United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S RENEWED MOTION FOR
CLASS CERTIFICATION, (ECF No. 134)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Susan Grace Stokes' Renewed
Motion for Class Certification (“Renewed Mot., ”
ECF No. 134). Also before the Court is Defendants IB Holding,
LLC (“IBH”) and TechStyle, Inc.'s
(“TSI”) Opposition to (“Opp'n, ”
ECF No. 139) and Plaintiff's Reply in Support of
(“Reply, ” ECF No. 140) the Motion. The Court
took the matter under submission without oral argument
pursuant to Civil Local Rule 7.1(d)(1). See ECF No.
142. Having carefully considered the Parties' arguments,
the relevant evidence, and the law, the Court
DENIES Plaintiff's Renewed Motion.
January 7, 2014, several complaints were filed against Sensa
Products, LLC (“Sensa”) regarding its marketing
of a line of weigh loss products that consumers were
instructed would result in weight loss if sprinkled on their
the Federal Trade Commission (“FTC”) filed a
complaint against Sensa Products, LLC (“Sensa”);
Adam Goldenberg; and Dr. Hirsch (collectively, the “FTC
Defendants”) alleging unfair or deceptive practices and
false advertisements. Third Consolidated Amended Class Action
Complaint (“TAC, ” ECF No. 76) ¶¶ 13,
107. The FTC and the FTC Defendants entered into a stipulated
judgment for $46.5 million, id. ¶¶ 13,
109; see also Id. Ex. I, later reduced to $26.5
million because of Sensa's “deteriorating financial
condition.” Opp'n at 3 (citing Def.'s First
Request for Judicial Notice (“1st RJN, ” ECF No.
119-3) Ex. 8 at 13). As part of the settlement, the FTC
Defendants also were restrained from, among other things,
falsely representing that any product causes weight loss. TAC
Ex. I at 8. Following extensive publicization of the FTC
settlement on national television; in national print
publications; and on international, national, and local news
websites, see Decl. of Jeffrey L. Richardson in
Support of Opp'n (“2nd Richardson Decl., ”
ECF No. 139-2) ¶ 5, the FTC mailed over 477, 000 refund
checks totaling over $26, 000, 000 to consumers who had
bought Sensa's products. 1st RJN Ex. 10.
on the same date that the FTC filed its complaint,
José Conde filed the instant putative class action,
Conde v. Sensa, No. 14-CV-51 JLS (WVG) (S.D. Cal.
filed Jan. 7, 2014), against Sensa, alleging causes of action
for violation of California's False Advertising Law
(“FAL”), California Business and Professions Code
§§ 17500 et seq.; violation of
California's Unfair Competition Law (“UCL”),
California Business and Professions Code §§ 17200
et seq.; and violation of the Consumers Legal
Remedies Act (“CLRA”), California Civil Code
§§ 1750 et seq. ECF No. 1. Two related
cases were filed subsequently: Delaney et al. v.
Sensa, No. 14-CV-2120 JLS (WVG) (S.D. Cal. filed Sept.
8, 2014); and Stokes v. Sensa, No. 14-CV-2325 JLS
(WVG) (S.D. Cal. filed Oct. 1, 2014).
October 17, 2014, Sensa filed for bankruptcy. TAC ¶ 110.
Nonetheless, on November 3, 2014, the Delaney
Plaintiffs moved the Court for an order consolidating the
three cases. See ECF No. 17. The Court granted the motion
on April 13, 2015, and consolidated the cases. See
ECF No. 32.
consolidation, on May 13, 2015, Plaintiffs filed an amended
complaint against Sensa; Dr. Alan Hirsh; and General
Nutrition Corp. and General Nutrition Centers, Inc.
(together, “GNC”), alleging causes of action for
violation of the Magnuson-Moss Warranty Act, 15 U.S.C.
§§ 2301 et seq.; breach of express
warranty; breach of implied warranties; violation of the
CLRA; violation of the FAL; violation of the unlawful,
unfair, and fraudulent/deceptive prongs of the UCL; violation
of Florida's Deceptive and Unfair Trade Practices Act
(“FDUTPA”), Florida Statutes §§ 501.201
et seq.; violation of Pennsylvania's Unfair
Trade Practices and Consumer Protection Law, 73 Pennsylvania
Statutes §§ 201-1 et seq.; and negligent
misrepresentation. See ECF No. 33. On September 11,
2015, the Delaney Plaintiffs and GNC settled, and
Ms. Delaney dismissed without prejudice the class claims
against GNC. See ECF Nos. 53, 54.
the settlement and dismissal of GNC, only Ms. Stokes moved on
November 16, 2015, to file an amended complaint. See
ECF No. 56. The Court granted the request on December 28,
2015, see ECF No. 59, and, on January 14, 2016, Ms.
Stokes filed an amended complaint against Sensa and various
other companies and individuals, dropping the cause of action
under Pennsylvania law and adding a cause of action for alter
ego/veil piercing to hold other Defendants liable for the
conduct of Sensa. See ECF No. 60. On November 1,
2016, Ms. Stokes filed the operative Third Consolidated
Amended Class Action Complaint (“TAC”) against
Sensa Products, LLC; Sensa, Inc. (f/k/a Intelligent Beauty,
Inc.); IB Holding, LLC (a/k/a Intelligent Beauty Holding,
LLC); TechStyle, Inc. (f/k/a JustFab, Inc. and Just Fabulous,
Inc.); Dr. Alan R. Hirsch; Don Ressler; Adam Goldenberg;
Kristen Chadwick; TCV VI, L.P; TCV Technology Crossover
Ventures; and John Drew. See generally ECF No. 76.
Ms. Stokes alleges that Sensa produced various weight-loss
products, which were “tastant crystals” or
“sprinkles” that users would sprinkle on their
food. TAC ¶ 2. As marketed by Sensa, when the users
smelled and tasted the crystals, the crystals would trigger
the user's “I feel full” signal and the user
would therefore eat less food. Id. ¶ 3.
Originally, Sensa marketed that the products would allow
users to “lose up to 30lbs or more in just 6
months” without requiring the user to diet or exercise.
TAC ¶¶ 4-5. In connection with the FTC action, in
late 2013 or early 2014, “Sensa Products changed the
‘lose up to 30lbs or more in just 6 months'
statement to ‘9.5 pounds in 6 months' and/or
‘10 pounds in 3 months.'” Decl. of Kristin
Chadwick (“Chadwick Decl., ” ECF No. 119-1)
¶ 6. Specifically, the three products at issue are Sensa
Weight-Loss System, Sensa for Men Weight-Loss System, and
Sensa Advanced Weight-Loss System (the “Class
Products”). See Renewed Mot. at 1 n.1.
Plaintiff states she relied on the labeling for the Class
Products and alleges the Products are ineffective, the
Products have not been “clinically shown” to
cause weight loss, and the system is not “supported by
impressive clinical results.” TAC ¶¶ 7-8. Ms.
Stokes further alleges Sensa, IBH, and TSI operated as a
single enterprise. Id. ¶¶ 134-35. Ms.
Stokes therefore seeks to recover against IBH and TSI, who
remain solvent. Id. ¶ 136.
February 9, 2018, Ms. Stokes sought certification of a
nationwide class defined as “[a]ll persons in the
United States who purchased Defendants' Sensa Weight-Loss
System, on or after August 22, 2012.” See ECF
No. 115. Following a hearing on September 4, 2018,
see ECF No. 127, the Court denied without prejudice
Ms. Stokes' motion, see generally ECF No. 128,
finding that Ms. Stokes had “not met her burden in
establishing that: (1) the class is ascertainable, (2) common
issues predominate over individual issues, and (3) the class
action is superior to other methods.” See Id.
at 31. Because the Court concluded that the identified
deficiencies might be curable, it granted Ms. Stokes leave to
file a renewed motion.
Stokes filed the instant motion on February 21, 2019. See
generally ECF No. 134. She now seeks to certify a
nationwide class defined as “[a]ll persons in the
United States who purchased the Sensa Weight-Loss System on
or after August 22, 2012 excluding purchases made directly
from Sensa, Inc. and Sensa Products, LLC.” Not. of
Renewed Mot. at 1 (footnote omitted). Alternatively, Ms.
Stokes seeks to certify a Florida class comprised of
“[a]ll persons who purchased the Sensa Weight-Loss
System in Florida on or after August 22, 2012 excluding
purchases made directly from Sensa, Inc. and Sensa Products,
for class certification proceed under Rule 23(a) of the
Federal Rules of Civil Procedure. Rule 23(a) provides four
prerequisites to a class action: (1) the class is so numerous
that joinder of all members is impracticable
(“numerosity”), (2) there are questions of law or
fact common to the class (“commonality”), (3) the
claims or defenses of the representative parties are typical
of the claims or defenses of the class
(“typicality”), and (4) the representative
parties will fairly and adequately protect the interests of
the class (“adequate representation”).
proposed class must also satisfy one of the subdivisions of
Rule 23(b). Here, Plaintiff seeks to proceed under Rule
23(b)(3), which requires that “the court find that
the [common questions] predominate over any questions
affecting only individual members [‘predominance'],
and that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy [‘superiority'].” The relevant
factors in this inquiry include the class members'
interest in individually controlling the litigation, other
litigation already commenced, the desirability (or not) of
consolidating the litigation in this forum, and
manageability. Fed.R.Civ.P. 23(b)(3)(A)-(D).
determining the propriety of a class action, the question is
not whether the plaintiff or plaintiffs have stated a cause
of action or will prevail on the merits, but rather whether
the requirements of Rule 23 are met.” Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)
(internal quotations omitted). “Rule 23 does not set
forth a mere pleading standard.” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rather,
“[a] party seeking class certification must
affirmatively demonstrate his compliance with the Rule- that
is, he must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or
fact, etc.” Id. The court is “at liberty
to consider evidence which goes to the requirements of Rule
23 even though the evidence may also relate to the underlying
merits of the case.” Hanon v. Dataproducts
Corp., 976 F.2d 497, 509 (9th Cir. 1992). A weighing of
competing evidence, however, is inappropriate at this stage
of the litigation. Staton v. Boeing Co., 327 F.3d
938, 954 (9th Cir. 2003).
their opposition to Plaintiff's initial motion for class
certification, Defendants contested Ms. Stokes standing in
various regards: (1) Ms. Stokes is a Florida resident who
neither purchased any Class Products in California during the
class period nor visited or purchased Class Products from the
Sensa websites; (2) Ms. Stokes did not suffer an injury
because she was happy with the products and accomplished her
goal of maintaining her weight; and (3) Ms. Stokes never
purchased two of the Class Products, Sensa for Men and Sensa
Advanced. ECF No. 119 at 7-10. The Court rejected
Defendants' arguments and concluded that Ms. Stokes has
standing to bring this action. See ECF No. 128 at
have incorporated their previously rejected arguments into
their Opposition to Ms. Stokes' Renewed Motion.
See Opp'n at 7 n.3. The Court again rejects
Defendants' arguments for the same reasons as in its
September 10, 2018 Order.
Rule 23(a) Requirements
Stokes must establish that the proposed class satisfies the
four requirements of Rule 23(a). In their opposition to Ms.
Stokes' initial motion for class certification,
Defendants challenged Ms. Stokes' typicality on the
grounds that she: (1) purchased the Class Products to
maintain-rather than to lose-weight, (2) experienced side
effects from use of the Class Products, (3) expressed
satisfaction with the Class Products, (4) used only one of
the three Class Products, and (5) did not see and rely on all
representations by Sensa. See ECF No. 119 at 10-13.
Defendants also argued that Ms. Stokes could not adequately
fulfill her duties as class representative because of her
health issues and unfamiliarity with this action. See
Id. at 13. The Court rejected each of these arguments
and determined that Ms. Stokes had met her burden as to each
of the Rule 23(a) requirements. See ECF No. 128 at
Defendants have incorporated their previously rejected
arguments into their Opposition to Ms. Stokes' Renewed
Motion. See Opp'n at 7 n.3. The Court again
rejects Defendants' arguments for the same reasons as in
its September 10, 2018 Order and concludes that Ms. Stokes
has satisfied the requirements of Rule 23(a).
Rule 23(b)(3) Requirements
23(b)(3) states that a class may be maintained if the
requirements of Rule 23(a) are fulfilled and if “the
court finds that the questions of law or fact common to the
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.” Fed.R.Civ.P. 23(b)(3).
Court previously determined that Ms. Stokes had failed to
satisfy either of these requirements because individual
issues concerning the arbitration provision applicable to
purchases of the Class Product through Sensa's website
and application of non-California law would overshadow common
issues and because a class action might not be superior given
the prior FTC settlement. See ECF No. 128 at 18-29.
Ms. Stokes' attempts to remedy these deficiencies by