Complaint Dismissed Alleging Untrue Promoting In opposition to Johnson & Johnson, Bausch Health

On Friday in the Southern District of California, Choose Todd Robinson dismissed with prejudice a fifth amended grievance by a putative class that alleged defendants Johnson & Johnson and Bausch Overall health U.S. were falsely and deceptively promotion newborn powder merchandise.

Louisa Gutierrez and Debbie Luna, as folks and on behalf of the putative course, argued that the defendants’ promoting and advertising of their “Talcum Products,” which include “Baby Powder” and “Shower to Shower” items, as named in the fifth amended criticism, were deceptive and “led (them) to consider that the Talcum Merchandise were safe and pure, when they basically contained hazardous substances these kinds of as ‘asbestos, asbestiform fibers, lead, asilica, and arsenic,’” the court docket defined. Phrases applied to current market the solutions, these kinds of as “#1 Choice for Hospitals,” “Most Pure,” and “Hypoallergenic & examined with dermatologists,” were being instrumental in the course members’ decisions to obtain these goods, in the meantime a December 2018 Reuters posting exposed that the products contained “hazardous substances,” the grievance claimed. Specially, the plaintiffs alleged violations of the Purchaser Lawful Treatments Act (CLRA), the Wrong Promotion Regulation (FAL), and the Unfair Opposition Regulation (UCL).

The fifth amended criticism came right after the 3rd amended criticism was dismissed — “the court docket said that Plaintiffs need to specially allege how Defendants’ alleged misrepresentations impacted their choice to get the Talcum Product” — and the fourth was abandoned by the plaintiffs right after submitting for a further go away to amend. 

The two Johnson & Johnson and Bausch submitted motions to dismiss, arguing that the plaintiffs did not cure the failures of their previously amended issues: “(1) Plaintiffs have not revealed that the alleged misrepresentations are in fact deceptive and that (2) they have not pleased Rule 9(b)” the court docket agreed, getting the plaintiffs’ deficiencies in the fifth amended criticism to be reflective of prior ones.

Pursuant to Federal Rule of Civil Technique 9(b), for allegations “based in fraud,” the court described, a plaintiff need to argue with “particularity the circumstances constituting the fraud or slip-up.” Even further, in litigation with a lot more than just one defendant, the rule does not allow “lumping,” which “makes it unclear which Defendant dedicated the misconduct at challenge,” the judge states.

As in formerly amended issues, the most current criticism lumped the defendants collectively, “alleg(ing) that ‘Defendants’ depict that their items are ‘pure,’ ‘most pure,’ ‘asbestos-free’ without the need of identifying which Defendant — JJCI or Bausch — made the statement,” the judge finds. The statements of violations of the CLRA, FAL, and UCL are unsuccessful as a result of the plaintiffs falling limited of assembly 9(b)’s regular. 

Likewise, the courtroom rejects the plaintiffs’ argument that they have to have not “identify the particular misrepresentation” that led them to invest in the solutions in issue. The plaintiffs wished to apply In re Tobacco II, which discovered that in allegations involving “exposure to a prolonged-expression advertising campaign,” specificity of which certain advertisements or other advertising and marketing materials influenced the purchase in query was avoidable. The courtroom did not uncover the putative class’s arguments to be slim adequate for Tobacco to utilize, missing clarification of “when or how” the plaintiffs were uncovered to the ads they identify.

The decide also denied the plaintiffs any additional depart to amend: “Granting go away to amend would make it possible for Plaintiffs to file a sixth amended grievance in get to tackle the very same shortcomings that have persisted in their pleadings — particularly, their failure to satisfy Rule 9(b).”

The plaintiffs are represented by Valenti Law and Potter Handy. The defendants are represented by Orrick, Herrington & Sutcliffe and Greenberg Traurig.