California Asks Ninth Circuit to Essentially Eliminated Motions to Dismiss for False Advertising Claims

It is no secret that federal district courts situated in California typically impose stricter pleading requirements that their counterparts in the Superior Court of California. Not only are federal district judges more likely to grant dismissals on defectively pleaded complaints, but they are also more likely to find that certain claims cannot be established at that early phase of the litigation and order that the dismissal be made “with prejudice,” thereby precluding the plaintiff from having a second life to renew their claims.

This dichotomy was prominently on display when a United States District Court judge sitting in the Southern District of California granted a defendant’s motion to dismiss with prejudice a class action lawsuit involving a claim for deceptive advertising or labeling. In Souter v. Edgewell, a putative class action filed suit claiming that defendant Edgewell’s Wet Ones hand wipes were labeled in a way that misled consumers concerning the product’s efficacy and safety. The District Court found that the plaintiffs failed to plausibly allege that a reasonable consumer would be misled by the contested labeling.

The plaintiffs have now appealed to the Ninth Circuit and the State of California is getting involved. Specifically an amicus brief was filed by the State urging the Ninth Circuit to reverse the dismissal and find that there are factual questions in play with these types of claims that must be explored. The State argues that false advertising cases are inherently fact-intensive and established behavioral science requires the examination of “reasonable consumer” to be made by real-world consumers (e.g. jurors) as opposed to judges or lawyers who purportedly behave differently from the former group.

Ultimately, should the Ninth Circuit agree with the State’s position and interpretation of “reasonable consumer”, it is hard to imagine any defendant prevailing on pleadings challenges with respect to these claims in the future.