(Massachusetts Appeals Court)

• Opposing Consumer Protection Claims When the Consumer Suffers No Injury

In Kwaak v. Pfizer, Inc., the Massachusetts Appeals Court, agreeing with NELF and AIM, upheld the requirement of class-wide injury in consumer class actions.  The court held that consumers of Listerine mouthwash, which had been advertised to be “as effective as floss,” did not suffer similar injuries, as required for class certification under the Massachusetts Consumer Protection Act, G. L. c. 93A.  The court found that “the facts underlying the claims of the purported class are too diverse,” and on that basis reversed an order of the Superior Court granting class certification.  Distinguishing the case factually from others in which class certification has been upheld, the court determined that there was “insufficient information in the record to identify any such similarity of exposure, deception, and causation.”  With respect to the injury component in particular, the court explained: “[U]nclear is whether those exposed to the deceptive aspects of the advertising campaign purchased Listerine for reasons unrelated to the advertising, such as to freshen their breath or as an adjunct to flossing. … Whether a causal connection exists between a deceptive act and a loss is not just difficult to identify but appears to vary widely depending on the customer.”  In these circumstances, the court agreed with amici that there was no showing that the putative class consisted of consumers “similarly situated and similarly injured by a common deceptive act or practice,” as required for class certification under G. L. c. 93A.