# United States Court **of Appeals**  **f or 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 f rom 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 Case: 21-20349 Document: 00516599127 Page: 1 Date Filed: 01/05/2023No. 21

- 20349

2 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 , REVERS E in part , and REMAND this

case to the district court.

B ackground

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 . The y take
issue with various representations in Defendants ’ ads about a product called
the FasciaBlaster , a two

- foot stick with hard prongs tha t is registered with the Food and Drug Administration as a massager. Purchasers are instructed to
use the Fascia B laster by press ing its prongs into their skin to achieve a wide variety of health benefits

. A ccording to Plaintiffs, Defendants falsely
adver tised 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 ’ complaint 1 asserted a claim under the Magnuson

- Moss Warranty Act, 15 U.S. C. § 2301, et seq. , claims under multiple state statu t es , 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 i n February 2018, and the case proceeded in the Central District of California. But i n September 2019, the court found that it lacked personal jurisdiction over some Defendants and transferred the case to the Southern District of Texas.

2 C alifornia Unfair Competition La w , C al. 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 Warran ty, Ariz. Rev. Stat. §§ 47

- 2313 & 47

- 2A210 ; Florida Unfair & Deceptive Trade Case: 21-20349 Document: 00516599127 Page: 2 Date Filed: 01/05/2023No. 21

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3 and a claim for unjust enrichment. The complaint included class allegations for both a nationwide class and for seven subclasses rep resenting the seven
states in which Plaintiffs reside

— Arizona, California, Florida, Louisiana, Nevada, Ne w 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 . Plaintif fs 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 , F la. 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 t hose that have been preserved in the briefing. Case: 21-20349 Document: 00516599127 Page: 3 Date Filed: 01/05/2023No. 21

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4 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 stat utes 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 functio nally equivalent to an order denying class certification

. ” Microsoft Corp. v. Baker , 137 S. Ct. 1702, 1711 n.7 (2017) (quota tion marks omitted). District courts are permitted to
make such determinations on the pleadings and before discovery is complete

w hen 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 pleading s 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) “cla ss 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). Case: 21-20349 Document: 00516599127 Page: 4 Date Filed: 01/05/2023No. 21

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5 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) (quot ation marks and citation omitted ).

The district court struck the class allegations for failure to
demonstrate commonalit y. But we look to predominan ce, 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 p redominance is “similar” to commonality, but it “is ‘far more demanding’ because it ‘tests whether proposed classes are suf ficiently 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.
T he 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 t he 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. The y 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)

. T he district court specifically request ed Plaintiff s submit a “list of the requirements of the states in question,” as it noted that various states have differing requirements Case: 21-20349 Document: 00516599127 Page: 5 Date Filed: 01/05/2023No. 21

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6 regarding notice and pre

- suit requirements. Plaintiffs’ counsel responded
that he was not “fully up on all the laws

. ” T hen, as fa r 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.
Glo ck, GmbH. , 227 F.3d 308, 313 (5th Cir. 2000) ; see also Castano , 84 F. 3d at
74 3 ( 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 commo n issues and defeat predominance. ” Cole , 484 F.3d at 724 (quot ing 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 cla ss 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 di fferent 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 p laintiffs do not complain about the same alleged misrepresentations. S ome are disgruntled b ecause 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 w ould Case: 21-20349 Document: 00516599127 Page: 6 Date Filed: 01/05/2023No. 21

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7 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 bec ause the members did not rely on the same alleged misrepresentation s

. 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 whic h 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 proce eding 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 tho rough examination of the complaint reveals, Plaintiffs’ claims

are riddled with predominance issues and are un suitable for class treatment. Despite the brevity of the court’s order, we see no reason to reverse the
district court formalistically for its fu rther 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. Case: 21-20349 Document: 00516599127 Page: 7 Date Filed: 01/05/2023No. 21

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8 B. Individual Claims After striking the class allegations, the dis trict 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 c onsumer protection law fraud claims, the district court applied the heighte ne d p leading 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.” Plain tiffs challenge this holding in two

ways. First , th ey 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 contemp lated” by the rule. As to Plaintiffs’ first argument, t he lone New York Plaintiff seeks
relief under N ew Y ork General Business Law § § 349 and 350. The Second
Circuit has held that Section 349 “is not subject to the pleading

- with

particularity requirements of Rule 9(b)” because Section 349 d oes not require “proof of the same essential elements (such as reliance) as common

law 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

. T he fact that Section s 349 and 350 are not traditional fraud statute s d oes not necessarily mean that Rule 9(b) does not apply

. “Rule 9(b) applies by its plain language to al l 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 Case: 21-20349 Document: 00516599127 Page: 8 Date Filed: 01/05/2023No. 21

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9 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 r ely 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. R egarding the Section 349 and 350
claim s specifically , Plaintiffs allege that Defendants made “ untrue and/or misleading ” statements , representations, and omissions “ willfully, wantonly, and with reckless disregard for the truth. ” S imilar allegations are present throughout the comp laint. T he district court therefore correct ly
sub ject ed the Section 349 and 350 claim s to the heighte ne d 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 proces s 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)

. Case: 21-20349 Document: 00516599127 Page: 9 Date Filed: 01/05/2023No. 21

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10 specific facts supporting an inference of fraud.” Dorsey , 540 F

. 3d at 339 (q uotation 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 thos e 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. T wo alleg ed only the year in which the purchase was made. N one of the Plaintiffs specify when

6 The district court ordered Plaintiffs to disclose to Defendants more specific informa tion 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 fi led the disclosures with the district court

. I nstead , Plaintiffs filed a status report that represented the requested disclosures were provided to Defendants. The status report also request ed 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 Defen dants’ 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 com plaint 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 wa s 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). Case: 21-20349 Document: 00516599127 Page: 10 Date Filed: 01/05/2023No. 21

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11 they viewed the allegedly fraudulent representations

. That is insufficient. 7
See Williams , 112 F. 3d at 177. Plaintiffs’ allegations also inadequately allege the locati on of the representation s . 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 s pecify where on the website they
saw th em

. O ne plaintiff alleges she saw a video on YouTube, but she does not specify which YouTube video she saw. Th ese omissions likewise doom Plaintiffs’ complaint.

Plaintiffs’ allegations suffer from a combination of a dditional defects.
S ome Plaintiffs , for example, fail to specify the representation upon which they relied, as they merely alleg e that the y saw a statement “to the effect
that” the FaciaBlaster would reduce cellulite or cause weight loss. S evera l
Plainti ffs 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 cla i m, 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 C ir. 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 al leged 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 statement s and their ultimate purchases is anyone’s guess

. Case: 21-20349 Document: 00516599127 Page: 11 Date Filed: 01/05/2023No. 21

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12 allegations suffer from several fatal defects. Moreover, t hese defects distinguish th is case f ro m 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. Fo rd 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 contain ed class allegations that quote multip le allegedly false statements, noting the exact date and publication in which they occurred).
For all these reasons, t he district court properly dismissed Plaintiffs’
various fraud claims pursuant to Rule 9(b).

2. Express Warranty Claims
The only remainin g claims are those of Plaintiffs Dalto n 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 additi on to Texas and California state law

prece de nt s . Defendants proffer Fifth Circuit, California, and Florida precedent s

. N either party , however, brief ed what law should be applied to
each cla im. We must reverse th e dismissal of these claims with instructi on to reconsider the motion to dismiss in light of applicable state law. 8

8 The district court held that the Magn uson

- Moss Warranty Act claims “succeed or fail with the underlying state warranty claims.” It may therefore consider on remand Case: 21-20349 Document: 00516599127 Page: 12 Date Filed: 01/05/2023No. 21

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13 Conclusion

T he 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. Case: 21-20349 Document: 00516599127 Page: 13 Date Filed: 01/05/2023