Typicality “tends to merge” with adequacy and commonality in class certification briefing. As a result, it can sometimes be hard to get one’s arms around exactly how to attack typicality. The most popular formulation for defendants is “as goes the claim of the named plaintiff, so go the claims of the class.” But what does that mean?
A case from last year – Wiener v. Dannon Co., 255 F.R.D. 658 (C.D. Cal. 2009), provides a good example of an effective typicality argument.
Dannon sells yogurt, which it markets as healthy. In 2008, the plaintiff sued Dannon, alleging that it had breached its express warranty to its consumers and violated the California consumer-protection laws by marketing three brands – Activia, Activia Light, and DanActive – as scientifically or clinically “proven” to help with digestive health and the immune system. (Like many plaintiffs, Wiener used the breach of express warranty and California’s consumer-protection claims as a means of sidestepping the problem of proving individual reliance in a common-law fraud claim.)
The problem: the plaintiff, Wiener, had bought Activia, but not Activia Light or DanActive yogurts. (A second named plaintiff had bought DanActive, but not the other two brands, but he was dismissed with prejudice earlier in the litigation.)
When the plaintiff moved for certification, Dannon argued that the named plaintiff was not typical or adequate because she had not bought two of the three products at issue in her lawsuit. While the court found that the plaintiff had established numerosity, commonality, and adequacy under Rule 23(a), and predominance and superiority under Rule 23(b)(3), it found that the fact that the plaintiff had not bought two of the three products for which she was suing made her atypical.
In cases involving a variety of products, courts, emphasizing that different products have different functions and different consumers, have held that a named plaintiff that purchased a different product than that purchased by unnamed plaintiffs fails to satisfy the typicality requirement of Rule 23(a)(3).
This was not a complete victory for the defendant. While Dannon won this certification motion, the court gave plaintiff’s counsel leave to substitute in another class representative if possible. Still, in the subsequent year, there has been no other reported decision on this case, which suggests that maybe plaintiff’s counsel could not find a typical class representative.
So what can we learn from this case? The defendant serve discovery (either interrogatories or requests for admission) to make the named plaintiff has bought all of the products at issue. If not, the defendant has a strong argument that the named plaintiff is not typical of the proposed class.