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FITZPATRICK v. GENERAL MILLS, INC.
635 F.3d 1279 (2011)
Julie FITZPATRICK, on behalf of herself and all others similarly situated, Plaintiff-Appellee,
v.
GENERAL MILLS, INC., Defendant-Appellant.
No. 10-11064.
United States Court of Appeals, Eleventh Circuit.
March 25, 2011.
Sanford Svetcov, Robbins, Geller, Rudman & Dowd, LLP, San Francisco, CA, Adam M. Balkan, John Bledsoe Patterson, Balkan & Patterson, LLP, Stuart A. Davidson, Mark J. Dearman, Cullin Avram O'Brien, Douglas S. Wilens, Robbins, Geller, Rudman & Dowd, LLP, Jonathan Matthew Stein, Law Office of Jonathan M. Stein, P.L., Boca Raton, FL, Timothy G. Blood, Lerach, Coughlin, Stoia & Robbins, L.L.P., Leslie Hurst, Thomas O'Reardon, Blood, Hurst & O'Reardon, LLP, San Diego, CA, John R. ClimaCo, Climaco, Lefkowitz, Peca, Wilcox & Garofolic Co., LPA, Cleveland, OH, Jayne A. Goldstein, Shepherd, Finkelman, Miller & Shah, LLP, Weston, FL, David G. Pastor, Gilman & Pastor, LLP, Boston, MA, for Plaintiff-Appellee.
Brian C. Anderson, Anjali Wagle Phillips, Sri Srinivasan, O'Melveny & Myers, Washington, DC, Amy Lane Hurwitz, Wendy F. Lumish, Angela Teresa Puentes, Carlton Fields, PA, Miami, FL, Joseph H. Lang, Jr., Carlton Fields, P.A., Tampa, FL, for Defendant-Appellant.
Carl E. Goldfarb, Boies, Schiller & Flexner, LLP, Ft. Lauderdale, FL, for Amici Curiae.
Before BARKETT, MARCUS and FAY, Circuit Judges.
FAY, Circuit Judge: This is an interlocutory appeal from the district court's grant of class certification. The Appellee, Julie Fitzpatrick ("Fitzpatrick"), alleges that the Appellants, General Mills, Inc. and wholly-owned subsidiary Yoplait USA, Inc. (collectively, "General Mills"), violated the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. § 501.201 et seq., and breached an express warranty by making false and misleading claims about the digestive health benefits of YoPlus yogurt. On appeal, the Appellants contend that individualized issues predominate over common issues, and therefore the
district court abused its discretion in granting class certification under Federal Rule of Civil Procedure 23(b)(3) on the FDUTPA claim. Further, the Appellants contend that the district court abused its discretion by defining the class as "all persons who purchased YoPlus in the State of Florida to obtain its claimed digestive health benefit," since such a definition requires individualized fact-finding. We find that the class as certified is not consistent with the analysis of the law performed by the district court. While we agree with the legal analysis, we are confused by the class as defined. Consequently, we vacate the order certifying the class and remand for reconsideration by the district court. I. BACKGROUNDIn July 2007, General Mills began advertising and selling YoPlus. YoPlus is ordinary yogurt supplemented with probiotic bacteria, inulin, and vitamins A and D. The mixture of probiotic bacteria and inulin in YoPlus allegedly provides habitual consumers with digestive health benefits by aiding in the promotion of digestive health. The alleged digestive health benefit was promoted in General Mills' nationwide marketing campaign to introduce YoPlus to the United States market. The campaign consisted of television commercials, print promotional materials with coupons, in-store advertising, promotions to health professionals, internet advertising, as well as the claims made on YoPlus packaging. In early 2008, Fitzpatrick was exposed to General Mills' representations about YoPlus' purported digestive health benefits via television commercials, coupons, and seeing the product packaging in various stores. Fitzpatrick decided to try YoPlus because she thought that its taste and other characteristics would surpass those of other probiotic yogurts, and that it would promote her digestive health in ways that normal yogurt would not. Over the following year, Fitzpatrick bought and consumed approximately 24 four-pack cartons of YoPlus. She claims, however, that her digestive health was the same before, during, and after eating YoPlus. Thus, she contends that General Mills' digestive health benefit claim has allowed General Mills to sell YoPlus for an average of 44% more than Yoplait Original brand yogurt despite the fact that it provides no digestive health benefit that cannot be obtained by eating normal yogurt. On March 17, 2009, Fitzpatrick filed suit on behalf of herself and proposed class members against General Mills alleging that General Mills violated the FDUTPA, Fla. Stat. § 501.201 et seq., and breached an express warranty by making false and misleading claims that YoPlus provides digestive health benefits that other yogurt products do not. Fitzpatrick moved to certify a class composed of all persons who purchased YoPlus in the State of Florida. General Mills opposed class certification, claiming that individualized issues concerning whether members of the purported class purchased YoPlus for digestive health reasons predominated over any questions common to the class, precluding class certification. On January 11, 2010, the district court issued its Order on Motion for Class Certification. The district court found that each of the requirements in Federal Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and adequacy of representation—were met for both the FDUTPA and the breach of warranty claim, but that the requirements in Federal Rule of Civil Procedure 23(b) were met only for the FDUTPA claim. Specifically, the district court found that Fitzpatrick had satisfied the requirements in Federal
Rule of Civil Procedure 23(b)(3) for the FDUTPA claim as (1) common issues predominated over individualized issues and as (2) a class action was a superior method of adjudicating this controversy. Thus, the district court granted class certification as to the FDUTPA claim, and denied class certification as to the breach of warranty claim. The court then defined the class as "all persons who purchased Yo-Plus in the State of Florida to obtain its claimed digestive health benefit." General Mills timely filed this appeal alleging that the district court committed reversible error in determining that common issues predominate over individualized issues and in defining the class in a manner that requires individualized fact-finding to ascertain the members of the class.
1. The analysis would lead one to believe that the class would be defined as "all persons who purchased YoPlus in the State of Florida."
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