The U.S. District Court for the Central District of California denied class certification in a product mislabeling case after holding that named plaintiff lacked credibility on a material issue and, therefore, could not be an adequate class representative under Rule 23(a)(4). Plaintiff’s putative class action complaint alleged that manufacturer Boiron violated, among other laws, the California Unfair Competition Law and the Consumers Legal Remedies Act by misrepresenting on its labels for “Oscillococcinum” or “Oscillo” that its product “temporarily relieve[s] flu-like symptoms” and reduces their duration and severity. Plaintiff filed his complaint on behalf of all California consumers who purchased Oscillo in reliance on Boiron’s allegedly misleading labels.

During deposition—directly contrary to the allegation in his complaint that he relied on Boiron’s labeling in making his purchase—plaintiff stated that he did not read the label until after he had purchased and finished using the product a week later and, furthermore, that he bought the product based on a GNC employee’s recommendation, not on what the label stated. Plaintiff later changed his testimony at deposition, including a 180-degree reversal in his story after a break and consultation with his counsel. Plaintiff admitted on cross examination that his conversation with counsel is what “refreshed his recollection” as to what had transpired.

The court held, agreeing with Boiron, that plaintiff lacked credibility on an issue central to the case, and that this lack of credibility could jeopardize the interests of other class members. In its order denying certification, the court found that whether plaintiff “read the Oscillo label before, rather than after, purchasing the product [was] critical to his claim” because under both the California Unfair Competition Law and the Consumers Legal Remedies Act, a plaintiff must show that he relied on, and was damaged by, defendant’s misleading label. Accordingly, the court held that plaintiff could not satisfy Rule 23(a)(4)’s adequacy requirement and denied class certification. The court did not reach Boiron’s Rule 23(b)(3) predominance arguments because plaintiff could not meet the requirements of Rule 23(a)(4). The court also denied Boiron’s motion for sanctions and vexatious litigation, holding that Boiron failed to show that plaintiff or his counsel had acted in bad faith in pursuing the case.

Jovel v. Boiron, Inc., Case No. 11-10803 (C.D. Cal. Feb. 27, 2014).