Plaintiffs seeking to certify a class action in a false advertising or other consumer protection or fraud lawsuit must show that common issues predominate, including that the entire class was exposed to the allegedly false statement. In California, plaintiffs often attempt to establish a presumption of classwide exposure, which requires showing that the defendant pervasively disseminated material misrepresentations so all plaintiffs must have been exposed to them—such as with extensive and long-term fraudulent advertising campaigns or with representations on product labels that were provided to all customers. But a recent Ninth Circuit decision shows one path that defendants can take to defeat this effort.
In Losavio v. Tesla, Inc., 2026 WL 3093826 (9th Cir. Oct. 16, 2026), the Ninth Circuit overturned a class certification ruling that reflected on plaintiff’s attempt to push this doctrine past its breaking point. The plaintiff in Losavio alleged that Tesla “violated California’s consumer protection statutes and common law by misrepresenting Tesla cars’ hardware capabilities with respect to the full self-driving (FSD) packages that Tesla sold.” The district court certified both a damages and an injunctive relief class after finding that plaintiff had satisfied predominance by demonstrating classwide exposure to Tesla’s allegedly false hardware statement. In particular, the district court inferred that, because Tesla used a unique marketing strategy and its website played a central role in disseminating information about its vehicles (including full self-driving technology), it was “highly likely” that customers would have been exposed to allegedly false representations on Tesla’s website when considering whether to buy a full self-driving package.
The Ninth Circuit found that this reasoning was “legally erroneous” and vacated the class certification ruling. Unlike a product label case, there was no evidence in Losavio that all class members actually visited Tesla’s at-issue webpage—and thus there was no evidence to support an inference that all customers would have been exposed to the webpage’s alleged misrepresentations. Without evidence that all class members were exposed to the representations, “common questions concerning class members’ exposure to the Hardware Statement and the applicability of the limitations defenses do not predominate over individualized questions, and the district court erred when it concluded otherwise.” The Ninth Circuit also vacated the district court’s order certifying an injunctive relief class under Rule 23(b)(2), which was based on the same reason it used to certify a damages class under Rule 23(b)(3).
Losavio is an important reminder that, although California allows plaintiffs to infer classwide exposure to an alleged misrepresentation in certain narrow circumstances, the inference must actually be warranted by the facts. For Defendants facing class actions challenging alleged misrepresentations, one focus of fact discovery may be to establish that not all putative class members were exposed to the representations at issue, and that a court cannot reasonably infer that all class members were exposed to such claims.