Koehler alleged that Litehouse’s Bleu Cheese Yogurt Dressing
with Probiotics falsely claimed that it “May boost immunity” and the rear label
of the product claims that it “May enhance the body's immune system,” in
violation of the usual California statutes (and in breach of express
warranty/constituting negligent misrepresentation).
Koehler’s amended complaint quoted from his expert’s
affidavit; the court struck the references to the affidavit because they
included only conclusory assertions, not nonconclusory factual statements. Litehouse then argued that all Koehler’s
claims failed as a matter of law because of the qualifier “may” in the
statements. Qualifying statements are
important for a reasonable consumer’s understanding; the court found that “may”
was similar to “up to,” and would signal a lack of certainty to a reasonable
consumer. However, at least some of the
complaint seemed predicated on the idea that a consumer would understand the
statements to mean that there is a possibility that the product would enhance
the immune system, but that it does not, in fact, do so. If the product doesn’t even have a likelihood
or tendency to boost immunity, the advertising is false. Allegations of this type stated a claim.
Litehouse then argued that, since Koehler only alleged that
he read and relied on the label, he couldn’t base his claims on other
advertising methods used by Litehouse. “Whether
Koehler as a class representative can present claims on behalf of other class
members who may have relied on different advertisements than those on the
product label is an issue of typicality and adequacy of representation more
properly disputed at the class certification stage. This is very different from
the issue of whether Koehler has standing to bring his own claims, which Litehouse
does not even dispute.”
Litehouse then argued that Koehler lacked standing to seek
injunctive relief because he was at no risk of future injury, given that he now
allegedly knew the truth. This rationale
would prevent any injunction from issuing to stop false advertising,
“eviscerat[ing]” the California legislature’s intent.
Litehouse then argued that Koehler’s California claims
couldn’t be brought on behalf of a nationwide class. The court granted the motion to dismiss the
class action allegations, to the extent asserted on behalf of a nationwide
class, since non-California residents lacked sufficient contacts with the
state. It also granted Litehouse’s motion
to dismiss Koehler’s request for the disgorgement of all ill-gotten gains,
since disgorgement as such wasn’t available under the law, and allowed him to
amend his pleading to limit the disgorgement demand to restitutionary purposes
only.
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