On Friday in the Southern District of California, Judge Todd Robinson dismissed with prejudice a fifth amended complaint by a putative class that alleged defendants Johnson & Johnson and Bausch Health U.S. were falsely and deceptively advertising baby powder products.
Louisa Gutierrez and Debbie Luna, as individuals and on behalf of the putative class, argued that the defendants’ marketing and advertising of their “Talcum Products,” including “Baby Powder” and “Shower to Shower” products, as named in the fifth amended complaint, were misleading and “led (them) to believe that the Talcum Products were safe and pure, when they actually contained hazardous substances such as ‘asbestos, asbestiform fibers, lead, asilica, and arsenic,’” the court explained. Phrases used to market the products, such as “#1 Choice for Hospitals,” “Most Pure,” and “Hypoallergenic & tested with dermatologists,” were instrumental in the class members’ decisions to buy these products, meanwhile a December 2018 Reuters article revealed that the products contained “hazardous substances,” the complaint claimed. Specifically, the plaintiffs alleged violations of the Consumer Legal Remedies Act (CLRA), the False Advertising Law (FAL), and the Unfair Competition Law (UCL).
The fifth amended complaint came after the third amended complaint was dismissed — “the court stated that Plaintiffs must specifically allege how Defendants’ alleged misrepresentations affected their decision to buy the Talcum Product” — and the fourth was abandoned by the plaintiffs after filing for another leave to amend.
Both Johnson & Johnson and Bausch filed motions to dismiss, arguing that the plaintiffs did not remedy the failures of their previously amended complaints: “(1) Plaintiffs have not shown that the alleged misrepresentations are in fact misleading and that (2) they have not satisfied Rule 9(b)”; the court agreed, finding the plaintiffs’ deficiencies in the fifth amended complaint to be reflective of previous ones.
Pursuant to Federal Rule of Civil Procedure 9(b), for allegations “based in fraud,” the court explained, a plaintiff must argue with “particularity the circumstances constituting the fraud or mistake.” Further, in litigation with more than one defendant, the rule does not allow “lumping,” which “makes it unclear which Defendant committed the misconduct at issue,” the judge states.
As in previously amended complaints, the most recent complaint lumped the defendants together, “alleg(ing) that ‘Defendants’ represent that their products are ‘pure,’ ‘most pure,’ ‘asbestos-free’ without identifying which Defendant — JJCI or Bausch — made the statement,” the judge finds. The claims of violations of the CLRA, FAL, and UCL fail as a result of the plaintiffs falling short of meeting 9(b)’s standard.
Similarly, the court rejects the plaintiffs’ argument that they need not “identify the specific misrepresentation” that led them to buy the products in question. The plaintiffs wanted to apply In re Tobacco II, which found that in allegations involving “exposure to a long-term advertising campaign,” specificity of which particular ads or other marketing materials influenced the purchase in question was unnecessary. The court did not find the putative class’s arguments to be narrow enough for Tobacco to apply, lacking explanation of “when or how” the plaintiffs were exposed to the advertisements they name.
The judge also denied the plaintiffs any further leave to amend: “Granting leave to amend would allow Plaintiffs to file a sixth amended complaint in order to address the same shortcomings that have persisted in their pleadings — namely, their failure to satisfy Rule 9(b).”