In Re Clorox Consumer Litigation

Filing 54

*** FILED IN ERROR. NO NEW DOCUMENT. *** Order by Hon. Samuel Conti granting in part and denying in part (43) Motion to Dismiss in case 3:12-cv-00280-SC.Associated Cases: 3:12-cv-00280-SC, 3:12-cv-00356-SC, 3:12-cv-00649-SC, 3:12-cv-00764-SC, 3:12-cv-01051-SC(sclc1, COURT STAFF) (Filed on 8/24/2012) Modified on 8/24/2012 (ewn, COURT STAFF).

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
8

United States District Court

For the Northern District of California

9

IN RE CLOROX CONSUMER
LITIGATION

10
11
This Document Relates To:
12
12-00764
12-00356
12-00649
12-01051

13
14

SC
SC
SC
SC

)
)
)
)
)
)
)
)
)
)
)
)
)

Master File No. 12-00280 SC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS

15
16

I.

INTRODUCTION

17

Plaintiffs bring this putative, nationwide class action

18

against Defendant The Clorox Company ("Clorox") in connection with

19

its marketing and advertising of Fresh Step cat litter.

20

Fresh Step uses carbon to eliminate cat odors, whereas other cat

21

litter products typically use baking soda.

22

campaign allegedly conveys that (1) Fresh Step is more effective at

23

eliminating cat odors than products that do not contain carbon, and

24

(2) cats choose Fresh Step over these other cat litters.

25

Plaintiffs, consumers of Fresh Step from five different states,

26

allege that these statements are false and misleading and are

27

contradicted by scientific studies.

28

Clorox's

Clorox's marketing

1

Clorox now moves to dismiss Plaintiffs' Amended Consolidated

2

Class Action Complaint pursuant to Federal Rules of Civil Procedure

3

9(b) and 12(b)(6).

4

dismiss, Clorox asks the Court to strike Plaintiffs' class

5

allegations from the complaint pursuant to Federal Rule of Civil

6

Procedure 12(f).

7

("Opp'n"), 49 ("Reply").

8

Court finds this matter appropriate for disposition without oral

9

argument.

United States District Court

For the Northern District of California

10

ECF No. 43 ("MTD").

As part of its motion to

The motion is fully briefed.

ECF Nos. 46

Pursuant to Civil Local Rule 7-1(b), the

As detailed herein, Clorox's motion is GRANTED in part

and DENIED in part.

11
12

II.

13

BACKGROUND
In 1984, Clorox began producing Fresh Step cat litter, the

14

"only litter that contains carbon."

15

The carbon particles in Fresh Step control cat waste odors.

16

id. ¶ 25.

17

to control these odors.

18

Dwight ("C&D") markets Super Scoop, a cat litter which uses Arm &

19

Hammer baking soda.

20

ECF No. 29 ("Compl.") ¶ 27.
See

Other cat litter brands use different active ingredients
See id. ¶ 37.

For example, Church &

Id.

In October 2010, Clorox launched a new advertising campaign to

21

promote Fresh Step.

22

Clorox ran a television commercial featuring videos of playful cats

23

jumping into large and small boxes, including several cats jumping

24

into a litter box with Fresh Step.

25

Decl. ¶ 1, Ex. A.1

26

1

27
28

Id. ¶ 28.

From October 2010 to January 2011,

Compl. Ex. A.; Schlesinger

Before jumping into the Fresh Step litter box,

Jon Schlesinger ("Schlesinger"), the Director of Marketing for
Litter, Food and Charcoal at The HV Food Product Co., a wholly
owned subsidiary of Clorox, filed a declaration in support of
Clorox's Motion to Dismiss. ECF No. 43-1 ("Schlesinger Decl.").
Exhibit A to the Schlesinger Declaration is a CD containing video

2

1

some of the cats examine and apparently reject a nearby litter box

2

filled with Super Scoop.

3

words "dramatization" and "based on lab tests" appear at the bottom

4

of the screen.

5

boxes.

6

inside.

7

is better at eliminating odors than Arm & Hammer's Super Scoop.

8

Fresh Step.

9

abbreviated version of this ad from December 2010 to January 2011.

United States District Court

For the Northern District of California

10
11

Id.

While this scene plays out, the

The commercial's voiceover states:

Big ones.

Little ones.

"Cats like

And ones with Fresh Step litter

That's because Fresh Step's scoopable litter with carbon

Cats know what they like."

Id.

Clorox ran an

Schlesinger Decl. ¶ 2; Compl. Ex. B.
In early January 2011, Clorox ran another television

12

commercial featuring videos of cats engaged in playful activities,

13

such as opening jars of cat food, unlocking doors, and thwarting a

14

dog from entering a house.

15

Ex. A.

16

showing cats choosing a box of Fresh Step over a box of Super

17

Scoop.

18

plays, a voiceover states: "Cats are smart.

19

their humans.

20

smart enough to choose the litter with less odors.

21

Fresh Step Scoopable Litter with carbon is better at eliminating

22

litter box odors than Arm & Hammer Super Scoop.

23

know what they like."

24
25

Compl. Ex. C; Schlesinger Decl. ¶ 3,

Like the earlier commercials, this commercial concludes by

Compl. Ex. C.; Schlesinger Decl. Ex. A.

Their canines.

As the video

They can outsmart

And locked doors.

They're also
That's because

Fresh Step, cats

Id.

In response to these commercials (the "First Commercials"),
C&D filed an action against Clorox in the Southern District of New

26
27
28

clips of Clorox's various Fresh Step commercials. Exhibits A to E
of the Complaint are storyboards of these commercials.

3

Compl. ¶ 43, RJN Ex. 1.2

1

York in January 2011.

C&D alleged that

2

it had commissioned a study to determine the frequency with which

3

house cats would reject Super Scoop and Fresh Step when used in the

4

cat's everyday litter box.

5

158 cats in the study, six rejected their litter box when it was

6

filled with Super Scoop, while eight rejected their litter box when

7

it was filled with Fresh Step.

8

alleged that the study showed that the litter preference claims in

9

the First Commercials were false and misleading.

Compl. ¶ 37, RJN Ex. 1 ¶ 24.

Of the

Compl. ¶ 38; RJN Ex. 1 ¶ 25.

C&D

RJN Ex. 1 ¶ 27.

United States District Court

For the Northern District of California

10

Among other things, C&D asserted a claim for false advertising in

11

violation of the Lanham Act on the ground that the commercials were

12

likely to mislead consumers into purchasing Fresh Step instead of

13

Super Scoop.

14

Clorox ceased airing the First Commercials and C&D voluntarily

15

dismissed its action without prejudice.

Id. ¶¶ 41, 47-55.

Soon after the suit was filed,

Compl. ¶ 43.

In February 2011, Clorox began running a new set of

16
17

commercials (the "Second Commercials").

Compl. ¶ 32.

These

18

commercials also show cats engaged in playful activities.

Id. Exs.

19
2

20
21
22
23
24
25
26
27
28

Clorox requests that the Court take judicial notice of various
documents filed in C&D's lawsuits against Clorox in the Southern
District of New York, as well as video clips of the Fresh Step
commercials described in the Complaint. ECF No. 44 ("RJN").
Plaintiffs have not opposed the motion. Pursuant to Federal Rule
of Evidence 201, the Court may take judicial notice of any fact
that is "not subject to reasonable dispute because it . . . can be
accurately and readily determined from sources whose accuracy
cannot be reasonably questioned." Fed. R. Ev. 201(b). Relying on
Rule 201, "[c]ourts routinely take judicial notice of legal
documents filed in related litigation, including pleadings,
motions, and judgments." Ha v. U.S. Attorney Gen., No. 09-5281,
2010 WL 3001224, at *1 (N.D. Cal. July 29, 2010). Further, under
the incorporation by reference doctrine, the Court may take
judicial notice of documents "whose contents are alleged in a
complaint and whose authenticity no party questions." Knievel v.
ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Accordingly, the Court
GRANTS Clorox's request for judicial notice.

4

1

D-E; Schlesinger Decl. Ex. A.

2

beakers, one filled with a black substance labeled "carbon" and the

3

other filled with a white substance labeled "baking soda."

4

Green gas is then shown floating through the beakers; the green gas

5

in the carbon beaker rapidly dissipates, while the gas in the

6

baking soda beaker barely dissipates.

7

demonstration, the voiceover states: "That's why Fresh Step

8

Scoopable has carbon, which is more effective at absorbing odors

9

than baking soda."

Id.

They also depict two laboratory

Id.

Id.

During this

The following text appears at the bottom

United States District Court

For the Northern District of California

10

of the screen during the demonstration: "Dramatization of cat waste

11

malodor after 1 day.

12

Based on sensory lab test."

Id.

In response to the Second Commercials, C&D filed a second

13

lawsuit against Clorox in the Southern District of New York.

14

Compl. ¶ 44, RJN Ex. 3.

15

independent laboratory to conduct a ten-day sensory study involving

16

a panel of persons trained in odor evaluation that compared Fresh

17

Step to one of C&D's baking soda-based cat litters.

18

41; RJN Ex. 3 ¶ 8.

19

of the study, and overall across all days, the panelists' average

20

rating for C&D's baking soda-based litter was lower than the

21

average rating for Fresh Step, with a lower rating representing a

22

more palatable odor.

23

alleged that Clorox's commercials conveyed misleading information

24

about the respective merits of Fresh Step and C&D cat litter

25

products and asserted a Lanham Act claim.

C&D alleged that it had commissioned an

Compl. ¶¶ 40-

C&D further alleged that, on every single day

Compl. ¶ 41; RJN Ex. 3 ¶ 9.

Again, C&D

RJN Ex. 3 ¶¶ 70-78.

26

On January 3, 2012, District Judge Jed. S. Rakoff ("Judge

27

Rakoff") granted C&D's motion for a preliminary injunction and

28

enjoined Clorox from further airing the Second Commercials.

5

Church

1

& Dwight Co., Inc. v. Clorox Co. ("C&D v. Clorox II"), 840 F. Supp.

2

2d 717, 723 (S.D.N.Y. 2012).

3

before the Second Circuit could rule on the appeal, the parties

4

reached a private settlement and C&D dismissed its claims with

5

prejudice.3

Clorox appealed the decision, but,

A few weeks after Judge Rakoff issued a preliminary injunction

6
7

in C&D v. Clorox II, Megan Sterritt filed the instant action

8

against Clorox.

9

in the Northern District of California and other out-of-state

ECF No. 1.

Five additional cases were later filed

United States District Court

For the Northern District of California

10

district courts.

ECF Nos. 20, 28.

These cases are now

11

consolidated before this Court.

12

individuals from five different states -- California, Florida, New

13

Jersey, New York, and Texas -- who purchased Fresh Step sometime

14

after the First Commercials aired in October 2010.

15

21.

Id.

Plaintiffs are seven

Compl. ¶¶ 15-

Plaintiffs filed an Amended Consolidated Class Action

16
17

Complaint (the "Complaint") on April 11, 2012.

18

Complaint adopts many of C&D's allegations concerning laboratory

19

tests comparing C&D and Clorox litter products.

20

Plaintiffs seek certification of a nationwide class action under

21

California consumer protection statutes on behalf of "[a]ll persons

22

or entities that purchased Fresh Step cat litter in the United

23

States."

24

violations of the California Consumers Legal Remedies Act ("CLRA"),

25

Cal. Civ. Code § 17500 et seq.; violation of the California Unfair

26

Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, et seq.;

Id. ¶ 49.

Plaintiffs'

See id. ¶¶ 37-42.

Specifically, Plaintiffs assert claims for

27
3

28

See Docket Entries 55 and 58 in C&D v. Clorox II, Case No. 11-cv1865 (S.D.N.Y.).

6

1

and California's False Advertising Law ("FAL"), Cal. Bus. & Prof.

2

Code §§ 17200, 17250.

3

nationwide class, Plaintiffs bring this action on behalf of five

4

subclasses under consumer protection statutes in California,

5

Florida, New Jersey, New York, and Texas.

6

In addition to violations of consumer protection statutes,

7

Plaintiffs assert causes of action for breach of express warranty

8

and unjust enrichment.

Id. ¶¶ 71-95.

In the alternative to a

Id. ¶¶ 50-55, 96-156.

Id. ¶¶ 157-170.

9

United States District Court

For the Northern District of California

10
11

III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure

12

12(b)(6) "tests the legal sufficiency of a claim."

13

Block, 250 F.3d 729, 732 (9th Cir. 2001).

14

based on the lack of a cognizable legal theory or the absence

15

of sufficient facts alleged under a cognizable legal theory."

16

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th

17

Cir. 1988).

18

a court should assume their veracity and then determine

19

whether they plausibly give rise to an entitlement to relief."

20

Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).

21

tenet that a court must accept as true all of the allegations

22

contained in a complaint is inapplicable to legal conclusions.

23

Threadbare recitals of the elements of a cause of action,

24

supported by mere conclusory statements, do not suffice."

25

at 663. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

26

(2007)).

27

"sufficiently detailed to give fair notice to the opposing

28

party of the nature of the claim so that the party may

Navarro v.

"Dismissal can be

"When there are well-pleaded factual allegations,

However, "the

The allegations made in a complaint must be both

7

Id.

1

effectively defend against it" and "sufficiently plausible"

2

such that "it is not unfair to require the opposing party to

3

be subjected to the expense of discovery."

4

F.3d 1191, 1204 (9th Cir. 2011).

Starr v. Baca, 633

5
6

IV.

DISCUSSION

7

A.

8

Clorox argues that Plaintiffs' UCL, CLRA, and FAL claims fail

9

Lack of Substantiation

because they are predicated on allegations that Clorox's Fresh Step

United States District Court

For the Northern District of California

10

marketing campaign conveyed factual statements which lack

11

substantiation.

12

allegations are not cognizable under California law.

13

analyzing the substance of these arguments, the Court reviews the

14

legal elements of a claim for false advertising under California's

15

UCL, CLRA, and FAL.

16

MTD at 12-16.

Clorox contends that such
Before

The UCL prohibits "any unlawful, unfair or fraudulent business

17

act or practice and unfair, deceptive, untrue or misleading

18

advertising."

19

"unfair methods of competition and unfair or deceptive acts or

20

practices."

21

to induce the public to enter into any obligation through the

22

dissemination of "untrue or misleading" statements.

23

Prof. Code § 17500.

24

Cal. Bus. & Prof. Code § 17200.

Cal. Civ. Code § 1770(a).

The CLRA prohibits

The FAL makes it unlawful

Cal. Bus. &

In evaluating false advertising claims under these statutes,

25

courts are guided "by the reasonable consumer test."

Williams v.

26

Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008).

Under this

27

test, a plaintiff "must show that members of the public are likely

28

to be deceived."

Id. (internal quotations omitted).

8

Defendants

1

are liable for "not only advertising which is false, but also

2

advertising which[,] although true, is either actually misleading

3

or which has a capacity, likelihood or tendency to deceive or

4

confuse the public."

5

(Cal. 2002) (internal quotations omitted).

6

practice is deceptive will usually be a question of fact not

7

appropriate for decision on demurrer."

8
9

Kasky v. Nike, Inc., 27 Cal. 4th 939, 951
"[W]hether a business

Williams, 552 F.3d at 938.

Courts have been careful to distinguish between allegations
that a defendant's advertising claims are actually false and

United States District Court

For the Northern District of California

10

allegations that such claims lack substantiation.

11

Fraker v. Bayer Corp., No. 08-1564 AWI GSA, 2009 U.S. Dist. LEXIS

12

125633, at *22-23 (N.D. Cal. Oct. 2, 2009).

13

lack of substantiation are not cognizable under California law.

14

See Stanley v. Bayer Healthcare LLC, 11CV862-IEG BLM, 2012 WL

15

1132920, at *3 (S.D. Cal. Apr. 3, 2012); Chavez v. Nestle USA,

16

Inc., No. 09-9192, 2011 WL 2150128, at *5 (C.D. Cal. May 19, 2011);

17

Fraker, 2009 U.S. Dist. LEXIS 125633, at *22.

18

See, e.g.,

Consumer claims for a

This principle arises, at least in part, from California

19

Business and Professions Code section 17508.

20

establishes an administrative procedure whereby certain government

21

authorities may require a business to substantiate advertising

22

claims.

23

Affairs, the Attorney General, any city attorney, or any district

24

attorney.

25

not authorize consumers or other private entities to make

26

substantiation demands.

27

Inc. v. King Bio Pharm., Inc., 107 Cal. App. 4th 1336, 1345 (Cal.

28

Ct. App. 2003).

Section 17508

These authorities include the Director of Consumer

Cal. Bus. & Prof. Code § 17508(b).

Section 17508 does

See Nat'l Council Against Health Fraud,

The reasoning being that "[t]his limitation

9

1

prevents undue harassment of advertisers and is the least

2

burdensome method of obtaining substantiation for advertising

3

claims."

4

Id.

Clorox argues that Plaintiffs' action runs afoul of this

5

limitation since "the primary focus of the complaint is the

6

supposed lack of substantiation for Clorox's claim that carbon is

7

more effective than baking soda at fighting odors."

8

Clorox contends that Plaintiffs have attempted to "conceal the

9

essence of their complaint" by deleting references to the word

MTD at 14.

United States District Court

For the Northern District of California

10

"substantiation" that appeared in an earlier pleading filed by one

11

of the Plaintiffs before the case was consolidated.

12

Plaintiffs respond that the gravamen of their allegations is not

13

that Clorox's advertising claims are unsubstantiated, but that they

14

are provably false.

15

Id. at 13.

The Court finds Plaintiffs' position more persuasive.

As an

16

initial matter, Plaintiffs' operative complaint is the only

17

pleading relevant to Clorox's motion to dismiss.

18

Plaintiffs' prior, non-operative complaint stated a cognizable

19

claim is unimportant and Plaintiffs are free to change their legal

20

theories through amendment.

21

Co., 228 U.S. 22, 25 (1913) ("the party who brings a suit is master

22

to decide what law he will rely upon").

23

operative complaint as a whole, the Court cannot conclude that

24

Plaintiffs are merely alleging a lack of substantiation.

25

the Complaint clearly alleges that the challenged representations

26

are false.

27
28

Whether or not

See The Fair v. Kohler Die & Specialty

Moreover, considering the

Rather,

Specifically, Plaintiffs target Clorox's alleged
representations that: (1) carbon-based cat litter is more effective

10

1

at eliminating cat odors than other brands that do not use carbon,

2

and (2) cats choose carbon-based cat litter over other litters.

3

See, e.g., Compl. ¶ 1.

4

studies commissioned by C&D directly contradict these

5

representations.

6

have shown, carbon-based cat litter is not superior to other cat

7

litters").

8

prove[s] that cats do not reject baking soda based cat litter more

9

than they reject carbon-based cat litter."

Plaintiffs then allege that two scientific

See, e.g., Compl. ¶ 7 ("as scientific studies

According to Plaintiffs, one study "conclusively

Id. ¶ 38.

The results

United States District Court

For the Northern District of California

10

of the other study allegedly "demonstrate that [baking soda-based]

11

cat litter was significantly superior to Fresh Step at the 95%

12

confidence level in terms of cat waste odor elimination."

13

41.

14

competent scientific evidence to support Clorox's claims; they

15

allege that the competent scientific evidence shows that Clorox's

16

claims are objectively false.

Id. ¶

Thus, Plaintiffs do more than allege that there is no

17

B.

18

Clorox also moves to dismiss Plaintiffs' action to the extent

Puffery

19

that it is based on advertising claims that cats "like" or "are

20

smart enough to choose Fresh Step."

21

that these statements could not deceive a reasonable consumer since

22

they amount to mere puffery.

23

MTD at 18-19.

Clorox reasons

Id.

Puffery is "exaggerated advertising, blustering, and boasting

24

upon which no reasonable buyer would rely."

25

Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997).

26

"The distinguishing characteristics of puffery are vague, highly

27

subjective claims as opposed to specific, detailed factual

28

assertions."

Southland Sod Farms v.

Haskell v. Time, Inc., 857 F. Supp. 1392, 1399 (E.D.

11

1

Cal. 1994).

2

actionable."

3

highly subjective often amount to nonactionable puffery."

4

Southland, 108 F.3d at 1145.

5

measurable advertisement claim of product superiority based on

6

product testing is not puffery."

7

alleged misrepresentation constitutes puffery is a question of law

8

appropriate for resolution on a Rule 12(b)(6) motion to dismiss.

9

Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1053

United States District Court

For the Northern District of California

10
11

"Advertising that amounts to 'mere' puffery is not
Id.

"Product superiority claims that are vague or

On the other hand, "[a] specific and

Id.

Determining whether an

(9th Cir. 2008).
Plaintiffs argue that representations about what cats "like"

12

or "choose" amount to measurable claims about cats' litter

13

preferences.

14

studies commissioned by C&D actually measured such preferences by

15

determining the frequency with which cats reject Fresh Step as

16

opposed to a baking soda-based cat litter.

17

that the demonstrations depicted in the First Commercials also

18

represent that cats prefer Fresh Step to other brands.

19

Specifically, these demonstrations show cats rejecting a litter box

20

filled with baking soda-based cat litter in favor of a litter box

21

filled with Fresh Step.

22

"give the impression that the preference statements are based upon

23

scientific testing and are not merely 'outrageous generalized

24

statements.'"

25

Opp'n at 9.

Plaintiffs point out that one of the

Id.

Plaintiffs argue

Id.

Plaintiffs contend that these depictions

Id. at 10.

The Court agrees that the First Commercials generally convey

26

the message that cats prefer Fresh Step to other cat litter brands.

27

However, the commercials provide no basis for the claim.

28

to Plaintiffs' assertion, the depiction of four or five cats

12

Contrary

than a litter box of the competitor's brand does not give the

3

impression of scientific testing -- especially since this

4

demonstration follows several videos of cats playing with boxes.

5

Further, the First Commercials do not make quantifiable claims

6

which could be proved or disproved.

7

commercials is that cats prefer Fresh Step because they are "smart

8

enough to choose the litter with less odors."

9

consumer would consider such a message to be a statement of fact.

10

United States District Court

choosing to playfully jump into a litter box of Fresh Step rather

2

For the Northern District of California

1

Though neither party addresses the issue, it is worth noting

The overall message of the

No reasonable

11

that the voiceovers and images in the First Commercials are also

12

accompanied by text at the bottom of the screen.

13

while various cats are shown jumping into litter boxes of Fresh

14

Step, the following two statements appear:

15

"based on lab tests."

16

undercuts Plaintiffs' contention that reasonable consumers would

17

take the First Commercials' representations to be statements of

18

fact.

19

the other way.

20

what representations are based on lab tests.4

21

not help Plaintiffs' case.

22

Specifically,

"dramatization" and

The "dramatization" disclaimer further

The statement "based on lab tests" has the potential to cut
However, the commercials do not clearly identify
Thus, this text does

For the reasons set forth above, the Court dismisses

23

Plaintiffs' claims to the extent that they are based on the

24

statements that cats "like" or "are smart enough to choose Fresh

25

Step."

26

4

27
28

It appears that Clorox intended to convey that the statement
"Fresh Step's scoopable litter with carbon is better at eliminating
odors than Arm & Hammer's Super Scoop" is based on lab tests. The
voiceover makes this statement as the text "based on lab tests"
appears on the screen.

13

1

C.

2

Clorox argues that Plaintiffs' UCL, CLRA, and FAL claims fail

Rule 9(b) Pleading Requirements

3

because Plaintiffs have not satisfied the heightened pleading

4

requirements for fraud set forth in Federal Rule of Civil Procedure

5

9(b).

6

complaint is devoid of basic facts of what alleged

7

misrepresentations Plaintiffs saw, when they saw them, or where

8

they saw them."

9

9(b) applies, but assert that they have met its heightened pleading

MTD at 19-20.

Specifically, Clorox contends that "[t]he

Id. at 19.

Plaintiffs do not contest that Rule

United States District Court

For the Northern District of California

10

requirements by submitting examples of the allegedly false and

11

misleading commercials.

12

Opp'n at 11-12.

Rule 9(b) requires that a party "state with particularity the

13

circumstances constituting fraud or mistake."

14

of fraud must be accompanied by 'the who, what, when, where, and

15

how' of the misconduct charged."

Vess v. Ciba-Geigy Corp. USA, 317

16

F.3d 1097, 1106 (9th Cir. 2003).

Rule 9(b) serves three purposes:

17

(1) "to provide defendants with adequate notice" and "deter

18

plaintiffs from . . . filing . . . complaints as a pretext for the

19

discovery of unknown wrongs"; (2) "to protect those whose

20

reputation would be harmed as a result of being subject to fraud

21

charges"; and (3) "to prohibit [ ] plaintiff[s] from unilaterally

22

imposing upon the court, the parties and society enormous social

23

and economic costs absent some factual basis."

24

Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (internal quotations

25

omitted).

26

"Thus, [a]verments

Kearns v. Ford

In this case, requiring Plaintiffs to plead additional facts

27

would not advance any of these goals.

28

each of the commercials upon which the Plaintiffs allegedly relied

14

The Complaint identifies

1

and specifically describes their contents.

2

Plaintiffs allege when these commercials aired and provide detailed

3

storyboard images for each.

4

also allege that they purchased Fresh Step in reliance on the

5

representations set forth in these commercials.

6

This detailed information is sufficient to place Clorox on notice

7

of the basis of Plaintiffs' claims and demonstrates that Plaintiffs

8

are not on a fishing expedition.

9

allegations, Clorox has already been able to locate and produce

Compl. ¶¶ 28-34.

Id. ¶¶ 28-34, Exs. A-E.

Plaintiffs

Id. ¶¶ 15-21.

Indeed, based upon Plaintiffs'

United States District Court

For the Northern District of California

10

videos of the commercials described in the Complaint.

11

Schlesinger Decl. Ex. A.

12

Plaintiffs have satisfied the heightened pleading requirements of

13

Rule 9(b).

See

Accordingly, the Court finds that

14

D.

15

Clorox next moves to dismiss Plaintiffs' cause of action for

Breach of Express Warranty

16

breach of warranty.

17

warranty under California law, a plaintiff must allege (1) the

18

exact terms of the warranty; (2) reasonable reliance thereon; and

19

(3) a breach of warranty which proximately caused plaintiff's

20

injury."

21

3861893, at *4 (N.D. Cal. Aug. 30, 2011).

22

"To state a claim for breach of express

Nabors v. Google, Inc., 5:10-CV-03897 EJD, 2011 WL

Plaintiffs specifically identify two alleged warranties

23

arising out of the commercials described in the Complaint: (1)

24

carbon-based Fresh Step is better at eliminating and absorbing

25

odors than baking soda-based cat litters, and (2) cats "are smart

26

enough to choose" carbon-based Fresh Step over baking soda-based

27

cat litters.

Compl. ¶ 159.

Plaintiffs also allege that Clorox's

28

15

1

product labels constitute express warranties, but they do not

2

provide any specifics concerning the labels' contents.

3

Id. ¶ 158.

The Court has already found that Clorox's statements that cats

4

are "smart enough" to choose Fresh Step amount to puffery and are

5

therefore not actionable under California's consumer protection

6

statutes.

7

are also not actionable under a theory of breach of express

8

warranty.

9

NLS, 2011 WL 1897625, at *5 (S.D. Cal. May 17, 2011).

United States District Court

For the Northern District of California

10

See Section IV.B supra.

As puffery, these statements

See Edmunson v. Procter & Gamble Co., 10-CV-2256-IEG

Additionally, Plaintiffs' vague allegation concerning "product

11

labels" cannot support a claim for breach of warranty.

12

Plaintiffs do not allege what these labels say, they have failed to

13

identify the exact terms of the warranty.

14

3861893, at *4.

15

sufficiently detailed to provide Clorox with meaningful notice.

16

the Complaint is currently pled, Clorox would need to guess at

17

which labels and which packaging form the basis of Plaintiffs'

18

claim.

19

Step packaging over time.

20

area falls far short of the plausibility and notice requirements

21

set forth in Iqbal and Twombly.

22

to amend to cure these deficiencies.

Since

See Nabors, 2011 WL

Plaintiffs' allegations in this area are not
As

This guesswork could be complicated by variations in Fresh
In short, Plaintiffs' pleading in this

The Court GRANTS Plaintiffs leave

23

The Court reaches a different conclusion with respect to

24

Plaintiffs' claim that Clorox warranted that Fresh Step is better

25

at eliminating odors than other cat litters.

26

specific contents of this warranty and that they reasonably relied

27

on the warranty when they purchased Fresh Step.

28

supra; Compl. ¶ 60.

Plaintiffs allege the

See Section IV.C

Plaintiffs also allege that Clorox breached

16

1

the warranty because scientific studies show that baking soda-based

2

cat litters are better at eliminating odors.

3

Finally, Plaintiffs allege that they were injured by this breach

4

because they paid a premium for Fresh Step.

5

allegations are sufficient to state a plausible claim for breach of

6

express warranty.

7

Compl. ¶¶ 41-42.

Id. ¶ 8.

These

Clorox argues that the challenged statements comparing the

8

odor reduction properties of baking soda and carbon-based cat

9

litter are not actionable because they are "highly subjective

United States District Court

For the Northern District of California

10

product superiority claims."

11

Clorox's representation that "Fresh Step . . . is better at

12

eliminating litter box odors than Arm & Hammer Super Scoop" is

13

likely to be considered a statement of fact by a reasonable

14

consumer.

15

"vague" nor "highly subjective."

16

comparison -- Arm & Hammer Super Scoop -- and a metric for

17

comparison -- elimination of cat odors.

18

comparison depicted in the Second Commercials gives the impression

19

that this representation is based on the results of a scientific

20

study.5

21

"[b]ased on [a] sensory lab test" furthers this impression.

22

Schlesinger Decl. Ex. A.

MTD at 21.

The Court disagrees.

Contrary to Clorox's argument, the statement is neither
Clorox identifies both a point of

Further, the beaker

Clorox's apparent representation that this beaker test is
See

23
24
25
26
27
28

5

Clorox also argues that this warranty claim fails because it is
"predicated on the unsupported legal proposition that an
advertising claim creates both a contractual obligation as to the
claim's truthfulness and a contractually enforceable duty of the
advertiser to have at hand scientific evidence to substantiate the
claim." MTD at 21 (quoting Fraker, 2009 U.S. Dist. LEXIS 125633,
at *24). However, as discussed in Section IV.A supra, Plaintiffs'
claims are not predicated on an alleged lack of substantiation.

17

1

Clorox also argues that Plaintiffs' breach of warranty claim

2

fails because there is no privity.

3

general rule is that privity of contract is required in an action

4

for breach of either express or implied warranty and that there is

5

no privity between the original seller and a subsequent purchaser

6

who is in no way a party to the original sale."

7

Williams Co., 42 Cal. 2d 682, 695 (Cal. 1954); see also All W.

8

Electronics, Inc. v. M-B-W, Inc., 64 Cal. App. 4th 717, 725 (Cal.

9

Ct. App. 1998) (quoting Burr).

Under California law, "[t]he

Burr v. Sherwin

However, there are several

United States District Court

For the Northern District of California

10

exceptions to the privity requirement.

11

Corp., 534 F.3d 1017, 1023 (9th Cir. 2008).

12

the plaintiff relies on written labels or advertisements of a

13

manufacturer."

6

14

alleged here.

Accordingly, their claim for breach of express

15

warranty does not fail for lack of privity.

Id.

Clemens v. DaimlerChrysler
"The first arises when

This is precisely what Plaintiffs have

16

In sum, Plaintiffs' breach of warranty claim fails to the

17

extent that it is predicated on Clorox's representations that cats

18

prefer Clorox or on unidentified statements appearing on Fresh

19

Step's packaging.

20

predicated on Clorox's representations that Fresh Step is better at

21

eliminating odor than other baking soda-based cat litters.

The claim may proceed to the extent that it is

22

E.

23

Plaintiffs bring this action on behalf of all persons that

Class Allegations

24

purchased Fresh Step in the United States between October 2010 and

25

the date of the final disposition of this action.

26

the alternative, Plaintiffs seek certification of five subclasses.

27

6

28

Compl. ¶ 49.

In

Clorox argues that the exception is limited to written
warranties. Reply at 10. However, it fails to cite any case law
indicating that this exception should be so limited.

18

1

Id. ¶¶ 50-55.

2

lead plaintiff from one of five states and would encompass "all

3

persons or entities who purchased Fresh Step cat litter in the

4

United States during the period between October 2010 and the date

5

of the final disposition of this action."

6

strike Plaintiffs' nationwide class and subclass allegations

7

pursuant to Federal Rule of Civil Procedure 12(f).

8

Plaintiffs respond that Clorox's motion to strike is premature.7

9

Opp'n at 20.

United States District Court

For the Northern District of California

10

Each of these subclasses would be represented by a

Id.

Clorox now moves to

MTD at 22-25.

Federal Rule of Civil Procedure 12(f) provides that a court

11

may, on its own or on a motion, "strike from a pleading an

12

insufficient defense or any redundant, immaterial, impertinent, or

13

scandalous matter."

14

. . [and] are generally not granted unless it is clear that the

15

matter sought to be stricken could have no possible bearing on the

16

subject matter of the litigation."

17

Supp. 2d 1177, 1180 (N.D. Cal. 2001).

18

Motions to strike "are generally disfavored .

Rosales v. Citibank, 133 F.

Class allegations typically are tested on a motion for class

19

certification, not at the pleading stage.

20

Corp., C10-1210-TEH, 2010 WL 3077671, at *2 (N.D. Cal. Aug. 6,

21

2010).

22

pleadings to determine whether the interests of the absent parties

23

are fairly encompassed within the named plaintiff's claim."

24

Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982).

25

courts have struck class allegations where it is clear from the

See Collins v. Gamestop

However, "[s]ometimes the issues are plain enough from the

Gen.

Thus, some

26
27
7

28

Clorox does not respond to this argument or otherwise address
Plaintiffs' class allegations in its reply brief.

19

1

pleadings that class claims cannot be maintained.

2

Apple Inc., 672 F. Supp. 2d 978, 990 (N.D. Cal. 2009).

3

E.g., Sanders v.

Here, Clorox argues that Plaintiffs' class allegations should

4

be struck because the Ninth Circuit's decision in Mazza v. American

5

Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), "strongly

6

suggest[s]" that California's consumer protection laws cannot be

7

applied nationwide.

8

putative nationwide class action against Honda, alleging violations

9

of California's UCL, FAL, and CLRA related to Honda's marketing of

MTD at 22.

The plaintiffs in Mazza brought a

United States District Court

For the Northern District of California

10

its collision mitigation braking system.

11

district court certified a nationwide class, and the Ninth Circuit

12

reversed.

13

choice-of-law rules, the Ninth Circuit found that "the district

14

court abused its discretion in certifying a class under California

15

law that contained class members who purchased or leased their car

16

in different jurisdictions with materially different consumer

17

protection laws."

18

influenced, in part, by briefing from Honda that "exhaustively

19

detailed the ways in which California law differs from the laws of

20

the 43 other jurisdictions."

21

666 F.3d at 587.

The

After engaging in a detailed analysis of California's

Id. at 590.

The court's decision was

Id. at 591.

Significantly, Mazza was decided on a motion for class

22

certification, not a motion to strike.

23

instant litigation, a detailed choice-of-law analysis would be

24

inappropriate.

25

WL 1657119, at *7 (N.D. Cal. May 10, 2012) ("Although Mazza may

26

influence the decision whether to certify the proposed class and

27

subclass, such a determination is premature [at the pleading

28

stage].").

At this stage of the

See Donohue v. Apple, Inc., 11-CV-05337 RMW, 2012

Since the parties have yet to develop a factual record,

20

1

it is unclear whether applying different state consumer protection

2

statutes could have a material impact on the viability of

3

Plaintiffs' claims.

4

has not explained how differences in the various states' consumer

5

protection laws would materially affect the adjudication of

6

Plaintiffs' claims or otherwise explained why foreign laws should

7

apply.

8

Washington Mut. Bank, FA v. Super. Ct., 24 Cal. 4th 906, 921 (Cal.

9

2001) (class action opponent bears "the burden of demonstrating

Further, unlike the defendant in Mazza, Clorox

Accordingly, Clorox has failed to meet its burden.

See

United States District Court

For the Northern District of California

10

that foreign law, rather than California law, should apply to class

11

claims").

12

Clorox also argues that the out-of-state Plaintiffs lack

13

standing to sue under California law.

14

rule, California statutes do not have force beyond the boundaries

15

of California.

16

5211BZ, 2009 WL 2031765, at *2 (N.D. Cal. July 7, 2009).

17

"[California] statutory remedies may be invoked by out-of-state

18

parties when they are harmed by wrongful conduct occurring in

19

California."

20

4th 214, 224-25 (Cal. Ct. App. 1999).

21

California's consumer protection statutes apply to non-California

22

residents, courts consider "where the defendant does business,

23

whether the defendant's principal offices are located in

24

California, where class members are located, and the location from

25

which advertising and other promotional literature decisions were

26

made."

27

Cal. 2011).

28

substantial business in California and has its principal place of

MTD at 24.

As a general

See Morgan v. Harmonix Music Sys., Inc., C08However,

Norwest Mortgage, Inc. v. Super. Ct., 72 Cal. App.
In determining whether

In re Toyota Motor Corp., 785 F. Supp. 2d 883, 917 (C.D.
Here, Plaintiffs have alleged that Clorox conducts

21

1

business and corporate headquarters in the state, decisions

2

regarding the challenged representations were made in California,

3

Clorox's marketing activities were coordinated at its California

4

headquarters, and a significant number of class members reside in

5

California.

6

that Clorox's conduct originated in or had strong connections to

7

California.

8

(C.D. Cal. 2008) ("While [defendant's] connections [to California]

9

may, after a more thorough development of the facts, prove to be

Compl. ¶ 68.

Thus, Plaintiffs have sufficiently pled

See In re Mattel, Inc., 588 F. Supp. 2d 1111, 1119

United States District Court

For the Northern District of California

10

specious or irrelevant, the Court finds that the alleged California

11

connections are sufficient to state claims by non-California

12

plaintiffs.").

13
14

Accordingly, the Court DENIES Clorox's motion to strike the
class allegations.

15
16
17

V.

CONCLUSION
For the reasons set forth above, the Court GRANTS in part and

18

DENIES in part The Clorox Company's motion to dismiss.

19

DISMISSES WITH PREJUDICE Plaintiffs' action to the extent that it

20

is predicated on Clorox's advertising claims that cats "like" or

21

"are smart enough to choose Fresh Step."

22

Plaintiffs' claim for breach of express warranty to the extent that

23

it is predicated on product labels or other statements not

24

expressly identified in the Complaint.

25

breach of express warranty claim so as to specifically identify the

26

exact terms of the warranties upon which the claim is based within

27

thirty (30) days of this Order.

28

Plaintiffs' class allegations is DENIED.

The Court

The Court also DISMISSES

Plaintiffs may amend the

Finally, Clorox's motion to strike

22

1

The Court hereby sets a case management conference for

2

December 7, 2012 at 10:00 a.m. in Courtroom 1, 450 Golden Gate

3

Avenue, San Francisco, California.

4

case management statement no fewer than seven days prior.

The parties are to file a joint

5
6

IT IS SO ORDERED.

7
8
9

Dated:

August 24, 2012
UNITED STATES DISTRICT JUDGE

United States District Court

For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

23