United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED January 5, 2023 No. 21-20349 Lyle W. Cayce Clerk

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 from 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 Case: 21-20349 Document: 00516599127 Page: 2 Date Filed: 01/05/2023

No. 21-20349

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, REVERSE in part, and REMAND this case to the district court. Background 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. They take issue with various representations in Defendants’ ads about a product called the FasciaBlaster, a two-foot stick with hard prongs that is registered with the Food and Drug Administration as a massager. Purchasers are instructed to use the FasciaBlaster by pressing its prongs into their skin to achieve a wide variety of health benefits. According to Plaintiffs, Defendants falsely advertised 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 statutes, 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 in February 2018, and the case proceeded in the Central District of California. But in September 2019, the court found that it lacked personal jurisdiction over some Defendants and transferred the case to the Southern District of Texas. 2 California Unfair Competition Law, Cal. 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. Co