Ninth Circuit rejects class certification because ads differed

Cabral v. Supple LLC, — Fed.Appx. —-, 2015 WL 3855142,
No. 13–55943 (9th Cir. June 23, 2015)
The court of appeals vacated the certification of a class of
purchasers of a dietary supplement. The certified class was “[a]ll persons
residing in the State of California who purchased [the supplement] for personal
use and not for resale since December 2, 2007,” for the usual California
statutory claims.  The court of appeals
found that predominance was wanting, because it was “critical” that the
misrepresentation at issue be made to all class members.  The record here didn’t support a
determination that all the class members “saw or otherwise received” the
misrepresentation that the supplement was “clinically proven effective in
treating joint pain.” “While some deviations from precise wording in the
language of advertisements or representations might not be fatal to class
certification, advertisements that did not declare the [supplement] to be ‘clinically
proven effective in treating joint pain’ are a far cry from advertisements that
did.” The court of appeals expressed no opinion on whether a different class
could be certified.

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