August 19, 2020 - Class Action, False Advertising

Fool Me Once, No Injunctive Relief on Behalf of a Class of Purchasers

Does a plaintiff who files a class action alleging false advertising have Article III standing to seek injunctive relief—even when that plaintiff is a past purchaser of the product, and therefore is aware of the defendant’s allegedly false statements regarding the product?

The Ninth Circuit said “sometimes” in Davidson v. Kimberly-Clark Corp.[1] There, the plaintiff purchased wipes that the defendant described as “flushable,” but that plaintiff alleged caused severe damage to her home plumbing.[2] Although it was “a close question,” the Ninth Circuit held the plaintiff had pleaded enough to establish standing because she plausibly alleged that she wished to purchase truly flushable wipes and had no way of determining whether she could rely on the defendant’s “flushable” label without buying the product and flushing it.[3]

Recently, in Berni v. Barilla S.p.A.,[4] the Second Circuit seemingly came out the other way. In Berni, the defendant changed the design, but not the size, of its pasta boxes.[5] The plaintiffs brought a putative slack-fill class action, alleging the new boxes contained less pasta than the old boxes.[6] The Second Circuit concluded that “future harm [was] not likely”—chiefly because these past pasta purchasers, once deceived, were “not bound to purchase [the] product again.”[7] And even if they did, as past purchasers, they are aware of how much pasta is in the new boxes. The requested injunction “[would] not materially improve their position as knowledgeable consumers.”[8]

Some commentators have indicated that these decisions are irreconcilable, creating a circuit split. We disagree. The Ninth Circuit’s holding in Davidson is narrower than it first appears. The court found that a false advertising plaintiff suffers an enjoinable injury when she plausibly continues to be unable to tell from the product or its packaging whether the statements at issue were false.

Several district courts in the Ninth Circuit have made this point clear, distinguishing Davidson where plaintiff could not plausibly allege continuing deception. For example, these courts have dismissed false advertising claims on grounds that the plaintiff lacked standing because:

  • the defendant’s products’ nutrition labels informed the plaintiff whether the products actually contained real white chocolate;[9]
  • the plaintiff could “easily determine the number of pretzels in each package by simply reading the label” or “could feel the bag to determine whether it is filled with pretzels or air”;[10]
  • the plaintiff alleged he was now aware what “No Sugar Added” meant;[11] or
  • the plaintiff admitted she now knew how the defendant calculated net carbs.[12]

As these courts explained, “Unlike Davidson, where plaintiff could not know without purchasing the flushable wipes whether the wipes were truly flushable, [the plaintiffs] do not need to purchase the [p]roducts again in order to know whether” the defendants allegedly misrepresented product information.[13] So too in Berni. There, the plaintiffs could not plausibly assert that they were unable to tell how much pasta was in the new packages after having purchased the product with both the old and new product designs.

Note too that Davidson was an appeal from a motion to dismiss, while Berni was an appeal from a final class settlement judgment. The Davidson court had to take the plaintiff at her word (and still acknowledged it was “a close question”); the Berni court could look further at the facts. Moreover, in Berni, the district court had certified a settlement class. Yet as the court pointed out, “a class may not be certified under Rule 23(b)(2) if any class member’s injury is not remediable by the injunctive or declaratory relief sought.”[14] “[T]here is no reason to believe that all, or even most, of the class members—having suffered the harm alleged—will choose to buy it in the future.”[15] Even if they did, the “next time they buy one of the newer pastas, they will be doing so with exactly the level of information that they claim they were owed from the beginning.”[16]

Although there is some tension between Davidson and Berni, there is not as much distance between the cases as it might seem. Regardless of where they file suit, plaintiffs and class members seeking injunctive relief for their false advertising claims must satisfy Article III’s requirements.


[1] 889 F.3d 956 (9th Cir. 2018).

[2] Id. at 961–62.

[3] See id. at 970–72.

[4] 964 F.3d 141 (2d Cir. 2020).

[5] Id. at 143–44.

[6] Id. at 144.

[7] Id. at 147.

[8] Id. at 148.

[9] Joslin v. Clif Bar & Co., No. 4:18-cv-04941-JSW, 2019 WL 5690632, at *4 (N.D. Cal. Aug. 26, 2019).

[10] Cordes v. Boulder Brands USA, Inc., No. CV 18-6534 PSG (JCx), 2018 WL 6714323, at *4 (C.D. Cal. Oct. 17, 2018).

[11] Rahman v. Mott’s LLP, No. 13-cv-03482-SI, 2018 WL 4585024, at *3 (N.D. Cal. Sept. 25, 2018).

[12] Fernandez v. Atkins Nutritionals, Inc., No. 3:17-cv-01628-GPC-WVG, 2018 WL 280028, at *14 (S.D. Cal Jan. 3, 2018).

[13] See Joslin, 2019 WL 5690632, at *4.

[14] Berni, 964 F.3d at 146.

[15] Id. at 148.

[16] Id.