a href=”https://gtlawconsumerproductscounselor.lexblogplatformtwo.com/files/2014/07/shutterstock_153943454.jpg”>GavelAs the Supreme Court has tightened the requirements for certifying a damages class action, some in the plaintiff’s bar have responded by focusing on class actions seeking injunctive relief, particularly in cases against consumer products companies.  To certify a class under Rule 23(b)(2), a plaintiff does not have to demonstrate predominance or superiority, and thus an injunctive class should, at least in theory, be easier to certify.  But a class action seeking injunctive relief has its own challenges, one of which is establishing that the named plaintiff has standing.

Standing to seek an injunction

In the context of a consumer fraud class action, standing can be a particular challenge.  A plaintiff seeking injunctive relief “must demonstrate that he has suffered or is threatened with a ‘concrete and particularized’ legal harm, coupled with ‘a sufficient likelihood that he will again be wronged in a similar way.’” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). The plaintiff must “establish a ‘real and immediate threat of repeated injury’ ” that “must be likely to be redressed by the prospective injunctive relief.” Id. “Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief.” Hodgers–Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999).  Thus, without a threat of future harm, injunctive relief is not available.

Under this standard, a plaintiff suing for consumer fraud or false advertising should have a difficult time seeking injunctive relief.  After filing suit, the plaintiff is obviously aware of the allegedly false statement, and it is difficult to see how, given that knowledge, she could establish a “real and immediate threat of repeated injury.”  The plaintiff either is not going to buy the consumer product in the future, or, if she did, would be aware of the misstatement.

What must a plaintiff allege to have standing for injunctive relief?

Courts have reached different conclusions about whether plaintiffs suing for consumer fraud have standing to seek an injunction.  Some hold that a plaintiff does not have standing if she is not likely to buy the product again.  See, e.g., Rahman v. Mott’s LLP, No. 13–cv–3482–SI, 2014 WL 325241, at *10 & n.9 (N.D. Cal. Jan. 29, 2014) (“to establish standing, plaintiff must allege that he intends to purchase the products at issue in the future.”); Morgan v. Wallaby Yogurt Co., Inc., 13-CV-00296-WHO, 2014 WL 1017879, at *6 (N.D. Cal. Mar. 13, 2014) (relief limited to damages where plaintiffs “stated that they would not have purchased the product had they known it contained added sugar”); Delarosa v. Boiron, Inc., No. 10–1569, 2012 WL 8716658, at *5 (C.D. Cal. Dec. 28, 2012) (no threat of future injury because plaintiff would not purchase ineffective homeopathic product again); Bohn v. Boiron, Inc., No. 11–8704, 2013 WL 3975126, at *4 (N.D. Ill. Aug. 1, 2013) (same); Wang v. OCZ Tech. Grp., Inc., 276 F.R.D. 618 (N.D. Cal.2011) (no threat of future injury because plaintiff already purchased electronics and did not allege he would purchase again); Robinson v. Hornell Brewing Co., No. 11–2183, 2012 WL 1232188, at *4 (D.N.J. Apr. 11, 2012) (no threat of future injury because plaintiff stated intent never to purchase product again).

Other courts have concluded that a plaintiff does have standing even if he is not going to buy the product again.  See, e.g., Koehler v. Litehouse, Inc., No. 12–cv–4055–SI, 2012 WL 6217635, at *6 (N.D. Cal. Dec. 13, 2012) (“To do otherwise would eviscerate the intent of the California legislature in creating consumer protection statutes because it would effectively bar any consumer who avoids the offending product from seeking injunctive relief.”); Larsen v. Trader Joe’s Co., No. 11–5188, 2012 WL 5458396, at *4 (N.D. Cal. June 14, 2012) (plaintiffs had standing even though they would not purchase the products again); Lanovaz v. Twinings N. Am., Inc., No. 12–cv–2646–RMW, 2014 WL 46822, at *10 (N.D. Cal. Jan. 6, 2014) (same); Ries v. Ariz. Beverages USA LLC, 287 F.R.D. 523, 533 (N.D. Cal. 2012) (same); Henderson v. Gruma Corp., No. 10–4173, 2011 WL 1362188, at *7–8 (C.D. Cal. Apr. 11, 2011) (plaintiffs had standing even though they likely would not purchase the products again).

Establishing standing may preclude materiality

If a plaintiff does allege that she is, or plans on, continuing to buy the product, she faces another problem – materiality.  To be actionable, a misstatement generally must be “material,” meaning “a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question.” Fairbanks v. Farmers New World Life Ins. Co., 197 Cal. App. 4th 544, 565 (2011).  Where a plaintiff continues to buy a consumer product notwithstanding the mislabeling or false advertising, she may not be able to establish that the misstatement was material.  See, e.g., Leong v. Square Enix of Am. Holdings, Inc., No. CV09-4484, 2010 WL 1641364, at *4, 8 (C.D. Cal. Apr. 20, 2010) aff’d, 462 F. App’x 688 (9th Cir. 2011) (dismissing UCL, FAL, and CLRA claims because plaintiff continued to pay subscription fees after learning of the allegedly fraudulent practice, which precluded showing of materiality).

Takeaways…

Consumer products companies that are defending class actions seeking injunctive relief will want to keep these standards in mind.  They can be used to force a plaintiff into a Hobson’s choice.  If the plaintiff does not allege that she plans to purchase the product again, the company may want to ask the court to dismiss any request for injunctive relief.  If the plaintiff does allege that she plans to purchase the product, that may be a basis to challenge whether the alleged misstatement is material.