California federal Judge Janis L. Sammartino on September 10, 2018, declined to certify a class of consumers alleging that now-defunct Sensa falsely advertised its weight-loss "crystals," which were meant to be sprinkled on food and purportedly caused users to "feel full" and to lose significant weight, relying significantly on an arbitration clause posted on Sensa's website. Jose Conde, et al, v. Sensa, et al, Case No.: 14-cv-51 JLS WVG (S.D. Cal.).

The case arises from a complaint filed by the Federal Trade Commission (FTC) in 2014 against Sensa Inc., Sensa Products LLC, former CEO Adam Goldenberg and Sensa creator Dr. Alan Hirsch (collectively, the FTC Defendants) alleging unfair or deceptive acts or practices and false advertisements. The FTC defendants stipulated to a judgment for $46.5 million (later reduced to $26.5 million because of Sensa's deteriorating financial condition) and to stop using deceptive advertising claims to sell fad weight-loss products, which ranged from food additives and skin cream to dietary supplements. The FTC then mailed over 477,000 refund checks to consumers who bought Sensa's products. In connection with the FTC matter, Sensa Products, in late 2013 or early 2014, "changed the 'lose up to 30lbs or more in just 6 months' statement to ' 9.5 pounds in 6 months' and/or '10 pounds in 3+ months.'"  Sensa Products LLC was forced to close shop in October 2014.

The instant suit brought by Florida resident Susan Stokes names Sensa's former parent IB Holding LLC and TechStyle Inc., formerly known as JustFab Inc., an online retailer founded by Sensa's former CEO. The complaint generally alleges false and misleading advertising, unfair competition and breach of warranties claims, according to the opinion.

Stokes had sought to certify a nationwide class of consumers who bought certain Sensa products since August 2012. US District Judge Janis L. Sammartino found that the plaintiff did not satisfy the predominance argument, noting that the arbitration clause on Sensa's website states that all buyers agreed to arbitrate their claims on an individual basis, and that about 84 percent of purchases made through the proposed five-year class period were made through the website. If the class were certified, the court would have to figure out which class members are subject to the arbitration clause, and may also have to analyze the legality of the clause, the judge said. "In the end, it is possible that approximately 84% of the class members would not be able to participate in the class action due to their online purchase," the judge said. "These individual issues would overshadow the common issues of whether defendants' advertisements were false and whether defendants violated certain laws."  The judge rejected Stokes' argument that the court should create subclasses or exclude certain members later.

The Court went on to point out other issues with the proposed class, including the plaintiff's failure to establish that the proposed class action is superior to other methods for adjudication of the controversy and failure to demonstrate that her proposed class is ascertainable.

Significantly, Judge Sammartino rejected the defendants' arguments that she lacked standing to bring the suit because she was satisfied with the product at the time. Stokes testified that she started buying Sensa products at a retail store and kept buying it for five years, spending a total of $5,000, and that she "achieved her goal of maintaining her weight even though she was not exercising due to an injury." She bought the Sensa "crystals" after seeing an infomercial and a television ad. The Court reasoned as follows: "Satisfaction (or lack thereof) is not the focus of the 'injury' requirement for a false advertising claim: A product can be falsely advertised even if people enjoy it."  In the end, the Court concluded that the plaintiff may be able to cure the complaint's deficiencies, and ordered the parties to jointly propose a briefing schedule for a renewed motion for class certification.

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