UPDATE: BPA MDL Court Won't Reconsider or Certify Interlocutory Appeal, But Gives Defendants an Early Gift on Class Certification
Last November I posted about two decisions on motions to dismiss issued by Judge Otrie Smith in the MDL involving bisphenol-A ("BPA") in baby bottles, sippy cups and infant formula, which is pending in the Western District of Missouri. Apparently the "Bottle Defendants" -- who had not received the benefit of federal preemption in Judge Smith's opinion -- moved to reconsider on the breach of warranty and unjust enrichment claims or, in the alternative, certify the issues for interlocutory appeal. On Tuesday, the court issued an opinion denying the motion.
Growing up in my small Missouri town, I was always an optimist. Indeed, I was an actual member of the Optimist Club, which began its weekly meetings at the incorrigibly optimistic hour of 6:30 a.m. I'm prone to viewing the sippy cup as half full, rather than half empty.
And so you would expect me to be encouraged by this little nugget in Judge Smith's order denying the defendants' motion. The court acknowledged that its prior order might have been unclear in its discussion of unjust enrichment. The court had never intended to suggest that all plaintiffs "automatically and necessarily have a valid claim for unjust enrichment." Slip op. at 2. Rather, unjust enrichment is an individual issue because of the differences in state laws and in the factual situations of the plaintiffs:
The Court's holding is, essentially, that its "benefit of the bargain" analysis did not affect the unjust enrichment claims because the "benefit of the bargain" does not play a role in the analysis -- at least, for some jurisdictions. In contrast to the law of warranty (which is somewhat uniform because of the states' adoption of the Uniform Commercial Code), the law of unjust enrichment cannot be confidently described as uniform. When this observation is coupled with the differing circumstances of each Plaintiff (and potential Plaintiff), the Court cannot conclude that no purchaser can assert a claim for unjust enrichment. Ultimately, differences in individual circumstances and the content of state laws make it impossible for the Court to hold that all consumers either have or do not have a cause of action as a matter of law.
Id. at 3.
Thus, although the Bottle Defendants don't get a free ride to the Eighth Circuit just yet, Judge Smith has clearly given them a present, as there is no way he can certify an unjust enrichment class consistent with that opinion.
Hit my sippy cup again, bartender!
