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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