By Anthony B. Corleto, Daniel H. Lee, Madison A. Kucker, Ian A. Stewart and Patrick M. Kelly, of Wilson Elser
(Editor’s Note: The following appeared along with 8 other articles in Concussion Litigation Reporter.)
In a significant decision, the U.S. District Court for the Central District of California denied plaintiffs’ motion to certify a class of “All persons who enrolled their minor children in Pop Warner tackle football from 1997 to present.” The plaintiffs in Archie v. Pop Warner, USDC CD CA 2:16-cv-06603, sought class certification for statutory unfair competition (UC) and false advertising (FA) claims, under the California consumer protection statutes.
Archie was brought by the mothers of two former youth football players, each of whom died in their mid-twenties, a decade after they last played youth football; one from a self-inflicted gunshot wound, the other in a motorcycle accident. The mothers sued for money damages and to enjoin advertising that “youth tackle football is safe for minor children.” Front and center in the complaint are allegations that exposure to repetitive contact leads to chronic traumatic encephalopathy (CTE), the disease process found at autopsy of the brains of football players Aaron Hernandez and Junior Seau. The plaintiffs in Archie each claim that their son had CTE as the result of playing youth football. Worth noting, each also played football in high school and one played into college.
Focusing on the “predominance” requirement of Rule 23(b)(3), the court observed that each of the communications offered in support of the UC and FA claims were directed to coaches and other youth sport organizations rather than the public, and that class certification is “only available to those class members who were actually exposed to the business practices at issue.” The communications at issue included a website that went live in 2002, internal administrative materials and a 2012 letter to other national youth sport organizations about a meeting to “preserve the youth sports experience.” Plaintiffs also argued that the requirement to use helmets certified by the National Operating Committee on Standards for Athletic Equipment (NOCSAE) was misleading because Pop Warner failed to disclose that there is not a NOCSAE “youth specific” standard and because the warning label does not expressly call out the risk of “repetitive head trauma.” The court concluded that plaintiffs failed to show that the putative class members were exposed to the alleged misrepresentations, or that they were exposed to the allegedly misleading helmets before enrolling.
The court decided the motion on the papers in advance of the scheduled argument date.