Ninth Circuit Confirms That Winning Early Summary Judgment May Be the Ultimate Preemptive Tactic for Beating Class Certification


The Ninth Circuit has confirmed that a lack of summary judgment evidence linking a product to concrete injury may properly halt a would-be class action in its tracks if a defendant preemptively moves for summary judgment before plaintiffs have the chance to move for class certification.

As we explored in an earlier post, the plaintiffs in Browning et al. v. Unilever United States Inc. represented a would-be class alleging that defendant Unilever failed to disclose that its St. Ives facial scrubs caused “micro-tears” of the skin. In early 2019, the United States District Court for the Central District of California granted summary judgment in favor of Unilever. The court held that the plaintiffs failed to establish the alleged micro-tears constituted a safety hazard, and found that causation was lacking because the plaintiffs presented no evidence that St. Ives — and not some “other products or lifestyle” choices — caused the complained-of skin conditions.

The plaintiffs appealed to the Ninth Circuit, where they argued that the district court erred by failing to consider supplemental expert evidence, provided in support of the plaintiffs’ motion for class certification, as part of its analysis at the summary judgment stage.

Affirming the district court’s decision, the Ninth Circuit agreed that the plaintiffs “provided no summary judgment evidence linking ‘micro-tears’ caused by Unilever’s facial scrubs to any concrete injuries.” At most, the court found that the plaintiff’s expert opined “only that an impaired stratum corneum [i.e., the outer layer of the skin] ‘can increase chances of unquantified and unobserved health risks.” (Emphases in original.) Most damning to the plaintiffs was the fact that they used the facial scrubs “for years,” but did not show any of the conditions about which their expert warned.

Turning to the plaintiffs’ argument concerning supplemental expert evidence, the Ninth Circuit stressed the importance of procedure at the summary judgment stage. The court noted that a non-movant’s burden at summary judgment is to identify “evidence establishing a genuine issue of material fact in its opposition to summary judgment.” (Emphasis in original.) Because the plaintiffs failed to do so here, the court found no error.

The Ninth Circuit’s decision in Browning confirms 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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