In the span of two weeks, the Second Circuit issued two opinions that likely sound the death knell for Rule 23(b)(2) “injunction classes” in that circuit unless plaintiffs can establish that every class member stands to benefit from the requested injunctive relief. As the court’s decisions make clear, such evidence may prove difficult—if not impossible—to show where the alleged harms relate solely to past purchases of products that class members may forego in the future.

On June 26, the Second Circuit decertified an injunctive relief class that had been certified by the Eastern District of New York under Rule 23(b)(2). In reversing and remanding to the district court, the court held that the named plaintiff lacked standing to seek injunctive relief.

• Plaintiff D. Joseph Kurtz filed suit on behalf of himself and other past purchasers of wipes produced by Kimberly-Clark Corporation and sold by Costco Wholesale Corporation, alleging that the companies deceptively marketed their wipes as “flushable” and seeking, in part, to certify an injunctive relief class under Rule 23(b)(2).
• Kimberly-Clark and Costco argued that plaintiff lacked standing to seek injunctive relief on behalf of a class because there was no indication that he would purchase the wipes again and, therefore, there was no actual and imminent future injury that could be prevented by injunctive relief.
• The circuit court agreed with defendants, holding that Kurtz did not have Article III standing to seek injunctive relief and reversing the district court’s certification on those grounds. You can read this decision here.

Subsequently, on July 8, the Second Circuit issued a more sweeping ruling concerning whether past purchasers can obtain certification under Rule 23(b)(2), concluding that the requirement to show a likelihood of future injury also applies to settlement classes (though courts often accord less stringent scrutiny to such classes). The court agreed with the objector-appellant that an injunction was unlikely to provide relief to all members of a class of past purchasers and vacated the district court’s certification of a Rule 23(b)(2) class.

• In Berni v. Barilla, S.P.A., a group of plaintiffs filed a putative class action alleging that Barilla misleadingly packaged certain of its newer pasta products in large containers that concealed the fact that the containers did not contain as much pasta as consumers would expect—a deception compounded by the fact that the boxes were the same size as older Barilla pastas that did contain more pasta.
• After Barilla moved to dismiss, but before the court ruled on Barilla’s motion, the parties reached a proposed class-wide settlement under which Barilla would implement a “fill-line” and disclaimer language on its pasta boxes. Pursuant to Rule 23(b)(2), the district court certified, for settlement purposes only, a class of past purchasers of the pasta products at issue.
• A “serial class action objector” challenged the settlement, contending that certification under Rule 23(b)(2) was improper. The district court rejected this argument, finding that the remedies provided by the settlement were properly considered a form of injunctive relief with respect to the class as a whole.
• On appeal, the Second Circuit reversed, holding that certification of a settlement class under Rule 23(b)(2) was improper. The court noted that in order to obtain injunctive relief, class members must be likely to suffer future harm. Stating that this “prospective-orientation of the analysis is critical,” the court concluded that there was no likelihood of future harm because as “past purchasers of [the] product,” the settlement class members “are not bound to purchase [the] product again.”
• The court held that, for purposes of Rule 23(b)(2) certification, “different class members can benefit differently from an injunction—but no matter what, they must stand to benefit (it cannot be the case that some members receive no benefit while others receive some).”
• The court noted that even if class members choose to purchase the products again, there is no reason to believe they will incur a new harm: “Supposing that they have been deceived by the product’s packaging once, they will not again be under the illusion that the boxes of the newer pastas are filled in the same way as the boxes of the older pastas. Instead, next time they buy one of the newer pastas, they will be doing so with exactly the level of information that they claim they were owed from the beginning.” Therefore, such class members would not receive any relief as a result of “fill-lines” or disclaimer language.
• Notably, the Second Circuit also declined to carve out an exception under Article III for what the district court characterized as a “Catch-22” scenario, in which the only way a consumer can enjoin deceptive conduct is by willingly subjecting himself to the same conduct he now knows to be deceptive (what other courts have dubbed a “once bitten, twice shy” dilemma). In rejecting this rationale, the Second Circuit opined that “such an equitable exception to Rule 23(b)(2) simply does not exist, and courts cannot create one to achieve a policy objective, no matter how commendable that objective.”
• Read the Second Circuit’s decision here.