The Ninth Circuit has held that a district court abused its discretion in certifying a class based on allegedly false health claims because not all class members saw the advertising. The Ninth Circuit said that the trial court thus erred in ruling that the predominance requirement was satisfied: “[I]n order for the issue to predominate, it must at least be common and there must be cohesion among the class members. It is upon those rocks that the district court’s certification founders.” Cabral v. Supple LLC, No. 13-55943 (9th Cir. June 23, 2015) (citations omitted).

The district court held that the common issue that predominated was whether the defendant, Supple LLC, had misrepresented to the class members that its dietary supplement, which contained glucosamine hydrochloride and chondroitin sulfate, was “‘clinically proven effective in treating joint pain.’” But that claim was not made in all the advertising for the product. The Ninth Circuit noted that while “some deviations from precise wording . . . might not be fatal to class certification, advertisements that did not declare [the supplement] to be ‘clinically proven effective in treating joint pain’ are a far cry from advertisements that did.”

Accordingly, the trial court erred in certifying the class: “In a case of this nature, one based upon alleged misrepresentations in advertising and the like, it is critical that the misrepresentation in question be made to all of the class members.” The Ninth Circuit cited both federal and California state court decisions in support of this holding. Cabral, citing Mazza v. Am. Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012); Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011); Davis-Miller v. Auto. Club of S. Cal., 201 Cal. App. 4th 106, 124-25 (2011) (CLRA and UCL);Fairbanks v. Farmers New World Life Ins. Co., 197 Cal. App. 4th 544, 562 (2011) (UCL); Pfizer Inc. v. Super. Ct., 182 Cal. App. 4th 622, 629-30 & n.4, 631-32 (2010) (UCL and FAL), and Cohen v. DirecTV, Inc., 178 Cal. App. 4th 966, 980-81 (2009) (UCL and CLRA).