A federal court recently denied certification to a proposed nationwide class in a suit alleging defective dog treats. See Holt, et al. v. Globalinx Pet LLC, et al. (C.D. Cal., 1/30/14). Differences in applicable state laws was a central factor.
The named class plaintiff, a resident of Texas, sued Globalinx Pet alleging her dog was injured by ingesting dog treats containing chicken jerky produced in China. Specifically, plaintiff began feeding the chicken jerky dog treats to her dog, Tucker, one to three times a week in 2011-12. Tucker was a small mixed breed dog and about 8 years old at the time. (Although there is plenty of data about the number and distribution of purebred dogs in North America, such robust data is not really available for mixed breed dogs. The estimates are that “mutts” make up 53% of the dogs in the United States.) Tucker fell ill, and after blood tests was reported to be in “acute kidney failure,” which resulted in Tucker being put down.
Plaintiff alleged that the dog treats’ packaging claimed that the food was “made from ‘100% Natural
Ingredients’ [salt, vegetable glycerin, and chicken] that were ‘delicious’ and had a ‘taste dogs
love.’ . . . [and were] ‘wholesome and nutritious.’” Plaintiff concluded that these statements represented that the jerky dog treats were “safe” and “enjoyable” for dogs to eat. However, plaintiff alleged that in past years, the FDA has warned about dog treats containing chicken jerky from China. Furthermore, news reports from around the world had allegedly discussed the alleged dangers of Chinese chicken jerky dog food products. Defendants’ pet food packaging did not warn consumers about the information from the FDA, claimed the plaintiff.
Plaintiff filed her amended complaint alleging eight causes of action for (1) Violation of implied warranties; (2) Violation of express warranties; (3) Common law fraud; (4) Unjust Enrichment; (5) Negligence; (6) Strict products liability (defect); (7) Strict products liability (failure to warn); and (8) Violation of the state Deceptive Trade Practices—Consumer Protection Act. And then a series of proposed classes defined similarly as all persons in the United States (except Louisiana and Puerto Rico) who purchased any dog treat product containing chicken jerky manufactured or sold by defendants and containing chicken imported from China.
The court noted that a party seeking class certification must affirmatively demonstrate compliance
with Rule 23—that is, the party must be prepared to prove that there are in fact sufficiently
numerous parties and common questions of law or fact. Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541, 2550 (2011). This requires a district court to conduct a “rigorous analysis” that frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.” Id.
In order for a class action to be certified under Rule 23(b)(3), the class representatives must show “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The predominance inquiry tests whether proposed class actions are sufficiently cohesive to warrant adjudication by representation, and when the causes of action in a complaint are based on state statute or common law, material differences in state law across the jurisdictions covered by the class may compound the disparities among class members from different states and reveal that a proposed class fails to satisfy the predominance requirement. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189, amended by 273 F.3d 1266 (9th Cir. 2001). The Ninth Circuit has held that a nationwide class should not be certified if materially different consumer protection laws would require different state laws to govern different class plaintiffs, based on a conflict of law analysis using the facts and circumstances of each specific case. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 590, 594 (9th Cir. 2012).
Here, while the plaintiff maintained that the laws of California should apply to the proposed nationwide classes, defendants cataloged a series of material differences between the consumer protection laws of several states and those of California. By the time of certification, the court had already performed a case-specific conflict of law analysis and determined that Texas law would govern four of the named plaintiff’s causes of action. In addition, defendants outlined a number of ways in which California’s consumer protection laws differed from those of other states, based on plaintiff’s claims in this particular case. For example, at least three states have passed comprehensive product liability statutes that preempt common law causes of action based on
harms caused by a product, which would certainly materially affect the warranty and strict product liability claims of potential class plaintiffs in those states.
Because of the material differences between the laws of California and the laws of other states, and the holding that the named plaintiff herself would be subject to different laws than a California plaintiff, the court concluded that the alleged common questions did not predominate over questions affecting individual class members. Nor could the court consider the plaintiff’s proposed nationwide classes a superior method for the fair and efficient adjudication of the present controversy. See Zinser, 253 F.3d at 1192 (“We have previously held that when
the complexities of class action treatment outweigh the benefits of considering common issues
in one trial, class action treatment is not the superior method of adjudication.”)
Class certification denied.