California Courts Agree, A Class Cannot Be Certified If It Includes Uninjured Class Members

Even meritless class actions can create hydraulic pressure to settle. If plaintiffs manage to get past a motion to dismiss, the flurry of thinly reasoned decisions in California federal courts can discourage defendants from fighting when potential exposure reaches seven or eight figures. Two recent decisions, however, provide defendants with new ammunition for a vigorous defense.

First, in Olean Wholesale Grocery Cooperative Inc. v. Bumble Bee LLC,²  the U.S. Court of Appeals for the Ninth Circuit held that a plaintiff fails to show predominance when there is a non-de minimis number of uninjured class members: “Although we have not established a threshold for how great a percentage of uninjured class members would be enough to defeat predominance, it must be de minimis.” Surveying the case law, the Ninth Circuit explained that “reported decisions involving uninured class members suggest that 5% to 6% constitutes the outer limits of a de minimis number.” Certainly, if “more than one-fourth of the class may have suffered no injury at all, the district court cannot find by a preponderance of the evidence that ‘questions of law or fact common to class members predominate over any questions affecting only individual members.’ ” 

Equally significant, Olean requires district courts to “rigorously analyze” the statistical evidence and “to resolve the competing expert claims” on the reliability of Plaintiff’s statistics and the number of uninjured class members. Id. at 28-30. The court cannot leave for the jury the question of “which expert is correct.” Id. at 30. As a result, the plaintiff bar’s go-to strategy of presenting a flawed survey from a putative “expert” — or no survey at all — is no longer viable.

Second, the California Superior Court denied class certification in a false-advertising case involving Bayer’s One A Day gummy multivitamins. See Brady v. Bayer et al., Case No. 30-2016-00839608-CU-MC-CXC, Slip op. at 14 (April 23, 2021). Plaintiff claimed the brand name was deceptive because the serving size was two gummies (as it is for all gummy multivitamins on the market), and he argued that this purported misrepresentation presented a common issue warranting certification. But even assuming materiality for the sake of argument, the court determined that Bayer—which was represented by Sidley Austin LLP—successfully rebutted the inference of reliance allowed under California law. Significantly, Bayer’s survey evidence showed that 80% of consumers did not believe the brand name communicated anything about serving size, and over 90% did not think the brand name suggested a serving size of one gummy.³ Thus, the court did “not see how Plaintiff can establish liability on a classwide basis” and held that if the class were certified, “[t]he case would … devolve into a series of individualized inquiries into each class member’s reliance on the gummies’ labeling, which destroys commonality.”⁴

Both cases demonstrate that even in reputedly plaintiff-friendly forums, class actions can be defeated with a strong defense. To certify a class, plaintiffs must present persuasive experts or other equally compelling evidence — which is seldom available — and even then, a well-considered defense and expert strategy can defeat certification. These decisions should reinvigorate defendants to pursue robust survey design and dismantling the plaintiff’s expert.

*The authors of this Sidley Update represented Bayer in this matter.

¹Alexander and the Terrible, Horrible, No Good, Very Bad Day, Judith Viorst (1972).

²19-56514, Slip Op. at 32 (9th Cir. 2021). 

³Brady v. Bayer et. al, Case No. 30-2016-00839608-CU-MC-CXC, Slip op. at 12 (April 23, 2021).  

⁴Id.