Federal judges often find themselves confronting a familiar conundrum in consumer class actions that challenge misleading practices. The typical plaintiff will file a suit after somehow discovering that one of the defendant’s advertisements, product labels, or other representations is “false” or “misleading.” The self-nominated “representative” asks the court to certify a class of all consumers “similarly situated”—that is, other consumers who bought the product or were exposed to the misleading message. The plaintiff then seeks not only compensation for the class, but also an injunction or ban prohibiting the defendant from making the challenged claims going forward.
Since an injunction is to stop the likelihood of irreparable future harm, the deceptively tricky question that judges face is whether the named plaintiff can seek an injunction prohibiting the misleading claims when she herself is no longer at risk of being deceived by something she now knows is false. In other words, if the named plaintiff won’t get fooled again, does she have standing to obtain injunctive relief on the class’s behalf? One California Federal court’s take: fool the plaintiff twice, shame on him.
By way of background, other courts have reached a workaround to this problem by allowing the named plaintiff to seek an injunctive, but requiring her first to allege and testify that she would be willing to purchase from the defendant again if the advertising was no longer misleading. This solution strikes a pragmatic—but delicate—balance between the provisions of state consumer fraud laws authorizing injunctions, on the one hand, and the constitutional limitations on a federal courts’ power to award relief to plaintiffs facing no threat of future injury.
But as one recent decision from the Northern District of California indicates, not every judge is satisfied with this tricky compromise. On March 30, 2016, in Khasin v. R.C. Bigelow, Inc., Judge William Orrick denied the plaintiff’s motion for class certification in part because the named plaintiff lacked standing to seek an injunction on the proposed class’s behalf.
Khasin filed suit seeking damages and an injunction to prohibit Bigelow from advertising that its green teas were “packed” with “powerful antioxidants.” Judge Orrick denied the request for an injunction, finding that the plaintiff had not established “a sufficient likelihood he will again be wronged in a similar way.”
Even though the plaintiff stressed that he “would consider” buying Bigelow teas again if they were re-labeled according to his proposed injunction, the Court found that “standing for injunctive relief … requires more than simply declaring an intent to purchase [Bigelow’s] products in the future.” As Judge Orrick reasoned, whether or not the plaintiff would buy Bigelow tea in the future, he could not credibly claim he would be fooled again by the company’s advertising claims:
Even if Khasin were to satisfactorily demonstrate a future intent to purchase the products, he has not established a likelihood of suffering the same harm he has alleged. Plaintiffs like Khasin, who were previously misled by deceptive food labels and now claim to be better informed, lack standing for injunctive relief because there is no danger that they will be misled in the future.
The Khasin decision, in short, departs from the more common “workaround” approach by raising the bar for consumer plaintiffs seeking injunctive relief. But it is far from the only decision to follow this reasoning in rejecting requests for injunctive relief classes. As one judge memorably put it in Allen v. Similasan Corp., a similar case in the Southern District of California, plaintiffs who claim to have seen the light are in no need of injunctive relief to protect them, as these in-the-know consumers “are unlikely to be overcome by a cacophony of falsehood and deceit as they walk the aisles of their local” stores. So until the Ninth Circuit or another appellate court steps in to resolve this conflict, this line of cases gives companies another useful defense in class actions seeking injunctive relief.
Photo courtesy of Flickr/JD