Decertification of Yogurt Digestive Health Action Denied

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

The federal district court in Santa Ana, California, has refused to decertify a class of YoPlus yogurt purchasers who asserted that General Mills and Yoplait USA falsely represented that YoPlus yogurt products promoted digestive health, in violation of California’s Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA). The court ealier held that class certification was warranted under both the U.S. Supreme Court’s decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011) and the Ninth Circuit’s recent decision in Stearns v. Ticketmaster, ADVERTISING LAW GUIDE ¶64,386, which directly addressed the issue of class certification of claims brought pursuant to the UCL and the CLRA.

The claims met the commonality and predominance requirements for class certification because they presented core issues of law and fact, and those issues predominated over the issues in the case that would have to be determined on an individual basis, according to the court. These common issues included (1) whether General Mills communicated a representation—through YoPlus packaging and other marketing, including television and print advertisements—that YoPlus promoted digestive health; (2) if so, whether that representation was material to individuals purchasing YoPlus; (3) if the representation was material, whether it was truthful; in other words, whether YoPlus does confer a digestive health benefit that ordinary yogurt does not; and (4) if reasonable California consumers who purchased YoPlus were deceived by a material misrepresentation as to YoPlus’ digestive health benefit, what is the proper method for calculating their damages.

Neither Wal-Mart nor Ticketmaster contradicted the findings of commonality and predominance in this case, the court determined. The claims centered upon a common question: did the defendants state a false claim of a digestive health benefit that a reasonable person would have been deceived by, for purposes of the UCL, or would have attached importance to, for purposes of the CLRA? While individualized determinations may be required to calculate damages, those determinations did not warrant decertification. The common question was sufficiently central to satisfy commonality, and, when compared to individualized aspects of the suit, still predominated.

The April 20, 2011, and the September 12, 2011, decisions in Johnson v. General Mills, Inc., SACV 10-00061, will appear at ADVERTISING LAW GUIDE ¶64,412 and ¶64,413.