency, and consistency in standards applied to defendants’ conduct, the court granted the plaintiffs’ motion for class certification. Another group of consumers sued Apple in Orshan, et al. v. Apple Inc ., 2024 U.S. Dist. LEXIS 177689 (N.D. Cal. Sept. 30, 2024), alleging that the technology giant misrepresented the storage capacity of certain of its devices running on its iOS 8 operating system. The plaintiffs purchased 16 GB Apple devices, believing they would receive the full 16 GB of storage for their personal use, unaware that the iOS 8 operating system itself consumed a significant portion of that capacity. The plaintiffs argued that had they known this, they would not have made their purchases, and that this deception by Apple violated the Unfair Competition Law (UCL), the False Advertising Law (FAL), and the Consumer Legal Remedies Act (CLRA). The plaintiffs sought to certify a nationwide upgrade sub-class for those plaintiffs who purchased devices with an iOS 8 operating system pre- installed on it, as well as a California-specific version of a preinstall sub-class. Previously the court had denied the plaintiffs’ motion for class certification, but on a renewed motion, the court granted it in part. As in Moore, et al. v. GlaxoSmithKline , 2024 U.S. Dist. LEXIS 16388 (N.D. Cal. Jan. 30, 2024), the court considered expert testimony when deciding class certification. Here, the court declined to exclude portions of the plaintiffs’ damages expert’s report, finding them sufficiently reliable at this stage of the proceedings for admission into the record on class certification. The court noted that the defendant’s arguments primarily targeted the plaintiffs’ expert’s results rather than his methodology itself, and it determined that a full review of certain financial models

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was inappropriate because the plaintiffs’ expert needed more data to finalize his damage estimates. Regarding the requirements of Rule 23 class certification, the court found that the lead plaintiffs’ claims were typical to those of the proposed class, and that the lead plaintiffs and their counsel could adequately represent the sub- classes’ interests. With typicality and adequacy met, the court examined numerosity and commonality. The court determined that choice-of-law issues would be present if a national class were certified given differing state laws applicable to consumers’ individual contract claims, and therefore individual inquiries would predominate over common ones in a nationwide class. However, as to the California-specific sub-class, the court found that Apple failed to show that other states’ interests would be more impaired than California’s interests because all devices were purchased in California. Accordingly, the court determined that choice-of-law issues defeated predominance for the plaintiffs’ proposed nationwide sub-classes but did not defeat it for the California-pre- install sub-class. As a result, the court granted the plaintiffs’ motion for class certification in part and denied it in part. The court also granted class certification in part in Rushing, et al. v. Williams-Sonoma, Inc., 2024 U.S. Dist. LEXIS 32868 (N.D. Cal. Feb. 21, 2024). The plaintiffs filed a consumer class action alleging that the defendant, Williams-Sonoma, advertised and marketed the thread count in certain of its Bedding Products that was contrary to industry-accepted standards, and was false, deceptive, or misleading to reasonable consumers. The plaintiffs sought to certify: (i) a nationwide class of consumers who purchased bedding, including sheets, sheet sets, pillowcases, duvet covers, and/or shams, directly from Williams-Sonoma; and (ii) a sub-class of California consumers. The court granted the plaintiffs’ motion, in part, certifying a class of California consumers. The court ruled that the claims of the representative plaintiff were not typical of those of the proposed class because the lead plaintiff purchased the Bedding Products in 2011, years before Williams-Sonoma implemented an arbitration agreement in 2016 which required mandatory arbitration for disputes regarding most online purchases. The court disagreed. It reasoned that the lead plaintiff previously challenged the arbitration agreement’s applicability and succeeded in arbitration, and therefore, the plaintiff’s defenses were aligned to those potentially faced by many class members. The court also determined that the proposed classes’ on-going purchases and interest in accurately labeled products were sufficient for standing to seek injunctive relief. The court found that the class consisted of over 50,000 consumers, and thus was sufficiently numerous. The court also determined that the plaintiffs identified several legal and factual questions common to the class, including whether Williams-Sonoma made misleading thread count representations and violated industry standards. The court opined that these questions could be resolved through common evidence. However, the court ruled that certification of a nationwide class seeking injunctive relief was inappropriate because there existed a lack of clear guidance on applying California’s consumer protection laws to a nationwide class against a California defendant. When it evaluated the Rule 23(b) requirements for the California sub-class, the court found that the question of deception regarding thread count and exposure to misleading advertising would predominate over any individual questions. Finally, the court concluded that a class action would be superior to other methods for adjudicating the controversy, considering efficiency and economy. For these reasons, the court granted the plaintiffs’ motion for class certification in part and denied it in part. In Corbett, et al. v. PharmaCare U.S., Inc., 2024 U.S. Dist. LEXIS 58336 (S.D. Cal. Mar. 29, 2024), the plaintiffs filed a class action against the defendant alleging consumer protection and breach of warranty violations related to its Sambucol product, a dietary supplement containing black elderberry extract. The plaintiffs asserted claims under the California’s Unfair Competition Law (UCL), False Advertising Law (FAL), Consumer Legal Remedies Act (CLRA), and Missouri’s Merchandising Practices Act (MPA), as well as claims for breach of express and implied warranties. Specifically, the plaintiffs contended that the defendant’s product labels featured misleading statements regarding immune system support and scientific testing. These statements, the plaintiffs claimed, were deceptive because they claimed that the products contained a new dietary ingredient requiring FDA notification before sale (the NDI claim), and because the products were marketed as disease-mitigating without FDA approval (the disease claim). The court granted the plaintiffs’ motion for class certification. The plaintiffs successfully argued that the merits of their case could be proven through common evidence and that damages could be calculated on a class-wide basis. In support of their arguments, the plaintiffs offered testimony from expert witnesses, who provided reports that opined on common methods of proof for each proposed class. The court found that the proposed methodologies were sufficient to establish commonality. As for damages, the plaintiffs suggested a model with a survey prepared by their expert witness that measured the market price premium attributable to the challenged misrepresentations. The court agreed that the damages model sufficiently incorporated supply-side factors. The court determined that both classes satisfied predominance

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because common questions of law or fact predominated over any individual issues. Finally, the court concluded that a class action was the superior method of adjudication due to the modest amounts at stake for individual class members, the lack of other pending litigation, and the efficiency of adjudicating the claims in a single forum. Accordingly, the court certified the plaintiffs’ proposed classes. The plaintiff alleged that the defendant breached the terms of E1000 aircraft customer reservation agreements in Hanney, et al. v. Epic Aircraft, LLC, 2024 U.S. Dist. LEXIS 85112 (D. Ore. May 12, 2024). Specifically, the plaintiffs asserted that the defendant made material misrepresentations and omissions in connection with the marketing and sale of its E1000 aircraft and brought claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and claims for violations of the Oregon Unlawful Trade Practices Act (UTPA) against Epic Aircraft. The plaintiff filed a motion for class certification and the Magistrate Judge recommended granting the motion. The court thereafter adopted the Magistrate Judge’s recommendation and granted class certification. Epic Aircraft contended that the class did not meet the numerosity requirement under Rule 23(a)(1). The court disagreed. It found that the class of 34 to 50 members would make joinder impracticable, particularly since the class members were geographically dispersed across more than 20 states and countries. Epic Aircraft also opposed class certification by arguing a class action was not superior to other methods for resolving the controversy and that individual actions would be more appropriate given the nature of the claims and the potential recovery. The court rejected this argument too. It found the benefits of judicial economy and efficiency made a class action the superior method of adjudication. The court reasoned that no class members had filed separate lawsuits, and therefore a class action would prevent inconsistent adjudications. Finally, Epic Aircraft asserted that the lead plaintiffs’ claims were not typical, that they could not adequately represent the class, and that individual issues and unique defenses would predominate over common issues. Again, the court rejected the defendant’s arguments. It reasoned that the lead plaintiffs’ claims were sufficiently typical of the class because they were based on the same alleged wrongful conduct by Epic Aircraft. The court also determined that the lead plaintiffs would adequately represent the class, noting that any potential conflicts were speculative and did not undermine adequate representation. Accordingly, the court determined that common questions of law and fact predominated over individual issues, thereby justifying certification under Rule 23. For these reasons, the court granted class certification. In Bush, et al. v. Rust-Oleum Corp., 2024 U.S. Dist. LEXIS 20131 (N.D. Cal. Feb. 5, 2024), the plaintiff brought a class action alleging that the defendant mislabeled its “Krud Kutter” cleaning products as “non-toxic” and “Earth friendly,” when the products actually can cause harm to humans, animals, and the environment, in violation of California consumer-protection laws. Id. at *2. The plaintiff filed a motion for class certification pursuant to Rule 23, which the court granted. The proposed class was defined as all residents of California who purchased the “Krud Kutter” cleaning products within four years of the complaint’s filing date. Id. First, the court found that the class was sufficiently numerous, considering the number of Californians who purchased the products in question. Next, the court determined that common questions of law or fact existed among class members, particularly regarding the alleged misrepresentations on the product labels. The court also ruled that a class action was the superior method for adjudicating the dispute, given that individual litigation would be impractical, and the class members had a shared interest in the outcome. Moreover, the court found that the defendant’s actions, or refusals to act, applied generally to the class, thereby making injunctive relief appropriate for the entire class. Regarding typicality, the court concluded that the lead plaintiff’s claims were sufficiently typical of those of the proposed class because they arose from the same alleged misrepresentations on the product labels. The court also determined that the lead plaintiff and his counsel adequately represented the proposed class’s interests without conflicts of interest. Accordingly, the court granted the plaintiff’s motion for class certification. A group of customers in Lytle, et al. v. Nutramax Laboratories, Inc., 2024 U.S. App. LEXIS 9722 (9th Cir. Apr. 22, 2024), filed a class action alleging that the defendant, Nutramax, violated the California Consumers Legal Remedies Act (CLRA) by marketing Cosequin as promoting healthy joints in dogs, when in fact Cosequin did not provide the health benefits claimed. The district court certified a class of California purchasers of certain Cosequin products who were exposed to the allegedly misleading statements. On appeal, the Ninth Circuit affirmed the district court’s ruling. On appeal, the defendant challenged the district court’s reliance upon the proposed damages model of the plaintiffs’ expert, Dr. Jean-Pierre Dubé, to find that common questions predominated as to injury. The defendant argued that Dr. Dubé did not apply the damages model to the actual proposed class to establish that the damages were susceptible to common proof. The defendant stated that

Consumer Fraud Class Action Review – 2025

pursuant to Rule 23 a class action plaintiff could not rely on an unexecuted damages model to demonstrate predominance when that model is the only evidence of class-wide injury. The Ninth Circuit explained that class action plaintiffs are not required to prove their case through common proof at the class certification stage but must show that they will be able to prove their case through common proof at trial. The Ninth Circuit held that class action plaintiffs may rely on an unexecuted damages model to demonstrate that damages are susceptible to common proof so long as the district court finds, by a preponderance of the evidence, that the model will be able to reliably calculate damages in a manner common to the class at trial. The Ninth Circuit also held that for purposes of class certification, the plaintiffs had adequately demonstrated that a reasonable consumer would have been misled into believing Cosequin would improve their dogs’ joint health, when, in fact, Cosequin provided no such benefits, and that this misrepresentation would have been material as to the entire class. Accordingly, the Ninth Circuit ruled that the district court did not abuse its discretion in concluding that damages and reliance may be proven on a class-wide basis. For these reasons, it affirmed the district court’s certification ruling. In DZ Reserve, et al. v. Meta Platforms, Inc., 2024 U.S. App. LEXIS 6724 (9th Cir. Mar. 21, 2024), a group of advertisers sued Meta Platforms, Inc. (formerly Facebook), alleging that Meta misrepresented the reach of it ads by stating it estimated people reached when, in reality, it estimated accounts reached. The district court granted the plaintiffs’ motion for class certification and certified a damages class and injunctive relief class. Meta appealed the court’s class certifications orders in both classes. As for the damages class, Meta argued that it lacked predominance, but the Ninth Circuit affirmed the district court’s ruling. The Ninth Circuit held that the alleged misrepresentation was common to all the proposed damages-class members, despite possible variations in the disclosure of information. The Ninth Circuit also opined that the element of justifiable reliance was capable of class-wide resolution because when the same material misrepresentations are communicated to each member of a class, an inference of reliance existed for the entire class. The Ninth Circuit explained that because this presumption of reliance – under California law – applied to each member of the class, the class members’ reliance was a common question provable by common evidence. Meta also argued against certification on the basis that the named plaintiffs did not have claims typical to those of the damages-class and that they were not adequate to represent that sub-class due to alleged issues with the lead plaintiffs’ credibility. The Ninth Circuit disagreed. It affirmed the district court’s findings on typicality and adequacy and held that they were issued without error. Regarding the injunctive relief class, Meta asserted the proposed sub-class of plaintiffs lacked Article III standing to seek injunctive relief under California’s Unfair Competition Law (UCL). The Ninth Circuit largely agreed with Meta. First, it held that lead plaintiff DZ Reserve lacked standing to seek injunctive relief. Next, it held that the district court needed to consider whether another named plaintiff, Cain Maxwell, had Article III standing to seek an injunction. The Ninth Circuit acknowledged that the district court had no occasion to consider the record or to analyze Meta’s argument against Maxwell’s standing to seek injunctive relief, but due to the standing issues on appeal, remand was appropriate for the district court to analyze the Article III standing of the lead plaintiff Maxwell as well as the proposed sub-class of injunctive-relief plaintiffs. Accordingly, the Ninth Circuit affirmed the district court’s certification of the damages-class but vacated and remanded the certification of the injunctive relief-class for further proceedings regarding standing. The plaintiff in Hilario, et al. v. Allstate Insurance Co., 2024 U.S. App. LEXIS 3424 (9th Cir. Feb. 14, 2024), filed a class action for claims of negligence and unfair and fraudulent business practices under § 17200 of the California Business and Professions Code, alleging that the defendant, Allstate, “artificially inflated premiums” for many California homeowners by double counting built-in garage space when calculating total square footage that was insured. Id. at *1. The district court granted the plaintiff’s motion for certification of a class of “California homeowners’ insurance policyholders, as of March 2019, who paid premiums, had at least one built-in garage, and whose garage square footage was counted twice in calculating insured square footage and premiums.” Id. at *1-2. Allstate appealed the class certification order, but, ultimately, the Ninth Circuit affirmed the district court’s decision. For the first time on appeal, Allstate argued that the plaintiff lacked standing to bring her claim because she had not suffered an injury-in-fact. Allstate argued the plaintiff lacked an injury-in-fact because the true square footage of her house was always higher than Allstate’s estimate, the metric that Allstate used to calculate the insurance premiums. About one month before it issued its decision in DZ Reserve, et al. v. Meta Platforms, Inc., 2024 U.S. App. LEXIS 6724 (9th Cir. Mar. 21, 2024), the Ninth Circuit rejected Allstate’s standing arguments. The Ninth Circuit held that the plaintiff paid a higher insurance premium than she otherwise would have because Allstate artificially inflated its square footage estimate of her home by double-counting her garage space, which, according to the Ninth Circuit, constituted an injury-in-fact to confer Article III standing.

Consumer Fraud Class Action Review – 2025

Allstate argued that the class was too broadly defined because it could have encompassed uninjured members. The Ninth Circuit was equally unpersuaded by this argument because, it reasoned, “even a well-defined class may inevitably contain some individuals who have suffered no harm as a result of a defendant’s unlawful conduct.” Id. at *3 Finally, Allstate argued that the district court’s determinations as to Rule 23 typicality, predominance, and superiority were all erroneous. Reviewing the underlying order for abuse of discretion, the Ninth Circuit held that the district court’s decisions were not illogical, implausible, or unsupported by the record. Id. at *3-4. During its review of the district court’s predominance and superiority analysis, the Ninth Circuit stated that a denial of class certification “based on manageability concerns [relating to] the need to individually calculate damages” would be improper on superiority grounds. Id. at *4. Accordingly, the Ninth Circuit rejected Allstate’s argument that the class failed to meet the predominance and superiority requirements. For these reasons, the Ninth Circuit affirmed the district court’s order granting certification of the plaintiff’s proposed class. 2. Motions For Class Certification Denied In 2024, numerous courts declined to certify putative classes of consumers who contended they were defrauded by the products or practices of various businesses. While the reasons for the courts’ denials varied, a few bases were frequently cited to included lack of standing to bring suit seeking equitable relief for failure to establish an injury-in-fact; failure to establish predominance as required by Rule 23; and a failure to demonstrate that damages could be calculated on a class-wide basis such that proceeding as a class action was the superior mode of litigation over many individual suits for less value. The court denied class certification in Hall-Landers, et al. v. New York University , 2024 U.S. Dist. LEXIS 221502 (S.D.N.Y. Dec. 6, 2024). The plaintiffs filed a class action seeking a tuition refund because of the transition by the defendant, New York University (NYU), from in-person to remote learning during the Spring 2020 semester during the COVID-19 pandemic. The plaintiff filed a motion for class certification, and the court denied the motion. The plaintiff was enrolled in NYU’s Tisch School of the Arts in dance, specifically for the on-campus experience that included access to in-person classes, physical therapy services, and studio work. However, due to the pandemic, NYU moved to fully remote instruction in March 2020, and thus the plaintiff and other students lost access to in-person resources. The plaintiff paid approximately $27,964 in tuition for the Spring 2020 semester, with additional fees for housing, insurance, and services that were tied to the on-campus experience. The plaintiff asserted that she and other potential class members would not have paid such a high fee had they known the courses would be delivered remotely, and that their dance training was severely impacted, as remote learning could not replicate the in-person experience. In response, NYU refunded students for room and board, as well as some fees tied to in-person services, but did not offer a general tuition refund. Instead, students were asked to request refunds for tuition on an individual basis, which the plaintiff did not do. The plaintiff sought to represent a class consisting of all undergraduate students at NYU during the Spring 2020 semester who paid tuition and fees for in-person services and experiences that were not provided after the shift to online learning. The court ruled that the plaintiff’s class failed to meet the predominance and superiority requirements of Rule 23(b). The court determined that the plaintiff could not establish that common issues of law or fact predominated over individual issues, as the court would be required to make individualized determinations in the analysis of each student’s contract, injury, and damages, which would undermine class-wide treatment of the claims. The court opined that for each student, it would need to review the student’s particular program or courses in which they were enrolled, the marketing materials they relied on, and whether in-person education was promised for their specific situation. The court also reasoned that there was no uniform contract and that the terms of any implied contract could not be applied across the class as a whole. Moreover, the court found that because NYU continued to provide education, albeit remotely, determining whether a breach occurred would require individual examinations of each student’s course of study and how the switch to remote learning impacted them. Accordingly, the court denied the plaintiff’s motion for class certification. In Hamm, et al. v. Mercedes-Benz USA, LLC, 2024 U.S. Dist. LEXIS 112880 (N.D. Cal. June 26, 2024), the plaintiffs filed a consumer class action alleging that the defendant, Mercedes-Benz, concealed defects in its vehicles’ transmission systems in violation of the California Consumer Legal Remedies Act (CLRA). The defendant moved to dismiss the action and moved for summary judgment, while the plaintiffs moved for class certification. The court granted, in part, the defendant’s motion to dismiss and motion for summary judgment, and the court denied the plaintiffs’ motion for class certification in its entirety. In its motion to dismiss, the

Consumer Fraud Class Action Review – 2025

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