Tuesday, May 28, 2013

Standing and fact pleading, again

Lanovaz v. Twinings North America, Inc., 2013 WL 2285221 (N.D. Cal.)

Lanovaz sued Twinings alleging violation of FDA rules incorporated into California law, violating the UCL, FAL, and CLRA.  She bought Twinings’ green and black tea and alleged that she wouldn’t have done so but for unlawful labeling (“natural source of antioxidants”).  After the court struck some of her claims without prejudice, she amended her complaint, which brought on this renewed motion to dismiss/strike all statements about products that she didn’t buy and labels/ads she didn’t see or rely on, including sections of the Twinings website.

Lanovaz named numerous products she didn’t buy but had the exact same label as products she did buy.  The question was whether the products were sufficiently similar to allow her to represent purchasers of the other products.  Unlike many courts, this opinion looked to non-consumer protection cases.  The Ninth Circuit has cautioned that courts “must be careful not to employ too narrow or technical an approach. Rather, [courts] must examine the questions realistically: [they] must reject the temptation to parse too finely, and consider instead the context of the inquiry.” Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) (finding that plaintiffs had standing to represent a class of disabled persons because they established the same injury—discrimination that resulted in the denial of a service—even though the disabilities and exact harm were different).  Likewise, Gratz v. Bollinger, 539 U.S. 244 (2003), held that a student had standing to challenge race-based admissions criteria for both freshmen and transfer applicants even though he had only applied as a freshman, because the use of race didn’t implicate a significantly different set of concerns in the two contexts.  The purpose of standing, after all, was to assure “sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions.” United States Parole Commission v. Geraghty, 445 U.S. 388 (1980).

However, this led back to the same place: the court concluded that this standard required claims related to unpurchased products to be “nearly identical” to the claims for the purchased product. Lanovaz’s claims related to 53 teas with the same label. Fifty-one were made from the same plant, camellia sinensis, the two varieties of red tea were made from the rooibos plant. Of the 53 teas, Lanovaz bought three varieties of green tea, three varieties of black tea, and no red or white tea.  The court found that she had standing for 51 of the varieties, the ones based on the same label describing the same product, camellia sinensis, but not the rooibos varieties.

As for whether she pled reliance with particularity, the court agreed that parts of the complaint were unclear, but altogether Lanovaz identified specific statements from the Twinings website, and alleged that she relied on parts of the website.  The complaint didn’t then outright state that those sections contained the exact language that she quoted in other paragraphs, but the court found that saying “as specified above” was sufficient.  However, the court struck certain allegations because Lanovaz didn’t allege that she read and relied those specific statements on the website, and also struck references to reliance on the “section regarding teas for sale as well as the link on the website entitled ‘Tea & Health’” because they weren’t sufficiently clear.   (Okay, this all strikes me as the kind of nonsense that the federal rules were supposed to get rid of, even 9(b).  What happened to who, what, when, where and how?  How is this possibly insufficient to give Twinings fair notice of what she’s complaining about?)

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