In Re Clorox Consumer Litigation

Filing 79

Order by Hon. Samuel Conti granting in part and denying in part 71 Motion for Judgment on the Pleadings.(sclc1, COURT STAFF) (Filed on 7/31/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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IN RE CLOROX CONSUMER
LITIGATION

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

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Master File No. 12-00280 SC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
JUDGMENT ON THE PLEADINGS

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I.

INTRODUCTION

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Plaintiffs bring this putative class action against Defendant

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The Clorox Company ("Clorox") in connection with its marketing and

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advertising of Fresh Step cat litter.1

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represents that Fresh Step is the only cat litter that uses carbon,

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and that Fresh Step is better at eliminating cat waste odors than

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other brands of cat litter that use baking soda.

Clorox's advertising

Plaintiffs allege

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Plaintiffs are Megan Sterritt and Jose Segarra, citizens of
Florida (collectively, the "Florida Plaintiffs"); Kristin Luszcz, a
citizen of New York (the "New York Plaintiff"); Lori Kowalewski, a
citizen of New Jersey (the "New Jersey Plaintiff"); Tina ButlerFurr and Catherine Lenz, citizens of Texas (the "Texas
Plaintiffs"); and Susan Doyle, a citizen of California. Each
plaintiff seeks to represent a class of Fresh Step purchasers from
his or her respective state.

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that recent studies commissioned by Clorox's competitor, Church &

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Dwight ("C&D"), show that Clorox's advertisements are demonstrably

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false.

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on the ground that Plaintiffs have failed to allege an injury in

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fact.

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74 ("Opp'n"), 76 ("Reply"), and appropriate for determination

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without oral argument per Civil Local Rule 7-1(b).

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set forth below, the Motion is GRANTED in part and DENIED in part.

Clorox now moves for judgment on the pleadings, primarily

ECF No. 71 ("Mot.").

The motion is fully briefed, ECF Nos.

For the reasons

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United States District Court

For the Northern District of California

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II.

BACKGROUND
In 2010 and 2011, Clorox aired a series of commercials

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representing that its carbon-based Fresh Step cat litter is "better

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at eliminating litter box odors" than C&D's Super Scoop, a rival

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brand of cat litter that uses Arm & Hammer baking soda.

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these commercials, C&D twice sued Clorox for violations of the

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Lanham Act.

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had commissioned an independent laboratory to conduct a ten-day

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sensory study, involving a panel of persons trained in odor

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evaluation, that compared Fresh Step to one of C&D's baking soda-

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based cat litters.

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

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

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

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more palatable odor.

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could render a judgment on the merits.

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Based on

In connection with these lawsuits, C&D alleged that it

C&D further alleged that, on every single day

Both of C&D's suits settled before the court

In the instant action, a number of consumers are attempting to

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piggyback on the studies commissioned in connection with the C&D

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lawsuits.

Plaintiffs allege that Clorox charges a premium for

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Fresh Step, and that they would not have paid that premium but for

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Clorox's claims that carbon-based cat litter is superior to baking-

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soda-based cat litter.

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pound box of Clorox's Fresh Step costs $10.77, or $0.43 per pound,

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while a 25-pound box of Clorox's Scoop Away cat litter brand (which

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does not contain carbon) costs $9.37, or $0.37 per pound.

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Plaintiffs also allege that a 20-pound box of C&D's baking-soda-

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based Super Scoop costs $7.88, or $0.39 per pound.

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Specifically, Plaintiffs allege that a 25-

Plaintiffs assert causes of action for violations of the

United States District Court

For the Northern District of California

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consumer protection laws of California, Florida, New Jersey, New

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York, and Texas, as well as claims for breach of express warranty

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and unjust enrichment under the laws of those states.

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seek to certify California, Florida, New Jersey, New York, and

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Texas subclasses.

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On August 24, 2012, that motion was granted in part and denied in

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part.

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causes of action largely undisturbed to the extent that they were

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predicated on Clorox's carbon-superiority claims.

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motion for judgment on the pleadings, Clorox raises a new set of

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arguments for dismissing Plaintiffs' causes of action.

Clorox previously moved to dismiss.

ECF No. 55 ("Aug. 24 Order").

Plaintiffs

ECF No. 43.

The Court left Plaintiffs'

Id.

In its

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III. LEGAL STANDARD

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"After the pleadings are closed -- but early enough not to

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delay trial -- a party may move for judgment on the pleadings."

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Fed. R. Civ. P. 12(c).

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the moving party clearly establishes on the face of the pleadings

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that no material issue of fact remains to be resolved and that it

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is entitled to judgment as a matter of law."

"Judgment on the pleadings is proper when

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Hal Roach Studios,

1989).

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to the same standard of review as a motion to dismiss, and thus the

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pleading must contain sufficient factual matter, accepted as true,

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to state a claim to relief that is plausible on its face.

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v. Rowley, 569 F.3d 40, 43-44 (2d Cir. 2009); see also United

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States ex re. Cafasso v. General Dynamics C4 Systems, Inc., 637

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F.3d 1047, 1055 n. 4 (9th Cir. 2011) (citing Johnson).

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plausible on its face when the plaintiff pleads "factual content

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United States District Court

Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.

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For the Northern District of California

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that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged."

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Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 556 (2007)).

Moreover, a motion for judgment on the pleadings is subject

Johnson

A claim is

Ashcroft v.

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IV.

DISCUSSION
Defendants move for judgment on the pleadings on the grounds

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that Plaintiffs lack standing because they have not personally

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found Fresh Step to be less effective than other brands.

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Defendants also argue that the New Jersey, New York, Florida, and

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Texas claims should be dismissed.

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argument in turn.

The Court addresses each

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A.

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Article III of the United States Constitution provides that

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the "judicial power of the United States" extends only to proper

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"cases" and "controversies."

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from this language limits the federal courts' exercise of the

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judicial power to those cases brought by plaintiffs who meet

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certain minimum requirements.

Article III Standing

The doctrine of standing that flows

See Allen v. Wright, 468 U.S. 737,

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750 (1984).

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The irreducible constitutional minimum of Article III
standing
contains
three
elements.
First,
the
plaintiff must have suffered an "injury in fact" that
is "concrete and particularized" and "actual or
imminent." Second, there must be a causal connection
between the injury and the conduct complained of, such
that the injury is fairly traceable to the action
challenged. "Third, it must be likely, as opposed to
merely speculative, that the injury will be redressed
by a favorable decision."

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United States District Court

For the Northern District of California

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Renee v. Duncan, 686 F.3d 1002, 1012 (9th Cir. 2012) (quoting Lujan

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v. Defenders of Wildlife, 504 U.S. 555, 560, 112 (1992)) (internal

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quotation marks, brackets, and citations omitted).

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invoking federal jurisdiction bears the burden of establishing

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these elements."

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"The party

Lujan, 504 U.S. at 561.

Clorox argues that Plaintiffs have failed to plead injury in

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fact, since they do not allege (1) that Fresh Step did not work as

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advertised in reducing odors or (2) that they personally found

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Fresh Step to be less effective than other cat litter brands.

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at 5.

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best since they have not alleged that they compared Fresh Step to

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other brands.

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only alleged harm is that C&D claimed that its brand of cat litter

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is more effective than Clorox's.

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that they do not allege that Fresh Step failed to reduce cat odors,

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but they argue that such allegations are unnecessary to establish

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standing.

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actual and concrete economic injury by claiming that Clorox

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deceived them into paying a premium for a cat litter that studies

Mot.

Clorox reasons that Plaintiffs' injuries are hypothetical at

Id. at 8.

Opp'n at 6.

Clorox further argues that Plaintiffs'

Id. at 1.

Plaintiffs concede

Plaintiffs contend that they have pled an

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have shown is less effective at eliminating cat odors than other

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non-carbon-based cat litters.

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that Plaintiffs' concession is fatal.

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Plaintiffs cannot show injury in fact if they never actually

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experienced the alleged inferiority of Fresh Step.

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Clorox further argues that C&D's claim that Fresh Step is inferior

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to Super Scoop and other baking-soda-based cat litters is

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irrelevant to determining whether Plaintiffs were harmed.

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Opp'n at 5.

The Court agrees with Plaintiffs.

In reply, Clorox argues

Clorox contends that

Reply at 4.

Id.

As an initial matter, even

United States District Court

For the Northern District of California

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if Fresh Step did eliminate cat odors, it did not perform as

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advertised if it was worse at eliminating odors than other baking-

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soda-based cat litters.

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objectively inferior at eliminating cat odors, it is irrelevant

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that Plaintiffs did not experience that inferiority first hand.

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Clorox's position implicitly requires the Court to assume that

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there is no way to objectively measure or compare the effectiveness

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of various cat litters.

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consumer cannot possibly know that Super Scoop is better or worse

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than Fresh Step at fighting odors until he or she personally tries

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both products.

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litter, like a person's taste in food, is a matter of personal

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preference.

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must take all well-pleaded factual allegations as true.

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to the complaint, C&D studies show that baking-soda-based cat

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litters are objectively better at reducing cat odors than Fresh

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Step.

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fighting odors is not implausible.

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that Clorox makes in its own advertisements.

Further, if Fresh Step is in fact

Clorox is essentially arguing that a

According to Clorox, a person's taste in cat

That may be so.

However, at this stage, the Court
According

The notion that one cat litter is objectively better at

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Indeed, that is the very claim
In sum, Clorox's

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arguments raise factual issues that are not suitable for

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determination on a motion for judgment on the pleadings.2

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Clorox also cites to a number of cases finding a lack of

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standing where the plaintiffs alleged that they had purchased a

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defective or potentially dangerous product, but admitted that they

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had not been injured by the product or that the product had

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performed as advertised with respect to them.3

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involved a pain medication which had been withdrawn from the market

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after reports of liver failure among long-term users.

For example, Rivera

283 F.3d at

United States District Court

For the Northern District of California

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In its reply brief, Clorox offers a hypothetical example that
purportedly shows that Plaintiffs have not suffered an injury in
fact:
PepsiCo unveils an ad touting that "taste tests show
that seven out of ten adults prefer Pepsi to Coke." A
consumer buys Pepsi, enjoys the drink, and continues
to buy it.
Coca-Cola then issues a competing
advertising campaign based on its own consumer survey,
proclaiming that Pepsi's taste tests were flawed. The
Pepsi consumer -- who enjoyed the Pepsi he bought,
never bought Coke, and never personally found Coke to
be preferable to Pepsi -- plainly has no standing to
sue PepsiCo because he has suffered no harm. The fact
that Coca-Cola may dispute the accuracy of Pepsi's
commercials has no bearing on whether that Pepsi
consumer personally suffered any injury.

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Reply at 3. The problem with this hypothetical is that the taste
of a soft drink is not amenable to objective measurement. In
contrast, according to Plaintiffs, the odor-fighting abilities of
cat litter are amenable to objective measurement. Thus, a more apt
hypothetical would involve Pepsi representing that its product had
fewer calories than Coke. Such a representation could be proven
true or false. Further, if the representation was false, it could
potentially harm calorie-conscious consumers who choose Pepsi over
Coke. These consumers need not try Coke to show it has fewer
calories than Pepsi or otherwise prove injury.
3

Mot. at 6-8 (citing Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315
(5th Cir. 2002); Bowman v. RAM Med., Inc., I O-CV-4403 DMC MF, 2012
WL 1964452 (D.N.J. May 31, 2012); In re McNeil Consumer Healthcare,
Mktg. & Sales Practices Litig., MDL 2190, 2011 WL 2802854 (E.D. Pa.
July 15, 2011); Whitson v. Bumbo, C 07-05597 MHP, 2009 WL 1515597
(N.D. Cal. Apr. 16, 2009); Williams v. Purdue Pharma Co., 297 F.
Supp. 2d 171, 172 (D.D.C. 2003)).

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317.

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ingested the drug but had not been injured by it.

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Circuit found that the plaintiff lacked standing, reasoning: "the

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wrongs [the plaintiff] and the class allege are those suffered by

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other, non-class member patients."

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cited by Clorox differ only with respect to the products involved.

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For example, Whitson concerned a child seat that allegedly caused

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severe physical injuries to a number of babies.

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at *1-2.

The plaintiff sought to represent a class of patients who

Id. at 320.

Id.

The Third

The other cases

2009 WL 1515597,

The plaintiff sought to represent a class of the injured,

United States District Court

For the Northern District of California

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but neither she nor her child had been harmed by the product.

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at *2.

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dismissed the action for a lack of standing.

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Id.

Following the Third Circuit's lead in Rivera, this Court

Clorox's cases are inapposite.

Id. at *6.

Unlike the instant action, the

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advertisements in the cited cases did not compare the defendants'

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products to their competitors'.

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authority addresses the question presented here: does paying a

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premium for a product as a result of claims of product superiority

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constitute an injury in fact when the purportedly inferior product

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is cheaper and more effective?

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discuss economic injuries, they are distinguishable.

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in Rivera, the court rejected the plaintiff's assertion that she

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had not received the benefit of her bargain, since, by her own

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admission, she had paid for and received an effective pain killer.

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283 F.3d 320.

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a premium for an inferior product as a result of Clorox's

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misleading advertising.

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although he had not been physically harmed by the defendant's

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allegedly defective drug, he had suffered an injury because the

Accordingly, none of Clorox's

To the extent that the cited cases
For example,

In contrast, here, Plaintiffs allege that they paid

In Williams, the plaintiff alleged that,

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defendants' promotional tactics drove up the price of the drug.

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297 F. Supp. 2d at 176.

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because the plaintiff had not alleged that he was deceived or even

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saw defendant's advertising.

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here, since Plaintiffs have alleged that they would not have paid a

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premium for Fresh Step but for Clorox's advertising.

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The court rejected this argument, in part

Id. at 177.

Such is not the case

The authority cited by Plaintiffs, while not on all fours with

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the instant action, is more persuasive.

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Corporation, 658 F.3d 1060, 1065 (9th Cir. 2011), the defendants

In Maya v. Centex

United States District Court

For the Northern District of California

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allegedly represented that they were building "stable family

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neighborhoods," but were in fact selling homes to high risk buyers

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who were more likely to default in times of economic hardship.

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plaintiffs, a group of homeowners in the neighborhood, alleged that

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the defendants' practices and the resulting foreclosures reduced

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the economic value of their own homes.

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defendants argued that the plaintiffs had failed to adequately

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allege standing.

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holding that the plaintiffs had pled actual and concrete economic

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injuries by alleging that they paid more for their homes than they

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were worth at the time of sale, as well as alleging that the

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defendants' actions caused their homes to lose value above and

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beyond those losses caused by general economic conditions.

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1069, 1071.

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Id. at 1067.

Id. at 1066.

The

The

The Ninth Circuit disagreed,

Id. at

Clorox contends that Maya is inapposite, reasoning that the

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plaintiffs in that case suffered injury only because they purchased

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homes with characteristics that they personally found undesirable.

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Reply at 5.

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experiences of others to establish that the litter they purchased

In contrast, argues Clorox, Plaintiffs rely upon the

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was allegedly worth less than they paid.

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discussed above, Plaintiffs need not allege that they personally

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experienced the inferiority of Fresh Step since they have alleged

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that C&D's studies show that Clorox's carbon-based cat litter is

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objectively worse at fighting cat odors.

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plaintiffs in Maya did not need to purchase two homes to

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demonstrate one was worse than the other, Plaintiffs need not

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purchase two sets of cat litter to show injury.

Id.

However, as

Further, just as the

United States District Court

For these reasons, the Court finds that Plaintiffs have

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For the Northern District of California

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adequately alleged an injury in fact and declines to dismiss this

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case for lack of standing.4

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B.

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The New Jersey Plaintiff asserts the following claims on

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behalf of herself and the putative New Jersey class: (1) violation

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of the New Jersey Consumer Fraud Act (the "NJCFA"), N.J. Stat. §

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56:8-1, et seq., (2) breach of warranty, and (3) unjust enrichment.

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Clorox argues that the NJCFA claim fails because Plaintiffs have

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not alleged an ascertainable loss, the breach of warranty claim

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should be dismissed for lack of pre-litigation notice, and the

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unjust enrichment claim should be dismissed because New Jersey does

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not recognize such a remedy for tortious conduct.

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New Jersey Claims

1.

NJCFA

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The NJCFA was intended to address "sharp practices and

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dealings in the marketing of merchandise and real estate whereby

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Though it is not germane to this motion, the Court notes that
Clorox's arguments raise questions about whether this case is
appropriate for class certification. If, as Clorox implies,
measuring a cat litter's odor fighting abilities is a subjective
exercise, then it is hard to see how Plaintiffs' complaints could
be common to or representative of the alleged class.

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the consumer could be victimized by being lured into a purchase

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through fraudulent, deceptive or other similar kind[s] of selling

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or advertising practices."

Daaleman v. Elizabethtown Gas Co., 390

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A.2d 566, 569 (N.J. 1978).

To state a claim under the NJCFA, a

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plaintiff must allege: (1) unlawful conduct by the defendant; (2)

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an ascertainable loss on the part of the plaintiff; and (3) a

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causal relationship between the defendant's unlawful conduct and

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the plaintiff's ascertainable loss.

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Supp. 2d 699, 702 (D.N.J. 2011).

United States District Court

For the Northern District of California

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Mason v. Coca-Cola Co., 774 F.

Clorox argues that Plaintiffs have failed to satisfy the

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second element, which requires that a plaintiff plead an

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ascertainable loss "with enough specificity as to give the

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defendant notice of possible damages."

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Prepaid Solutions, Inc., 3:08-CV-1057-FLW, 2008 WL 5381227, at *7

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n.3 (D.N.J. Dec. 17, 2008).

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Section IV.A supra, Clorox contends that Plaintiffs cannot meet

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their burden because they have not alleged that they personally

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found Clorox's claims of carbon-superiority to be untrue.

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9.

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Torres-Hernandez v. CVT

Echoing its arguments on standing, see

Mot. at

Plaintiffs respond that they can show an ascertainable loss

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under the so-called benefit of the bargain theory, Opp'n at 8,

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which "requires nothing more than that the consumer was misled into

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buying a product that was ultimately worth less to the consumer

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than the product he was promised."

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782 F. Supp. 2d 84, 99 (D.N.J. 2011).

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claim under the benefit of the bargain theory by alleging: "(1) a

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reasonable belief about the product induced by a misrepresentation;

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and (2) that the difference in value between the product promised

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Smajlaj v. Campbell Soup Co.,
A plaintiff may state a

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and the one received can be reasonably quantified."

Id.

under the benefit of the bargain theory because their claims are

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based solely on the assertions of C&D and because they have no

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basis to claim that the box of litter they purchased was less

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effective than another brand of litter.

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to Hoffman v. Nutraceutical Corp., CIV.A. 12-5803 ES, 2013 WL

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2650611, at *2 (D.N.J. June 10, 2013), which dismissed NJCFA claims

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where the plaintiff alleged that the defendants' products were

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United States District Court

In reply, Clorox argues that Plaintiff cannot state a claim

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For the Northern District of California

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contaminated with lead but failed to allege that the product he

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used contained lead.

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and the other no-injury products liability cases distinguished in

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Section IV.A supra.

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Reply at 7.

Clorox cites

In that respect, Hoffman is similar to Rivera

Clorox is essentially repackaging its standing arguments.

As

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discussed in Section IV.A supra, these arguments miss the mark.

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Once again, Clorox is asking the Court to discount the C&D study

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and assume that baking-soda-based litter is not objectively better

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at reducing cat odors than carbon-based litter.

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cannot do at the pleadings stage.

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remains undisturbed.

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2.

This the Court

Accordingly, the NJCFA claim

Breach of Express Warranty

New Jersey adopts the Uniform Commercial Code's notice

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requirement for express warranty claims.

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USA, LLC, CIV. 09-5582 DMC JAD, 2011 WL 2470625, at *3 (D.N.J. June

25

20, 2011).

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buyer must within a reasonable time after he discovers or should

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have discovered any breach notify the seller of breach or be barred

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from any remedy."

Luppino v. Mercedes-Benz

Thus, "[w]here a tender has been accepted . . . the

N.J. Stat. § 12A:2-607(3)(a).

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"[P]roviding

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notice pursuant to this regulation is a condition precedent to

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filing any suit for breach of contract under Article 2 of the

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U.C.C. or its state counterparts."

4

Corp., CIV 08-5344 (FSH), 2010 WL 1380750, at *4 (D.N.J. Apr. 1,

5

2010).

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breach of express warranty fails because she failed to provide

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notice.

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suit notice because of C&D's two earlier Lanham Act lawsuits.

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Opp'n at 9-10 n.8.

Joc, Inc. v. Exxonmobil Oil

Clorox argues that the New Jersey Plaintiff's claim for

Mot. at 11.

Plaintiffs respond that Clorox had ample pre-

This argument is unavailing.

The statute

United States District Court

For the Northern District of California

10

specifically contemplates notice by the "buyer," in this case the

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New Jersey Plaintiff.

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that Clorox was sued in another jurisdiction, by another party, for

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a different cause of action does not constitute sufficient notice

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under the statute.

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for breach of express warranty is DISMISSED WITH PREJUDICE.

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3.

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See N.J. Stat. § 12A:2-607(3)(a).

The fact

Accordingly, the New Jersey Plaintiff's claim

Unjust Enrichment

Finally, Clorox moves for judgment on the pleadings on the New

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Jersey Plaintiff's claim for unjust enrichment.

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for unjust enrichment under New Jersey law, a plaintiff must allege

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"both that defendant received a benefit and that retention of that

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benefit without payment would be unjust."

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Corp., 641 A.2d 519, 526 (N.J. 1994).

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enrichment doctrine requires that the plaintiff show that it

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expected remuneration from the defendant at the time it performed

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or conferred a benefit on defendant and that the failure of

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remuneration enriched defendant beyond its contractual rights."

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Id.

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To state a claim

VRG Corp. v. GKN Realty

Moreover, "[t]he unjust

A number of courts applying New Jersey law have held that an

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1

unjust enrichment claim should be dismissed where it is based on

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tortious conduct and there appear to be no allegations that the

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plaintiff expected or anticipated remuneration from the defendant.

4

See Williams v. BASF Catalysts LLC, CIV.A. 11-1754 SRC, 2012 WL

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6204182, at *20 (D.N.J. Dec. 12, 2012); Mason v. Coca-Cola Co.,

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CIV.A. 09-0220-NLH, 2010 WL 2674445, at *7 (D.N.J. June 30, 2010);

7

Torres-Hernandez v. CVT Prepaid Solutions, Inc., 3:08-CV-1057-FLW,

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2008 WL 5381227, at *9 (D.N.J. Dec. 17, 2008).5

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point out, other district courts have allowed claims for unjust

As Plaintiffs

United States District Court

For the Northern District of California

10

enrichment to proceed in the false advertising context.

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Stewart v. Beam Global Spirits & Wine, Inc., 877 F. Supp. 2d 192,

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201 (D.N.J. 2012).

13

See

The Court finds more persuasive the line of cases dismissing

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claims for unjust enrichment based on tortious conduct.

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Accordingly, the New Jersey Plaintiff's claim for unjust enrichment

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is DISMISSSED WITH PREJUDICE.

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C.

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The New York Plaintiff asserts the following claims on behalf

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of herself and the putative New York class: (1) deceptive acts and

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practices in violation of New York General Business Law ("GBL")

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section 349; (2) false advertising in violation of GBL section 350,

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et seq.; (3) breach of express warranty; and (4) unjust enrichment.

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Clorox now moves for judgment on the pleadings on all four claims.

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New York Claims

1.

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GBL Sections 349 and 350

GBL section 349 provides: "Deceptive acts or practices in the

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5

27
28

See also Warma Witter Kreisler, Inc. v. Samsung Elecs. Am., Inc.,
CIV. 08-5380 (JLL), 2009 WL 4730187, at *7 (D.N.J. Dec. 3, 2009)
(dismissing claim for unjust enrichment because it was essentially
another way of stating a traditional tort claim).

14

1

conduct of any business, trade or commerce or in the furnishing of

2

any service in this state are hereby declared unlawful."

3

Bus. Law § 349(a).

4

a plaintiff must show that the defendant engaged in an act or

5

practice that is deceptive or misleading in a material way to a

6

reasonable consumer and that the plaintiff was injured by the

7

defendant's act or practice.

8

98 N.Y.2d 314, 324 (N.Y. 2002).

9

[GBL section] 350, while specific to false advertising, is

United States District Court

For the Northern District of California

10
11

N.Y. Gen.

To state a prima facie case under section 349,

Goshen v. Mut. Life Ins. Co. of N.Y.,
"The standard for recovery under

otherwise identical to section 349."

Id. at 324 n.1.

Clorox first argues that the New York Plaintiff's GBL claims

12

fail for a lack of cognizable injury.

13

Clorox, New York courts have repeatedly rejected allegations of

14

pecuniary loss arising solely from the purchase of a defendant's

15

product.

16

a consumer might have a cognizable GBL claim where the consumer

17

pays a higher price for a product as a result of a defendant's

18

misrepresentations.

19

N.Y.2d 43, 57 n.5 (N.Y. 1999).

20

expressly held that a plaintiff has adequately pled an injury under

21

the GBL by alleging that consumers paid a premium based on the

22

defendants' misrepresentations.

23

09-0395 (JG), 2010 WL 2925955, at *23 (E.D.N.Y. July 21, 2010).

24

Id.

Mot. at 13.

According to

However, even Clorox's own authority recognizes that

See Small v. Lorillard Tobacco Co., Inc., 94
Further, other courts have

See Ackerman v. Coca-Cola Co., CV-

Small, the case upon which Clorox relies, does not favor

25

dismissal of Plaintiffs' GBL claims.

26

alleged that tobacco companies had used deceptive marketing

27

practices to sell cigarettes and suppressed research indicating

28

that nicotine is addictive.

In that case, the plaintiffs

Small, 94 N.Y.2d at 51.

15

The

1

plaintiffs argued that they did not need to allege addiction to

2

prove injury -- rather, they claimed that they only needed to

3

allege that they would not have purchased defendants' cigarettes

4

but for defendants' deceptive marketing.

5

disagreed, holding: "Without addiction as part of the injury claim,

6

there is no connection between the misrepresentation and any harm

7

from, or failure of, the product."

8

that the plaintiffs had failed to allege that the cost of the

9

cigarettes was affected by the defendants' alleged

Id.

Id. at 56.

The court

The court also reasoned

United States District Court

For the Northern District of California

10

misrepresentation.

11

Plaintiffs have specifically alleged that Clorox was able to charge

12

a premium for Fresh Step by representing that Fresh Step was more

13

effective at reducing cat odors than its competitors.6

14

Id. at 56-57 & n.5.

In contrast, here,

The other case cited by Clorox on this issue, Derbaremdiker v.

15

Applebee's Int'l, Inc., 12-CV-01058 KAM, 2012 WL 4482057 (E.D.N.Y.

16

Sept. 26, 2012), does not demand a different result.

17

in that case brought GBL claims in connection with a sweepstakes

18

offered by the restaurant chain Applebee's.

19

that Applebee's implied that sweepstakes' participants would

20

compete only against Applebee's customers, when they actually

21

competed against the customers of thirty businesses.

22

4482057, at *2.

23

allege a cognizable injury, reasoning that the plaintiff needed to

24

6

25
26
27
28

The plaintiff

The plaintiff alleged

2012 WL

The court found that the plaintiff had failed to

Clorox argues that Plaintiffs must plead more particularized
facts about the alleged price premium, reasoning that Plaintiffs
concede that Fresh Step is one of the most popular cat litter
brands and thus would likely already command a price premium. Mot.
at 14 n.8. The Court disagrees. It is plausible that Clorox can
charge more for Fresh Step because Clorox represents that Fresh
Step is better at eliminating odors than other brands. It is also
plausible that Fresh Step became one of the most popular brands of
cat litter through the success of Clorox's advertising.

16

1

allege a harm that was separate and apart from the deception

2

itself.

3

representations about the pool of participants, the court also

4

found that the plaintiff received exactly what was represented to

5

him: the chance to win a prize.

6

actual pecuniary loss by alleging that Clorox charges a premium for

7

Fresh Step.

8

that is worse at reducing cat odors than the brands that Clorox

9

represented to be inferior.

United States District Court

For the Northern District of California

10

Id. at *7.

Since the sweepstakes entry made no

Id.

Here, Plaintiffs have pled an

They have also alleged that they received a cat litter

Next, Clorox argues that the New York Plaintiff's GBL claims

11

fail because she has not alleged that she was deceived in New York.

12

Both GBL sections 349 and 350 are only actionable where the

13

defendant conducts activities "in this state," i.e., New York.

14

N.Y. Gen. Bus. Law §§ 349(a), 350.

15

prohibited act under the statute, the deception of a consumer must

16

occur in New York."

Thus, "to qualify as a

Goshen, 98 N.Y.2d at 325.

17

Plaintiffs respond that they meet this standard since they

18

allege that the New York Plaintiff was a citizen of New York at all

19

relevant times to this matter.

20

analysis does not turn on the residency of the parties," but rather

21

whether the alleged transactions took place in New York State.

22

Goshen, 98 N.Y.2d at 325.

23

essentially ask the court to infer from the pleadings that the New

24

York Plaintiff viewed Clorox's advertisements and purchased Fresh

25

Step in New York because she is a resident of the state.

26

at 11-12.

27

York courts, this Court declines to make the leap.

28

the New York Plaintiff's GBL claims are DISMISSED, but the Court

Opp'n at 11.

However, the "[GBL]

In their opposition, Plaintiffs

See Opp'n

In light of the pleading standards enunciated by New

17

Accordingly,

1

GRANTS Plaintiffs leave to amend to specifically allege where the

2

New York Plaintiff was deceived.

3

2.

4

Express Warranty

To state a claim for breach of express warranty, a plaintiff

5

must show an "affirmation of fact or promise by the seller, the

6

natural tendency of which [was] to induce the buyer to purchase and

7

that the warranty was relied upon."

8

Inc., 549 N.Y.S.2d 152, 154 (N.Y. App. Div. 1989) (quotations

9

omitted).

The affirmation of fact or promise must have been false

United States District Court

10
For the Northern District of California

Schimmenti v. Ply Gem Indus.,

or misleading when made.

11

2d 601, 625 (S.D.N.Y. 2012).

12

DiBartolo v. Abbott Labs., 914 F. Supp.

Clorox contends that the New York Plaintiff's express warranty

13

claim fails because she has not alleged that Clorox made an

14

affirmation of fact or promise that was false when made.

15

15.

16

connection with the C&D litigation, Clorox argues that it believed

17

and continues to believe that Fresh Step is more effective at

18

reducing cat odors than other brands.

19

fact, not appropriate for determination at the pleadings stage.

20

Mot. at

Pointing to a number of studies submitted into evidence in

Id.

This is a question of

Next, Clorox argues that there was no breach because the New

21

York Plaintiff has not alleged that she personally found that Fresh

22

Step was ineffective at reducing cat odors.

23

However, as discussed at length in Section IV.A supra, the issue is

24

not whether Fresh Step was ineffective, but whether it was less

25

effective than its competitors.

26

that Fresh Step is less effective by pointing to the studies

27

commissioned by C&D.

28

///

Id. at 15-16.

Plaintiffs have plausibly alleged

18

1
2
3
4

Accordingly, the New York Plaintiff's claim for breach of
express warranty remains undisturbed.
3.

Unjust Enrichment

New York's high court explained the limited circumstances in

5

which a plaintiff may state a claim for unjust enrichment in

6

Corsello v. Verizon New York, Inc.:

7
8
9

United States District Court

For the Northern District of California

10
11
12
13
14
15
16
17
18

The basis of a claim for unjust enrichment is that the
defendant has obtained a benefit which in "equity and
good conscience" should be paid to the plaintiff. In
a broad sense, this may be true in many cases, but
unjust enrichment is not a catchall cause of action to
be used when others fail.
It is available only in
unusual situations when, though the defendant has not
breached a contract nor committed a recognized tort,
circumstances create an equitable obligation running
from the defendant to the plaintiff.
Typical cases
are those in which the defendant, though guilty of no
wrongdoing, has received money to which he or she is
not entitled. An unjust enrichment claim is not
available where it simply duplicates, or replaces, a
conventional contract or tort claim.
18 N.Y.3d 777, 790 (N.Y. 2012) (citations omitted).
Based on Corsello, Clorox argues that the New York Plaintiff's

19

claim for unjust enrichment fails because it is duplicative of her

20

other claims for relief.

21

would be premature to dismiss the claim at the pleading stage

22

because it is still unclear whether the New York Plaintiff will be

23

successful on her other claims.

24

with Clorox.

25

Court could find that the defendant is guilty of no wrongdoing but

26

still received money to which it was not entitled.

27

Plaintiff succeeds on her other claims, her claim for unjust

28

enrichment would be duplicative under New York law.

Mot. at 16.

Plaintiffs respond that it

Opp'n at 15.

The Court agrees

This is not one of those unusual situations where the

19

If the New York

On the other

1

hand, if the New York Plaintiff's other claims ultimately fail,

2

then her claim for unjust enrichment must also fail since it is

3

predicated on the same theory of deception.

4
5

Accordingly, the New York Plaintiff's claim for unjust
enrichment is DISMISSED WITH PREJUDICE.

6

D.

7

The Florida Plaintiffs assert the following causes of action

Florida Claims

8

on behalf of themselves and the putative Florida class: (1)

9

violations of the Florida Deceptive and Unfair Trade Practices Act

United States District Court

For the Northern District of California

10

("FDUTPA"), Fla. Stat. § 501.201, et seq.; (2) misleading

11

advertising, id. § 817.41, et seq. (the "Florida Advertising Act");

12

(3) breach of express warranty, and (4) unjust enrichment.

13

now moves for judgment on the pleadings on all four claims.

14
15

1.

Clorox

FDUTPA

The FDUTPA is intended to "prohibit unfair, deceptive and/or

16

unconscionable practices which have transpired within the

17

territorial boundaries of [Florida] without limitation."

18

Millennium Commc'ns & Fulfillment, Inc. v. Office of Atty. Gen.,

19

761 So. 2d 1256, 1262 (Fla. Dist. Ct. App. 2000).

20

under the statute, a plaintiff must allege: "(1) a deceptive act or

21

unfair practice; (2) causation; and (3) actual damages."

Hill v.

22

Hoover Co., 899 F. Supp. 2d 1259, 1264 (N.D. Fla. 2012).

Clorox

23

moves for judgment on the pleadings on the grounds that (1) the

24

Florida Plaintiffs have not alleged actual damages, and (2) the

25

Florida Plaintiffs have not alleged that they were deceived in

26

Florida.

27
28

To state a claim

Mot. at 17-18.

With respect the first argument, "[t]he measure of actual
damages is the difference in the market value of the product or

20

1

service in the condition in which it was delivered and its market

2

value in the condition in which it should have been delivered

3

according to the contract of the parties."

4

Butland, 951 So. 2d 860, 869 (Fla. Dist. Ct. App. 2006) (quotations

5

omitted).

6

establish actual damages since they have not pled that Fresh Step

7

failed to meet their personal expectations.

8

repackaging its standing arguments.

9

arguments unavailing for the reasons set forth in Sections IV.A,

United States District Court

For the Northern District of California

10
11

Rollins, Inc. v.

Clorox argues that the Florida Plaintiffs cannot

Clorox is once again

The Court finds these

IV.B.1, and IV.C.1 supra.
Clorox's second argument has more merit.

An FDUTPA claim can

12

only be brought by Florida residents in connection with activities

13

occurring in Florida.

14

Worldwide, Inc., 6:10-CV-1857-ORL-31, 2011 WL 3687855, at *3 (M.D.

15

Fla. Aug. 22, 2011).

16

where they viewed the allegedly deceptive advertising, or where

17

they purchased Fresh Step.

18

that Clorox disseminated false information "throughout the United

19

States," and that the Florida Plaintiffs are citizens of Florida.

20

As discussed in Section IV.C.1, this is not enough.

21

Plaintiffs' FDUTPA claim is DISMISSED.

22

Florida Plaintiffs leave to amend so that they may allege a

23

connection between Clorox's alleged misconduct and the state of

24

Florida.

25
26

2.

See Amar Shakti Enters., LLC v. Wyndham

Here, the Florida Plaintiffs have not pled

Plaintiffs argue that they have alleged

Accordingly,

The Court GRANTS the

The Florida Advertising Act

The Florida Advertising Act declares that the dissemination of

27

"any misleading advertisement" is "fraudulent and unlawful."

28

Stat. § 817.41.

Fla.

Clorox argues that the Florida Advertising Act

21

1

claim is subject to the heightened pleading standards of Federal

2

Rule of Civil Procedure 9(b), because the claim sounds in fraud.

3

Mot. at 18.

4

failed to meet the Rule 9(b) pleading standards set forth by the

5

Eleventh Circuit.

6

Clorox further argues that the Florida Plaintiffs have

Id.

The Court addressed and rejected a similar argument when it

7

ruled on Clorox's earlier motion to dismiss, and it declines to

8

revisit the issue now.

9

the Eleventh Circuit decisions cited by Clorox -- neither of which

See Aug. 24 Order at 14-15.

In any event,

United States District Court

For the Northern District of California

10

deals with the Florida Advertising Act -- are not binding here

11

since this Court sits in the Ninth Circuit.

12

follow the law of Florida, not the federal courts that sit in that

13

state.

14

shall be regarded as rules of decision in civil actions in the

15

courts of the United States, in cases where they apply.").

16
17
18

The Court is bound to

Cf. 28 U.S.C. § 1652 ("The laws of the several states . . .

Accordingly, the Florida Plaintiffs' Florida Advertising Act
claim remains undisturbed.
3.

Breach of Express Warranty

19

Clorox moves for judgment on the pleadings on the Florida

20

Plaintiffs' breach of warranty claim on the ground that the Florida

21

Plaintiffs are not in privity with Clorox.

22

to reach a consensus on the privity requirement for claims for

23

breach of express warranty.

24

Florida courts have yet

In 1953, the Florida Supreme Court held that "[t]he general

25

rule that an ultimate purchaser may not sue the wholesaler [for

26

breach of warranty] is not an absolute one and it seems to be

27

losing force with the passage of time."

28

Co., 63 So. 2d 514, 514 (Fla. 1953).

22

Hoskins v. Jackson Grain

Hoskin's holding was called

1

into question in West v. Caterpillar Tractor Co., Inc., 336 So. 2d

2

80, 92 (Fla. 1976), which noted that "warranty law in Florida has

3

become filled with inconsistencies and misapplications in the

4

judiciary's attempt to provide justice to the injured consumer,

5

user, employee, bystander, etc., while still maintaining the

6

contract principles of privity."

7

since held that West bars claims for breach of implied warranty

8

where privity is lacking.

9

2d 37, 39-40 (Fla. 1988).

United States District Court

For the Northern District of California

10

The Florida Supreme Court has

Kramer v. Piper Aircraft Corp., 520 So.

However, whether or not privity is required for claims for

11

breach of express warranty remains an open question.

12

courts have held that Kramer and West extend the privity

13

requirement to claims for breach of express warranty.

14

v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995); see

15

also Hill v. Hoover Co., 899 F. Supp. 2d 1259, 1265 (N.D. Fla.

16

2012) (citing T.W.M.).

17

privity requirement where the retailer or "middleman" is unlikely

18

to have relevant knowledge regarding the manufacturer's product.

19

See Smith v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336, 1343 (S.D.

20

Fla. 2009) ("[I]t defies common sense to argue that purchasers of

21

Eclipse gum presumed that the cashier at the local convenience

22

store is familiar with the scientific properties of MBE"); see also

23

Mardegan v. Mylan, Inc., 10-14285-CIV, 2011 WL 3583743, at *6 (S.D.

24

Fla. Aug. 12, 2011) (citing Smith).

25

Several

See T.W.M.

Other courts have found exceptions to the

The Court finds the latter line of cases persuasive.

Here, it

26

is unlikely that retailers of cat litter have relevant knowledge

27

about the odor-fighting abilities of Fresh Step relative to its

28

competitors.

Accordingly, the Florida Plaintiffs' claim for breach

23

1

of express warranty remains undisturbed.

2

4.

Unjust Enrichment

3

Clorox argues that the Florida Plaintiffs' unjust enrichment

4

claim fails since it is based on the same conduct as their FDUTPA

5

and False Advertising Act claims.

6

to contest the issue.

7

enrichment claim is DISMISSED WITH PREJUDICE.

Mot. at 19.

Plaintiffs decline

Accordingly, the Florida Plaintiffs' unjust

8

E.

9

The Texas Plaintiffs assert the following claims on behalf of

Texas Claims

United States District Court

For the Northern District of California

10

themselves and the putative Texas class: (1) violation of the Texas

11

Deceptive Trade Practices Act ("DTPA"), Tex. Bus. & Com. Code §

12

17.50, et seq.; (2) breach of express warranty; and (3) unjust

13

enrichment.

14

1.

DTPA

15

The DTPA allows consumers to bring causes of action in

16

connection with three types of conduct: (1) false, misleading, or

17

deceptive acts or practices; (2) breaches of express or implied

18

warranty; and (3) any unconscionable action.

19

§ 17.50(a).

20

Clorox argues that Plaintiffs have failed to allege sufficient

21

facts to support any kind of claim under the DTPA.

22

Tex. Bus. & Com. Code

Plaintiffs assert claims under all three prongs.

With respect to the first and second prongs, Clorox argues

23

that Plaintiffs fail to meet the heightened pleading requirements

24

of Rule 9(b).

25

Plaintiffs do not identify what characteristics, uses and benefits

26

Clorox falsely represented Fresh Step as having.

27

disagrees.

28

represented that Fresh Step was better at reducing odors than other

Mot. at 20-21.

Specifically, Clorox contends that

The Court

Plaintiffs specifically allege that Clorox falsely

24

1

baking-soda-based cat litters.

2

raised by Clorox -- that Plaintiffs do not identify which

3

advertising they saw or what material information Clorox withheld -

4

- have already been addressed by the Court.

5

14-15; Section IV.D.2 supra.

6

The other Rule 9(b) arguments

See Aug. 24 Order at

As to the third prong, unconscionability relates to "an act or

7

practice which, to a consumer's detriment, takes advantage of the

8

lack of knowledge, ability, experience, or capacity of the consumer

9

to a grossly unfair degree."

Tex. Bus. & Com. Code § 17.45(5).

United States District Court

For the Northern District of California

10

This "requires a showing that the resulting unfairness was

11

glaringly noticeable, flagrant, complete and unmitigated."

12

Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex. 1985).

13

disparity between the consideration paid and the value received is

14

not unconscionable, a glaring and flagrant disparity is."

15

583.

16

unfair advantage of a plaintiff.

17

to characterize Clorox's alleged conduct as "grossly unfair" is a

18

stretch, especially since Plaintiffs concede that Fresh Step was

19

effective at reducing cat odor.

20

purposes of Texas law, it is not unconscionable to charge a premium

21

of a few cents per pound for an effective cat litter.

"A slight

Id. at

Thus, it is not enough to simply allege that a defendant took
Id. at 582.

Plaintiffs' attempt

The Court finds that, for the

22

Accordingly, the Texas Plaintiffs' DTPA claim is DISMISSED

23

WITH PREJUDICE to the extent that is premised on unconscionable

24

conduct.

25
26

The claim remains undisturbed in all other respects.
2.

Breach of Express Warranty

Clorox moves to dismiss the breach of express warranty claim

27

as to the Texas Plaintiffs on the ground that they did not provide

28

pre-suit notice.

The Texas Business and Commerce Code provides

25

1

that, upon acceptance of a tender, "the buyer must within a

2

reasonable time after he discovers or should have discovered any

3

breach notify the seller of [the] breach or be barred from any

4

remedy."

5

required to notify the seller that a breach of warranty has

6

occurred in order to give the seller an opportunity to inspect the

7

product to determine whether it was defective and to allow the

8

seller an opportunity to cure the breach, if any."

9

Hillcrest Mem'l Park of Dallas, 696 S.W.2d 423, 424 (Tex. App.

United States District Court

For the Northern District of California

10

Tex. Bus. & Com. Code § 2.607(c)(1).

"The buyer is

Wilcox v.

1985).

11

Plaintiffs concede that they inadvertently neglected to notify

12

Clorox of their Texas warranty claims prior to commencing

13

litigation.

14

omission by sending a demand letter to Clorox's counsel on April

15

22, 2013 -- over a year after this litigation commenced.

16

23.

17

Plaintiffs argue that failure to comply with the notice requirement

18

merely results in abatement of the claims, not in their dismissal.

19

Id. at 24.

20

inapplicable here since it relates to DTPA claims, not claims for

21

breach of warranty.

22

was provided too late.

23

2.607(c)(1), requires that a plaintiff provide notice "within a

24

reasonable time" after he or she learns of the breach.

25

allegedly learned of the defects in Fresh Step through the C&D

26

lawsuits, which were filed in early 2011, and Plaintiffs did not

27

provide notice until April 2013.

28

However, Plaintiffs claim that they cured this

Opp'n at

Citing to Texas Business and Commerce Code section 17.505(a),

However, as Clorox points out, section 17.505(a) is

Even if post-suit notice were permitted, it
The relevant statutory provision, section

Plaintiffs

Accordingly, the Texas Plaintiffs' claim for breach of express

26

1

warranty is DISMISSED WITH PREJUDICE.

2

3.

3

Unjust Enrichment

Finally, Clorox argues that there is no independent cause of

4

action for unjust enrichment under Texas law.

5

Hancock v. Chicago Title Ins. Co., 635 F. Supp. 2d 539, 560 (N.D.

6

Tex. 2009)).

7

treated unjust enrichment as an independent cause of action.

8

Newington Ltd. v. Forrester, 3:08-CV-0864-G, 2008 WL 4908200, at

9

*4-5 (N.D. Tex. Nov. 13, 2008).

Mot. at 23 (citing

As Plaintiffs point out, some Texas courts have
See

However, even this authority

United States District Court

For the Northern District of California

10

recognizes that many courts merely view unjust enrichment as a

11

theory of recovery.

12

still show that a defendant obtained a benefit through fraud,

13

duress, or taking undue advantage.

14

that the Texas Plaintiffs can state a cause of action for unjust

15

enrichment, that claim is duplicative of their other causes of

16

action.

17

and dismisses the Texas Plaintiffs' claim for unjust enrichment.

18

See Vigo v. Reed, 3:11-CV-2044-G, 2013 WL 786925 (N.D. Tex. Mar. 4,

19

2013); Hancock, 635 F. Supp. 2d at 560.

See id.

And in those cases, a plaintiff must

See id.

Thus, to the extent

Accordingly, the Court sides with the majority of courts,

20
21

V.

CONCLUSION

22
23

For the foregoing reasons, Clorox's motion for judgment on the
pleadings is GRANTED in part and DENIED in part.

24
25

•

26
27
28

The New York Plaintiff's GBL claims are DISMISSED WITH LEAVE
TO AMEND.

•

The Florida Plaintiffs' FDUTPA claim is DISMISSED WITH LEAVE
TO AMEND.

27

1

•

The Texas Plaintiffs' DTPA CLAIM is DISMISSED WITH PREJUDICE

2

to the extent that is premised on unconscionable conduct and

3

remains undisturbed in all other respects.

4

•

Plaintiffs' claim for breach of express warranty is DIMISSED

5

WITH PREJUDICE as to the New Jersey Plaintiff and the Texas

6

Plaintiffs.

7

•

Plaintiffs' claim for unjust enrichment is DISMISSED WITH

8

PREJUDICE as to the New Jersey Plaintiff, the New York

9

Plaintiff, the Florida Plaintiffs, and the Texas Plaintiffs.

United States District Court

For the Northern District of California

10
11

Plaintiffs shall file an amended complaint within thirty (30) days

12

of the signature date of this Order.

13

complaint may result in dismissal with prejudice of Plaintiffs' GBL

14

and FDUTPA claims.

15

pleading defects discussed above.

16

made in compliance with Federal Rule of Civil Procedure 15.

Failure to file an amended

Plaintiffs' amendments should only address the
Any other amendments should be

17
18

IT IS SO ORDERED.

19
20
21

Dated:

July 31, 2013
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28

28