Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 1 of 11 Page ID #:268
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`Bethany Lukitsch (SBN 314376)
`blukitsch@bakerlaw.com
`Kamran Ahmadian (SBN 314566)
`kahmadian@bakerlaw.com
`BAKER & HOSTETLER LLP
`11601 Wilshire Boulevard, Suite 1400
`Los Angeles, CA 90025
`Telephone: 310.820.8800
`Facsimile: 310.820.8859
`
`Attorneys for Defendants
`RED LOBSTER MANAGEMENT LLC and
`RED LOBSTER HOSPITALITY LLC
`
`
`IN THE UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`
`
`Dezzi Rae Marshall, on behalf of
`herself and all others similarly situated,
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`
`Plaintiffs,
`
`
`
`v.
`
`
`Red Lobster Management LLC and Red
`Lobster Hospitality LLC,
`
`
`Defendants.
`
` Case No.: 2:21-cv-04786-JAK-MAR
`
`[Assigned to Hon. John A. Kronstadt]
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`
`REPLY IN SUPPORT
`DEFENDANTS’ MOTION TO
`DISMISS PLAINTIFF’S FIRST
`AMENDED COMPLAINT FOR
`FAILURE TO STATE A CLAIM
`UPON WHICH RELIEF CAN BE
`GRANTED PURSUANT TO FED.
`R. CIV. P. 12(B)(6)
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`Hearing Date:
`Time:
`Courtroom:
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`March 21, 2022
`8:30 a.m.
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`ATTORNEYS AT LAW
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`LOS ANGELES
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`REPLY IN SUPPORT OF DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS
`CASE NO.: 2:21-CV-04786-JAK-MAR
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`

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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 2 of 11 Page ID #:269
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`
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`I.
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`ARGUMENT
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`A.
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`Plaintiff’s FAC Lacks Facts to Support Consumer Protection
`Claims Against Red Lobster.
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`Plaintiff attempts to create the illusion that her FAC contains the necessary
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`factual allegations to support her deceptive advertising claims. However, a closer
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`examination of what was actually pled reveals that facts necessary to support her
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`claims that Red Lobster’s sustainability representations are false do not exist. After
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`removing the non-factual, boilerplate allegations, Plaintiff’s factual allegations can be
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`reduced to the following:
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` Plaintiff alleges that she entered a Red Lobster restaurant in Valencia,
`California on January 4, 2020. FAC ¶ 23. While sitting in the
`restaurant and prior to placing her order, Plaintiff reviewed Red
`Lobster’s menu where she saw Red Lobster’s “Sustainability
`Representations” for the very first time. Id. at ¶ 24.
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` As demonstrated by the FAC, the Sustainability Representations on
`Red Lobster’s menu do not make any promises relating to “the
`highest environmental and animal welfare standards.” FAC ¶ 5
`(emphasis added). The Sustainability Representations include an
`invitation to “[l]earn more about [Red Lobster’s] commitments” at a
`website which is provided in bold text as part of the Sustainability
`Representations. Id. Specific origin sourcing information and
`sustainability practices (which are updated regularly) are available on
`the website provided on the menu. Id.
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` Plaintiff claims the Federal Trade Commission’s (“FTC”) Green
`Guides support her allegation that a reasonable consumer would be
`deceived by Red Lobster’s Sustainability Representations. See Opp.
`at 8; FAC ¶ 31. However, the cited section from the Green Guides
`only warns that an “unqualified general environmental benefit claim
`1
`REPLY IN SUPPORT OF DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS
`CASE NO.: 2:21-CV-04786-JAK-MAR
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`ATTORNEYS AT LAW
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 3 of 11 Page ID #:270
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`… may convey that the item or service has no negative environmental
`impact.” See 16 C.F.R. § 260.4(b) (2012). Red Lobster’s
`environmental claims are not unqualified but rather are specific in
`nature and accompanied by “clear and prominent qualifying
`language” which explain the scope and breadth of Red Lobster’s
`environmental promises. See Mot. at 17; FAC ¶¶ 7-8.
`
` Plaintiff also cites to two consumer studies to support the
`“reasonableness” of her own interpretation of Red Lobster’s
`Sustainability Representations. FAC ¶¶ 32-34. Again, the studies
`she relies upon are inapplicable as they rely upon survey data
`obtained from an entirely different set of consumers—i.e., European
`grocery consumers—or analyze terms that were not included in Red
`Lobster’s Sustainability Representations—i.e., “eco-friendly” or
`“ecologically sustainable.”1 Id.
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` Plaintiff cites to a U.S. District Court opinion issued several months
`after Plaintiff visited the Valencia, CA Red Lobster restaurant as the
`sole allegation in support of her claim that Red Lobster knowingly
`sourced
`its Maine
`lobster contrary
`to
`its Sustainability
`Representations. FAC ¶¶ 35-40. Even if this opinion was available
`to Plaintiff at the time of her purchases, it is silent as to the
`sustainability practices of Maine lobster fisherman, and only
`concludes that a federal agency failed to comply with a procedural
`requirement of the Endangered Species Act. See Ctr. for Biological
`Diversity v. Ross, 2020 WL 1809465 (D.D.C. Apr. 9, 2020).
`
` 
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` 
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`
`
` 
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` Finally, Plaintiff alleges that countries where Red Lobster sources its
`shrimp—Indonesia, Vietnam,
`India,
`and China—utilize
`“environmentally destructive and inhumane practices.” See FAC
`¶¶ 41-59. Notably, however Plaintiff does not allege that Red Lobster
`sources shrimp from farms that employ any practices that are contrary
`to Red Lobster’s printed Sustainability Representations. See id.
`Clearly, when the factual allegations in the FAC are critically examined and
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`the bald allegations and irrelevant “facts” are appropriately disregarded, Plaintiff is
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`left with no facts to support her claim that a reasonable Red Lobster consumer—who
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`very likely committed to eating seafood before they even looked at the menu—would
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`be deceived by the Sustainability Representations, particularly given the wealth of
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`information Red Lobster provided its consumers explaining its sustainability
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`1Notably, Plaintiff fails to rebut (or even address) Red Lobster’s arguments that the
`two surveys cited in the FAC are not applicable and cannot establish how a reasonable
`consumer would interpret Red Lobster’s Sustainability Representations. See Motion
`at 13-16.
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`2
`REPLY IN SUPPORT OF DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS
`CASE NO.: 2:21-CV-04786-JAK-MAR
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 4 of 11 Page ID #:271
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`
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`promises.2 See Moore v. Trader Joe's Co., 4 F.4th 874, 882 (9th Cir. 2021) (espousing
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`the general principle that deceptive advertising claims should “take into account all
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`the information available to consumers and the context in which that information
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`is provided and used.”) (emph. added) (internal cit. omitted). And even
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`if some consumers would make the same assumption as Plaintiff—i.e., interpreting
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`the Sustainability Representations as a promise to abide by the “highest
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`environmental and animal welfare standards” (whatever those may be)—her
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`consumer protection claims still fail. See Becerra v. Dr Pepper/Seven Up, Inc., 945
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`F.3d 1225, 1230 (9th Cir. 2019) (advertising is “not deceptive just because some
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`consumers could unreasonably misunderstand the [statement].”); Lavie v. Procter &
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`Gamble Co., 105 Cal. App. 4th 496, 508 (2003) (holding that it must be probable “that
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`a significant portion of the general consuming public or of targeted consumers, acting
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`reasonably in the circumstances, could be misled.”) (emph. added)).
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`In sum, Plaintiff has failed to allege any facts demonstrating that reasonable
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`Red Lobster consumers would be deceived by the Sustainability Representations as
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`they sit in a Red Lobster restaurant deciding what to order. As such, Plaintiff’s UCL,
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`CLRA, and FAL claims should be dismissed with prejudice.
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`B.
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`Plaintiff Failed to Meet the Heightened Pleading Requirements of
`Rule 9(b).
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`As demonstrated above, Plaintiff improperly relies on generalized allegations
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`and fails to establish the specific facts required to establish the who, what, when, and
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`how required under Rule 9(b) to support her fraud-based claims. See Opp. at 14-18.
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`Plaintiff’s allegations are particularly deficient regarding “how” Red Lobster’s
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`2 Common sense would dictate that the reasonable Red Lobster consumer is one that
`likely already is committed to eating animal products—a practice that most animal
`activist welfare practitioners and vegans are likely to avoid.
`3
`REPLY IN SUPPORT OF DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 5 of 11 Page ID #:272
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`“Sustainability Representations” are misleading since the FAC contains no specific
`factual allegations establishing their falsity.3
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`For example, Plaintiff’s allegations that Red Lobster sources its Maine lobsters
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`from Gulf of Maine lobster fishery suppliers that “endanger North American right
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`whales,” are based on an April 2020 district court opinion, an August 2020
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`announcement by the Marine Stewardship Council (“MSC”) that it would be
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`suspending the Maine lobster fishery’s sustainability certification, and a January 2021
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`publication issued by the National Marine Fisheries Service (“NMFS”). See Opp. at
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`17; FAC ¶¶ 36-39. Plaintiff fails to explain how these publications—all of which
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`were issued/published months after Plaintiff visited a Red Lobster restaurant on
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`January 4, 2020—plausibly show that Red Lobster’s menu was deceptive at the time
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`Plaintiff made her purchase. See FAC ¶ 23. See Partida v. Tristar Prod., Inc., 2021
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`WL 4352374, at *8 (C.D. Cal. Aug. 5, 2021) (Bernal, J.) (“To state a claim under the
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`UCL, CLRA, and FAL, Plaintiffs must allege that Defendant was aware of the
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`[deceptive act] at the time of Plaintiffs’ purchase.”) (citing Wilson v. Hewlett-
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`Packard Co., 668 F.3d 1136, 1145 (9th Cir. 2012)).
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`Plaintiff further argues that Red Lobster sources its shrimp from suppliers who
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`“use practices that are environmentally destructive [and] are inhumane to shrimp.”
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`Opp. at 17. The allegations in the FAC, however, attack the general practices of
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`unnamed shrimp farmers generally within Indonesia, Vietnam, India, and China, but
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`make no specific factual allegations against the practices of the actual shrimp farmers
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`that supply Red Lobster. See FAC ¶¶ 49-52. Moreover, Plaintiff fails to allege facts
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`showing that these practices are inconsistent with the three tenets of Red Lobster’s
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`sustainability representations: Sustainable. Traceable. Responsible or the more
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`3 “In the false advertising context, an advertising claim is false if it has actually been
`disproved, that is, if the plaintiff can point to evidence that directly conflicts with the
`claim.” Liou v. Organifi, LLC, 491 F. Supp. 3d 740, 750 (S.D. Cal. 2020) (emph.
`added); see also Yamasaki v. Zicam LLC, 2021 WL 4951435, at *4 (N.D. Cal. Oct.
`25, 2021) (dismissing UCL, FAL, and CRLA claims where plaintiff failed to present
`facts of falsity and instead alleged that the claims were unsubstantiated).
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 6 of 11 Page ID #:273
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`detailed sourcing and sustainability information contained on the website.
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`Nevertheless, even assuming these allegations are true for purposes of this Motion,
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`the FAC fails to allege a single fact connecting Red Lobster to any specific shrimp
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`farms, let alone a farm that employs any specific practice.
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`Without specific factual allegations demonstrating the who, the how, the when
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`(see Mot. at ¶¶ 5-10), Plaintiff’s vague (and otherwise inapplicable) allegations do not
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`meet the heightened pleading requirements of Rule 9(b). See Kearns v. Ford Motor
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`Co., 567 F.3d 1120, 1125 (9th Cir. 2009); see also Assoc. Gen. Contractors of
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`California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983)
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`(it is not proper for the court to assume that “the [plaintiff] can prove facts that [she]
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`has not alleged or that defendants have violated the ... laws in ways that have not
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`been alleged.”).
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`C. All Information Available to Plaintiff on Red Lobster’s Website
`Can and Should be Considered in Evaluating Plaintiff’s Deceptive
`Advertising Claims.
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`Contrary to Plaintiff’s position, it is not Red Lobster’s “primary argument” that
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`the information available to all consumers on its website “cure[s] the deception
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`caused” by the Sustainability Representations made on its menu. See Opp. at 10-11.
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`As made clear in its Motion, it is Red Lobster’s “primary” position that the
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`Sustainability Representations made on its menu, standing alone, are not deceptive to
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`a reasonable consumer. See Motion at 10-17. Red Lobster’s reference to its website,
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`and the additional information provided therein, is not an attempt to “cure” any
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`language on its menu (since the language used is not deceptive) but rather part and
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`parcel of those representations. If there was some semblance of doubt as to the
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`meaning of Red Lobster’s Sustainability Representations, a reasonable consumer
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`would read on and visit Red Lobster’s website to learn more about these sustainability
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`assurances before he or she would apply their own highly subjective standards
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 7 of 11 Page ID #:274
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`regarding animal treatment that are not referenced or mentioned anywhere on Red
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`Lobster’s menu or its website.
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`Plaintiff argues that information available to her on Red Lobster’s website is
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`meaningless because “reasonable restaurant consumers are not charged with a duty to
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`read a website,” nor are they required to look “for clarification in other parts of the
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`same menu.” Opp. at 11-12 (citing Schneider v. Chipotle Mexican Grill, Inc., 328
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`F.R.D. 520, 532 (N.D. Cal. 2018); Kang v. P.F. Chang's China Bistro, Inc., 844 F.
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`App'x 969, 971 (9th Cir. 2021)). In making this argument, Plaintiff asks this Court to
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`disregard the general principle adopted by the Ninth Circuit “that deceptive
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`advertising claims [] take into account all the information available to consumers
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`and the context in which that information is provided and used.” Moore v. Trader
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`Joe's Co., 4 F.4th 874, 882 (9th Cir. 2021) (emph. added) (internal cit. omitted). Here,
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`the information available to customers includes an explicit invitation to visit the
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`website. FAC ¶ 5. This invitation must be viewed in the context of where it is
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`located—on a Red Lobster menu—and who it is viewed by—consumers already in a
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`Red Lobster restaurant who were likely brought in by Red Lobster’s value priced
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`seafood combinations. “[C]onsumers who dine at Red Lobster or otherwise purchase
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`menu items” do not, as Plaintiff claims, “lack the information necessary to discover
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`whether the Products are in fact ‘sustainable,’ or to know or ascertain the true nature
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`and sourcing of the Products,” but rather have that information at their fingertips. Id.
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`at ¶ 10.
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`Moreover, the cases cited by Plaintiff in her Opposition are factually
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`distinguishable. For example, in Schneider plaintiffs alleged that Chipotle misled
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`consumers into believing that its products were “non-GMO” and “GMO-free” based
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`on representations made on in-store signage displayed during the class period. 328
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`F.R.D. at 527. Chipotle argued that a disclaimer on its website, which stated that the
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`meat and dairy served at Chipotle likely come from animals “given at least some
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`GMO feed,” proved that a reasonable consumer could not have been misled by the
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 8 of 11 Page ID #:275
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`“non-GMO” in-store advertisements. Id. at 532. The court disagreed, finding that
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`the website disclaimer was insufficient to “defeat claims that other, wholly separate
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`advertisements are misleading.” Id. (emph. added). Here, the reference to Red
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`Lobster’s website and the invitation to “learn more” about Red Lobster’s
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`sustainability commitments are included (in bold font) on the same menu in the same
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`location as part of the Sustainability Representations. See FAC ¶ 5. Moreover, the
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`information on Red Lobster’s website is not a disclaimer similar to the one at issue in
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`Schneider—i.e., providing
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`information contrary
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`to
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`(or conflicting with)
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`representations made on in-store signage. Here, Red Lobster’s Seafood with
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`Standards website is not inconsistent with representations made on its menu, rather it
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`provides additional information on Red Lobster’s commitment to sustainability,
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`specific sustainability organizations it has joined, standards it follows, and sourcing
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`information for its lobster, crab, fish, and shrimp. See Mot. at 3-4.
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`In Kang v. P.F. Chang’s China Bistro, Inc., the Ninth Circuit held that a
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`reasonable consumer could plausibly believe that “krab mix” was a mixture of real
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`and imitation crab. 844 F. App’x 969 (9th Cir. 2021). In so holding, the Ninth Circuit
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`rejected defendant’s argument that reasonable consumers would not be misled by use
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`of the term “krab mix” in the ingredient list for sushi rolls because other items on the
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`menu include “crab” among their ingredients.” Id. at 971. Here, unlike in Kang, to
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`the extent there was any confusion relating to the Sustainability Representations, a
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`Red Lobster consumer would not have to explore or scrutinize other terms on the
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`menu for further clarification since the invitation to visit the website for more
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`information was plainly provided “immediately next to the representations it qualifies
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`[such that] no reasonable reader could ignore it.” Freeman v. Time, Inc., 68 F.3d 285,
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`289 (9th Cir. 1995) (upholding dismissal of UCL claim based upon mailers which
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`used language suggesting that the plaintiff had won the sweepstakes finding that as a
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`matter of law no reasonable consumer could have believed they had won given
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`disclaimers elsewhere in the mailer).
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 9 of 11 Page ID #:276
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`Plaintiff’s reliance on Williams v. Gerber Prod. Co., 552 F.3d 934 (9th Cir.
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`2008) is equally unavailing. See Opp. at 11. In Williams, the defendant marketed a
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`“Fruit Juice Snacks” product with pictures of various fruits on the front label, even
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`though the ingredient list on the back of the packaging stated that none of those fruits
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`actually were contained in the product. 552 F.3d at 939. The Ninth Circuit rejected
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`the argument that a misrepresentation on the front of the package could be cured by a
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`disclaimer on the back of the package. Id. at 939-40; see also Ebner v. Fresh, Inc.,
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`838 F.3d 958, 966 (9th Cir. 2016) (“Williams stands for the proposition that if the
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`defendant commits an act of deception, the presence of fine print revealing the truth
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`is insufficient to dispel that deception.”) (emph. in original). Here, Plaintiff failed to
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`allege any facts demonstrating that the Sustainability Representations were actually
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`deceptive. Without a deceptive act, Williams does not apply. Ebner, 838 F.3d at 966.
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`Moreover, this case does not involve clarifying language “tucked away on the back
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`or side of the product label … in very small print.” Kang, 844 F. App'x 969, 973 (9th
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`Cir. 2021) (Bennett, J., dissenting). Here, the reference to Red Lobster’s website was
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`provided in bold font and positioned as part of the Sustainability Representations,
`which Plaintiff saw prior to placing her order.4 See FAC ¶ 5.
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`Considering all information available to Plaintiff, as required by Moore, the
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`Sustainability Representations on Red Lobster’s menu are not deceptive as a matter
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`of law. As a result, Plaintiff’s FAC should be dismissed with prejudice.
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`D.
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`Plaintiff Lacks Standing to Seek Injunctive Relief.
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` Relying upon Davidson v. Kimberly-Clark, Plaintiff argues that she has
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`standing to seek injunctive relief despite her knowledge that Red Lobster’s
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`4 Another important factual distinction between this case, and most false advertising
`cases relied upon by Plaintiff (including Williams), is that Plaintiff was in a Red
`Lobster restaurant, seated at a Red Lobster table, and was reviewing the Red Lobster
`menu when she allegedly saw and relied upon the Sustainability Representations.
`FAC ¶ 23. This is entirely different from a case involving consumers who are enticed
`to purchase a product or visit a restaurant as a result of deceptive or misleading
`advertising.
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 10 of 11 Page ID #:277
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`Sustainability Representations are allegedly deceptive. See Opp. at 21-22 (citing 889
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`F.3d at 969). Courts applying Davidson have clarified that it does not stand for the
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`“broad” proposition that “consumers deceived by false advertising have standing to
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`seek injunctive relief” in every case. Cordes v. Boulder Brands USA, 2018 WL
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`6714323, at *4 (C.D. Cal. Oct. 17, 2018) (Gutierrez, J.); Jackson v. General Mills,
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`2020 WL 5106652, at *5 (S.D. Cal. Aug. 28, 2020). Rather, “the threat of actual and
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`imminent injury” is still required. 2020 WL 5106652 at *5. There is no such threat
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`when a “plaintiff learns information during litigation that enables her to evaluate
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`product claims and make appropriate purchasing decisions going forward.” Id.
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`Plaintiff’s sole allegation supporting injunctive relief is that she “wishes to be
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`able to continue purchasing the Products” is insufficient to establish standing for
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`injunctive relief. See FAC ¶ 29. Any threatened future injury must be “certainly
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`impending to constitute injury in fact’ and ‘allegations of possible future injury are
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`not sufficient.’” Hanna v. Walmart, Inc., 2020 WL 7345680, at *7 (C.D. Cal. Nov.
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`4, 2020) (Scarsi, J.) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409(2013)
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`(dismissing claim for injunctive relief finding an allegation that plaintiff “may
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`purchase a product again is insufficient for purposes of establishing standing.”). As
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`such, Plaintiff has no potential for injury in the future, and thus, under Rule 12(b)(1),
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`has no standing to seek injunctive relief. See Schertzer, 445 F. Supp. 3d at 1075
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`(plaintiffs who did not allege that they would buy the product in the future did not
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`have standing to seek injunctive relief under the UCL or CLRA).
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`Because Plaintiff has failed to allege facts demonstrating Article III standing
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`for injunctive relief, and cannot allege such facts in the future, her claim for injunctive
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`relief should be dismissed with prejudice.
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`E.
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`Plaintiff’s Claim for Punitive Damages Must Be Dismissed.
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`In her Opposition, Plaintiff argues that she is not required to allege facts
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`sufficient to plausibly establish that Red Lobster engaged in oppressive, fraudulent,
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`or malicious conduct in order to recover punitive damages. See Opp. at 23-24. This
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`Case 2:21-cv-04786-JAK-MAR Document 26 Filed 02/07/22 Page 11 of 11 Page ID #:278
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`plainly misstates the applicable standard. It is well settled that in order to obtain
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`punitive damages from a corporate entity a complaint must contain “factual
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`allegations that could plausibly give rise to a finding of fraud, oppression, or malice,
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`or that any officer, director, or managing agent authorized or ratified the
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`alleged conduct necessary for punitive damages.” Rivin v. Patrick K. Willis Co., Inc.,
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`2020 WL 8365251, at *3 (C.D. Cal. Dec. 4, 2020) (Klausner, J.); Terpin v. AT&T
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`Mobility, LLC, 2020 WL 883221, at *7 (C.D. Cal. Feb. 24, 2020) (Wright, J.)
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`(dismissing punitive damages claim finding that plaintiff failed to “allege[] sufficient
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`facts
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`regarding AT&T’s
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`corporate misconduct
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`to
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`support
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`a prayer
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`for punitive damages.”); Shibley v. Cty. of San Bernardino, 2019 WL 6317780, at *10
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`(C.D. Cal. July 8, 2019) (Bernal, J.) (“[A] list of unsupported legal conclusions … is
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`insufficient to support [a] request for punitive damages.”).
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`Accordingly, Plaintiff’s claim for punitive damages should be dismissed for
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`failure to provide any factual allegations demonstrating Red Lobster’s conduct was
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`oppressive, fraudulent, or malicious.
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`II. CONCLUSION
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`For the foregoing reasons, Red Lobster respectfully request that the Court
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`dismiss Plaintiff’s FAC in its entirety, with prejudice.
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`Dated: February 7, 2022
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`Respectfully submitted,
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`BAKER & HOSTETLER LLP
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`By:
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`/s/ Bethany G. Lukitsch
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`Bethany G. Lukitsch
`Kamran B. Ahmadian
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`Attorneys for Defendants
`RED LOBSTER MANAGEMENT
`LLC and RED LOBSTER
`HOSPITALITY LLC
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