No Class Certification |in Fresh Step Lawsuit

SAN FRANCISCO (CN) - A federal judge has denied certification of a class of consumers who say The Clorox Company made false claims about its Fresh Step cat litter.

The company advertised in 2010 and 2011 that its carbon-based litter product is "better at eliminating litter box odors" than the competing brand, Super Scoop, a baking soda-based product by Church & Dwight. C&D sued Clorox, won an injunction against the commercial and then settled privately out of court.

Citing C&D's evidence, consumers around the country sued Clorox for misrepresentation. They brought allegations under the consumer-protection laws of California, Florida, New Jersey, New York and Texas, as well as claims for breach of express warranty and unjust enrichment in those same states.

They claim Clorox tricked them into paying more for a brand of cat litter that C&D studies show is no more effective than soda-based cat litter.

U.S. District Judge Samuel Conti denied in part and granted in part Clorox's motion to dismiss in August 2013.

However, Conti denied class certification on Monday, holding "the class is not ascertainable and because common questions do not predominate."

He said, "the problem plaintiffs face is figuring out exactly who purchased Fresh Step during the class period. In their motion, plaintiffs do not propose any method for making this determination. None of the named plaintiffs in this case, for example, kept receipts for their purchases ... nor do consumers necessarily remember when they bought cat litter, which sizes, types or even brands of cat litter they purchased."

As a result, Conti said there is no "administratively feasible method of determining membership for the vast majority of potential members of plaintiff's proposed sub-classes. Therefore, plaintiffs' proposed classes are not ascertainable."

Conti also said the plaintiffs' common questions don't predominate over individual concerns and that there is a lack of typicality. "Plaintiffs' proposed classes are hopelessly overbroad and include many persons who likely never saw the allegedly misleading statements," he said in his 27-page order. "Those class members therefore could not have relied on the alleged misrepresentations to purchase Fresh Step. Class certification is denied with respect to all five proposed sub-classes."

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