United States Court of Appeals

for the Fifth Circuit

No. 21-20349

Emily Elson; Stacy Haavisto; Loretta Oakes; 

Michelle Lanum; Tilly Dorenkamp; Dina Salas; 

Arlene Rodriguez; Sharon Dalton; Allyson McCarthy; 

Sheila Smith; Kelli Frederick; Joey Campbell; 

Carol Richter; Brooke Neufeld, 

Plaintiffs—Appellants,

versus

Ashley Black, an individual; 

Ashley Diana Black International Holdings, L.L.C., 

a Delaware Corporation; ADB Interests, L.L.C., 

a Texas Corporation; Ashley Black Company; ADB 

Innovations, L.L.C.; Ashley Black Guru; Ashely Black 

Fasciology, L.L.C., 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-2125

Before Jones, Stewart, and Duncan, Circuit Judges.

Edith H. Jones, Circuit Judge:

Plaintiffs sued on behalf of themselves and putative class members to 

redress consumer protection fraud claims and breach of warranty claims 

United States Court of Appeals

Fifth Circuit

FILED

January 5, 2023

Lyle W. Cayce

Clerk

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under the laws of multiple states. We find that the district court correctly 

struck Plaintiffs’ class allegations and properly dismissed all but two of their 

claims. We thus AFFIRM in part, REVERSE in part, and REMAND this 

case to the district court.

Background

Fourteen women (“Plaintiffs”) from seven states brought the present 

putative class action against Ashley Black and her companies 

(“Defendants”), alleging false and deceptive marketing practices. They take 

issue with various representations in Defendants’ ads about a product called 

the FasciaBlaster, a two-foot stick with hard prongs that is registered with the 

Food and Drug Administration as a massager. Purchasers are instructed to 

use the FasciaBlaster by pressing its prongs into their skin to achieve a wide 

variety of health benefits. According to Plaintiffs, Defendants falsely 

advertised that the FasciaBlaster was able to “virtually eliminate cellulite,” 

help with weight loss, and relieve pain. Defendants also allegedly lied about

the product’s effects being supported by scientific studies. 

Plaintiffs’ complaint1 asserted a claim under the Magnuson-Moss 

Warranty Act, 15 U.S.C. § 2301, et seq., claims under multiple state statutes,2

1 This case originated as two separate lawsuits—one filed in the Superior Court of 

Los Angeles County, California, and one filed in the United States District Court for the 

Central District of California. Those suits were consolidated in February 2018, and the 

case proceeded in the Central District of California. But in September 2019, the court 

found that it lacked personal jurisdiction over some Defendants and transferred the case to 

the Southern District of Texas. 

2 California Unfair Competition Law, Cal. Bus & Prof. Code § 17200, et seq.; 

Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq.; Breach of Express Warranty,

Cal. Com. Code §§ 2313 & 10210; Breach of Implied Warranty, Cal. Com. Code §§ 2314 

& 10212; Breach of Express Warranty under the Song-Beverly Warranty Act, Cal. Civ. 

Code § 1791, et seq.; Nevada Deceptive Trade Practices Act, Nev. Rev. Stat. § 598.0903, et 

seq.; Arizona Consumer Fraud Act, Ariz. Rev. Stat. §§ 44-1521, et seq.; Breach of Express 

Warranty, Ariz. Rev. Stat. §§ 47-2313 & 47-2A210; Florida Unfair & Deceptive Trade 

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and a claim for unjust enrichment. The complaint included class allegations 

for both a nationwide class and for seven subclasses representing the seven 

states in which Plaintiffs reside—Arizona, California, Florida, Louisiana, 

Nevada, New York, and Ohio.

Defendants moved to strike Plaintiffs’ class allegations and to dismiss 

the complaint for failure to state a claim. After a hearing and some limited 

discovery, the district court struck the class allegations. The totality of the

district court’s analysis provided:

Because the basis for the claims are misrepresentations,

reliance on them will be a key factor with every potential 

plaintiff. Reliance is intrinsically an individual 

determination—what is sufficient for reliance of one person 

may not be the same for others. The court is not convinced 

that commonality is present as each potential plaintiff 

would have to show that their reliance was justified.

Plaintiffs sought interlocutory review of the district court’s order, 

which a split panel of this court denied. The next day, the district court 

dismissed the remainder of Plaintiffs’ claims in their entirety. Plaintiffs

appealed the order striking the class allegations and the dismissal of

individual claims.3

 We discuss each decision in turn.

Practices Act, Fla. Stat. § 501.201, et seq.; Breach of Express Warranty, Fla. Stat. 

§§ 672.313, 680.21; Louisiana Unfair Trade Practices & Consumer Protection Law, La. 

Rev. Stat. § 51:1401, et seq.; Breach of Warranty against Redhibitory Defects, La. Civ. Cod. 

art. 2520; Consumer Sales Practices Act, Ohio Rev. Code § 1345.01, et seq.; Deceptive 

Trade Practices Act, Ohio Rev. Code § 4165.01, et seq.; Unlawful Deceptive Acts or 

Practices, N.Y. Gen. Bus. Law § 349; False Advertising, N.Y. Gen. Bus. Law § 350.

3 Many of Plaintiffs’ arguments were not presented to this court on appeal and are 

therefore forfeited. Rollins v. Home Depot U.S.A., 8 F.4th 393, 397 (5th Cir. 2021). This 

opinion addresses only those that have been preserved in the briefing.

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A. Class Allegations

On appeal, Plaintiffs primarily argue that the district court failed to 

conduct the “rigorous analysis” required by Rule 23 of the Federal Rules of 

Civil Procedure and, accordingly, overlooked the fact that reliance is not an 

element of many state statutes at issue. Wal-Mart Stores, Inc. v. Dukes, 

564 U.S. 338, 351, 131 S. Ct. 2541, 2551 (2011) (internal quotation marks and 

citation omitted). This court agrees that the district court’s order was 

inappropriately brief. But we nonetheless decline to reverse the order 

because its conclusion is sound.

“An order striking class allegations is functionally equivalent to an 

order denying class certification.” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 

1711 n.7 (2017) (quotation marks omitted). District courts are permitted to 

make such determinations on the pleadings and before discovery is complete 

when it is apparent from the complaint that a class action cannot be 

maintained. See John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th 

Cir. 2007).

4 We review the district court’s judgment for abuse of discretion. 

See Funeral Consumers Alliance, Inc. v. Service Corp. Int’l, 695 F.3d 330, 344–

45 (5th Cir. 2012); see also Baker, 137 S. Ct. at 1711 n.7. 

Plaintiffs’ class pleadings were deficient as a matter of law. Rule 23(a) 

provides four prerequisites for a class action: (1) numerosity; 

(2) commonality; (3) typicality; and (4) adequacy of representation. 

Rule 23(b)(3) then authorizes class certification where (1) “questions 

common to the class members predominate over questions affecting only 

individual members,” and (2) “class resolution is superior to alternative 

4 See also Donelson v. Ameriprise Fin. Servs., Inc., 999 F.3d 1080, 1092 (8th Cir. 

2021); Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011); Mills v. 

Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008).

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methods for adjudication of the controversy.” Bell Atlantic Corp. v. AT&T 

Corp., 339 F.3d 294, 301 (5th Cir. 2003). “It is the party seeking certification 

who bears the burden of establishing that the requirements of Rule 23 have 

been met.” Cruson v. Jackson Nat’l Life Ins. Co., 954 F.3d 240, 253 (5th Cir. 

2020) (quotation marks and citation omitted).

The district court struck the class allegations for failure to 

demonstrate commonality. But we look to predominance, as 

“Rule 23(a)(2)’s ‘commonality’ requirement is subsumed under, or 

superseded by, the more stringent Rule 23(b)(3) requirement that questions 

common to the class ‘predominate over’ other questions.” Amchem Prod., 

Inc. v. Windsor, 521 U.S. 591, 609, 117 S. Ct. 2231, 2243 (1997); see also 

Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 601–02 (5th Cir. 2006)

(noting predominance is “similar” to commonality, but it “is ‘far more 

demanding’ because it ‘tests whether proposed classes are sufficiently 

cohesive to warrant adjudication by representation.’” (quoting Unger v. 

Amedisys, Inc., 401 F.3d 316, 320 (5th Cir. 2005)).

Plaintiffs are unable to establish predominance as a matter of law for 

two reasons. First, different state laws govern different Plaintiffs’ claims. 

The district court was required to consider differences in state law when 

discerning whether a class action is the appropriate vehicle for this suit.

Castano v. Am. Tobacco Co., 84 F.3d 734, 750 (5th Cir. 1996). But the burden 

was on Plaintiffs to assure the district court that such differences in state law 

would not predominate over issues individual to each plaintiff in the 

litigation. They were thus obliged to provide “an extensive analysis of state 

law variations” so that the district court could “consider how those 

variations affect[ed] predominance.” Cole v. Gen. Motors Corp., 484 F.3d 

717, 724 (5th Cir. 2007) (quotation marks omitted). The district court

specifically requested Plaintiffs submit a “list of the requirements of the 

states in question,” as it noted that various states have differing requirements 

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regarding notice and pre-suit requirements. Plaintiffs’ counsel responded 

that he was not “fully up on all the laws.” Then, as far as we can tell from 

the record, he failed to follow up with the relevant information. “[I]n not 

presenting a sufficient choice of law analysis,” Plaintiffs “failed to meet their 

burden of showing that common questions of law predominate.” Spence v. 

Glock, GmbH., 227 F.3d 308, 313 (5th Cir. 2000); see also Castano, 84 F.3d at

743 (reversing the district court’s class certification because its 

“consideration of state law variations was inadequate” where the “surveys 

provided by the plaintiffs failed to discuss, in any meaningful way, how the 

court could deal with variations in state law”).

Regardless, variations in state law here “swamp any common issues 

and defeat predominance.” Cole, 484 F.3d at 724 (quoting Castano, 84 F.3d 

at 741) (internal quotation marks omitted); see also Casa Orlando Apartments, 

Ltd. v. Fed. Nat’l Mortg. Ass’n, 624 F.3d 185, 195–96 (5th Cir. 2010) 

(affirming denial of class certification where plaintiffs failed “to demonstrate 

that state law variations” did not defeat predominance). Plaintiffs candidly 

acknowledged this difficulty at hearing before the district court. And the

thorough explanation in their brief of the different reliance requirements of 

the state laws implicated in this suit underscores this very point. Even if 

Plaintiffs had made a proper showing, then, their class allegations would still 

have been properly struck.

The second reason Plaintiffs cannot establish predominance is that

Plaintiffs’ allegations introduce numerous factual differences that in no way

comprise a coherent class. For one, the named plaintiffs do not complain 

about the same alleged misrepresentations. Some are disgruntled because 

they expected the FasciaBlaster to reduce cellulite. Others are dissatisfied 

because they expected it to reduce their pain or address certain health 

concerns. And others are displeased because they expected it to help them 

lose weight. Discerning the truth or falsity of each representation would 

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require a group-by-group analysis, complicated by the fact that the members 

of each group are from different states. Moreover, even within these groups,

the possibility of class analysis disintegrates because the members did not rely 

on the same alleged misrepresentations. The district court focused on this 

point, which is a hallmark in this court’s class action jurisprudence and is 

relevant to predominance as much as commonality. See Castano, 84 F.3d at

745 (“[A] fraud class action cannot be certified when individual reliance will 

be an issue.”); Cole, 484 F.3d at 727 (“[T]he economies ordinarily associated 

with the class action device are defeated where plaintiffs are required to bring 

forth individual proof of reliance” (internal quotation marks and citation 

omitted)); see also McManus v. Fleetwood Enters., 320 F.3d 545, 550 (5th Cir. 

2003); cf. Patterson v. Mobil Oil Corp., 241 F.3d 417, 419 (5th Cir. 2001) 

(“Claims for money damages in which individual reliance is an element are 

poor candidates for class treatment, at best.”).

As an alternative, Plaintiffs proposed seven state-specific subclasses 

under Rule 23(c)(5) to the extent subclasses were necessary to preserve the 

possibility of proceeding as a class. But that did not relieve them of their duty 

to show each subclass independently satisfied the Rule 23 requirements. 

“Subclass” is not a magic word that remedies defects of predominance. The 

burden is on Plaintiffs to demonstrate to the district court how certain 

proposed subclasses would alleviate existing obstacles to certification. See 

Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420 n.15 (5th Cir. 1998); Spence, 

227 F.3d at 313. Plaintiffs failed to make such a showing.

As a thorough examination of the complaint reveals, Plaintiffs’ claims 

are riddled with predominance issues and are unsuitable for class treatment. 

Despite the brevity of the court’s order, we see no reason to reverse the 

district court formalistically for its further elaboration on what is clear from 

the face of the pleadings. The district court’s conclusion was sound. It 

therefore did not abuse its discretion in striking the class allegations.

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B. Individual Claims

After striking the class allegations, the district court dismissed 

Plaintiffs’ individual claims. The dismissed claims that Plaintiffs challenge 

on appeal fall into two categories: consumer protection law fraud claims and 

breach of express warranty claims. We review the district court’s judgment 

as to each de novo. Budhathoki v. Nielsen, 898 F.3d 504, 507 (5th Cir. 2018).

1. Fraud Claims

As to the state consumer protection law fraud claims, the district court 

applied the heightened pleading standard of Rule 9(b) of the Federal Rules of 

Civil Procedure and held that Plaintiffs failed to plead “fraud with particular 

facts of time, place, and content.” Plaintiffs challenge this holding in two 

ways. First, they contend that Rule 9(b) does not apply to claims under the 

New York statutes they invoke. Second, they argue that the district court 

“imposed specificity requirements substantially greater than contemplated” 

by the rule.

As to Plaintiffs’ first argument, the lone New York Plaintiff seeks 

relief under New York General Business Law §§ 349 and 350. The Second 

Circuit has held that Section 349 “is not subject to the pleading-withparticularity requirements of Rule 9(b)” because Section 349 does not 

require “proof of the same essential elements (such as reliance) as commonlaw fraud.” Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir. 2005). 

Plaintiffs invite us to adopt this holding and extend it to Section 350 claims.

The fact that Sections 349 and 350 are not traditional fraud statutes

does not necessarily mean that Rule 9(b) does not apply. “Rule 9(b) applies 

by its plain language to all averments of fraud, whether they are part of a claim 

of fraud or not.” Lone Star Ladies Inv. Club v. Schlotzsky’s,Inc., 238 F.3d 363, 

368–69 (5th Cir. 2001); see also Bynane v. Bank of N.Y. Mellon, 866 F.3d 351, 

360–61 (5th Cir. 2017). “Where averments of fraud are made in a claim in 

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which fraud is not an element,” a court must “disregard averments of fraud 

not meeting Rule 9(b)’s standard and then ask whether a claim has been 

stated.” Lone Star Ladies, 238 F.3d at 368. The application of Rule 9(b) is 

thus fatal when a claim is premised entirely upon a course of fraudulent 

conduct that is not sufficiently pled. Id.(citing Melder v. Morris, 27 F.3d 1097, 

1100 n.6 (5th Cir. 1994)); Bynane, 866 F.3d at 360–61.

5

Plaintiffs’ claims here rely entirely on Defendants’ allegedly 

fraudulent conduct. The premise of this action is that Defendants 

intentionally misrepresented the efficacy of the FasciaBlaster in order to 

mislead Plaintiffs into purchasing it. Regarding the Section 349 and 350 

claims specifically, Plaintiffs allege that Defendants made “untrue and/or 

misleading” statements, representations, and omissions “willfully,

wantonly, and with reckless disregard for the truth.” Similar allegations are 

present throughout the complaint. The district court therefore correctly

subjected the Section 349 and 350 claims to the heightened pleading 

requirements of Rule 9(b).

Rule 9(b), in turn, demands “the who, what, when, and where [to] be 

laid out before access to the discovery process is granted.” Williams v. WMX 

Tech., Inc., 112 F.3d 175, 178 (5th Cir. 1997) (emphasis in original). Plaintiffs 

must “specify the statements contended to be fraudulent, identify the 

speaker, state when and where the statements were made, and explain why 

the statements were fraudulent.” Id. at 177. “[S]imple allegations that 

defendants possess fraudulent intent will not satisfy Rule 9(b).” Dorsey v. 

Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008) (quotation marks and 

citation omitted). Rather, to proceed to discovery, plaintiffs “must set forth 

5 See also Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); Olin v. 

Dakota Access, LLC., 910 F.3d 1072, 1075 (8th Cir. 2018).

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specific facts supporting an inference of fraud.” Dorsey, 540 F.3d at 339

(quotation marks and citation omitted) (emphasis in original).

The district court found that Plaintiffs’ allegations suffer from a 

combination of defects, including a failure to plead adequately what

representations were actually made, when those representations were made, 

who made the representations, and where those representations occurred. 

Having reviewed Plaintiffs’ amended complaint, we agree.6

To begin, Plaintiffs’ allegations inadequately allege when the 

misrepresentations they relied upon occurred. Some provide the year and 

month that Plaintiffs purchased the FaciaBlaster. Others provide the

approximate year and month the purchase was made. Two alleged only the 

year in which the purchase was made. None of the Plaintiffs specify when 

6 The district court ordered Plaintiffs to disclose to Defendants more specific 

information concerning “each plaintiff’s alleged reliance including: (a) when, where, and 

what happened, and (b) how much money each spent on what.” Plaintiffs provided those 

disclosures, which added further specificity to their allegations. Plaintiffs never filed the 

disclosures with the district court. Instead, Plaintiffs filed a status report that represented 

the requested disclosures were provided to Defendants. The status report also requested

the court permit Plaintiffs to amend their complaint a third time to include the details in 

the disclosures “[i]f the Court is inclined to grant” Defendants’ motion to dismiss. The 

district court did not address this request, but rather granted the Defendants’ motion to 

dismiss.

We do not consider the disclosures when applying Rule 9(b) because they are not 

part of the complaint and are not even part of the record. Rule 9(b) is a pleading rule whose

requirements must be met within the contents of the complaint alone. Williams v. WMX 

Tech., Inc., 112 F.3d 175, 178 (5th Cir. 1997). Furthermore, Plaintiffs’ request to amend the 

complaint for the third time was not accompanied by any reasoning as to why such an 

amendment was appropriate. The district court did not abuse its discretion by declining to 

grant this request. See Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003).

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they viewed the allegedly fraudulent representations. That is insufficient.7 

See Williams, 112 F.3d at 177.

Plaintiffs’ allegations also inadequately allege the location of the 

representations. For instance, many Plaintiffs assert that they saw Facebook 

advertisements, but they fail to specify where on Facebook they saw those 

advertisements. Others allege that they saw statements, pictures, or videos 

on Defendants’ website, but they fail to specify where on the website they 

saw them. One plaintiff alleges she saw a video on YouTube, but she does 

not specify which YouTube video she saw. These omissions likewise doom 

Plaintiffs’ complaint.

Plaintiffs’ allegations suffer from a combination of additional defects. 

Some Plaintiffs, for example, fail to specify the representation upon which 

they relied, as they merely allege that they saw a statement “to the effect 

that” the FaciaBlaster would reduce cellulite or cause weight loss. Several

Plaintiffs failed to allege that it was Defendants who made the representation 

in question. Plaintiffs’ claims thus fail to satisfy the dictates of Rule 9(b).

Plaintiffs attempt to avoid this result by citing United States v. 

Kanneganti for the proposition that, depending “on the claim, a plaintiff may 

sufficiently state with particularity the circumstances constituting fraud or 

mistake without including all the details of any single court-articulated 

standard.” 565 F.3d 180, 188 (5th Cir. 2009) (quotation marks and citation 

omitted). The problem for Plaintiffs is that, as detailed above, their 

7 In this respect, Plaintiffs contend that their second amended complaint “sets 

forth the month and year the alleged fraudulent or materially misleading representations 

were seen by each Plaintiff, noting each plaintiff purchased the at-issue product immediately

after viewing Appellees’ materially misleading representations.” That is a misstatement. 

Plaintiffs allege they purchased the product “after viewing” the alleged 

misrepresentations. The gap between when Plaintiffs viewed the allegedly false statements

and their ultimate purchases is anyone’s guess.

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allegations suffer from several fatal defects. Moreover, these defects 

distinguish this case from the unpublished and out-of-circuit district court 

opinions cited by Plaintiffs. See Click v. General Motors LLC, 2020 WL 

3118577, *6 (S.D. Tex. 2020) (“The pleadings referenced specific

advertisements, press releases, and brochures issued by [defendant].”); 

Stevens v. Ford Motor Co., 2020 WL 12573279, *3–4 (S.D. Tex. 2020) 

(complaint detailed specific statements in specific advertisements); True v. 

American Honda Motor Co., 520 F. Supp.2d 1175, 1183 (C.D. Cal. 2007) 

(complaint contained class allegations that quote multiple allegedly false 

statements, noting the exact date and publication in which they occurred).

For all these reasons, the district court properly dismissed Plaintiffs’ 

various fraud claims pursuant to Rule 9(b).

2. Express Warranty Claims

The only remaining claims are those of Plaintiffs Dalton and Smith for 

breach of express warranty under, respectively, California Consumer Code 

§§ 2313 & 10210, and Florida Statutes §§ 672.313 & 680.21.

The district court dismissed these claims on the ground that they 

constituted “puffery.” But the district court did not apply the law of a 

specific jurisdiction when conducting its analysis. Plaintiffs on appeal cite 

various Fifth Circuit cases in addition to Texas and California state law

precedents. Defendants proffer Fifth Circuit, California, and Florida 

precedents. Neither party, however, briefed what law should be applied to 

each claim. We must reverse the dismissal of these claims with instruction 

to reconsider the motion to dismiss in light of applicable state law.8

8 The district court held that the Magnuson-Moss Warranty Act claims “succeed 

or fail with the underlying state warranty claims.” It may therefore consider on remand 

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Conclusion

The district court’s judgment is AFFIRMED in part, REVERSED in 

part, and REMANDED. 

those claims as they relate to Dalton’s and Smith’s state claims for breach of express 

warranty.

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