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A Manhattan judge has denied a motion for class certification in an action against Pfizer Inc., the makers of Listerine Antiseptic Mouthwash. The suit follows on the heels of a January preliminary injunction, which held that Pfizer’s claims that Listerine is “as effective as floss” were false and enjoined Pfizer from continuing the advertising campaign. Shortly thereafter, Pfizer agreed to permanently discontinue the ads. In the present case, Supreme Court Justice Richard B. Lowe denied the proposed representative plaintiff Kathleen Whalen’s motion to certify a class because, among other reasons, Whalen testified that she did not recall ever seeing any of the false representations and that she, to this day, continues to rinse with the mouthwash. “Where it cannot even be established that the proposed representative of the class was exposed to the alleged advertisements, it is questionable how Plaintiff proposes to demonstrate that all members of the class saw the advertisements,” Lowe wrote in Whalen v. Pfizer, Inc., 600125/05. McNeil-PPC, a division of Johnson & Johnson, initiated the underlying suit in September 2004. The company alleged that Pfizer’s ads — which claimed among other things that “Listerine’s as effective as floss [so] even if you don’t floss like you should, now you can get its healthy benefits from simply rinsing” — were false and misleading. Southern District of New York Judge Denny Chin agreed and enjoined Pfizer from continuing the ads. On Jan. 12, only six days after Chin granted the injunction, Whalen filed her motion. She sought class certification based on violations of the General Business Law and the common law claim of unjust enrichment. Lowe appraised each of the five prongs of a class certification claim and held that Whalen’s motion satisfied only one, numerosity. The claims, he ruled, lacked commonality. “[C]lass certification is not appropriate where the plaintiff cannot point to any specific announcement or pronouncement that was seen by all the class members,” he wrote. “[D]uring her deposition, Whalen, the proposed representative of the class, admitted that she could not identify any commercial which influenced her to purchase Listerine.” The court held that Whalen’s claim lacked typicality “given that [the rest of the class] would have at least seen the advertisements which contained defendant’s alleged false representations.” Lowe also found that Whalen did not establish that she would “fairly and adequately protect the interests of the class” or that a class action would be superior to other methods of adjudication. Jacqueline Sailer of Murray, Frank & Sailer represented Whalen. She could not be reached for comment. Thomas A. Smart of Kaye Scholer represented Pfizer. He also could not be reached for comment.

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