In re Clorox Consumer Litigation
894 F. Supp. 2d 1224
N.D. Cal.2012Background
- Putative nationwide class action against The Clorox Company over Fresh Step marketing and advertising alleging misrepresentation of odor elimination and cat choice; First and Second Commercials depicted carbon vs baking soda with implied superiority; C&D lawsuits in NY and related actions informed the dispute; Amended Consolidated Class Action Complaint seeks California-wide remedies or five state-specific subclasses; claims include CLRA, UCL, FAL, breach of express warranty, and unjust enrichment; Clorox moves to dismiss under Rule 12(b)(6) and to strike class allegations under Rule 12(f); court granted in part and denied in part
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of substantiation claims are cognizable under CA law | Plaintiffs allege the representations are false based on competent studies | Clorox argues lack of substantiation is the issue, not falsity | Substantiation theory not required; claims alleged false by plaintiff |
| Whether the First Commercials’ ‘cats like/choose Fresh Step’ claims are puffery | Claims are measurable and not mere puffery | Claims are subjective and not verifiable truths | Dismissal of puffery-based claims for 'cats like/are smart enough to choose' |
| Whether Rule 9(b) pleading requirements are satisfied | Complaint identifies commercials, contents, air dates, and reliance | 9(b) not satisfied without more specifics | Rule 9(b) satisfied given detailed commercials and reliance allegations |
| Breach of express warranty viability given packaging statements and studies | Warranties arise from labeling and comparative odor claims; studies support breach | Vague labeling and puffery limit warranty theory | Warranty claim viable for odor-elimination comparison; labeling-based warranty dismissed; amendment allowed to specify terms |
| Whether class allegations should be struck or maintained | Nationwide class with California connections is appropriate | Mazaa-like choice-of-law precludes nationwide class | deny strike of class allegations; selection of governing law to be resolved later; jurisdictional connections shown |
Key Cases Cited
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) (reasonable consumer test for misrepresentation)
- Kasky v. Nike, Inc., 27 Cal.4th 939 (Cal. 2002) (truthful advertising standards under CA law)
- Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038 (9th Cir. 2008) (puffery vs. factual claims; legal standard for misrepresentation)
- Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) (nationwide class and choice-of-law considerations in CA consumer protection)
- In re Mattel, Inc., 588 F. Supp. 2d 1111 (C.D. Cal. 2008) (CA consumer-protection and class-action considerations)
- Donohue v. Apple, Inc., 2012 WL 1657119 (N.D. Cal. 2012) (pleading standards and class considerations)
- Burr v. Sherwin Williams Co., 42 Cal.2d 682 (Cal. 1954) (privity in express warranty claims and exceptions)