By Hailey Konnath

Law360 (April 29, 2021, 10:31 PM EDT) -- A California federal judge on Thursday certified a class of consumers who purchased CVS brand hand sanitizer that they say fails to live up to its promise of killing 99.99% of germs, ruling that the false advertising and negligent misrepresentation claims in the suit are ideal for class treatment.

Named plaintiff Joseph Mier alleges that the labeling on CVS Health's hand sanitizers is misleading because there are a number of pathogens the product cannot destroy. Mier had asked the court to certify a class of all California residents who bought the hand sanitizer between 2016 and the class certification order. 

CVS has put forth a slew of arguments as to why the class shouldn't be certified, including that that Mier's class was overly broad and that he hadn't established that more than 40 people bought the hand sanitizer based on the allegedly misleading label.

But U.S. District Judge David O. Carter rejected those arguments Thursday, holding that CVS was conflating the materiality requirement with numerosity.

"Proof that statements were material to the plaintiff purchaser class, and that class members relied on those statements in making purchasing decisions, does not always require individualized evidence for each class member," the judge said.

And the court already held that Mier had alleged sufficient facts for a reasonable juror to find that the front label was misleading to a reasonable customer in its March order largely denying CVS' motion to dismiss, Judge Carter said.

The judge also rejected CVS Health's contention that it neither manufactured, distributed or sold the hand sanitizer product. CVS Health had argued that it is a mere holding company and CVS Pharmacy Inc. is the entity that controls stores and store-brand products.

But Judge Carter sided with Mier, who had pointed to a recent U.S. Securities and Exchange Commission filing in which CVS Health cited its "strategy of innovating with new and unique products and service" and said that it — not a subsidiary — launches new brands and product offerings.

Mier has also successfully asserted that there is a common question at the heart of his action because each member of the class was uniformly exposed to CVS' packaging when purchasing the hand sanitizer, he said. And that satisfies the class's commonality requirement.

Judge Carter also appointed Mier as class representative and his attorneys at Wilshire Law Firm PLC as class counsel.

Thiago Coelho, counsel for the class, told Law360 on Thursday that "millions of American customers have been misled by companies selling hand sanitizer with unproven claims."

"[W]e will bring every single one of those companies to justice," Coelho said.

Mier first lodged his suit in California state court in May 2020, and it was removed to federal court in October. Later that month, CVS argued that the suit should be tossed, slamming Mier as an "opportunist" who hasn't even said he used the product, let alone that he was injured by the purported false advertisement.

In its motion to dismiss, the drugstore chain urged the California federal court to throw out claims by Mier, saying no reasonable consumer would expect the hand sanitizer to kill 99.99% of all germs known to mankind, especially as the back of the label clarifies that it works on "99.99% of many common harmful germs & bacteria."

Judge Carter trimmed Mier's suit in March, throwing out his intentional misrepresentation claim but preserving all of his other claims, according to the case docket.

In his March motion for class certification, Mier said that CVS has sold more than $7 million worth of the hand sanitizer during the class period, so Mier argued there is "clearly" a large number of people in the class and more than enough to justify class treatment.

He also argued that the central questions in the case — whether the label on the products are misleading and whether reasonable consumers would rely on that labeling — are subject to classwide evidence, which he proffered in the form of his expert witnesses.

Mier's motion cited depositions from Philip M. Tierno Jr., a microbial expert who testified that the sanitizer does not kill 99.99% of germs, as well as marketing expert Bruce Silverman, who testified that consumers would find the claim material when deciding whether to purchase the product.

A CVS representative didn't immediately return a request for comment late Thursday.

The class is represented by Justin F. Marquez, Thiago Coelho, Robert Dart and Cinela Aziz of Wilshire Law Firm PLC.

CVS is represented by Carol R. Brophy and Melanie Ayerh of Steptoe & Johnson LLP.

The case is Mier v. CVS Health, case number 8:20-cv-01979, in the U.S. District Court for the Central District of California.

--Additional reporting by Mike Curley. Editing by Jay Jackson Jr.

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