Gaston v. Schering-Plough: Court of Appeal Reverses Denial of Class Certification in Coppertone Consumer Class Action

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In a consolidated consumer class action brought under California’s unfair competition law (UCL, Cal. Bus. & Prof. Code §§ 17200, et seq.) and Consumer Legal Remedies Act (CLRA), the plaintiffs allege that the defendant’s Coppertone SPF 30 Sunblock Lotion is misleadingly labeled, such that consumers are erroneously caused to believe that the lotion blocks potentially carcinogenic UVA rays.  Judge Carl West denied the plaintiffs’ class certification motion on the familiar ground that common questions did not predominate.  California’s Second Appellate District reversed the trial court judge’s denial of class certification.  See Gaston v. Schering-Plough Corp., No. B214935 (Cal. Ct. App. Aug. 9, 2011) (order reversing denial of class certification) (available here).

Although Judge West acknowledged that Proposition 64 could not be reasonably interpreted as imposing the requirement that absent class members prove individual reliance and damages—not least because practically no class could ever be certified under such a stricture—he nonetheless found the presumption of UCL reliance, most prominently set forth in Vasquez v. Superior Court and In re Tobacco II Cases, inapplicable to the plaintiffs’ claims.  Specifically, Judge West found the reliance question to be “highly individual” because consumers would have different motives for buying the sunblock and, moreover, because the consumers responding to the survey presented by the plaintiffs’ expert were likely to have interpreted key terms differently.  See Gaston at 11-12.  The Court of Appeal panel disagreed and held that any difference in purchasing motives is irrelevant, since the only requirement for establishing the reliance of absent class members in a UCL claim is that members of the public are likely to be deceived, and stated, “the labeling claims were material to a reasonable person, and the court should have applied the presumption of reliance as a matter of law.”  Id. at 21.

Indeed, the plaintiffs amply supported their claims, primarily as to the predominance of common questions and incidentally on the merits, by introducing survey evidence confirming that over 90 percent of consumers believed the defendant’s sunblock in fact blocked the sun’s UVA rays.  In addition, 87 percent of those surveyed believed that the product’s claim of being waterproof implied that the lotion’s UVA blockage would endure swimming and other water exposure, and over 80 percent of consumer respondents were willing to pay up to 15 percent extra to obtain these perceived benefits.  See Id. at 6.

The Second District’s opinion confirms the validity of using expert economic and survey testimony to determine damages that are formally restitution under the UCL.  Consumer class actions regularly allege that a retailer’s or manufacturer’s omission or misrepresentation caused purchasers to pay more than they would have had they been in possession of all material information, and Gaston provides an important counter-weight to defendants’ contentions that such determinations are either impossible or unduly individualized for class treatment.