A federal court in Florida has denied the plaintiff’s motion for class certification in a suit claiming that dietary supplement “VPX Meltdown Fat Incinerator” is ineffective for its advertised purpose and is falsely advertised. Karhu v. Vital Pharms., Inc. d/b/a VPX Sports, no. 13-60768 (U.S.. Dist. Ct., S.D. Fla., order entered march 3, 2014).

The most significant obstacle to class certification was, according to the court, that the proposed classes—nationwide and new york—were not ascertainable. With direct sales to consumers infrequent, the court noted that the company “does not have a record of the identities of most members of the proposed Classes.”the court also determined that purchasers would have been unlikely to retain purchase receipts, and it was unwilling to “trust individuals to identify themselves as class members through the submission of affidavits,” because this would deprive VPX of due process rights and require mini-trials if the company were allowed to contest each individual affidavit. “in short, [the plaintiff ] has not suggested any practical means of verifying class membership through existing evidence, and the Court will not allow individuals to identify themselves as class members solely upon a sworn statement.” 

While the court further determined that the plaintiff had satisfied the prerequisites of Federal rule of Civil procedure 23(a)—numerosity, commonality, typicality, and adequacy of representation, it ruled that common issues do not predominate on the magnuson-moss Warranty act, breach of express warranty, unjust enrichment, and unfair trade practices claims for purposes  of a nationwide class, because state laws differ and the applicable law would be the law of the state where the product was purchased. Common issues predominated only with respect to the new york subclass under its unfair trade practices statute. refusing to recast the complaint as a statewide action, the court found that a multistate class action was unmanageable and impractical, thus failing to meet the superiority prong of rule 23(b)(3).

The court also determined that the plaintiff failed to present a proper rule 23(b)(2) action for declaratory or injunctive relief, because that relief “takes a back seat to the apparently principal aim of the lawsuit: to recover damages based upon the amount each individual class member paid for an ineffective product.” and when a plaintiff seeks both monetary and injunctive or declaratory relief, “a rule 23(b)(2) class is only appropriate if the monetary relief is merely incidental to the other relief. monetary relief is ‘incidental’ when the primary aim of the lawsuit is to obtain a generally applicable group remedy. Group remedies tend to be those pursued by a cohesive class sharing a relevant preexisting legal relationship or common trait, such as race or gender. By way of contrast, the proposed Classes share no significant preex- isting relationships beyond the purchases that form the basis for this suit.”