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
20
advertising of Fresh Step cat litter.1
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represents that Fresh Step is the only cat litter that uses carbon,
22
and that Fresh Step is better at eliminating cat waste odors than
23
other brands of cat litter that use baking soda.
Clorox's advertising
Plaintiffs allege
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1
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27
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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.
1
that recent studies commissioned by Clorox's competitor, Church &
2
Dwight ("C&D"), show that Clorox's advertisements are demonstrably
3
false.
4
on the ground that Plaintiffs have failed to allege an injury in
5
fact.
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74 ("Opp'n"), 76 ("Reply"), and appropriate for determination
7
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
12
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
14
brand of cat litter that uses Arm & Hammer baking soda.
15
these commercials, C&D twice sued Clorox for violations of the
16
Lanham Act.
17
had commissioned an independent laboratory to conduct a ten-day
18
sensory study, involving a panel of persons trained in odor
19
evaluation, that compared Fresh Step to one of C&D's baking soda-
20
based cat litters.
21
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
23
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.
26
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
27
piggyback on the studies commissioned in connection with the C&D
28
lawsuits.
Plaintiffs allege that Clorox charges a premium for
2
1
Fresh Step, and that they would not have paid that premium but for
2
Clorox's claims that carbon-based cat litter is superior to baking-
3
soda-based cat litter.
4
pound box of Clorox's Fresh Step costs $10.77, or $0.43 per pound,
5
while a 25-pound box of Clorox's Scoop Away cat litter brand (which
6
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
10
consumer protection laws of California, Florida, New Jersey, New
11
York, and Texas, as well as claims for breach of express warranty
12
and unjust enrichment under the laws of those states.
13
seek to certify California, Florida, New Jersey, New York, and
14
Texas subclasses.
15
On August 24, 2012, that motion was granted in part and denied in
16
part.
17
causes of action largely undisturbed to the extent that they were
18
predicated on Clorox's carbon-superiority claims.
19
motion for judgment on the pleadings, Clorox raises a new set of
20
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
24
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
27
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
3
Hal Roach Studios,
1989).
3
to the same standard of review as a motion to dismiss, and thus the
4
pleading must contain sufficient factual matter, accepted as true,
5
to state a claim to relief that is plausible on its face.
6
v. Rowley, 569 F.3d 40, 43-44 (2d Cir. 2009); see also United
7
States ex re. Cafasso v. General Dynamics C4 Systems, Inc., 637
8
F.3d 1047, 1055 n. 4 (9th Cir. 2011) (citing Johnson).
9
plausible on its face when the plaintiff pleads "factual content
10
United States District Court
Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.
2
For the Northern District of California
1
that allows the court to draw the reasonable inference that the
11
defendant is liable for the misconduct alleged."
12
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,
13
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
25
"cases" and "controversies."
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from this language limits the federal courts' exercise of the
27
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,
4
1
750 (1984).
2
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
12
quotation marks, brackets, and citations omitted).
13
invoking federal jurisdiction bears the burden of establishing
14
these elements."
15
"The party
Lujan, 504 U.S. at 561.
Clorox argues that Plaintiffs have failed to plead injury in
16
fact, since they do not allege (1) that Fresh Step did not work as
17
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.
19
at 5.
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best since they have not alleged that they compared Fresh Step to
21
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
26
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
5
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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
5
experienced the alleged inferiority of Fresh Step.
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Clorox further argues that C&D's claim that Fresh Step is inferior
7
to Super Scoop and other baking-soda-based cat litters is
8
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
10
if Fresh Step did eliminate cat odors, it did not perform as
11
advertised if it was worse at eliminating odors than other baking-
12
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
19
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
22
preference.
23
must take all well-pleaded factual allegations as true.
24
to the complaint, C&D studies show that baking-soda-based cat
25
litters are objectively better at reducing cat odors than Fresh
26
Step.
27
fighting odors is not implausible.
28
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
6
Indeed, that is the very claim
In sum, Clorox's
1
arguments raise factual issues that are not suitable for
2
determination on a motion for judgment on the pleadings.2
3
Clorox also cites to a number of cases finding a lack of
4
standing where the plaintiffs alleged that they had purchased a
5
defective or potentially dangerous product, but admitted that they
6
had not been injured by the product or that the product had
7
performed as advertised with respect to them.3
8
involved a pain medication which had been withdrawn from the market
9
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
10
2
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12
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)).
7
1
317.
2
ingested the drug but had not been injured by it.
3
Circuit found that the plaintiff lacked standing, reasoning: "the
4
wrongs [the plaintiff] and the class allege are those suffered by
5
other, non-class member patients."
6
cited by Clorox differ only with respect to the products involved.
7
For example, Whitson concerned a child seat that allegedly caused
8
severe physical injuries to a number of babies.
9
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
10
but neither she nor her child had been harmed by the product.
11
at *2.
12
dismissed the action for a lack of standing.
13
Id.
Following the Third Circuit's lead in Rivera, this Court
Clorox's cases are inapposite.
Id. at *6.
Unlike the instant action, the
14
advertisements in the cited cases did not compare the defendants'
15
products to their competitors'.
16
authority addresses the question presented here: does paying a
17
premium for a product as a result of claims of product superiority
18
constitute an injury in fact when the purportedly inferior product
19
is cheaper and more effective?
20
discuss economic injuries, they are distinguishable.
21
in Rivera, the court rejected the plaintiff's assertion that she
22
had not received the benefit of her bargain, since, by her own
23
admission, she had paid for and received an effective pain killer.
24
283 F.3d 320.
25
a premium for an inferior product as a result of Clorox's
26
misleading advertising.
27
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,
8
1
defendants' promotional tactics drove up the price of the drug.
2
297 F. Supp. 2d at 176.
3
because the plaintiff had not alleged that he was deceived or even
4
saw defendant's advertising.
5
here, since Plaintiffs have alleged that they would not have paid a
6
premium for Fresh Step but for Clorox's advertising.
7
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
8
the instant action, is more persuasive.
9
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
10
allegedly represented that they were building "stable family
11
neighborhoods," but were in fact selling homes to high risk buyers
12
who were more likely to default in times of economic hardship.
13
plaintiffs, a group of homeowners in the neighborhood, alleged that
14
the defendants' practices and the resulting foreclosures reduced
15
the economic value of their own homes.
16
defendants argued that the plaintiffs had failed to adequately
17
allege standing.
18
holding that the plaintiffs had pled actual and concrete economic
19
injuries by alleging that they paid more for their homes than they
20
were worth at the time of sale, as well as alleging that the
21
defendants' actions caused their homes to lose value above and
22
beyond those losses caused by general economic conditions.
23
1069, 1071.
24
Id. at 1067.
Id. at 1066.
The
The
The Ninth Circuit disagreed,
Id. at
Clorox contends that Maya is inapposite, reasoning that the
25
plaintiffs in that case suffered injury only because they purchased
26
homes with characteristics that they personally found undesirable.
27
Reply at 5.
28
experiences of others to establish that the litter they purchased
In contrast, argues Clorox, Plaintiffs rely upon the
9
1
was allegedly worth less than they paid.
2
discussed above, Plaintiffs need not allege that they personally
3
experienced the inferiority of Fresh Step since they have alleged
4
that C&D's studies show that Clorox's carbon-based cat litter is
5
objectively worse at fighting cat odors.
6
plaintiffs in Maya did not need to purchase two homes to
7
demonstrate one was worse than the other, Plaintiffs need not
8
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
10
For the Northern District of California
9
adequately alleged an injury in fact and declines to dismiss this
11
case for lack of standing.4
12
B.
13
The New Jersey Plaintiff asserts the following claims on
14
behalf of herself and the putative New Jersey class: (1) violation
15
of the New Jersey Consumer Fraud Act (the "NJCFA"), N.J. Stat. §
16
56:8-1, et seq., (2) breach of warranty, and (3) unjust enrichment.
17
Clorox argues that the NJCFA claim fails because Plaintiffs have
18
not alleged an ascertainable loss, the breach of warranty claim
19
should be dismissed for lack of pre-litigation notice, and the
20
unjust enrichment claim should be dismissed because New Jersey does
21
not recognize such a remedy for tortious conduct.
22
New Jersey Claims
1.
NJCFA
23
The NJCFA was intended to address "sharp practices and
24
dealings in the marketing of merchandise and real estate whereby
25
4
26
27
28
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.
10
1
the consumer could be victimized by being lured into a purchase
2
through fraudulent, deceptive or other similar kind[s] of selling
3
or advertising practices."
Daaleman v. Elizabethtown Gas Co., 390
4
A.2d 566, 569 (N.J. 1978).
To state a claim under the NJCFA, a
5
plaintiff must allege: (1) unlawful conduct by the defendant; (2)
6
an ascertainable loss on the part of the plaintiff; and (3) a
7
causal relationship between the defendant's unlawful conduct and
8
the plaintiff's ascertainable loss.
9
Supp. 2d 699, 702 (D.N.J. 2011).
United States District Court
For the Northern District of California
10
Mason v. Coca-Cola Co., 774 F.
Clorox argues that Plaintiffs have failed to satisfy the
11
second element, which requires that a plaintiff plead an
12
ascertainable loss "with enough specificity as to give the
13
defendant notice of possible damages."
14
Prepaid Solutions, Inc., 3:08-CV-1057-FLW, 2008 WL 5381227, at *7
15
n.3 (D.N.J. Dec. 17, 2008).
16
Section IV.A supra, Clorox contends that Plaintiffs cannot meet
17
their burden because they have not alleged that they personally
18
found Clorox's claims of carbon-superiority to be untrue.
19
9.
20
Torres-Hernandez v. CVT
Echoing its arguments on standing, see
Mot. at
Plaintiffs respond that they can show an ascertainable loss
21
under the so-called benefit of the bargain theory, Opp'n at 8,
22
which "requires nothing more than that the consumer was misled into
23
buying a product that was ultimately worth less to the consumer
24
than the product he was promised."
25
782 F. Supp. 2d 84, 99 (D.N.J. 2011).
26
claim under the benefit of the bargain theory by alleging: "(1) a
27
reasonable belief about the product induced by a misrepresentation;
28
and (2) that the difference in value between the product promised
11
Smajlaj v. Campbell Soup Co.,
A plaintiff may state a
1
and the one received can be reasonably quantified."
Id.
under the benefit of the bargain theory because their claims are
4
based solely on the assertions of C&D and because they have no
5
basis to claim that the box of litter they purchased was less
6
effective than another brand of litter.
7
to Hoffman v. Nutraceutical Corp., CIV.A. 12-5803 ES, 2013 WL
8
2650611, at *2 (D.N.J. June 10, 2013), which dismissed NJCFA claims
9
where the plaintiff alleged that the defendants' products were
10
United States District Court
In reply, Clorox argues that Plaintiff cannot state a claim
3
For the Northern District of California
2
contaminated with lead but failed to allege that the product he
11
used contained lead.
12
and the other no-injury products liability cases distinguished in
13
Section IV.A supra.
14
Reply at 7.
Clorox cites
In that respect, Hoffman is similar to Rivera
Clorox is essentially repackaging its standing arguments.
As
15
discussed in Section IV.A supra, these arguments miss the mark.
16
Once again, Clorox is asking the Court to discount the C&D study
17
and assume that baking-soda-based litter is not objectively better
18
at reducing cat odors than carbon-based litter.
19
cannot do at the pleadings stage.
20
remains undisturbed.
21
22
2.
This the Court
Accordingly, the NJCFA claim
Breach of Express Warranty
New Jersey adopts the Uniform Commercial Code's notice
23
requirement for express warranty claims.
24
USA, LLC, CIV. 09-5582 DMC JAD, 2011 WL 2470625, at *3 (D.N.J. June
25
20, 2011).
26
buyer must within a reasonable time after he discovers or should
27
have discovered any breach notify the seller of breach or be barred
28
from any remedy."
Luppino v. Mercedes-Benz
Thus, "[w]here a tender has been accepted . . . the
N.J. Stat. § 12A:2-607(3)(a).
12
"[P]roviding
1
notice pursuant to this regulation is a condition precedent to
2
filing any suit for breach of contract under Article 2 of the
3
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).
6
breach of express warranty fails because she failed to provide
7
notice.
8
suit notice because of C&D's two earlier Lanham Act lawsuits.
9
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
11
New Jersey Plaintiff.
12
that Clorox was sued in another jurisdiction, by another party, for
13
a different cause of action does not constitute sufficient notice
14
under the statute.
15
for breach of express warranty is DISMISSED WITH PREJUDICE.
16
3.
17
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
18
Jersey Plaintiff's claim for unjust enrichment.
19
for unjust enrichment under New Jersey law, a plaintiff must allege
20
"both that defendant received a benefit and that retention of that
21
benefit without payment would be unjust."
22
Corp., 641 A.2d 519, 526 (N.J. 1994).
23
enrichment doctrine requires that the plaintiff show that it
24
expected remuneration from the defendant at the time it performed
25
or conferred a benefit on defendant and that the failure of
26
remuneration enriched defendant beyond its contractual rights."
27
Id.
28
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
13
1
unjust enrichment claim should be dismissed where it is based on
2
tortious conduct and there appear to be no allegations that the
3
plaintiff expected or anticipated remuneration from the defendant.
4
See Williams v. BASF Catalysts LLC, CIV.A. 11-1754 SRC, 2012 WL
5
6204182, at *20 (D.N.J. Dec. 12, 2012); Mason v. Coca-Cola Co.,
6
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,
8
2008 WL 5381227, at *9 (D.N.J. Dec. 17, 2008).5
9
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.
11
Stewart v. Beam Global Spirits & Wine, Inc., 877 F. Supp. 2d 192,
12
201 (D.N.J. 2012).
13
See
The Court finds more persuasive the line of cases dismissing
14
claims for unjust enrichment based on tortious conduct.
15
Accordingly, the New Jersey Plaintiff's claim for unjust enrichment
16
is DISMISSSED WITH PREJUDICE.
17
C.
18
The New York Plaintiff asserts the following claims on behalf
19
of herself and the putative New York class: (1) deceptive acts and
20
practices in violation of New York General Business Law ("GBL")
21
section 349; (2) false advertising in violation of GBL section 350,
22
et seq.; (3) breach of express warranty; and (4) unjust enrichment.
23
Clorox now moves for judgment on the pleadings on all four claims.
24
New York Claims
1.
25
GBL Sections 349 and 350
GBL section 349 provides: "Deceptive acts or practices in the
26
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
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