Langan v. Johnson & Johnson Consumer Cos.

• Decision Date: 24 July 2018
• Docket Number: No. 17-1605,August Term, 2017,17-1605
• Citation: 897 F.3d 88
• Parties: Heidi LANGAN, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

897 F.3d 88

Heidi LANGAN, on behalf of herself and all others similarly situated, Plaintiff-Appellee,

v.JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendant-Appellant.

No. 17-1605

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: February 6, 2018

Decided: July 24, 2018

Mark P. Kindall, Izard, Kindall & Raabe, LLP, West Hartford, CT (Nicole A. Veno, Simsbury, CT, on the brief ), for Plaintiff-Appellee.

Harold P. Weinberger (Eileen M. Patt, Benjamin M. Arrow, on the brief ), Kramer Levin Naftalis & Frankel LLP, New York, NY, for Defendant-Appellant.

Before: Walker, Lynch, and Chin, Circuit Judges.

John M. Walker, Jr., Circuit Judge:

Connecticut resident Heidi Langan sued Johnson & Johnson Consumer Companies, Inc. ("Johnson & Johnson") on behalf of herself and "all others similarly situated" for deceptive labeling. Plaintiff alleged that several of the company’s baby products were labeled "natural" when they were not. Langan claimed that this labeling violated the Connecticut Unfair Trade Practices Act (CUTPA), as well as the state consumer protection laws of twenty other states, and sought to certify a plaintiff class. After both parties moved for summary judgment, the district court denied both motions, and certified a class of consumers who purchased two baby bath products in eighteen states.¹ We granted Johnson & Johnson leave to appeal the class certification. On appeal, Johnson & Johnson principally challenges the district court’s conclusions that (1) Langan has Article III standing to bring a class-action claim on behalf of consumers in states other than Connecticut and (2) the state laws in the other states are sufficiently similar to support certifying the class. Although we hold that Langan has Article III standing, on the record before us, it is not clear that the district court undertook the requisite considered analysis of the material differences in the state laws at issue before concluding that their similarities predominated over their differences. We therefore VACATE the district court’s grant of certification, and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Connecticut resident Heidi Langan purchased several Johnson & Johnson sunscreens and bath products for her baby in 2012. Langan alleges that she purchased those products in part because their labels said they contained "natural" ingredients. In reality, the products were made up of a high percentage of non-natural, non-water ingredients.

In October 2013, Langan sued Johnson & Johnson on behalf of herself and "all others similarly situated" alleging that the company’s labeling was deceptive and violated CUTPA as well as the "mini-FTC acts" of twenty other states. Langan sought to certify a plaintiff class and requested compensatory and punitive damages as well as attorney’s fees. Both parties moved for summary judgment.

The district court denied both parties’ motions for summary judgment and certified a class as to two bath products, but not the sunscreens. The two products, sold under the Aveeno Baby Brand, were the "Calming Comfort Bath" ("bath") and the "Wash and Shampoo" ("wash"). App’x 197. Johnson & Johnson petitioned for permission to appeal pursuant to Federal Rules of Civil Procedure 23(f), and we granted leave. On appeal, Johnson & Johnson principally challenges the district court’s conclusions that (1) Langan has Article III standing to bring a class-action claim on behalf of consumers in states other than Connecticut, and (2) the state laws in the other states are sufficiently similar to support certifying the class.²

DISCUSSION

"We review a district court’s decision to certify a class under Rule 23 for abuse of discretion, the legal conclusions that informed its decision de novo , and any findings of fact for clear error." Sykes v. Mel S. Harris & Assocs. LLC , 780 F.3d 70, 79 (2d Cir. 2015) (internal quotation marks omitted).

I. Article III Standing

Johnson & Johnson argues that Langan lacks constitutional standing to represent putative class members whose claims are governed by the laws of states other than Connecticut. Because a plaintiff’s standing to sue implicates our power to hear the case, we must consider the issue even though it was barely raised in and not addressed by the district court. See Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015) (noting that standing may be raised "for the first time on appeal").

"Article III, Section 2 of the Constitution limits the jurisdiction of the federal courts to the resolution of ‘cases’ and ‘controversies.’ " Mahon v. Ticor Title Ins. Co. , 683 F.3d 59, 62 (2d Cir. 2012) (internal quotation marks omitted). "To ensure that this bedrock case-or-controversy requirement is met, courts require that plaintiffs establish their standing as the proper parties to bring suit." Id. (internal quotation marks and alterations omitted). To have standing to sue, "a plaintiff must demonstrate (1) a personal injury in fact (2) that the challenged conduct of the defendant caused and (3) which a favorable decision will likely redress." Id.

Unremarkably, the parties agree that Connecticut’s consumer protection statute, CUTPA, does not apply to the purchase of bath and wash products in other states. Likewise, the parties agree that Langan herself has standing to sue Johnson & Johnson under CUTPA because she alleged that she paid a premium in Connecticut for the products, based on Johnson & Johnson’s representations that they were natural, and that those injuries can be redressed by an order compelling Johnson & Johnson to pay Langan money damages. See Mahon , 683 F.3d at 62.

The only point of contention is whether Langan has standing to bring a class action on behalf of unnamed, yet-to-be-identified class members from other states under those states’ consumer protection laws.

Because there has been considerable disagreement over this question in the district courts, we write to make explicit what we previously assumed in In re Foodservice Inc. Pricing Litigation , 729 F.3d 108 (2d Cir. 2013) : as long as the named plaintiffs have standing to sue the named defendants, any concern about whether it is proper for a class to include out-of-state, nonparty class members with claims subject to different state laws is a question of predominance under Rule 23(b)(3), id. At 126–27, not a question of "adjudicatory competence" under Article III, Morrison v. YTB Int’l, Inc. , 649 F.3d 533, 536 (7th Cir. 2011). Compare Richards v. Direct Energy Servs., LLC , 120 F.Supp.3d 148, 154–56 (D. Conn. 2015) (denying certification as to out-of-state class members for lack of standing), with In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig. , 701 F.Supp.2d 356, 376–77 (E.D.N.Y. 2010) (distinguishing standing from the Rule 23 inquiry and certifying class action brought under laws of multiple states after finding no standing problem).

"[A]s the Supreme Court has acknowledged, there is some ‘tension’ in its case law as to whether ‘variation’ between (1) a named plaintiff’s claims and (2) the claims of putative class members ‘is a matter of Article III standing ... or whether it goes to the propriety of class certification ....’ " NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co. , 693 F.3d 145, 160 (2d Cir. 2012) (quoting Gratz v. Bollinger , 539 U.S. 244, 263 & n.15, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) ). To understand why variations in state law present a class certification problem and not a constitutional standing problem, it is helpful to consider the complicated relationship between the standing requirement and class actions generally.

The doctrine of standing tests whether a prospective litigant may properly invoke the power of the federal courts. See Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The standing requirement acknowledges that not all injuries can be remedied by courts, and that even some injuries that could are the responsibility of the political branches instead. See id. ("The law of Article III standing serves to prevent the judicial process from being used to usurp the powers of the political branches." (internal quotation marks and alterations omitted)); Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). To avoid giving advisory opinions, we require that parties that come before us have a sufficient stake in the outcome of the case to render it a case or controversy. See Steel Co., 523 U.S. at 97, 101, 118 S.Ct. 1003 ; see also U.S. Const. art. III, § 2.

Class actions under Rule 23 of the Federal Rules of Civil Procedure are an exception to the general rule that one person cannot litigate injuries on behalf of another. See Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 348, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Through Rule 23, Congress has authorized plaintiffs to bring, under limited circumstances, a suit in federal court on behalf of, not just themselves, but others who were similarly injured. See id. at 348–49, 131 S.Ct. 2541. Such suits result in efficiencies of cost, time, and judicial resources and permit a collective recovery where obtaining individual judgments might not be economically feasible. See Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) ("The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights." (internal quotation marks omitted) ); Gen. Tel. Co. of the Sw. v. Falcon , 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Although a named class action plaintiff has not actually suffered the injuries suffered by her putative class members (and therefore would not normally have standing to bring those suits), Congress has said that the fact that the parties "possess the same interest" and "suffer[ed] the...