A plaintiff's class certification effort in a false advertising suit against the makers of an allegedly trans-fat-free product was derailed Monday, after the district court found concerns her unique defenses would become the focus of the litigation.

Suzanna Bowling filed suit against McNeil Nutritionals and its parent company Johnson & Johnson over their butter alternative Benecol, which is advertised as having no trans fat. Bowling, who claims to have a severe sensitivity to trans fats, stated that she purchased a tub of Benecol Light from a Walmart in White Plains in mid-2011.

Despite being advertised as trans-fat free, Benecol's partially hydrogenated soybean oil means it contains a small amount, less than 0.5 grams. Thanks to FDA round-down regulations, Benecol is about to provide nutrition information that states “0g” trans fat per serving. Bowling claimed her sensitivity to the ingredient irritated her digestive system, and that she then sought an unsuccessful refund from Johnson & Johnson.

In opposing her motion for class certification, attorneys for the food makers disputed a number of her claims. First, they argued that no company shipping records show no Benecol products were shipped to Walmart stores during the time period Bowling claimed to have made her purchase. Second, no internal records showed any telephone or email customer complaint contact with Bowling either in 2011 or with any reference to Benecol.

Additionally, the defendants claimed Bowling was barred from suing the companies as part of a settlement agreement in an unrelated lawsuit brought against McNeil and Johnson & Johnson over the labeling of their Listerine product. The district court noted Bowling was represented by the same counsel in her Listerine claim as she was in the Benecol suit.

U.S. District Judge Alison Nathan of the Southern District of New York found Bowling was able to satisfy both the numerosity and commonality requirements of a class claim. However, the concerns raised by the defendants over the typicality and adequate representation requirements were justified, the district court found.

Nathan acknowledged that the existence of a covenant does not create a defense to class certification. However, one existing against Bowling in particular “will require further litigation” to fully address its potential impact.

“It may be that the covenant not to sue is not binding or is inapplicable to Bowling's claims here, but … the Court concludes she will be required to 'devote considerable time' to rebutting its applicability,” the court wrote.

Bowling's failure to rebut claims about her lack of credibility based on the company's shipping and complaint records opened her to potential attacks in the course of litigation, Nathan found. The “substantial credibility issues that threaten to undermine her claims” meant she was not an adequate class representative, according to the district court.

Bowling is represented by a legal team led by Bursor & Fisher name attorney Scott Bursor. He did not respond to a request for comment.

Johnson & Johnson and its subsidiary were represented by O'Melveny & Myers partners Richard Goetz and Carlos Lazatin. Attorneys from the firm did not respond to a request for comment.

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