Challenging Class Cert. When Plaintiffs Missed 'False' Ad

Law360 (May 12, 2021, 6:35 PM EDT) -- In putative class actions alleging false advertising, plaintiffs often argue that class certification is appropriate because the language being challenged appeared on the defendant's marketing materials or product label, thereby making the class members' experience — and the question or questions to be resolved — susceptible of common proof.

These plaintiffs invariably claim that individualized questions of deception and reliance do not defeat certification, because consumer protection statutes employ an objective "reasonable consumer" test, that does not turn on what each individual class member actually thought or believed.

Plaintiffs sometimes carry the day on this point. For example, on March 24,...

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