Page 1
Ninth Circuit Restores Suit Alleging That Label Misrepresents Sanitizers’ Germ-Killing Power
VanDyke Accuses Colleagues of Inventing ‘Alternative Theory’ Not Set Forth by Plaintiff in Pleading or in His Briefs
By a MetNews Staff Writer
|
|
|
Depicted above is one of the hand sanitizers manufactured by Vi-Jon which has been sued for alleged violation of California consumer protection statutes. The majority of a three-judge Ninth U.S. Circuit Court of Appeals panel on Wednesday reversed a dismissal of the action. |
The Ninth U.S. Circuit Court of Appeals has resuscitated the fourth amended complaint in an action under California consumer protection statutes over claims that the maker of hand sanitizers falsely represents that each product “kills 99,99% of germs,” with Circuit Judge Lawrence VanDyke insisting in a dissent that the majority is concocting a cause of action the plaintiff has not stated.
Circuit Judge Morgan Christen and Senior Circuit Judge William A. Fletcher signed a memorandum opinion, filed Wednesday, reversing the dismissal of the action with prejudice by District Court Judge Jeffrey T. Miller of the Southern District of California.
They did agree with Miller that that Anthony Moreno failed to state a claim based on the theory that defendant Vi-Jon, LLC’s products are apt to deceive a reasonable consumer into thinking that virtually 100 percent of all on hands germs will be destroyed. They noted that next to the claim on each bottle is an asterisk and on the back is the explanation:
“Effective at eliminating more than 99.99% of many common harmful germs and bacteria in as little as 15 seconds.”
Christen and Fletcher said:
“Because the back labels narrow the products’ claims to ‘many common harmful germs,’ reasonable consumers would not be deceived into believing that the products kill 99.99% of all germ species commonly found on hands, as Moreno contends.”
However, they said that the fourth amended complaint “alleges a narrow alternative theory of deceptiveness: that Vi-Jon’s labels would deceive reasonable consumers into believing that the products are 99.99% effective under real-world conditions.” The judges noted the allegations that Vi-Jon “does not test its Products on human hands” and that” under actual consumer use conditions, instead of in a sterile laboratory environment, the Products are additionally ineffective, including where the hands of consumers are dirty, greasy, sweaty or wet,” declaring:
“Vi-Jon’s back-label qualifier does not defeat Moreno’s alternative theory because Moreno alleges the products are not 99.99% effective in real-world settings against all germs, including the ‘many common harmful germs’ the products claim to kill.”
The majority held that Moreno’s claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act may proceed, but “only with respect to Moreno’s alternative theory.”
The judges also determined that the pleading states a claim for breach of warranty, in connection with the alternative theory, and for unjust enrichment based on the retention of income derived from allegedly deceitful labeling.
Van Dyke said in his dissent:
“I cannot agree…with the majority’s decision to breathe further life into Moreno’s now-many-times-rejected complaint based on a supposed ‘narrow alternative theory’ premised on Moreno’s passing and conclusory allegations that Vi-Jon’s sanitizers are ‘additionally ineffective’ on ‘dirty, greasy, sweaty or wet’ hands….[W]hile Moreno’s complaint does include allegations about dirty or greasy hands, those allegations are made in service of the primary theory of liability that the majority agrees ‘cannot proceed.’ Neither his pleadings in the district court nor his briefs before this court rely on such an alternative theory, and this court should not go out of its way to make such arguments on his behalf.”
He added:
“[T] here is no reason to think that Moreno intended to plead the ‘“alternative theory’ the majority now generously ascribes to his Fourth Amended Complaint. No such theory exists therein. Unsurprisingly, the district court’s order dismissing the Fourth Amended Complaint never mentioned such a theory or even considered Moreno’s ‘greasy hands’ allegations as a separate claim, and the parties’ briefing on the motion mentioned them only in passing. In short, the majority is forcing a tiny tail to wag a dead dog. and I would not force the district court to consider a phantom theory of relief pieced together from a few stray remarks in a lengthy complaint that it has in any event already rejected when granting a prior motion to dismiss.”
The case is Moreno v. Vi-Jon, LLC, 23-55631.
Copyright 2024, Metropolitan News Company