The Early Bird Avoids the Class Action: Recent California Decision Reminds That Winning Summary Judgment Can Be the Ultimate Preemptive Tactic for Beating Class Certification


Defendants faced with putative wide-reaching class action litigation are equipped with a variety of strategies for defeating class certification.  One potential silver bullet, however, expires early, and defendants must deploy it even before a class certification motion is filed in order to wield it effectively.  The United States District Court for the Central District of California’s recent decision granting summary judgment to Unilever United States, Inc. in a would-be class action concerning its St. Ives Apricot facial scrub underscores this strategy for (successfully) defeating class certification: Win the case on summary judgment first.

In Browning et al. v. Unilever United States, Inc., two class representative plaintiffs alleged, among other things, that Unilever failed to disclose its facial scrub caused “micro-tears” of the skin.  Unilever filed for summary judgment before plaintiffs filed a motion to certify five classes: two for all persons who purchased the facial scrub in California and New York in 2012 and 2013; and three other classes for residents in a broad group of states. Plaintiffs sought full refunds for all members of each class, plus unspecified statutory damages for members in the three multi-state classes.

Plaintiffs asserted that St. Ives’ crushed walnut shell powder was too abrasive for facial skin, causing microscopic skin injuries that lead to acne and wrinkles. After analyzing the declaration of a dermatologist submitted by plaintiffs and statements by a Unilever corporate representative in connection with Unilever’s summary judgment motion, U.S. District Judge Andrew J. Guilford held that plaintiffs’ claims met an early “dead end.” The reasoning was two-fold.

First, plaintiffs failed to establish the alleged micro-tears themselves, or the allegedly resulting acne and wrinkles, constituted safety hazards. Accordingly, there was no actionable omission by Unilever, as plaintiffs failed to provide “sufficient evidence of a safety hazard or product defect that Defendant was required to disclose.” Second, the court held that causation was “especially lacking,” as there was no evidence establishing that St. Ives, and not “other products or lifestyle or sun damage or any other factor, produced acne [or] wrinkles.” On this point, the court stressed that the two plaintiffs were asymptomatic class representatives; neither claimed to have suffered from micro-tears in connection with the use of the scrub. Ultimately, the court held “[p]laintiffs’ allegations [were] too generalized and conjectural to survive summary judgment.”

The timing of Unilever’s summary judgment motion is instructive for those seeking to add to their arsenal of strategies for defeating class certification. Although the court’s decision technically applied only to the two putative class representatives, because plaintiffs filed for class certification after defendant filed for summary judgment, the court held that plaintiffs’ “class certification motion [wa]s moot.” Browning illustrates that a case primed for summary judgment early in the litigation can avoid the battle over class certification altogether. Defendants facing would-be class actions are wise to consider summary judgment early, and prior to plaintiffs’ motion for class certification, or risk wasting this tactic for combating class certification altogether.

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About the Author: Jack N. Frost Jr.

Jack N. Frost, Jr. is an experienced litigator and trial attorney focusing on products, toxic tort and mass tort litigation. Handling a significant array of high-stakes litigation cases, Jack routinely serves as national, regional and local trial and litigation counsel, coordinating the defense of clients ranging from individuals and small, independently owned companies to some of the largest multinational corporations in the world, having tried as first and second chair several noteworthy matters on their behalf.

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