Karhu v. Vital Pharmaceuticals, Inc.

Filing 125

ORDER denying 70 Plaintiff's Motion for Class Certification. Signed by Judge James I. Cohn on 3/3/2014. (ns)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-60768-CIV-COHN/SELTZER
ADAM KARHU, on behalf of himself and all
others similarly situated,
Plaintiff,
v.
VITAL PHARMACEUTICALS, INC., d/b/a VPX
SPORTS,
Defendant.
/
ORDER DENYING CLASS CERTIFICATION
THIS CAUSE is before the Court upon Plaintiff's Motion for Class Certification
[DE 70] ("Motion"). The Court has considered the Motion, Defendant's Response
[DE 89], and Plaintiff's Reply [DE 93], and is otherwise advised in the premises. For the
reasons discussed herein, the Court will deny the Motion.1
I.

BACKGROUND
Defendant Vital Pharmaceuticals, Inc., ("VPX") is a Florida corporation that

manufactures and markets a dietary supplement called VPX Meltdown Fat Incinerator
("Meltdown"). DE 114 ¶¶ 1, 7. VPX advertises that consumers can use Meltdown to
"burn fat" and achieve rapid fat loss. Id. ¶ 1. Plaintiff Adam Karhu, a New York resident
1

The parties have also filed dueling motions to strike expert declarations
submitted in connection with the class certification issue. See DE 88 (Defendant's
Evidentiary Objections and Motion to Strike Declaration of Colin V. Weir Filed in Support
of Plaintiff's Motion for Class Certification); DE 104 (Plaintiff's Motion to Strike the
Declaration of Dr. Laila Haider in Support of Defendant's Response in Opposition to
Plaintiff's Motion for Class Certification). Because the expert materials subject to the
motions to strike do not impact the Court's conclusions with regard to the propriety of
class certification, the Court will deny the motions to strike as moot.

who purchased Meltdown, claims that the product is ineffective for its advertised
purpose. Id. ¶¶ 1, 5–6. On April 3, 2013, Karhu filed this lawsuit to recover damages
based upon VPX's alleged false advertisements, and to enjoin any further
misrepresentations. See generally DE 1.
Karhu has styled his suit as a class action. He purports to bring the suit on
behalf of all persons in the United States who have purchased Meltdown for purposes
other than resale since April 4, 2008 (the "Nationwide Class"). DE 70 at 2; DE 114 ¶ 28.
Karhu also proposes a subclass comprising all members of the Nationwide Class who
purchased Meltdown in New York (the "New York Subclass," collectively the "Proposed
Classes"). DE 114 ¶ 28. Karhu asserts the following claims seeking monetary and
injunctive relief on behalf of the Nationwide Class: (1) breach of express warranty under
the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301, et seq.; (2) breach of
express warranty; (3) unjust enrichment; and (4) violation of the Florida Deceptive and
Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. § 501.201, et seq. DE 114 ¶¶ 34–94.
Karhu also brings a claim solely on behalf of the New York Subclass for violations of
New York General Business Law § 349. DE 114 ¶¶ 95–109. In his Motion, Karhu now
asks the Court to certify the Proposed Classes under Rule 23(b)(2) and (b)(3) of the
Federal Rules of Civil Procedure.
II.

LEGAL STANDARD
Rule 23 of the Federal Rules of Civil Procedure governs class actions and

provides in pertinent part:
(a) Prerequisites. One or more members of a class may sue or be sued
as representative parties on behalf of all members 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
2

claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
(b) Types of Class Actions. A class action may be maintained if
Rule 23(a) is satisfied and if:
...
(2) the party opposing the class has 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; or
(3) the court finds 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.
Fed. R. Civ. P. 23. An action may be maintained as a class action only if all four
prerequisites of Rule 23(a) are satisfied and the requirements of one of the subsections
of Rule 23(b) are met. Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir. 1997).
A plaintiff seeking certification of a class also "must establish that the proposed class is
'adequately defined and clearly ascertainable.'" Little v. T-Mobile USA, Inc., 691 F.3d
1302, 1304 (11th Cir. 2012).
In deciding whether to certify a class, a district court has broad discretion.
Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir.
1992). Although a district court shall not determine the merits of a case at the
certification stage, sometimes it "may be necessary for the court to probe behind the
pleadings before coming to rest on the certification question." Id. at 1570 n.11 (quoting
Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982)). A court should certify a class only if
the court is satisfied, after rigorous analysis, that the prerequisites of Rule 23 have been
met. Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th Cir. 1984). "The burden of

3

establishing these requirements is on the plaintiff who seeks to certify the suit as a class
action." Heaven, 118 F.3d at 737.
III. DISCUSSION
The Court declines to certify Karhu's Proposed Classes because of the
administrative difficulties they present. Karhu states that "this case is ideally suited for
class treatment" (DE 93 at 10) because it arises from a uniform pattern of false
advertising by VPX that caused similar harms to Meltdown purchasers across the
country. Close examination of the classes and claims, however, shows that the case
would be unmanageable as a class action. First, the Court lacks a practical method of
verifying membership in the Proposed Classes of Meltdown purchasers. No central
record of Meltdown customers exists, and it is unlikely that each Meltdown purchaser
since 2008 has retained a proof of purchase. Second, the claims of the Nationwide
Class implicate the laws of multiple states. The varied requirements of the states' laws
would require different proof on each claim depending on the locations of the class
members. These legal permutations would render an eventual trial unwieldy, and would
overshadow the common factual questions that otherwise unite the class members'
claims. As illustrated by the following step-by-step discussion of the class certification
analysis, class treatment of this action is therefore inappropriate.
A. Karhu Has Adequately Defined His Proposed Classes
A plaintiff seeking class certification must first craft a class definition clear
enough to allow the Court to understand whether a particular individual is a member of
the class. Little, 691 F.3d at 1304; Pottinger v. City of Miami, 720 F. Supp. 955, 957–58
(S.D. Fla. 1989). Karhu's Nationwide Class includes all persons in the United States
who have purchased Meltdown for purposes other than resale since April 4, 2008.
4

DE 70 at 2. The New York Subclass includes those members of the Nationwide Class
who purchased Meltdown in New York. Id. The proposed class definitions clearly and
simply encompass each individual who purchased Meltdown within a stated timeframe,
and on whose behalf Karhu attempts to bring suit. Karhu has therefore sufficiently
defined his proposed classes. See Pottinger, 720 F. Supp. at 957–58.
B. The Proposed Classes Are Not Ascertainable
Having adequately defined the Proposed Classes, Karhu must demonstrate that
they are ascertainable. Little, 691 F.3d at 1304. A class is ascertainable if the Court
can determine whether a given person is a class member through administratively
feasible methods. See In re Checking Account Overdraft Litig., 286 F.R.D. 645, 650–51
& n.7 (S.D. Fla. 2012). Because Karhu has failed to propose a realistic method of
identifying the individuals who purchased Meltdown, he has failed to show that the
Proposed Classes are sufficiently ascertainable.
Karhu suggests that VPX's sales data would allow the Court to identify members
of the Proposed Classes. DE 93 at 4. VPX, however, makes the bulk of its sales to
distributors and retailers, and sells directly to consumers relatively infrequently. DE 89
at 5. Accordingly, VPX does not have a record of the identities of most members of the
Proposed Classes. DE 89-1 ¶ 7.
Further, a bottle of Meltdown is a relatively small purchase compared with, for
example, a car or a major appliance. Because purchasers are less likely to retain
receipts or other records of minor purchases, courts have been reluctant to rely on
those proofs to ascertain the identities of class members. See Red v. Kraft Foods, Inc.,
No. 10-1028, 2012 U.S. Dist. LEXIS 186948, at *14–19 (C.D. Cal. Apr. 12, 2012)
(suggesting that court cannot ascertain consumer class using receipts of small
5

purchases); True v. ConAgra Foods, Inc., No. 07-00770, 2011 U.S. Dist. LEXIS 6770,
at *15–17 (W.D. Mo. Jan. 4, 2011) (denying class certification where there was no
customer "master list" and it was unlikely that consumers had retained receipts of minor
purchases). Here, most Meltdown purchasers since April 4, 2008, probably have not
retained their receipts or other proofs of purchase. Accordingly, the Court doubts that it
could glean the identities of most class members from existing documentary evidence.
Nor will the Court trust individuals to identify themselves as class members
through the submission of affidavits. Accepting affidavits of Meltdown purchases
without verification would deprive VPX of its due process rights to challenge the claims
of each putative class member. See McLaughlin v. Am. Tobacco Co., 522 F.3d 215,
232 (2d Cir.), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553
U.S. 639 (2008). On the other hand, allowing VPX to contest each affidavit would
require a series of mini-trials and defeat the purpose of class-action treatment. Using
affidavits to determine class membership would also invite fraudulent submissions and
could dilute the recovery of genuine class members. See Carrera v. Bayer Corp., 727
F.3d 300, 305–09 (3d Cir. 2013) (rejecting affidavits as proof of class membership in
consumer class action based upon potential for fraudulent submissions).
In short, Karhu has not suggested any practical means of verifying class
membership through existing evidence, and the Court will not allow individuals to
identify themselves as class members solely upon a sworn statement. Karhu has
therefore failed to demonstrate that the Proposed Classes are ascertainable. This issue
alone justifies denial of the Motion, however the Court will continue through the
remaining class certification factors in the interests of clarity and thoroughness.

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C. Karhu Has Satisfied the Requirements of Rule 23(a)
A plaintiff seeking class certification must demonstrate that the class satisfies the
four prerequisites of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and
(4) adequacy of representation. The parties have stipulated that the numerosity
requirement is satisfied. DE 70 at 10; DE 89 at 7. The Court concludes that Karhu has
also satisfied the remaining three factors of Rule 23(a).
i.

Karhu Has Satisfied the Commonality Requirement

The commonality requirement of Rule 23(a)(2) demands "questions of law or fact
common to the class." Fed. R. Civ. P. 23(a)(2). It is a "relatively light burden" that
"does not require that all the questions of law and fact raised by the dispute be
common . . . or that the common questions of law or fact predominate over individual
issues." Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009) (internal
quotation marks omitted). Rather, it requires only "that there be at least one issue
whose resolution will affect all or a significant number of the putative class members."
Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (internal
quotation marks omitted).
Karhu's claims each rest upon the fundamental premise of his Complaint: that
Meltdown is ineffective for its advertised purpose of causing fat loss. See, e.g., DE 114
¶ 1. His claims and those of the Proposed Classes share many common factual
questions, such as the nature and extent of VPX's advertisement of Meltdown as a "fat
burner" and whether Meltdown is effective for that purpose. Karhu therefore has shown
questions of fact common to the Proposed Classes, satisfying the commonality
requirement of Rule 23(a)(2).

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VPX argues that Karhu nevertheless cannot establish commonality because he
has "failed to prove predominance of common class claims" and because "each claim
asserted by [Karhu] would require in depth inquiry of all class members . . . defeating
the purpose of class actions." DE 89 at 8–9. Even taking VPX's assertions as true,
they do not speak to commonality, which does not require that common issues
predominate. Instead, Karhu need only show that one common issue exists, which he
has done. See Williams, 568 F.3d at 1355.
i.

Karhu's Claims Are Typical of the Class's Claims

Rule 23(a)(3) requires that "the claims or defenses of the representative parties
[be] typical of the claims or defenses of the class." A named plaintiff's claims are
"typical" of the class's claims when the claims each arise from the same "event or
pattern or practice and are based on the same legal theory." Kornberg v. Carnival
Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). The permissive typicality
standard does not require the claims of the representative and class members to be
identical; instead, the representative's claims need only be "reasonably co-extensive
with those of the absent class members." In re Checking Account Overdraft Litig., 281
F.R.D. 667, 675 (S.D. Fla. 2012).
Karhu premises his claims upon VPX's practice of marketing Meltdown as a "fat
burner." Karhu contends that Meltdown does not burn fat or otherwise contribute to fat
loss. Karhu therefore alleges that he suffered harm when he paid for the ineffective
Meltdown. This simple allegation of the purchase of a product ineffective for its primary
purpose is uniform across Karhu's claims and the claims of the Proposed Classes, and
forms the basis for their shared theories of recovery against VPX. The Court therefore
finds the element of typicality satisfied.
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VPX argues that Karhu's claims are nevertheless atypical of the Proposed
Classes' claims because the amount paid for Meltdown and the quantity of capsules
purchased varies from class member to class member. DE 89 at 10. Accordingly, each
class member suffered a different amount of harm. The typicality requirement,
however, pertains to the factual and legal theories underlying a party's claims, and not
the quantity of harm suffered. "Differences in the amount of damages between the
class representative and other class members does not affect typicality." Kornberg, 741
F.2d at 1337.
VPX also suggests that Karhu's claims are not typical because he cannot state
with certainty whether he lost body fat while consuming Meltdown or whether he used
Meltdown as directed. DE 89 at 9. Karhu, however, does not premise his claims upon
his personal experience using Meltdown. Instead, Karhu alleges that he and members
of the Proposed Classes suffered harm at the time of purchase, when they paid money
for a useless product because of VPX's false advertisements. See, e.g., DE 114
¶¶ 43–46, 55–57, 63. The details of Karhu's post-purchase use of Meltdown do not
impact whether his claims for point-of-purchase injury are reasonably co-extensive with
those of other class members.
Finally, VPX argues that Karhu's claims are not typical because he "had no
opinion about the efficacy of Meltdown prior to speaking with counsel." DE 89 at 9.
Whether Karhu knew about Meltdown's inefficacy before conversations with counsel,
however, does not impact the merits of his claim that he overpaid for Meltdown based
on VPX's allegedly false advertisements. VPX has failed to rebut Karhu's showing that

9

his claims and the claims of the Proposed Classes share theories of recovery based
upon the same factual pattern, and that the typicality requirement is satisfied.
i.

Karhu and His Attorneys Will Adequately
Represent the Proposed Classes

Under Rule 23(a)(4), the Court must be satisfied that the "representative parties
will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4).
This requirement applies to both the named plaintiff and his counsel. London v.
Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003). The purpose of the
adequacy requirement is to protect the legal rights of the unnamed class members.
Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987). "This 'adequacy
of representation' analysis encompasses two separate inquiries: (1) whether any
substantial conflicts of interest exist between the representatives and the class; and
(2) whether the representatives will adequately prosecute the action." Valley Drug Co.
v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003).
The Court finds that both Karhu and his attorneys will adequately protect the
interests of the class. Karhu's claims and interests in recovering amounts paid for an
ineffective product are aligned with those of the class members. Moreover, Karhu has
shown himself willing to participate vigorously in the pursuit of the Proposed Classes'
claims throughout this litigation. See DE 70 at 12. Karhu's counsel, on the other
hand—lawyers from the firms of Bursor & Fisher, P.A., and Thornton, Davis & Fein,
P.A.—are experienced class-action attorneys capable of giving this lawsuit the attention
and expertise it warrants. See DE 70 at 12–13.
VPX nevertheless contests the adequacy of both Karhu and his counsel. VPX
argues that Karhu cannot adequately represent the class because he initially mistook

10

the date and source of his Meltdown purchase, did not form a belief that Meltdown was
ineffective until he spoke with his attorneys, and paid a different amount for his
Meltdown purchase than other class members may have paid. DE 89 at 10–11. As
discussed in relation to Karhu's typicality, however, none of these issues appreciably
impact the merits of Karhu's claims or his interest in obtaining a recovery for himself and
other class members.
VPX also questions Karhu's motives, noting that Karhu never sought medical
attention for the feelings of malaise he allegedly suffered while consuming Meltdown,
and that he never complained of the product to VPX, instead taking his grievances
directly to his attorneys. Id. at 11. These innuendos do not disturb the Court's
conclusion that no substantial conflicts exist between Karhu's interests and those of the
class, and that Karhu has and will continue to adequately prosecute this action.
With regard to Karhu's attorneys, VPX argues that they have conducted
themselves unprofessionally, exhibit unfamiliarity with the Federal Rules of Civil
Procedure and the Court's local rules, and exercised insufficient diligence when
accepting Karhu as a client. DE 89 at 11–12. The Court recognizes that relations
among counsel and the parties in this action have been less than civil at times. Neither
side is entirely without blame, however, and the Court does not consider the contentious
nature of this dispute to be of such a magnitude as to render Karhu's attorneys
inadequate as class counsel. To the extent the Court ultimately determines that
attorneys for any party have participated in misconduct, it will address those issues
through appropriate sanctions. Moreover, the Court flatly rejects VPX's contention that
Karhu's counsel lack relevant expertise. Their firms, Bursor & Fisher, P.A., and

11

Thornton, Davis & Fein, P.A., have ample experience litigating class actions and have
achieved substantial successes for their clients.
D. Predominance Under Rule 23(b)(3)
In addition to satisfying the prerequisites of Rule 23(a), Karhu must establish that
his class action fits within one of the categories of allowable actions under Rule 23(b).
Karhu has chosen to proceed primarily under Rule 23(b)(3), which provides for class
actions where common questions of law or fact predominate over the class members'
individual issues and a class action is the superior method of managing the claims.
Because the Court's predominance analysis differs with respect to each of the claims,
the Court will determine whether Karhu has shown that common issues predominate on
a claim-by-claim basis.
i.

Common Issues Do Not Predominate on the MMWA Claim

A MMWA express written warranty claim draws its substantive elements from the
applicable state warranty law. The applicable state warranty law in this action is the law
of the state where each class member purchased Meltdown. Because warranty law
differs from state to state, the legal issues peculiar to each state's members of the
Nationwide Class will likely predominate over common legal and factual questions,
rendering Rule 23(b)(3) certification of the MMWA claim inappropriate.
Karhu's MMWA claim alleges the breach of an express written warranty. DE 114
¶¶ 38–48. The MMWA explicitly draws its elements from state law with respect to
claims for breach of implied warranty. 15 U.S.C. § 2301(7) ("The term 'implied warranty'
means an implied warranty arising under State law . . . ."). The MMWA is not so clear
with regard to express warranties, however, causing some confusion as to whether the
MMWA also adopts state-law elements of claims for breach of express warranty. Hill v.
12

Hoover Co., 899 F. Supp. 2d 1259, 1266 (N.D. Fla. 2012). The legislative history of the
MMWA suggests that, while the drafters of the statute intended to exclude express oral
warranties from its coverage, they did not intend to displace state-law requirements for
claims pertaining to express written warranties. Walsh v. Ford Motor Co., 807 F.2d
1000, 1015–16 (D.C. Cir. 1986). Upon review of the relevant authorities, the Court
therefore agrees with the conclusion of the Hon. Stephan P. Mickle of the Northern
District of Florida that the MMWA does not define a stand-alone federal cause of action
for breach of express written warranty, but instead "borrow[s] state law causes of action
for breach of both written and implied warranties." Hill, 899 F. Supp. 2d at 1266; accord
Walsh, 807 F.2d at 1012 ("We hold . . . [that the MMWA] calls for the application of state
written and implied warranty law, not the creation of additional federal law.").
Because the MMWA express written warranty claim takes its requirements from
the applicable state warranty law, the Court must determine which state's warranty law
applies to the claims of the Proposed Classes. See Walsh, 807 F.2d at 1012. In
making choice-of-law determinations, the Court will apply the rules of the state in which
it sits: Florida. See David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d 1309, 1315 (S.D.
Fla. 2009). Under Florida's choice-of-law analysis, warranty claims are contractual in
nature. S. Broad. Grp., LLC v. Gem Broad., Inc., 145 F. Supp. 2d 1316, 1324 (M.D. Fla.
2001), aff'd, 49 F. App'x 288 (11th Cir. 2002). Florida applies the rule of lex loci
contractus to contract claims, thus the law of the forum in which the parties executed
their contract will apply. State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160,
1163 (Fla. 2006). In the case of a consumer product, the place of contracting is
generally where the consumer purchased the product. See David, 629 F. Supp. 2d

13

at 1316. Therefore, the law governing each class member's warranty claim is the law of
the state where he purchased the Meltdown.
As the party seeking certification of a nationwide class with claims implicating the
laws of multiple states, Karhu bears the burden of convincing the Court that common
issues predominate over the different questions posed by each state's law. See Klay v.
Humana, Inc., 382 F.3d 1241, 1262 (11th Cir. 2004), abrogated on other grounds by
Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008); Cohen v. Implant
Innovations, Inc., 259 F.R.D. 617, 625 (S.D. Fla. 2008). Karhu does not address the
impact of the many potentially applicable state laws in any real depth. Karhu attempts
to sidestep the issue in his Reply by shifting the burden to VPX, noting that VPX has not
identified material differences between Florida's warranty law and the laws of other
states. DE 93 at 8. However, it is the plaintiff—Karhu—who must convince the Court
that common issues predominate. See Klay, 382 F.3d at 1262.
Karhu's Reply does cite to a handful of cases to suggest that the elements of a
warranty claim do not differ from state to state. DE 93 at 8. None of the collected
authorities, however, state unequivocally that the requirements for a cause of action
premised upon a breach of express warranty are identical across the fifty states. To the
contrary, "the laws of the various states differ . . . [, for example,] in whether they require
proof of . . . privity to make successful claims for breach [of express warranty]." Alligood
v. Taurus Int'l Mfg., Inc., No. 06-3, 2009 U.S. Dist. LEXIS 131371, at *12, *25–27 (S.D.
Ga. Mar. 4, 2009) (declining to certify nationwide class asserting Magnuson-Moss
express warranty claim). As the Court has held with regard to Karhu's erstwhile claim
for breach of implied warranty, Karhu and other consumers who purchased Meltdown

14

via intermediate retailers are not in privity with VPX. DE 34 at 12–14. Whether a lack of
privity defeats each class member's claim thus poses an individualized inquiry based
upon the class member's location.
Similarly, some states require each plaintiff asserting a warranty claim to
demonstrate that he actually relied on the representation at issue. Cole v. Gen. Motors
Corp., 484 F.3d 717, 726 (5th Cir. 2007) (collecting cases). Proving a class member's
actual reliance upon VPX's representations would require individualized proof that the
class member saw VPX's advertisements that Meltdown burns fat and bought Meltdown
as a result. See id. at 726–27 (reversing grant of class certification because proving
actual reliance required individual inquiries). The potential need to prove actual reliance
therefore threatens individualized factual inquiries depending upon each class
member's location.
In short, varied state laws would govern the MMWA claims of class members
across the country, imposing different legal requirements and overshadowing the
common factual bases of the claims. Moreover, some of these laws would require
individualized proof inappropriate for class treatment, such as proof of actual reliance
upon VPX's advertisements. In light of the differences among applicable laws and the
potential need for individualized proof, the Court finds that individualized legal and
factual issues predominate over the common aspects of the Proposed Classes' MMWA
claims, rendering class certification inappropriate under Rule 23(b)(3). See Alligood,
2009 U.S. Dist. LEXIS 131371, at *13–16.
ii.

Common Issues Do Not Predominate on the Express Warranty Claim

Because the applicable state warranty law governs the merits of a MMWA
express written warranty claim, the predominance analysis for state-law express written
15

warranty claims and MMWA express written warranty claims is functionally identical.
See Walsh, 807 F.2d at 1016–17. The Court's conclusion that individualized issues
predominate over common ones in relation to the MMWA claims therefore applies with
equal force to the Proposed Classes' state-law claims for breach of an express written
warranty. See DE 114 ¶¶ 50–57.
iii.

Common Issues Do Not Predominate
on the Unjust Enrichment Claim

Karhu assumes with minimal discussion that Florida's law on unjust enrichment
applies to the claims in this nationwide class action. See DE 70 at 17–18. Unjust
enrichment claims are quasi-contractual, however, and Florida’s courts apply the same
lex loci contractus analysis to contract and quasi-contract claims. David, 629
F. Supp. 2d at 1316–17. Therefore, the applicable law for each class member’s unjust
enrichment claim is the law of the state where he purchased Meltdown. See
supra p. 13.
Some courts have found variation in unjust enrichment laws to preclude a finding
of predominance for multistate classes asserting unjust enrichment claims. See Clay v.
Am. Tobacco Co., 188 F.R.D. 483, 500–01 (S.D. Ill. 1999) (cataloguing differences in
state unjust enrichment laws and denying class certification). Karhu points out that
other courts have noted that there are "minimal actual differences between the unjust
enrichment laws in each of the 50 states." DE 93 at 8 (quoting AFSCME v. Cephalon,
Inc. (In re Actiq Sales & Mktg. Practices Litig.), 790 F. Supp. 2d 313, 322 (E.D. Pa.
2011)). Beyond conclusory assertions that variations in the elements of unjust
enrichment claims throughout the United States are immaterial, however, Karhu offers
no persuasive analysis of the potentially applicable unjust enrichment laws, or why the

16

Court should overlook differences among those laws to find that common questions
predominate. The Court thus concludes that Karhu has failed to satisfy his burden of
establishing that common issues predominate with regard to the unjust enrichment
claims of the Proposed Classes. See Klay, 382 F.3d at 1262.
iv.

Common Issues Do Not Predominate
on the Unfair Trade Practices Claim

Karhu asserts that FDUTPA governs the unfair trade practices claims of
members of the Proposed Classes throughout the country because the Court, in a prior
Order granting VPX's motion to dismiss the First Amended Complaint, recognized that
"FDUTPA applies 'to claims of out-of-state consumers if the offending conduct occurred
predominantly or exclusively in Florida.'" DE 93 at 8 (quoting DE 34 at 17). However,
the Court's prior determination related to whether out-of-state consumers could ever
invoke FDUTPA's protections, and did not squarely address choice-of-law issues. See
DE 34 at 17–18. The Court now turns to choice-of-law on the unfair trade practices
claims for the first time, and finds that the laws of each class member's home state
govern. Karhu has failed to show that common issues predominate in light of the varied
applicable laws, thus class certification is inappropriate.
Florida applies a "most significant relationship" test to determine which state's
laws apply to tort claims, including claims under unfair trade practices regimes such as
FDUTPA. Cohen, 259 F.R.D. at 634. This test requires the Court to examine: (1) the
place where the injury occurred; (2) the place where the harmful conduct occurred;
(3) the domicil, residence, nationality, place of incorporation, and place of business of
the parties; and (4) the place (if any) where the parties' relationship is centered. Id.
at 635 (citing Restatement (Second) of Conflict of Laws § 145 (1971)). Here, the

17

alleged injury occurred where each class member purchased Meltdown. The harmful
conduct—the allegedly false advertising—occurred both in Florida, where VPX has its
principal place of business and presumably generated its advertisements, and at the
point of purchase, where VPX's representations were displayed on Meltdown
packaging. The class members are domiciled throughout the country, whereas VPX is
a Florida corporation with its principal place of business in Florida. Finally, given that
most class members purchased Meltdown from intermediaries throughout the country,
there is no particular location where the parties' relationships are centered. Taking all of
these factors together, the Court concludes that the state with the most significant
relationship to each class member's claim is the state where the individual purchased
Meltdown. This conclusion is buttressed by the interest each state has in enforcing its
unfair trade practices laws for the well-being of its own consumers. See Wilks v. Ford
Motor Co. (In re Ford Motor Co. Ignition Switch Prods. Liab. Litig.), 174 F.R.D. 332, 348
(D.N.J. 1997) ("Each plaintiff's home state has an interest in protecting its consumers
from in-state injuries caused by foreign corporations . . . ."); accord Hutson v. Rexall
Sundown, Inc., 837 So. 2d 1090, 1094 (Fla. 4th DCA 2003) (finding unfair trade
practices laws of consumers' home states governed in purported nationwide FDUTPA
class action). Given the significant variation in unfair trade practices statutes throughout
the country, and the lack of a showing by Karhu to the contrary, the Court finds that
Karhu has failed to establish that common issues predominate with respect to the unfair
trade practices claims.
v.

Common Issues Predominate on the N.Y. Gen. Bus. Law § 349 Claim

As discussed with regard to the FDUTPA claim, the unfair trade practices laws of
the state where each class member purchased Meltdown govern the class member's
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unfair trade practices claim. Accordingly, New York's unfair trade practices statute—
General Business Law § 349—applies to the claims of the New York Subclass. A
plaintiff claiming a violation of section 349 must show "that a defendant has engaged in
(1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff
suffered injury as a result of the allegedly deceptive act or practice." City of N.Y. v.
Smokes-Spirits.com, Inc., 911 N.E.2d 834, 838 (N.Y. 2009). Here, VPX marketed
Meltdown to consumers by representing that product would burn fat and cause fat loss.
Whether VPX's representations are ultimately true is an issue common to the claims of
each class member. Whether each class member was harmed by paying money for an
ineffective product is also susceptible to common proof. The Court thus finds that
common issues predominate with respect to the section 349 claim of the New York
Subclass. Accord Seekamp v. It's Huge, Inc., No. 09-00018, 2012 U.S. Dist. LEXIS
33295, at *30–33 (N.D.N.Y. Mar. 13, 2012) (finding common questions to predominate
on consumer claims of misrepresentative advertising under N.Y. Gen. Bus. Law § 349).
E. A Class Action Is Not Superior Under Rule 23(b)(3)
Having determined that common issues predominate only with regard to the
section 349 claims of the New York Subclass, the Court now turns to the second prong
of the Rule 23(b)(3) test: whether "a class action is superior to other available methods
for fairly and efficiently adjudicating" the claims. The predominance and superiority
analyses are intertwined, because where there are "predominant issues of law or fact,
resolution in one proceeding efficiently resolves those issues with regard to all claimants
in the class." Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1006 n.12 (11th Cir.
1997). The Court may also consider:

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(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.
Fed. R. Civ. P. 23(b)(3).
The kaleidoscope of issues presented by the claims of the Nationwide Class
under the many applicable state laws would produce an unmanageable parade of minitrials. Maintenance of the suit as a multistate class action is therefore impractical. Of
course, the Court need not accept Karhu's proposed class definitions, and may define
narrower classes or break them up into subclasses to facilitate the management of the
case. Fed. R. Civ. P. 23(c)(4), (5); Grillasca v. Hess Corp., No. 05-1736, 2007 U.S.
Dist. LEXIS 53356, at *10 (M.D. Fla. July 24, 2007). The Court could theoretically
certify Karhu's proposed New York Subclass to allow pursuit of the section 349 claim,
and perhaps also the MMWA, express warranty, and unjust enrichment claims as
limited to New York consumers. This solution would reduce the problems raised by
applying the laws of multiple states. Karhu, however, has brought this action first and
foremost as a nationwide class action, and the Court declines to drastically redefine the
action sua sponte as one only on behalf of New York consumers. Moreover, even a
narrower class definition would not address the Court's concern that there is no
administratively feasible way of ascertaining the identity of individual class members.
See supra pp. 5–6. In light of these practical difficulties, the Court concludes that the
maintenance of a class action—either on behalf of the Nationwide Class or the New

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York Subclass—is not the superior method of adjudicating this controversy. The Court
will accordingly deny class certification under Rule 23(b)(3).
F. Karhu Has Not Presented a Proper Rule 23(b)(2)
Action for Declaratory or Injunctive Relief
Karhu also seeks class certification pursuant to Rule 23(b)(2). Rule 23(b)(2)
allows for certification of a class seeking declaratory or injunctive relief that would be
generally applicable to the class as a whole. "A declaratory or injunctive relief class
pursuant to Rule 23(b)(2) is appropriate only if 'the predominant relief sought is
injunctive or declaratory.'" DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 469 F. App'x
762, 765 (11th Cir. 2012) (per curiam). Accordingly, when a plaintiff seeks both
monetary and injunctive or declaratory relief, a Rule 23(b)(2) class is only appropriate if
the monetary relief is merely incidental to the other relief. Id. Monetary relief is
"incidental" when the primary aim of a suit is to obtain a generally applicable group
remedy. Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001). Group remedies
tend to be those pursued by a cohesive class sharing a relevant preexisting legal
relationship or common trait, such as race or gender. Stalley v. ADS Alliance Data
Sys., Inc., No. 11-1652, 2013 U.S. Dist. LEXIS 167156, at *31–35 (M.D. Fla. Nov. 25,
2013), reconsideration denied, 2013 U.S. Dist. LEXIS 175929 (M.D. Fla. Dec. 16,
2013). By way of contrast, the Proposed Classes share no significant preexisting
relationships beyond the purchases that form the basis for this suit. Further, the
injunctive relief Karhu requests takes a back seat to the apparent principal aim of the
lawsuit: to recover damages based upon the amount each individual class member paid
for an ineffective product. Because the Proposed Classes "lack the class cohesiveness

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that distinguishes (b)(2) from (b)(3) actions," Hammett v. Am. Bankers Ins. Co., 203
F.R.D. 690, 696 (S.D. Fla. 2001), the Court will deny certification under Rule 23(b)(2).
IV. CONCLUSION
In sum, the Court declines to grant class certification of this action. Karhu has
satisfied the requirements of Rule 23(a) with regard to the Proposed Classes, however
he has failed to establish that common issues predominate and that a class action is the
superior means of resolving this controversy under Rule 23(b)(3), or that certification of
a Rule 23(b)(2) class is appropriate. It is accordingly
ORDERED AND ADJUDGED that Plaintiff's Motion for Class Certification
[DE 70] is DENIED. It is further
ORDERED AND ADJUDGED that Defendant's Evidentiary Objections and
Motion to Strike Declaration of Colin V. Weir Filed in Support of Plaintiff's Motion for
Class Certification [DE 88] and Plaintiff's Motion to Strike the Declaration of Dr. Laila
Haider in Support of Defendant's Response in Opposition to Plaintiff's Motion for Class
Certification [DE 104] are DENIED as moot.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 3rd day of March, 2014.

Copies provided to:
Counsel of record via CM/ECF

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