This week’s case is the first known follow-up to the Sixth Circuit’s Pilgrim opinion, Rikos v. Proctor & Gamble Co., 2012 U.S. Dist. LEXIS 25104, (S.D. Ohio 2012). In Rikos, the plaintiff sued Proctor & Gamble for allegedly misrepresenting the ability of its product Align to aid in digestion. The plaintiff filed in the Southern District of California, and asserted claims on behalf of a nationwide class.
Proctor & Gamble promptly transferred the case to the Southern District of Ohio. Then it moved to dismiss. (The court granted the motion to dismiss claims for injunctive relief, denied it for the remainder.) After that, Proctor & Gamble strike the class allegations, arguing that the class definition was overboard, and that individual factual and legal issues would predominate over any common issues.. As the court there noted,
Either party may freely move for resolution of the class-certification question at any stage of the proceedings, and the class action allegations may be stricken prior to a motion for class certification where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.
The court’s analysis was straightforward. It held that the plaintiff could not constitutionally apply California law to the entire class. After conducting a choice of law analysis, it found that individual legal issues would predominate in each of the plaintiff’s claims.
While it is true that discovery may define the class more precisely, the fact remains that a nationwide class consisting of all purchasers of Align will inevitably include non-California residents who law analysis, individual questions of law will purchased the product outside of California. Accordingly, the Court finds that a nationwide class may not be certified for Plaintiff’s claims listed in Count I and Count II of the complaint …
[Also,] each class member’s express warranty claim should be governed by the laws of the jurisdiction in which the transaction took place. Accordingly, individual questions of law predominate"
So Pilgrim is clearly alive and well in the Sixth Circuit. That said, the most important takeaway in this case is that the defense gave a vigorous opposition from the very first. It moved to dismiss. It moved to change venue. And it moved to strike class allegations. Not every motion was successful, but combined, they got rid of a potentially bothersome case before the enormous expense of discovery. These are great ways of keeping costs down, and clients happy.