Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JANE LOOMIS, on behalf of herself, all Case No. 3:19-cv-854 - MMA (KSC) others similarly situated, and the general public, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S Plaintiff, MOTION TO DISMISS v. SLENDERTONE DISTRIBUTION, INC.,
Defendant. [Doc. No. 8]
Jane Loomis, on behalf of herself and others similarly situated, (“Plaintiff”) filed a putative class action complaint against Slendertone Distribution, LLC (“Defendant”), alleging five causes of action under California law: (1) violations of the Unfair Competition Law (“UCL”); (2) violations of the False Advertising Law (“FAL”); (3) violations of the Consumer Legal Remedies Act (“CLRA”); (4) breach of express warranty; and (5) breach of the implied warranty of merchantability. Doc. No. 1 (“Compl.”). [1] On July 12, 2019, Defendant filed a motion to dismiss the class action complaint pursuant to Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(2), and 12(b)(6). See Doc. No. 8. Plaintiff filed an opposition to Defendant’s motion, and Defendant replied. See Doc. Nos. 13, 15. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 16. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion to dismiss.
B ACKGROUND [2]
This action arises out of the sale of the Flex Belt by Defendant to Plaintiff on or about April 22, 2016. Compl. ¶ 24. The central issues arise from statements and representations made in Defendant’s Flex Belt advertisements.
Plaintiff is an individual domiciled in San Diego, California and brings the action on behalf of herself and a potential class of similarly situated individuals. Id. ¶ 5, 34. Defendant is incorporated in and has its principal place of business in New Jersey. Id. ¶ 6.
Defendant markets and sells the Flex Belt, an electrical muscle stimulator (EMS). Id. ¶ 3. EMS devices are considered Class II Medical Devices by the Food and Drug Administration (“FDA”). The FDA has cleared the Flex Belt as a device that “may be able to temporarily strengthen, tone or firm a muscle.” Id. ¶ 3; Doc. No. 8-8 at 2. However, the FDA has “specifically disapproved such devices to assist with weight loss, contour the body, develop visible “six-pack” abs, or otherwise to replace traditional exercise.” ¶ 3. Moreover, the Federal Trade Commission (“FTC”) “has already determined that any claims that such ab devices cause fat loss and inch loss, will give users well-defined abdominal muscles (e.g., ‘rock hard,’ ‘six pack’ or ‘washboard’ abs), or that use of the ab devices is equivalent to conventional abdominal exercises, such as sit-ups or crunches, are false and misleading.” Id.
Plaintiff alleges Defendant advertised that the Flex Belt would help consumers achieve the benefits of traditional exercise without traditional exercise. Plaintiff claims she relied on Flex Belt’s website and Amazon.com listing before purchasing a Flex Belt and, later, replacement gel pads. Id. ¶ 3, 24. Essentially, Plaintiff alleges that Defendant’s advertisements were false or misleading because Defendant advertises that using the Flex Belt “would assist in weight loss, body contouring, develop visible ‘six- pack’ abs, and could be used effectively as a replacement for abdominal exercises.” Id. ¶ 4. In addition to Defendant’s website and Amazon.com listing, Plaintiff claims she also relied on information from Defendant’s Facebook advertisements and television commercials. Defendant’s other advertising initiatives include “celebrity endorsements, paid-advertisement articles, paid bloggers, social media . . . and third-party retailers. ¶ 11.
Plaintiff points to numerous quotations from Defendant’s Flex Belt marketing: GREAT ABS START HERE[.]
Rid Belly Fat with The Flex Belt[.]
The perfect abdominal contraction[.]
The Ultimate Workout for Abs[.]
The Flex Belt helps me stay fit[.]
The Flex Belt will stimulate all your major stomach muscles at the same time providing you with the perfect abdominal contraction—that means your upper abs, the lower abs and even your obliques are going to get worked from The Flex Belt . . . and it does all the work for you.
I can make dinner, I can do the laundry, read a book, sit on the couch or check e-mail. I put on The Flex Belt, it does all the work, and I get the result. The Flex Belt is the first Ab Belt Toning system cleared by the FDA for Toning, Firming and Strengthening the stomach muscles. With The Flex Belt, you can train your abs even if you’re too busy or too tired for a traditional workout. Just slip on the comfortable toning ab belt and the clinically demonstrated, patented medical-grade technology stimulates the nerves that make your muscles contract and relax. As a result, you get an effective abdominal workout that targets all the muscles in your abdomen— all in just 30 minutes a day. You don’t have to worry about your form or come up with the time to get it done. The Flex Belt is clinically demonstrated to deliver firmer, stronger and more toned abdominal muscles while you are: at home, at work, watching TV, exercising, folding laundry, helping your kids with their homework, taking a walk . . . [.] My abs look great and when you look good, you feel good. I would have to do so many different exercises to get all my abs, but with The Flex Belt it works all the ab muscles at the same time.
I don’t have to worry about my abs – they will be in shape.
Everybody I know wants the same thing: Great abs. The look, the confidence it gives us. The truth is, abs are a pain to work out. The Flex Belt saves you time, because it works all your abs at the same time. Just look how easy this is.
My abs feel like I have had the most amazing work out and I’ve just worn the belt around the house for 30 minutes. . . . It works.
I would do so many different exercises to get all of my abs, but with the Flex Belt it works all of the ab muscles at the same time. With the Flex Belt I don’t have to worry about my abs—this does work. I just have to put it on, it does the work, and I get the results.
Being an athlete and fitness model for most of my life I know that good abs come from a lot of hard work. As my schedule kept getting busier I was having a tough time fitting in my ab workouts because I was spending my exercise time on other things, which is when I decided to give this ab belt a try. I was blown away by how intense the contractions were on my abs and how unbelievable they felt after my first Flex Belt abdominal workout. What was even more incredible was the convenience of it. I could put The Flex Belt ® on and continue my day. Before I experienced The Flex Belt, I had a difficult time training my abs due to a car accident that left me with a bad back. Abdominal exercises hurt my lower back. Thanks to The Flex Belt, I am able to take my ab workout to a whole new level. The best part is I get a great, pain free ab workout in while helping the kids with their homework, making dinner or watching a movie.
Maximum Core Strength[.]
Ultimate Toning Technology[.] ¶ 20. [3] Defendant’s website also states the following:
Who Should Use the Flex Belt ® ? . . . Anyone that wants more attractive abs, regardless of current fitness levels . . . . * The Flex Belt® does not remove inches of fat but it tones, tightens and strengthens your stomach muscles Build a strong foundation for any exercise program—The Flex Belt’s ® technology will work for you quickly and effectively . If you haven’t exercised in a while, you know how hard it can be to motivate yourself to start again. And if you do have a regular exercise program, you know how hard it can be to find the time to get to the gym with your busy schedule. With The Flex Belt ® , it doesn’t matter what your current exercise status is because there will always be time to build firmer, stronger abs . This product is perfect for Casual Exercisers, Fitness Enthusiasts who are already in great shape, Executives who don’t have time to make it to the gym, Seniors, Mothers, People with sore backs, and anyone that wants more attractive abs, regardless of current fitness levels .
The Flex Belt ® can work for you too . . . For those looking for a convenient way to tone, strengthen and flatten the abdominal area, you couldn’t make a more solid choice than The Flex Belt ® . No matter what else you are doing to work on your stomach area—The Flex Belt ® will enhance it. Ab workouts are usually the type of exercise that take a lot of time, dedication, and effort. The Flex Belt ® is ideal for everyone who feels he or she doesn’t have the time to fit enough ab exercises into their routine. It is also great for fitness enthusiasts who want to take their workouts to the next level. Additionally, The Flex Belt ® intensity can be adjusted from level 1-150. As you use this effective ab belt, your muscle strength continually increases. As your abs get stronger you can keep increasing the intensity to always keep yourself advancing. Doc. No. 8-5 at 6, 8, 9.
Additionally, Plaintiff’s Complaint includes screenshots from Defendant’s website and Amazon.com listing. ¶ 21–24. Plaintiff relies upon testimonials from Flex Belt users to support her claims. id. ¶ 21; Doc. No. 8-5 at 5. Moreover, Defendant’s advertising contains several images throughout its Website and Amazon.com listing of individuals with “flat, toned, ‘six-pack’ abdominal muscles on celebrities and models to convey that such results can be achieved through use of the Flex Belt.” Compl. ¶ 23; see also id. ¶ 22; Doc. No 8-5 at 3–10; Doc. No. 8-6 at 2–5.
Defendant’s website and Amazon.com listing also contain language designed to mitigate expectations of consumers using the Flex Belt:
Here at The Flex Belt ® we believe that having a healthy diet and getting exercise are key to a balanced lifestyle. All of our endorsers use The Flex Belt in addition to their healthy lifestyle to give them an edge and take their results to the next level. The Flex Belt does not remove inches of fat but it tones, tightens and strengthens your stomach muscles. Using The Flex Belt in conjunction with your dedication to Diet, Nutrition and Exercise can help you achieve your goals of a more attractive stomach as well!
Our Motto is Eat Right, Exercise and Use The Flex Belt . . . [.] The Flex Belt ® does not remove inches of fat but it tones, tightens and strengthens your stomach muscles[.]
Winner of the 2012 World Bodybuilding & Fitness Federation Championship! Jill has been a Flex Belt Spoke[s]pers[o]n for the last few years and we proudly sponsored her for this WBFF competition. Jill also won the Ms Universe Figure Championships a Few Years ago. Since then she hasn’t competed and she came out of retirement to compete in the WBFF 2012 championships. In conju[n]ction with her grueling workout regimen, Jill used The Flex Belt ® and Flex Mini (our Butt Toning Product) daily to supplement her program. Congratulations Jill - We Knew You Would Win!!
Our Motto - Live Healthy.
Here at The Flex Belt we believe in living a healthy lifestyle. Having a healthy diet and getting exercise are key to a balanced life. We have aligned ourselves with Celebrities and Professional Athletes who believe the same. All of our endorsers use The Flex Belt in addition to their healthy lifestyle. Our Motto is Eat Right, Exercise and use The Flex Belt .
The Flex Belt is not a weight loss or fat reduction product. You will need a proper diet and regular exercise for that!
Doc. No. 8-5 at 4, 6, 7; Doc. No. 8-6 at 5. Regardless of the somewhat mitigating statements, Plaintiff alleges Defendant’s advertising falsely and misleadingly suggests Flex Belt consumers will gain the health and appearance benefits of traditional exercise. Compl. ¶ 4, 16, 20, 22, 23, 24, 25.
R EQUEST FOR J UDICIAL N OTICE
A. Legal Standard
Generally, a district court’s review on a 12(b)(6) motion to dismiss is “limited to
the complaint.”
Lee v. City of Los Angeles
,
B. Discussion
Defendant requests the Court to take judicial notice of a printout from the FDA’s
website entitled “Electronic Muscle Stimulators.” Doc. No. 8-1 at 2; Doc. No. 8-8 at
2–4. Plaintiff does not address or oppose this request. The Court finds judicial notice of
these documents is proper pursuant to Federal Rule of Evidence 201(b).
Tri-Union
Seafoods, LLC v. Starr Surplus Lines Ins. Co.
,
Plaintiff incorporates Defendant’s online advertising into her Complaint.
See, e.g.
,
Compl. ¶ 20–26. Defendant argues that “Plaintiff cherry-picks quotes from Slendertone’s
online advertising to create the appearance of a misleading narrative.” Doc. No. 8 at 20.
Defendant argues its advertisements “are neither false nor misleading when read in
context.” Defendant attaches exhibits to its motion to give the full picture of
Defendant’s website and Amazon.com listing in the Complaint.
See
Doc. No. 8-4.
However, Defendant does not request the Court to take judicial notice of these exhibits.
See
Doc. No. 8-1. Plaintiff does not directly address Defendant’s cherry-picking
argument or challenge the authenticity of Defendant’s proffered exhibits. Instead, she
rests on the facts pleaded in her Complaint, emphasizing “the Court ‘must accept as true
all the factual allegations in the complaint.’” Doc. No. 13 at 20 (quoting
Leatherman v.
Tarrant Cty. Narcotics Intelligence & Coordination Unit
,
Despite Defendant failing to request judicial notice, the Court has the power to
grant judicial notice sua sponte. Fed. R. Evid. 201(c)(1). Several district courts have
found judicial notice proper over publicly available websites.
Perkins v. LinkedIn
Corp.
,
I NCORPORATION - BY -R EFERENCE
A. Legal Standard
“Unlike rule-established judicial notice, incorporation-by-reference is a judicially created doctrine that treats certain documents as though they are part of the complaint itself. The doctrine prevents plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken—or doom—their claims.
Khoja v. Orexigen Therapeutics, Inc.
,
B. Discussion
Incorporation-by-reference is a proper vehicle to allow the Court to consider the
exhibits containing printouts from Defendant’s website and Amzon.com listing. Plaintiff
refers and uses screenshots from both webpages to support her Complaint.
See
Compl. ¶
20–26. Defendant’s motion relies extensively upon the same materials. Doc. No. 8-
4. Therefore, the Court finds the printouts of Defendant’s website and Amazon.com
listing—as supplied by Defendant—proper subjects of incorporation-by-reference to the
extent that the website printouts are not a means to “short-circuit the resolution of a well-
pleaded claim” by “serv[ing] to dispute facts stated in a well-pleaded complaint.”
Khoja
,
Similarly, incorporation-by-reference is proper for the Flex Belt warranty.
See
Doc. No. 8-3 at 3. Plaintiff’s fourth cause of action is breach of an express warranty.
Compl. ¶ 73–78. Plaintiff does not dispute the authenticity or challenge the existence of
the product warranty. Importantly, because an element of breach of express warranty is
“an affirmation of fact or promise or provided a description of its goods,”
Viggiano v.
Hansen Nat. Corp.
,
M OTION TO D ISMISS FOR L ACK OF P ERSONAL J URISDICTION
Rule 12(b)(2) allows a Defendant to move to dismiss a complaint for lack of
personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Upon a motion to dismiss, Plaintiff
carries the burden to demonstrate proper jurisdiction.
Schwarzenegger v. Fred Martin
Motor Co.
,
There are two independent limitations on a court’s power to exercise personal
jurisdiction over a nonresident defendant: the applicable state personal jurisdiction rule,
and constitutional principles of due process.
Sher
,
The Court proceeds by assessing whether personal jurisdiction over Defendant comports with federal due process requirements under either general or specific jurisdiction.
A. General Jurisdiction
General jurisdiction—as applied to a corporation—arises when a foreign
corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render
[it] essentially at home in the forum State.”
Daimler AG
,
The place of incorporation and principal place of business are not the only means
to achieve general jurisdiction for a corporation. However, “[o]nly in an ‘exceptional
case’ will general jurisdiction be available anywhere else.”
Martinez v. Aero Caribbean
,
To determine whether a corporation is “essentially at home,” sufficient to trigger
the exceptional case, courts examine the “[l]ongevity, continuity, volume, [and]
economic impact” of those contacts, as well as the defendant’s “physical presence[] and
integration into the state’s regulatory or economic markets.”
Mavrix Photo, Inc
, 647
F.3d at 1224. Importantly, a general jurisdiction analysis requires “an appraisal of a
corporation’s activities in their entirety, nationwide and worldwide. A corporation that
operates in many places can scarcely be deemed at home in all of them. Otherwise, ‘at
home’ would be synonymous with ‘doing business’ tests framed before specific
jurisdiction evolved in the United States.”
Daimler AG
,
The Ninth Circuit found a corporation not subject to general jurisdiction in
California where it had its principal place of business outside the forum state; had no
office, staff, or physical presence in the forum state; and was not licensed within the
forum state.
Martinez
,
Here, Plaintiff claims the Court has general jurisdiction over Defendant. Doc. No.
13 at 12–14. Defendant counters that it is not “essentially at home” for the purpose of
general jurisdiction. Doc. No. 8 at 5–6. Defendant is incorporated in and has its
principal place of business in New Jersey, and it is organized under Delaware Law.
Compl. ¶ 2; Doc. No. 6-2 at 2. Thus, there is no “paradigm basis” for general jurisdiction
over Defendant.
Daimler
,
Given the lack of the paradigm basis for general jurisdiction, Plaintiff continues to carry the burden to demonstrate—under an “exacting standard” only found in exceptional cases—whether Defendant “engages in a substantial, continuous, and systematic course of business” to render it “essentially at home” in California. Daimler AG , 571 U.S. at 139. Plaintiff does not meet her burden. As a preliminary matter, Plaintiff overlooks Supreme Court precedent emphasizing the “essentially at home” portion of the general jurisdiction analysis. [4]
Plaintiff argues that general jurisdiction is satisfied because “Slendertone sells, solicits, and engages in business in California, serving the state’s market, has designated an agent for service of process in California, and is registered with the California Secretary of State. Doc. No. 13 at 13; see also Doc. No. 13-1 at 2; Doc. No 13-2 at 2; Doc. No 13-3 at 2. Plaintiff also highlights that Defendant uses “television commercials,” “a website, celebrity endorsements, paid-advertisement articles, paid bloggers, social media (including Facebook)[,] and third party retailers.” Compl. ¶ 11, 24. Supplying supporting exhibits from advertisements on Defendant’s website, Plaintiff argues Defendant specifically targets California residents:
Slendertone targets, specifically, California residents through its own website, claiming “We put The Flex Belt ® in [the] hands of some of best Trainers in Los Angeles. These are people that are in peak physical shape and understand how to work their abs.” . . . . Slendertone also touts that it has “2 Million users worldwide.” . . . . The Slendertone website even includes a broad banner stating “Hear what some of the biggest Disc Jockeys in America have to say . . .” and includes a link to a radio broadcast from “Ellen K from the Ryan Seacrest Show” and advertises that she is the “#1 Female DJ in Los Angeles” and a link to listen to “what Howard Stern has to say about the Flex Belt ® . The biggest man in radio.
Doc. No. 13 at 13 (citations omitted) (emphasis omitted). The fact that a few people have
the product or advocate the product from California does not meet the exacting standard
that makes Defendant “essentially at home” in California.
See Helicopteros Nacionales
de Colombia, S.A.
,
Further, Plaintiff has not compared Defendant’s operations within California to its
operations in other states: the Court is left without evidence of the “[l]ongevity,
continuity, volume, [and] economic impact” of those contacts, as well as the defendant’s
“physical presence[] and integration into the state’s regulatory or economic markets.”
Mavrix Photo, Inc
,
Therefore, Plaintiff has not carried her burden to prove the Court has general jurisdiction over Defendant. Given the facts that Defendant is neither incorporated in nor has its principal place of business in California, Plaintiff has not provided the Court with sufficient evidence to meet the exacting standard of being “essentially at home” in California.
B. Specific Jurisdiction
“Where general jurisdiction is inappropriate, a court may still exercise specific
jurisdiction if the defendant has sufficient contacts with the forum state in relation to the
cause[s] of action.”
Sher,
1. Purposeful Direction
A Plaintiff may satisfy the first prong in the analysis by demonstrating that the
defendant “purposefully directed” its conduct toward the forum state, or “purposefully
availed” itself of the privilege of doing business in the forum.
Schwarzenegger,
374 F.3d
at 802. Courts typically utilize the “purposefully directed” standard in tort cases, whereas
the purposeful availment test is most useful for contract-based claims. To establish
the defendant “purposefully directed” its conduct toward the forum, the plaintiff usually
produces “evidence of the defendant’s actions outside the forum state that are directed at
the forum, such as the distribution in the forum state of goods originating elsewhere.” at 803. Thus, the court applies “an ‘effects’ test that focuses on the forum in which the
defendant’s actions were felt, whether or not the actions themselves occurred within the
forum.”
CollegeSource, Inc. v. AcademyOne, Inc.
,
i. Intentional Act Under this requirement, courts “construe ‘intent’ in the context of the ‘intentional act’ test as referring to an intent to perform an actual, physical act in the real world, rather than an intent to accomplish a result or consequence of that act.” Schwarzenegger , 374 F.3d at 806. Plaintiff alleges that Defendant sells its product worldwide—including to residents of California—through third party retailers with false and misleading claims. Compl. ¶ 10, 11, 24; Doc. No. 13 at 16. Because Defendants developed, advertised, and sold the product, the Court finds Plaintiff has carried her burden to show an intentional act by Defendant.
ii. Express Aim The parties’ purposeful direction analysis predominately focuses on the express aiming requirement. Defendant argues “something more” is necessary when a passive website is employed to establish specific jurisdiction and contends Plaintiff has not shown there is “something more.” Doc. No. 8 at 16. Defendant emphasizes in its reply brief that merely shipping a product into the forum state is an insufficient basis for specific jurisdiction. Doc. No. 15 at 3. Plaintiff responds that she has shown something more: interaction with Defendant’s website, worldwide sales by Defendant, targeting California through Facebook and television advertisements, “consummation [of] a deal” between the parties, and expectation that the product would enter into California through the stream of commerce. Doc. No. 13 at 16; see also Compl. ¶ 11, 24.
Although “[t]he exact form of our analysis varies from case to case and ‘depends,
to a significant degree, on the specific type of tort or other wrongful conduct at issue,’”
Picot v. Weston
,
In assessing specific jurisdiction through Internet conduct, “the common thread . . .
is that ‘the likelihood that personal jurisdiction can be constitutionally exercised is
directly proportionate to the nature and quality of commercial activity that an entity
conducts over the Internet.’”
Cybersell, Inc. v. Cybersell, Inc.
,
At one end of the scale are “passive” websites which merely display
information, such as an advertisement. Personal jurisdiction is not
appropriate when a website is merely . . . passive. At the other end of the
scale are “interactive” websites which function for commercial purposes and
where users exchange information. Personal jurisdiction is appropriate
when an entity is conducting business over the internet. Where a website is
somewhere between the two extremes, the likelihood that personal
jurisdiction can be constitutionally exercised is directly proportionate to the
nature and quality of commercial activity that an entity conducts over the
internet.
j2 Cloud Servs., Inc. v. Fax87
, No. 13-05353 DDP (AJWX),
Courts have looked at several factors to assess whether a defendant has done
“something more”: “the interactivity of the defendant’s website, the geographic scope of
the defendant’s commercial ambitions, and whether the defendant ‘individually targeted’
a plaintiff known to be a forum resident.”
Mavrix Photo, Inc.
,
Here, Plaintiff has shown that the express aim of Defendant was toward
California—not only Plaintiff—through maintaining an interactive website and taking
advantage of the California advertising market. Compl. ¶ 10–11, 24, 27. Defendant
maintains an interactive website and also uses Amazon.com as a third-party retailer.
Unlike a passive website that merely displays or advertises information, Defendant’s site
is for commercial purposes because it sells the Flex Belt through its website.
See
Compl.
¶ 10; Doc. No. 8-5 at 4–7; Doc. No. 13 at 6. By having a “CLICK HERE TO ORDER”
function directly on its site, Defendant allows higher interconnectivity and an exchange
of information necessary for the commercial transaction.
Cybersell, Inc.
, 130 F.3d
414 at 418;
j2 Cloud Servs., Inc.
,
Even if Defendant’s website alone were insufficient to demonstrate express
aiming, there is “something more.” First, Defendant has a designated agent for service of
process and is registered with the California Secretary of State. Doc. No. 13 at 5; Doc.
No. 13-2 at 2; Doc. No. 13-3 at 2. Second, Defendant has directly targeted California
with television commercials directed to Plaintiff’s California home and advertisements on
Defendant’s own website: “We put The Flex Belt ® in the hands of the best Trainers in
Los Angeles,” and “Ellen K from the Ryan Seacrest Show uses The Flex Belt ® -#1
Female DJ in Los Angeles.” Compl. ¶ 24; Doc. No. 8-5 at 7; Doc. No. 13 at 13. By
placing Flex Belt in the hands of California-specific individuals, Defendant has targeted a
California fitness community to help advertise its product and thus went beyond merely
making a connection between Defendant and Plaintiff.
Walden
,
iii. Foreseeable Harm
The foreseeable harm element requires that a defendant “caus[es] harm that the
defendant knows is likely to be suffered in the forum state.’”
CollegeSource, Inc.
, 653
F.3d at 1077 (quoting
Brayton Purcell LLP
,
Here, Plaintiff alleges Defendant targeted California and caused harm through selling the falsely advertised Flex Belt. Compl. ¶ 14–16. The Court finds it foreseeable that Defendant’s website and advertising that emphasized California-based fitness influencers would cause harm to California-domiciled Plaintiff if those advertisements and representations contained false or misleading information. Thus, Plaintiff has sufficiently alleged Defendant caused her a foreseeable harm.
iv. Conclusion In sum, Plaintiff’s allegations are sufficient to satisfy all three parts of the purposeful direction’s effects test.
2. Arising Out of or Relating to Forum Activities
The second prong in the analysis requires that the claim arise out of or result from
the defendant’s forum-related activities. A claim arises out of a defendant’s conduct if
the claim would not have arisen “but for” the defendant’s forum-related contacts.
Panavision Int’l L.P. v. Toeppen,
Defendant argues Plaintiff’s claims originate from online activities Defendant generally directed toward the entire world. Doc. No. 8 at 17. It adds that “[i]f Slendertone can be haled into California merely on the basis of its universally accessible online material, then it could be haled into court in every state, and respectively, every online advertiser worldwide could be haled into court in California.” Plaintiff responds that Defendant ignores the source of her alleged injury:
“the purchase of The Flex Belt from Slendertone, which Defendant shipped to Plaintiff, and which did not conform to the false and misleading promises made by Defendant. Plaintiff incurred no injury until Slendertone sold her the Flex Belt, and shipped her an EMS device that did not live up to its promises. Thus, as a matter of logic, the ‘but for’ test is satisfied because ‘but for’ Defendant selling the Flex Belt to Plaintiff, no claim could exist, whereas Slendertone’s online advertising does not give rise to a claim for any non-purchaser.”
Doc. No. 13 at 16–17. Here, Plaintiff’s claims arise out of her contacts with California. But for Defendant’s alleged false and misleading statements as to the Flex Belt and associated contacts with California, see supra , the claim would not have arisen. As to Defendant’s fear of being haled into every state, Defendant overlooks what makes its California contacts distinct from its contacts with other states—such as Defendant claiming on its own website that it has placed the Flex Belt “in the hands of some of [the] best Trainers in Los Angeles. These are people that are in peak physical shape and understand how to work their abs. Our goal was to have them [] give us their honest first impression of what they thought about The Flex Belt ® .” Doc. No. 8-5 at 7. Therefore, Plaintiff has satisfied the second prong of specific jurisdiction.
3. Reasonableness
If the plaintiff satisfies the first two prongs, the defendant bears the burden of
overcoming a presumption that jurisdiction is reasonable by presenting a compelling case
that specific jurisdiction would be unreasonable.
Burger King Corp. v. Rudzewicz,
471
U.S. 462, 477 (1985);
Haisten v. Grass Valley Medical Reimbursement Fund, Ltd.,
784
F.2d 1392, 1397 (9th Cir.1986). Seven factors are considered in assessing whether the
exercise of jurisdiction over a nonresident defendant is reasonable: (1) the extent of the
defendant’s purposeful interjection into the forum state’s affairs; (2) the burden on the
defendant of defending in the forum; (3) conflicts of law between the forum state and the
defendant's home jurisdiction; (4) the forum state’s interest in adjudicating the dispute;
(5) the most efficient judicial resolution of the dispute; (6) the plaintiff’s interest in
convenient and effective relief; and (7) the existence of an alternative forum.
Caruth v.
International Psychoanalytical Ass’n,
Here, Plaintiff contends that the third prong also supports the Court having personal jurisdiction over Defendant. Doc. No. 13 at 17. Plaintiff argues Defendant fails to carry its burden under this prong because it has not even addressed it and fails to explain why jurisdiction would be unreasonable. Indeed, Defendant has not directly addressed this prong and thus fails to meet its burden to prove the unreasonableness of jurisdiction.
4. Conclusion
Plaintiff has made a prima facie showing that Defendant purposefully directed its advertising initiatives at California and that those activities arose out of or relate to Plaintiff’s claims. Further, Defendant has not made a showing to overcome the presumption that jurisdiction is reasonable. Accordingly, the Court concludes that Defendant is subject to specific jurisdiction in California and DENIES Defendant’s motion to dismiss for lack of personal jurisdiction. [5]
M OTION TO D ISMISS FOR F AILURE TO S TATE A C LAIM
A. Legal Standard
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint.
Navarro
v. Block
,
In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth
of all factual allegations and must construe them in the light most favorable to the
nonmoving party.
Cahill v. Liberty Mut. Ins. Co.
,
Additionally, allegations of fraud or mistake require the pleading party to “state
with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
The context surrounding the fraud must “be ‘specific enough to give defendants notice of
the particular misconduct . . . so that they can defend against the charge and not just deny
that they have done anything wrong.’”
Kearns v. Ford Motor Co.
,
B. Discussion
1. Preemption As a preliminary matter, Defendant argues “Plaintiff’s claims are preempted because they are based in part on the theory that Slendertone’s representations regarding the Flexbelt violate the United States Federal Food, Drug, and Cosmetic Act (‘FDCA’).” Doc. No. 8 at 24. Defendant asserts that Plaintiff’s claims are impliedly preempted “[t]o the extent Plaintiff is suggesting that the FDA should not have cleared the Flex Belt, or that the statement that the Flex Belt is effective ‘for Toning, Firming and Strengthening the stomach muscles’ is false or misleading despite the fact that the FDA has cleared the Flex Belt for precisely such purposes.” Id. Defendant emphasizes that “Plaintiff’s UCL cause of action is explicitly premised, inter alia , on an alleged violation of the FDCA.” Plaintiff counters that Defendant’s argument is moot because she does not allege that the FDA should have not cleared the Flex Belt or that Defendant’s FDA-cleared language is false or misleading. Doc. No. 13 at 17.
The Supremacy Clause of the United States Constitution grants Congress
preemption power over state laws when Congress acts pursuant to one of its enumerated
powers. US. Const. Art. VI cl. 2;
Crosby v. Nat’l Foreign Trade Council
,
State statutes may be preempted through either express or implied preemption.
Crosby
,
“[T]he rule that emerges from cases discussing the FDCA’s preemptive force is as
follows[:] To avoid express preemption under Section 343–1(a), the plaintiff must be
suing for conduct that
violates
the FDCA. However, the plaintiff must not be suing
solely
because
the conduct violates the FDCA, else his claim would be impliedly
preempted under [21 U.S.C. §] 337(a).”
Hesano
, ,
However, parallel state “consumer protection laws, such as the UCL, FAL, and
CRLA, are nonetheless preempted if they seek to impose requirements that contravene
the requirements set forth by federal law.”
In re Ferrero Litig.
,
Here, Defendant argues
Plaintiff’s claims are preempted because they are based in part on the theory that Slendertone’s representations regarding the Flex Belt violate the United States Federal Food, Drug, and Cosmetic Act (“FDCA”). . . . . To the extent Plaintiff is suggesting that the FDA should not have
cleared the Flex Belt, or that the statement that the Flex Belt is effective “for Toning, Firming and Strengthening the stomach muscles” is false or misleading despite the fact that the FDA has cleared the Flex Belt for precisely such purposes, then Plaintiff’s claims are impliedly preempted. Doc. No. 8 at 24 (emphasis added). However, Plaintiff’s allegations do not address whether the FDA should have cleared the Flex Belt or whether the specific FDA-cleared statement is misleading. Compl. ¶ 2 (“Slendertone’s advertising falsely conveys that use of its Flex Belt will lead to weight loss by ‘getting rid of belly fat,’ will contour the body, provide visible ‘six pack’ abs, and is a total replacement for traditional abdominal exercise.”); Compl. ¶ 3 (“[The] FDA has only approved devices such as the Flex Belt to ‘temporarily strengthen, tone or firm a muscle’ and has specifically disapproved such devices to assist with weight loss, contour the body, develop visible ‘six-pack’ abs, or otherwise to replace traditional exercise.”).
Plaintiff’s allegations are also distinct from the cases cited by Defendant.
Buckman
does not apply because the alleged false representations triggering preemption
involved statements
made to the FDA itself
regarding Class III medical devices, whereas
Plaintiff here alleges false representations
made to consumers
regarding Class II medical
devices.
See Buckman Co. v. Plaintiffs’ Legal Comm.
,
In sum, the Court finds Plaintiff’s California-based claims not preempted. The Court proceeds to the merits of the Rule 12(b)(6) motion and the plausibility of Plaintiff’s claims.
2. UCL – Cal. Bus. & Prof. Code §§ 17200, et seq .
California Business & Professions Code § 17200 “establishes three varieties of
unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.”
Cel-
Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.
,
Plaintiff alleges Defendant violated the UCL under all three prongs. See Compl. ¶ 45–58. Defendant argues that Plaintiff lacks standing to pursue injunctive and restitutionary relief, Plaintiff fails to plead her claim with particularity, and Plaintiff fails to plead sufficient facts to support her claim because Defendant’s advertising is not misleading. Doc. No. 8 at 17, 19–20, 21, 24, 26.
i. Standing As a preliminary matter, Defendant argues Plaintiff’s UCL claim fails as a matter of law because remedies for a UCL violation are limited to injunctive and restitutionary relief and, here, none are available to Plaintiff. Doc. No. 8 at 26–29. Article III standing requires a plaintiff to demonstrate three elements: (1) plaintiff must have “suffered an ‘injury in fact’”; (2) “there must be a causal connection between the injury and the conduct complained of” and; (3) it must be “likely,” as opposed to merely “speculative,” that the injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992) (internal quotations and citations omitted).
a. Injunctive Relief Defendant argues Plaintiff lacks standing to claim injunctive relief because there is no threat of repeated injury. Doc. No. 8 at 26–28. Plaintiff responds that she pleaded sufficient facts support her entitlement to injunctive relief. Doc. No. 13 at 24–26.
A plaintiff seeking injunctive relief must prove (1) he or she “has suffered or is
threatened with a ‘concrete and particularized’ legal harm. . . coupled with ‘a sufficient
likelihood that he will again be wronged in a similar way,’” and (2) “a real and
immediate threat of repeated injury.”
Bates v. United Parcel Serv., Inc.
,
Plaintiff alleges that she
. . . would consider purchasing an EMS device again in the future if she were assured that the product was marketed truthfully and not falsely or misleadingly, and that the price of the product matched the benefit of the bargain she expected, for instance, only in providing temporary strengthening or toning of abdominal muscles (or other muscles to which the EMS device is directed) and not for a replacement for traditional exercise, weight-loss, fat loss, body-contouring, and for visible “six pack” abs.
Compl. ¶ 32. Plaintiff adds that she has no means of knowing whether the FDA approves a medical device that yields the benefits “she originally thought she was obtaining from the Flex Belt.” Id. ¶ 32. If the technology were developed that provided her originally sought benefits without the false or misleading statements, and she “was assured that such advertising was not false or misleading because Slendertone were enjoined from engaging in false advertising and she knew she could safely rely on such claims, she would purchase an EMS device from Slendertone in the future.” ¶ 33.
These allegations are insufficient to state a plausible claim for injunctive relief. The Davidson court held the plaintiff bringing UCL, FAL, and CLRA causes of action had standing to pursue injunctive relief where she adequately alleged an imminent or actual threat of future harm because the plaintiff
alleged that she “continues to desire to purchase wipes that are suitable for disposal in a household toilet”; “would purchase truly flushable wipes manufactured by [Kimberly–Clark] if it were possible”; “regularly visits stores . . . where [Kimberly–Clark’s] ‘flushable’ wipes are sold”; and is continually presented with Kimberly–Clark’s flushable wipes packaging but has “no way of determining whether the representation ‘flushable’ is in fact true.
Davidson
,
b. Restitutionary Relief
Defendant argues Plaintiff lacks standing to claim restitutionary relief because
Plaintiff never paid Defendant. Doc. No. 8 at 28–29. Plaintiff responds that restitution is
still proper even when payment is made indirectly to Defendant. Doc. No. 13 at 25–26.
Restitution is the “return [of] money obtained through an unfair business practice
to those persons in interest from whom the property was taken, that is, to persons who
had an ownership interest in the property or those claiming through that person.”
Korea
Supply Co. v. Lockheed Martin Corp.
,
Plaintiff alleges she bought the Flex Belt through Amazon.com. Compl. ¶ 24.
Defendant relies on
Korea Supply Co.
to argue restitution can only be recovered for funds
actually paid to Defendant. Doc. No. 13 at 28. In
Korea Supply Co.
, the California
Supreme Court addressed the issue “whether disgorgement of profits allegedly obtained
by means of an unfair business practice is an authorized remedy under the UCL where
these profits are neither money taken from a plaintiff nor funds in which the plaintiff has
an ownership interest,” and held that “disgorgement of such profits is not an authorized
remedy in an individual action under the UCL.”
Korea Supply Co.
,
Shersher v. Superior Court
,
Defendant overstates
Korea Supply Co.
’s holding. The California Court of Appeal
has noted that “in appropriate circumstances, the plaintiff in a UCL action may obtain
restitution from a defendant with whom the plaintiff did not deal directly.”
Shersher
, 65
Cal. Rptr. 3d at 640 (holding that the plaintiff had a valid UCL claim against the
defendant-manufacturer despite purchasing the product at issue from a third-party retailer
and noting further that the UCL is to be interpreted broadly);
see also Cabebe v. Nissan
of N. Am., Inc.
, No. 18-CV-00144-WHO,
ii. Fraudulent Prong
a. Rule 9(b) Heightened Pleading Standard and Parallels between the UCL, FAL, and CLRA
Rule 9(b)’s heightened pleading standard applies to UCL, FAL, and CLRA causes
of actions because they “are ‘grounded in fraud’ or ‘sound in fraud.’”
In re Apple & AT
& T iPad Unlimited Data Plan Litig.
,
Plaintiff alleges that on April 22, 2016 (the “when”), Plaintiff (the “who”) purchased a Flex Belt—and later replacement gel pads—through Defendant’s Amazon.com listing (the “where”). Compl. ¶ 24. Plaintiff asserts that Defendant misled customers through “false and misleading promises and affirmations contained on the Amazon page” (the “what”). Plaintiff expands on the “what” by detailing that Defendant’s advertisements suggesting weight loss and attainment of six-pack abdominal muscles through using the Flex Belt are false or misleading because “while an EMS device may be able to temporarily strengthen, tone or firm a muscle, no EMS devices have been cleared at this time for weight loss, girth reduction, or for obtaining ‘rock hard’ abs.” Id. ¶ 13, 15, 16, 24. Plaintiff alleges she relied on Defendant’s claims that using the Flex Belt would “result in weight loss, body contouring, well-defined abdominal muscles (e.g. ‘six-pack’ abs), and that it could replace traditional exercise to result in improved health, fitness, and body shape” (the “how”). Id. ¶ 24. Believing that the Flex Belt would result in weight loss and six-pack abs and relying on Defendant’s advertisements, Plaintiff purchased the Flex Belt and replacement gel pads. Id.
Defendant argues that Plaintiff fails to allege that the false or misleading representations were online at the time she purchased the Flex Belt in 2016. Defendant further asserts that Plaintiff fails to allege when the representations appeared online. See Doc. No. 8 at 18. Defendant also contends that Plaintiff fails to allege which specific advertisements she relied upon in addition to where the representations were published and who published them.
The Court is not persuaded by Defendant’s argument. Plaintiff “set[s] forth
more
than the neutral facts necessary to identify the transaction”; indeed, she “set[s] forth what
is false or misleading about a statement, and why it is false.”
Vess
,
b. Reasonable Consumer Test and the UCL, FAL, and CLRA
[7]
Under the UCL’s fraudulent prong, a plaintiff must “show deception to some
members of the public ... [or] allege that members of the public are likely to be
deceived.”
Herrejon v. Ocwen Loan Servicing, LLC
,
California’s FAL broadly proscribes “untrue or misleading statements in
advertising.”
Anunziato v. eMachines, Inc.
,
The underlying purpose of the CLRA is “to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.” Cal. Civ. Code § 1760. The CLRA “shall be liberally construed and applied to promote its underlying purpose.” California Civil Code § 1770 lists unlawful practices under the CLRA. Cal. Civ. Code § 1770. For example, “[a]dvertising goods or services with intent not to sell them as advertised” is an unlawful practice. Cal. Civ. Code § 1770(a)(9).
To state a claim under the FAL, UCL, or CLRA, a plaintiff must allege that the
defendant’s purported misrepresentations are likely to deceive a reasonable consumer.
See Williams
,
However, “‘[g]eneralized, vague, and unspecified assertions constitute “mere
puffery” upon which a reasonable consumer could not rely, and hence are not actionable’
under the UCL, FAL, or CLRA”
In re Ferrero Litig.
,
In Freeman , the Ninth Circuit affirmed dismissal of UCL, FAL, and CLRA causes of action after finding that a reasonable person would not be deceived. Freeman , 68 F.3d at 290. There, the plaintiff alleged he was deceived by a mailer that stated he won a million-dollar sweepstakes, but the mailer also included the condition that winning required having a winning sweepstakes number. Id. at 287, 289–90. The court further noted that the qualifying language was not hidden or unreadably small and “appear[ed] immediately next to the representations it qualifies and no reasonable reader could ignore it.” Id. at 289. The circuit court concluded its analysis by noting that the representations must be addressed in context and quotes the lower court that the “statements, in context, are not misleading.” Id. (quoting the lower court order and Haskell v. Time, Inc. , 857 F. Supp. 1392, 1403 (E.D. Cal. 1994)).
In contrast, the Ninth Circuit in Williams reversed dismissal of UCL, FAL, and CLRA claims, finding that a reasonable consumer would be deceived. Williams , 552 F.3d at 940. There, the plaintiff alleged that the use of “Fruit Juice” on a snack accompanied with images of fruit was deceptive because the snack “contained no fruit juice from any of the fruits pictured on the packaging and because the only juice contained in the product was white grape juice from concentrate.” Id. at 936. The plaintiff also challenged language on the side panel of the packaging that the snack “was made ‘with real fruit juice and other all natural ingredients,’ even though the two most prominent ingredients were corn syrup and sugar” and was “one of a variety of nutritious Gerber Graduates foods and juices.” The Ninth Circuit disagreed with the district court’s assessment that “no reasonable consumer upon review of the package as a whole would conclude that Snacks contains juice from the actual and fruit-like substances displayed on the packaging particularly where the ingredients are specifically identified.” Id. at 939. Instead, the Ninth Circuit noted that consumers should not “be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.” Id.
Here, the parties paint different pictures of the Defendant’s advertisements. Plaintiff alleges Defendant uses several false or misleading phrases that, taken together, “confuse and mislead consumers into believing its use will cause weight loss, fat reduction, contour the body, result in visible ‘six pack’ abs, and otherwise be a total replacement to traditional exercise.” Compl. ¶ 20; Doc. No. 13 at 20. Plaintiff claims she took that representation as truth, the representation was false, and lost money by purchasing the Flex Belt. Compl. ¶¶ 20–31; Doc. No. 13 at 20. Defendant argues that Plaintiff takes these representations out of context “to create the appearance of a misleading narrative.” Doc. No. 8 at 20. Defendant puts forth the same websites proffered by Plaintiff to illustrate it advertises that achieving stomach attractiveness requires more than just the Flex Belt—it also requires diet and exercise. at 21; Doc. No. 8-5 at 4. The Court proceeds by looking at the representations in their complete context to determine whether Defendant’s advertisements would deceive a reasonable consumer.
As a preliminary matter, the parties both highlight that the FDA has cleared the Flex Belt as an EMS device for toning, firming, and strengthening abdominal muscles. Compl. ¶13; Doc. No. 8 at 23–24; Doc. No. 8-8 at 4; Doc. No 13 at 9. Because the FDA has cleared Flex Belt for such use, such representations cannot be deceptive to a reasonable person. However, it would be deceptive to market an EMS device as cleared by the FDA “for weight loss, girth reduction, or for obtaining ‘rock hard’ abs” because “no devices have been cleared at this time” for such uses. Doc. No 8-8 at 2. Plaintiff argues that Defendant crosses the line and advertised results that the FDA has not cleared and that the Flex belt alone cannot achieve.
*41 1 Many of the testimonials upon which Plaintiff relies contain puffery. [8] For example,
With my schedule I can’t do an ab workout every day, but with The Flex Belt ® I’ll put it on every day because I’m doing things at the same time. So it’s really just being smart. It’s easy, I wear it every clay and my abs are there to show for it! My abs feel like I’ve had the most amazing workout and I just wore The Flex Belt ® around the house for 30 minutes.
The Flex Belt ® tightens, tones, and strengthens my stomach without me even having to think about it. It has taken my abs to a whole new level. . . . Working out my core might be the easiest thing I do all day. I can make dinner, I can do the laundry, read a book, sit on the couch or check e-mail. I put on The Flex Belt ® , it does all the work, and I get the results.
Compl. ¶ 21; Doc. No. 8-5 at 5. These testimonials alone are nonactionable puffery because they are highly subjective to the individuals giving the statements.
The website and the Amazon.com listing further state that “[t]he Flex Belt ® will stimulate all your major stomach muscles at the same time providing you with the perfect abdominal contraction —that means your upper abs, the lower abs and even your obliques are going to get worked from The Flex Belt . . . and it does all the work for you. You don’t have to worry about your form or come up with the time to get it done.” Compl. ¶ 20; Doc. No. 8-5 at 4; Doc. No. 8-6 at 4. This blurb likewise lacks language indicating that the Flex belt alone will result in weight loss, girth reduction, or an attractive appearance. Rather, it merely describes what the product does: “delivers a small amount of electricity to the body, which stimulates the muscles and causes them to contract.” Compl. ¶ 1.
Additional short phrases fall under nonactionable puffery: “GREAT ABS START
HERE,” “Maximum Core Strength,” and “Ultimate Toning Technology” Compl. ¶¶ 20,
24. These statements are nonspecific to the effects of the Flex Belt on physical
appearance and the modifiers “great,” maximum,” and “ultimate” are “outrageous
generalized statements.”
Summit Tech., Inc. v. High-Line Med. Instruments, Co.
, 933 F.
Supp. 918, 931 (C.D. Cal. 1996) (finding that the phrase “perfectly reliable” was “mere
puffery” under the Lanham Act);
see also Anunziato
,
Plaintiff further alleges that Defendant “markets the Flex Belt as a ‘miracle device’ that provides a ‘perfect’ abdominal workout in only 30 minutes of use per day while watching television, reading, cooking, or undertaking other mundane, non-physical activities. Slendertone further markets the Flex Belt as causing fat loss and well-defined abdominal muscles (i.e., ‘six pack’ abs), and as a better alternative to, or at least the equivalent of, conventional abdominal exercises, such as sit-ups or crunches.” Compl. ¶ 11. Defendant correctly points out that “miracle device,” “perfect abdominal workout,” and “fat loss” do not appear on its advertising. Indeed, Plaintiff fails to allege with specificity under Rule 9(b) where those statements are found. Moreover, it appears Defendant’s website states “perfect abdominal contraction ” not workout. Compl. ¶ 20; Doc. No. 8-5 at 4; Doc. No. 8-6 at 4. Additionally, Plaintiff claims Defendant used the following marketing phrasing: “Rid Belly Fat with The Flex Belt.” Compl. ¶ 20. Although Plaintiff attaches a screenshot of a YouTube page with that statement as the title, neither the YouTube page nor the Plaintiff shows or alleges that the video was prepared or published by Defendant. Compl. ¶¶ 20, 21.
Defendant is further correct that any reference to fat loss is accompanied by disclaiming language that the Flex Belt is insufficient to achieve weight loss and that a more attractive abdominal area requires proper diet and exercise. Doc. No. 8 at 23. For example, Defendant’s website highlights that the “Flex Belt does not remove inches of fat but it tones, tightens, and strengthens your stomach muscles. Using The Flex Belt in conjunction with your dedication to Diet, Nutrition and Exercise can help you achieve your goals of a more attractive stomach as well!” Doc. No. 8-5 at 4. This language is not buried at the bottom of the website or in smaller print than the rest of the website; rather, it is in the upper portion of the front page of the website in its standard font. Moreover, that language is immediately followed by the following larger font: “Our Motto is Eat Right, Exercise and Use The Flex Belt . . . .” Id. at 4. In a section labeled “Who Should Use the Flex Belt ® ?,” Defendant provides disclaiming language in the same font and size as the surrounding language: “* The Flex Belt ® does not remove inches of fat but it tones, tightens and strengthens your stomach muscles.” Id. at 6. In describing Flex Belt use by one of Defendant’s spokespersons, the website states “In conju[n]ction with her grueling workout regimen, Jill used The Flex Belt ® and Flex Mini (our Butt Toning Product) daily to supplement her program . at 7 (emphasis added). This cautionary message about how to achieve weight loss or fat reduction is echoed on Defendant’s Amazon.com listing:
Our Motto - Live Healthy .
Here at The Flex Belt we believe in living a healthy lifestyle. Having a healthy diet and getting exercise are key to a balanced life. We have aligned ourselves with Celebrities and Professional Athletes who believe the same. All of our endorsers use The Flex Belt in addition to their healthy lifestyle. Our Motto is Eat Right, Exercise and use The Flex Belt .
The Flex Belt is not a weight loss or fat reduction product. You will need a proper diet and regular exercise for that!
Doc. No 8-6 at 5. Next to this language is the following: “ FDA Cleared* to tone, firm and strengthen the abdominal muscles ”—language that both parties agree is proper. Compl. ¶13; Doc. No. 8 at 23–24; Doc. No. 8-8 at 4; Doc. No 13 at 9.
However, despite the puffery and the disclaiming language, specific statements on Defendant’s website, taken in their context, give rise to a plausible claim that a reasonable person would be deceived. Directly above the cautionary language that the Flex Belt “does not remove inches of fat,” Defendant’s website provides that “Who Should Use the Flex Belt ® ? . . . Anyone that wants more attractive abs, regardless of current fitness levels.” Doc. No. 8-5 at 6. Further down, the website provides that
With The Flex Belt ® , it doesn’t matter what your current exercise status is because there will always be time to build firmer, stronger abs . This product is perfect for Casual Exercisers, Fitness Enthusiasts who are already in great shape, Executives who don’t have time to make it to the gym, Seniors, Mothers, People with sore backs, and anyone that wants more attractive abs, regardless of current fitness levels . Id. at 8. Towards the bottom, Defendant appears to shift its FDA-approved language of “toning strengthening, and firmin g” to language of “[f]or those looking for a convenient way to tone, strengthen and flatten the abdominal area.” at 9.
Taken together with the above “
anyone that wants more attractive abs
”
statement, Defendant’s advertisement makes it “probable that a significant portion of the
general consuming public or of targeted consumers, acting reasonably in the
circumstances, could be misled” to believe the Flex Belt could help consumers achieve
more attractive abdominal muscles.
Lavie
,
Interpreting these statutes broadly, the Court finds that they do not permit
Defendant to make misleading statements as to improved abdominal appearance with the
Flex Belt while simultaneously disclaiming that “The Flex Belt does not remove inches
of fat” to avoid judicial scrutiny on a motion to dismiss. Doc. No. 8-5 at 4, 8, 9. Unlike
the
Freeman
case, where dismissal was appropriate given the
conditional
language and
its immediate proximity to the language-at-issue, Defendant’s website appears to provide
contradictory
language that could plausibly deceive a reasonable person. Although the
additional personal testimonials and pictures of six-pack abdominal muscles constitute
puffery, the testimonials and pictures “contribute ‘to the deceptive context of the
packaging as a whole.”
In re Ferrero Litig.
,
iii. Unlawful Under the “unlawful prong,” Plaintiff alleges Defendant violated the FAL; CLRA; the Federal Food, Drug, and Cosmetic Act; and the California Sherman Food Drug, and Cosmetic Act. Compl. ¶ 40. While the parties go into depth regarding the fraudulent prong, the parties fail to explicitly address the unlawful prong.
An action brought under the “unlawful” prong of this statute “borrows” violations
of other laws when committed pursuant to business activity.
Farmers Ins. Exchange v.
Superior Court
,
Here, Plaintiff can succeed on this prong only if she pleaded sufficient facts to
support another violation.
Aleksick
,
iv. Unfair Prong Plaintiff alleges Defendant’s actions were unfair because its conduct was immoral, unethical, unscrupulous, injurious, and violative of public policy. Compl. ¶ 51–58. Because of past and continuing injury, Plaintiff seeks injunctive and restitutionary relief. Compl. ¶ 57–58. As with the unlawful prong, the parties fail to explicitly address the unfair prong.
With respect to the “unfairness” prong, the California Supreme Court has defined
the word “unfair” under the UCL to mean conduct that “threatens an incipient violation
of an antitrust law, or violates the policy or spirit of one of those laws because its effects
are comparable to or the same as a violation of the law, or otherwise significantly
threatens or harms competition.”
Cel-Tech
,
Here, Plaintiff has pleaded facts showing customer injury. Plaintiff showcases specific statements regarding the physical appearance benefits of the Flex Belt on Defendant’s website that a reasonable consumer could find misleading. Plaintiff alleges she relied on these representations in hope of attaining the promoted benefits without traditional exercise. Taking Plaintiff’s allegations as true, the Court finds an injury. Defendant does not point the court to any countervailing interests. Finally, given that whether consumers could have avoided the injury is a question of fact, Rule 12(b)(6) dismissal is inappropriate. Thus, the Court finds Plaintiff properly pleaded sufficient facts to satisfy the unfair prong under the Camacho test.
v. Conclusion Accordingly, the Court DENIES Defendant’s motion to dismiss as to Plaintiff’s UCL, FAL, and CLA causes of action.
3. CLRA Nonfraud Claims – Cal. Civ. Code §§ 1770(a)(7), 1770(a)(16) Defendant argues that Plaintiff’s allegations regarding California Civil Code §§ 1770(a)(7), 1770(a)(16) are unsupported by facts and must be dismissed. Doc. No. 8 at 25. Plaintiff does not respond to these arguments in her opposition brief.
As to subsection 1770(a)(7), Defendant asserts there are no facts alleging “subpar quality or poor construction.” Plaintiff simply quotes the language from the statute without showing how Defendant violated the subsection with factual support, and Plaintiff’s allegations rest on false advertising claims. Accordingly, Plaintiff fails to state a viable claim under California Civil Code § 1770(a)(7).
As to subsection 1770(a)(16), Defendant claims “Plaintiff has not alleged any
representations subsequent to the alleged initial representation.” Doc. No 8 at 25.
Several district courts have found subsection 1770(a)(16) “to target not the initial
representation in a transaction, but a subsequent representation which is deceptive.”
Ehret
v. Uber Techs.
, Inc.,
Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s CLRA claims under California Civil Code §§ 1770(a)(7), 1770(a)(16) without prejudice and with leave to amend.
5. Express Warranties – Cal. Com. Code § 2313(1) Plaintiff alleges Defendant made representations regarding the Flex Belt’s health benefits that were part of the basis of the bargain; however, Plaintiff claims the Flex Belt failed to yield the advertised benefits. Compl. ¶ 74–75. Plaintiff claims Defendant breached the express warranty and caused Plaintiff damages. ¶ 75–76, 78.
An express warranty is created by the following means: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
Cal. Com. Code § 2313(1). To plead breach of an express warranty under California law,
a “plaintiff must allege that the seller ‘(1) made an affirmation of fact or promise or
provided a description of its goods; (2) the promise or description formed part of the
basis of the bargain; (3) the express warranty was breached; and (4) the breach caused
injury to the plaintiff.’”
Viggiano
,
Plaintiff has adequately pleaded a claim for breach of express warranty regarding the benefits of using the Flex Belt. As discussed in depth, supra , Plaintiff identified specific statements regarding the appearance benefits of using the Flex Belt. See Doc. No. 8-5 at 6. Plaintiff claims that the purported benefit was the basis for purchasing the Flex Belt. Compl. ¶ 24, 25. She further alleges that the Flex Belt could not achieve the results associated with traditional exercise. id. ¶ 13, 18, 19. Finally, she claims the breach caused a financial injury. ¶ 28.
However, Defendant argues that it only provided a limited express warranty—a warranty only addressing product defects. Doc. No. 8 at 29. Defendant’s warranty for the Flex Belt states “THIS LIMITED WARRANTY IS THE ONLY WARRANTY FOR THE PRODUCT, AND THERE ARE NO OTHER EXPRESS WARRANTIES, ORAL OR WRITTEN, PROVIDED BY [Slendertone].” Doc. No. 8-3 at 3.
Under California law, “[w]ords or conduct relevant to the creation of an express
warranty and words or conduct tending to negate or limit warranty shall be construed
wherever reasonable as consistent with each other.” Cal. Com. Code § 2316. “Because a
disclaimer or modification is inconsistent with an express warranty, words of disclaimer
or modification give way to words of warranty unless some clear agreement between the
parties dictates the contrary relationship.”
Hauter v. Zogarts
,
Noting the presumption of construing warranties as consistent with one another, the burden against the seller, and the fact the limited warranty was included in the packaging for the Flex Belt after Plaintiff purchased it, see Doc. No. 8-2 at 2, the Court finds that the limited warranty does not upset Plaintiff’s alleged express warranty cause of action.
Accordingly, the Court DENIES Defendant’s motion to dismiss Plaintiff’s breach of express warranty cause of action.
6. Implied Warranty of Merchantability – Cal. Com. Code § 2314 Plaintiff alleges that Defendant is a merchant of the kind of goods sold and impliedly warranted that “the Flex Belt will result in weight loss, well-defined abdominal muscles, and is a superior or equal replacement for traditional abdominal exercise.” Compl. ¶ 80–81. Plaintiff claims Defendant breached the implied warranty and caused Plaintiff damages. ¶ 82–83, 85.
“Unlike express warranties, which are basically contractual in nature, the implied
warranty of merchantability arises by operation of law.”
Am. Suzuki Motor Corp.
, 37
Cal. App. 4th at 1295 (citing
Hauter
,
Defendant argues this cause of action is not available to Plaintiff because Plaintiff bought the Flex belt through Amazon.com and thus lacks the necessary vertical privity with Defendant. See Doc. No. 8 at 31. Plaintiff responds that there is privity because the parties are linked in the distribution chain and—even if no privity exists—the claim can proceed under the third-party beneficiary exception. Doc. No. 13 at 28.
A plaintiff asserting breach of an implied warranty must be in vertical privity with
the defendant.
Clemens v. DaimlerChrysler Corp.
,
Moreover, the Court finds there is no third-party beneficiary exception to
California’s privity requirement. The Ninth Circuit has found that “California courts
have painstakingly established the scope of the privity requirement under California
Commercial Code section 2314, and a federal court sitting in diversity is not free to
create new exceptions to it.”
Clemens
,
Accordingly, the Court
DISMISSES
Plaintiff’s express warranty claim
with
prejudice
because as a matter of law Plaintiff cannot cure the privity defect.
See Knappenberger
,
C. Conclusion
In sum, the Court GRANTS Defendant’s motion to dismiss as to Plaintiff’s breach of implied warranty claim and CLRA claims under California Civil Code §§ 1770(a)(7), 1770(a)(16) and DENIES Defendant’s motion to dismiss as to Plaintiff’s UCL and FAL claims, CLRA claims under California Civil Code §§ 1770(a)(5), 1770(a)(9), and breach of express warranty claims.
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / / C ONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion to dismiss. Plaintiff may file an amended complaint that cures the deficiencies identified herein with respect to her request for injunctive relief and CLRA claims under California Civil Code §§ 1770(a)(7), 1770(a)(16) on or before November 22, 2019 .
IT IS SO ORDERED .
Dated: November 4, 2019
_____________________________ Hon. Michael M. Anello United States District Judge
Notes
[1] All citations refer to the pagination assigned by the CM/ECF system.
[2] Because this matter is before the Court on a motion to dismiss, the Court must accept as true the
allegations set forth in the complaint.
Hosp. Bldg. Co. v. Trs. Of Rex Hosp.
,
[3] To the extent Plaintiff notes discrepancies between these quotations and what is stated on the actual website, which the Court considers pursuant to the incorporation-by-reference doctrine, the Court addresses the issue infra .
[4] For example, Plaintiff cites to a California Supreme Court case from 1969—long before the Supreme
24
Court’s seminal cases outlining the parameters of general jurisdiction.
Compare Buckeye Boiler Co. v.
Superior Court of Los Angeles Cty.
,
[5] As such, Plaintiff’s request for jurisdictional discovery is moot.
[6] However, to the extent Plaintiff attributes specific quotations to support her causes of action without indicating where the quotations originate, the Court declines to consider them.
[7] “Because the same standard for fraudulent activity governs all three statutes, courts often analyze the
three statutes together.”
Hadley v. Kellogg Sales Co.
,
[8] Given the Plaintiff provides only narrow screenshots of portions of Defendant’s website, the Court 26 additionally relies on the full website printout supplied by Defendant. The Court also notes that Plaintiff quotes several phrases attributable to Defendant in paragraph twenty of the Complaint. Compl. ¶ 20. 27 Although Plaintiff alleges these phrases were used to market and sell the Flex Belt, Plaintiff fails to detail where she saw and relied upon them. To the extent these phrases are not part of the screenshots or presented in Defendant’s printout of Defendant’s website, the Court declines to consider them.