A recent Ninth Circuit decision provides companies defending consumer false advertising class actions with additional support for challenging class certification where questions exist concerning whether purchasers encountered the challenged advertising. In LoSavio v. Tesla, Inc., No. 25-7927 (9th Cir. Oct. 16, 2026), the court vacated certification of three classes after finding that the district court lacked a sufficient basis to presume that purchasers had encountered an allegedly misleading statement on Tesla’s website.

The decision is particularly relevant to companies that advertise and sell products online, where consumers may encounter different representations depending on how and where they shop.

The Ninth Circuit’s Decision

The plaintiffs alleged that Tesla misrepresented the hardware capabilities of vehicles sold with its Full Self-Driving (FSD) packages. The district court certified two damages classes under Rule 23(b)(3) and an injunctive-relief class under Rule 23(b)(2), reasoning in part that purchasers were highly likely to have visited Tesla’s website and encountered the challenged representation.

The Ninth Circuit disagreed.

Drawing on its prior decisions in, the court examined whether the record supported an inference of classwide exposure. Although courts have considered such inferences in certain circumstances, the Ninth Circuit concluded that the evidence presented did not support the district court’s approach.

The court rejected the district court’s analogy between Tesla’s website and product labeling, observing that purchasers were not required to visit the particular webpage containing the challenged statement. The court also found that the website traffic evidence did not establish the necessary connection between the challenged representation and the proposed class.

The Ninth Circuit therefore concluded that the district court erred in its predominance analysis.

Why Different Purchasing Experiences Matter

The decision offers a useful framework for examining proposed classes involving advertising distributed through different channels.

Companies frequently market products through their own websites, online marketplaces, social media, and third-party retailers. Depending on the circumstances, purchasers may encounter different representations or may never encounter the particular statement challenged in the litigation.

For example, a company selling cosmetics through its own website or online retailers may face a claim involving a representation appearing on only one of its webpages. The purchasing experiences of consumers using those different channels could raise questions about whether exposure to that representation can be established through common evidence.

LoSavio provides support for examining those differences rather than assuming that all purchasers encountered the same advertising.

Similar questions may arise where advertising changes over time or where consumers navigate different paths through a company’s website. The significance of those differences will depend on the challenged representations, the proposed class, and the evidence developed in the case.

The Ninth Circuit also considered the relationship between advertising exposure and Tesla’s statute of limitations defenses. On the record before it, the court concluded that differences in the representations purchasers encountered created additional individualized questions relevant to certification.

Developing the Exposure Defense Early

For companies defending consumer false advertising class actions, LoSavio illustrates the potential value of examining advertising exposure early in litigation.

Depending on the allegations and available evidence, defendants may benefit from investigating the channels through which products were sold, whether consumers were required to view the challenged representation, changes in advertising during the proposed class period, and what website analytics or transaction records actually establish about exposure.

That information may provide grounds to challenge assumptions underlying a proposed class definition or the plaintiffs’ theory of common proof. It may also inform discovery strategy and class certification briefing.

LoSavio is an unpublished memorandum disposition, and its analysis turns on the record before the court. Nevertheless, the decision offers a useful application of existing Ninth Circuit authority to a recurring issue in consumer false advertising litigation: whether the evidence supports treating purchasers with potentially different advertising experiences as a class.

For companies facing these claims, developing a factual record concerning those differences may provide an opportunity to narrow the proposed class or oppose certification.