Case: 21-20349 Document: 00516599127 Page: 1 Date Filed: 01/05/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 5, 2023
No. 21-20349 Lyle W. Cayce
Clerk
Emily Elson; Stacy Haavisto; Loretta Oakes;
Michelle Lanum; Tilly Dorenkamp; Dina Salas;
Arlene Rodriguez; Sharon Dalton; Allyson McCarthy;
Sheila Smith; Kelli Frederick; Joey Campbell;
Carol Richter; Brooke Neufeld,
Plaintiffs—Appellants,
versus
Ashley Black, an individual;
Ashley Diana Black International Holdings, L.L.C.,
a Delaware Corporation; ADB Interests, L.L.C.,
a Texas Corporation; Ashley Black Company; ADB
Innovations, L.L.C.; Ashley Black Guru; Ashely Black
Fasciology, L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-2125
Before Jones, Stewart, and Duncan, Circuit Judges.
Edith H. Jones, Circuit Judge:
Plaintiffs sued on behalf of themselves and putative class members to
redress consumer protection fraud claims and breach of warranty claims
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under the laws of multiple states. We find that the district court correctly
struck Plaintiffs’ class allegations and properly dismissed all but two of their
claims. We thus AFFIRM in part, REVERSE in part, and REMAND this
case to the district court.
Background
Fourteen women (“Plaintiffs”) from seven states brought the present
putative class action against Ashley Black and her companies
(“Defendants”), alleging false and deceptive marketing practices. They take
issue with various representations in Defendants’ ads about a product called
the FasciaBlaster, a two-foot stick with hard prongs that is registered with the
Food and Drug Administration as a massager. Purchasers are instructed to
use the FasciaBlaster by pressing its prongs into their skin to achieve a wide
variety of health benefits. According to Plaintiffs, Defendants falsely
advertised 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 1 asserted a claim under the Magnuson-Moss
Warranty Act, 15 U.S.C. § 2301, et seq., claims under multiple state statutes, 2
1
This case originated as two separate lawsuits—one filed in the Superior Court of
Los Angeles County, California, and one filed in the United States District Court for the
Central District of California. Those suits were consolidated in February 2018, and the
case proceeded in the Central District of California. But in September 2019, the court
found that it lacked personal jurisdiction over some Defendants and transferred the case to
the Southern District of Texas.
2
California Unfair Competition Law, Cal. Bus & Prof. Code § 17200, et seq.;
Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq.; Breach of Express Warranty,
Cal. Com. Code §§ 2313 & 10210; Breach of Implied Warranty, Cal. Com. Code §§ 2314
& 10212; Breach of Express Warranty under the Song-Beverly Warranty Act, Cal. Civ.
Code § 1791, et seq.; Nevada Deceptive Trade Practices Act, Nev. Rev. Stat. § 598.0903, et
seq.; Arizona Consumer Fraud Act, Ariz. Rev. Stat. §§ 44-1521, et seq.; Breach of Express
Warranty, Ariz. Rev. Stat. §§ 47-2313 & 47-2A210; Florida Unfair & Deceptive Trade
2
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and a claim for unjust enrichment. The complaint included class allegations
for both a nationwide class and for seven subclasses representing the seven
states in which Plaintiffs reside—Arizona, California, Florida, Louisiana,
Nevada, New York, and Ohio.
Defendants moved to strike Plaintiffs’ class allegations and to dismiss
the complaint for failure to state a claim. After a hearing and some limited
discovery, the district court struck the class allegations. The totality of the
district court’s analysis provided:
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.
Plaintiffs sought interlocutory review of the district court’s order,
which a split panel of this court denied. The next day, the district court
dismissed the remainder of Plaintiffs’ claims in their entirety. Plaintiffs
appealed the order striking the class allegations and the dismissal of
individual claims. 3 We discuss each decision in turn.
Practices Act, Fla. Stat. § 501.201, et seq.; Breach of Express Warranty, Fla. Stat.
§§ 672.313, 680.21; Louisiana Unfair Trade Practices & Consumer Protection Law, La.
Rev. Stat. § 51:1401, et seq.; Breach of Warranty against Redhibitory Defects, La. Civ. Cod.
art. 2520; Consumer Sales Practices Act, Ohio Rev. Code § 1345.01, et seq.; Deceptive
Trade Practices Act, Ohio Rev. Code § 4165.01, et seq.; Unlawful Deceptive Acts or
Practices, N.Y. Gen. Bus. Law § 349; False Advertising, N.Y. Gen. Bus. Law § 350.
3
Many of Plaintiffs’ arguments were not presented to this court on appeal and are
therefore forfeited. Rollins v. Home Depot U.S.A., 8 F.4th 393, 397 (5th Cir. 2021). This
opinion addresses only those that have been preserved in the briefing.
3
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A. Class Allegations
On appeal, Plaintiffs primarily argue that the district court failed to
conduct the “rigorous analysis” required by Rule 23 of the Federal Rules of
Civil Procedure and, accordingly, overlooked the fact that reliance is not an
element of many state statutes at issue. Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 351, 131 S. Ct. 2541, 2551 (2011) (internal quotation marks and
citation omitted). This court agrees that the district court’s order was
inappropriately brief. But we nonetheless decline to reverse the order
because its conclusion is sound.
“An order striking class allegations is functionally equivalent to an
order denying class certification.” Microsoft Corp. v. Baker, 137 S. Ct. 1702,
1711 n.7 (2017) (quotation marks omitted). District courts are permitted to
make such determinations on the pleadings and before discovery is complete
when it is apparent from the complaint that a class action cannot be
maintained. See John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th
Cir. 2007). 4 We review the district court’s judgment for abuse of discretion.
See Funeral Consumers Alliance, Inc. v. Service Corp. Int’l, 695 F.3d 330, 344–
45 (5th Cir. 2012); see also Baker, 137 S. Ct. at 1711 n.7.
Plaintiffs’ class pleadings were deficient as a matter of law. Rule 23(a)
provides four prerequisites for a class action: (1) numerosity;
(2) commonality; (3) typicality; and (4) adequacy of representation.
Rule 23(b)(3) then authorizes class certification where (1) “questions
common to the class members predominate over questions affecting only
individual members,” and (2) “class resolution is superior to alternative
4
See also Donelson v. Ameriprise Fin. Servs., Inc., 999 F.3d 1080, 1092 (8th Cir.
2021); Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011); Mills v.
Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008).
4
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methods for adjudication of the controversy.” Bell Atlantic Corp. v. AT&T
Corp., 339 F.3d 294, 301 (5th Cir. 2003). “It is the party seeking certification
who bears the burden of establishing that the requirements of Rule 23 have
been met.” Cruson v. Jackson Nat’l Life Ins. Co., 954 F.3d 240, 253 (5th Cir.
2020) (quotation marks and citation omitted).
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.” Amchem Prod.,
Inc. v. Windsor, 521 U.S. 591, 609, 117 S. Ct. 2231, 2243 (1997); see also
Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 601–02 (5th Cir. 2006)
(noting predominance is “similar” to commonality, but it “is ‘far more
demanding’ because it ‘tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.’” (quoting Unger v.
Amedisys, Inc., 401 F.3d 316, 320 (5th Cir. 2005)).
Plaintiffs are unable to establish predominance as a matter of law for
two reasons. 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.
Castano v. Am. Tobacco Co., 84 F.3d 734, 750 (5th Cir. 1996). 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 affect[ed] predominance.” Cole v. Gen. Motors Corp., 484 F.3d
717, 724 (5th Cir. 2007) (quotation marks omitted). 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
5
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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. “[I]n not
presenting a sufficient choice of law analysis,” Plaintiffs “failed to meet their
burden of showing that common questions of law predominate.” Spence v.
Glock, GmbH., 227 F.3d 308, 313 (5th Cir. 2000); see also Castano, 84 F.3d at
743 (reversing the district court’s class certification because its
“consideration of state law variations was inadequate” where the “surveys
provided by the plaintiffs failed to discuss, in any meaningful way, how the
court could deal with variations in state law”).
Regardless, variations in state law here “swamp any common issues
and defeat predominance.” Cole, 484 F.3d at 724 (quoting Castano, 84 F.3d
at 741) (internal quotation marks omitted); see also Casa Orlando Apartments,
Ltd. v. Fed. Nat’l Mortg. Ass’n, 624 F.3d 185, 195–96 (5th Cir. 2010)
(affirming denial of class certification where plaintiffs failed “to demonstrate
that state law variations” did not defeat predominance). Plaintiffs candidly
acknowledged this difficulty at hearing before the district court. And the
thorough explanation in their brief of the different reliance requirements of
the state laws implicated in this suit underscores this very point. Even if
Plaintiffs had made a proper showing, then, their class allegations would still
have been properly struck.
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
6
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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. See Castano, 84 F.3d at
745 (“[A] fraud class action cannot be certified when individual reliance will
be an issue.”); Cole, 484 F.3d at 727 (“[T]he economies ordinarily associated
with the class action device are defeated where plaintiffs are required to bring
forth individual proof of reliance” (internal quotation marks and citation
omitted)); see also McManus v. Fleetwood Enters., 320 F.3d 545, 550 (5th Cir.
2003); cf. Patterson v. Mobil Oil Corp., 241 F.3d 417, 419 (5th Cir. 2001)
(“Claims for money damages in which individual reliance is an element are
poor candidates for class treatment, at best.”).
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. See
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420 n.15 (5th Cir. 1998); Spence,
227 F.3d at 313. Plaintiffs failed to make such a showing.
As a thorough examination of the complaint reveals, Plaintiffs’ claims
are riddled with predominance issues and are unsuitable for class treatment.
Despite the brevity of the court’s order, we see no reason to reverse the
district court formalistically for its further elaboration on what is clear from
the face of the pleadings. The district court’s conclusion was sound. It
therefore did not abuse its discretion in striking the class allegations.
7
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B. Individual Claims
After striking the class allegations, the district court dismissed
Plaintiffs’ individual claims. The dismissed claims that Plaintiffs challenge
on appeal fall into two categories: consumer protection law fraud claims and
breach of express warranty claims. We review the district court’s judgment
as to each de novo. Budhathoki v. Nielsen, 898 F.3d 504, 507 (5th Cir. 2018).
1. Fraud Claims
As to the state consumer protection law fraud claims, the district court
applied the heightened pleading standard of Rule 9(b) of the Federal Rules of
Civil Procedure and held that Plaintiffs failed to plead “fraud with particular
facts of time, place, and content.” Plaintiffs challenge this holding in two
ways. First, they contend that Rule 9(b) does not apply to claims under the
New York statutes they invoke. Second, they argue that the district court
“imposed specificity requirements substantially greater than contemplated”
by the rule.
As to Plaintiffs’ first argument, the lone New York Plaintiff seeks
relief under New York General Business Law §§ 349 and 350. The Second
Circuit has held that Section 349 “is not subject to the pleading-with-
particularity requirements of Rule 9(b)” because Section 349 does not
require “proof of the same essential elements (such as reliance) as common-
law fraud.” Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir. 2005).
Plaintiffs invite us to adopt this holding and extend it to Section 350 claims.
The fact that Sections 349 and 350 are not traditional fraud statutes
does not necessarily mean that Rule 9(b) does not apply. “Rule 9(b) applies
by its plain language to all averments of fraud, whether they are part of a claim
of fraud or not.” Lone Star Ladies Inv. Club v. Schlotzsky’s, Inc., 238 F.3d 363,
368–69 (5th Cir. 2001); see also Bynane v. Bank of N.Y. Mellon, 866 F.3d 351,
360–61 (5th Cir. 2017). “Where averments of fraud are made in a claim in
8
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which fraud is not an element,” a court must “disregard averments of fraud
not meeting Rule 9(b)’s standard and then ask whether a claim has been
stated.” Lone Star Ladies, 238 F.3d at 368. The application of Rule 9(b) is
thus fatal when a claim is premised entirely upon a course of fraudulent
conduct that is not sufficiently pled. Id. (citing Melder v. Morris, 27 F.3d 1097,
1100 n.6 (5th Cir. 1994)); Bynane, 866 F.3d at 360–61. 5
Plaintiffs’ claims here rely entirely on Defendants’ allegedly
fraudulent conduct. The premise of this action is that Defendants
intentionally misrepresented the efficacy of the FasciaBlaster in order to
mislead Plaintiffs into purchasing it. Regarding the Section 349 and 350
claims specifically, Plaintiffs allege that Defendants made “untrue and/or
misleading” statements, representations, and omissions “willfully,
wantonly, and with reckless disregard for the truth.” Similar allegations are
present throughout the complaint. The district court therefore correctly
subjected the Section 349 and 350 claims to the heightened pleading
requirements of Rule 9(b).
Rule 9(b), in turn, demands “the who, what, when, and where [to] be
laid out before access to the discovery process is granted.” Williams v. WMX
Tech., Inc., 112 F.3d 175, 178 (5th Cir. 1997) (emphasis in original). Plaintiffs
must “specify the statements contended to be fraudulent, identify the
speaker, state when and where the statements were made, and explain why
the statements were fraudulent.” Id. at 177. “[S]imple allegations that
defendants possess fraudulent intent will not satisfy Rule 9(b).” Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008) (quotation marks and
citation omitted). Rather, to proceed to discovery, plaintiffs “must set forth
5
See also Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); Olin v.
Dakota Access, LLC., 910 F.3d 1072, 1075 (8th Cir. 2018).
9
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specific facts supporting an inference of fraud.” Dorsey, 540 F.3d at 339
(quotation marks and citation omitted) (emphasis in original).
The district court found that Plaintiffs’ allegations suffer from a
combination of defects, including a failure to plead adequately what
representations were actually made, when those representations were made,
who made the representations, and where those representations occurred.
Having reviewed Plaintiffs’ amended complaint, we agree. 6
To begin, Plaintiffs’ allegations inadequately allege when the
misrepresentations they relied upon occurred. Some provide the year and
month that Plaintiffs purchased the FaciaBlaster. Others provide the
approximate year and month the purchase was made. Two alleged only the
year in which the purchase was made. None of the Plaintiffs specify when
6
The district court ordered Plaintiffs to disclose to Defendants more specific
information concerning “each plaintiff’s alleged reliance including: (a) when, where, and
what happened, and (b) how much money each spent on what.” Plaintiffs provided those
disclosures, which added further specificity to their allegations. Plaintiffs never filed the
disclosures with the district court. Instead, Plaintiffs filed a status report that represented
the requested disclosures were provided to Defendants. The status report also requested
the court permit Plaintiffs to amend their complaint a third time to include the details in
the disclosures “[i]f the Court is inclined to grant” Defendants’ motion to dismiss. The
district court did not address this request, but rather granted the Defendants’ motion to
dismiss.
We do not consider the disclosures when applying Rule 9(b) because they are not
part of the complaint and are not even part of the record. Rule 9(b) is a pleading rule whose
requirements must be met within the contents of the complaint alone. Williams v. WMX
Tech., Inc., 112 F.3d 175, 178 (5th Cir. 1997). Furthermore, Plaintiffs’ request to amend the
complaint for the third time was not accompanied by any reasoning as to why such an
amendment was appropriate. The district court did not abuse its discretion by declining to
grant this request. See Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003).
10
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they viewed the allegedly fraudulent representations. That is insufficient. 7
See Williams, 112 F.3d at 177.
Plaintiffs’ allegations also inadequately allege the location of the
representations. For instance, many Plaintiffs assert that they saw Facebook
advertisements, but they fail to specify where on Facebook they saw those
advertisements. Others allege that they saw statements, pictures, or videos
on Defendants’ website, but they fail to specify where on the website they
saw them. One plaintiff alleges she saw a video on YouTube, but she does
not specify which YouTube video she saw. These omissions likewise doom
Plaintiffs’ complaint.
Plaintiffs’ allegations suffer from a combination of additional defects.
Some Plaintiffs, for example, fail to specify the representation upon which
they relied, as they merely allege that they saw a statement “to the effect
that” the FaciaBlaster would reduce cellulite or cause weight loss. Several
Plaintiffs failed to allege that it was Defendants who made the representation
in question. Plaintiffs’ claims thus fail to satisfy the dictates of Rule 9(b).
Plaintiffs attempt to avoid this result by citing United States v.
Kanneganti for the proposition that, depending “on the claim, a plaintiff may
sufficiently state with particularity the circumstances constituting fraud or
mistake without including all the details of any single court-articulated
standard.” 565 F.3d 180, 188 (5th Cir. 2009) (quotation marks and citation
omitted). The problem for Plaintiffs is that, as detailed above, their
7
In this respect, Plaintiffs contend that their second amended complaint “sets
forth the month and year the alleged fraudulent or materially misleading representations
were seen by each Plaintiff, noting each plaintiff purchased the at-issue product immediately
after viewing Appellees’ materially misleading representations.” That is a misstatement.
Plaintiffs allege they purchased the product “after viewing” the alleged
misrepresentations. The gap between when Plaintiffs viewed the allegedly false statements
and their ultimate purchases is anyone’s guess.
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allegations suffer from several fatal defects. Moreover, these defects
distinguish this case from the unpublished and out-of-circuit district court
opinions cited by Plaintiffs. See Click v. General Motors LLC, 2020 WL
3118577, *6 (S.D. Tex. 2020) (“The pleadings referenced specific
advertisements, press releases, and brochures issued by [defendant].”);
Stevens v. Ford Motor Co., 2020 WL 12573279, *3–4 (S.D. Tex. 2020)
(complaint detailed specific statements in specific advertisements); True v.
American Honda Motor Co., 520 F. Supp.2d 1175, 1183 (C.D. Cal. 2007)
(complaint contained class allegations that quote multiple allegedly false
statements, noting the exact date and publication in which they occurred).
For all these reasons, the district court properly dismissed Plaintiffs’
various fraud claims pursuant to Rule 9(b).
2. Express Warranty Claims
The only remaining claims are those of Plaintiffs Dalton and Smith for
breach of express warranty under, respectively, California Consumer Code
§§ 2313 & 10210, and Florida Statutes §§ 672.313 & 680.21.
The district court dismissed these claims on the ground that they
constituted “puffery.” But the district court did not apply the law of a
specific jurisdiction when conducting its analysis. Plaintiffs on appeal cite
various Fifth Circuit cases in addition to Texas and California state law
precedents. Defendants proffer Fifth Circuit, California, and Florida
precedents. Neither party, however, briefed what law should be applied to
each claim. We must reverse the dismissal of these claims with instruction
to reconsider the motion to dismiss in light of applicable state law. 8
8
The district court held that the Magnuson-Moss Warranty Act claims “succeed
or fail with the underlying state warranty claims.” It may therefore consider on remand
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Conclusion
The district court’s judgment is AFFIRMED in part, REVERSED in
part, and REMANDED.
those claims as they relate to Dalton’s and Smith’s state claims for breach of express
warranty.
13