“Remembrance of things past is not necessarily the remembrance of things as they were.” – Proust

The lesson of today’s case, Racies v. Quincy Biosciences, LLC, 2020 WL 2113852 (N.D. Cal. May 4, 2020), is worth remembering. Litigation can turn on recollections, and they can be fragile. (That is undoubtedly why documents end up being so important.) Such fragility can have implications not only in the eyes of the jury, but in the eyes of the judge. For example, poor memory can be a barrier to class certification.

But getting to that point can take a while.

In Racies, the plaintiff filed a consumer class action under under California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. (“UCL”), and Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq. (“CLRA”) against the manufacturer of a brain health supplement. The plaintiff alleged that the manufacturer falsely boasted that the supplement improved memory and supported brain function and clearer thinking. (Please hold your emails suggesting that we could use a gallon of this stuff.)

The court preliminarily certified a class of all California consumers who purchased the brain supplement. The case went to trial and the result was a hung jury. Both parties then filed motions for judgment as a matter of law. The defendant moved to decertify the class. The court denied the motions for judgment as a matter of law, but granted the defendant’s motion to decertify the class.

Why? It’s been said that one of the keys to happiness is a bad memory. In Racies, the plaintiff’s bad memory certainly delivered much happiness to the defendant.

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‘If you tell the truth, you don’t have to remember anything.” – Mark Twain.

If ever a case demonstrated the fragility of memory, Racies is it. During trial, the plaintiff testified that he purchased the brain supplement because he was “dealing with some memory recall issues” and wanted to purchase a product to help him “with those issues, focus, memory, recall.” The plaintiff testified that he believed the product could help him because of “what it says on the box. It says it targets enhancing memory and improving brain functioning. It — yeah, so it looked like it was targeted right for what I was feeling I needed help with at that time.” In response to a question as to what “specifically” about the product appealed to him, the plaintiff stated:
“That it addresses memory problems. It improves memory, focus, recall. It — it seemed like a — a relatively natural supplement. I remember the jellyfish reference, said clinical studies done on it, I think a blind placebo. I believe I got the impression in a relatively short amount of time I would — I would experience improvement in my memory.”

It obviously did not work.

Amazingly, the plaintiff did not introduce at trial any actual bottle of the product or any actual advertisement. Instead, the plaintiff brought in a drugstore receipt. That led to some fun cross-examination. The defense lawyer asked the plaintiff, “isn’t it the case [that the bottle of the supplement] you purchased did not say ‘Improves Memory’ on the front, but instead, said ‘Brain Cell Protection’? Isn’t that correct?”

Here is the plaintiff’s answer: “I – I couldn’t honestly tell you at this point.”

The label containing the claim of “Brain Cell Protection” makes various representations, but does not say “Improves Memory.” This concatenation of facts is what we folks in the business would call a problem for the not-remembering party.

How to get around this problem? You might think that the gap could be filled via admissions/testimony/documents from the defendant. That out was apparently not available in the Racies case. In fact, the President of the defendant was asked when the company first started selling the product with the “Brain Cell Protection” label or when it stopped using that particular label.

Can you guess what the President’s answer was? Sure you can. He “did not remember.”

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“Right now, I’m having amnesia and de ja vu at the same time. I think I’ve forgotten this before.” – Steven Wright.

The representative plaintiff’s vague and contradictory testimony about whether he ever saw the alleged false statements or whether the health claim at issue was even made to him undermined any basis for class certification. The court, of course, needed to explain why it certified the class pretrial and then decertified after trial. The explanation was not difficult. Pretrial, the plaintiff needed to demonstrate typicality and commonality to secure class certification. But the plaintiff’s pretrial promise of typicality “was not borne out by the evidence at trial.” During class certification, the plaintiff had argued that every package of the brain supplement claimed to improve memory. That turned out not to be true. It appears that there were different labels available on the shelves, and the plaintiff’s “equivocal” testimony underscored that the plaintiff “may not have been exposed to the same representations as the rest of the class.” Farewell, typicality.

Predominance, or absence thereof, was also now in play. The plaintiff’s candid admission that he could not honesty say whether he was exposed to the alleged misrepresentations demonstrated that it could not be presumed that the same material representations were relied upon by all members of the class. Therefore, proof of reliance could not be shown on a common basis, and common questions of fact did not predominate.

It is almost as if the plaintiff during trial did not remember the promises he made during class certification. Once the muddled record came in, the court had no choice but to decertify the class. Kudos to the defendant for continuing the fight against class certification even after the court’s adverse ruling and after trial began. All defense hacks should remember that.