Typically, girls want to be skinny. Is that enough to certify a class?  This week, a New York federal judge denied class certification in a case alleging false advertising of the Skinnygirl Margarita, finding that Plaintiff’s claims fail to meet Federal Rule of Civil Procedure 23(a)’s typicality prerequisite, and therefore, Plaintiff does not adequately represent the proposed class.  This decision may help keep the plaintiff’s bar on the rocks for a bit.

In 2009, the Skinnygirl Margarita – a low-calorie alternative to traditional margarita mixes – was developed by health-conscious, reality TV star, Bethenny Frankel, and her partner David Kanbar.  On September 20, 2011, Christopher Rapczynksi brought a suit in Southern District of New York against Skinnygirl Cocktails, L.L.C., SGC Global, L.L.C. and Beam Global Spirits & Wine, Inc. alleging that the Defendants caused “millions of purchasers of ‘Skinnygirl Margarita’ to purchase that product under the false pretenses that it was ‘All-natural,’” when, in fact, it contained sodium benzoate, and mixto, a tequila byproduct.  (Frankel waged a “come on” defense in press statements saying “I’m not making wheatgrass here. If I could put an agave plant and some limes on a shelf I would. The Skinnygirl Margarita is as close to nature as possible, while still being a shelf-stable product.”)  Rapczynksi accused Defendants of false advertising under New York General Business Law § 349  and New York Agriculture and Markets Law.  Additionally, Rapczynksi asserted claims for a breach of express warranty and promissory estoppel and moved for class certification seeking to represent a class of Massachusetts and New York individuals.

Judge J. Paul Oetken denied class certification, finding that Plaintiff’s claims failed to meet Federal Rule of Civil Procedure 23(a)’s typicality requirement, which provides that “the claims or defenses of the representative parties are typical of the claims or defenses of the class. The judge noted, “[w]here the particularities of the lead plaintiff’s own allegations separate his claim from those of other putative class members, a court cannot certify the class.”

First, the judge found that the New York laws that h Rapczynksi invokes only apply to transactions that occur within New York.  However, Rapczynksi only purchased the Skinnygirl Margarita in Massachusetts, “which means the laws he invokes do not protect his purchases.” Thus, Rapczynksi “is unable to assert the typical class member’s claim” and therefore cannot adequately represent the proposed class.

The judge also found typicality issues with respect to Rapczynksi’s assertions of a breach of warranty and promissory estoppel – both which require a showing of reliance on the purchaser’s promise. Here, Rapczynksi would need to show that he relied on the Skinnygirl Margarita’s “All-natural” advertising in his decision to purchase the product.  However, as the judge pointed out, Rapczynksi admitted in his deposition, in a moment of incredible candor familiar to husband’s everywhere, that he bought the product to “appease his wife,” and that he would have bought the product regardless of its price to appease said wife. Whether Rapczynksi believed the product was natural was irrelevant to his decision to purchase the Skinnygirl Margarita. As a result, the judge found that these claims also fail to meet Rule 23(a)’s typicality requirement. Perhaps Mr. Rapczynski will amend his complaint to represent a class of husbands who bought the product to appease their wives.

As consumer class actions proliferate, companies will need to continue to challenge the appropriateness of class certification with a cocktail of defenses.  This decision contrasts with a decision last year from the Northern District of California that certified a class against the makers of Arizona Iced Tea premised on allegedly deceptive “all natural claims.”  In that case, the judge found that the named plaintiffs had adequately shown that they had relied on the “all natural” advertising in making their respective purchases so as to make their claims typical of those alleged on behalf of the class in the complaint.

Cheers.