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Stars Fail to Align for P&G, as Supreme Court Rejects Class Certification Appeal

Readers may recall our coverage in recent months of the challenge by Procter & Gamble (P&G) to an order certifying a multi-state consumer class in a case asserting that P&G falsely advertised its probiotic supplement Align. Last August, a divided panel of the Sixth Circuit affirmed class certification. In October, the Sixth Circuit stayed its decision pending P&G’s petition to the Supreme Court for certiorari, which the Supreme Court recently denied.

Align is an over-the-counter probiotic marketed to the general public as a supplement that “naturally helps build and support a healthy digestive system, maintains digestive balance, and fortif[ies] your digestive system with healthy bacteria.” P&G began selling Align in 2005, and launched a widespread promotional campaign for the product in 2009. The complaint asserts that Align is nothing more than “snake oil” because it does not provide any legitimate health benefits, but rather produces only a placebo effect.

In its opposition to class certification, P&G argued that class members had presented insufficient evidence to show they had suffered a common injury. Furthermore, P&G alleged that the named plaintiffs had presented only anecdotal claims that Align was ineffective and had therefore failed to demonstrate they had suffered any injury.

U.S. District Judge Timothy S. Black of the Southern District of Ohio granted plaintiffs’ motion to certify the suit as five single-state class actions. And a split Sixth Circuit panel upheld this decision, holding that, at the class certification stage, all the consumers needed to show was that they could eventually prove a common injury, not that they had already done so.

Sixth Circuit Judge Deborah Cook dissented, observing that the plaintiffs alleged that Align produced only a placebo effect without offering any proof in support of this argument. Moreover, “all the available evidence tends to show the opposite: that consumers benefit more or less from Align based on their individual gastrointestinal health.”

P&G moved to stay the Sixth Circuit panel’s ruling, arguing that it created a circuit split by upholding certification despite a lack of evidence that consumers were actually harmed. This outcome, P&G argued, conflicted with the Seventh Circuit’s decision in Szabo v. Bridgeport Machs., Inc, 249 F.3d 672 (7th Cir. 2001), which held that since an order certifying a class is usually the district judge’s “last word on the subject,” certifying classes on the basis of incontestable allegations in the complaint improperly postpones necessary factual inquiries into issues such as numerosity and commonality. P&G posited that as a result of this circuit split, the Supreme Court was likely to consider the issue. The Sixth Circuit agreed to temporarily stay class certification to allow P&G to petition for certiorari.

P&G filed its cert petition, which was supported by amici including the Chamber of Commerce, Business Roundtable and the International Association of Defense Counsel. However, at the end of last month, the Supreme Court denied cert, deciding not to address the Circuit split and leaving in place the Sixth Circuit’s ruling.

Of course, the denial of cert is not a decision on the merits, and the propriety of the Sixth Circuit’s view of a class certification movant’s burden may be decided by the Supreme Court (or by courts outside the Sixth Circuit) at a future time. Watch this space for subsequent developments in this case and on this class certification issue.

© 2023 Proskauer Rose LLP. National Law Review, Volume VI, Number 113

About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

Alexander Kaplan, Proskauer law firm, Litigation Attorney, New york office,

Alexander Kaplan is a partner in the Litigation Department. Alex is a commercial litigator and trial lawyer with broad expertise in intellectual property litigation and counseling. He has substantial experience in the fields of copyright, trademark, advertising and trade secrets law, representing clients in a wide array of fields and industries.


In copyright and related entertainment matters, Alex has represented various major record labels, music publishing companies and recording artists, as well as other media and entertainment...

Law Clerk

Sarah Sullivan is a law clerk in the Litigation Department.


  • Litigation

  • Commercial Litigation


  • New York University School of Law, J.D., 2014

  • Barnard College, Columbia University, B.A., 2011
    cum laude