Common sense tells you that you can’t be injured by something you never bought.  This must be covered in Standing 101, right?  Believe it or not, this issue is being debated right now in the California consumer class action context.  Here’s what’s going on.

Standing as a Threshold Issue

Courts are grappling with the issue of whether (and when) a named plaintiff in a class action should be able to sue on behalf of purchasers of a product that he/she didn’t buy.  The principles of standing would appear to make this argument an uphill battle.  Not only does Article III require plaintiffs to identify an injury that affected them in a “personal and individual way” (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)), but injury is also a required element under consumer statutes like the UCL and CLRA.

So it’s no surprise that a number of courts have denied plaintiffs’ standing in the class action context on this basis.  See, e.g., Carrea v. Dreyer’s Grand Ice Cream, Inc., 2011 WL 159380, at *2-3 (N.D. Cal. Jan. 10, 2011) (no standing where named plaintiff didn’t buy Dibs ice cream product); Johns v. Bayer Corp., 2010 WL 476688, at *13 (S.D. Cal. Feb. 9, 2010) (plaintiff “cannot expand the scope of his claims to include a product he did not purchase”).

Plaintiffs’ Strategy:  Make it a Class Certification Issue

So what is plaintiffs’ response?  Sufficient similarity of the products.  For example, in Astiana v. Dreyers Grand Ice Cream, Inc., 2012 WL 2990766, *13 (N.D. Cal. July 20, 2012), the court denied a motion to dismiss claims that were based on products the named plaintiffs didn’t purchase because plaintiffs were also challenging the same kind of food products (ice cream) as well as the same labels for all of the products (“All Natural Flavors”).  The court found the products were basically the same except for differences in flavor, and that further analysis of the issue should be reserved for class certification.

Johnson & Johnson:  Recent Motion Seeks a Ruling on the Standing Issue

Johnson & Johnson recently filed a motion to dismiss a putative class action targeting some of its sunscreen products (Contreras v. Johnson & Johnson Consumer Companies, Inc., Case No. 12-CV-7099 GW (SHx) (C.D. Cal.)).  The motion seeks dismissal because the plaintiff admitted she had purchased only one of the four sunscreen products in question, and thus, she lacked standing to bring any claims based on the unpurchased products.  Distinguishing Astiana, Johnson & Johnson argues that the court there did not address the more fundamental question:  “whether the fact that a case is brought as a putative class action can justify allowing claims to proceed that would unquestionably fail if brought on an individual basis.”

Know Your Product

Until the Ninth Circuit resolves this issue, attorneys defending against these types of claims should be prepared to explain the material differences between their clients’ various products that may be the subject of a single action.  As one court recently stated, “After all, just because an Old Fashioned and a Manhattan both have bourbon doesn’t mean they’re the same drink.”  Dysthe v. Basic Research LLC, 2011 WL 5868307 (C.D. Cal. June 13, 2011).