Thursday, March 4, 2010
Court of Appeal Overturns Class Certification in Suit Over Mouthwash
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court judge certified an overbroad class in a suit over claims of the effectiveness of defendant’s mouthwash, the Court of Appeal for this district has ruled for the second time.
Div. Three yesterday certified for publication its Feb. 25 opinion granting Pfizer Inc.’s petition for writ of mandate and directed that class certification be denied in the suit by Steve Galfano.
Galfano alleges that the drug maker violated the unfair competition and false advertising laws by representing that Listerine was just as effective as dental floss in reducing plaque and preventing gingivitis.
Judge Carl West certified a class made up of all Listerine purchasers in California from June 2004 through Jan. 7, 2005.
The Court of Appeal ruled in 2006 that the class was overbroad, but the California Supreme Court sent the case back so that the panel could reconsider it in light of In re Tobacco II Cases (2009) 46 Cal.4th 298, which held that Proposition 64’s limitation of standing to sue for UCL violations to those actually injured by the violation does not apply to unnamed class members.
Presiding Justice Joan Dempsey Klein, writing for the court on Feb. 25, said the Tobacco II ruling does not compel a different result in Galfano’s case than the one the court reached four years ago.
The Supreme Court ruling allows a trial court to certify a class whose members were exposed to false or deceptive advertising “without individualized proof of deception, reliance, and injury,” Klein acknowledged. “Be that as it may,” the presiding justice explained, “one who was not exposed to the alleged misrepresentations and therefore could not possibly have lost money or property as a result of the unfair competition is not entitled to restitution.”
Calling the class certified by West “grossly overbroad,” Klein elaborated:
“The record reflects that of 34 different Listerine mouthwash bottles, 19 never included any label that made any statement comparing Listerine mouthwash to floss. Further, even as to those flavors and sizes of Listerine mouthwash bottles to which Pfizer did affix the labels which are at issue herein, not every bottle shipped between June 2004 and January 2005 bore such a label. Also, although Pfizer ran four different television commercials with the ‘as effective as floss’ campaign, the commercials did not run continuously and there is no evidence that a majority of Listerine consumers viewed any of those commercials. Thus, perhaps the majority of class members who purchased Listerine during the pertinent six-month period did so not because of any exposure to Pfizer’s allegedly deceptive conduct, but rather, because they were brand-loyal customers or for other reasons.”
She distinguished those facts from those of Tobacco II, which involved evidence of “a massive, sustained, decades-long fraudulent advertising campaign,” Klein explained.
The jurist went on to say that Galfano was an inadequate class representative because he testified that he did not buy Listerine based on any advertising, but rather because of its distinctive red label. “Because the various commercials and labels contained different language, with some expressly advising consumers to continue flossing, Galfano’s testimony as to his reaction to the Listerine red label is not probative of his, or absent class members’, reaction to different language contained in television commercials and other labels,” Klein wrote.
The case was argued on appeal by Thomas A. Smart of Kay Scholer for Pfizer and R. Duane Westrup of Westrup Klick for the plaintiff.
The case is Pfizer Inc. v. Superior Court (Galfano), 10 S.O.S. 1086.
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