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This Note determines that whether a named plaintiff has standing to assert claims relating to unpurchased products is a question of class standing and is therefore a question for the Rule 23 class certification stage of litigation. However, in certain situations, a named plaintiff’s claims against unpurchased products should not survive a defendant’s motion to dismiss. Accordingly, this Note proposes a test to determine when the claim should survive. At the motion to dismiss stage of litigation, a named consumer protection class action plaintiff’s claims relating to products purchased by unnamed members of the putative class should survive defendant’s motion when there is “sufficient similarity” between the unpurchased products and the product plaintiff actually purchased. Such a determination, calling for an analysis into the similarity of claims, is better suited for the Rule 23 class certification stage of litigation than the motion to dismiss stage. Federal district courts should presume sufficient similarity between the products (i) when the product over which standing is sought is of the same product line as that product which was actually purchased by the named plaintiff; (ii) when the products have common ingredients or components and such ingredients or components are the primary or material selling points of the products; and (iii) when the plaintiff does not allege injury based solely on the alleged misrepresentations, but rather on the diminution in value resulting from the product defect that exists in all products, such that if certification is granted, the proposed class would include plaintiffs with personal standing to raise the claims.

Without the adoption of this rule, inconsistent application of modern standing doctrine to consumer protection class actions will continue. Accordingly, a steadfast application of the rule in consumer protection class actions is necessary to preserve the original policy underlying consumer protection statutes, which sought to enable the individual consumer, wronged by unfair and deceitful marketing tactics, to bring an action directly against the offending business.



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