Miller v. Peter Thomas Roth, LLC ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 KARI MILLER, et al., 11 Plaintiffs, No. C 19-00698 WHA 12 v. 13 PETER THOMAS ROTH, LLC, et al., ORDER DENYING MOTION FOR CLASS CERTIFICATION 14 Defendants. 15 16 INTRODUCTION 17 In this false advertising action about cosmetics, plaintiffs move to certify four classes. 18 For the following reasons, the motion is DENIED AS MOOT WITHOUT PREJUDICE. 19 STATEMENT 20 Defendants Peter Thomas Roth, Designs, Global, and Labs LLC (“PTR Labs”) market 21 specialty skincare products. Two of their product lines, the Water Drench and Rose Stem Cell, 22 are at issue here. The Water Drench Products contain hyaluronic acid which, as PTR Labs 23 advertises, attracts and retains up to one thousand times its weight in water from moisture in 24 the atmosphere. PTR Labs also advertise the Rose Stem Cell line with the buzzwords “bio 25 repair,” “reparative,” “rejuvenates,” and “regenerates,” (Dkt. No. 65 at 2, 3, 10). 26 Plaintiff Kari Miller reportedly purchased a PTR Labs Water Drench product after 27 hearing an ad proclaiming the hyaluronic acid’s exceptional water retention, believing the 1 Rose Stem Cell Gel Mask after seeing words like “bio repair,” “rejuvenates,” and 2 “regenerates,” concluding the product might help the appearance of a facial scar. Plaintiffs 3 contend both ads are false or misleading and filed suit under, among others, California’s Unfair 4 Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (Dkt. No. 65 at 6–8, 9, 12–13). 5 Plaintiffs seek to certify four classes, two sets for each of the challenged ads: (1) a Rule 6 23(b)(2) class for injunctive and declaratory relief; and (2) a Rule 23(c)(4) class to find liability 7 in support of later litigation regarding monetary relief. Plaintiff Miller seeks to lead the two 8 classes based upon the Water Drench products: 9 Water Drench Class: All purchasers of the Water Drench Products in California since December 28, 2014. 10 11 Plaintiff Paulson seeks to lead the two classes based upon the Rose Stem Cell Products: 12 Rose Stem Cell Class: All purchasers of the Rose Stem Cell Products California since December 28, 2014. 13 14 This order follows full briefing and oral argument. 15 ANALYSIS 16 Plaintiffs seek class certification of their § 17200 claims to obtain a declaration of 17 liability and injunction. They do not seek restitution now, acknowledging individual 18 calculation issues. Nor do plaintiffs seek class certification of the remainder of their claims 19 (Dkt. No. 65 at 1). Proceeding in parallel with class and individual claims seems unnecessarily 20 complex. 21 In suits by private citizens, §17200 provides that: 22 Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court 23 may make such orders or judgments . . . as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair 24 competition . . . or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of 25 such unfair competition. 26 § 17203 (emphasis added). “[A]n injunction under the UCL . . . against deceptive advertising 27 practices is clearly for the benefit of the general public.” And though California’s Proposition 1 and suffered injury-in-fact from an ad, “public injunctive relief remains a remedy available to 2 private plaintiffs under the UCL . . . .” On the other hand, where once a plaintiff could file a 3 “representative action” for “disgorgement and/or restitution on behalf of persons other than or 4 in addition to the plaintiff” without filing a class action, Proposition 64 now requires such 5 “representative claims to be brought as class actions.” McGill v. CitiBank, N.A., 393 P.3d 85, 6 90, 93 (Cal. 2017) (citations omitted). 7 Simply put, § 17200 provides for injunction and restitution. A private plaintiff may 8 request a statewide injunction without a class, but must file a class action to obtain restitution 9 for a class of consumers. Thus, plaintiffs’ present goals can be achieved without class 10 certification. The requested liability finding and injunction are “for the benefit of the general 11 public” and require no class. Class certification will be needed only if plaintiffs win and seek 12 restitution “on behalf of” others, i.e. a class of consumers. See ibid. So this case may proceed 13 without class certification — the question is whether it should. 14 This implicates the so-called “one-way intervention” problem. Such delay of class 15 certification can do injustice, where, for example “[a] victory by the plaintiff would be 16 followed by an opportunity for other members of the class to intervene and claim the spoils 17 [but] a loss by the plaintiff would not bind other members of the class.” Fireside Bank v. 18 Superior Ct., 155 P.3d 268, 274 (Cal. 2007). Indeed, our court of appeals has recognized that 19 Federal Rule of Civil Procedure 23 was adopted, in part, “to prevent one-way intervention” — 20 that is, the intervention of a plaintiff in a class action after an adjudication favoring the class 21 has taken place.” Schwarzchild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995). 22 But, as our court of appeals demonstrated in Schwarzchild, one-way intervention is not 23 prohibited. Indeed, certain situations call for its careful use: 24 [T]he strongest argument for forbidding post-judgment class certification is that pre-judgment certification and notice to the class are necessary to protect the 25 defendant from future suits by potential members of the class. But that rationale disappears when the defendant himself moves for summary judgment before a 26 decision on class certification. In such a situation, the defendants assume the risk that a judgment in their favor will not protect them from subsequent suits by other 27 potential class members, for only the slender reed of stare decisis stands between 1 Id. at 297. Here, PTR Labs moved for summary judgment promptly after plaintiffs filed for 2 class certification. Defendants have weighed the options and chosen to attack early, rather than 3 wait to bind a class to their victory. Moreover, defendants have explicitly agreed to waive their 4 protections against one-way intervention for the purposes of this plan (Dkt. No. 99). 5 CONCLUSION 6 In sum, plaintiffs’ false advertising claims will proceed individually against PTR Labs 7 because they can obtain their requested liability determination and statewide injunction against 8 PTR Labs’ challenged ads without certifying a class. The need for a class to distribute 9 restitution will be addressed if plaintiffs succeed individually on the merits. Because class 10 certification does not advance plaintiffs’ claims for relief, the motion for class certification is 11 DENIED AS MOOT WITHOUT PREJUDICE. 12 IT IS SO ORDERED. 14 15 Dated: January 21, 2020. 16 [ Al = Pee ILLIAM ALSUP 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28