Fourteen women from seven states brought a present putative class action against Ashley Black and her companies alleging false and deceptive advertising associated with claims that the FasciaBlaster was able to virtually eliminate cellulite, help with weight loss, and relieve pain. Defendants also allegedly lied about the product’s effects being supported by scientific studies. Plaintiffs’ complaint asserted claims under the Magnuson-Moss Warranty Act, multiple state statutes, and for unjust enrichment. The complaint included class allegations for both a nationwide class and seven sub-classes. Defendants moved to strike Plaintiffs’ class allegations. After a hearing and some limited discovery, the district court struck the class allegations: “Because the basis for the claims are misrepresentations, reliance on them will be a key factor with every potential plaintiff. Reliance is intrinsically an individual determination – what is sufficient for reliance of one person may not be the same for others. The court is not convinced that commonality is present as each potential plaintiff would have to show that their reliance was justified.”

Color Wheel

Although the Fifth Circuit agreed with the plaintiffs that the District Court’s analysis was inappropriately brief, the striking of class allegations was affirmed:

“The district court struck the class allegations for failure to demonstrate commonality. But we look to predominance, as Rule 23(a)(2)’s commonality requirement is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class predominate over other questions.

“First, different state laws govern different Plaintiffs’ claims. The district court was required to consider differences in state law when discerning whether a class action is the appropriate vehicle for this suit. But the burden was on Plaintiffs to assure the district court that such differences in state law would not predominate over issues individual to each plaintiff in the litigation. They were thus obliged to provide an extensive analysis of state law variations so that the district court could consider how those variations affected predominance. The district court specifically requested Plaintiffs submit a list of the requirements of the states in question, as it noted that various states have differing requirements regarding notice and pre-suit requirements. Plaintiffs’ counsel responded that he was not fully up on all the laws. Then, as far as we can tell from the record, he failed to follow up with the relevant information. In not presenting a sufficient choice of law analysis, Plaintiffs failed to meet their burden of showing that common questions of law predominate.

“The second reason Plaintiffs cannot establish predominance is that Plaintiffs’ allegations introduce numerous factual differences that in no way comprise a coherent class. For one, the named plaintiffs do not complain about the same alleged misrepresentations. Some are disgruntled because they expected the FasciaBlaster to reduce cellulite. Others are dissatisfied because they expected it to reduce their pain or address certain health concerns. And others are displeased because they expected it to help them lose weight. Discerning the truth or falsity of each representation would require a group-by-group analysis, complicated by the fact that the members of each group are from different states. Moreover, even within these groups, the possibility of class analysis disintegrates because the members did not rely on the same alleged misrepresentations. The district court focused on this point, which is a hallmark in this court’s class action jurisprudence and is relevant to predominance as much as commonality.

“As an alternative, Plaintiffs proposed seven state-specific subclasses under Rule 23(c)(5) to the extent subclasses were necessary to preserve the possibility of proceeding as a class. But that did not relieve them of their duty to show each subclass independently satisfied the Rule 23 requirements. ‘Subclass’ is not a magic word that remedies defects of predominance. The burden is on Plaintiffs to demonstrate to the district court how certain proposed subclasses would alleviate existing obstacles to certification. Plaintiffs failed to make such a showing.”



Elson v. Black, No.21-20349, 2023 U.S. App. LEXIS 257 (5th Cir. Jan. 5, 2023).