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July 2018

Southern California Litigation Team Defeats Class Certification for a Nutritional Products Client

Gordon Rees Scully Mansukhani partners Richard Sybert and Hazel Pangan, and associates Patrick Mulkern and Conor McElroy recently obtained the denial of class certification in a major putative national class action involving weight loss supplements. The proposed class plaintiffs alleged claims for false advertising, breach of warranty, misrepresentation, fraud, unfair competition, and violations of the California Consumer Legal Remedies Act (“CLRA”) against the firm’s client, a leading nutritional supplements company. 

Coming into the case after a long-fought battle on appeal, which resulted in a reversal of a prior judgment approving class settlement and remand of the case, Gordon & Rees' litigation team assembled a complex record in opposition to class certification, being pressed by no fewer than three major class action law firms. Gordon & Rees attorneys challenged class certification on multiple grounds, including the lack of ascertainability of the proposed class given the multiple direct and resale outlets where the product could be purchased; and the lack of typicality and commonality between the proposed class representatives and the class because of the various individualized inquiries as to the specific advertisements and statements seen and relied upon by the class, compliance with dosage recommendations, and varying purchase prices.  The Gordon & Rees team also argued, and the court agreed, that the proposed class representatives failed to show that they would adequately represent the interests of the class. 

In support of the opposition, Gordon & Rees assembled multiple reports and declarations from various experts, including marketing and survey experts, who opined about the multitude of advertisements of the product in various media over the class period, and the various and diverse factors that influence consumers’ purchasing decisions for weight loss products. The team also submitted a report from a damages expert to establish that the plaintiffs’ proposed damages model was fatally flawed. 

The San Diego Superior Court issued a tentative ruling denying class certification, with Rich Sybert handling the hearing and argument at which the denial was confirmed.  This decision likely marks the end of this hard-fought battle that began in 2013, and may serve to bar or preclude subsequent putative class actions against the client that have been stayed pending the outcome of this case.     

T. Conor McElroy
Patrick J. Mulkern
Hazel Mae B. Pangan
Richard P. Sybert



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