In re Dial Complete Mktg.

2015 DNH 222

In re: Dial Complete Marketing and Sales Practices Litigation

Case No. 11-md-2263-SM

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

December 8, 2015

ORDER

This consolidated, multi-district litigation is brought by consumers in Arkansas, California, Florida, Illinois, Louisiana, Missouri, Ohio, and Wisconsin, on behalf of themselves and similarly situated consumers in those states. Plaintiffs say that defendant, The Dial Corporation ("Dial"), continually misrepresented the antibacterial properties of its "Dial Complete" branded soaps. They advance claims under their respective state consumer protection/unfair trade practices statutes, as well as statutory and common law causes of action for breach of warranty and unjust enrichment.

Plaintiffs move to certify a class consisting of each state's purported class members, for a total of eight subclasses, defined as follows: "All persons residing in [the state] who purchased Dial Complete Antibacterial Foaming Hand Soap for household use at any point in time from Dial Complete's commercial launch in 2001 through the present." Dial objects.

Background

Dial manufactures Dial Complete Foaming Antibacterial Hand Wash ("Dial Complete"), an antibacterial liquid hand wash. (See Def.'s Br. in Opp. to Class Certification (document no. 86) p. 4.) Since 2002, Dial has shipped 158,370,479 units to retailers and distributors in the United States for sale to retail consumers. (See Pls.' Mot. for Class Certification (document no. 57), Exh. 15 at p. 8.)

Dial Complete's product labels feature claims asserting that Dial Complete "Kills 99.99% of Germs*," that it is "#1 Doctor Recommended**," and "Kills more germs than any other liquid hand soap."¹ (See Pls.' Mot. for Class Certification (document no. 57), at Exhs. 1, 5.) In the past, Dial Complete labels have included the claims: "Superior Germ Kill," "10x More Effective Germ Kill," "Protects your family better than ordinary liquid hand soap," and "Kills 10x More Germs." (See id. at Exhs. 2-4.) Those claims appear on the product packaging of every bottle of Dial Complete sold. (See id. at Exh. 13 (Deposition of Dial's Vice President of Marketing for Personal Care Products, Christopher Sommer ("Sommer Dep.") at 156:8-11 ("On the baselevel, we try and maintain a consistent look and feel, and to point of fact, we would only have, to my knowledge, one standard [product] design at any given time being produced for Dial Complete."); see also, id. at 195:16-18 ("[Dial] intend[s] to have a consistent appearance and messaging across our primary packaging.")).

The plaintiffs challenge those claims (collectively, the "challenged claims"), arguing that they are false and misleading because the label statements about germ-killing efficacy are not true, and are unsupported by scientific evidence or substantiation. (See Pls.' Br. in Supp. of Mot. for Class Certification (document no. 57) at p. 5; Consolidated Class Action Compl. ¶ 69.) According to plaintiffs, "[t]here is no credible evidence that any triclosan containing hand wash as used by consumers in community settings protects those consumers from disease or illness better than ordinary hand soaps that do not contain triclosan."² (Id.; see also Consolidated Class Action Compl. ¶¶ 70-76.) In support of that position, plaintiffs rely, in part, on the conclusion of their expert, Dr. Allison E. Aiello, that the veracity of the challenged claims can beevaluated through common evidence, and that, "based on [her] preliminary review," the challenged claims are "false, deceptive, and/or misleading." (See Pls.' Mot. for Class Certification (document no. 57), Exh. 20 at p. 25.)

Dial vigorously disputes Dr. Aiello's conclusions, as well as plaintiffs' allegations relating to Dial Complete's efficacy. Dial argues that the product has been extensively tested, and "[a]lthough other antibacterial hand soaps contain the same active ingredient as Dial Complete (triclosan), none is as effective in killing common household germs." (Def's. Br. in Opp. to Class Certification (document no. 86) at p. 5.) In support, Dial points to the conclusions of its own expert, Rhonda Jones, that the efficacy studies she has reviewed "substantiate the claims that Dial has made about Dial Complete." (Expert Report of Rhonda Jones (document no. 86-76) at p. 34.)

The Consolidated Amended Complaint advances four causes of action: violation of the consumer protection laws of Arkansas, California, Florida, Illinois, Missouri, Ohio, and Wisconsin (count one); breach of express warranty under the laws of Arkansas, California, Florida, Illinois, Louisiana, Missouri, and Ohio (count two); breach of implied warranty under the laws of Arkansas, California, Florida, Louisiana, Missouri, and Ohio(count three); and unjust enrichment under the law of all eight states (count four). Plaintiffs seek class certification pursuant to Fed. R. Civ. P. 23 for each of those claims.³

Dial posits that class treatment is not appropriate in this case for several reasons. First, Dial argues, the class is not ascertainable at the certification stage without the need for extensive individual inquiries. Second, Dial contends that plaintiffs cannot establish predominance or superiority using generalized proof. According to Dial, individual issues of reliance, causation, damages, and defenses specific to the named plaintiffs or certain class members will overwhelm any common issues. In support of its argument, Dial points to evidence in the record purporting to show that some consumers choose Dial Complete for reasons unrelated to the challenged claims, such as fragrance, bottle shape, or its foamy consistency. (See, e.g., Def's. Br. in Opp. to Class Certification (document no. 86), Exh. 15 (Dial Hand Washing Segmentation Study)) Finally, Dial arguesthat the plaintiffs have failed to present a functional damages model, and therefore have not met their burden of demonstrating that damages can be proven on a class-wide basis.

Discussion

Legal Standard for Class Certification

In a purported class action, the "party seeking certification must establish 'the elements necessary for class certification: the four requirements of [Rule] 23(a) and one of the several requirements of Rule 23(b).'" Kenneth R. v. Hassan, 293 F.R.D. 254, 263 (D.N.H. 2013) (quoting In re Relafen Antitrust Litig., 218 F.R.D. 337, 341 (D. Mass. 2003) (citing Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32, 38 (1st Cir. 2003))). "Whether the movant has carried that burden is a question the district court must resolve through a rigorous analysis of Rule 23's requirements. Id. (citing General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982)) (internal quotation marks omitted). "A party seeking class certification must affirmatively demonstrate his compliance with [Rule 23] - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original).

The court's analysis "may 'entail some overlap with the merits of the plaintiff's underlying claim.'" Amgen Inc. v. Connecticut Ret. Plans and Trust Funds, 133 S. Ct. 1184, 1194, (2013) (quoting Wal-Mart, 131 S. Ct. at 2551)). But the overlap must necessarily be limited, for "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage." Id. at 1194-1195. Rather, "[m]erits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id. at 1195. In short, "[b]y sifting the abundant evidence through the sieve of the legal claims, [a] court [will] satisf[y] the requirement to perform a 'rigorous analysis.'" Glazer v. Whirlpool Corp., 722 F.3d 838, 852 (6th Cir. 2013) (quoting Wal-Mart, 131 S. Ct. at 2551)).

Class Certification under Rule 23

Plaintiffs seeking to certify a class under Rule 23 must first satisfy Rule 23(a)'s requirements - numerosity, commonality, typicality and adequacy of representation - and also one of the three prerequisites set forth in Rule 23(b). See S. States Police Benevolent Ass'n v. First Choice Armor & Equip., Inc., 241 F.R.D. 85, 87 (D. Mass. 2007) (citing Smilow, 323 F.3d at 38; Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)).

There are three possible bases for class certification under Rule 23(b). Under the third, litigation may proceed as a class action if the four criteria of Rule 23(a) are satisfied, and the court finds that: (1) the questions of law or fact common to class members predominate over any questions affecting only individual members, and (2) a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. See Fed. R. Civ. P. 23(b)(3).

Finally, "[i]n addition to the explicit requirements of Rule 23, courts generally recognize the 'implicit requirement' that the class definition must be sufficiently definite to allow the court, parties, and putative class members to ascertain class membership." Kenneth R., 293 F.R.D. at 263 (citing Shanley v. Cadle, 277 F.R.D. 63, 67-68 (D. Mass. 2011)).

Ascertainability

It is common sense that for a court to certify a class action, the class must be "sufficiently defined," meaning, in this circuit, that "the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria." Matamoros v. Starbucks, Corp., 699 F.3d 129, 139 (1st Cir. 2012) (quoting James Wm. Moore et al., Moore's Federal Practice § 23.21[3][a](3d ed. 2012)). In other words, "an implicit prerequisite to class certification is that a 'class' exist[] — that is, it must be 'administratively feasible to determine whether a particular individual is a member.'" Donovan v. Philip Morris USA, Inc., No. CIV.A. 06-12234-DJC, 2012 WL 957633, at *26 (D. Mass. Mar. 21,...