Carter v. The Dial Corporation

Filing 66

/// ORDER denying (36) Defendants' Motion to Dismiss; granting (75) Assented-to Motion to Dismiss, without prejudice, their request for injunctive relief (Count V) in case 1:11-md-02263-SM, as well as the respective motions filed in all underlying civil cases. So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

In re: Dial Complete Marketing
and Sales Practices Litigation

Case No. 11-md-2263-SM
Opinion No. 2013 DNH 043

O R D E R
This consolidated, multi-district litigation is brought by
consumers in Arkansas, California, Florida, Illinois, Louisiana,
Missouri, New Hampshire, New York, Ohio, and Wisconsin, on behalf
of themselves and similarly situated consumers in those states.
Plaintiffs accuse defendant, The Dial Corporation (“Dial”), of
falsely advertising the antibacterial properties of its “Dial
Complete” branded soaps.

They advance claims under their

respective state consumer protection/unfair trade practices
statutes, as well as statutory and common law causes of action
for breach of warranty and unjust enrichment.

Dial moves to

dismiss all counts of plaintiffs’ Consolidated Amended Complaint,
saying none adequately pleads a viable claim.
P. 12(b)(6).

See Fed. R. Civ.

Plaintiffs object.

For the reasons discussed, Dial’s motion to dismiss is
denied.

Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
favor of the pleader.”
Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441 (1st

Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).

In other words, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. 544, 555 (2007).

Bell Atl. Corp. v.

The facts alleged in the

complaint must, if credited as true, be sufficient to “nudge[]
[plaintiff’s] claims across the line from conceivable to
plausible.”

Id. at 570.

If, however, the “factual allegations

in the complaint are too meager, vague, or conclusory to remove

2

the possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.”

Tambone, 597 F.3d at 442.

Background
Accepting the allegations set forth in the Consolidated
Amended Complaint as true, the relevant facts are as follows.
Dial manufactures, markets, and sells a line of antibacterial
hand-washing products under the name “Dial Complete.”

The active

ingredient in Dial Complete is a compound known as triclosan - a
product originally patented as an herbicide and currently
registered with the Environmental Protection Agency as a
pesticide.

Because of its antibacterial properties, triclosan

has been used in some soaps and other household products since
the 1960’s.

According to plaintiffs, Dial markets Dial Complete
employing numerous misleading and deceptive claims, which include
the following: that Dial Complete “kills 99.99% of germs;” that
it kills 99.9% of illness-causing bacteria; that it is “doctor
recommended;” that it “kills more germs than any other liquid
hand soap;” and that it has been “shown to help reduce disease
transmission by 50% compared to washing with a plain soap.”
Consolidated Amended Complaint (document no. 32) at paras. 47-51.
Plaintiffs also take issue with Dial’s claim that Dial Complete

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delivers a “100 to 1,000 fold increase in germ-killing activity
compared to washing with just plain soap and water.”

Id. at

para. 60.

According to plaintiffs, Dial Complete has no greater
efficacy than soaps that do not contain triclosan, and there is
no clinical support for defendant’s advertising and packaging
claims concerning the product.

They say Dial’s “claims about

Dial Complete’s effectiveness and superiority are false,
deceptive, unfair, and unconscionable because there is not
sufficient, competent and/or reliable scientific evidence” to
support such claims.

Id. at para. 69.

Plaintiffs assert that

Dial’s claims appear to be based upon a single, in-house study,
conducted at the “Dial Center for Innovation.”

And, Dial’s

advertising and packaging materials fail to disclose the study’s
substantial limitations which, say plaintiffs, render the study
incomplete, unreliable, and insufficient to support Dial’s false
and deceptive claims about its Dial Complete line of products.1

1

According to plaintiffs, the study’s alleged
limitations include: (a) that only two types of bacteria were
tested; (b) that the study failed to determine whether repeated
use of Dial Complete led to the development of immunity to the
product’s antimicrobial properties; (c) that only seven to
thirteen subjects participated in the study (which, plaintiffs
suggest, renders the study scientifically unreliable); and (d)
that the study did not compare Dial Complete with any other
antibacterial soap. Id. at para. 74.
4

Plaintiffs also complain that Dial’s advertising and packaging
materials for Dial Complete fail to warn consumers that using
products containing triclosan may lead to the emergence of
bacteria that are resistant to triclosan and/or other
antimicrobial agents.

Id. at 78.

In support of their claims, plaintiffs point to several
scientific studies, including one published in 2004 in the
American Journal of Infection Control.

The authors of that study

concluded that “after testing the efficacy of fourteen different
hand hygiene agents including a hand wash with 1% triclosan,
washing with plain soap and water was more effective than
triclosan after just one wash.”

Consolidated Amended Complaint

at para. 80.2

Plaintiffs also rely on several published studies that they
say found little evidence to support the claim that “triclosan
soap affords any benefit in the reduction of infectious symptoms,
bacterial counts, or types of bacteria on the hands of
individuals within the household setting in the developed world.”
Id. at para. 81.

In another study, published in Clinical

2

The packaging and labeling materials submitted by the
parties disclose that triclosan is present in Dial Complete at a
concentration of less than one-half of one percent. See
Consolidated Amended Complaint at 12. See also Exhibit B to
Defendant’s Motion to Dismiss (document no. 36-4).
5

Infectious Diseases, plaintiffs say researchers reviewed 27
separate studies conducted over the past 30 years and determined
that “soaps containing added ingredients such as triclosan in
liquid soap and Triclocarbon in bar soap do not show a benefit
above and beyond soap that does not contain those ingredients in
the real world environment.”

Consolidated Amended Complaint at

para. 83.

Additionally, plaintiffs allege that, in 2005, the U.S. Food
and Drug Administration (“FDA”) concluded that antimicrobial
soaps do not reduce the risk of illness and infection in the
home.

And, more recently, in a 2010 “Consumer Update,” the FDA

stated that “[a]t this time, FDA does not have evidence that
triclosan added to antibacterial soaps and body washes provides
extra health benefits over soap and water.”

Id. at para. 87

(citation omitted).

In light of the foregoing, plaintiffs allege that Dial has
engaged in, and continues to engage in, the following course of
wrongful conduct:
a.

Representing, both expressly and by
implication, that Dial Complete’s
antibacterial properties and its health
benefits are more substantial than they
actually are;

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b.

Failing to disclose to consumers the
reasonably foreseeable risks associated with
using Dial Complete, as well as the existence
(and nature) of material defects in the
product; and

c.

Falsely representing in advertising materials
that Dial possesses clinical and/or
scientific data to support its false claims
about the efficacy of Dial Complete.

See id. at para. 94.

The Consolidated Amended Complaint advances four causes of
action: violation of various state consumer protection laws
(count one); breach of express warranty (count two); breach of
implied warranty (count three); and unjust enrichment (count
four).

Plaintiffs seek class certification, see Fed. R. Civ. P.

23, and, once certified, they seek monetary damages and an award
of costs and attorney’s fees.

Although they originally sought

injunctive relief as well (count five), plaintiffs have since
filed an assented-to motion to withdraw that count, without
prejudice.

See Document no. 75.

Parenthetically, the court notes that this litigation is
substantially similar to the consolidated multi-district
litigation currently pending in this court against ColgatePalmolive.

See In re Colgate-Palmolive Softsoap Antibacterial

Handsoap Marketing and Sales Practices Litigation, Case no. 12-

7

MD-2320-PB.

And, not surprisingly, many of the issues raised in

this case have been raised and/or resolved in the ColgatePalmolive case as well.

Discussion
Pursuant to Fed. R. Civ. P. 12(b)(6), Dial moves to dismiss
the Consolidated Amended Complaint, asserting that plaintiffs
have failed to plead their claims with sufficient specificity
under Rules 8 and 9(b); that, under the primary jurisdiction
doctrine, the court should refer this case to the FDA to allow
that agency to apply its expertise to important scientific and
regulatory issues raised by plaintiffs’ claims; and that
plaintiffs have failed, as a matter of law, to state viable
claims under state law.

I.

Pleading Claims with Sufficient Specificity.
In support of its motion to dismiss, Dial first argues that

because plaintiffs’ claims either affirmatively allege deception
and fraud, or because they incorporate by reference the fraudbased allegations of the complaint, the “sounds in fraud”
doctrine requires those claims be pled with added specificity.
And, says Dial, plaintiffs have failed to do so.

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To satisfy the heightened pleading requirements imposed by
Rule 9 of the Federal Rules of Civil Procedure, plaintiffs must
“state with particularity the circumstances constituting fraud or
mistake.”

Fed. R. Civ. P. 9(b).

That, in turn, requires them to

“specify the who, what, where, and when of the allegedly false or
fraudulent representation.”

Alternative Sys. Concepts, Inc. v.

Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004).

Finally, the

complaint must also set forth specific facts that give rise to a
reasonable inference that the defendant knew a particular
statement was materially false or misleading.

See N. Am.

Catholic Edu. Programming Foundation, Inc. v. Cardinale, 567 F.3d
8, 13 (1st Cir. 2009).

Because the Consolidate Amended Complaint

meets those heightened pleading requirements, the court need not
resolve whether the “sounds in fraud” doctrine applies to this
case; even assuming that doctrine does apply, plaintiffs have
pled their claims with sufficient specificity under Rules 8 and
9(b).

According to Dial, plaintiffs’ complaint falls short of the
requirements imposed by Rules 8 and 9(b) because plaintiffs “do
not allege the existence of a single study that refutes the
claims made about Dial Complete that they challenge.”
Defendant’s memorandum (document no. 36-1) at 5.

While it is

true that plaintiffs cite no studies that specifically tested the

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antibacterial efficacy of Dial Complete, that absence is not
fatal.

Plaintiffs have alleged sufficient facts - including the

existence of various scientific studies, and the FDA’s own
conclusion that it “does not have evidence that triclosan added
to antibacterial soaps and body washes provides extra health
benefits over soap and water” - to support their claims that, in
essence: (1) Dial Complete does not provide any additional
antibacterial benefits over plain soap and water; and (2) Dial
was aware of that fact when it published claims about Dial
Complete’s superior antibacterial properties and health benefits.

Dial responds by pointing out the unique - indeed patented formula of its Dial Complete products, suggesting that Dial
Complete is more effective at killing bacteria than the
triclosan-based products that were the subject of the studies
cited by plaintiffs.

That may, of course, be true.

But, at this

early stage of the litigation, plaintiffs need not disprove that
claim.

They need only plead sufficient facts to support their

assertion that Dial knowingly misrepresented the antibacterial
efficacy of its Dial Complete product line.

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They have done so.3

Dial says it was granted a patent based upon its
discovery that an “antibacterial agent that is free in the
solution and not tied up in a surfactant is able to perform its
function of killing bacteria quickly.” Defendant’s Memorandum at
3. The existence of that patent, says Dial, establishes the
truth of its marketing claims about Dial Complete’s superior
efficacy and warrants dismissal of plaintiffs’ complaint. It
10

II.

Primary Jurisdiction.
Next, Dial points out that the FDA has, for many years, been

studying the safety, efficacy, testing, and labeling of products
containing triclosan.

And, because Dial still apparently

believes that “proposed regulations on these issues are
imminent,” it asserts that the court should invoke the doctrine
of primary jurisdiction, “dismiss Plaintiffs’ claims[,] and refer
this case to the FDA for administrative determination.”
Defendant’s memorandum (document no. 36-1) at 15.

A.

Legal Background.

The doctrine of primary jurisdiction “is concerned with
promoting proper relationships between the courts and
administrative agencies charged with particular regulatory
duties.”
(1956).

United States v. Western P. R. Co., 352 U.S. 59, 64
It may be invoked when claims properly pending before a

does not. The patent simply teaches an apparently novel means by
which to formulate an “antibacterial composition.” Moreover, the
court notes that the patent states that, in preferred
embodiments, the active antimicrobial agent “is present in an
amount of at least 2%, and preferably at least 25%, of
saturation, when measured at room temperature.” See Exhibit B to
Defendant’s Memorandum (document no. 36-3). As noted above, the
labeling materials provided by the parties show that triclosan is
present in Dial Complete at a concentration of 0.46% substantially below the concentration specified in the patent’s
preferred embodiment. It is, then, unclear how the patent
conclusively establishes the truth of Dial’s marketing claims
about Dial Complete. If it does, Dial has failed to explain how.
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court involve issues that fall within the special competence of
an administrative agency, and the court would benefit from
obtaining the agency’s expertise on those matters.

See Pejepscot

Indus. Park v. Maine Central R.R., 215 F.3d 195, 205 (1st Cir.
2000).

In those circumstances, the court may, in its discretion,

refer such issues to the agency in order to obtain its views.

But, as the Supreme Court has observed, “[n]o fixed formula
exists for applying the doctrine of primary jurisdiction.

In

every case the question is whether the reasons for the existence
of the doctrine are present and whether the purposes it serves
will be aided by its application in the particular litigation.”
Western Pacific, 352 U.S. at 64.

Consequently, before invoking

the doctrine, there are several factors a court should consider,
including whether its ruling on a particular matter might disturb
or disrupt the regulatory regime of the agency in question, and
whether “the goal of national uniformity in the interpretation
and application of a federal regulatory regime is furthered by
permitting the agency that has primary jurisdiction over the
matter in question to have a first look at the problem.”

Am.

Auto. Mfrs. Ass’n v. Mass. Dep’t of Envtl. Prot., 163 F.3d 74, 81
(1st Cir. 1998).

Additionally, the Court of Appeals for the

First Circuit has instructed lower courts to consider:

12

(1) whether the agency determination lies at the heart
of the task assigned the agency by Congress; (2)
whether agency expertise is required to unravel
intricate, technical facts; and (3) whether, though
perhaps not determinative, the agency determination
would materially aid the court.
Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 992
(1st Cir. 1995) (citing Chicago Mercantile Exch. v. Deaktor, 414
U.S. 113, 114-15 (1973)).

B.

Invocation of the Primary Jurisdiction Doctrine
Is not Appropriate in this Case.

As noted above, this court (Barbadoro, J.) has before it a
substantially similar consolidated, multi-district case involving
claims that the Colgate-Palmolive Company marketed its version of
an antibacterial soap with false and misleading claims.

In that

case, as here, defendant invoked the primary jurisdiction
doctrine in support of its motion to dismiss or stay plaintiffs’
claims.

The court rejected that argument in a thorough and

thoughtful opinion.

In re Colgate-Palmolive Softsoap

Antibacterial Handsoap Marketing and Sales Practices Litigation,
Case no. 12-MD-2320-PB, 2013 DNH 038 (D.N.H. March 18, 2013)
(“Colgate-Palmolive”).

The substance of the Colgate-Palmolive opinion need not be
recounted in detail.

It is sufficient to note that the court’s

reasoning applies with equal force to this case and counsels in
13

favor of denying defendant’s request to apply the primary
jurisdiction doctrine.

First, the issues presented in this

litigation are not “at the heart of the task assigned [to the
FDA] by Congress.”

Blackstone Valley Elec., 67 F.3d at 992.

Judge Barbadoro explained:
[P]laintiffs seek to prove that Colgate made implied
claims that Softsoap Antibacterial is superior to other
products; that it misrepresented Softsoap
Antibacterial’s effectiveness; and that it misled
consumers with unsubstantiated claims about its
products. To resolve those claims, the court will
examine the state of scientific knowledge in the past,
when Colgate made its advertising and labeling claims
relating to Softsoap Antibacterial’s safety and
effectiveness. It will determine what data Colgate
possessed to support its marketing claims at the time
they were made and whether Colgate ignored data that
contradicted its claims. The court will also determine
how a reasonable consumer would have interpreted
Colgate’s marketing campaign for Softsoap
Antibacterial. Essentially, this litigation is
backward-looking; it seeks to determine whether past
conduct was misleading.
The FDA’s monograph process, in contrast, is forwardlooking. It will determine the permissible content of
future product labels. It will establish the
permissible concentrations of triclosan in consumer
hand soaps, if it permits use of the ingredient at all.
The monograph will articulate the FDA’s findings, based
on the current state of scientific knowledge, about the
safety and effectiveness of triclosan as used in
consumer hand soaps.
The FDA will not draw any factual conclusions about
Colgate’s past conduct. The agency will not address
whether Colgate’s past advertising claims were
substantiated. Nor will the FDA’s monograph shed light
on what information Colgate knew or could have known at
the time it made the advertising and labeling claims at
issue in this case. The FDA will not address whether
Colgate’s past product labels or advertising claims
14

As

were misleading when they were made or make any
pronouncement on how a reasonable consumer would
interpret Colgate’s marketing claims. Accordingly,
although the FDA’s conclusions may touch on some issues
in this case, the case does not turn on factual
disputes that lie at the heart of the FDA’s regulatory
authority.
Colgate-Palmolive, at 18-20.

Next, the FDA’s expertise is not “required to unravel
intricate, technical facts” involved in this case.
Valley Elec., 67 F.3d at 992.

Blackstone

In fact, the questions presented

in this case are relatively straight-forward, such as whether
scientific data supported Dial’s marketing claims, and how a
reasonable consumer would interpret those claims.

“The FDA does

not have technical expertise related to questions of fraud and
deceit.

Courts, by contrast, routinely determine whether past

conduct or statements were false or misleading.”

Colgate-

Palmolive, at 21.

Additionally, Dial has failed to demonstrate that FDA action
in this realm would “materially aid the court” in resolving
plaintiffs’ claims.

Blackstone Valley Elec. Co., 67 F.3d at 992.

Again, because the FDA’s monograph process is largely forwardlooking, and because resolution of plaintiffs’ claims requires
inquiry into what Dial knew when it made the challenged marketing
claims, staying this case until the FDA has issued a final
15

determination on the effectiveness of hand soaps containing
triclosan would seem to make little sense.

And, finally, as Judge Barbadoro noted, “[a]ny minimal value
that an FDA ruling might have on the resolution of this case is
greatly outweighed by the harm that the plaintiffs will suffer if
the action is delayed.”

Colgate-Palmolive, at 24.

[T]he FDA began investigating triclosan products in
1972. Since then, it has issued two [tentative final
monographs or “TFMs”] and reopened the administrative
record on multiple occasions. Several years ago, the
agency decided to split its original monograph on
triclosan products into three separate monographs.
Since then, the agency has missed multiple self-imposed
deadlines for publishing the TFM, most recently in
February 2013.
Once a TFM is issued, the agency will require a minimum
of fourteen more months to prepare the final monograph
in accordance with the procedures set out in the
regulations. Thus, even if the TFM were issued
tomorrow, the final monograph would not enter into
force until May 2014 at the earliest. Moreover, the
final monograph is not the end of the road: It may be
appealed to the federal courts, and the Commissioner
has discretion to stay the effective date for all or
part of the monograph pending final court adjudication.
This long unavoidable delay in issuing a final
monograph on consumer antiseptics weighs strongly in
favor of rejecting the doctrine.
Id. at 24-25 (citations omitted).

For the foregoing reasons, the court concludes that this is
not a case in which the doctrine of primary jurisdiction counsels

16

in favor of delaying resolution of plaintiffs’ claims pending
further administrative action by the FDA.

III. Miscellaneous Grounds for Dismissal.
Finally, defendant says that various state-specific claims
advanced by some of the plaintiffs fail as a matter of law.

A.

Consumer Protection Claims.

Dial asserts that plaintiffs’ claims under the consumer
protection statutes in Arkansas, California, Illinois, and Ohio
fail to “specify which of the statutes’ enumerated unlawful
practices are allegedly at issue, leaving Dial without requisite
notice under Rules 8 and 9(b).”
(document no. 46) at 11-12.

Defendant’s Reply Memorandum

The court disagrees.

The

Consolidated Amended Complaint adequately alleges that Dial
engaged in unfair and deceptive practices in marketing and
selling its Dial Complete line of products, by knowingly and
intentionally making untrue and deceptive representations about
those products’ health benefits, their antibacterial efficacy,
and their superiority to other hand-washing products on the
market.

With regard to claims under the Arkansas Deceptive Trade
Practices Act (“ADTPA”), plaintiffs’ have adequately alleged that

17

Dial’s wrongful conduct caused them to suffer actual (albeit
modest) damage or injury, not simply diminution in the value of
the product they purchased.

At a minimum, plaintiffs’

allegations are sufficient to survive a motion to dismiss.

See

generally M.S. Wholesale Plumbing, Inc. v. Univ. Sports Pubs.
Co., 2008 WL 90022 *3-4 (E.D. Ark. Jan. 7, 2008).

Similarly, plaintiffs’ claims under the California Consumer
Legal Remedies Act (“CLRA”) are sufficient to state viable a
cause of action.

Dial asserts that plaintiffs failed to allege

that they engaged in a “transaction” with Dial, since plaintiffs
purchased Dial Complete from various retailers.
is fatal to a claim under the CLRA.

That, says Dial,

Again, the court disagrees.

See, e.g., In re Sony Vaio Computer Notebook Trackpad Litigation,
2010 WL 4262191, *5 (S.D. Cal. Oct. 28, 2010) (holding that
plaintiffs stated a viable CLRA claim against Sony, despite the
fact that they purchased their computer notebooks from Best Buy,
rather than directly from Sony).

Finally, Dial asserts that plaintiffs’ class action claims
under Ohio’s Consumer Sales Practices Act (“OCSPA”) fail because
Dial did not receive “prior notice” that its conduct was
deceptive or unconscionable.

See Ohio Revised Code (“O.R.C.”)

18

§ 1345.09.

Plaintiffs respond by saying that Dial had notice

that its deceptive marketing statements violated Ohio law because
the OCSPA itself makes it an unlawful deceptive act or practice
for a company to “[m]ake any representations, claims, or
assertions of fact, whether orally or in writing, which would
cause a reasonable consumer to believe such statements are true,”
Ohio Admin. Code 109:4-3-10(A) - precisely the type of claims
plaintiffs advance.

See also O.R.C. § 1345.02(B)(1) (defining a

deceptive trade practice to include making representations that a
product has “approval, performance characteristics, accessories,
uses, or benefits that it does not have”).

Plaintiffs also

assert that Dial had prior notice of the wrongfulness of its
conduct based upon correspondence sent by plaintiffs’ counsel to
Dial.

See Exhibits A and B to Plaintiffs’ Memorandum.

Defendant

has not adequately supported (or briefed) its claim that the
asserted notice is legally insufficient under Ohio law.
Accordingly, its motion to dismiss on that basis is necessarily
denied.

B.

Express and Implied Warranty Claims.

Next, defendant moves to dismiss plaintiffs’ implied
warranty claims, asserting that they are duplicative of
plaintiffs’ express warranty claims.
to reach that conclusion.

19

It is, however, premature

The parties appear to agree that the relevant state laws are
substantially similar and, in order to assert a viable claim for
breach of implied warranty under the law of any of those states,
plaintiffs must allege that Dial Complete was unfit for its
intended purpose, or not of merchantable quality as promoted,
packaged, or sold.

If Dial Complete’s “intended purpose” is

simply to act as a hand-washing soap, whether it has the
antibacterial properties claimed by Dial would be of little
moment (at least in the context of a breach of implied warranty
claim).

Even absent any superior antibacterial properties, it

still no doubt serves as a perfectly adequate hand-washing soap.
But, if its intended purpose is more focused, plaintiffs would
seem to have stated a viable claim.

That is to say, if the

“intended purpose” of Dial Complete is to provide a hand-washing
soap that, say, better prevents the spread of illness-causing
bacteria, and if it lacks any greater antibacterial properties
than ordinary soap, it would appear that it could plausibly be
thought unfit for that particular purpose.

The parties have, however, not engaged on that issue.
have they provided helpful briefing on whether determining a

Nor

product’s “intended purpose” is a legal or factual or mixed
question.

Accordingly, it is, at best, premature to grant

20

defendant’s motion to dismiss plaintiffs’ breach of implied
warranty claims.

Finally, with regard to Dial’s general assertion that
privity is required for express warranty claims under Illinois
and Florida law, it has not adequately shown that to be an
accurate statement of the governing law.

See, e.g.,

Smith v.

Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336 (S.D. Fla. 2009)
(holding, under circumstances similar to those presented in this
case, that the plaintiff need not demonstrate privity in order to
pursue a breach of warranty claim).

C.

Unjust Enrichment.

Lastly, Dial moves to dismiss plaintiffs’ unjust enrichment
claims, noting that “the doctrine does not apply where a contract
allegedly governs the parties’ relationship.”
at 31-32.

Motion to Dismiss

That may well be an accurate statement of the

governing law.

But, consistent with Federal Rules, plaintiffs

have simply pled their claims in the alternative.
Civ. P. 8(d)(2).

See Fed. R.

And, the mere fact that plaintiffs have pled

arguably inconsistent theories of recovery is not, standing
alone, a sufficient basis to dismiss one of those claims.

The

United States District Court for the District of Massachusetts
recently addressed precisely this point.

21

[Defendant] also contends that the unjust enrichment
claims should be dismissed because equitable remedies
will not be granted when the plaintiffs have an
adequate remedy at law. While [defendant] states the
law correctly, it is inappropriate to dismiss equitable
remedies at the pleading stage on this basis. Under
the Federal Rules of Civil Procedure, plaintiffs have
the prerogative to plead alternative and even
conflicting theories of recovery. For those reasons,
[defendant’s] motion to dismiss the unjust enrichment
claims will be denied.
In re Celexa & Lexapro Marketing & Sales Practices Litig., 751 F.
Supp. 2d 277, 297 (D. Mass. 2010) (citations omitted).

See also

In re Light Cigarettes Mktg. Sales Practices Litig., 751 F. Supp.
2d 183, 191-92 (D. Me. 2010) (collecting cases denying motions to
dismiss because the federal rules permit plaintiffs to plead
inconsistent causes of action).

Conclusion
For the foregoing reasons, as well as those set forth in
plaintiffs’ memorandum (document no. 40), it is plain that
plaintiffs have pled their claims with sufficient specificity
under Rules 8 and 9(b).

It is equally plain that this is not an

appropriate case in which to invoke the doctrine of primary
jurisdiction.

See generally Colgate-Palmolive, supra.

22

As to the remaining bases for defendant’s motion to dismiss,
none has been shown to warrant dismissal of plaintiffs’ claims at least not at this stage.

It would, however, appear that

several of defendant’s arguments (e.g., privity as a requirement
for implied warranty claims in some states, the requirement of
prior notice under Ohio’s Consumer Sales Practices Act, etc.)
lend themselves more properly to resolution at the summary
judgment stage, based upon a more complete record and more
thorough legal briefing by the parties.

Defendant’s motion to dismiss (document no. 36) is,
therefore, denied.

Plaintiffs’ assented-to motion to dismiss,

without prejudice, their request for injunctive relief (document
no. 75) is granted.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
March 26, 2013
cc:

Tamar G. Arminak, Esq.
Richard J. Arsenault, Esq.
Daniel E. Becnel, Jr., Esq.
Robert M. Becnel, Esq.
Karl A. Bekeny, Esq.
Paul E. Benson, Esq.
Amy Bloom, Esq.
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Jordan L. Chaikin, Esq.
Elizabeth M. Chiarello, Esq.
Salvadore Christina, Jr., Esq.
John R. Climaco, Esq.
Randal S. Crompton, Esq.
Stuart A. Davidson, Esq.
Mark J. Dearman, Esq.
Douglas P. Dehler, Esq.
Christopher M. Ellis, Esq.
John E. Galvin, III, Esq.
Jonathan H. Garside, Esq.
Mark J. Geragos, Esq.
Eric D. Holland, Esq.
D. Scott Kalish, Esq.
Lucy J. Karl, Esq.
Shelley Kaufman, Esq.
Sean T. Keith, Esq.
Adam J. Levitt, Esq.
Patricia E. Lowry, Esq.
Thomas D. Mauriello, Esq.
Robert H. Miller, Esq.
Matthew B. Moreland, Esq.
Cullin A. O’Brien, Esq.
Edward K. O’Brien, Esq.
John A. Peca, Jr., Esq.
Chad W. Pekron, Esq.
Frank E. Piscitelli, Jr., Esq.
David C. Rash, Esq.
Richard D. Raskin, Esq.
Allison W. Reimann, Esq.
Fred R. Rosenthal, Esq.
Charles E. Schaffer, Esq.
Jeffrey M. Schieber, Esq.
Miriam L. Schimmel, Esq.
Ronie M. Schmelz, Esq.
Gerard B. Schneller, Esq.
Eugene A. Schoon, Esq.
James C. Shah, Esq.
Joseph J. Siprut, Esq.
Andrew J. Sokolowski, Esq.
Steven J. Stolze, Esq.
Reginald Von Terrell, Esq.
Robert C. Tucker, Esq.
John-Mark Turner, Esq.
Patrick G. Warner, Esq.
Robert R. Younger, Esq.

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