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Eileen Peviani, On Behalf of Herself and All Others Similarly Situated v. Natural Balance Inc.

May 2, 2011

EILEEN PEVIANI, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
NATURAL BALANCE INC. DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER DENYING CLASS CERTIFICATION

Pending is Plaintiff's Motion for Class Certification, filed February 16, 2011 (Doc. No. 13).

BACKGROUND

Defendant is a Delaware corporation with its principal place of business in Englewood, Colorado that manufactures "Cobra Sexual Energy" ("Cobra"). (Compl. Doc. No. 1, ¶ 7). Cobra is a dietary supplement consisting of a "proprietary blend" of extracts from herbs, roots, and other organic substances, including yohimbe bark extract, horny goat weed, muira puama, Korean ginseng, and saw palmetto among other things. (Id. at ¶¶ 12, 50, 54, 56, 58, 62). Cobra's label describes the supplement as a "powerful men's formula" that provides "sexual energy" by "[s]cientifically blending select, high- quality herbs." (Mot. Cert. 2). The label makes additional claims describing the aphrodisiac effects and health benefits allegedly provided by Cobra. (Id.).

In July 2010, Plaintiff purchased the product for her husband's use and their combined enjoyment from a CVS Pharmacy in Solana Beach, California. (Reply 9 n. 7; Compl. ¶ 9). Plaintiff purchased the product based upon the aphrodisiac and health qualities described on Cobra's label. (Mot. Prelim. Inj. 4). Plaintiff contends that Cobra was unsatisfactory because there is no evidence that its ingredients provided the benefits that Cobra advertised and also because Cobra's ingredients pose an unreasonable health risks to its users. (Id.). These risks include hypertension, stroke, cardiac arrhythmia, manic-like symptoms, suicidal tendencies, and missed diagnoses of prostrate cancer. (Pl. Compl. ¶¶ 18, 22, 23, 53; Mot. Cert. 1).

On November 30, 2010, Plaintiff filed a class action against Defendant on behalf of consumers who purchased Cobra on or after November 20, 2006. Plaintiff seeks certification of the following All persons (excluding officers, directors, and employees of Defendant) who purchased, on or after November 30, 2006, Defendant's Cobra Sexual Energy in the United States for household use rather than resale or distribution.

Plaintiff alleges that the labeling of Cobra makes unlawful aphrodisiac and unlawful health claims in violation of FDA regulations. Plaintiff's Complaint alleges causes of action for violations of California's (1) Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq., (2) False Advertising Law, ("FAL") Cal. Bus. & Prof. Code §§ 17500 et seq., and (3) Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1770 et seq. Plaintiff makes no personal claims based upon the alleged health risks associated with the use of Cobra.

LEGAL STANDARD

A class may be certified only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). A class action may be maintained if Rule 23(a) and at least one of the following three conditions is satisfied: (1) the prosecution of separate actions would create a risk of: (a) inconsistent or varying adjudications or (b) individual adjudications dispositive of the interests of other members not a party to those adjudications; (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class; or (3) questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P. 23(b).

The party seeking certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one requirement of Rule 23(b) have been met. Zinser v. Accufix Research Inst.,

, 253 F.3d 1180, 1186 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001). In this case, Plaintiff seeks certification under both Fed. R. Civ. P. 23(b)(2) and 23(b)(3). Certification under Fed. R. Civ. P. 23(b)(2) requires that the party opposing the class acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Alternatively, Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(3), which requires the Court to find that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

When considering a motion for class certification, the Court must conduct a "rigorous analysis" to ensure the prerequisites of Rule 23(b) are actually satisfied, not just presumed from the pleadings. Dukes v. Walmart Stores, Inc., 603 F.3d 571, 581 (9th Cir. 2010) (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-61 (1982)). In some instances, the pleadings will be sufficient to demonstrate whether a class should be certified, but often courts are required to look "behind the pleadings" even to issues overlapping with the merits of the underlying claims. Id. The U.S. Supreme Court has cautioned against "conduct[ing] a preliminary inquiry into the merits of a suit" at the class certification stage.

Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 177 (1974). Eisen does not, however, prohibit the Court from considering facts that are relevant to the Rule 23 determination, even though the facts may also relate to the underlying merits of the case. Dukes, 603 F.3d at 586. In fact, the Court must probe behind the pleadings if doing so is necessary to make findings on the Rule 23 certification decision. Id. at 589. A court is ...


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