Moore v. GlaxoSmithKline Consumer Healthcare Holdings LLC

Background

Lisa M. Moore brought a proposed consumer class action for herself and California residents who purchased certain ChapStick products. She alleged that GlaxoSmithKline Consumer Healthcare Holdings (US) LLC and Pfizer Inc. used labels stating “100% Natural,” “Natural,” “Naturally Sourced Ingredients,” and “100% Naturally Sourced Ingredients.” Moore alleged that the products contained non-natural, synthetic, artificial, or highly processed ingredients.

Moore asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, along with claims for breach of express warranty and unjust enrichment. She alleged that she relied on the challenged label statements when buying certain products and would like to purchase them again but cannot determine whether the statements are accurate from the ingredient disclosures.

Expert-Testimony Motions

The court applied Federal Rule of Evidence 702 and the reliability and relevance standards from Daubert to the expert testimony submitted on class certification.

The court denied the defendants’ motions to exclude Dr. Michael Dennis’s testimony. Dennis proposed a consumer-perception survey and a conjoint analysis, a method for estimating the price premium attributable to the challenged statements. The court found that the defendants’ objections mainly concerned the weight of the opinions rather than whether the opinions could be admitted at this stage.

The court denied the defendants’ motion to exclude Mr. Colin B. Weir’s testimony. Weir offered an economic framework for calculating classwide damages and supported the existence of a price premium associated with the challenged statements. The court found that his analysis went beyond simple arithmetic and rejected the argument that he lacked the necessary expertise.

The court granted Moore’s motion to exclude Dr. Steven Dentali’s testimony and granted the defendants’ motion to exclude Dr. Anton Toutov’s testimony. Both experts were chemists, but the court concluded that the relevant question was how a reasonable consumer understood the label statements, not how chemists perceived them.

Class Certification Under Rule 23(a)

The court found that Moore satisfied the requirements it analyzed under Rule 23(a), including commonality and typicality. The defendants did not dispute numerosity, adequacy, or superiority.

For commonality, the court found that common evidence could address whether the defendants’ conduct violated California consumer-protection laws, whether the challenged representations were deceptive to a reasonable consumer, and whether the defendants were unjustly enriched. The court relied on internal documents, deposition testimony, and other evidence indicating consumer interest in natural products and ingredients.

The court found that Moore’s proposed consumer-perception survey did not independently establish common proof of materiality because it did not sufficiently isolate the challenged statements from other words on the labels. The court nevertheless treated several other objections to the survey as issues concerning the evidence’s weight rather than its admissibility at the class-certification stage.

The court also found typicality satisfied. Although Moore had not purchased every challenged product, the court concluded that her claims were reasonably coextensive with those of absent class members because they arose from the same alleged labeling practice and alleged the same type of harm.

Rule 23(b)(3) Certification

The court denied the motion to certify a damages class under Rule 23(b)(3), without prejudice. Rule 23(b)(3) requires common questions to predominate over individual questions and requires class treatment to be superior to other methods of resolving the dispute.

The court concluded that the proposed conjoint analysis could not reliably calculate damages because it failed to isolate the price effect of the challenged statements from other words and phrases on the labels. The court explained that the damages model had to measure only damages attributable to Moore’s theory that the challenged statements were misleading. The court found that the proposed analysis did not meet that requirement in its current form.

Rule 23(b)(2) Certification

The court granted the motion to certify an injunctive-relief class under Rule 23(b)(2). That rule permits class treatment when the opposing party acted on grounds generally applicable to the class and a single injunction or declaratory judgment would provide relief to the class as a whole.

The court found that Moore adequately alleged standing to seek an injunction. It relied on her testimony that she wanted to purchase the products again, desired natural lip-care products, could not determine whether the challenged statements were true, and lacked the expertise to evaluate the ingredient disclosures. The court concluded that a single injunction barring the alleged misrepresentations would benefit the proposed class.

Disposition

The court granted in part and denied in part Moore’s class-certification motion: certification under Rule 23(b)(2) was granted, while certification under Rule 23(b)(3) was denied without prejudice. The court granted Moore’s motion to exclude Dr. Steven Dentali’s testimony and the defendants’ motion to exclude Dr. Anton Toutov’s testimony. It denied the defendants’ motions to exclude Dr. Michael Dennis’s and Mr. Colin B. Weir’s testimony.