United States District Court, N.D. California
ORDER DENYING MOTION FOR RECONSIDERATION RE: ECF NO.
TIGAR United States District Judge.
the Court is Plaintiffs' motion for reconsideration. ECF
No. 300. The Court will deny the motion.
bring this action on their own behalf and on behalf of a
putative class of purchasers of Tempur products against
Tempur-Sealy International, Inc. and Tempur-Pedic North
America, LLC (collectively “Defendants”) for
claims arising out of Defendants' marketing and sale of
mattresses, pillows, and other bedding products containing
Tempur material. Specifically, Plaintiffs allege that
Defendants' representations of their Tempur products as
“formaldehyde free, ” “free of harmful
VOCs, ” “allergen and dustmite resistant, ”
“hypoallergenic, ” and with a “completely
harmless” odor, are false and misleading. ECF No. 156
(“TAC”) ¶¶ 3(h), 3(m), 3(n), 4.
Plaintiffs allege that Defendants knew their products did not
conform to these representations because internal testing
revealed that Defendants' products off-gassed many VOCs,
including formaldehyde, which can cause allergic reactions.
Id. ¶ 4. Further, Plaintiffs claim that
Defendants were aware of customer complaints about the odor
and corresponding physical symptoms such as headache, nausea,
asthma, eye and throat irritation, and allergic reactions.
September 30, 2016, the Court denied Plaintiffs' motion
for class certification. ECF No. 284. The Court concluded
that Plaintiffs had satisfied the numerosity, typicality, and
adequacy prongs of Federal Rule of Civil Procedure 23(a), but
found that Plaintiffs had failed to demonstrate commonality,
predominance,  and superiority.
their class certification motion, Plaintiffs argued that
class-wide exposure to Defendants' misrepresentations
could be inferred from the “massive advertising and
brandbuilding program” and a “tightly
controlled” marketing campaign conducted by Defendants.
ECF. No. 269 see also Transcript of August 18, 2016 Oral
Argument (“Transcript”), ECF No. 282, at
42:16-19. After “review[ing] the complete body of
evidence offered by Plaintiffs in support of class
certification, [however, ] the Court [found] they ha[d]
failed to demonstrate the marketing at issue was sufficiently
extensive such that one can infer exposure on a class-wide
basis.” ECF No. 284 at 18.
Court identified various evidentiary and theoretical problems
with Plaintiffs' argument of class-wide exposure. For
example, Plaintiffs' most-touted statistic - that
Defendants' advertising generated “4.3 billion
consumer impressions per month” - in actuality offered
little evidentiary support because Plaintiffs did not explain
(1) what the definition of an “impression” is;
(2) how “impressions” are measured; or (3)
whether the period of time that these
“impressions” were calculated overlaps with the
applicable time period for the class. Id. at 18. Nor
did Plaintiffs identify which “impressions” were
based on Defendants' alleged health-related
misrepresentations, versus its other claims. Id. The
Court identified similar flaws with Plaintiffs'
contention that Defendants produced “300 million
pages” of “targeted content (direct mail).”
Plaintiffs' mass exposure argument suffered from two
theoretical flaws. First, the Court determined that it was
wrong to “assume that mattress customers buy a
product based on any particular marketing representation that
they viewed or heard prior to their purchase. Indeed, many
mattress consumers - including, potentially, some of the
named Plaintiffs - likely entered a store with no specific
idea of the brand or product they wish to buy, and make their
purchase based simply on their impressions while
shopping.” Id. at 20. Second, because more
than 90% of Defendants' products are sold by “over
10, 000” third party retailers, ECF No. 220 at 33,
Plaintiffs' needed to “demonstrate that third party
retailers actually implemented [Defendant's advertising]
campaign by showing Defendants' materials to class
members.” ECF No. 284 at 20. Yet Plaintiffs'
provided “virtually no evidence” about the
conduct of these third parties. Id.
these flaws, the Court concluded that Plaintiffs had failed
to “put forth evidence that would allow an inference of
class-wide reliance.” Id. at 21. And without
such an inference, “the need to individually decide
whether class members had been exposed to the alleged
misrepresentations would dominate over other commonly shared
issues of law or fact.” Id. The Court also
noted that “Plaintiffs premise[d] their
misrepresentation by omission and unjust enrichment claims on
the same alleged marketing campaign, and ma[d]e the same
arguments in relation to class certification.”
Id. Therefore, the Court concluded that common
issues of fact did not predominate for those claims for the
same reason. Id. Finally, because resolving
Plaintiffs' claims would require a highly individualized
inquiry into each class member's exposure to
Defendant's advertising, the Court determined that a
“class action would not be a superior mechanism for
resolving this dispute.” Id. at 22. The Court
then denied Plaintiffs' class certification motion.
April 12, 2017, Plaintiffs filed a motion for reconsideration
of the Court's order denying class certification. ECF No.
Plaintiffs claim the Court erred in its commonality,
predominance, and superiority findings.
Rule 7-9 provides that a party moving for leave to file a
motion for reconsideration must show:
(1) That at the time of the motion for leave, a material
difference in fact or law exists from that which was
presented to the Court before entry of the interlocutory
order for which reconsideration is sought. The party also
must show that in the exercise of reasonable diligence the
party applying for ...