Karhu v. Vital Pharmaceuticals, Inc.

Filing 154

ORDER denying 143 Plaintiff's Motion for Reconsideration of the Court's Order Denying Class Certification Pursuant to Fed. R. Civ. P. 23(c)(1)(C); denying 151 Plaintiff's Request for Oral Argument on Its Motion for Reconsideration of the Court's Order Denying Class Certification Pursuant to Fed. R. Civ. P. 23(c)(1)(C). Signed by Judge James I. Cohn on 7/17/2014. (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 MOTION FOR RECONSIDERATION
THIS CAUSE is before the Court upon Plaintiff's Motion for Reconsideration of
the Court's Order Denying Class Certification Pursuant to Fed. R. Civ. P. 23(c)(1)(C)
[DE 143] ("Motion"). The Court has reviewed the Motion, Defendant's Opposition [DE
145], Plaintiff's Reply [DE 149], Plaintiff's Notice of Supplemental Authority [DE 146],
and the record in this case, and is otherwise advised in the premises.
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
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 asserted the following claims:

(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;
(4) violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat.
§ 501.201, et seq.; and (5) violation of New York General Business Law § 349. DE 114
¶¶ 34–109.
Karhu styled his case as a class action, purporting to sue on behalf of all persons
in the United States who purchased Meltdown for purposes other than resale since
April 4, 2008. DE 70 at 2; DE 114 ¶ 28. On March 3, 2014, however, the Court entered
an order (the "Order") denying Karhu's Motion for Class Certification. DE 125. On March
31, 2014, Karhu responded with the instant Motion, seeking reconsideration of the
Court's denial of class certification. See DE 140.
II.

LEGAL STANDARD
Reconsideration of a prior order is an "extraordinary remedy to be employed

sparingly." Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370
(S.D. Fla. 2002). A motion for reconsideration is not a tool for relitigating what a court
has already decided. See Reyher v. Equitable Life Assurance Soc'y, 900 F. Supp. 428,
430 (M.D. Fla. 1995). Rather, the motion "must demonstrate why the court should
reconsider its prior decision and set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision." Id. (internal quotation marks omitted).
"Three major grounds justify reconsideration: (1) an intervening change in the
controlling law; (2) the availability of new evidence; and (3) the need to correct clear
error or prevent manifest injustice." Jones v. Jeld-Wen, Inc., No. 07-22328, 2008 U.S.
Dist. LEXIS 59600 at *3 (S.D. Fla. July 24, 2008); accord Williams v. Cruise Ships
Catering & Serv. Int'l, N.V., 320 F. Supp. 2d 1347, 1357–58 (S.D. Fla. 2004).
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III. DISCUSSION
Karhu raises four main arguments for the reconsideration of the Order. First,
Karhu contends that newly discovered evidence regarding the nature of VPX's sales
alters the class-certification analysis. Second, Karhu asserts that the Court's
consideration of difficulties in identifying class members presents a clear error of law.
Karhu also takes issue with the weight the Court accorded to its manageability
concerns, and suggests that denying relief in this case would result in manifest injustice.
Finally, Karhu argues that the Court should have certified a class action on behalf of a
sub-class of New York consumers. The Court rejects each of these arguments for
reconsideration, and will deny the Motion.
A. Karhu Has Not Presented Newly Discovered Evidence
In its Order, the Court found that the difficulty of identifying Meltdown purchasers
posed a hurdle to class certification. DE 125 at 5–6, 20. In the Motion, Karhu now
argues that newly discovered information about Meltdown sales relieves the Court's
concerns of such difficulties. Karhu represents that fewer than five hours before he filed
his motion for class certification, VPX produced new evidence in the form of Meltdown
sales data showing sales to third-party retailers. DE 143 at 6–8. Karhu believes that
these retailers will have records of individual purchasers who bought Meltdown on the
internet or with credit or debit cards, which could be used to ascertain the identities of
class members. Karhu contends that this new evidence suggesting alternative avenues
of identifying Meltdown purchasers justifies reconsideration of the Court's denial of class
certification. Id.
However, the late-produced records of Meltdown sales are not newly discovered
evidence, because they were available to Karhu before he filed his motion seeking class
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certification. Karhu argues that he only received the complete records five hours before
he filed his class-certification motion. Id. at 4. However, Karhu's filings illustrate that he
knew of Meltdown sales to third-party retailers days before he filed his class-certification
motion. See DE 70-15 at 4; DE 143 at 4. Indeed, Karhu filed spreadsheets reflecting
Meltdown sales to third-party retailers in support of his class-certification motion, and his
damages expert incorporated this information into his expert report in support of class
certification. See DE 70-15 Ex. 2. Karhu was aware of Meltdown sales to third-party
retailers well before he filed his class-certification motion, and nothing prevented him
from arguing at that time that the retailers' records would provide an additional avenue
of identifying Meltdown purchasers. The Court thus finds that Karhu's evidence of
Meltdown sales to third-party retailers is not "newly discovered" and does not justify
reconsideration of the Court's denial of class certification. See Williams, 320 F. Supp. 2d
at 1357–58.
B. Karhu Has Not Demonstrated Clear Error
Karhu next contends that reconsideration of the Order is necessary to correct
clear error. DE 143 at 8. Karhu argues that the Court applied an incorrect legal standard
in determining that his proposed class was not clearly ascertainable. Id. at 8–9. Karhu
argues that within the Eleventh Circuit, "ascertainability" refers to the need for a precise
class definition, and not the feasibility of identifying individual class members. Id. at 9.
Karhu thus contends that the Court clearly erred when it considered the practical
feasibility of identifying class members in ruling upon the ascertainability of his proposed
class. Id. at 9–10.
The Court recognizes that federal courts throughout the United States have
taken differing approaches to the substance of the ascertainability requirement for class
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certification. Compare Carrera v. Bayer Corp., 727 F.3d 300, 307–12 (3d Cir. 2013),
with Werdebaugh v. Blue Diamond Growers, No. 12-2724, 2014 U.S. Dist. LEXIS 71575
at *33–41 (N.D. Cal. May 23, 2014) (discussing state of ascertainability requirement in
Ninth Circuit). The Eleventh Circuit, however, has held that one aspect of a clearly
ascertainable class is that the identification of class members is administratively
feasible. Bussey v. Macon Cnty. Greyhound Park, Inc., __ F. App'x __, No. 13-12733,
2014 U.S. App. LEXIS 6067 at *13–16 (11th Cir. Apr. 2, 2014) (per curiam). The Court
thus rejects Karhu's contention that it committed clear error when it raised its concern
with administrative difficulties in identifying members of Karhu's proposed class in its
discussion of ascertainability. See DE 125 at 5–6.1
C. Karhu Does Not Establish "Manifest Injustice"
Justifying Reconsideration of the Order
Karhu also asserts that the Court erred because its manageability concerns were
insufficient to justify the denial of class certification. Id. at 10–13,14–15. This portion of
the Motion, however, does not rest upon an intervening change in law, new evidence, or
the need to correct clear error. Moreover, though Karhu phrases these arguments in
terms of the findings that are needed to avoid "manifest injustice," a review of the
papers shows that Karhu merely voices his disagreement with the weight the Court
accorded to each of the factors motivating its decision to deny class certification, and
his displeasure with the result that VPX may not be held accountable in this particular
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The Court further notes that its concerns regarding the identification of class
members also factored into its determination that a class action is not a superior method
of adjudicating the claims in this suit under Rule 23(b)(3) of the Federal Rules of Civil
Procedure. See id. at 20. But whether termed an aspect of ascertainability or Rule 23
superiority, the difficulties posed by identifying class members were appropriate for the
Court's consideration in determining whether to certify Karhu's proposed class.

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lawsuit for its alleged misconduct. See DE 149 at 4–5. Such arguments do not reflect a
real potential for manifest injustice, and rather evidence an attempt to re-litigate issues
already determined by the Court. Because a motion for reconsideration is not a tool for
relitigating what has already been decided (see Reyher, 900 F. Supp. at 430), these
arguments cannot support a grant of reconsideration. See Williams, 320 F. Supp. 2d at
1357–58.
D. Karhu Has Not Established the Propriety of a New York Sub-class
Finally, Karhu argues that the Court should have certified this action on behalf of
a sub-class of Meltdown purchasers from New York. DE 143 at 13–14. Karhu suggests
that the Court all but conceded that the certification of a class action solely on behalf of
New York consumers could move forward, but unreasonably refused to certify the
action even for that narrower group of individuals. The record in this case, however, tells
a different story.
Karhu brought this action as a nationwide consumer class action. As the plaintiff,
Karhu bore the burden of establishing that class certification was proper. See Heaven v.
Trust Co. Bank, 118 F.3d 735, 737 (11th Cir. 1997). In his papers, however, he provided no
meaningful analysis of the substantial variations in the state laws applicable to each of his
claims, and simply urged the Court to look past whatever differences might exist. See DE
70 at 15–18; DE 93 at 8–9. Taking together the individualized inquiries posed by variations
in the applicable state laws and the administrative difficulties of identifying members of the
proposed class, the Court determined that Karhu had failed to satisfy his burden of
establishing the propriety of class certification. DE 125 at 12–18. At the same time,
however, the Court acknowledged that Karhu's claims would face fewer obstacles to class

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certification if he brought the claims only on behalf of his fellow New York consumers under
New York law. Id. at 20.
Karhu has now seized upon the Court's acknowledgment that the New York subclass is less problematic than his proposed nationwide class to argue that the Court erred
by failing to certify a class action on behalf of only New York consumers. DE 143 at 13–14.
However, Karhu has not established in his class-certification or reconsideration papers that
certification of a New York sub-class for his claims would be appropriate, even were the
Court to revisit its determination that difficulties in identifying individual class members
weigh against certification. For example, certain of Karhu's claims under New York law
would appear to require individualized factual inquiries in relation to each class member,
weighing against class certification under Rule 23(b)(3). See Weiner v. Snapple Beverage
Corp., No. 07-8742, 2010 U.S. Dist. LEXIS 79647 at *35–37 (S.D.N.Y. Aug. 3, 2010)
(rejecting certification for New York express-warranty claim because reliance element under
New York law called for individualized inquiries). In short, the burden is on Karhu to show
that class treatment is desirable, and he has not met this burden even with respect to a New
York sub-class. See Heaven, 118 F.3d at 737.

IV. CONCLUSION
Karhu has failed to establish grounds for reconsideration of the Court's denial of
class certification. Karhu's newly discovered evidence of Meltdown sales to third-party
retailers was not in fact "newly discovered." The Court did not clearly err when it
considered the administrative feasibility of identifying class members in arriving at its
decision to deny class certification. Karhu has not shown that the denial of class
certification resulted in manifest injustice that would justify reconsideration. Nor has

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Karhu shown that the Court erred by declining to certify a class action only on behalf of
New York consumers. It is accordingly
ORDERED AND ADJUDGED that Plaintiff's Motion for Reconsideration of the
Court's Order Denying Class Certification Pursuant to Fed. R. Civ. P. 23(c)(1)(C) [DE
143] is DENIED. It is further
ORDERED AND ADJUDGED that Plaintiff's Request for Oral Argument on Its
Motion for Reconsideration of the Court's Order Denying Class Certification Pursuant to
Fed. R. Civ. P. 23(c)(1)(C) [DE 151] is DENIED as moot.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 17th day of July, 2014.

Copies provided to:
Counsel of record via CM/ECF

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