Does a Putative Class Plaintiff Have Standing to Sue on Behalf of Consumers Who Purchased Similar But Not Identical Products? Circuit Split

Vasic v. Patent health, LLC, 2014 U.S. Dist. LEXIS 33181 (S.D. Ohio Mar. 10, 2014):

First, Defendants contend Plaintiff does not have standing for any claims based on the Fast-Acting Trigosamine Product because Plaintiff never purchased this product. In response, Plaintiff argues that he can assert claims on behalf of the class based on the Fast-Acting Product, regardless of whether he purchased the Product, because both Products share the same primary ingredients and are substantially similar. As a result, Plaintiff contends he has standing to assert claims on behalf of the putative class with regard to both Products--Max Strength Trigosamine and Fast-Acting Trigosamine.

In addressing this issue, the parties recognize that district courts in this circuit are currently split on whether a plaintiff has standing to bring claims on behalf of consumers who purchased similar, but not  [*17] identical products. See Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 921--22 (N.D. Cal. May 10, 2012) (noting divergence and collecting cases). Some courts strictly construe standing to only permit a representative plaintiff to bring a claim on behalf of a class for products he or she actually purchased. See, e.g., Allen v. Hylands, Inc., No. CV 12--01150 DMG (MANx), 2012 WL 1656750, at *5 (C.D. Cal. May 2, 2012). Other courts have held that a representative plaintiff may have standing for products he or she did not purchase where there are "substantial similarities" between the purchased and unpurchased products. See, e.g., Anderson v. Jamba Juice Co., 888 F. Supp. 2d 1000, 1004--05 (N.D. Cal. 2012); Astiana v. Dreyer's Grand Ice Cream, Inc., Nos. C-11-2910 EMC, C-11-3164 EMC, 2012 WL 2990766, at *11--13 (N.D. Cal. July 20, 2012). Still other courts have declined to engage in a standing analysis at the motion to dismiss juncture, and instead, deferred ruling on the issue until the class certification stage to determine whether the plaintiff may properly serve as a class representative under Rule 23. See, e.g., Dorfman v. Nutramax Labs. Inc., No. 13cv0873 WQH (RBB), 2013 WL 5353043, at *5--8 (S.D. Cal. Sept. 23, 2013);  [*18] Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984, 990--92 (E.D. Cal. 2012).

The Court finds the "substantially similar" standard persuasive and the issue of whether the plaintiff has standing to assert claims on behalf of a class for a product he did not purchase better adjudicated at class certification. Under this standard, a representative plaintiff on a motion to dismiss must only demonstrate that the product he purchased is substantially similar to the product(s) he did not purchase. Astiana v. Dreyer's Grand Ice Cream, Inc., Nos. C-11-2910 EMC, C-11-3164 EMC, 2012 WL 2990766, at *11 (N.D. Cal. July 20, 2012) (stating that the "critical inquiry seems to be whether there is sufficient similarity between the products purchased and not purchased"). Here, Plaintiff alleges that he only purchased Max-Strength Trigosamine, but that both Max-Strength and Fast-Acting share the same primary active ingredient--Glucosamine Hydrochloride. Plaintiff further alleges that although the Products contain other minor ingredients these ingredients are inconsequential. The Court agrees. Any lingering factual disputes regarding the similarities of the Products and Plaintiff's standing to bring claims based  [*19] on a Product he did not purchase is better addressed at class certification. Accordingly, the Court DENIES Defendants' motion to dismiss Plaintiff's claims relating to the Fast-Acting Product.

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