Veronica Brenner et al v. Procter And Gamble Co.

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.January 5, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S NOTICE OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 HUNTON & WILLIAMS LLP Ann Marie Mortimer (SBN 169077) amortimer@hunton.com Kirk A. Hornbeck (SBN 241708) khornbeck@hunton.com Paul T. Moura (SBN 288664) pmoura@hunton.com 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 Attorneys for Defendant THE PROCTER & GAMBLE COMPANY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION VERONICA BRENNER and ANGELA BANEGAS, individually and on behalf of all others similarly situated, Plaintiffs, v. PROCTER & GAMBLE CO., Defendant. Case No.: 8:16-cv-02273-JLS (JCGx) DEFENDANT’S NOTICE OF MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS [Declaration of Ann Marie Mortimer, Request for Judicial Notice, and [Proposed] Orders filed concurrently herewith] Date: March 10, 2017 Time: 2:30 p.m. Judge: Hon. Josephine L. Staton Crtm.: 10A Complaint Filed: November 14, 2016 Action Removed: December 29, 2016 Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 1 of 16 Page ID #:321 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT’S NOTICE OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on March 10, 2017, at 2:30 p.m., or as soon thereafter as this may be heard, in Courtroom No. 10A of this Court, located at 411 West Fourth Street, Room 1053, Santa Ana, CA 92701-4516, before the Honorable Josephine L. Staton, Defendant The Procter & Gamble Company (“P&G”) will and hereby does move the Court for an order dismissing the complaint (Dkt. No. 1-3) (“Complaint”), and each claim contained therein, filedF by Plaintiffs Veronica Brenner and Angela Banegas (“Plaintiffs”). This motion is made pursuant to Federal Rules of Civil Procedure 41(b) and 12(b)(1), and is based on the following grounds: 1. Plaintiffs’ duplicative Complaint-which serves only to split Plaintiffs’ injunctive relief remedy from Plaintiffs’ causes of action previously filed in an already pending action, Brenner et al. v. Procter & Gamble Co., Case No. 8:16-cv-01093- JLS-JCG (“Brenner I”)-violates the Court’s order dismissing Plaintiff Brenner’s injunctive relief remedy in Brenner I, and also circumvents the parties’ stipulation and the Court’s order consolidating Plaintiffs’ claims together in the Brenner I action. 2. Plaintiffs lack standing to pursue injunctive relief because, as the Court held in Brenner I, Plaintiffs have not demonstrated a threat of future injury, given that they have alleged no intention of purchasing the baby wipes in the future if the “natural clean” representations are removed. This motion is based on this notice of motion, the accompanying memorandum of points and authorities, all pleadings and documents on file in this case, and on such other written and oral argument as may be presented to the Court. This motion is made following the conference of counsel pursuant to L.R. 7-3, which commenced on December 29, 2017, and continued at various times until January 5, 2017. DATED: January 5, 2017 HUNTON & WILLIAMS LLP By: /s/ Ann Marie Mortimer Ann Marie Mortimer Attorneys for Defendant THE PROCTER AND GAMBLE COMPANY Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 2 of 16 Page ID #:322 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 TABLE OF CONTENTS Page I. Introduction .......................................................................................................... 1 II. Background ........................................................................................................... 3 III. Legal Argument .................................................................................................... 4 A. Plaintiffs’ Claims Should Be Dismissed Under Rule 41(b) Because Plaintiffs’ Duplicative Complaint Contravenes the Court’s Prior Orders. ........................................................................................................ 4 1. Plaintiffs Have Not Complied with the Court’s Order Granting Leave to Correct the Deficiencies in Plaintiffs’ Injunctive Relief Claims. ................................................................. 5 2. Plaintiffs Have Not Complied with the Court’s Order to Consolidate Plaintiffs’ Claims in a Single Action. .......................... 5 3. Dismissal Under Rule 41(b) Is an Appropriate Remedy. ................ 6 B. Plaintiffs’ Claims Also Fail Under Rule 12(b)(1) Because Plaintiffs Lack Standing to Seek Injunctive Relief. .................................................. 9 IV. Conclusion .......................................................................................................... 11 Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 3 of 16 Page ID #:323 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 TABLE OF AUTHORITIES Page(s) CASES Brenner et al. v. Procter & Gamble Co., Case No. 8:16-cv-01093-JLS-JCG ................................................................... passim Brown v. Felsen, 442 U.S. 127 (1979)................................................................................................... 8 Cabral v. Supple, LLC, No. EDCV-12-00085-MWF-OP, 2016 WL 1180143 (C.D. Cal. Mar. 24, 2016) .......................................................................................... 7 Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004) ................................................................................... 9 Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008)................................................................................................. 10 Edwards v. Marin Park, Inc., 356 F.3d 1058 (9th Cir. 2004) ................................................................................... 5 Fid. Nat. Title Ins. Co. v. Castle, No. C 11-00896-SI, 2011 WL 6141310 (N.D. Cal. Dec. 8, 2011) ......................... 10 Flynn v. State Bd. of Chiropractic Exam’rs, 418 F.2d 668 (9th Cir. 1969) ..................................................................................... 8 Grimmelmann v. Pulte Home Corp., No. CV-08-1878-PHX-FJM, 2009 WL 1211771 (D. Ariz. May 1, 2009) .............................................................................................. 8 Herman v. Salomon Smith Barney, Inc., 266 F. Supp. 2d 1208 (S.D. Cal. 2003) ..................................................................... 9 Hodgers-Durgin v. De la Vina, 199 F.3d 1037 (9th Cir. 1999) ................................................................................. 10 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................................................... 9 Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 4 of 16 Page ID #:324 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 Madison v. Motion Picture Set Painters & Sign Writers Local 729, 132 F. Supp. 2d 1244 (C.D. Cal. 2000) ..................................................................... 9 McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988) ................................................................................... 10 Mezzadri v. Med. Depot, Inc., 113 F. Supp. 3d 1061 (S.D. Cal. 2015) ..................................................................... 7 Snowden v. Cazares, No. CV 12-3443-DSF(JC), 2016 WL 5947212 (C.D. Cal. Oct. 12, 2016) ........................................................................................... 7 The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913)..................................................................................................... 9 Yourish v. California Amplifier, 191 F.3d 983 (9th Cir. 1999) ................................................................................. 5, 6 STATUTES AND OTHER AUTHORITIES 28 U.S.C. § 1332(d) .................................................................................................... 1, 8 28 U.S.C. § 1453 ............................................................................................................. 1 28 U.S.C. §§ 1711-15 ..................................................................................................... 1 CAL. CIV. CODE §§ 1750-1785 (2) .............................................................................. 1, 4 CAL. BUS. & PROF. CODE §§ 17200-17210 ................................................................. 1, 4 FED. R. CIV. P. 11 ...................................................................................................... 2, 10 FED. R. CIV. P. 12(b)(1) ............................................................................................. 9,10 FED. R. CIV. P. 41(b) .............................................................................................. passim FLA. STAT. §§ 501.201, et seq. .................................................................................... 1, 4 Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 5 of 16 Page ID #:325 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs Veronica Brenner and Angela Banegas’ (“Plaintiffs’”) class action complaint (Dkt. No. 1-3) against The Procter & Gamble Company (“P&G”) is remarkable for one very simple reason: It is an attempt to split off and re-litigate an injunctive relief remedy that this Court already dismissed in a nearly identical action that Plaintiffs have filed in this district, styled Brenner et al. v. Procter & Gamble Co., Case No. 8:16-cv-01093-JLS-JCG (“Brenner I”).1 Plaintiffs-masters of their own complaint-initially filed their claims against P&G in federal court pursuant to the Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1453, 1711-15 (“CAFA”). Yet Plaintiffs now apparently refuse to accept the consequences of their chosen forum and governing law, and have decided to file this second lawsuit (“Brenner II”) in state court in order to circumvent the Court’s prior dismissal of Plaintiffs’ injunctive relief remedy, notwithstanding this Court’s original and exclusive jurisdiction over Plaintiffs’ claims under CAFA. Thus, this second lawsuit is part of an obvious attempt by Plaintiffs to avoid the consequences of multiple court orders limiting Plaintiffs’ claims, and to generate excess costs to P&G through the use of duplicative, vexatious litigation. Such tactics warrant dismissal with prejudice. In both Brenner I and this action, Plaintiffs allege that Pampers “Natural Clean” Wipes feature labeling that they claim is misleading because the Wipes allegedly “contain an unnatural and potentially harmful ingredient called phenoxyethanol.” Compare Mortimer Decl., Ex. A at Page 6 ¶ 4, Brenner I Compl. ¶ 4, to Dkt. No. 1-3, Brenner II Compl. ¶ 4. In both cases, Plaintiffs assert claims under the California Consumers Legal Remedies Act, California’s Unfair Competition Law, and Florida’s Deceptive and Unfair Trade Practices Act, and seek to represent identical classes of all 1 Plaintiffs’ First Amended Consolidated Complaint filed in Brenner I is attached as Exhibit A to the concurrently filed Declaration of Ann Marie Mortimer (“Mortimer Decl.”). Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 6 of 16 Page ID #:326 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 persons in California and Florida who purchased the Wipes. Compare Mortimer Decl., Ex. A at Pages 9-10, Brenner I Compl. ¶¶ 18-19, 22-23, to Dkt. No. 1-3, Brenner II Compl. ¶¶ 15-16, 19-20. Plaintiffs’ complaint in this second action seeks various forms of injunctive relief. Id., Brenner II. Compl. at Prayer for Relief. In Brenner I, Plaintiff Brenner had previously asserted identical causes of action seeking injunctive relief, but the Court dismissed Brenner’s requested relief based on a lack of Article III standing to seek an injunction. Mortimer Decl., Ex. B, (Motion to Dismiss (“MTD”) Order) at Page 30.2 The Court instructed Brenner that, “[i]f Plaintiff, consistent with her Rule 11 obligations, would like to amend her complaint to allege that she would purchase the product again if appropriately labeled, she may do so.” Id. To that end, the parties stipulated that Brenner would then file an amended complaint in Brenner I that consolidated her amended claims with Plaintiff Banegas’ substantially similar claims that were also pending in this district.3 Specifically, the parties agreed that, “in the interest of judicial efficiency,” the “common questions of law and fact” justified consolidating Plaintiffs’ claims in a single action that “shall bear the current caption and case number of the Brenner Action.” Mortimer Decl., Ex. E (Stipulation) at Page 66. The Court entered an order confirming this stipulation to consolidate and ordered that “Ms. Brenner and Ms. Banegas shall file a consolidated complaint” that “shall bear the current caption and case number of the [Brenner I] Action,” Mortimer Decl., Ex. F (Order Granting 2 The Court’s order granting in part P&G’s motion to dismiss is attached as Exhibit B to the concurrently filed Declaration of Ann Marie Mortimer. 3 Plaintiff Banegas’ original complaint is attached as Exhibit C to the concurrently filed Declaration of Ann Marie Mortimer. Banegas’ original complaint was initially transferred from the Southern District of Florida to the Central District of California on September 28, 2016 in order to avoid the sort of unnecessary duplication that Plaintiffs seek to perpetuate here. See Mortimer Decl., Ex. D at Pages 62-63 (“[T]he Court finds sufficient cause to transfer the case, especially given the likelihood of unnecessary duplication of litigation for the parties, the danger of inconsistent rulings, and the interests of sound judicial administration and judicial economy for the federal court system.”). Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 7 of 16 Page ID #:327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 Stipulation) at Page 72, which Plaintiffs then filed on November 9, 2016, see Mortimer Decl., Ex. A. Five days later, in defiance of the parties’ stipulation and the Court’s consolidation order, Plaintiffs filed this second, nearly identical lawsuit, asserting causes of action that are duplicative of Plaintiffs’ complaint in Brenner I. Plaintiffs assert newly-captioned claims again seeking injunctive relief, but once again have failed to correct the Article III standing deficiencies undercutting those claims, despite the Court’s express instructions. See Dkt No. 1-3, Brenner II Compl. ¶¶ 25-70. In other words, Plaintiffs have filed a duplicative complaint that contravenes two court orders, breaches the parties’ agreement to consolidate, repeats the same pleading deficiencies already rejected by the Court, improperly splits Plaintiffs’ remedy from the rest of Plaintiffs’ claims, and serves only to generate excess costs for P&G and waste the Court’s limited resources. As explained below, such noncompliance with the Court’s directions warrants dismissal under Federal Rule of Civil Procedure 41(b). In addition, Plaintiffs’ continued failure to demonstrate standing to seek an injunction further justifies dismissal with prejudice. II. BACKGROUND P&G is a pioneer in the field of baby care, having introduced disposable diapers to the mass market sixty years ago with the launch of the Pampers brand. Since that time, the Pampers brand has become synonymous with innovation and quality. Building on that reputation, P&G introduced the “Natural Clean” product line to the Pampers brand in June 2012. The packaging for the Natural Clean Wipes contains no reference to “natural” save for the product name, and there are no allegations that the Wipes are described as “all natural,” “100% natural,” or that the wipes otherwise claim to contain no artificial or synthetic ingredients. As alleged in Plaintiffs’ complaint, Brenner purchased the Wipes “at a Target store located in Rancho Santa Margarita, California, on many occasions since May Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 8 of 16 Page ID #:328 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 2015.” Dkt. No. 1-3, Brenner II Compl. ¶ 11. Banegas purchased the Wipes “an estimated 100 times . . . at Babies ‘R’ Us, Target, and BJ’s Wholesale Club in Broward County , Florida.” Id. ¶ 12. Plaintiffs contend that they understood “Natural Clean” to “mean that the Wipes did not contain synthetic chemicals and, at the very least, would not contain chemicals that were potentially harmful to [their] child[ren].” Id. ¶¶ 11-12. These allegations are identical to Plaintiffs’ allegations in Brenner I. See Mortimer Decl., Ex. A at Page 8, Brenner I Compl. ¶¶ 13-14. As relevant here, Plaintiffs make no allegation that they intend to purchase the Wipes again if the allegedly misleading statements are corrected, and therefore lack standing to pursue injunctive relief. Nonetheless, Plaintiffs seek to represent an “injunctive class” of all persons in California and Florida who purchased the Wipes, excluding those persons who made such purchases for purpose of resale. See Dkt. No. 1-3, Brenner II Compl. ¶ 16. Plaintiffs bring three claims, alleging (1) violation of the California Consumers Legal Remedies Act, CAL. CIV. CODE §§ 1750-1785 (“CLRA”), (2) violation of California’s Unfair Competition Law, CAL. BUS. & PROF. CODE §§ 17200-17210 (“UCL”), and (3) violation of Florida’s Deceptive and Unfair Trade Practices Act, FLA. STAT. §§ 501.201, et seq. (“FDUTPA”). III. LEGAL ARGUMENT A. Plaintiffs’ Claims Should Be Dismissed Under Rule 41(b) Because Plaintiffs’ Duplicative Complaint Contravenes the Court’s Prior Orders. Plaintiffs’ complaint should be dismissed under Rule 41(b) because it defies two prior orders of the Court. Pursuant to Federal Rule of Civil Procedure 41(b), “[i]f the plaintiff fails to prosecute or to comply with . . . a court order, a defendant may move to dismiss the action or any claim against it.” Plaintiffs’ complaint contravenes both (1) the Court’s order granting leave to correct the deficiencies in Plaintiff Brenner’s injunctive relief claims, see Mortimer Decl., Ex. B (MTD Order) at Page 30; and (2) the Court’s order confirming the parties’ stipulation to consolidate Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 9 of 16 Page ID #:329 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 Plaintiffs’ claims in a single action “in the interest of judicial efficiency,” see Mortimer Decl., Ex. E (Stipulation) and Ex. F (Order Granting Stipulation). 1. Plaintiffs Have Not Complied with the Court’s Order Granting Leave to Correct the Deficiencies in Plaintiffs’ Injunctive Relief Claims. As this Court previously held, a plaintiff must demonstrate a “‘real and immediate threat of repeated injury’ to have Article III standing to seek an injunction.” Mortimer Decl., Ex. B (MTD Order) at Page 30 (quoting Delarosa v. Boiron, Inc., No. SACV 10-1569-JST CWX, 2012 WL 8716658, at *2 (C.D. Cal. Dec. 28, 2012) (Staton, J.); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc)). The Court explained that, in order to establish Article III standing, Plaintiffs must allege that they would purchase the product again if the allegedly misleading statements are corrected. Mortimer Decl., Ex. B (MTD Order) at Page 30. Despite this Court’s instruction, Plaintiffs still have not alleged the requisite threat of repeated injury, and instead have asserted the same allegations that this Court previously deemed insufficient. Accordingly, the Court may dismiss the instant action based on Plaintiffs’ failure to correct the deficiencies in their complaint after being given the opportunity to amend. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (dismissal pursuant to FED. R. CIV. P. 41(b) proper sanction in cases where a plaintiff is notified of deficiencies in complaint and is given “the opportunity to amend [the complaint] or be dismissed” but the plaintiff “[does] nothing”) (citations omitted; emphasis in original). 2. Plaintiffs Have Not Complied with the Court’s Order to Consolidate Plaintiffs’ Claims in a Single Action. There is yet another order that Plaintiffs have defied. An order of the Court confirming a stipulation of the parties is an “order” that, if violated, may justify dismissal under Rule 41(b). See Yourish v. California Amplifier, 191 F.3d 983, 986- Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 10 of 16 Page ID #:330 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 88 (9th Cir. 1999) (affirming Judge Marshall’s dismissal under Rule 41(b) where plaintiff failed to comply with minute order confirming the parties’ stipulation). Here, after the Court instructed Brenner that she may amend and cure her claims seeking injunctive relief by “alleg[ing] that she would purchase the product again if appropriately labeled,” Mortimer Decl., Ex. B (MTD Order) at Page 30, the parties stipulated that Brenner would then file an amended complaint consolidating her claims with Angela Banegas’ substantially similar claims. Specifically, the parties agreed that, “in the interest of judicial efficiency,” the “common questions of law and fact” justified consolidating Plaintiffs’ claims in a single action that “shall bear the current caption and case number of the Brenner Action.” Mortimer Decl., Ex. E (Stipulation) at Page 66. The Court thereafter confirmed that stipulation and ordered that “[t]he Brenner Action and the Banegas Action shall be consolidated, . . . shall bear the current caption and case number of the Brenner Action . . . [and] Ms. Brenner and Ms. Banegas shall file a consolidated complaint within 14 days of the entry of this order.” Mortimer Decl., Ex. F (Order Granting Stipulation) at Page 72. In defiance of this stipulation and order, Plaintiffs instead filed this second action in Orange County Superior Court (which P&G subsequently removed) asserting identical allegations and splitting off Plaintiffs’ injunctive relief remedy, thereby completely undermining the intent to try common questions of law and fact together in a consolidated lawsuit. “When a party fails to comply with any district court order within the time period given for compliance, the district court may dismiss the action pursuant to FED. R. CIV. P. 41(b).” Yourish, 191 F.3d at 987. 3. Dismissal Under Rule 41(b) Is an Appropriate Remedy. “In determining whether to dismiss an action for failure to prosecute or failure to comply with court orders, a district court must consider several factors, namely (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 11 of 16 Page ID #:331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 alternatives.” Snowden v. Cazares, No. CV 12-3443 DSF(JC), 2016 WL 5947212, at *3 (C.D. Cal. Oct. 12, 2016), judgment entered, No. CV 12-3443 DSF(JC), 2016 WL 6024239 (C.D. Cal. Oct. 12, 2016) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), as amended (May 22, 1992) (failure to comply with court orders)). Here, all of these factors weigh in favor of dismissal. First, Plaintiffs’ apparent “remedy-splitting” strategy-including Plaintiffs’ attempt to file this duplicative action in state court-directly undercuts the public’s interest in expeditious resolution of litigation. In addressing a similar effort by a plaintiff to concurrently assert identical claims in state and federal court, Judge Fitzgerald recently held that “splitting a claim between state and federal courts would result in an incredible waste of litigation resources. The parties would presumably conduct duplicative discovery, file duplicative motions, and perhaps even hold duplicative trials on the exact same claim in two separate jurisdictions. Courts have long prohibited claim-splitting in order to avoid this result.” Cabral v. Supple, LLC, No. EDCV-12-00085-MWF-OP, 2016 WL 1180143, at *3 (C.D. Cal. Mar. 24, 2016). The same is true here, as Plaintiffs’ duplicative lawsuit would presumably require parallel rounds of discovery and separate trials based on the remedy being sought. Second, Plaintiffs’ concurrent lawsuits alleging identical claims would severely disrupt the Court’s ability to manage its docket for these same reasons. Such remedy- splitting would produce “immense inefficiencies,” see id. at *4, and has been criticized by one court as “unworkable,” Mezzadri v. Med. Depot, Inc., 113 F. Supp. 3d 1061, 1065 (S.D. Cal. 2015). Indeed, the Southern District of Florida recognized this possibility here when it initially transferred Plaintiff Banegas’ lawsuit to the Central District of California based on “the danger of inconsistent rulings, and the interests of sound judicial administration and judicial economy for the federal court system.” Mortimer Decl., Ex. D at Page 63. Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 12 of 16 Page ID #:332 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 Third, the prejudice to P&G caused by Plaintiffs’ noncompliance is particularly egregious because Plaintiffs’ remedy-splitting strategy has needlessly multiplied the proceedings and forced P&G to spend excess resources, expenses, and attorneys’ fees, in order to first remove and then respond to a second lawsuit filed by Plaintiffs just weeks after the parties agreed that consolidation would advance “interest[s] of judicial efficiency.” Mortimer Decl., Ex. E (Stipulation) at Page 66. Fourth, public policy considerations favoring disposition of cases on the merits are disserved by Plaintiffs’ litigation tactics. Indeed, dismissing this completely duplicative lawsuit would conserve judicial resources by freeing the Court to resolve other disputes. See Flynn v. State Bd. of Chiropractic Exam’rs, 418 F.2d 668, 668 (9th Cir. 1969) (“Appellant is not permitted to fragment a single cause of action and to litigate piecemeal the issues which could have been resolved in one action.”); cf. Brown v. Felsen, 442 U.S. 127, 131, (1979) (res judicata “encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes”). Furthermore, Plaintiffs’ claims are still pending in Brenner I, and may still be tested on the merits in that action. Fifth, a dismissal sanction is appropriately tailored to the nature of the violation. The only conceivable alternative-given the Article III standing problems with Plaintiffs’ prayer for injunctive relief discussed below-would be to remand this action to state court. However, the Court lacks authority to remand an action governed by the Class Action Fairness Act where the defendant is not a citizen of the forum state. See 28 U.S.C. §§ 1332(d)(3-4); Grimmelmann v. Pulte Home Corp., No. CV-08-1878-PHX-FJM, 2009 WL 1211771, at *2 (D. Ariz. May 1, 2009) (discretionary remand unavailable where defendants are not residents of forum state). Here, P&G is a citizen of Ohio, and thus the Court lacks authority to remand this action to California state court. See Dkt. No. 1-3, Brenner II Compl. ¶ 13. Furthermore, it cannot be understated that Plaintiffs themselves elected to first bring Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 13 of 16 Page ID #:333 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 their claims against P&G in federal court under CAFA. See Mortimer Decl., Ex. A at Page 7, Brenner I Compl. ¶ 11 (“This Court has original subject-matter jurisdiction over this proposed class action pursuant to . . . the provisions of the Class Action Fairness Act.”). It is a fundamental tenet that “the party who brings a suit is master to decide what law he will rely upon.” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913). Unhappy with that choice, Plaintiffs are instead attempting to artificially split off their deficient injunctive relief remedy and concurrently re-litigate it in state court. But it is axiomatic that such “artful pleading” to avoid federal jurisdiction is improper. See Madison v. Motion Picture Set Painters & Sign Writers Local 729, 132 F. Supp. 2d 1244, 1250 (C.D. Cal. 2000) (plaintiff cannot defeat federal jurisdiction over claim “by disguising or pleading it artfully as a state claim”); Herman v. Salomon Smith Barney, Inc., 266 F. Supp. 2d 1208, 1213 (S.D. Cal. 2003) (rejecting plaintiff’s “best efforts to frame this issue as one exclusively within the purview of his state [law claims]”). Plaintiffs should not now be allowed to turn their back on their chosen forum and split off remedies to be concurrently litigated in state court, particularly given that this Court lacks authority to remand. Dismissal is therefore appropriate. Accordingly, the Court should dismiss Plaintiffs’ complaint pursuant to Rule 41(b) based on Plaintiffs’ failure to comply with the Court’s prior orders. B. Plaintiffs’ Claims Also Fail Under Rule 12(b)(1) Because Plaintiffs Lack Standing to Seek Injunctive Relief. It is clear that Plaintiffs’ claims also fail for lack of standing. Under Rule 12(b)(1), “[a] suit brought by a plaintiff without Article III standing is not a ‘case or controversy,’ and an Article III federal court therefore lacks subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). A plaintiff bears the burden of establishing standing by showing: (1) a concrete injury- in-fact (2) that is fairly traceable to defendant’s challenged conduct and (3) likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 14 of 16 Page ID #:334 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 560-61 (1992). A plaintiff must demonstrate standing for each claim and each form of relief sought. Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). “[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The Court held in Brenner I that a plaintiff must demonstrate a “‘real and immediate threat of repeated injury’ to have Article III standing to seek an injunction.” Mortimer Decl., Ex. B at Page 30 (quoting Delarosa, No. SACV 10- 1569-JST CWX, 2012 WL 8716658 at *2 (Staton, J.); Bates, 511 F.3d at 985 (en banc)). As explained above, the Court instructed Plaintiff Brenner that, in order to establish Article III standing, Brenner would need to amend her complaint to allege that she would purchase P&G’s wipes again if the allegedly misleading statements are corrected. See Mortimer Decl., Ex. B at Page 30. The Court should interpret Plaintiffs’ repeated failure to assert such allegations-despite the Court’s instruction-as an acknowledgement that Plaintiffs cannot assert a threat of repeated injury. Indeed, it would defy logic (and likely flout Rule 11) for Plaintiffs to claim that they still seek to purchase wipes that they contend are harmful. Accordingly, Plaintiffs’ claims seeking injunctive relief do not allege a threat of future injury, and any amendment would be futile because Plaintiffs’ claims “‘could not possibly be cured by the allegation of other facts.’” Fid. Nat. Title Ins. Co. v. Castle, No. C 11-00896-SI, 2011 WL 6141310, at *3 (N.D. Cal. Dec. 8, 2011) (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted)).4 The Court should therefore dismiss Plaintiffs’ claims and 4 Because Plaintiffs lack standing to seek injunctive relief, they may not represent classes seeking that relief. See Hodgers-Durgin v. De la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999) (“Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief.”). Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 15 of 16 Page ID #:335 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 deny leave to amend. IV. CONCLUSION For the reasons discussed above, the Court should dismiss Plaintiffs’ claims in their entirety with prejudice. DATED: January 5, 2017 HUNTON & WILLIAMS LLP By: /s/ Ann Marie Mortimer Ann Marie Mortimer Attorneys for Defendant THE PROCTER AND GAMBLE COMPANY 35559.000025 EMF_US 63376537v2 Case 8:16-cv-02273-JLS-JCG Document 12 Filed 01/05/17 Page 16 of 16 Page ID #:336 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ANN MARIE MORTIMER IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS H un to n & W ill ia m s L LP 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L LP 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 HUNTON & WILLIAMS LLP Ann Marie Mortimer (SBN 169077) amortimer@hunton.com Kirk A. Hornbeck (SBN 241708) khornbeck@hunton.com Paul T. Moura (SBN 288664) pmoura@hunton.com 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 Attorneys for Defendant THE PROCTER AND GAMBLE COMPANY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION VERONICA BRENNER and ANGELA BANEGAS, individually and on behalf of all others similarly situated, Plaintiffs, v. PROCTER & GAMBLE CO., Defendant. Case No.: 8:16-cv-02273-JLS (JCGx) DECLARATION OF ANN MARIE MORTIMER IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS [Notice of Motion and Motion to Dismiss, Request for Judicial Notice, and [Proposed] Orders filed concurrently herewith] Date: March 10, 2017 Time: 2:30 p.m. Judge: Hon. Josephine L. Staton Crtm.: 10A Complaint Filed: November 14, 2016 Action Removed: December 29, 2016 Case 8:16-cv-02273-JLS-JCG Document 12-1 Filed 01/05/17 Page 1 of 3 Page ID #:337 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ANN MARIE MORTIMER IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS H un to n & W ill ia m s L LP 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L LP 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 DECLARATION OF ANN MARIE MORTIMER I, Ann Marie Mortimer, declare: 1. I am an attorney at law, admitted to practice before the United States District Court for the Central District of California. I am a partner with the law firm of Hunton & Williams LLP, and lead counsel of record for Defendant The Procter and Gamble Company (“P&G”) in the above-captioned litigation. I have personal knowledge of the facts stated herein, and if called upon to do so, could and would testify competently thereto. 2. Attached as Exhibit A is Plaintiffs Veronica Brenner and Angela Banegas’ (“Plaintiffs’”) First Amended Consolidated Complaint, filed as Dkt. No. 41 in Brenner et al. v. Procter & Gamble Co., Case No. 8:16-cv-01093-JLS-JCG (“Brenner I”) in the Central District of California. This document is available on Pacer through the Brenner I docket. 3. Attached as Exhibit B is the Order Granting in part and Denying in part Defendant’s Motion to Dismiss or Stay, filed as Dkt. No. 36 in Brenner I. This document is available on Pacer through the Brenner I docket. 4. Attached as Exhibit C is Ms. Banegas’ Class Action Complaint, filed as Dkt. No. 1 in Banegas v. The Procter & Gamble Company, Case No. 8:16-cv-01816- JLS-JCG (“Banegas”) in the Central District of California. This document is available on Pacer through the Banegas docket. 5. Attached as Exhibit D is the Order granting Defendant’s Motion to Transfer, filed as Dkt. No. 28 in Banegas. This document is available on Pacer through the Banegas docket. 6. Attached as Exhibit E is the parties’ Stipulation to Consolidate, filed as Dkt. No. 37 in Brenner I. This document is available on Pacer through the Brenner I docket. Page 001 Case 8:16-cv-02273-JLS-JCG Document 12-1 Filed 01/05/17 Page 2 of 3 Page ID #:338 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ANN MARIE MORTIMER IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS H un to n & W ill ia m s L LP 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L LP 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 7. Attached as Exhibit F is the Court’s Order Granting Stipulation to Consolidate, filed as Dkt. No. 39 in Brenner I. This document is available on Pacer through the Brenner I docket. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 5th day of January, 2017. /s/Ann Marie Mortimer . Ann Marie Mortimer 35559.000025 EMF_US 61841933v1 Page 002 Case 8:16-cv-02273-JLS-JCG Document 12-1 Filed 01/05/17 Page 3 of 3 Page ID #:339 EXHIBIT A Exhibit A Page 003 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 1 of 19 Page ID #:340 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BURSOR & FISHER, P.A. L. Timothy Fisher (State Bar No. 191626) Joel D. Smith (State Bar No. 244902) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-Mail: ltfisher@bursor.com jsmith@bursor.com BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 276006) 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-Mail: scott@bursor.com Counsel for Plaintiffs [Additional counsel for Plaintiffs listed on signature page] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA VERONICA BRENNER, on behalf of herself and all others similarly situated, Plaintiff, v. PROCTER & GAMBLE CO., Defendant. Case No. 8:16-1093-JLS-JCG FIRST AMENDED CONSOLIDATED COMPLAINT JURY TRIAL DEMANDED Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 1 of 18 Page ID #:347 Exhibit A Page 004 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 2 of 19 Page ID #:341 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 1 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Veronica Brenner and Angela Banegas (“Plaintiffs”), individually and on behalf of other similarly situated individuals, allege the following First Amended Consolidated Class Action Complaint against defendant Procter & Gamble Co. (“Defendant”) for making, marketing, and distributing Pampers “natural clean” Wipes, upon personal knowledge as to themselves and their own acts and upon information and belief - based upon, inter alia, the investigation made by their attorneys - as to all other matters, as follows: INTRODUCTION 1. In recent years, consumers have become significantly more aware and sensitive to the toxicity and impact of household wipes on their health, the health of their children, and the general environment. As a result, demand has increased for wipes that are naturally derived and non-toxic. 2. Defendant manufactures Pampers “natural clean” Wipes (the “Wipes”) and distributes them to retailers nationwide for sale to consumers. 3. Defendant markets the Wipes to be a natural and safer alternative to traditional wipes, including traditional Pampers-brand wipes. Unlike other varieties of Pampers-brand wipes, the Wipes are sold in a green package bearing images of flowers and leaves that prominently states “natural clean:” Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 2 of 18 Page ID #:348 Exhibit A Page 005 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 3 of 19 Page ID #:342 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 2 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Unfortunately for consumers, this is false and misleading. The Wipes are not natural because they contain an unnatural and potentially harmful ingredient called phenoxyethanol, which “can depress the central nervous system and may cause vomiting and diarrhea, which can lead to dehydration in infants” according to the Food and Drug Administration (“FDA”).1 5. That is not all. In May 2012, the Agence Nationale de Sécurité du Médicament et des Produits de Santé (French National Agency for Medicines and Health Wipes Safety) (“ANSM”) published a report recommending that phenoxyethanol should be “avoid[ed] … in cosmetic Wipes intended for the nappy area” for “infants under the age of three years” due to concerns of reproductive and developmental toxicity. 6. At the very least, it is clear than phenoxyethanol is not a natural chemical. In April 2016, the Federal Trade Commission filed complaints against two cosmetics manufacturers for representing that their products were “natural” when they contained phenoxyethanol. Both companies agreed to cease marketing the products in question as being “natural.”2 7. Defendant knows about these findings from American and French governmental agencies. And it knows that consumers use the Wipes on their infants’ nappy areas, hands, and mouths. But Defendant puts phenoxyethanol in the Wipes anyway.3 8. Defendant charges a premium for its “natural clean” Wipes, which are sold on store shelves alongside non-natural standard wipe offerings. The only reason 1 http://www.fda.gov/newsevents/newsroom/pressannouncements/ucm116900.htm 2 https://www.ftc.gov/news-events/press-releases/2016/04/four-companies-agree- stop-falsely-promoting-their-personal-care 3 The Wipes also contain other non-natural and potentially harmful ingredients, including dimethicone, and ethylhexl glycerin. Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 3 of 18 Page ID #:349 Exhibit A Page 006 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 4 of 19 Page ID #:343 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 3 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consumers purchase the Wipes over the non-natural alternatives is on account of Defendant’s representation that the Wipes are “natural.” 9. This is a proposed class action brought by Plaintiffs, on behalf of a class of similarly situated individuals, against Defendant for breach of express warranty, unjust enrichment, and violations of California and Florida consumer protection laws. JURISDICTION AND VENUE 10. This Court has personal jurisdiction over Defendant. Defendant purposefully avails itself of the California consumer market and distributes the Wipes to at least hundreds of locations within this County and thousands of retail locations throughout California, where the Wipes are purchased by thousands of consumers every day. 11. This Court has original subject-matter jurisdiction over this proposed class action pursuant to 28 U.S.C. § 1332(d), which, under the provisions of the Class Action Fairness Act (“CAFA”), explicitly provides for the original jurisdiction of the federal courts in any class action in which at least 100 members are in the proposed plaintiff class, any member of the plaintiff class is a citizen of a State different from any defendant, and the matter in controversy exceeds the sum of $5,000,000.00, exclusive of interest and costs. Plaintiffs allege that the total claims of individual members of the proposed Class (as defined herein) are well in excess of $5,000,000.00 in the aggregate, exclusive of interest and costs. 12. Venue is proper in this District under 28 U.S.C. § 1391(a). Substantial acts in furtherance of the alleged improper conduct, including the dissemination of false and misleading information regarding the nature, quality, and/or ingredients of the Wipes, occurred within this District. PARTIES 13. Plaintiff Veronica Brenner is an individual consumer who, at all times material hereto, was a citizen of California. Ms. Brenner has purchased Pampers Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 4 of 18 Page ID #:350 Exhibit A Page 007 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 5 of 19 Page ID #:344 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 4 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “natural clean” Wipes from a Target store located in Rancho Santa Margarita, California on many occasions since May 2015 for approximately $5.99. In purchasing the Wipes, Ms. Brenner relied on Defendant’s false, misleading, and deceptive representation that the Wipes provided only a “natural clean,” which was depicted on a green package alongside images and flowers and leaves. Ms. Brenner understood this representation to mean that the Wipes did not contain synthetic chemicals and, at the very least, would not contain chemicals which were potentially harmful to her child. Had Ms. Brenner known the truth that the statements she relied on were false, misleading, deceptive, and unfair; she would have not purchased the Wipes. 14. Plaintiff Angela Banegas is an individual consumer who, at all times material hereto, was a citizen of Florida. Ms. Banegas purchased the Wipes an estimated 100 times over the last twelve years at Babies “R” Us, Target, and BJ’s Wholesale Club in Broward County, Florida. In purchasing the Wipes, Ms. Banegas relied on Defendant’s false, misleading, and deceptive representation that the Wipes provided only a “natural clean,” which was depicted on a green package alongside images and flowers and leaves. Ms. Banegas understood this representation to mean that the Wipes did not contain synthetic chemicals and, at the very least, would not contain chemicals which were potentially harmful to her child. Had Ms. Banegas known the truth that the statements she relied on were false, misleading, deceptive, and unfair; she would have not purchased the Wipes. 15. Defendant Procter & Gamble Co. is incorporated in the State of Ohio, with a principal place of business at One Procter & Gamble Plaza Cincinnati, Ohio 45202. 16. Defendant manufactures, markets, and distributes the Wipes throughout California and the United States. Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 5 of 18 Page ID #:351 Exhibit A Page 008 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 6 of 19 Page ID #:345 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 5 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ALLEGATIONS 17. Plaintiffs seek to represent a class defined as all persons in the United States who purchased Pampers “natural clean” Wipes (the “Class”). Excluded from the Class are persons who made such purchases for purpose of resale. 18. Ms. Brenner also seeks to represent a Subclass of all Class Members who purchased the Wipes in California (the “California Subclass”). 19. Ms. Banegas also seeks to represent a Subclass of all Class Members who purchased the Wipes in Florida (the “Florida Subclass”). 20. At this time, Plaintiffs do not know the exact number of members of the Class and Subclasses; however, given the nature of the claims and the number of retail stores in the United States selling Defendant’s Wipes, Plaintiffs believe that Class and Subclass members are so numerous that joinder of all members is impracticable. 21. There is a well-defined community of interest in the questions of law and fact involved in this case. Questions of law and fact common to the members of the Class that predominate over questions that may affect individual Class members include: a. whether Defendant misrepresented and/or failed to disclose material facts concerning the Wipes; b. whether Defendant’s conduct was unfair and/or deceptive; c. whether Defendant has been unjustly enriched as a result of the unlawful, fraudulent, and unfair conduct alleged in this Complaint such that it would be inequitable for Defendant to retain the benefits conferred upon Defendant by Plaintiffs and the Class; d. whether Defendant breached express warranties to Plaintiffs and the Class; Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 6 of 18 Page ID #:352 Exhibit A Page 009 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 7 of 19 Page ID #:346 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 6 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e. whether Plaintiffs and the Class have sustained damages with respect to the common law claims asserted, and if so, the proper measure of their damages. 22. With respect to the California Subclass, additional questions of law and fact common to the members that predominate over questions that may affect individual members include: a. whether, in violation of California Civil Code § 1770(a)(5), Defendant represented that the Wipes had characteristics, uses, or benefits which they did not have; b. whether, in violation of California Civil Code § 1770(a)(9), Defendant represented on packaging for the Wipes that they had characteristics, ingredients, uses, or benefits that they do not have; c. whether Defendant is subject to liability for violating California’s Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750-I784; d. whether Defendant has violated California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210; e. whether Defendant has violated California’s False Advertising Law, Cal. Bus. & Prof. Code§§ 17500-17536; and f. whether the California Subclass is entitled to an award of restitution pursuant to California Business and Professions Code § 17203. 23. With respect to the Florida Subclass, additional questions of law and fact common to the members that predominate over questions that may affect individual members include whether Defendant violated the Florida Deceptive and Unfair Trade Practices Act. 24. Plaintiffs’ claims are typical of those of the Class because Plaintiffs, like all members of the Class, purchased, in a typical consumer setting, Defendant’s Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 7 of 18 Page ID #:353 Exhibit A Page 010 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 8 of 19 Page ID #:347 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 7 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wipes bearing the natural representations and Plaintiffs sustained damages from Defendant’s wrongful conduct. 25. Plaintiffs will fairly and adequately protect the interests of the Class and have retained counsel that is experienced in litigating complex class actions. Plaintiffs have no interests which conflict with those of the Class or Subclasses. 26. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 27. The prerequisites to maintaining a class action for equitable relief are met as Defendant has acted or refused to act on grounds generally applicable to the Class and the Subclasses, thereby making appropriate equitable relief with respect to the Class and the Subclasses as a whole. 28. The prosecution of separate actions by members of the Class and the Subclasses would create a risk of establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. Additionally, individual actions could be dispositive of the interests of the Class and the Subclasses even where certain Class members are not parties to such actions. CAUSES OF ACTION COUNT I (Unfair and Deceptive Acts and Practices In Violation of the California Consumers Legal Remedies Act) 29. Plaintiffs incorporate by reference and re-allege herein all paragraphs alleged above. 30. Plaintiff Brenner brings this cause of action on behalf of herself and members of the California Subclass. 31. This cause of action is brought pursuant to California’s Consumers Legal Remedies Act, Cal. Civ. Code §§ I750-I785 (the “CLRA”). Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 8 of 18 Page ID #:354 Exhibit A Page 011 Case 8:16-cv-02273-JLS-JCG Document 12-2 Filed 01/05/17 Page 9 of 19 Page ID #:3 8 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 8 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32. Ms. Brenner and the other members of the California Subclass are “consumers,” as the term is defined by California Civil Code § 1761(d), because they bought the Wipes for personal, family, or household purposes. 33. Ms. Brenner, the other members of the California Subclass, and Defendant have engaged in “transactions,” as that term is defined by California Civil Code § 1761(e). 34. The conduct alleged in this Complaint constitutes unfair methods of competition and unfair and deceptive acts and practices for the purpose of the CLRA, and the conduct was undertaken by Defendant in transactions intended to result in, and which did result in, the sale of goods to consumers. 35. As alleged more fully above, Defendant has violated the CLRA by falsely representing to Ms. Brenner and the other members of the California Subclass that the Wipes were natural when they contained unnatural and potentially harmful chemicals. 36. As a result of engaging in such conduct, Defendant has violated California Civil Code § 1770(a)(5), (a)(7) and (a)(9). 37. CLRA § 1782 NOTICE. On April 15, 2016, a CLRA demand letter was sent to Defendant via certified mail that provided notice of Defendant’s violation of the CLRA and demanded that within thirty (30) days from that date, Defendant correct, repair, replace or other rectify the unlawful, unfair, false and/or deceptive practices complained of herein. The letter also stated that if Defendant refused to do so, a complaint seeking damages in accordance with the CLRA would be filed. Defendant has failed to comply with the letter. Accordingly, pursuant to California Civil Code § 1780(a)(3), Ms. Brenner, on behalf of herself and all other members of the California Subclass, seeks compensatory damages, punitive damages, and restitution of any ill-gotten gains due to Defendant’s acts and practices. Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 9 of 18 Page ID #:355 Exhibit A Page 012 Case 8:16-cv-02273-JLS-JCG Document 2-2 Filed 1/05/17 Page 10 of 19 Page ID #:349 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 9 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNT II (Violations of California’s False Advertising Law) 38. Plaintiffs incorporate by reference and re-allege herein all paragraphs alleged above. 39. Ms. Brenner brings this cause of action on behalf of herself and members of the California Subclass. 40. As alleged more fully above, Defendant has falsely advertised the Wipes by falsely claiming that they are natural when they are not. 41. Ms. Brenner and the other members of the California Subclass have suffered injury in fact and have lost money or property as a result of Defendant’s violations of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq. COUNT III (Violation California’s Unfair Competition Law) 42. Plaintiffs incorporate by reference and re-allege herein all paragraphs alleged above. 43. Ms. Brenner brings this cause of action on behalf of herself and members of the California Subclass. 44. By committing the acts and practices alleged herein, Defendant has violated California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200-17210, as to the California Subclass, by engaging in unlawful, fraudulent, and unfair conduct. 45. Defendant has violated the UCL’s proscription against engaging in unlawful conduct as a result of: (a) its violations of the CLRA, Cal. Civ. Code § 1770(a)(5), (a)(7), and (a)(9), as alleged above; and (b) its violations of the FAL, Cal. Bus. & Prof. Code § 17500 et seq. as alleged above. Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 10 of 18 Page ID #:356 Exhibit A Page 013 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 1 of 19 Page ID #:350 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 10 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46. Defendant’s acts and practices described above also violate the UCL’s proscription against engaging in fraudulent conduct. 47. As more fully described above, Defendant’s misleading marketing, advertising, packaging, and labeling of the Wipes is likely to deceive reasonable consumers. Indeed, Ms. Brenner and the other members of the California Subclass were unquestionably deceived regarding the natural benefits of the Wipes, as Defendant’s marketing, advertising, packaging, and labeling of the Wipes misrepresent and/or omit the true facts concerning the benefits of the Wipes. Said acts are fraudulent business practices. 48. Defendant’s acts and practices described above also violate the UCL’s proscription against engaging in unfair conduct. 49. Ms. Brenner and the other California Subclass members suffered a substantial injury by virtue of buying the Wipes that they would not have purchased absent Defendant’s unlawful, fraudulent, and unfair marketing, advertising, packaging, and labeling or by virtue of paying an excessive premium price for the unlawfully, fraudulently, and unfairly marketed, advertised, packaged, and labeled Wipes. 50. There is no benefit to consumers or competition from deceptively marketing and labeling the Wipes, which purport to be natural, when this unqualified claim is false. 51. Ms. Brenner and the other California Subclass members had no way of reasonably knowing that the Wipes they purchased were not as marketed, advertised, packaged, or labeled. Thus, they could not have reasonably avoided the injury each of them suffered. 52. The gravity of the consequences of Defendant’s conduct as described above outweighs any justification, motive, or reason therefore, particularly considering the available legal alternatives which exist in the marketplace, and such Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 11 of 18 Page ID #:357 Exhibit A Page 014 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 12 of 19 Page ID #:351 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 11 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conduct is immoral, unethical, unscrupulous, offends established public policy, or is substantially injurious to Ms. Brenner and the other members of the California Subclass. 53. Defendant’s violations of the UCL continue to this day. 54. Pursuant to California Business and Professional Code § 17203, Ms. Brenner and the California Subclass seek an order of this Court that includes, but is not limited to, an order requiring Defendant to: (a) provide restitution to Ms. Brenner and the other California Subclass members; (b) disgorge all revenues obtained as a result of violations of the UCL; and (c) pay Ms. Brenner’s and the California Subclass’ attorney’s fees and costs. COUNT IV (Unjust Enrichment) 55. Plaintiffs repeat the allegations contained in the paragraphs above as if fully set forth herein. 56. Plaintiffs bring this claim individually and on behalf of the members of the Class and California and Florida Subclasses against Defendant. 57. Plaintiffs and members of the Class and Subclasses conferred benefits on Defendant by purchasing the Wipes. 58. Defendant has knowledge of these benefits. 59. Defendant has been unjustly enriched in retaining the revenues derived from Plaintiffs’ and Class and Subclass members’ purchases of the Wipes. Retention of those monies under these circumstances is unjust and inequitable because of Defendant’s misrepresentations about the Wipes, which caused injuries to Plaintiffs and members of the Class and Subclasses because they would not have purchased the Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 12 of 18 Page ID #:358 Exhibit A Page 015 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 13 of 19 Page ID #:352 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 12 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wipes if the true facts had been known. 60. Because Defendant’s retention of the non-gratuitous benefits conferred on them by Plaintiffs and members of the Class and Subclasses is unjust and inequitable, Defendant must pay restitution to Plaintiffs and members of the Class and Subclasses for their unjust enrichment, as ordered by the Court. COUNT V (Breach of Express Warranty, U.C.C. § 2-313) 57. Plaintiffs incorporate by reference and re-allege herein all paragraphs alleged above. 58. Plaintiffs bring this claim individually and on behalf of members of the Class and California and Florida Subclasses against Defendant. 59. In connection with the sale of the Wipes, Defendant issued written warranties. Defendant, as the designer, manufacturer, marketer, distributor, and/or seller expressly warranted that the Wipes were natural. 60. Defendant’s express warranties, and its affirmations of fact and promises made to Plaintiffs and the Class regarding the Wipes, became part of the basis of the bargain between Defendant and Plaintiffs and the Class, thereby creating an express warranty that the Wipes would conform to those affirmations of fact, representations, promises, and descriptions. 61. The Wipes do not conform to the express warranties because they contain ingredients that are unnatural and potentially harmful. 62. Plaintiffs and members of the Class were injured as a direct and proximate result of Defendant’s breach because (a) they would not have purchased the Wipes if they had known the truth about their unnatural and potentially harmful ingredients; (b) they paid a price premium for the Wipes based on Defendant’s express warranties; and (c) the Wipes did not have the characteristics, uses, or benefits as promised. Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 13 of 18 Page ID #:359 Exhibit A Page 016 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 14 of 19 Page ID #:353 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 13 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 63. As a result, Plaintiffs and members of the Class have been damaged either in the full amount of the purchase price of the Wipes or in the difference in value between the Wipes as warranted and the Wipes as sold. COUNT VI (Violations of Florida’s Deceptive and Unfair Trade Practices Act) (Fla. Stat. §§ 501.201, et seq.) 64. Plaintiffs incorporate by reference and re-allege herein all paragraphs alleged above. 65. Ms. Banegas brings this claim individually and on behalf of members of the Florida Subclass against Defendant. 66. The express purpose of FDUTPA is to “protect the consuming public … from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” Fla. Stat. § 501.202(2) 67. Section 501.204(1), Florida Statutes, declares as unlawful “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 68. The sale of the Wipes was a “consumer transaction” within the scope of FDUTPA. 69. Ms. Banegas is a “consumer” as defined by Section 501.23, Florida Statues. 70. The Wipes are a good within the meaning of FDUTPA and Defendant is engaged in trade or commerce within the meaning of FDUTPA. 71. Defendant’s unfair and deceptive practices are likely to mislead - and have misled - reasonable consumers, such as Ms. Banegas and members of the Florida Subclass. 72. Defendant has violated FDUTPA by engaging in the unfair and Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 14 of 18 Page ID #:360 Exhibit A Page 017 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 15 of 19 Page ID #:354 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 14 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deceptive practices described above, which offend public policies and are immoral, unethical, unscrupulous and substantially injurious to consumers. 73. Specifically, Defendant has represented that the Wipes are “natural” when, in fact, the Wipes are made with unnatural and potential harmful ingredients. 74. Ms. Banegas and Florida Subclass members have been aggrieved by Defendant’s unfair and deceptive practices in violation of FDUTPA, in that they paid a premium for Defendant’s mislabeled Wipes. 75. Reasonable consumers rely on Defendant to honestly represent the true nature of the Wipes’ ingredients. 76. Defendant has deceived reasonable consumers, like Ms. Banegas and members of the Florida Subclass, into believing that the Wipes were natural when they were not. 77. Ms. Banegas and Florida Subclass members make claims hereunder for damages, punitive damages, restitution, disgorgement, attorney’s fees and costs. PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand judgment on behalf of themselves and members of the Class and California and Florida Subclasses as follows: A. For an order certifying the nationwide Class and the Subclasses under Rule 23 of the Federal Rules of Civil Procedure and naming Plaintiffs as representative of the Class, Ms. Brenner as representative of the California Subclass, and Ms. Banegas as representative of the Florida Subclass and Plaintiffs’ attorneys as Class Counsel to represent the Class Subclass members; B. For an order declaring that Defendant’s conduct violates the statutes referenced herein; Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 15 of 18 Page ID #:361 Exhibit A Page 018 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 16 of 19 Page ID #:355 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 15 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. For an order finding in favor of Plaintiffs, the nationwide Class, and the California and Florida Subclasses on all counts asserted herein; D. For compensatory, statutory, and punitive damages in amounts to be determined by the Court and/or jury; E. For prejudgment interest on all amounts awarded; F. For an order of restitution and all other forms of equitable monetary relief; G. For an order awarding Plaintiffs and the Class and Subclasses their reasonable attorneys’ fees and expenses and costs of suit. JURY TRIAL DEMANDED Plaintiffs demand a trial by jury on all claims so triable Dated: November 9, 2016 Respectfully submitted, BURSOR & FISHER, P.A. By: /s/ Joel D. Smith Joel D. Smith L. Timothy Fisher (State Bar No. 191626) Joel D. Smith (State Bar No. 244902) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com jsmith@bursor.com BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 276006) 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-Mail: scott@bursor.com Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 16 of 18 Page ID #:362 Exhibit A Page 019 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 17 of 19 Page ID #:356 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 16 CASE NO. 8:16-1093-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BLOOD HURST & O’REARDON, LLP Timothy G. Blood (State Bar No. 149343) 701 B Street, Suite 1700 San Diego, CA 92101 Tel: 619/338-1100 619/338/1101(fax) tblood@bholaw.com THE LAW OFFICE OF JOSEPH PUSTIZZI, P.A. Joseph M. Pustizzi 3440 Hollywood Blvd., Suite 415 Hollywood, Florida 30021-6933 T: (954) 241-4244 joseph@pustizzilaw.com THE FRASER LAW FIRM, P.C. Michael T. Fraser (State Bar No. 275185) 4120 Douglas Blvd., Suite 306-262 Granite Bay, California 95746 Tel: 888/557-5115 866/212-8434 (fax) mfraser@thefraserlawfirm.net MONTELEONE & McCRORY, LLP Diane M. Dron (State Bar No. 86195) 725 Figueroa Street, Suite 3200 Los Angeles, CA 90017 Tel: 213/784-3108 213/612-9930 (fax) dron@mmlawyers.com Counsel for Plaintiffs Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 17 of 18 Page ID #:363 Exhibit A Page 020 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 18 of 19 Page ID #:357 Case 8:16-cv-01093-JLS-JCG Document 41 Filed 11/09/16 Page 18 of 18 Page ID #:364 Exhibit A Page 021 Case 8:16-cv- 2273-JLS-JCG Document 12-2 Filed 01/05/17 Page 19 of 19 Page ID #:358 EXHIBIT B Exhibit B Page 022 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 01/05/17 Page 1 of 21 Page ID #:359 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 1 Present: Honorable JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE Terry Guerrero N/A Deputy Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: Not Present Not Present PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS OR STAY (Doc. 12) Before the Court is Defendant Procter & Gamble Co.’s Motion to Dismiss or Stay. (Mot., Doc. 12.) Plaintiff Veronica Brenner filed an Opposition (Opp’n, Doc. 23), and Defendant submitted a Reply (Reply, Doc. 26). For the reasons given below, the Court GRANTS IN PART AND DENIES IN PART Defendant’s Motion. I. BACKGROUND Plaintiff seeks to represent a nationwide class and a California subclass of those who purchased Pampers “Natural Clean” Baby Wipes.1 (Compl. ¶ 3.) The individual packaging, as included below, is a greenish hue and includes stylized depictions of flowering plants, animals, and leaves: 1 When ruling on a motion to dismiss, the Court accepts as true the factual allegations in the complaint. Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 5 (2010). The Court may also consider facts subject to judicial notice on a motion to dismiss. Mullis v. United States Bankr. Ct. for Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir. 1987). Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 1 of 20 Page ID #:316 Exhibit B Page 023 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 1/ 5/17 Page 2 of 21 Page ID #:3 0 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 2 (Id.) Procter & Gamble seeks judicial notice of this packaging that the Natural Clean wipes would have been purchased in: Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 2 of 20 Page ID #:317 Exhibit B Page 024 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 1/ 5/17 Page 3 of 21 Page ID #:361 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 3 (White Decl. ¶ 2.)2 Plaintiff alleges that this packaging is “false and misleading” because the Natural Clean wipes contain “an unnatural and potentially harmful ingredient called phenoxyethanol.” (Compl. ¶ 4.) Plaintiff’s Complaint directs the Court to a Food and Drug Administration press release warning mothers not to use a particular nipple cream because it contains phenoxyethanol as well as another potentially harmful compound. (Id.) The press release describes phenoxyethanol as “a preservative that is primarily used in cosmetics and medications” that “can depress the central nervous system and may cause vomiting and diarrhea, which can lead to dehydration in infants.” Press Release, Food and Drug Administration, http://www.fda.gov/newsevents/newsroom/ pressannouncements/ucm116900.htm. Plaintiff also asserts that a May 2012 report from the French Agence Nationale de Sécurité du Médicament et des Produits de Santé cautions consumers not to use wipes containing phenoxyethanol on infants under the age of three because of concerns about the compound’s “reproductive and developmental toxicity.” (Compl. ¶ 5.) The Federal Trade Commission (FTC) has taken at least two enforcement actions within the past year against cosmetic manufacturers of “natural”-labeled products because they contained phenoxyethanol. (Compl. ¶ 6.) The FTC’s press release about the enforcement actions describes phenoxyethanol as an “artificial ingredient[].” Four 2 Defendant’s unopposed motion for judicial notice of the “Natural Clean” exterior packaging is GRANTED. While Plaintiff’s complaint focuses on the individual packaging, Plaintiff does not contest the authenticity of Defendant’s picture of the exterior packaging and it partially underlies Plaintiff’s claims. See Wright v. Gen. Mills, Inc., No. CIV.08-CV-1532L (NLS), 2009 WL 3247148, at *5 (S.D. Cal. Sept. 30, 2009) (“Because neither party contests the authenticity of the documents and they serve as the basis for plaintiff’s allegations found in the FAC, the Court takes judicial notice of the materials presented by the parties.”). Plaintiff and Defendant’s unopposed requests for judicial notice of various court and FDA documents are likewise GRANTED. See, e.g., Hansen Beverage Co. v. Innovation Ventures, LLC, No. 08-CV- 1166-IEG POR, 2009 WL 6597891, at *2 (S.D. Cal. Dec. 23, 2009) (judicial notice of page on government website); O’Hanlon v. 24 Hour Fitness USA, Inc., No. 15-CV-01821-BLF, 2016 WL 815357, at *3 (N.D. Cal. Mar. 2, 2016) (judicial notice of court documents). Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 3 of 20 Page ID #:318 Exhibit B Page 025 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 1/ 5/17 Page 4 of 21 Page ID #:362 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 4 Companies Agree to Stop Falsely Promoting Their Personal-Care Products as “All Natural” or “100% Natural”; Fifth is Charged in Commission Complaint, FTC, https://www.ftc.gov/news-events/press-releases/2016/04/four-companies-agree-stop- falsely-promoting-their-personal-care. Plaintiff has purchased Pampers Natural Clean Wipes “on many occasions since May 2015” at a Target located in Rancho Santa Margarita, California for approximately $5.99. (Compl. ¶ 13.) Plaintiff claims that she understood the Natural Clean label “to mean that the Wipes did not contain synthetic chemicals and, at the very least, would not contain chemicals [that] were potentially harmful to her child.” (Id.) The Complaint alleges claims for (1) Unfair and Deceptive Acts and Practices under the California Consumers Legal Remedies Act, (2) Violations of California’s False Advertising Law, (3) Violations of California’s Unfair Competition Law, (4) Unjust Enrichment, and (5) Breach of Express Warranty (Uniform Commercial Code § 2-213). (Id. ¶¶ 26-63.) II. LEGAL STANDARD A. Rule 12(b)(1) A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1). “Dismissal for lack of subject matter jurisdiction is appropriate if the complaint, considered in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008). When considering a Rule 12(b)(1) motion, the Court “is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “The party asserting [] subject matter jurisdiction bears the burden of proving its existence.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 4 of 20 Page ID #:319 Exhibit B Page 026 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 1/ 5/17 Page 5 of 21 Page ID #:363 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 5 B. Rule 12(b)(6) In deciding a motion to dismiss under Rule 12(b)(6), courts must accept as true all “well-pleaded factual allegations” in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A court must draw all reasonable inferences in the light most favorable to the non-moving party. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). Yet, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). III. DISCUSSION Defendant moves to dismiss Plaintiff’s case for lack of Article III standing as well as failure to state a claim. (Mem. at 6-20.) Defendant also requests a stay under the primary jurisdiction doctrine or, alternatively, until the resolution of appeals in both Brazil v. Dole Packaged Foods and Kosta v. Del Monte Foods. (Mem. at 20-25.) The Court will address each argument in turn. A. Article III Standing 1. Injury-in-Fact Defendant argues that Plaintiff has not suffered an Article III injury-in-fact because Plaintiff could not have believed that Pampers Natural Clean Wipes were free of synthetic chemicals, including one Plaintiff asserts could be potentially harmful to her child. (Mem. at 6-10; Compl. ¶ 13.) Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 5 of 20 Page ID #:320 Exhibit B Page 027 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 1/ 5/17 Page 6 of 21 Page ID #:364 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 6 For a party to have Article III standing, she must (1) have suffered an “injury in fact” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” (2) the harm must be “fairly trace[able]” to the defendants’ conduct, and (3) the Court must be able to redress the claimed injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). At each stage of a suit, the elements of Article III standing must “be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561. Thus, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice.” Id.; Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). Defendant seems to muddle statutory standing under the CLRA, UCL, and FAL, which is not a question of subject matter jurisdiction, with Article III standing. The difference is not mere semantics: Constitutional standing is properly scrutinized under Rule 12(b)(1) but statutory standing should be analyzed under Rule 12(b)(6). See Maya, 658 F.3d at 1067. Further, “[t]he jurisdictional question of [Article III] standing precedes, and does not require, analysis of the merits.” Equity Lifestyle Properties, Inc. v. Cty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2008). Which is to say, a claim may ultimately lack merit but that, by itself, does not mean that a plaintiff lacks Article III standing to bring it. Plaintiff claims that she suffered an economic loss (i.e., the multiple purchases of Pampers Natural Clean Wipes) because she thought she was purchasing a product free of “synthetic chemicals” or at least one that would “not contain chemicals [that] were potentially harmful to her child.” (Compl. ¶ 13.) Such “palpable economic injuries have long been recognized as sufficient to lay the basis for standing.” Sierra Club v. Morton, 405 U.S. 727, 733 (1972); Opperman v. Path, Inc., 87 F. Supp. 3d 1018, 1037 (N.D. Cal. 2014). Nevertheless, Defendant asserts that Plaintiff could not have suffered her purported economic injury because her prior suit against Kimberly-Clark for its Huggies “natural & pure” baby diapers and “Natural Care” wipes must have made her aware that Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 6 of 20 Page ID #:321 Exhibit B Page 028 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 1/ 5/17 Page 7 of 21 Page ID #:365 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 7 “natural”-branded baby wipes are not free of synthetic chemicals, including phenoxyethanol.3 (Mem. at 6-10.) At this stage of the proceedings, the Court cannot conclude that Plaintiff’s claim of reliance is so baseless that this Court does not have subject matter jurisdiction. Defendant’s argument implies that any reasonable consumer who was allegedly misled by a “natural” label would, without question, research every ingredient found in any similar “natural”-branded products to check for synthetic or potentially harmful chemicals before making a purchase. The Court cannot adopt such a sweeping proposition as a matter of law. Here, Plaintiff asserts in her Complaint and in an attached declaration made under penalty of perjury that she relied on Pampers’ “Natural Clean” label. (Compl. ¶ 13; Brenner Decl. ¶ 3.) As the Supreme Court has instructed, at the pleading stage, “general factual allegations of injury” may be sufficient to demonstrate standing. Lujan, 504 U.S. at 561. Plaintiff’s averred reliance is buttressed by her allegation-which the Court must accept as true on a motion to dismiss-that she has purchased the Natural Clean Wipes on multiple occasions. (Compl. ¶ 13.) And, although Plaintiff did bring suit against Kimberly-Clark for its Natural Care baby wipes, that suit concerned sodium methylparaben and methylisothiazolinone, while Plaintiff alleges here that Pampers Natural Clean Wipes include phenoxyethanol. (Kimberly-Clark Compl. ¶ 4, Exh. 2, Doc. 13; Compl. ¶ 4.) She characterizes her transition from Huggies to Pampers Natural Clean Wipes as a reasonable response after “learning that the Huggies brand failed to meet her expectations.” (Opp’n at 3-4.) While Defendant remains free to question Plaintiff’s assertion of reliance at class certification, summary judgment, or trial, the Court believes that Plaintiff’s allegations and declaration under oath are sufficient at this juncture to 3 Before filing her own suit against Kimberly-Clark for its “natural & pure” baby diapers and “Natural Care” wipes, Plaintiff sought leave to intervene in an existing putative class action, but her motion was denied. (See Proposed Class Action Complaint in Intervention, Exh.1, Doc. 13.) Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 7 of 20 Page ID #:322 Exhibit B Page 029 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 1/ 5/17 Page 8 of 21 Page ID #:366 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 8 establish subject matter jurisdiction.4 Thus, Defendant’s Motion to Dismiss Plaintiff’s claims for lack of Article III standing is DENIED. 2. Injunctive Relief Defendant also moves to dismiss Plaintiff’s request for injunctive relief because Plaintiff faces no likelihood of future injury. (Mem. at 10-11.) Plaintiff, citing Henderson v. Gruma Corp., No. CV 10-04173 AHM (AJWx), 2011 WL 1362188 (C.D. Cal. April 11, 2011), protests that adopting Defendant’s position “would ‘allow an alleged wrongdoer to evade the court’s jurisdiction so long as he does not injure the same person twice.’” (Opp’n at 16 (quoting Henderson, 2011 WL 1362188, at *7).) A plaintiff must demonstrate a “real and immediate threat of repeated injury” to have Article III standing to seek an injunction. Delarosa v. Boiron, Inc., No. SACV 10- 1569-JST CWX, 2012 WL 8716658, at *2 (C.D. Cal. Dec. 28, 2012) (Staton, J.) (quoting Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc)). To the extent that Henderson crafted a public policy exception to this Article III requirement for false advertising cases, the Court once again respectfully declines to follow its reasoning. See Delarosa, 2012 WL 8716658, at *5. California’s public policy against false advertising and the twin aims of the Erie doctrine must yield when in conflict with the constitutional restraints imposed by Article III. Id. at *3. But, in some circumstances, a plaintiff alleging false advertising claims may properly seek an injunction-most notably, if the plaintiff credibly claims she would purchase the product again if properly labeled. See id. at *5. Nothing in Plaintiff’s Complaint suggests that she would purchase the wipes again if they were properly labeled. Accordingly, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s request for injunctive relief WITH LEAVE TO AMEND. If Plaintiff, consistent with her Rule 11 obligations, would like to amend her complaint to allege that she would purchase the product again if appropriately labeled, she may do so. 4 For the same reasons, Plaintiff has plausibly asserted reliance under Rule 12(b)(6) for purposes of statutory standing. Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 8 of 20 Page ID #:323 Exhibit B Page 030 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 1/ 5/17 Page 9 of 21 Page ID #:367 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 9 B. Failure to State a Claim Defendant seeks to dismiss Plaintiff’s case for failure to state a claim, arguing that a reasonable consumer would not be misled by Pampers’ “Natural Clean” label. (Mem. at 11-16.) Separately, Defendant moves to dismiss Plaintiff’s express warranty and unjust enrichment claims. (Mem. at 18-20.) 1. Plausibility of Consumer Confusion Under the UCL, FAL, and CLRA, courts apply the “reasonable consumer” test, which requires a plaintiff to show that “members of the public are likely to be deceived.” Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008) (quotation marks omitted). Violations of these statutes, therefore, do not require a showing of fraud. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). But if a plaintiff alleges “a unified course of fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of that claim,” then the claim “sounds in fraud” and is subject to the Rule 9(b) pleading standard. Id. If a claim only partially sounds in fraud, the Court should disregard the allegations of fraud and consider whether the plaintiff states a claim. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003). Even if a complaint does not explicitly reference “fraud,” an allegation sounds in fraud if it “alleg[es] facts that necessarily constitute fraud.” Id. The Court is not convinced that Plaintiff’s Complaint wholly sounds in fraud. Only one theory, totaling two paragraphs, underlying Plaintiff’s UCL claim is clearly premised on allegedly fraudulent conduct. (See Compl. ¶¶ 43-44.) Plaintiff’s general allegation that Defendant knew about the FDA and French government findings does not “necessarily” imply that Defendant made its “natural” claim with the intent to defraud, a necessary element of fraud under California law. See Kearns, 567 F.3d at 1126 (comparing the plaintiff’s allegations to the elements of fraud under California law). This general allegation is equally consistent with an inference that Defendant disagreed with these governmental findings or found them irrelevant to its product. Thus, the Court will Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 9 of 20 Page ID #:324 Exhibit B Page 031 Case 8:16-cv-02273-JLS-JCG Document 12-3 Filed 01/05/17 Page 10 of 21 Page ID #:368 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 10 disregard the allegations of fraud and consider whether Plaintiff’s claims are plausible.5 See Vess, 317 F.3d at 1105; Williams, 552 F.3d at 938. California courts have defined the proverbial “reasonable consumer” as “the ordinary consumer acting reasonably under the circumstances” and not one who is “versed in the art of inspecting and judging a product, in the process of its preparation or manufacture.” Colgan v. Leatherman Tool Grp., Inc., 38 Cal. Rptr. 3d 36, 48 (Cal. Ct. App. 2006), as modified on denial of reh’g (Jan. 31, 2006); Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117, 1125 (C.D. Cal. 2010). Under the reasonable consumer test, not only is patently false marketing actionable, “but also advertising which[,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.” Williams, 552 F.3d at 938 (citation omitted). The Ninth Circuit has instructed that the reasonable consumer standard is usually a factual inquiry rarely suitable for resolution as a matter of law based on the pleadings. See id. at 938-39. Here, the FTC, at least in certain contexts, views phenoxyethanol to be “artificial” and thus not “natural.” See Four Companies Agree to Stop Falsely Promoting Their Personal-Care Products as “All Natural” or “100% Natural”; Fifth is Charged in Commission Complaint, FTC, https:// https://www.ftc.gov/news-events/press- releases/2016/04/four-companies-agree-stop-falsely-promoting-their-personal-care. While this is not dispositive evidence of what reasonable consumers would believe, it raises a plausible inference that a significant portion of consumers could believe that Defendant’s “Natural Clean” claim was false or misleading. The Pampers Natural Clean 5 Even if Plaintiff’s CLRA, UCL, and FAL claims are analyzed under the heightened Rule 9(b) pleading standard, Plaintiff sufficiently alleges “‘the who, what, when, where, and how’ of the misconduct charged,” Vess, 317 F.3d at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)), and “set[s] forth an explanation as to why [a] statement or omission complained of was false or misleading,” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc) (superseded by statute on other grounds). Plaintiff alleges she purchased Pampers’ Natural Clean Wipes multiple times beginning in May 2015 from a particular Target in Rancho Santa Margarita and includes a picture of the individual packaging. See Vess, 317 F.3d at 1106. Further, Plaintiff points to the FDA, French government, and FTC findings to provide a basis for why she believes the Natural Clean label is false or misleading. See In re GlenFed, Inc. Sec. Litig., 42 F.3d at 1548. Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 10 of 20 Page ID #:325 Exhibit B Page 032 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 11 of 21 Page ID #:369 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 11 product packaging-which includes the phrase “Natural Clean” in large, greenish text against a green background and individual green packages labeled “Natural Clean” with depictions of flowering plants-reinforces the inference that a consumer could be misled. Even if a reasonable consumer would not believe that a “Natural Clean” baby wipe contained no synthetic ingredients, it is plausible that a reasonable consumer would believe such a product did not contain any potentially harmful chemicals. Plaintiff’s references to advisories by the FDA and Agence Nationale de Sécurité du Médicament et des Produits de Santé cautioning-at least in certain circumstances-against using products containing phenoxyethanol on infants support her assertion that phenoxyethanol is “potentially harmful.” (Compl. ¶ 4.) The bulleted text below the “Natural Clean” label on the wipes’ exterior packaging does not render Plaintiff’s assertion of consumer deception implausible. This text, which is in a much smaller font than the “Natural Clean” label, merely states in three languages “unscented with a touch of aloe.” In Jou v. Kimberly-Clark Corp., the court concluded that it was plausible that the “pure & natural” label on Huggies diapers was misleading, even though the label appeared next to a list of features of the diaper (specifically, “Soft Organic Cotton,” “Hypoallergenic,” and “Aloe & Vitamin E”). No. C-13-03075 JSC, 2013 WL 6491158, at *8 (N.D. Cal. Dec. 10, 2013); (Jou Compl. ¶ 23, Exh. 1, Doc. 13.) Like in Jou, the bulleted text on the Natural Clean wipes, when viewed in combination with the other packaging features, does not conclusively demonstrate, as Defendant insists, that a reasonable consumer would expect that “Natural Clean” means only that the product is “unscented with a touch of aloe.” (Reply at 11-12.) Rather, even with the bulleted text, a consumer could plausibly believe that “Natural Clean” wipes do not contain any synthetic compounds, especially ones that are potentially harmful to infants. Defendant asks this Court to find as a matter of law that a “natural” claim, unless modified by “100%” or “all,” cannot plausibly be deceptive. (Mem. at 13 & n.4.) While the Court agrees that any qualifier to a “natural” label is certainly relevant to determining whether the claim could lead to consumer confusion, the Court finds no basis in the case law to establish a bright-line rule holding that “natural” claims without “100%” or “all” can never be actionable. See, e.g., Jou v. Kimberly-Clark Corp., No. C-13-03075 JSC, 2013 WL 6491158, at *6 (N.D. Cal. Dec. 10, 2013) (denying motion to dismiss because “Natural Care” baby wipes label could confuse a reasonable consumer); Claudia Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 11 of 20 Page ID #:326 Exhibit B Page 033 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 1 of 21 Page ID #:370 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 12 Morales, et al. v. Kraft Foods Grp., Inc., et al., No. CV14-04387 JAK (PJWx), Doc. 35, at * 8-11 (C.D. Cal. Oct. 23, 2014) (holding that “Natural Cheese” label, even without “100%” or “all” modifier, could plausibly be misleading); Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F. Supp. 3d 467, 480 (S.D.N.Y. 2014) (denying motion to dismiss as a reasonable consumer could be confused by “Active Naturals” claim); Paulino v. Conopco, Inc., No. 14-CV-5145 (JG) (RML), 2015 WL 4895234, at *9 (E.D.N.Y. Aug. 17, 2015) (denying motion to dismiss CLRA, UCL, and FAL claims because “Suave NATURALS” label could confuse consumers). Instead, a court’s inquiry should be context-specific. In this case-given the FTC enforcement actions, FDA and French government advisories, and Natural Clean brand packaging-Plaintiff raises a plausible inference that the “Natural Clean” label is misleading.6 Finally, in an argument that approaches the philosophical, Defendant asserts that its “Natural Clean” label is not actionable because “natural” has no generally-accepted meaning. (Mem. at 11-16.) Pointing to the fifteen definitions of natural in Merriam- Webster’s Collegiate Dictionary, Defendant asserts that the “possible definitions of ‘natural clean’ are abundant.” (Mem. at 14-15.) Given these multiple definitions, as well as the FDA and FTC’s failure to define the term, Defendant argues that Plaintiff cannot state a claim. (Mem. at 11-16.) The Court, however, finds Defendant’s argument unavailing. 6 Defendant’s brief argument that its “Natural Clean” label cannot be actionable because it is a trade name lacks merit. (Mem. at 18; Reply 12-13.) Unless federal law preempts the UCL, FAL, and CLRA (which Defendant does not assert), a label that reasonably relays a factual claim is not somehow immune from California’s laws against false advertising merely because it also happens to be a trade name. See, e.g., Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 589 (3d Cir. 2002) (concluding that the product name “Mylanta Night Time Strength” was actionable as false advertising under the Lanham Act); Paulino v. Conopco, Inc., No. 14-CV-5145 JG RML, 2015 WL 4895234, at *8 (E.D.N.Y. Aug. 17, 2015) (denying motion to dismiss plaintiff’s claims under the UCL, CLRA, and FAL alleging that “Suave NATURALS” brand name was deceptive); In re 5-hour ENERGY Mktg. & Sales Practices Litig., No. MDL 13-2438 PSG PLAX, 2014 WL 5311272, at *18 (C.D. Cal. Sept. 4, 2014). Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 12 of 20 Page ID #:327 Exhibit B Page 034 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 13 of 21 Page ID #:371 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 13 Most of the fifteen dictionary definitions of “natural” included in Merriam- Webster’s Collegiate Dictionary are clearly inapplicable to Pampers’ “Natural Clean” claim. Defendant surely is not, for example, claiming that its wipes are “based on an inherent sense of right and wrong” (as in “natural justice”) or “relat[ed] by actual consanguinity as distinguished from adoption” (as in “natural parents”). Merriam- Webster’s Dictionary 826 (11th ed. 2003). On the other hand, one of the more pertinent definitions of natural in Merriam-Webster’s Dictionary is “existing in or produced by nature : not artificial.” Id. This definition comports with Plaintiff’s allegation that a reasonable consumer would interpret Pampers’ Natural Clean claim to mean the product included no synthetic ingredients or at least no potentially harmful ones. (Compl. ¶ 13.) Nor does the absence of an FDA or FTC definition of “natural” make it implausible that a reasonable consumer could be misled by Defendant’s “Natural Clean” claim. The FDA and FTC have indicated that their reticence to define the term “natural” should not be construed as endorsing its usage when the term would be misleading. For instance, an FDA FAQ for “Small Businesses and Homemade Cosmetics” provides that, although “FDA has not defined the term ‘natural’” when used in cosmetics, “[t]he same requirements for safety and labeling apply to all cosmetics . . . . includ[ing] . . . making sure that all your labeling is truthful and not misleading.” Small Businesses & Homemade Cosmetics: Fact Sheet, FDA, http://www.fda.gov/Cosmetics/ ResourcesForYou/Industry/ucm388736.htm. And, while the FTC in 2010 declined to establish generalized guidance on the use of “natural” claims, the Commission cautioned: Marketers that are using terms such as natural must ensure that they can substantiate whatever claims they are conveying to reasonable consumers. If reasonable consumers could interpret a natural claim as representing that a product contains no artificial ingredients, then the marketer must be able to substantiate that fact. Guides for the Use of Environmental Marketing Claims, 75 FR 63552-01, 63586 (Oct. 15, 2010).7 Of particular relevance to this case, the FTC has taken at least two 7 In explaining its decision not to adopt a generalized guideline for use of “natural” claims, the FTC noted that “natural may be used in numerous contexts and may convey different Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 13 of 20 Page ID #:328 Exhibit B Page 035 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 14 of 21 Page ID #:372 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 14 enforcement actions against cosmetic manufacturers for their use of “natural” claims because the product contained phenoxyethanol. (Compl. ¶ 6.) In sum, Plaintiff’s allegations raise a plausible inference that a consumer could find Defendant’s Natural Clean label misleading. Because this is sufficient under Rule 12(b)(6), Defendant’s Motion to Dismiss Plaintiff’s claims for failure to state a claim is DENIED. 2. Express Warranty Claim Defendant also moves to dismiss Plaintiff’s express warranty claim, arguing that “[c]ourts routinely reject claims for breach of express warranty based on affirmations that the product is ‘natural.’” (Mem. at 18-19.) An express warranty claim requires the defendant to have “(1) made an affirmation of fact or promise or provided a description of its goods; (2) the promise or description formed part of the basis of the bargain; (3) the express warranty was breached; and (4) the breach caused injury to the plaintiff.” Asghari v. Volkswagen Grp. of Am., Inc., 42 F. Supp. 3d 1306, 1333 (C.D. Cal. 2013) (citation omitted). In the few cases that Defendant cites where a “natural”-related express warranty claim was dismissed, the “natural” label was literally true or the plaintiff had brought suit under the more-demanding Magnuson-Moss Warranty Act. See Viggiano v. Hansen Nat. Corp., 944 F. Supp. 2d 877, 893-94 (C.D. Cal. 2013) (dismissing express warranty claim because “all natural flavors” label was literally true); McKinnis v. Kellogg USA, No. CV07-2611-ABC (RCx), 2007 WL 4766060, at *5 (C.D. Cal. Sept. 19, 2007) (finding that “Natural Fruit Flavors” claim was an “entirely accurate statement”); Astiana v. Dreyer’s Grand Ice Cream, Inc., No. C-11-2910 EMC, 2012 WL 2990766, at *4 (N.D. Cal. July 20, 2012) (Magnuson-Moss Warranty Act claim); Hairston v. S. Beach Beverage Co., Inc., 12-cv-1429-JFW, 2012 WL 1893818, at *5-6 (C.D. Cal. May 18, 2012) (Magnuson-Moss Warranty Act claim). More often, courts have held that meanings depending on that context.” Guides for the Use of Environmental Marketing Claims, 75 FR 63552-01, 63586 (Oct. 15, 2010). This statement does not suggest that “natural” lacks a commonly-held meaning when used in any particular context, but rather that “natural” may not have any universal meaning across product categories. Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 14 of 20 Page ID #:329 Exhibit B Page 036 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 15 of 21 Page ID #:373 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 15 “natural” labels can constitute express warranties. See, e.g., Aguiar v. Merisant Co., No. 14-00670-RGK-AGR, 2014 WL 6492220, at *9 (C.D. Cal. Mar. 24, 2014); Vicuna v. Alexia Foods, Inc., No. C 11-6119 (PJH), 2012 WL 1497507, at *2 (N.D. Cal. Apr. 27, 2012); Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1195 (N.D. Cal. 2014); Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-CV-05222-VC, 2014 WL 2451290, at *6 (N.D. Cal. June 2, 2014). Here, Plaintiff has plausibly alleged that the “Natural Clean” label is false and has otherwise adequately plead the elements of an express warranty claim (Compl. ¶¶ 57-63), so Defendant’s Motion to Dismiss Plaintiff’s express warranty claim is DENIED. 3. Unjust Enrichment Claim Defendant moves to dismiss Plaintiff’s unjust enrichment claim because no such claim exists under California law and Plaintiff cannot plausibly allege a quasi-contract claim. (Mem. at 19-20.) In Astiana v. Hain Celestial Grp., Inc., the Ninth Circuit “part[ed] ways” with the district court, essentially finding it improper to dismiss the plaintiff’s “unjust enrichment” cause of action when the claim, in all but its caption, was a proper quasi-contract claim. See 783 F.3d 753, 762 (9th Cir. 2015). Because, for the reasons articulated extensively already, Plaintiff plausibly alleges that a consumer could have been enticed to purchase Defendant’s product based on the allegedly misleading label, and a plaintiff may plead claims in the alternative, Plaintiff states a quasi-contract claim. See Fed. R. Civ. P. 8(d)(2); Astiana, 783 F.3d at 762. Defendant’s Motion to Dismiss Plaintiff’s claim for “unjust enrichment” is accordingly DENIED. C. Request for a Stay Defendant requests a stay of this case under the primary jurisdiction doctrine or until the Ninth Circuit resolves pending appeals in Brazil v. Dole Packaged Foods and Kosta v. Del Monte Foods. (Mem. at 20-25.) Plaintiff opposes a stay on either ground, and, at minimum, requests that written discovery proceed. (Opp’n 17-25.) For the reasons stated below, the Court denies Defendant’s request. Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 15 of 20 Page ID #:330 Exhibit B Page 037 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 16 of 21 Page ID #:374 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 16 1. Primary Jurisdiction Doctrine Defendant requests a stay of this suit under the primary jurisdiction doctrine until the FDA releases guidance regulating “natural” labels on cosmetics. (Mem. at 20-22.) The Court finds it unwarranted to indefinitely stay this action pending guidance that the FDA has expressed no immediate interest in issuing. Under the primary jurisdiction doctrine, a court may stay a case so that an agency tasked with regulating the relevant industry may resolve related technical or policy-laden questions that are uniquely within its expertise. Astiana, 783 F.3d at 760. In the Ninth Circuit, “‘efficiency’ is the ‘deciding factor’ in whether to invoke primary jurisdiction.” Id. (citations omitted). Thus, even if a stay under the primary jurisdiction doctrine would otherwise be warranted, a court should not do so if “the agency is aware of but has expressed no interest in the subject matter of the litigation” or “a referral to the agency would significantly postpone a ruling that a court is otherwise competent to make.” Id. at 761. In Astiana, the Ninth Circuit concluded that, based on the record before it, the district court did not err in invoking the primary jurisdiction doctrine to stay a suit relating to the use of “natural” labels on various cosmetics. Id. Yet, because the district court dismissed the plaintiff’s suit (instead of staying the case), the Ninth Circuit reversed the district court’s order. Id. at 761-62. The Ninth Circuit noted that the district court “may consider” on remand whether further developments “demonstrate that another referral to the agency would be futile.” Id. at 762. On remand, the district court declined to reinvoke the primary jurisdiction doctrine, finding that the FDA is “aware of but has expressed no interest in the subject matter of the litigation.” Astiana v. Hain Celestial Grp., Inc., No. 11-CV-6342-PJH, at *2-3 (Oct. 9, 2015). The district court relied on a letter dated March 7, 2013 by the Director of the FDA Office of Cosmetics and Colors, which “decline[d] to make a determination regarding the term ‘natural’ in cosmetic labeling” and indicated that “proceedings to define ‘natural’ do not fit within our current health and safety priorities.” (Letter, Exh. 4, Doc. 24.) This Court agrees with the district court in Astiana that, at this point, a stay under the primary jurisdiction doctrine would be improper because the FDA is aware of the controversy surrounding “natural”-branded cosmetics but has chosen not to prioritize the Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 16 of 20 Page ID #:331 Exhibit B Page 038 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 17 of 21 Page ID #:375 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 17 issuance of any definition of the term. Indeed, the Director of the FDA Office of Cosmetics and Colors stated as much in her March 7, 2013 letter. (Letter, Exh. 4, Doc 24.) And, in an FAQ available on the FDA’s webpage, the FDA reiterates that the agency “has not defined the term ‘natural’ and has not established a regulatory definition for this term in cosmetic labeling.” Small Businesses & Homemade Cosmetics: Fact Sheet, FDA, http://www.fda.gov/Cosmetics/ResourcesForYou/Industry/ucm388736.htm. This conscious inaction by the FDA demonstrates that holding this case in abeyance indefinitely would not serve the efficiency principle underling the primary jurisdiction doctrine. See Astiana, 783 F.3d at 760-61. Defendant’s reference to a FDA Request for Information issued on November 12, 2015 does not change this analysis. That request for information was specifically limited to “the use of the term ‘natural’ in the labeling of human food products,” Use of the Term “Natural” in the Labeling of Human Food Products; Request for Information and Comments, 80 FR 69905-01, 69908 (Nov. 12, 2015), and does not suggest that the agency will also take immediate action to define the proper scope of “natural” claims relating to cosmetics. For the same reason, Defendant’s references to decisions staying cases related to “natural” food claims pending the outcome of these FDA proceedings are of little relevance to this suit about Pampers’ Natural Clean baby wipes. (See Mem. at 20-22.) Defendant has not provided a single case where a district court in this Circuit stayed a case relating to a “natural” label on a cosmetic under the primary jurisdiction doctrine pending the outcome of these FDA proceedings. If the FDA changes course and decides to prioritize the release of guidance on the use of “natural” claims in cosmetics, Defendant may renew its motion. But the Court cannot hold this suit in perpetual limbo on the off chance that the FDA will elect to regulate “natural” claims in cosmetics. Accordingly, Defendant’s request for a stay under the primary jurisdiction doctrine is DENIED. 2. Stay Pending the Resolution of Brazil v. Dole Packaged Foods and Kosta v. Del Monte Foods Defendant also seeks to stay this suit pending the outcome of two cases on appeal to the Ninth Circuit: Brazil v. Dole Packaged Foods and Kosta v. Del Monte Foods. Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 17 of 20 Page ID #:332 Exhibit B Page 039 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 18 of 21 Page ID #:376 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 18 (Mem. at 22-25.) These cases, Defendant argues, “will clarify Ninth Circuit law on a number of issues that, in this case, would be material to a motion to dismiss, class certification, and summary judgment.” (Mem. at 24.) On the scheduled hearing date for this Motion, the Ninth Circuit issued an unpublished decision in Brazil v. Dole Packaged Foods that provides little guidance for this suit about baby wipes. See generally Brazil v. Dole Packaged Foods, No. 14-17480, 2016 WL 5539863 (9th Cir. Sept. 30, 2016). For the reasons elaborated below, because the Court is unpersuaded that any decision in Kosta would substantially affect discovery in this suit, the Court denies Defendant’s request for a stay. When determining whether to hold a case in abeyance, the Ninth Circuit in CMAX, Inc. v. Hall identified three salient considerations: [1] the possible damage which may result from the granting of a stay, [2] the hardship or inequity which a party may suffer in being required to go forward, and [3] the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. 300 F.2d 265, 268 (9th Cir. 1962). The party seeking a stay bears the burden of demonstrating the circumstances weigh in favor of holding a case in abeyance. See Nken v. Holder, 556 U.S. 418, 433-34 (2009). Under the first factor, the Court begins with the reasonable assumption that a stay - while not “invariably improper or inappropriate” - “inherently increases the risk that witnesses’ memories will fade and evidence will become stale.” Blue Cross & Blue Shield of Alabama v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 724 (9th Cir. 2007) (quoting Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002)). Defendant, therefore, bears the burden of demonstrating that the other factors demonstrate a “clear case of hardship or inequity.” See Landis v. N. Am. Co., 299 U.S. 248, 255 (1936). Considering this case stands at the threshold of litigation, Defendant’s assertion that declining to grant this stay risks unnecessary duplication is unconvincing. Four of the five cases that Defendant references in which courts granted stays were unopposed, at much more advanced stages, or both. See Wilson v. Frito-Lay N. Am., Inc., No. 12-CV- Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 18 of 20 Page ID #:333 Exhibit B Page 040 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 19 of 21 Page ID #:377 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 19 1586 SC, 2015 WL 4451424, at *1 (N.D. Cal. July 20, 2015) (granting plaintiffs’ request for a stay while summary judgment motion remained pending); Thomas v. Costco Wholesale Corp., No. 12-CV-02908-BLF, 2015 WL 6674696, at *1, *3 (N.D. Cal. Nov. 2, 2015) (granting unopposed motion to stay after partial summary judgment was denied and class certification decision was approaching); Park v. Welch Foods Inc., 5:12-cv- 06449-PSG, ECF 77 (N.D. Cal. Oct. 22, 2015) (granting joint motion to stay case after class certification and summary judgment were “full briefed”); Astiana v. Hain Celestial Grp., Inc., No. 11-CV-6342-PJH, at *3 (Oct. 9, 2015) (granting unopposed motion to stay).8 While briefing in this case would potentially be affected if the Ninth Circuit were to issue a path-breaking opinion in Kosta, Defendant fails to articulate what specifically could change about the parties’ anticipated discovery. More importantly, the prospect that Kosta will result in a dramatic shift in the applicable legal framework for this case is entirely speculative. The Kosta plaintiffs’ proposed class definition covered all purchasers of any SunFresh, FruitNatural, and Del Monte canned tomato product and alleged a broad array of largely unrelated misrepresentations, such as the manufacturer’s claims that its products “contain antioxidants,” are a “natural source” of lycopene, must be refrigerated, and contain no artificial flavors or preservatives. Kosta v. Del Monte Foods, Inc., 308 F.R.D. 217, 220 (N.D. Cal. 2015); see Martinelli v. Johnson & Johnson, No. 2:15-CV-01733-MCE-EFB, 2016 WL 521690, at *2 (E.D. Cal. Feb. 10, 2016). The district court’s ascertainability analysis rested on the sweeping scope of this proposed class. See Kosta, 308 F.R.D. at 229. Given the facts and posture of Kosta, it is unlikely that a decision in that case will change the legal framework for this suit. Defendant also alludes to the materiality and reliance questions posed in Kosta. (Reply at 19-20.) The briefing on these issues in Kosta focuses on the interaction between one prong of the Hinojos test for establishing materiality and specific prohibitions in California’s Sherman Law. See Kosta, Brief of Plaintiff-Appellant, 2016 8 The fifth case Defendant cites is also distinguishable because the plaintiff there did not suggest that granting a stay would harm her and was suing over a wide array of products. See Romero v. Flowers Bakeries, LLC, No. 14-CV-05189-BLF, 2016 WL 469370, at *13 (N.D. Cal. Feb. 8, 2016). Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 19 of 20 Page ID #:334 Exhibit B Page 041 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 20 of 21 Page ID #:378 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 16-1093-JLS (JCGx) Date: October 20, 2016 Title: Veronica Brenner v. Procter & Gamble Co. ______________________________________________________________________________ CIVIL MINUTES - GENERAL 20 WL 552862, at *25-27; Kosta, Brief of Defendant-Appellee, 2016 WL 552862, at *37- 38; see also Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013), as amended on denial of reh’g and reh’g en banc (July 8, 2013). Considering the Sherman Law provisions referenced in Kosta all concern food labeling, the direct relevance of this issue to this suit about baby wipes is hardly obvious. In any event, Defendant has not articulated how a potential Ninth Circuit decision on this “unlawful product” theory for establishing materiality could substantially affect discovery in this suit. While the Court acknowledges that the “Issues Presented” in Kosta raise the weighty question of class ascertainability, the Court believes that the parties can conduct discovery while Kosta remains pending without considerable risk of hardship or inequity. See Martinelli, 2016 WL 521690, at *2 (refusing to grant a stay in a natural case because the potential for Kosta to affect that case was “simply too speculative to justify staying this action”). Defendant’s request for a stay, therefore, is DENIED. IV. CONCLUSION For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART Defendant’s Motion to Dismiss or Stay. Plaintiff is granted leave to file a First Amended Complaint within 21 days of this Order. Initials of Preparer: tg Case 8:16-cv-01093-JLS-JCG Document 36 Filed 10/20/16 Page 20 of 20 Page ID #:335 Exhibit B Page 042 Case 8:16-cv- 2273-JLS-JCG Document 12-3 Filed 1/05/17 Page 21 of 21 Page ID #:379 EXHIBIT C Exhibit C Page 043 Case 8:16-cv-02273-JLS-JCG Document 12-4 Filed 01/05/17 Page 1 of 17 Page ID #:380 CLASS ACTION COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION Civil Case No. ANGELA BANEGAS, as an individual and on behalf of all others similarly situated, Plaintiff, vs. THE PROCTER & GAMBLE COMPANY, an Ohio corporation, Defendant. CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 1 of 16 Page ID #:1 Exhibit C Page 044 Case 8:16-cv 02273-JLS-JCG Document 12-4 il 1/ 5/ 7 2 f 7 I :381 CLASS ACTION COMPLAINT 1 Plaintiff, ANGELA BANEGAS (“Plaintiff”), individually, and on behalf of all others similarly situated, by and through her undersigned counsel, and pursuant to the Federal Rules of Civil Procedure, hereby files this Class Action Complaint, and alleges against Defendant, THE PROCTER & GAMBLE COMPANY (“P&G” or “Defendant”), as follows: INTRODUCTION 1. P&G prominently labels, markets and advertises its Pampers baby wipes (“Pampers Wipes” or the “Product”) as “natural.” This claim is false, deceptive and likely to mislead a reasonable person because Pampers Wipes contains chemicals that are synthetic, not natural. These chemicals can also cause skin irritation and other problems. Parents seeking natural products for their babies are not receiving the product promised them, but instead are purchasing a misbranded product containing synthetic chemicals. These chemicals include dimethicone, phenoxyethanol, and ethyhexyl glycerin. 2. The packaging for Pampers Wipes is materially the same for all types of packaging, and appears as follows: Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 2 of 16 Page ID #:2 Exhibit C Page 045 Case 8:16-cv 02273-JLS-JCG Document 12-4 il 1/ 5/ 7 3 f 7 I :382 CLASS ACTION COMPLAINT 2 3. Plaintiff relied on P&G’s representation that Pampers Wipes are in fact “natural” and that representation was material to her and other Class members’ decision to purchase the Product. In fact, “natural” and “clean” are central to the marketing and sale of the Product. 4. Defendant’s representation that the Product is “natural” is false, misleading, and likely to deceive reasonable consumers. 5. Plaintiff brings this class action to secure, among other things, damages and equitable relief, declaratory relief, restitution, and damages for a Class of similarly situated nationwide purchasers against P&G, for: (1) violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), FLA. STAT. §§ 501.201, et seq.; (2) Breach of Express Warranty; and (3) Unjust Enrichment (alleged in the alternative to Plaintiff’s other causes of action). Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 3 of 16 Page ID #:3 Exhibit C Page 046 Case 8:16-cv 02273-JLS-JCG Document 12-4 il 1/ 5/ 7 4 f 7 I : 83 CLASS ACTION COMPLAINT 3 JURISDICTION AND VENUE 6. This Court has subject-matter jurisdiction over the instant lawsuit pursuant to the Class Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005). 7. Pursuant to 28 U.S.C. § 1332(d)(2)(A), the total claims of the individual members of the Class are in excess of $5,000,000.00, in the aggregate, exclusive of interest and costs, there are in excess of 100 class members and as set forth below, diversity of citizenship exists under CAFA because Plaintiff is a citizen of Florida, and Defendant is an Ohio corporation with its principal place of business located in Ohio. 8. This Court has personal jurisdiction over P&G because P&G is authorized to conduct business and does conduct business in Florida. Defendant marketed, promoted, distributed, and sold the Pampers Wipes in Florida, and continues to do so, and has sufficient minimum contacts with this State and/or has sufficiently availed itself of the markets in this State through its promotion, sales, distribution, and marketing, to render the exercise of jurisdiction by this Court permissible. 9. Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial part of the events and transactions occurred in this district, Defendant conducts business in, and may be found in, this district, and Plaintiff purchased the Product in this district. PARTIES 10. Plaintiff, ANGELA BANEGAS, is an individual more than 18 years old and is a citizen of Florida, who resides in Broward County, and who purchased Pampers Wipes in Broward County, Florida. 11. Defendant, THE PROCTER & GAMBLE COMPANY, marketed and sold Pampers Wipes in this jurisdiction and in this Judicial District. Defendant is an Ohio Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 4 of 16 Page ID #:4 Exhibit C Page 047 Case 8:16-cv 02273-JLS-JCG Document 12-4 il 1/ 5/ 7 5 f 7 I :384 CLASS ACTION COMPLAINT 4 corporation, with its principal place of business located in Ohio. 12. The Product’s advertising relied upon by Plaintiff was prepared and/or approved by P&G and its agents, and was disseminated by P&G and its agents through advertising containing the misrepresentations alleged herein. 13. P&G is the owner, manufacturer, and distributor of the Product, and is the company that created and/or authorized the unlawful, fraudulent, unfair, misleading, and/or deceptive advertising for the Product. FACTUAL ALLEGATIONS 14. There is a strong consumer demand for the products that are natural and free of artificial and synthetic chemicals. This is especially true of products intended to be used on children and infants, such as the baby wipes that are the subject of this Complaint. 15. P&G exploited this consumer demand when it marketed, labeled and sold its wipes as “natural.” And it has succeeded. Pampers Wipes is one of the world’s leading baby wipes. 16. However, Pampers Wipes is not natural. The Product contains dimethicone, phenoxyethanol, and ethyhexyl glycerin, which are manufactured chemicals not occurring in nature. Moreover, the Food and Drug Administration has determined that phenoxyethanol can depress the central nervous system and may cause vomiting and diarrhea, which can lead to dehydration in infants. See http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ 2008/ucm116900.htm. Dimethicone is a synthetic chemical of the silicone family that may cause allergic reactions including rash, itching, swelling and difficulty breathing. It is created using petrochemically-derived methanol, a toxic alcohol. The processing can create environmental hazards such as hydrochloric acid. It may react with other chemicals on the skin Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 5 of 16 Page ID #:5 Exhibit C Page 048 Case 8:16-cv 02273-JLS-JCG Document 12-4 il 1/ 5/ 7 6 f 7 I :385 CLASS ACTION COMPLAINT 5 and it has been restricted by the Cosmetic Ingredient Review Assessments Board. Ethylhexyl glycerin is an unnatural chemical preservative. It can irritate the skin and eyes. 17. Pampers Wipes also contains several other unnatural chemicals, such as: disodium EDTA, PEG 40 hydrogenated castor oil, sodium benzoate, and sodium citrate. 18. P&G’s “natural” claim, which is uniformly, consistently and prominently displayed on the front of each individual package of its Pampers Wipes, is untrue, misleading, and likely to deceive reasonable consumers, including Plaintiff and members of the Class. Reasonable consumers rely on label representations and information in making purchase decisions. 19. P&G unlawfully markets, advertises, sells, and distributes the Product to nationwide purchasers in grocery stores, food chains, mass discounters, mass merchandisers, club stores, convenience stores, drug stores and/or dollar stores as its being “natural” when it is not. 20. P&G’s representation that the Product is “natural” is a material representation because consumers attach importance to “natural” claims when making a purchasing decision, particularly when buying products to use on their babies and children. In fact, the Federal Trade Commission has filed complaints against companies for deceptively advertising their products as natural when the products contain artificial ingredients such as dimethicone and phenoxyethanol. 21. P&G markets and advertises Pampers Wipes as “natural” in order to increase sales. P&G knows that its claim that the Product is “natural” is material to consumers. P&G made the deceptive representations regarding the Product with the intent that purchasers would rely on its representation and to induce Plaintiff’s and the other Class members’ purchase of the Product. Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 6 of 16 Page ID #:6 Exhibit C Page 049 Case 8:16-cv 02273-JLS-JCG Document 12-4 il 1/ 5/ 7 7 f 7 I :386 CLASS ACTION COMPLAINT 6 22. In reliance on the representation that the Product was “natural” Plaintiff and other Class members purchased the Product. Plaintiff and other Class members would not have purchased Pampers Wipes or would not have paid the price charged if not for the representation that the Product was “natural.” Plaintiff and other Class members paid for a product that does not have the features it was represented to have. 23. Accordingly, Plaintiff and the other Class members have suffered injury in fact and lost money or property as a result of Defendant’s wrongful conduct. Plaintiff Angela Banegas 24. Plaintiff Angela Banegas has purchased Pampers Wipes an estimated 100 times over the last twelve years. She purchased Pampers Wipes in Broward County, Florida, where she resides, from a number of retail stores, including Babies “R” Us, Inc., Target Corp. and BJ’s Wholesale Club, Inc. 25. Plaintiff purchased Pampers Wipes to use on her three children, the youngest of which is now 16 months old. Plaintiff uses the wipes on her children’s skin, including to wipe their mouth, nose and around their eyes. Plaintiff read the label prior to purchase and bought Pampers Wipes in reliance on P&G’s representation that the Product was “natural.” 26. If Plaintiff had known that Pampers Wipes is not “natural” but contains synthetic and/or artificial chemicals, she would not have purchased the Product or would not have purchased the Product at the price paid. Plaintiff bought and paid for a product that does not have the features it was represented to have. 27. Plaintiff has been damaged and suffered economic loss by paying for a Product that was not sold as advertised and/or that she would not have purchased if not for the false representation. Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 7 of 16 Page ID #:7 Exhibit C Page 050 Case 8:16-cv 02273-JLS-JCG Document 12-4 il 1/ 5/ 7 8 f 7 I :387 CLASS ACTION COMPLAINT 7 CLASS ACTION ALLEGATIONS 28. Plaintiff re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint as if fully set forth herein. 29. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff brings this class action and seeks certification of the claims and certain issues in this action on behalf of a Class defined as: All persons who purchased Pampers Wipes other than for purpose of resale. 30. Excluded from the Class are Defendant, and Defendant’s officers, directors, affiliates, legal representatives, successors, subsidiaries, and assigns. Also excluded from the Class is any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff. 31. Based on the annual sales of the Product, members of the Class are so numerous and geographically dispersed that joinder of all Class members is impractical, if not impossible. Plaintiff is informed and believes that the Class contains many tens of thousands of members. The precise number of Class members is unknown to Plaintiff. 32. Defendant’s representations that the Product is “natural” were uniformly made so that the questions of law and fact are common to all members of the Class and predominate over questions affecting only individual Class members. 33. Questions of law and fact common to the Class exist that predominate over any individual issues, including, inter alia: a. Whether Defendant’s business practices violated FDUTPA, FLA. STAT. §§ 501.201, et seq.; b. Whether Defendant made express warranties and breached express warranties; Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 8 of 16 Page ID #:8 Exhibit C Page 051 Case 8:16-cv 02273-JLS-JCG Document 12-4 il 1/ 5/ 7 9 f 7 I :388 CLASS ACTION COMPLAINT 8 c. Whether the Product is “natural”; d. Whether the chemicals contained in the Product are “natural”; e. Whether the chemicals contained in the Product are unnatural, synthetic or artificial; f. Whether the claim “natural” on the Product’s packaging is material to a reasonable consumer; g. Whether the claim “natural” on the Product’s packaging and advertising is likely to deceive a reasonable consumer; h. Whether Plaintiff and members of the Class have sustained monetary loss and the proper measure of that loss; i. Whether Plaintiff and members of the Class are entitled to restitution or disgorgement of Defendant’s profits and to injunctive relief; and j. Whether Defendant was unjustly enriched by the sale of the Product. 34. The claims asserted by Plaintiff in this action are typical of the claims of the members of the Class, as the claims arise from the same course of conduct by Defendant, and the relief sought within the Class is common to the members of the Class. 35. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class. 36. Plaintiff has retained counsel competent and experienced in both consumer protection and class action litigation. 37. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. Absent a class action, it would be highly unlikely that the representative Plaintiff or any other members of the Class or any subclass would be able to Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 9 of 16 Page ID #:9 Exhibit C Page 052 s : -cv- 2273-J -J c t 2-4 Filed 1/05/17 Page 10 of 17 Page ID #:389 CLASS ACTION COMPLAINT 9 protect their own interests because the cost of litigation through individual lawsuits might exceed expected recovery. 38. Further, given the large number of consumers of the Product, having individual actions to proceed in lieu of a class action would run the risk of yielding inconsistent and conflicting adjudications arising from the same set of facts. 39. A class action is a fair and appropriate method for the adjudication of the controversy, in that it will permit a large number of claims to be resolved in a single forum simultaneously, efficiently, and without the unnecessary hardship that would result from the prosecution of numerous individual actions and the duplication of discovery, effort, expense and burden on the courts that individual actions would engender. 40. The benefits of proceeding as a class action, including providing a method for obtaining redress for claims that would not be practical to pursue individually, outweigh any difficulties that might be argued with regard to the management of this class action. 41. Certification also is appropriate because Defendant acted, or refused to act, on grounds generally applicable to both the Class, thereby making appropriate the relief sought on behalf of the Class. FIRST CAUSE OF ACTION (Violations of Florida’s Deceptive and Unfair Trade Practices Act) (FLA. STAT. §§ 501.201, et seq.) 42. Plaintiff re-alleges and incorporates by reference the allegations set forth in the preceding paragraphs 1 through 41 as if fully set forth herein. 43. This cause of action is brought pursuant to the Florida Deceptive and Unfair Trade Practices Act, Sections 501.201 to 501.213, Florida Statutes. 44. The express purpose of FDUTPA is to “protect the consuming public . . . from Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 10 of 16 Page ID #:10 Exhibit C Page 053 Case 8:16-cv-02273-JLS-JCG Document 12-4 Filed 01/05/17 Page 1 of 17 Page ID #:390 CLASS ACTION COMPLAINT 10 those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” FLA. STAT. § 501.202(2). 45. Section 501.204(1), Florida Statutes, declares as unlawful “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 46. The sale of the Product was a “consumer transaction” within the scope of FDUTPA. 47. Plaintiff is a “consumer” as defined by Section 501.203, Florida Statutes. 48. Defendant’s Product is a good within the meaning of FDUTPA and Defendant is engaged in trade or commerce within the meaning of FDUTPA. 49. Defendant’s unfair and deceptive practices are likely to mislead - and have misled - reasonable consumers, such as Plaintiff and members of the Class. 50. Defendant has violated FDUTPA by engaging in the unfair and deceptive practices described above, which offend public policies and are immoral, unethical, unscrupulous and substantially injurious to consumers. 51. Specifically, Defendant has represented that the Product is “natural” when, in fact, the Product is made with dimethicone, phenoxyethanol, and ethyhexyl glycerin, which are not natural chemicals. 52. Plaintiff and Class members have been aggrieved by Defendant’s unfair and deceptive practices in violation of FDUTPA, in that they paid money for Defendant’s mislabeled Product. 53. Reasonable consumers rely on Defendant to honestly represent the true nature of its ingredients. Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 11 of 16 Page ID #:11 Exhibit C Page 054 Case 8:16-cv-02273-JLS-JCG Document 12-4 Filed 01/05/17 Page 12 of 17 Page ID #:391 CLASS ACTION COMPLAINT 11 54. Defendant has deceived reasonable consumers, like Plaintiff and members of the Class, into believing the Product was something it was not; specifically that the Product is “natural.” 55. Pursuant to sections 501.211(2) and 501.2105, Florida Statutes, Plaintiff and members of the Class make claims for damages, attorney’s fees and costs. The damages suffered by Plaintiff and the Class were directly and proximately caused by the deceptive, misleading and unfair practices of Defendant. Pursuant to section 501.211(1), Florida Statutes, Plaintiff and the Class seek injunctive relief for, inter alia, the Court to enjoin Defendant’s above-described wrongful acts and practices, and for restitution and disgorgement. 56. Plaintiff seeks all available remedies, damages, and awards as a result of Defendant’s violations of FDUTPA. SECOND CAUSE OF ACTION (Breach of Express Warranty) 57. Plaintiff re-alleges and incorporates by reference the allegations set forth in the preceding paragraphs 1 through 41 as if fully set forth herein. 58. Defendant has expressly represented that the Product is “natural” when in fact the Product is made with synthetic and/or artificial chemicals including dimethicone, phenoxyethanol, and ethyhexyl glycerin. 59. The Product is marketed directly to consumers by Defendant, comes in sealed packages, and does not change from the time it leaves Defendant’s possession until the Product arrives in stores to be sold to consumers. 60. Plaintiff is informed and believes, and thereon alleges, that Defendant made an express warranty, including that the Product is “natural.” Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 12 of 16 Page ID #:12 Exhibit C Page 055 Case 8:16-cv-02273-JLS-JCG Document 12-4 Filed 01/05/17 Page 13 of 17 Page ID #:392 CLASS ACTION COMPLAINT 12 61. Defendant breached its express warranty by claiming that the Product is “natural” because the Product contains synthetic and/or artificial chemicals including dimethicone, phenoxyethanol, and ethyhexyl glycerin. 62. As a proximate result of the failure of the Product to perform as expressly warranted by Defendant, Plaintiff and members of the Class have suffered actual damages in an amount to be determined at trial, in that they were induced to purchase a product they would not have purchased had they known the true facts about it, and have spent money on a product that was not what it was represented to be and that lacks the value Defendant represented the Product to have. 63. Plaintiff gave timely notice to Defendant of its breach of express warranty individually and on behalf of all members of the Class, by letter sent to Defendant on or about April 22, 2016. 64. Plaintiff seeks all available remedies, damages, and awards as a result of Defendant’s breach of express warranty. THIRD CAUSE OF ACTION (Unjust Enrichment) 65. Plaintiff re-alleges and incorporates by reference the allegations set forth in the preceding paragraphs 1 through 41 as if fully set forth herein. 66. In its marketing and advertising, Defendant has made false and misleading statements and/or omissions regarding the Product, as described herein. 67. Defendant has represented that the Product is “natural” when in fact the Product is made with synthetic and/or artificial chemicals including dimethicone, phenoxyethanol, and ethyhexyl glycerin. Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 13 of 16 Page ID #:13 Exhibit C Page 056 Case 8:16-cv-02273-JLS-JCG Document 12-4 Filed 01/05/17 Page 14 of 17 Page ID #:393 CLASS ACTION COMPLAINT 13 68. The Product is marketed directly to consumers by Defendant, comes in sealed packages, and does not change from the time it leaves Defendant’s possession until the Product arrives in stores to be sold to consumers. 69. Plaintiff and Class Members conferred a benefit on Defendant by purchasing the Product. Defendant accepted and retained the benefit in the amount of the purchase price and/or profits it earned from sales of the Product to Plaintiff and other Class members. 70. Defendant profited from its unlawful, unfair, misleading, and deceptive practices and advertising at the expense of Plaintiff and Class members, under circumstances in which it would be unjust for Defendant to be permitted to retain said benefit. 71. Plaintiff has standing to pursue this claim as Plaintiff has suffered injury in fact and has lost money or property as a result of Defendant’s actions, as set forth herein. Defendant is aware that the claims it makes about the Product are false, misleading, and likely to deceive reasonable consumers, such as Plaintiff and members of the Class. 72. Plaintiff and Class members do not have an adequate remedy at law against Defendant (in the alternative to the other causes of action alleged herein). 73. Accordingly, Plaintiff and Class members are entitled to restitution in an amount ordered by the court. PRAYER FOR RELIEF WHEREFORE, Plaintiff, individually, and on behalf of all others similarly situated, prays for relief pursuant to each cause of action set forth in this Complaint as follows: 1. For an order certifying that the action may be maintained as a class action, appointing Plaintiff as representative of the Class, and designating Plaintiff’s attorneys Class counsel; Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 14 of 16 Page ID #:14 Exhibit C Page 057 Case 8:16-cv-02273-JLS-JCG Document 12-4 Filed 01/05/17 Page 15 of 17 Page ID #:394 CLASS ACTION COMPLAINT 14 2. For an award of equitable relief for as follows: (a) Awarding declaratory relief and enjoining Defendant from continuing to engage, use, or employ any unfair and/or deceptive business acts or practices related to the marketing, advertising, or sale of the Product in such manner as set forth in detail above, or from making any claims found to violate FDUTPA or the other causes of action as set forth above; (b) Requiring Defendant to make full restitution of all monies wrongfully obtained as a result of the conduct described in this Complaint; (c) Restoring all monies that may have been acquired by Defendant as a result of such unfair and/or deceptive act or practices; and (d) Requiring Defendant to disgorge all ill-gotten gains flowing from the conduct described herein. 3. For actual damages in an amount to be determined at trial; 4. For an award of attorney’s fees and costs; 5. For any other relief the Court might deem just, appropriate, or proper; and 6. For an award of pre- and post-judgment interest on any amounts awarded. DEMAND FOR JURY TRIAL Plaintiff respectfully demands a jury trial on all issues so triable. Respectfully Submitted By, Dated: July 7, 2016 /s/ Joseph M. Pustizzi Joseph M. Pustizzi, Esq. Fla. Bar No. 70362 THE LAW OFFICE OF JOSEPH PUSTIZZI, P.A. 3440 Hollywood Blvd., Suite 415 Hollywood, Florida 33021-6933 Tel: (954) 241-4244 Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 15 of 16 Page ID #:15 Exhibit C Page 058 Case 8:16-cv-02273-JLS-JCG Document 12-4 Filed 01/05/17 Page 16 of 17 Page ID #:395 CLASS ACTION COMPLAINT 15 joseph@pustizzilaw.com Michael T. Fraser, Esq. Fla. Bar No. 87411 THE FRASER LAW FIRM, P.C. 4120 Douglas Blvd., Suite 306-262 Granite Bay, California 95746 Tel: (888) 557-5115 Fax: (866) 212-8434 mfraser@thefraserlawfirm.net Timothy G. Blood (pro hac vice to be filed) Leslie E. Hurst (CA178432) Jennifer L. MacPherson (CA202021) BLOOD HURST & O’REARDON, LLP 701 B Street, Suite 1700 San Diego, California 92101 Tel: (619) 338-1100 Fax: (619) 338-1100 tblood@bholaw.com lhurst@bholaw.com jmacpherson@bholaw.com Attorneys for Plaintiff Case 8:16-cv-01816-JLS-JCG Document 1 Filed 07/07/16 Page 16 of 16 Page ID #:16 Exhibit C Page 059 Case 8:16-cv-02273-JLS-JCG Document 12-4 Filed 01/05/17 Page 17 of 17 Page ID #:396 EXHIBIT D Exhibit D Page 060 Case 8:16-cv-02273-JLS-JCG Document 12-5 Filed 01/05/17 Page 1 of 4 Page ID #:397 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 0:16-cv-61617-GAYLES/Turnoff ANGELA BANEGAS, individually and on behalf of all others similarly-situated, Plaintiff, v. THE PROCTER & GAMBLE COMPANY, an Ohio corporation, Defendant. ___________________________________/ ORDER THIS MATTER is before the Court on Defendant’s Motion to Transfer or, in the Alternative, to Stay in Favor of First-Filed Action (“Motion”) [ECF No. 17]. The Court has considered the Motion, Plaintiff’s Response [ECF No. 23], Defendant’s Reply [ECF No. 26], the record, and the applicable law. A hearing was held on September 28, 2016. For the reasons that follow, the Court grants the Motion and orders the case transferred. Defendant Procter & Gamble Company (“P&G”) has moved to have this case transferred pursuant to the first-to-file rule. “The first-filed rule provides that when parties have instituted competing or parallel litigation in separate courts, the court initially seized of the controversy should hear the case.” Collegiate Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013). “Where two actions involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first-filed suit under the first-filed rule.” Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005). The Eleventh Circuit “require[s] that the party objecting to jurisdiction in the Case 8:16-cv-01816-JLS-JCG Document 28 Filed 09/28/16 Page 1 of 3 Page ID #:162 Exhibit D Page 061 Case 8:16-cv-02273-JLS-JCG Document 1 -5 Filed 01/05/17 Page 2 of 4 Page ID #:398 2 first-filed forum carry the burden of proving ‘compelling circumstances’ to warrant an exception to the first-filed rule.” Id. (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir. 1982)). Here, it is clear that transfer is warranted. A putative national class action lawsuit (“Brenner lawsuit”)* involving the same issues as those asserted by Plaintiff Angela Banegas (“Banegas”) here was filed in the Central District of California, Santa Ana Division, on June 13, 2016-twenty-four days prior to Banegas’s filing of the instant putative national class action lawsuit on July 7, 2016. Even if the Court were the apply the date of the pre-suit demand letter in each case, the plaintiff in the Brenner lawsuit sent her pre-suit demand on April 15, 2016, and Banegas sent her pre-suit demand one week later on April 22, 2016. Both the Brenner lawsuit and the instant lawsuit are brought on behalf of a nationwide class against P&G regarding the same product-the “Natural Clean” product line to the Pampers brand. The issues to be addressed by the court in each lawsuit are essentially identical-claims of unjust enrichment, breach of express warranty, and state consumer protection law violations. The only difference is the application of California versus Florida substantive law, the determination of which shall be left to the Central District of California as the cases proceed. The nationwide classes of the instant action and the Brenner lawsuit will be subsumed by one another if the Central District of California ultimately grants class certification in either case. The Court does not find any “compelling circumstances” to warrant an exception to the first-filed rule. As stated at the hearing, Banegas does not assert that P&G acted in bad faith in its pre-suit negotiations in an attempt to delay her filing of the instant lawsuit. Rather, the Court finds sufficient cause to transfer the case, especially given the likelihood of unnecessary * Brenner v. The Procter & Gamble Company, No. 8:16-cv-1093 (C.D. Cal.). Case 8:16-cv-01816-JLS-JCG Document 28 Filed 09/28/16 Page 2 of 3 Page ID #:163 Exhibit D Page 062 Case 8:16-cv-02273-JLS-JCG Document 1 -5 Filed 01/05/17 Page 3 of 4 Page ID #:399 3 duplication of litigation for the parties, the danger of inconsistent rulings, and the interests of sound judicial administration and judicial economy for the federal court system. Accordingly, it is hereby ORDERED AND ADJUDGED that (1) Defendant’s Motion to Transfer [ECF No. 17] is GRANTED and the case is TRANSFERRED to the United States District Court for the Central District of California, Santa Ana Division; and (2) This case is CLOSED for administrative purposes, and any pending motions are DENIED as moot. DONE AND ORDERED in Chambers at Miami, Florida, this 28th day of September, 2016. ________________________________ DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE cc: Magistrate Judge Turnoff All Counsel of Record Case 8:16-cv-01816-JLS-JCG Document 28 Filed 09/28/16 Page 3 of 3 Page ID #:164 Exhibit D Page 063 Case 8:16-cv-02273-JLS-JCG Document 1 -5 Filed 01/05/17 Page 4 of 4 Page ID #:400 EXHIBIT E Exhibit E Page 064 Case 8:16-cv-02273-JLS-JCG Document 12-6 Filed 01/05/17 Page 1 of 6 Page ID #:401 STIPULATION TO CONSOLIDATE CASE NOS. 8:16-cv-1093-JLS-JCG, 8:16-cv-1816-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BURSOR & FISHER, P.A. L. Timothy Fisher (SBN 191626) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 ltfisher@bursor.com Counsel for Plaintiff Veronica Brenner HUNTON & WILLIAMS LLP Ann Marie Mortimer (SBN 169077) amortimer@hunton.com 550 South Hope Street, Suite 2000 Los Angeles, CA 90071 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 Counsel for Defendant The Procter & Gamble Company [Additional counsel for all parties listed on signature page] BLOOD HURST & O’REARDON, LLP Timothy G. Blood (SBN 149343) 701 B. Street, Suite 1700 San Diego, CA 921401 Telephone: (619) 338-1100 Facsimile: (619) 338-1101 tblood@hbolaw.com Counsel for Plaintiff Angela Banegas UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA VERONICA BRENNER, on behalf of herself and all others similarly situated, Plaintiff, v. PROCTER & GAMBLE CO., Defendant. Case No. 8:16-cv-1093 JLS-JCG STIPULATION TO CONSOLIDATE Complaint Served: June 21, 2016 ANGELA BENAGAS, on behalf of herself and all others similarly situated, Plaintiff, v. THE PROCTER & GAMBLE COMPANY an Ohio corporation, Defendant. Case No. 8:16-cv-01816-JLS-JCG Complaint Served: July 25, 2016 Case 8:16-cv-01093-JLS-JCG Document 37 Filed 10/27/16 Page 1 of 5 Page ID #:336 Exhibit E Page 065 Case 8:16-cv-02273-JLS-JCG Document 12-6 Filed 1/05/17 Page 2 of 6 Page ID #:402 STIPULATION TO CONSOLIDATE CASE NOS. 8:16-cv-1093-JLS-JCG, 8:16-cv-1816-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND ALL PARTIES AND COUNSEL: Pursuant to Rule 42(a)(2) of the Federal Rules of Civil Procedure, Plaintiff Veronica Brenner, Plaintiff Angela Banegas, and Defendant The Procter & Gamble Company (“P&G” and together with Ms. Brenner and Ms. Banegas, the “Parties”) stipulate as follows: WHEREAS, Ms. Brenner served P&G with her Complaint on June 21, 2016 in an action styled as Brenner v. The Procter & Gamble Company, No. 8:16-cv- 01093-JLS-JCGx (C.D. Cal.) (the “Brenner Action”); WHEREAS, the Court entered its order on P&G’s motion to dismiss or stay the Brenner Action on October 20, 2016; WHEREAS, an action asserting common questions of law and fact styled as Banegas v. The Procter & Gamble Co., No. 8:16-cv-1816-JLS-JCGx (C.D. Cal.) (the “Banegas Action”) was transferred from the South District of Florida to the Central District of California on September 29, 2016; WHEREAS, the Banegas Action was reassigned from Judge Terry J. Hatter and Magistrate Judge Alka Sagar to Judge Josephine L. Staton and Maistrate Judge Jay C. Gandhi for all further proceedings; WHEREAS, in the interest of judicial efficiency, the Parties believe that the Brenner Action and Banegas Action should be consolidated; WHEREAS, P&G has agreed to not move to dismiss the consolidated complaint so long as the claims, theories, and allegations from either complaint remain the same, but reserves the right to move to dismiss if the consolidated complaint adds any claims, theories, or allegations not currently present in either complaint; NOW, THEREFORE, The Parties hereby stipulate that 1. The Brenner Action and the Banegas Action shall be consolidated, and shall bear the current caption and case number of the Brenner Action; Case 8:16-cv-01093-JLS-JCG Document 37 Filed 10/27/16 Page 2 of 5 Page ID #:337 Exhibit E Page 066 Case 8:16-cv-02273-JLS-JCG Document 12-6 Filed 1/05/17 Page 3 of 6 Page ID #:403 STIPULATION TO CONSOLIDATE CASE NOS. 8:16-cv-1093-JLS-JCG, 8:16-cv-1816-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Ms. Brenner and Ms. Banegas shall file a consolidated complaint within 14 days of the entry of an order consolidating the actions; 3. P&G shall file its response to the consolidated complaint within 30 days of service thereof; 4. P&G shall not file a motion to dismiss the consolidated complaint unless it adds any claims, theories, or allegations not currently present in the either complaint from the Brenner Action and the Banegas Action; P&G may otherwise file a motion to dismiss if the consolidated complaint adds such new claims, theories, or allegations; 5. In the interest of efficiency, P&G shall not be required to answer the current complaints in the Brenner Action and the Banegas Action. Dated: October 27, 2016 Respectfully submitted, BURSOR & FISHER, P.A. By: /s/ L. Timothy Fisher L. Timothy Fisher L. Timothy Fisher (State Bar No. 191626) Joel D. Smith (State Bar No. 244902) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 276006) 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-Mail: scott@bursor.com Counsel for Plaintiff Veronica Brenner Case 8:16-cv-01093-JLS-JCG Document 37 Filed 10/27/16 Page 3 of 5 Page ID #:338 Exhibit E Page 067 Case 8:16-cv-02273-JLS-JCG Document 12-6 Filed 1/05/17 Page 4 of 6 Page ID #:404 STIPULATION TO CONSOLIDATE CASE NOS. 8:16-cv-1093-JLS-JCG, 8:16-cv-1816-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BLOOD HURST & O’REARDON, LLP By: /s/ Timothy G. Blood Timothy G. Blood TIMOTHY G. BLOOD (149343) LESLIE E. HURST (178432) JENNIFER L. MACPHERSON (202021) 701 B Street, Suite 1700 San Diego, CA 92101 Tel: 619/338-1100 619/338/1101(fax) tblood@bholaw.com lhurst@bholaw.com jmarcpherson@bholaw.com THE LAW OFFICE OF JOSEPH PUSTIZZI, P.A. JOSEPH M. PUSTIZZI (pro hac vice) 3440 Hollywood Blvd., Suite 415 Hollywood, Florida 30021-6933 T: (954) 241-4244 joseph@pustizzilaw.com THE FRASER LAW FIRM, P.C. MICHAEL T. FRASER 4120 Douglas Blvd., Suite 306-262 Granite Bay, California 95746 Tel: 888/557-5115 866/212-8434 (fax) mfraser@thefraserlawfirm.net MONTELEONE & McCRORY, LLP Diane M. Dron (86195) 725 Figueroa Street, Suite 3200 Los Angeles, CA 90017 Tel: 213/784-3108 213/612-9930 (fax) dron@mmlawyers.com Counsel for Plaintiff Angela Banegas Dated: October 27, 2016 HUNTON & WILLIAMS LLP By: /s/ Ann Marie Mortimer Ann Marie Mortimer Case 8:16-cv-01093-JLS-JCG Document 37 Filed 10/27/16 Page 4 of 5 Page ID #:339 Exhibit E Page 068 Case 8:16-cv-02273-JLS-JCG Document 12-6 Filed 1/05/17 Page 5 of 6 Page ID #:405 STIPULATION TO CONSOLIDATE CASE NOS. 8:16-cv-1093-JLS-JCG, 8:16-cv-1816-JLS-JCG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ann Marie Mortimer (SBN 169077) amortimer@hunton.com 550 South Hope Street, Suite 2000 Los Angeles, CA 90071 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 Samuel A. Danon (pro hac vice) sdanon@hunton.com Douglas C. Dreier (pro hac vice) ddreier@hunton.com 1111 Brickell Ave., Suite 2500 Miami, Florida 33131 Telephone: (305) 810-2500 Facsimile: (305) 810-2460 Counsel for Defendant The Procter & Gamble Company ATTESTATION PURSUANT TO LOCAL RULE 5-4.3.4(a)(2) Pursuant to Local Rule 5-4.3.4(a)(2) of the Central District of California, I attest that I have concurrence in the filing of this document. By: /s/ Ann Marie Mortimer Ann Marie Mortimer Case 8:16-cv-01093-JLS-JCG Document 37 Filed 10/27/16 Page 5 of 5 Page ID #:340 Exhibit E Page 069 Case 8:16-cv-02273-JLS-JCG Document 12-6 Filed 1/05/17 Page 6 of 6 Page ID #: 6 EXHIBIT F Exhibit F Page 070 Case 8:16-cv-02273-JLS-JCG Document 12-7 Filed 01/05/17 Page 1 of 3 Page ID #:407 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H un to n & W ill ia m s L LP 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA VERONICA BRENNER, on behalf of herself and all others similarly situated, Plaintiff, v. PROCTER & GAMBLE CO., Defendant. Case No. 8:16-cv-1093 JLS-JCG ORDER GRANTING STIPULATION TO CONSOLIDATE Complaint Served: June 21, 2016 Hon. Josephine L. Staton ANGELA BENAGAS, on behalf of herself and all others similarly situated, Plaintiff, v. THE PROCTER & GAMBLE COMPANY an Ohio corporation, Defendant. Case No. 8:16-cv-01816-JLS-JCG NOTE: CHANGES MADE BY THE COURT Case 8:16-cv-01093-JLS-JCG Document 39 Filed 11/04/16 Page 1 of 2 Page ID #:344 Exhibit F Page 071 Case 8:16-cv-02273-JLS-JCG Document 12-7 Filed 01/05/17 Page 2 of 3 Page ID #: 08 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 H un to n & W ill ia m s L LP 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 ORDER The Court, having read and considered the Parties’ Stipulation to Consolidate pursuant to Fed. R. Civ. P. 42(a)(2), hereby GRANTS the Stipulation and orders as follows: 1. The Brenner Action and the Banegas Action shall be consolidated, and shall bear the current caption and case number of the Brenner Action; 2. The Clerk shall administratively close the Banegas Action; 3. Ms. Brenner and Ms. Banegas shall file a consolidated complaint within 14 days of the entry of this order; 4. P&G shall file its response to the consolidated complaint within 30 days of service thereof; 5. P&G shall not file a motion to dismiss the consolidated complaint unless it adds any claims, theories, or allegations not currently present in the either complaint from the Brenner Action and the Banegas Action; P&G may otherwise file a motion to dismiss if the consolidated complaint adds such new claims, theories, or allegations; and 6. P&G is not required to answer the current complaints in the Brenner Action and the Banegas Action. IT IS SO ORDERED. DATED: NOVEMBER 04, 2016 Josephine L. Staton UNITED STATES DISTRICT COURT JUDGE Case 8:16-cv-01093-JLS-JCG Document 39 Filed 11/04/16 Page 2 of 2 Page ID #:345 Exhibit F Page 072 Case 8:16-cv-02273-JLS-JCG Document 12-7 Filed 01/05/17 Page 3 of 3 Page ID #: 09 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA VERONICA BRENNER and ANGELA BANEGAS, individually and on behalf of all others similarly situated, Plaintiffs, v. PROCTER & GAMBLE CO., Defendant. Case No.: 8:16-cv-02273-JLS (JCGx) [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Date: March 10, 2017 Time: 2:30 p.m. Judge: Hon. Josephine L. Staton Crtm.: 10A Complaint Filed: November 14, 2016 Action Removed: December 29, 2016 Case 8:16-cv-02273-JLS-JCG Document 12-8 Filed 01/05/17 Page 1 of 2 Page ID #:410 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 H un to n & W ill ia m s L L P 55 0 So ut h H op e St re et , S ui te 2 00 0 L os A ng el es , C al ifo rn ia 9 00 71 -2 62 7 [PROPOSED] ORDER The Court, having read and considered all documents filed in support of, and in opposition to, Defendant The Proctor & Gamble Company’s (“Defendant’s”) Motion To Dismiss Plaintiffs Veronica Brenner and Angela Banegas’ (“Plaintiffs’”) Complaint, and good cause appearing therefor, finds this matter suitable for disposition without oral argument. Defendant’s motion to dismiss Plaintiffs’ Complaint is hereby GRANTED WITH PREJUDICE. IT IS SO ORDERED. DATED: Josephine L. Staton UNITED STATES DISTRICT COURT JUDGE Respectfully submitted by: HUNTON & WILLIAMS LLP Ann Marie Mortimer (SBN 169077) Email: amortimer@hunton.com 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 Case 8:16-cv-02273-JLS-JCG Document 12-8 Filed 01/05/17 Page 2 of 2 Page ID #:411