1 CLARKSON LAW FIRM, P.C. ROGERS JOSEPH O’DONNELL Ryan J. Clarkson (SBN 257074) Renée D. Wasserman (SBN 108118) 2 rclarkson@clarksonlawfirm.com rwasserman@rjo.com Shireen M. Clarkson (SBN 237882) Alecia E. Cotton (SBN 252777) 3 sclarkson@clarksonlawfirm.com acotton@rjo.com Katherine A. Bruce (SBN 288694) Emily A. Wieser (SBN 311315) 4 kbruce@clarksonlawfirm.com ewieser@rjo.com Kelsey J. Elling (SBN 337915) 311 California Street 5 kelling@clarksonlawfirm.com San Francisco, CA 94104 22525 Pacific Coast Highway Tel: 415.956.2828 6 Malibu, CA 90265 Fax: 415.956.6457 Tel: (213) 788-4050 7 Fax: (213) 788-4070 Attorneys for Defendant
Neal J. Deckant (SBN 322946) 9 ndeckant@bursor.com Brittany S. Scott (SBN 327132) 10 bscott@bursor.com 1990 North California Blvd., Suite 940 11 Walnut Creek, CA 94596 Tel: (925) 300-4455 12 Fax: (925) 407-2700 Benjamin Heikali (SBN 307466) 14 bheikali@faruqilaw.com 10866 Wilshire Blvd. #1470 15 Los Angeles, CA 90024 Tel: (424) 256-2884 16 Fax: (424) 256-2885
17 Attorneys for Plaintiff
20 MICHELLE MORAN, individually and on Case No.: 4:21-cv-07961-JSW behalf of all others similarly situated, Case Filed: 10/11/2021 21 FAC Filed: 1/3/2022 Plaintiff, 22 v. Assigned District Judge Jeffrey S. White
23 BONDI SANDS (USA) INC., JOINT STIPULATION AND [PROPOSED] ORDER TO FILE A 24 Defendant. SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 15(A)(2) 25 AS MODIFIED HEREIN MTD Hearing: 4/29/2022 (vacated) 26 CMC: None Set
27 1 Pursuant to Fed. R. Civ. P. 15(a)(2), Plaintiff Michelle Moran (“Plaintiff”) and Defendant 2 Bondi Sands (USA) Inc. (“Defendant”), by and through their counsel of record, jointly stipulate to 3 Plaintiff filing a Second Amended Class Action Complaint (“SAC”) to correct an ambiguous 4 allegation and remove claims regarding certain products that Defendant affirms were not sold in the 5 United States, without impacting Defendant’s pending motion to dismiss, as outlined below and 6 subject to Court approval: 8 1. WHEREAS, on October 11, 2021, Plaintiff filed a Class Action Complaint 9 challenging the “Reef Friendly” statement on the front label of certain Bondi Sands sunscreen 10 products manufactured by Defendant as being false and deceptive (ECF 1); 11 2. WHEREAS, on January 3, 2022, Plaintiff filed a First Amended Class Action 12 Complaint (“FAC”) against Defendant for the sole purpose of asserting a claim for damages under 13 California Consumer Legal Remedies Act (codified at Cal. Civ. Code §§ 1750, et seq.), pursuant to 14 a stipulated order of this Court (see ECF 17, 25); 15 3. WHEREAS, paragraph 17 of the FAC currently alleges as follows:
16 Hawaii Legislature—Octocrylene & Avobenzone. In 2018, state lawmakers banned oxybenzone and octinoxate from being included as 17 ingredients in sunscreens sold in Hawaii because of their deleterious impact on coral reefs and dependent marine life. In 2021, state lawmakers amended 18 the bill to also ban the sale of sunscreens that contain avobenzone and octocrylene starting in 2023. Octocrylene was banned because it can disrupt 19 human hormones and has a toxic impact on aquatic ecosystems, including coral reefs. Avobenzone was banned because it is “an endocrine disruptor 20 and can reduce coral resilience against the high ocean temperatures that are killing corals worldwide.” 21 22 FAC ¶ 17 (footnotes omitted); 23 4. WHEREAS, in 2018, Hawaii banned oxybenzone and octinoxate from being included 24 as ingredients in sunscreens (HRS § 342D-21 (effective Jul. 1, 2018)), and in 2021 state lawmakers 25 sought to amend that law to also ban avobenzone and octocrylene starting in 2023 (see S.B. 132, 26 31st Leg., Reg. Sess. (Haw. 2021)); however, this legislation is still pending and has not yet been 27 enacted (id.); 1 5. WHEREAS, counsel for Plaintiff acknowledge that, as currently drafted, the 2 allegations in Paragraph 17 of the FAC may be ambiguous and can be read to mean that the 2021 3 amendment has already been enacted, when that is not the case (Declaration of Katherine Bruce 4 (“Bruce Decl.”) at ¶ 2); 5 6. WHEREAS, the aforementioned ambiguous allegations are the result of an 6 inadvertent drafting error by counsel for Plaintiff and upon discovering this issue, counsel for 7 Plaintiff promptly seeks to cure the inartful pleading (id.); 8 7. WHEREAS, among other Bondi Sands sunscreen products, the FAC brings claims 9 challenging Bondi Sands’ “Hydra” line of sunscreen products (see ECF 25); 10 8. WHEREAS, Defendant filed a motion to dismiss the FAC, subject to Fed. R. Civ. P. 11 11, that confirmed in a writing signed by Defendant’s counsel that “Bondi Sands’ Hydra products . 12 . . were only sold in Australia,” and “Hydra products are not sold in the United States,” (ECF 29 at 2, 13 14); 14 9. WHEREAS, in Plaintiff’s opposition to Defendant’s motion to dismiss, Plaintiff 15 confirmed that, based on Defendant’s foregoing representations, Plaintiff would not oppose the 16 dismissal of claims “solely to the extent that they challenge Defendant’s ‘Hydra’ products” (ECF 42 17 at 14, n.12); 18 10. WHEREAS, between approximately April 7, 2022, and April 12, 2022, counsel for 19 Plaintiff and Defendant conferred regarding the subject matter of this stipulation and the related 20 proposed order as follows: 21 a. Plaintiff’s counsel requested that Defendant stipulate to Plaintiff amending the 22 FAC on a limited basis to correct the ambiguous allegations regarding the status 23 of the Hawaiian proposed legislation banning octocrylene and avobenzone, while 24 leaving Defendant’s pending motion to dismiss briefing intact (Bruce Decl. at ¶ 25 3a); 26 b. On April 12, 2022, counsel for Defendant agreed to the foregoing remedy, and 27 requested that Plaintiff also amend the FAC to remove claims as to the Bondi 1 c. Consistent with Plaintiff’s position expressed in Plaintiff’s opposition to 2 Defendant’s motion to dismiss and based upon Defendant’s representations 3 confirming no Bondi Sands Hydra sunscreen products were or are sold in the 4 United States, Plaintiff has agreed to Defendant’s condition and the dismissal of 5 claims solely with respect to the Hydra products (id. at ¶ 3c); 6 11. WHEREAS, the parties agree that the filing of the SAC should not implicate 7 Defendant’s motion to dismiss the FAC (see, e.g., Johnson v. Fulton Cty., Georgia, No. 1:17-CV- 8 03921-AT-WEJ, 2018 WL 2350172, at *1-2 (N.D. Ga. Apr. 12, 2018) (granting leave to amend, 9 finding the proposed third amended complaint would not supersede the then-operative second 10 amended complaint, when the third amended complaint sought to fix inadvertent errors and there 11 existed “no discernible difference between the Second and Third Amended Complaints”, further 12 noting that defendants “are not required to file a new motion to dismiss simply because an amended 13 pleading was introduced while their motion was pending. . . the court simply may consider the motion 14 as being addressed to the amended pleading,” and citing 6 Charles A. Wright, Arthur R. Miller, and 15 Mary Kay Kane, Federal Practice and Procedure § 1476 at 558 (2nd ed. 1990); DeFrees v. Kirkland, 16 No. CV 11-4272 GAF (SPx), 2012 WL 12885114, at *13 (C.D. Cal. July 20, 2012), aff'd in part, 17 remanded in part, 579 F. App’x 538 (9th Cir. 2014) (“in circumstances in which an amended pleaded 18 [sic] possesses the same defects as those in the original pleading, district courts have exercised their 19 discretion to treat the motion to dismiss as addressed to the amended pleading.”) (citing cases)); and 21 12. THEREFORE, the parties further stipulate and agree as follows: 22 i.
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1 CLARKSON LAW FIRM, P.C. ROGERS JOSEPH O’DONNELL Ryan J. Clarkson (SBN 257074) Renée D. Wasserman (SBN 108118) 2 rclarkson@clarksonlawfirm.com rwasserman@rjo.com Shireen M. Clarkson (SBN 237882) Alecia E. Cotton (SBN 252777) 3 sclarkson@clarksonlawfirm.com acotton@rjo.com Katherine A. Bruce (SBN 288694) Emily A. Wieser (SBN 311315) 4 kbruce@clarksonlawfirm.com ewieser@rjo.com Kelsey J. Elling (SBN 337915) 311 California Street 5 kelling@clarksonlawfirm.com San Francisco, CA 94104 22525 Pacific Coast Highway Tel: 415.956.2828 6 Malibu, CA 90265 Fax: 415.956.6457 Tel: (213) 788-4050 7 Fax: (213) 788-4070 Attorneys for Defendant
Neal J. Deckant (SBN 322946) 9 ndeckant@bursor.com Brittany S. Scott (SBN 327132) 10 bscott@bursor.com 1990 North California Blvd., Suite 940 11 Walnut Creek, CA 94596 Tel: (925) 300-4455 12 Fax: (925) 407-2700 Benjamin Heikali (SBN 307466) 14 bheikali@faruqilaw.com 10866 Wilshire Blvd. #1470 15 Los Angeles, CA 90024 Tel: (424) 256-2884 16 Fax: (424) 256-2885
17 Attorneys for Plaintiff
20 MICHELLE MORAN, individually and on Case No.: 4:21-cv-07961-JSW behalf of all others similarly situated, Case Filed: 10/11/2021 21 FAC Filed: 1/3/2022 Plaintiff, 22 v. Assigned District Judge Jeffrey S. White
23 BONDI SANDS (USA) INC., JOINT STIPULATION AND [PROPOSED] ORDER TO FILE A 24 Defendant. SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 15(A)(2) 25 AS MODIFIED HEREIN MTD Hearing: 4/29/2022 (vacated) 26 CMC: None Set
27 1 Pursuant to Fed. R. Civ. P. 15(a)(2), Plaintiff Michelle Moran (“Plaintiff”) and Defendant 2 Bondi Sands (USA) Inc. (“Defendant”), by and through their counsel of record, jointly stipulate to 3 Plaintiff filing a Second Amended Class Action Complaint (“SAC”) to correct an ambiguous 4 allegation and remove claims regarding certain products that Defendant affirms were not sold in the 5 United States, without impacting Defendant’s pending motion to dismiss, as outlined below and 6 subject to Court approval: 8 1. WHEREAS, on October 11, 2021, Plaintiff filed a Class Action Complaint 9 challenging the “Reef Friendly” statement on the front label of certain Bondi Sands sunscreen 10 products manufactured by Defendant as being false and deceptive (ECF 1); 11 2. WHEREAS, on January 3, 2022, Plaintiff filed a First Amended Class Action 12 Complaint (“FAC”) against Defendant for the sole purpose of asserting a claim for damages under 13 California Consumer Legal Remedies Act (codified at Cal. Civ. Code §§ 1750, et seq.), pursuant to 14 a stipulated order of this Court (see ECF 17, 25); 15 3. WHEREAS, paragraph 17 of the FAC currently alleges as follows:
16 Hawaii Legislature—Octocrylene & Avobenzone. In 2018, state lawmakers banned oxybenzone and octinoxate from being included as 17 ingredients in sunscreens sold in Hawaii because of their deleterious impact on coral reefs and dependent marine life. In 2021, state lawmakers amended 18 the bill to also ban the sale of sunscreens that contain avobenzone and octocrylene starting in 2023. Octocrylene was banned because it can disrupt 19 human hormones and has a toxic impact on aquatic ecosystems, including coral reefs. Avobenzone was banned because it is “an endocrine disruptor 20 and can reduce coral resilience against the high ocean temperatures that are killing corals worldwide.” 21 22 FAC ¶ 17 (footnotes omitted); 23 4. WHEREAS, in 2018, Hawaii banned oxybenzone and octinoxate from being included 24 as ingredients in sunscreens (HRS § 342D-21 (effective Jul. 1, 2018)), and in 2021 state lawmakers 25 sought to amend that law to also ban avobenzone and octocrylene starting in 2023 (see S.B. 132, 26 31st Leg., Reg. Sess. (Haw. 2021)); however, this legislation is still pending and has not yet been 27 enacted (id.); 1 5. WHEREAS, counsel for Plaintiff acknowledge that, as currently drafted, the 2 allegations in Paragraph 17 of the FAC may be ambiguous and can be read to mean that the 2021 3 amendment has already been enacted, when that is not the case (Declaration of Katherine Bruce 4 (“Bruce Decl.”) at ¶ 2); 5 6. WHEREAS, the aforementioned ambiguous allegations are the result of an 6 inadvertent drafting error by counsel for Plaintiff and upon discovering this issue, counsel for 7 Plaintiff promptly seeks to cure the inartful pleading (id.); 8 7. WHEREAS, among other Bondi Sands sunscreen products, the FAC brings claims 9 challenging Bondi Sands’ “Hydra” line of sunscreen products (see ECF 25); 10 8. WHEREAS, Defendant filed a motion to dismiss the FAC, subject to Fed. R. Civ. P. 11 11, that confirmed in a writing signed by Defendant’s counsel that “Bondi Sands’ Hydra products . 12 . . were only sold in Australia,” and “Hydra products are not sold in the United States,” (ECF 29 at 2, 13 14); 14 9. WHEREAS, in Plaintiff’s opposition to Defendant’s motion to dismiss, Plaintiff 15 confirmed that, based on Defendant’s foregoing representations, Plaintiff would not oppose the 16 dismissal of claims “solely to the extent that they challenge Defendant’s ‘Hydra’ products” (ECF 42 17 at 14, n.12); 18 10. WHEREAS, between approximately April 7, 2022, and April 12, 2022, counsel for 19 Plaintiff and Defendant conferred regarding the subject matter of this stipulation and the related 20 proposed order as follows: 21 a. Plaintiff’s counsel requested that Defendant stipulate to Plaintiff amending the 22 FAC on a limited basis to correct the ambiguous allegations regarding the status 23 of the Hawaiian proposed legislation banning octocrylene and avobenzone, while 24 leaving Defendant’s pending motion to dismiss briefing intact (Bruce Decl. at ¶ 25 3a); 26 b. On April 12, 2022, counsel for Defendant agreed to the foregoing remedy, and 27 requested that Plaintiff also amend the FAC to remove claims as to the Bondi 1 c. Consistent with Plaintiff’s position expressed in Plaintiff’s opposition to 2 Defendant’s motion to dismiss and based upon Defendant’s representations 3 confirming no Bondi Sands Hydra sunscreen products were or are sold in the 4 United States, Plaintiff has agreed to Defendant’s condition and the dismissal of 5 claims solely with respect to the Hydra products (id. at ¶ 3c); 6 11. WHEREAS, the parties agree that the filing of the SAC should not implicate 7 Defendant’s motion to dismiss the FAC (see, e.g., Johnson v. Fulton Cty., Georgia, No. 1:17-CV- 8 03921-AT-WEJ, 2018 WL 2350172, at *1-2 (N.D. Ga. Apr. 12, 2018) (granting leave to amend, 9 finding the proposed third amended complaint would not supersede the then-operative second 10 amended complaint, when the third amended complaint sought to fix inadvertent errors and there 11 existed “no discernible difference between the Second and Third Amended Complaints”, further 12 noting that defendants “are not required to file a new motion to dismiss simply because an amended 13 pleading was introduced while their motion was pending. . . the court simply may consider the motion 14 as being addressed to the amended pleading,” and citing 6 Charles A. Wright, Arthur R. Miller, and 15 Mary Kay Kane, Federal Practice and Procedure § 1476 at 558 (2nd ed. 1990); DeFrees v. Kirkland, 16 No. CV 11-4272 GAF (SPx), 2012 WL 12885114, at *13 (C.D. Cal. July 20, 2012), aff'd in part, 17 remanded in part, 579 F. App’x 538 (9th Cir. 2014) (“in circumstances in which an amended pleaded 18 [sic] possesses the same defects as those in the original pleading, district courts have exercised their 19 discretion to treat the motion to dismiss as addressed to the amended pleading.”) (citing cases)); and 21 12. THEREFORE, the parties further stipulate and agree as follows: 22 i. Plaintiff shall file a SAC, a redlined draft of which (including Exhibit 1) is 23 submitted concurrently herewith as Exhibit A, to make only two substantive 24 amendments: 25 First, paragraph 17 shall be amended to state the following:
26 Hawaii Legislature—Octocrylene & Avobenzone. In 2018, state lawmakers banned oxybenzone and octinoxate from being included 27 as ingredients in sunscreens sold in Hawaii because of their deleterious impact on coral reefs and dependent marine life. In 2021, 1 sunscreens that contain avobenzone and octocrylene starting in 2023. 2 3 Second, all references to Bondi Sands’ “Hydra” products shall be removed, 4 which includes paragraphs: 4, 24, and Exhibit 1; 5 ii. The current briefing on Defendant’s pending motion to dismiss the FAC (ECF 6 Nos. 29, 42, 43) shall remain intact, such that the current briefing 7 automatically applies to Plaintiff’s SAC without the need for Defendant to file 8 a new motion to dismiss in response to the SAC; and 9 iii. The foregoing stipulations shall not prejudice any party, shall promote the 10 aims of justice, and conserve judicial and party resources.
12 Dated: April 29, 2022 CLARKSON LAW FIRM, P.C.
13 By: /s/ Katherine A. Bruce Ryan J. Clarkson 14 Shireen M. Clarkson Katherine A. Bruce 15 Kelsey J. Elling
Benjamin Heikali 17 BURSOR & FISHER, P.A. 18 Neal J. Deckant Brittany S. Scott 19 Attorneys for Plaintiff 20
21 Dated: April 29, 2022 ROGERS JOSEPH O’DONNELL
22 By: /s/ Alecia E. Cotton Renée D. Wasserman 23 Alecia E. Cotton Emily A. Wieser 24 Attorneys for Defendant 25
26 27 2 The Court's Order on the pending motion to dismigs,shall address this stipulation. 3 || DATED: April 29, 2022 Honoy ey iy ey BWhite 4 UNITZD GIMTY DISTRICT COURT FOR THE ; NORTHERN DISTRICT OF CALIFORNIA
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