420 F.Supp.3d 1046
S.D. Cal.2019Background
- Plaintiff Jane Loomis purchased a Slendertone "Flex Belt" (an EMS device) in April 2016 and alleges she relied on online ads, an Amazon listing, TV ads, social media, testimonials, and images suggesting the belt produces weight loss, body contouring, and visible "six-pack" abs or can replace traditional abdominal exercise.
- The FDA cleared the Flex Belt only for temporary toning/strengthening/firming of muscles and has not cleared EMS devices for weight loss, fat reduction, or replacing exercise; the FTC has warned against certain claims about such ab devices.
- Defendant Slendertone operates an interactive commercial website and sells via third-party retailers; its site contains both promotional statements/pictures and disclaimers that the belt is not a weight-loss product and that diet/exercise are required.
- Defendant moved to dismiss under Rules 8, 9(b), 12(b)(2), and 12(b)(6). The Court took judicial notice of FDA materials and incorporated Slendertone’s website/Amazon printouts into the complaint for purposes of the motion.
- The Court denied dismissal for lack of personal jurisdiction (finding specific—but not general—jurisdiction), denied dismissal of UCL/FAL/CLRA fraud-based claims and express-warranty claims, granted dismissal of implied-warranty and certain CLRA subsections, and withheld injunctive-relief standing (with leave to amend).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction (general vs. specific) | Slendertone targeted California via interactive website, CA-specific endorsements, registration/agent, and national ads; CA is proper forum | No paradigm contacts (incorp./PPB) to support general jurisdiction; internet contacts alone insufficient for specific jurisdiction | General jurisdiction denied; specific jurisdiction granted (interactive site + CA-targeted advertising and endorsements satisfy Calder/"effects" test; defendant didn’t overcome reasonableness presumption) |
| FDCA preemption | Loomis does not attack FDA clearance and her claims target consumer-facing misleading ads, not FDA processes | Claims are impliedly preempted to the extent they conflict with FDA clearance (e.g., accusing FDA-cleared statements of falsity) | Claims not preempted as pleaded; plaintiff does not challenge FDA clearance and alleges parallel state-law consumer claims permissible |
| Sufficiency of UCL/FAL/CLRA fraud pleading / Rule 9(b) & reasonable-consumer test | Identified specific statements/screenshots, alleged reliance and purchase, and explained why statements are misleading in light of FDA limits | Statements are puffery, cherry-picked out of context, and accompanied by clear disclaimers that prevent deception | Pleading meets Rule 9(b) particularity; reasonable-consumer deception is plausible given the contextual tension between promotional claims/pictures and disclaimers — motion to dismiss denied on these claims |
| Standing for injunctive relief | Loomis says she would consider future purchase if assured truthful marketing | No real likelihood of repeated injury; plaintiff’s future-purchase allegations are speculative | Injunctive-relief standing denied as inadequately pleaded; leave to amend granted |
| Restitution under UCL (standing to seek restitution) | Purchases were through Amazon but alleged unjust enrichment and that defendant indirectly received money | Korea Supply limits restitution to money taken from plaintiff directly | Court allows restitution standing at pleading stage — allegations that defendant was unjustly enriched are sufficient to proceed |
| Breach of express warranty | Advertisements/descriptions formed basis of the bargain and created express warranties that the product would deliver advertised benefits | Defendant points to a post-sale limited warranty addressing defects, not advertised benefits | Express-warranty claim survives; limited warranty did not negate plaintiff's express-warranty allegations |
| Implied warranty of merchantability | Belt failed to conform to ordinary-purpose expectations (as alleged) | No vertical privity because plaintiff bought from a retailer (Amazon) | Implied-warranty claim dismissed with prejudice for lack of privity (plaintiff cannot cure) |
Key Cases Cited
- Daimler AG v. Bauman, 571 U.S. 117 (U.S. 2014) (limits general jurisdiction to where a corporation is "essentially at home")
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (U.S. 1945) (minimum contacts / due process standard for personal jurisdiction)
- Calder v. Jones, 465 U.S. 783 (U.S. 1984) ("effects" test for purposeful direction in intentional torts)
- Walden v. Fiore, 571 U.S. 277 (U.S. 2014) (plaintiff's forum connections, not defendant's contacts with plaintiff, drive specific-jurisdiction analysis)
- Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119 (W.D. Pa. 1997) (sliding-scale approach to website contacts for jurisdiction)
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) (reasonable-consumer standard and deceptive packaging context)
- Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018) (standing for injunctive relief requires a real and immediate threat of future harm)
- Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134 (Cal. 2003) (limits UCL restitution to money taken from the plaintiff or in which plaintiff has ownership interest)