In the years since the Supreme Court’s decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013), which made it harder for plaintiffs to certify damages classes under Federal Rule of Civil Procedure 23(b)(3), plaintiffs in putative federal class actions have increasingly sought to certify injunctive relief classes under Rule 23(b)(2). To have standing to pursue injunctive relief under Article III, however, a plaintiff must personally face a “real and immediate threat” that he or she will be harmed again. A commonsense reading of this rule, therefore, would preclude consumers from seeking injunctive relief in false-advertising cases because plaintiffs who detail in their complaint how they were allegedly deceived cannot credibly claim that they face the threat of being deceived in the same way again. For example, a plaintiff who purchases a food labeled “All Natural” but later sues alleging that it contains artificial ingredients will not be misled about the food’s contents again.

However, a minority of pro-plaintiff courts—in jurisdictions ranging from California to Kansas to the District of Columbia—have gotten around this constitutional requirement by creating a “public policy” exception to Article III in consumer false-advertising class actions. While the exception has no basis in established constitutional law, these courts justify this exception by arguing, primarily, that rejecting consumer injunctive relief classes for lack of standing would effectively “thwart the objective” of state consumer protection laws and would essentially preclude federal courts from enjoining false advertising. See, e.g., Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181 (D.D.C. 2013); In re Motor Fuel Temperature Sales Practices Litig., No. 07-MD-1840, 2012 WL 1415508 (D. Kan. Apr. 24, 2012); Henderson v. Gruma Corp., No. CV 10-04173 AHM, 2011 WL 1362188 (C.D. Cal. Apr. 11, 2011).

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