With Circuits Mis-Aligned, Sixth Circuit Stays Class Certification Pending Appeal

As our readers may remember, Procter & Gamble ("P&G") stomached a loss last August when the Sixth Circuit affirmed certification of a false advertising class action regarding P&G's Align probiotic supplement. But on October 27, the Sixth Circuit stayed its decision pending P&G's petition for certiorari to the Supreme Court. As discussed below, P&G contends that plaintiffs have not sufficiently demonstrated a common injury.

P&G began to sell Align in 2005, mainly through doctor-driven sales. In 2009, it launched a widespread promotional campaign. Plaintiffs alleged Align was "snake oil" that produced only a placebo effect rather than true digestive health benefits. The three named plaintiffs had purchased the supplements in several different states, including California, Florida, Illinois, New Hampshire and North Carolina. The suit was originally filed in California federal court before it was moved to Ohio federal court, where U.S. District Judge Timothy S. Black