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In re Dial Complete Mktg. & Sales Practices Litig.

In re Dial Complete Mktg. & Sales Practices Litig.

United States District Court for the District of New Hampshire

March 27, 2017, Decided; March 27, 2017, Filed

MDL Case No. 11-md-2263-SM

Opinion

 [*327]  ORDER

This consolidated, multi-district class action litigation is brought by consumers in Arkansas, California, Florida, Illinois, Missouri, Ohio, and Wisconsin, on behalf of themselves and similarly situated consumers in those states, against defendant, The Dial Corporation ("Dial"). Plaintiffs allege that Dial continually misrepresented the antibacterial properties of its "Dial Complete" branded soap, and advance claims under their respective state consumer protection and unfair trade practices statutes, as well as statutory and common law causes of action for breach of warranty and unjust enrichment.

On November 16, 2012, pursuant to Fed. R. of Civ. P. 23(b)(3), plaintiffs moved to certify a class consisting of each state's purported class members, for a total of eight subclasses, defined as: "All persons residing in [the state] [**5]  who purchased Dial Complete Antibacterial Foaming Hand Soap for household use at any point in time from Dial Complete's commercial launch in 2001 through the present."

The court ruled on plaintiffs' motion on December 8, 2015, finding that several of the claims asserted by the plaintiffs were incapable of classwide proof (including  [*328]  all the Wisconsin claims). For those claims remaining, the court found that plaintiffs failed to provide detail sufficient to permit a full assessment of whether damages could be adequately calculated on a classwide basis. Accordingly, the court denied plaintiffs' motion for certification, but allowed plaintiffs leave to file an amended motion for class certification to address deficiencies identified in the order.1

On June 24, 2016, plaintiffs filed an amended motion for class certification. Dial again objects. On November 16, 2016, the court held a hearing on the motion, and heard testimony from the parties' experts.

BACKGROUND

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320 F.R.D. 326 *; 2017 U.S. Dist. LEXIS 44383 **; 2017 DNH 051; 2017 WL 1155736

In re: Dial Complete Marketing and Sales Practices Litigation

Subsequent History: Appeal denied by, Motion denied by Carter v. Dial Corp., 869 F.3d 13, 2017 U.S. App. LEXIS 14207 (1st Cir., July 31, 2017)

Prior History: In re Dial Complete Mktg. & Sales Practices Litig., 804 F. Supp. 2d 1380, 2011 U.S. Dist. LEXIS 92698 (J.P.M.L., Aug. 18, 2011)

CORE TERMS

consumer, damages, conjoint, calculated, soap, premium, plaintiffs', products, class certification, marginal, reliable, market price, false claim, statistical, classwide, liquid, methodology, theory of liability, attributes, measuring, Germs, actual market, offending, features, demand curve, median, cases, misrepresented, certification, purported

Evidence, Admissibility, Expert Witnesses, Daubert Standard, Testimony, Qualifications, Burdens of Proof, Allocation, Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, Prerequisites for Class Action, Predominance, Torts, Remedies, Damages