In re Colgate-Polmolive MDL

2013 DNH 049

• Court: District Court, D. New Hampshire
• Decided: April 2, 2013
• Docket: 12-md-2320-PB
• Status: Published

Opinion

In re Colgate-Polmolive MDL 12-md-2320-PB 4/2/2013 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

In re: Colgate-Palmolive Softsoap Antibacterial Hand Case N o . 12-md-2320-PB Soap Marketing and Sales All cases Practices Litigation Opinion N o . 2013 DNH 049

O R D E R

Consumers of Softsoap Antibacterial branded soap (“Softsoap

Antibacterial”) have filed a consolidated class action complaint

against Colgate-Palmolive Company (“Colgate”), the manufacturer

of Softsoap Antibacterial. Plaintiffs allege that Colgate is

liable for damages because it induced class members to purchase

Softsoap Antibacterial by making false and misleading marketing

claims. They bring consumer protection claims in California,

Florida, Illinois, Nevada, and New Jersey; breach of express

warranty claims in California, Florida, Illinois, Nevada, New

Jersey, and South Carolina; breach of implied warranty claims in

California, Florida, Nevada, New Jersey, and South Carolina; and

unjust enrichment claims in Florida, Illinois, Nevada, New

Jersey, and South Carolina. Colgate has filed a motion to

dismiss under Fed. R. Civ. P. 12(b)(6) challenging the

sufficiency of the plaintiffs’ pleadings on various grounds. The law I must use to resolve the plaintiffs’ claims in

this multidistrict litigation will vary depending upon the

choice of law rules of each transferor court. In re Volkswagen

& Audi Warranty Extension Litig., 692 F.3d 4 , 17-18 (1st Cir.

2012). Here, neither party has adequately briefed the law that

governs plaintiffs’ claims.

For example, the elements of consumer protection claims

differ from state to state. In Illinois and Florida, a

plaintiff must prove that the defendant intended to induce

reliance on a false representation of material fact. Geschke v .

Air Force Ass’n, 425 F.3d 3 3 7 , 345 (7th Cir. 2005); Black

Diamond Prop., Inc. v . Haines, 69 S o . 3d 1090, 1094-95 (Fla.

Dist. C t . App. 2011). In California, a plaintiff need not

demonstrate intent. Bower v . AT&T Mobility, LLC, 196 Cal. App.

4th 1545, 1556 (Cal. C t . App. 2011). In New Jersey, a plaintiff

must prove intent only when the unlawful act is a knowing

omission or regulatory violation; if the unlawful act is an

affirmative act, intent is not required. Dewey v . Volkswagen

AG, 558 F. Supp. 2d 505, 524-25 (D.N.J. 2008); Cox v . Sears

Roebuck & Co., 647 A.2d 4 5 4 , 462 (N.J. 1994).

The elements of breach of express warranty claims also

differ from state to state. In Florida, a plaintiff must

provide notice of the breach to the seller before bringing suit. 2 See Moss v . Walgreen Co., 765 F. Supp. 2d 1363, 1368 (S.D. Fla.

2011). Notice is not required in other states. E.g., Keegan v .

Am. Honda Motor Co., Inc., 838 F. Supp. 2d 929, 949 (C.D. Cal.

2012).

Not only do the elements of the plaintiffs’ claims differ

from state to state, but state courts also interpret those

elements differently. For example, Colgate argues that its

advertising claims are nonactionable puffery that cannot provide

the basis of plaintiffs’ consumer protection claims. States

have varying standards for determining whether an advertising

statement constitutes “puffery.” In California, “puffery” is

“[g]eneralized, vague, and unspecified assertions . . . upon

which a reasonable consumer could not rely.” In re Ferrero

Litig., 794 F. Supp. 2d 1107, 1115 (S.D. Cal. 2011). In Nevada,

statements that constitute “estimates, opinions, or promises of

future performance typically are not actionable as fraud.”

Baroi v . Platinum Condo. Dev., LLC, N o . 2:09-CV-00671-PMP-GWF,

2012 WL 2847919, *2 (D. Nev. July 1 1 , 2012); Hill v . Celebrity

Cruises, Inc., N o . 09-23815-CIV, 2011 WL 5360629, *7 (S.D. Fla.

2011) (finding representation that cruise ship could

“accommodate all guests’ medical needs” mere puffery); Lieberson

v . Johnson & Johnson Consumer Co., Inc., 865 F. Supp. 2d 529,

540-41 (D.N.J. 2011) (finding that statement on product labels 3 that the product was “clinically proven” to help babies sleep

better was not puffery because the claim was not a “vague or

highly subjective claim[] of simple superiority”).

The state by state differences mentioned here are only the

tip of the iceberg. The defendant raises significant questions

relating to the sufficiency of plaintiffs’ pleadings, but

neither party adequately briefed those questions in light of the

applicable state law. Accordingly, defendant’s motion to

dismiss (Doc. N o . 26) is denied without prejudice to the extent

that it is based on claims that plaintiffs have failed to plead

viable causes of action.1

The clerk shall set a telephone status conference to

discuss how the defendant will be permitted to test the

viability of plaintiffs’ claims.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 2 , 2013

cc: Counsel of Record

1 I previously rejected defendants’ motion to dismiss based on statute of limitations and primary jurisdiction grounds.