Bronson et al v. Johnson & Johnson Inc. et al

Filing 59

Order by Hon. Charles R. Breyer granting in part and denying in part 50 Motion to Dismiss. (crblc2, COURT STAFF) (Filed on 10/22/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS Plaintiffs, 13 v. 14 15 No. C 12-04184 CRB BARBARA BRONSON, MICHAEL FISHMAN, AND ALVIN KUPPERMAN, JOHNSON & JOHNSON, INC. AND MCNEIL NUTRITIONALS, INC., 16 Defendants. / 17 Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Second Amended 18 19 Complaint. MTD (dkt. 50). The Second Amended Complaint (“SAC”) alleges that 20 Defendants’ product labels and marketing campaign were deceptive and misleading in 21 violation of California law. Dkt. 43. The Court GRANTS in part and DENIES in part the 22 Motion to Dismiss. 23 I. 24 BACKGROUND The Court takes its account of the facts from the allegations in Plaintiffs’ SAC. 25 Plaintiffs Barbara Bronson, Michael Fishman, and Alvin Kupperman, on behalf of 26 themselves and others similarly situated, filed this class action food labeling suit against 27 Defendants Johnson & Johnson, Inc. and McNeil Nutritionals, LLC, on August 9, 2012. See 28 Compl. (dkt. 1). Following the Court’s April 16 order (“Order”) to grant in part and deny in part Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint (“FAC”), see Order 1 (dkt. 42), Plaintiffs filed the SAC on April 26, 2013. Like the FAC, the SAC centers on three 2 of Defendants’ products: Splenda Essentials with B Vitamins, Splenda Essentials with 3 Antioxidants, and Splenda Essentials with Fiber. See generally SAC. Plaintiffs allege that 4 the product labeling and marketing campaign contains deceptive and misleading information. 5 Id. 6 Plaintiffs challenge the marketing as misleading when viewed in its entirety. 7 Specifically, Plaintiffs take issue with: (1) product name Splenda “Essentials”; (2) label on 8 Splenda Essentials with B Vitamins, which includes the statement “helps support a healthy 9 metabolism;” (3) label on Splenda Essentials with Antioxidants, which includes the statement United States District Court For the Northern District of California 10 “20% of the daily value of antioxidant vitamins C and E, like those found in fruits and 11 vegetables” placed near a picture of berries; and (4) label on Splenda Essentials with Fiber, 12 which includes the statements “1 gram of fiber in each packet” and “healthy fiber” placed 13 next to a photo of fruit and whole-grain cereal. Id. Plaintiffs also allege that print and 14 website materials for all three products contribute to the misleading and deceptive marketing. 15 Id. 16 All named plaintiffs claim that they “relied heavily on the written misrepresentations” 17 and “deceptive health claims” appearing on Splenda Essentials’ labels when they chose to 18 purchase the product. SAC ¶¶ 9-12. Further, named plaintiff Barbara Bronson alleges that, 19 after an initial purchase of Splenda Essentials, she “reviewed claims on the Splenda website 20 and (based upon the representations contained therein) purchased more.” SAC ¶ 9. Splenda 21 Essentials costs 25% more than regular Splenda, id. ¶ 17, and Plaintiffs purchased Splenda 22 Essentials at full price at various grocery stores in California. Id. ¶ 8. Plaintiffs claim that 23 they would not have purchased Splenda Essentials had they known Defendants’ products 24 were mislabeled. Id. ¶ 12. Therefore, Plaintiffs claim to have suffered harm when they paid 25 an excessive premium for Splenda Essentials. See, e.g., id. ¶¶ 51, 59. 26 Based on the above alleged practices, Plaintiffs reassert the following claims 27 originally asserted in the FAC: (1) California’s Unfair Competition Law (“UCL”), Cal. Bus. 28 & Prof. Code § 17200, et seq. - Unlawful Business Acts and Practices; (2) UCL, Cal. Bus. & 2 1 Prof. Code § 17200 - Unfair Business Acts and Practices; (3) UCL, Cal. Bus. & Prof. 2 Code § 17200 - Fraudulent Business Acts and Practices; (4) California’s False Advertising 3 Laws (“FAL”), Cal. Bus. & Prof. Code § 17500, et seq. - Misleading and Deceptive 4 Advertising; (5) FAL, Cal. Bus. & Prof. Code § 17500, et seq. - Untrue Advertising; (6) 5 Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.; and (7) Breach of 6 Implied Warranty of Merchantability. See generally SAC. Pursuant to the Defendants’ original MTD seeking to dismiss the FAC in its entirety 7 or strike particular portions therein, the Court’s Order dismissed portions of the FAC and 9 granted Plaintiffs leave to amend selected claims. See Order at 19. Specifically, the Court 10 United States District Court For the Northern District of California 8 granted the MTD with leave to amend as to claims regarding Defendants’ website and print 11 advertising, claims regarding the Fiber and B Vitamins products founded in a lack of 12 substantiation theory, and claims for unjust enrichment. Id. The Court granted the MTD 13 without leave to amend as to preempted claims related to the Fiber and Antioxidant products, 14 and claims challenging Defendants’ use of the term “Essentials” as misleading. Id. The 15 Court denied the MTD for the non-preempted claims regarding the Antioxidant Product and 16 the Breach of Implied Warranty of Merchantability claim. Id. Following Plaintiffs’ filing of the SAC, Defendants filed the MTD on May 31, 2013, 17 18 seeking to dismiss all claims or strike particular portions of the SAC. Because the Court’s 19 Order granted leave to amend specific claims only, the Court frames its inquiry into the SAC 20 with reference to the Order. 21 II. 22 23 24 LEGAL STANDARD Defendants seek to dismiss the SAC in its entirety or strike particular portions therein pursuant to Federal Rules of Civil Procedure 12(b)(6), 9(b) and 12(f). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the 25 complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Dismissal is 26 proper if a complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 27 12(b)(6). To survive dismissal, a complaint must contain factual allegations sufficient to 28 “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 3 1 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). When determining 2 plausibility, allegations pertaining to material facts are accepted as true for purposes of the 3 motion and construed in the light most favorable to the non-moving party. Wyler-Summit 4 P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). If dismissal is ordered, 5 complainants should be granted leave to amend unless it is clear that the claims could not be 6 saved by amendment. Swartz v. KPMG LLP, 476 F.3d 756, 760 (9th Cir. 2007). 7 In contrast to Rule 12(b)(6), Rule 9(b) is specific to claims alleging “circumstances 8 constituting fraud” and requires heightened particularity for a pleading to survive dismissal. 9 Fed. R. Civ. P. 9(b); Vess v. Ciba- Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. United States District Court For the Northern District of California 10 2003) (noting that claims “grounded in fraud” or said to “sound in fraud” must be pled so as 11 to “satisfy the particularity requirement of Rule 9(b)”). To comply with Rule 9(b), a plaintiff 12 must plead with particularity the time and place of the fraud, the statements made and by 13 whom, an explanation of why or how such statements were false or misleading, and the role 14 of each defendant in the alleged fraud. KEMA, Inc. v. Koperwhats, No. C-09-1587 MMC, 15 2010 WL 3464737, at *3 (N.D. Cal. Sept. 1, 2010). In sum, the complaint must include the 16 “who, what, when, where, and how” underlying the cause of action. Cooper v. Pickett, 137 17 F.3d 616, 627 (1997) (internal quotations omitted). 18 Pursuant to Federal Rule of Civil Procedure 12(f), a court “may strike from a 19 pleading,” inter alia, “any . . . matter” that is “immaterial” or “impertinent.” Matter is 20 “immaterial” if it “has no essential or important relationship to the [plaintiff’s] claim for 21 relief,” and it is “impertinent” if it “do[es] not pertain, and [is] not necessary, to the issues in 22 question.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010). The 23 “purpose” of a motion to strike is to “streamlin[e] the ultimate resolution of the action and 24 focus[] . . . attention on the real issues in the case.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 25 1528 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). 26 27 28 4 1 2 III. DISCUSSION Defendants move to dismiss the SAC on the grounds that (1) Plaintiffs improperly 3 reallege claims previously dismissed by the Court without leave to amend; (2) Plaintiffs 4 continue to lack standing to challenge Defendants’ internet advertisements; (3) if standing to 5 challenge internet advertisements is established, the relevant allegations in the SAC are 6 insufficient to satisfy the heightened pleading standard for fraud claims under Rule 9(b); (4) 7 Plaintiffs continue to improperly rely on lack-of-substantiation theories for claims regarding 8 the Fiber and B Vitamins products; and (5) Plaintiffs failed to amend Unjust Enrichment 9 claims found to be defective in the FAC. United States District Court For the Northern District of California 10 A. Realleged Claims Previously Dismissed With Prejudice 11 Plaintiffs reallege two claims in the SAC that were previously dismissed with 12 prejudice in the Court’s Order. First, Plaintiffs reallege that the name “Essentials” falsely 13 implies that consumers need Splenda Essentials products to maintain a healthy lifestyle. 14 SAC ¶¶ 5, 16. Second, Plaintiffs reallege that the statement “1 gram of fiber” on the Splenda 15 Essentials with Fiber label misleads consumers by failing to distinguish between synthetic 16 and natural fibers within the product. SAC ¶ 27. Plaintiffs contend that they are required to 17 reallege all previously dismissed claims in order to preserve a right to appeal. Opp’n at 4 18 (dkt. 52). Plaintiffs are incorrect. 19 Following the dismissal of claims with prejudice, litigants are not required to reallege 20 dismissed claims in a subsequent amended complaint in order to preserve the right to appeal 21 dismissal. See Lacey v. Maricopa County, 693 F.3d 896, 927-28 (9th Cir. 2012) (overruling 22 Forsythe v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997)). 23 24 Thus, this Court GRANTS the motion to dismiss with prejudice for Plaintiffs’ realleged claims that were previously dismissed with prejudice. 25 B. 26 In the Order, the Court dismissed Plaintiffs’ UCL, FAL and CLRA claims regarding 27 Fiber and B-Vitamin Products the Fiber and B-Vitamin products. 28 5 With respect to the Fiber product, the Court found that Plaintiffs’ claims were pre- 2 empted by Federal law where they alleged that Defendants failed to differentiate between 3 natural fiber and synthetic fiber. Order at 8-9. The Court dismissed the pre-empted fiber 4 claims with prejudice. Id. The Court dismissed Plaintiffs’ remaining fiber claims because 5 they relied on a lack-of-substantiation theory, but granted Plaintiffs leave to amend. Id. at 6 15. Regarding the B-Vitamin product, the Court found that Plaintiffs’ claims were not pre- 7 empted, id. at 10-11, but dismissed the claims with leave to amend because they also relied 8 on a lack-of-substantiation theory. Id. at 15. The SAC now realleges the non-preempted 9 Fiber and B-Vitamin claims. Because Plaintiffs’ amended claims remain defective as lack- 10 United States District Court For the Northern District of California 1 of-substantiation claims, the Court GRANTS Defendants’ motion to dismiss with prejudice. 11 Claims that rest on a lack of substantiation instead of provable falsehood are not 12 cognizable under the California consumer protection laws. In re Clorox Consumer Litig., 13 894 F. Supp. 2d 1224, 1232 (N.D. Cal. 2012) (collecting cases); Scheuerman v. Nestle 14 Healthcare Nutrition, Inc., No. 10–3684, 2012 WL 2916827, at *5 (D. N.J. July 17, 2012). 15 Instead, challenges based on a defendant’s lack of substantiation are left to the Attorney 16 General and other prosecuting authorities, Nat’l Council Against Health Fraud v. King Bio 17 Pharm., Inc., 107 Cal. App. 4th 1336, 1344-45 (2003), and private plaintiffs have the burden 18 of proving that advertising is actually false or misleading. Id. (“[P]rivate plaintiffs are not 19 authorized to demand substantiation for advertising claims.”). 20 In determining whether a plaintiff has alleged a lack of substantiation claim, courts 21 look to the complaint as a whole. See In re Clorox, 894 F. Supp. 2d at 1232. A claim can 22 survive a lack of substantiation challenge, for example, by alleging that scientific studies 23 contradict the defendant’s representations. See, e.g., id. at 1233 (denying Defendant’s MTD 24 on a lack of substantiation challenge where Plaintiffs alleged that two scientific studies 25 directly contradicted Defendant’s advertising). In contrast, a plaintiff’s reliance on a lack of 26 scientific evidence or inconclusive, rather than contradictory, evidence is not sufficient to 27 state a claim. See id.; Stanley v. Bayer Healthcare LLC, No. 11cv862–IEG(BLM), 2012 WL 28 1132920, at *6 (S.D. Cal. Apr. 3, 2012) (granting summary judgment motion where 6 1 plaintiff’s claims relied on inconclusive expert testimony and defendant had not substantiated 2 its labeling). 3 Here, regarding the Fiber product, Plaintiffs offer two amended claims: (1) the 4 product misleads consumers by suggesting it provides the same health benefits as natural 5 fiber in whole foods, SAC ¶ 29; and (2) the product misleads consumers by suggesting it has 6 the same impact on satiety as natural fiber in whole foods. SAC ¶ 30. Both claims are 7 founded on an assumption that synthetic and natural fibers differ in how they impact the 8 body. Although this assumption may be true, Plaintiffs’ claims are insufficient because they 9 fail to cite authority suggesting that a meaningful difference exists between synthetic and United States District Court For the Northern District of California 10 natural fiber.1 Without evidence suggesting a differing benefit between the fiber in Splenda 11 Essentials with Fiber and the fiber in whole foods, Plaintiffs’ claims remain lack-of- 12 substantiation claims. 13 Similar to Plaintiffs’ claims regarding the Fiber product, Plaintiffs’ amended claims 14 regarding the B-Vitamin product remain defective. Plaintiffs offer three amended claims: 15 (1) the statement, “helps support a healthy metabolism,” falsely implies that B Vitamin 16 intake will support weight loss, FAC ¶ 18, 19; (2) the quantity of B Vitamins in the product 17 is insufficient to offer any notable health benefits, Id. ¶ 21; and (3) the health benefits from 18 the product differ from the health benefits offered by foods containing B Vitamins, Id. ¶ 21. 19 As with the FAC, Plaintiffs offer no evidence in support of their claims.2 Without some 20 evidence suggesting that B Vitamins do not support weight loss, Plaintiffs have failed to 21 establish that such a representation is deceptive. Similarly, no evidence is offered as to the 22 23 24 25 26 27 1 Plaintiffs cite to one study that compared the impact on satiety of four differing isolated fibers added to chocolate bars. See SAC ¶ 30 n.26. Because the study did not address the benefits of natural fibers and how they differ from synthetic fibers, the study does not allege facts supporting Plaintiffs’ claim. In addition, Plaintiffs allege outright that “[t]he health benefits of Splenda Essentials with fiber are different from the health benefits of foods containing fiber.” See SAC ¶ 28. But such a conclusory allegation is not sufficient to support a valid claim. See Iqbal, 556 U.S. at 678 (“[N]aked assertions devoid of further factual enhancement” are not entitled to presumption of truth.). 2 28 Allegations 1 and 2 cite the National Institute of Health’s website on B Vitamins, but the website does not address metabolism, weight loss or the quantity of B vitamins required to achieve notable health benefits. See SAC ¶¶ 18 n. 9, 20 n.14. 7 1 quantity of B Vitamins that would provide health benefits, and no evidence is offered to 2 suggest a difference exists between the benefits from B Vitamins within foods and the 3 benefits from B Vitamins present in Splenda. 4 Because Plaintiffs rely on a lack-of-substantiation theory for the amended claims 5 against Splenda Essentials with Fiber and Splenda Essentials with B Vitamins, this Court 6 GRANTS the MTD with prejudice for the UCL, the FAL, and the CLRA claims regarding 7 those products. 8 C. 9 In the Order, the Court found Plaintiffs’ UCL, FAL and CLRA claims regarding the Antioxidant Product United States District Court For the Northern District of California 10 antioxidant product pre-empted insomuch as they claimed that Defendants failed to 11 differentiate between natural and synthetically derived antioxidants in the product. Order at 12 8-10. The Court dismissed the pre-empted claims with prejudice. Id. at 7. As to the 13 remaining Antioxidant claims, the Court found they were not defective as lack-of- 14 substantiation claims, id. at 14, but dismissed the claims with leave to amend where they 15 relied on Defendants’ web advertising. Id. at 5. In the SAC, Plaintiffs amended and 16 realleged the non-preempted antioxidant claims. Defendants now challenge Plaintiffs’ 17 realleged antioxidant claims on two grounds. First, Defendants argue that Plaintiffs still lack 18 standing to challenge Defendants’ online advertising. MTD at 19-20. Second, Defendants 19 argue that Plaintiffs’ remaining antioxidant claims do not satisfy the heightened pleading 20 standard for fraud claims under Rule 9(b). Id. 14-16. Both of Defendants’ arguments fail. 21 22 1. Standing In the Order, the Court clarified that Plaintiffs must allege reliance on the specific 23 marketing materials claimed to be misleading in order to establish standing to bring claims 24 under the UCL, FAL, or CLRA. See Order at 4 (citing Delacruz v. Cytosport, Inc., No. C 25 11-3532 CW, 2012 WL 1215243, at *8 (N.D. Cal. Apr. 11, 2012); Kwikset Corp. v. Sup. Ct., 26 51 Cal. 4th 310, 326 (2011); In re Ferrero Litig., 794 F. Supp. 2d 1107, 1111 (S.D. Cal. 27 2011)). Specifically, Plaintiffs are not permitted to support a claim alleging misleading 28 product packaging with statements from marketing materials that were “never read or relied 8 1 upon” when purchasing the product. Dvora v. Gen. Mills, Inc., No. CV 11-1074- 2 GW(PLAx), 2011 WL 1897349, at *8 (C.D. Cal. May 16, 2011). 3 Defendants argue that Plaintiffs failed to amend their claims to properly allege 4 reliance on Defendants’ web advertising, and therefore lack standing for those claims. MTD 5 at 19-20. Specifically, Defendants argue that Plaintiffs amended allegations claiming 6 reliance on the Splenda website contradict Plaintiffs’ prior representations to the Court. 7 MTD at 19. Defendants’ argument fails because inconsistency amongst allegations is not 8 grounds to strike or dismiss under Rules 12(b)(6), 9(b) or 12(f). “[N]othing in the Federal Rules of Civil Procedure [] prevent[s] a party from filing 9 United States District Court For the Northern District of California 10 successive pleadings that make inconsistent or even contradictory allegations.” PAE Gov’t 11 Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007) (reversing district court’s order 12 to strike allegations from the amended complaint that were inconsistent with prior pleading); 13 see also Transit Constructors, LP v. Parsons Transp. Group, Inc., No. C-12-06159 DMR, 14 2013 WL 1191074, at *3 (N.D. Cal. Mar. 21, 2013). So long as a party offers pleadings in 15 good faith, inconsistency is not grounds for dismissal. PAE, 514 F.3d at 860. Here, inconsistencies exist between allegations offered in the SAC and Plaintiffs’ 16 17 prior representations to the Court, but those inconsistencies do not establish grounds to strike 18 or dismiss Plainitiffs’ claims. In the FAC, Plaintiffs failed to allege reliance on Defendants’ 19 online marketing campaigns. See Order at 4. Further, at the hearing on the Motion To 20 Dismiss the FAC, Plaintiffs’ counsel confirmed that Plaintiffs’ did not rely on Defendants’ 21 web advertising. Id. Subsequently, in the SAC, Plaintiffs allege that plaintiff Bronson did 22 rely on representations from the Splenda Essentials website when purchasing additional 23 Splenda Essentials products. SAC ¶ 9. Plaintiffs supported the new and inconsistent 24 allegation with a clarification that Plaintiffs’ counsel had been mistaken at the hearing, see 25 Opp’n at 18, and a declaration from counsel establishing Bronson’s reliance on the Splenda 26 Essentials website. Id. Plaintiffs’ actions in amending the complaint do not suggest bad 27 faith. 28 9 1 Because Plaintiffs’ offering of inconsistent allegations is not grounds to dismiss the 2 allegations from the SAC, Plaintiffs’ representations that Bronson relied on the Splenda 3 Essentials website are sufficient to establish standing to challenge Defendants’ web 4 advertisements. Insomuch as Defendants argue that Plaintiffs’ antioxidant claims fail 5 because Plaintiffs have not alleged reliance on Defendants web advertising, Defendants 6 motion is DENIED. 7 8 9 2. Rule 9(b) Next, Defendants argue that Plaintiffs’ remaining Antioxidant claims fail because they do not satisfy the heightened pleading standards for fraud claims under Rule 9(b). United States District Court For the Northern District of California 10 Specifically, Defendants allege that Plaintiffs’ antioxidant claims do not sufficiently plead 11 reliance on Defendants web advertisements or on the statement, “like those found on fruits 12 and vegetables,” located on the product packaging. MTD at 19-20, 15-16. Defendants’ 13 argument fails because Plaintiffs’ allegations are sufficiently pled in both instances. 14 Under Rule 9(b), claims “sounding in fraud” or alleging “circumstances constituting 15 fraud” must be pled with “heightened particularity.” Fed. R. Civ. P. 9(b); Vess, 317 F.3d at 16 1103-04. The heightened standard requires a plaintiff to set forth the “who, what, when, 17 where and how” of the claim. Cooper, 137 F.3d at 627. Pleadings must “be specific enough 18 to give defendants notice of the particular misconduct . . . so that they can defend against the 19 charge and not just deny that they have done anything wrong.” Vess, 317 F.3d at 1106. If 20 claims under the UCL, FAL, and CLRA specifically allege fraud, or allege facts that 21 constitute fraud–even if the word fraud is not used–the claims are subject to the heightened 22 standard. See id. at 1103, 1106; Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 23 2009) (“[W]e have specifically held that Rule 9(b)’s heightened pleading standards apply to 24 claims for violations of the CLRA and UCL.”). 25 Defendants rely on Kearns to argue that Plaintiffs’ claims are insufficient. Defendants 26 contends that Plaintiffs fail to allege “which pages of the website” were reviewed, “when” 27 they were viewed, and what Bronson “interpreted those claims to mean.” MTD at 20. 28 Further, Defendants allege that Plaintiffs fail to plead specific reliance on the statement, “like 10 1 those found in fruits and vegetables.” MTD at 15-16. But Kearns did not require such 2 specific allegations. In Kearns, the plaintiff pled simple exposure to a national advertising 3 campaign. 567 F.3d at 1126. The court found the pleadings insufficient because they failed 4 to “specify what the television advertisements or other sales material specifically stated” and 5 “when [the plaintiff] was exposed.” Id. at 1126. The court in Kearns did not demand times 6 and dates about when the advertisements were viewed, only basic details that would give a 7 defendant the “opportunity to respond to the alleged misconduct.” Id. The plaintiff in 8 Kearns was unable to satisfy even those basic requirements. Additional authority cited in 9 Defendants’ Reply also fails to support Defendants’ argument. Cf. Janney v. Gen. Mills, No. United States District Court For the Northern District of California 10 C12-3919 PJH, 2013 WL 1962360, at *10 (“The FAC fails to identify with particularity (or 11 at all) any misrepresentations made in the online sources. The FAC does not specify what the 12 exact false or misleading statements are, why the statements are false or misleading, where 13 exactly the statements are located, or which statements plaintiffs relied on.”). 14 Here, Plaintiffs sufficiently allege particular facts satisfying the heightened pleading 15 requirements under Rule 9(b). Unlike in Kearns, the SAC in this case attacks specific 16 representations on the Splenda Essentials website and product packaging, and identifies why 17 those representations are misleading. See SAC ¶ ¶ 23, 25. Further, the SAC alleges that 18 Plaintiff Bronson relied on the website, establishes when she viewed the website–after her 19 first purchase of Splenda Essentials products–and alleges all Plaintiffs relied on the package 20 when they purchased the antioxidant product. Id. ¶ 9, 10. The SAC does not allege the 21 specific date on which Bronson visited the website or purchased the antioxidant product, but 22 Kearns did not establish such a requirement. 567 F.3d at 1126. See also In re Oreck Corp., 23 No. ML 12-2317 CAS (JEMx), 2012 WL 6062047, at *15 (“[I]t would be unfair to require 24 plaintiffs to recall and specify precisely which of the many advertisements they have been 25 saw [sic] were the particular advertisements they relied upon. It suffices for plaintiffs to 26 provide examples of advertisements similar to those they saw as long as all the 27 advertisements convey the core allegedly fraudulent message.”). 28 11 1 The SAC alleges Plaintiffs reviewed the product packaging and the website, and 2 alleges reliance on the representations therein. The SAC sets forth with specificity the claims 3 that are allegedly misleading and why they are misleading. Therefore, insomuch as the MTD 4 attacks the pleadings for lack of specificity under Rule 9(b), Defendants’ motion is DENIED. 5 IV. 6 CONCLUSION The Court GRANTS the Motion to Dismiss with prejudice for Plaintiffs’ claims 7 previously dismissed with prejudice. The Court also GRANTS the Motion to Dismiss with 8 prejudice for Plaintiffs’ claims regarding the Fiber and B-Vitamin products. The Court 9 DENIES the motion for Plaintiffs’ remaining, non-preempted claims regarding the United States District Court For the Northern District of California 10 11 B-Vitamin products.. IT IS SO ORDERED. 12 13 14 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE Dated: October 21, 2013 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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