Moore v. Mars Petcare US, Inc.

Background

The plaintiffs alleged that Royal Canin U.S.A., Inc., Hill’s Pet Nutrition, Inc., and Mars Petcare US, Inc. created and enforced a requirement that consumers obtain a veterinarian’s prescription before buying certain pet foods. They claimed this practice led reasonable consumers to believe incorrectly that the products were approved by the Food and Drug Administration, had been inspected and tested by the government, and had medicinal or drug properties requiring a prescription. They asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act.

Three motions sought certification of proposed California classes:

- Greta L. Ervin sought certification for purchasers of Royal Canin Veterinary Diet products. - Tamara Moore, Nichols Smith, and Cynthia Welton sought certification for purchasers of Hill’s Prescription Diet products. - Renee Edgren sought certification for purchasers of Mars Veterinary Formula products.

Legal standard

Federal Rule of Civil Procedure 23 requires a proposed class to satisfy four requirements: enough members that individual lawsuits would be impractical, common legal or factual questions, claims typical of the class, and representatives who can fairly and adequately protect the class. The proposed class must also satisfy at least one additional requirement. For the type of class sought here, Rule 23(b)(3), common questions must be more important than individual questions, and a class action must be a better method for resolving the dispute fairly and efficiently. The plaintiffs had to prove these requirements by a greater-than-50-percent standard.

Royal Canin motion

The court found Ervin had shown numerosity, commonality, typicality, and adequacy. Sales data indicated thousands of Veterinary Diet purchasers in California. The court also found common questions about whether Royal Canin’s conduct was deceptive, whether its representations were likely to mislead reasonable consumers, whether they were material, and whether damages or restitution could be measured on a classwide basis.

The court nevertheless found that common questions did not predominate. Ervin did not show that all purchasers were exposed to the prescription requirement or that those who encountered it experienced it in a uniform way. Some consumers could buy the food directly from a veterinarian without hearing that a prescription was required. Some retailers could verify a veterinarian’s approval without telling the customer about the requirement. The court also found that veterinarians were not required to use a uniform script or materials, and evidence showed that veterinarians communicated different information depending on their practices, experience, the pet, and the pet’s condition.

The court rejected Ervin’s argument that exposure and reliance could be presumed from the evidence. It found the evidence did not show a widespread consumer-directed advertising campaign sufficient to establish classwide exposure. The court also rejected a proposed claim form or questionnaire because it would require consumers to recall conversations or events occurring as much as twelve years earlier, creating subjective memory problems. Because Ervin did not establish predominance as to likelihood of deception or materiality, the court denied her motion for class certification. It did not separately decide predominance as to damages, although it noted that similar individual issues would affect damages.

Hill’s motion

The court found that Moore, Smith, and Welton had shown numerosity and commonality, and it rejected Hill’s arguments that the three representatives were atypical or inadequate. The court concluded that Smith’s claim had been disclosed in his reopened bankruptcy case, was not administered by the trustee, and had been abandoned to him. It also found that Smith plausibly explained his initial failure to disclose the claim as an understandable mistake. The court rejected Hill’s speculation about Welton’s husband’s knowledge and what he may have told her. As to Moore, the court found evidence that she initially believed the food had medicinal content and later stopped buying it when she could do so without jeopardizing her dog’s health.

The court then found the plaintiffs had not shown that common questions predominated. As with Royal Canin, the evidence did not establish that all Hill’s purchasers encountered the prescription requirement or encountered it in the same way. Although Hill’s used the word “prescription” on its product labels, the plaintiffs were not bringing a standalone labeling claim. The court found that the prescription requirement was often communicated through veterinarians and that consumers’ experiences varied. The court therefore denied Moore, Smith, and Welton’s motion for class certification. It did not separately address predominance as to materiality and damages.

Mars motion

The court found that Mars did not contest Edgren’s numerosity or adequacy showing and that Edgren satisfied typicality. Her claims focused on Mars’s practice of requiring a veterinary prescription before purchasing Veterinary Formula products, rather than solely on the product label. The court found her testimony and evidence that Mars imposed the requirement on every Veterinary Formula purchase supported typicality.

The court nevertheless found that Edgren failed to show classwide exposure or predominance. Evidence concerning Mars’s education of veterinarians, a pet-food blog, packaging language, and a sign at Edgren’s veterinarian’s office did not establish the type of widespread advertising campaign that could support an inference that all class members were exposed. The court also found that the prescription requirement was not communicated to all purchasers and was communicated in varying ways to those who learned about it. The label’s use of “prescription” or a similar term did not resolve the problem because the plaintiffs were not bringing a standalone mislabeling claim.

Mars separately argued that Edgren had not provided a valid method for calculating class damages. Edgren acknowledged that she had not presented a classwide damages model and argued that certification could be limited to liability issues. The court rejected that response, explaining that a liability-only class would still require predominance as to liability. Because Edgren failed to meet that requirement, the court denied her motion for class certification.

Disposition

The court denied Ervin’s motion for class certification as to Royal Canin, denied Moore, Smith, and Welton’s motion for class certification as to Hill’s, and denied Edgren’s motion for class certification as to Mars. The opinion addressed class certification and did not decide whether the alleged consumer-protection violations occurred on the merits.