Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 1 of 19
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`Lauren S. Wulfe (SBN 287592)
`ARNOLD & PORTER KAYE SCHOLER LLP
`777 South Figueroa Street, Forty-Fourth Floor
`Los Angeles, California 90017
`Telephone: 213-243-4000
`Facsimile: 213-243-4199
`Lauren.Wulfe@arnoldporter.com
`
`John C. Massaro (admitted pro hac vice)
`Jason A. Ross (admitted pro hac vice)
`David E. Kouba (admitted pro hac vice)
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 Massachusetts Ave, NW
`Washington, DC 20001
`Telephone: 202-942-5000
`Facsimile: 202-942-5999
`John.Massaro@arnoldporter.com
`Jason.Ross@arnoldporter.com
`David.Kouba@arnoldporter.com
`
`Paul W. Rodney (admitted pro hac vice)
`ARNOLD & PORTER KAYE SCHOLER LLP
`1144 15th Street, Suite 3100
`Denver, CO 80202
`Telephone: 303-863-1000
`Facsimile: 303-832-0428
`paul.rodney@arnoldporter.com
`
`Attorneys for Defendants ALTRIA GROUP, INC.,
`ALTRIA CLIENT SERVICES LLC,
`ALTRIA GROUP DISTRIBUTION COMPANY,
`and ALTRIA ENTERPRISES LLC
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
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`Case No.: 19-MD-02913-WHO
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`REPLY MEMORANDUM IN SUPPORT OF
`THE ALTRIA DEFENDANTS’ MOTION
`TO DISMISS THE ALTRIA DEFENDANTS
`FROM SEVEN GOVERNMENT ENTITY
`COMPLAINTS
`
`Judge: Hon. William H. Orrick
`Date:
`September 21, 2020
`Time:
`9:00 a.m.
`Ctrm:
`2
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`
`
`IN RE: JUUL LABS, INC., MARKETING,
`SALES PRACTICES, AND PRODUCTS
`LIABILITY LITIGATION
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`
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`This Document Relates to:
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`ALL GOVERNMENT ENTITY ACTIONS
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
`CASE NO. 19-MD-02913-WHO
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 2 of 19
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION ........................................................................................................................... 1
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`ARGUMENT .................................................................................................................................. 4
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`I.
`
`II.
`
`THE ENTITIES FAIL TO ALLEGE ACTIONABLE MISCONDUCT BY
`THE ALTRIA DEFENDANTS .......................................................................................... 4
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`THE ENTITIES FAIL TO ALLEGE CAUSATION AS TO THE ALTRIA
`DEFENDANTS ................................................................................................................. 11
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`CONCLUSION ............................................................................................................................. 14
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 3 of 19
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Aguila v. Hilton, Inc.,
`878 So.2d 392 (Fla. Dist. Ct. App. 2004) .....................................................................................6
`
`Antun Invs. Corp. v. Ergas,
`549 So. 2d 706 (Fla. Dist. Ct. App. 1989) ..................................................................................13
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`Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs. in Ariz.,
`712 P.2d 914 (Ariz. 1985) ..........................................................................................................13
`
`Axon v. Citrus World, Inc.,
`354 F. Supp. 3d 170 (E.D.N.Y. 2018), aff’d sub nom.
`Axon v. Florida’s Nat. Growers, Inc., 2020 WL 2787627 (2d Cir. 2020) ...................................7
`
`Bruton v. Gerber Prods. Co.,
`2014 WL 172111 (N.D. Cal. 2014) ..............................................................................................6
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`Buckman Company v. Plaintiffs’ Legal Committee,
`531 U.S. 341 (2001) .................................................................................................................3, 8
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`City of N.Y. v. A-1 Jewelry & Pawn, Inc.,
`247 F.R.D. 269 (E.D.N.Y. 2007) ...............................................................................................13
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`City of New York v. Beretta U.S.A. Corp.,
`315 F. Supp. 2d 256 (E.D.N.Y. 2004) ........................................................................................13
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`Colgate v. JUUL Labs, Inc.,
`402 F. Supp. 3d 728 (N.D. Cal. 2019) .........................................................................................7
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`CSX Transp., Inc. v. McBride,
`564 U.S. 685 (2011) ...................................................................................................................11
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`In re Fontem US, Inc. Consumer Class Action Litig.,
`2016 WL 11503066 (C.D. Cal. 2016) ..........................................................................................7
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`Holmes v. Sec. Inv’r Prot. Corp.,
`503 U.S. 258 (1992) ...................................................................................................................11
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`Ileto v. Glock, Inc.,
`349 F.3d 1191 (9th Cir. 2003) ....................................................................................................13
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`Keegan v. Am. Honda Motor Co.,
`838 F. Supp. 2d 929 (C.D. Cal. 2012) ..........................................................................................7
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`N.A.A.C.P. v. AcuSport, Inc.,
`271 F. Supp. 2d 435 (E.D.N.Y. 2003) ........................................................................................13
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 4 of 19
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`New York City Asbestos Litig.,
`840 N.E.2d 115 (N.Y. 2005) ........................................................................................................6
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`In re Opioid Litig.,
`2018 WL 3115102 (N.Y. Super. Ct. 2018) ................................................................................13
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`Parks v. Ainsworth Pet Nutrition, LLC,
`377 F. Supp. 3d 241 (S.D.N.Y. 2019) ..........................................................................................7
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`People v. ConAgra Grocery Products Co.,
`227 Cal. Rptr. 3d 449 (Cal. Ct. App. 2017) ...............................................................................13
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`People v. Sturm, Ruger & Co., Inc.,
`761 N.Y.S.2d 192 (N.Y. App. Div. 2003) ..................................................................................13
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`Quiroz v. ALCOA Inc.,
`416 P.3d 824 (Ariz. 2018) ............................................................................................................6
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`Shields v. Alere Home Monitoring, Inc.,
`2015 WL 7272672 (N.D. Cal. Nov. 18, 2015) .............................................................................7
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`Stefan v. Singer Island Condos. Ltd.,
`2009 WL 426291 (S.D. Fla. 2009) ...............................................................................................7
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`Tiongco v. Sw. Energy Prod. Co.,
`214 F. Supp. 3d 279 (M.D. Pa. 2016) ........................................................................................13
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`Walters v. UPMC Presbyterian Shadyside,
`187 A.3d 214 (Pa. 2018) ..............................................................................................................6
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 5 of 19
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`INTRODUCTION
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`The Entities (six school districts and one county) allege that Defendants targeted minors
`when designing and marketing JUUL products, which in turn caused an increase in underage vapor
`use that forced the Entities to incur certain expenses. But this theory does not work against the
`Altria Defendants.1 The Altria Defendants are not alleged to have designed JUUL products or to
`have marketed those products to minors. Indeed, the Entities’ response removes any possible claim
`that actions purportedly taken by the Altria Defendants facilitated the alleged youth marketing in
`any plausible way.
`The Entities focus largely upon the Altria Defendants’ involvement in providing “Make the
`Switch” advertisements to existing adult smokers beginning in January 2019. They concede,
`however, that the campaign did not market JUUL products to minors but instead did the exact
`opposite: “its goal was to convince the public” that JUUL products were intended for “adult
`smokers.” Plaintiffs’ Opposition to Defendant JUUL Labs, Inc.’s and the Altria Defendants’
`Motions to Dismiss (ECF 817), at 9, 39 (“Opp.”).
`The Entities cannot turn this plainly adult-focused campaign into allegations of youth
`marketing by claiming it was a “cover-up” scheme. Opp. at 9, 28. As an initial matter, all of the
`youth marketing that the Entities allege in their Complaints had already ceased by then: all of the
`Entities’ “youth marketing” allegations, which do not describe any marketing by the Altria
`Defendants at all, end before January 2019, and the Entities concede that JLI had “ceased all
`promotional postings” by November 2018. E.g., Tucson Amended Complaint (“TAC”) ¶ 555.
`Beyond that, by the time the Make the Switch campaign ran, JLI’s prior marketing practices were
`already well known: the FDA had already sent letters to JLI, Altria, and others in the industry
`investigating underage vapor use; the FDA had already seized documents from JLI concerning JLI’s
`marketing practices, TAC ¶¶ 452-53; and certain counsel in this MDL had already filed actions
`against JLI making the same youth marketing allegations raised here.
`
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`1 As used in this motion, “the Altria Defendants” refers to the Altria-affiliated entities named as
`defendants in the Entities’ complaints: Altria Group, Inc. (“Altria”), Altria Client Services LLC,
`Altria Group Distribution Company, and Altria Enterprises LLC.
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 6 of 19
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`The Entities also rely on allegations that the Altria Defendants provided distribution and
`retail services for JUUL products in 2019 and early 2020 and provided shelf-space that allowed
`JUUL products to be positioned next to Marlboro cigarettes. Putting aside whether these actions
`could support any claim (they cannot), they plainly do not support claims based on marketing to
`minors and underage vapor use such as those raised here. Again, the very nature of these services
`refutes that theory, since these efforts at most made JUUL products accessible to adult consumers
`and did not increase underage access. Indeed, although the Entities do not identify any specific
`location where the Altria Defendants provided these services, any possible location where they did
`would have been required by law to verify the age of each JUUL purchaser and take other steps to
`prevent underage access. Moreover, positioning JUUL products next to Marlboro cigarettes and
`behind the counter would not have increased underage use; if anything, it would have indicated that
`those products were intended for smokers and made them more difficult for minors to obtain.
`Given that the Altria Defendants’ alleged actions with respect to JUUL products were
`directed at adult consumers, it is clear they do not support any of the youth-focused claims brought
`by the Entities. These actions did not create or maintain a nuisance that allegedly consists of
`underage vapor use; they did not assume or breach any duty of care with respect to school districts;
`and they did not engage in deceptive trade practices directed at underage individuals.
`But even if these alleged actions could be shown to have been wrongful, there is no allegation
`that would connect these acts to the Entities’ alleged injuries. Any such theory of causation would
`require showing that the Altria Defendants’ actions caused underage individuals, who would not
`have used vapor products absent those services, to begin and then continue vaping at schools within
`the area covered by that Entity, and did so to such a large extent that the Entity incurred costs that
`it otherwise would not have. On its face, such a theory is too remote, indirect and attenuated to
`allege causation. Nor does anything suggest this theory is plausible. To the contrary, none of the
`individuals who describe their alleged vaping history in Appendix A to the Class Action Complaint
`or in Fact Sheets submitted in this MDL identifies anything the Altria Defendants said or did that
`
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
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`influenced their decisions to use JUUL products in any way. AD MTD Entities at 23.2 In fact, out
`of the 501 individuals identified in Appendix A or having now submitted Fact Sheets in this MDL,
`only 30 individuals allege that they began using JUUL products in or after December 2018, when
`Altria became involved with JLI, and only 4 of those individuals reside one of the states at issue
`here.3
`
`Finally, the Entities’ reliance upon Altria’s October 25, 2018 letter to FDA is again
`misplaced. The letter is protected by the First Amendment and is not actionable under Buckman
`Company v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001). But even without these obstacles,
`no allegation can connect Altria’s letter to an increase in underage vapor use. If anything, the letter
`would have had the opposite effect, given that Altria (1) told FDA that Altria believed pod-based
`products such as JUUL contributed to underage vapor use, (2) identified flavored products as a cause
`of underage vapor use, (3) identified strategies to address underage vaping, (4) encouraged
`increasing the legal age to purchase vapor products to 21, and (5) outlined several measures that
`Altria and its subsidiary Nu Mark LLC already were taking to reduce underage access (including
`providing resources to retail locations and ensuring those locations comply with their obligation to
`verify the age of consumers). Ignoring most of the letter, including these portions, the Entities
`cherry-pick statements about mint-flavored products and claim Altria misled FDA into allowing
`those products to remain on the market. The Entities not only take those statements out of context,
`they fail to allege that Altria’s statements about mint products had any impact on the agency. Indeed,
`FDA’s subsequent actions refute such a theory. Rather than allowing mint products to remain on
`the market, the agency banned mint-flavored products at the same time that it banned all other
`flavors besides tobacco and menthol. Fraud on the agency allegations fail where, as here, the agency
`was not defrauded.
`
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`2 “AD MTD Entities” refers to the Altria Defendants’ Motion to Dismiss the Altria Defendants
`from Seven Government Entity Complaints (ECF 738).
`3 See Plaintiff Fact Sheet Details Report (August 15, 2020) (Ex. 1). As used herein, “Exhibit __”
`refers to exhibits attached to the Declaration of David E. Kouba in Support of the Altria Defendants’
`Reply Memorandum in Support of Their Motion to Dismiss the Altria Defendants from Seven
`Government Entity Complaints, which are described in greater detail in the Altria Defendants’
`request for judicial notice, filed herewith.
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 8 of 19
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`I.
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`Accordingly, the Court should dismiss the Entities’ claims against Altria Defendants.4
`ARGUMENT
`THE ENTITIES FAIL TO ALLEGE ACTIONABLE MISCONDUCT BY THE
`ALTRIA DEFENDANTS
`The Entities recognize that they must allege actionable misconduct by the Altria
`Defendants.5 They further confirm that their claims are based on alleged efforts to target minors
`when designing and marketing JUUL products.6 But, despite bringing claims based on underage
`vapor use, the Entities do not allege any youth marketing by the Altria Defendants. No such
`allegation is in their Complaints, including the 173-paragraph “youth marketing” section.7 Nor does
`their response identify any actual youth marketing by the Altria Defendants. Instead, they refer to
`alleged actions that they admit were not even directed at minors, arguing that those actions
`facilitated youth marketing indirectly. None of these is sufficient to support their claims.
`
`
`4 The Entities also fail to state a claim against the Altria Defendants under RICO. See Altria Mot.
`Dismiss UCL and RICO Claims Against Altria Defs. (ECF 632) (May 29, 2020) (“AD MTD CAC”)
`(incorporated by reference); Altria Defs. Reply in Supp. Mot. Dismiss UCL and RICO Claims
`Against Altria Defs. (ECF 810) (July 20, 2020) (“AD Reply MTD CAC”) (same). Indeed, the
`Entities’ efforts to bring RICO claims against the Altria Defendants are even more deficient than
`the Class Plaintiffs’ claims, given the Entities focus solely on youth marketing allegations but allege
`no predicate acts by the Altria Defendants impacting minors and because their theory of proximate
`causation is even more remote and indirect than the theory offered by the Class Plaintiffs.
`5 See, e.g., Opp. at 18 (“central question for liability” for nuisance “is whether the defendant created
`or substantially participated in creating the nuisance”); id. at 37 (negligence requires “that Altria
`had a duty to the School District Plaintiffs” and “a breach of that duty”); id. at 49 (statutory claims
`require “deceptive acts and unfair practices in the course of trade or commerce”).
`6 They explain, for example, that the “alleged nuisance is premised on Defendants’ aggressive
`promotion of JUUL to teens and efforts to create and maintain an e-cigarette market based on youth
`sales,” Opp. at 15; they claim a duty of care arose because “Defendants’ marketing scheme
`facilitated e-cigarette use on school property and in classrooms,” Opp. at 2; and they base their
`statutory claims on allegations that “Defendants’ deceptive marketing misled kids into using JUUL
`products,” Opp. at 3.
`7 The 173 paragraphs only mention the Altria Defendants six times. The Altria Defendants
`addressed these six references in detail in their opening brief. AD MTD Entities at 8. The Entities
`do not directly respond to that discussion. Instead, they note that the word “Altria” is used 465 times
`in their Complaints. Opp. at 27, n.12. This number is meaningless and if anything speaks only to
`the length of the Complaint and not its substance.
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 9 of 19
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`“Make the Switch” campaign. The Entities rely heavily on JUUL’s “Make the Switch”
`advertisements that the Altria Defendants disseminated to certain adult smokers in 2019. Opp. at 28,
`39, 49-50. The Entities’ spin on this campaign, however, only confirms that it has nothing to do
`with their youth-targeting theories and cannot be the basis of liability for the Altria Defendants.
`The Entities describe the campaign as featuring “middle-aged smokers” and concede that it
`was directed at adult smokers. Id. at 9, 39. Faced with this reality, the Entities make the remarkable
`claim that targeting adult smokers is the fraud itself, alleging that the campaign was intended as a
`“cover-up” with the “goal” of “convinc[ing] the public that JUUL was always aimed at adult
`smokers.” Id. at 39. Regardless of whether that was the “goal,” the fact remains that the Entities
`cannot allege that Altria targeted minors by pointing to a marketing campaign that they admit was
`targeted at adults. The Entities offer no explanation as to how this campaign would have caused
`minors to purchase JUUL products.
`Nor does the Entities’ “cover-up” theory make sense. The Complaints do not allege any acts
`of youth marketing occurring at the time of the “Make the Switch” campaign. To the contrary, the
`Complaints allege that JLI “ceased all promotional postings” two months earlier, in November 2018,
`before Altria’s minority investment. TAC ¶ 555 (citing Stanford University study). Moreover,
`plaintiffs in Colgate filed a class action in April 2018 raising similar youth marketing allegations to
`those raised here, Compl., Colgate v. JUUL Labs, Inc., No. 3:18-cv-2499 (N.D. Cal. Apr. 26, 2018)
`(Ex. 3), and FDA had been investigating issues related to underage vapor use, including marketing
`for JUUL products, for months see, e.g., TAC ¶¶ 452-53 (alleging that in September 2018, FDA
`“put[] [JLI and other companies] on notice that their products were being used by youth at disturbing
`rates,” and that “in October 2018, the FDA raided JLI’s headquarters and seized more than a
`thousand documents relating to JLI’s sales and marketing practices”). The Entities’ claim that this
`campaign was a cover-up for conduct already known to the public and regulators, and no longer
`taking place, makes no sense.
`The Make the Switch campaign also did not create a duty between the Altria Defendants and
`the six school districts that bring negligence and gross negligence claims. The Entities dodge the
`lack of any relationship between the Altria Defendants and the school districts, and the case law
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
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`requiring a relationship cited by the Altria Defendants. AD MTD Entities at 13 n.17. They instead
`argue that the duty question should turn solely upon “foreseeability” and “public policy.” Opp. at
`37, 39-40. The cases they cite do not support that approach. The Entities cite Quiroz v. ALCOA
`Inc., but the court there explained that “foreseeability is not a factor in determining duty.” 416 P.3d
`824, 827 (Ariz. 2018). The Entities cite two Pennsylvania cases, Opp. at 38-39 (citing Althaus and
`Cricket Lighters), but ignore more recent Pennsylvania authority in the Altria Defendants’ Motion
`holding that existence of a duty typically depends upon a “direct relationship” between “those
`parties.” Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 232-33 (Pa. 2018) (emphasis in
`original); see also, e.g., Aguila v. Hilton, Inc., 878 So.2d 392, 396 (Fla. Dist. Ct. App. 2004) (“legal
`duty is not established by evidence of foreseeability alone”). The Entities’ inability to allege any
`relationship with the Altria Defendants dooms their negligence claims.
`In addition, even if “foreseeability” and “public policy” alone determined the existence of a
`duty, they would not establish one here. The Entities cannot reasonably contend that it was
`foreseeable that advertisements to adult smokers seeking to “convince the public” JUUL products
`were for adults would somehow harm school districts. Nor do the Entities explain why advertising
`JUUL products to adult smokers in this manner was a “contravention of public policy.” Opp. at 40.
`In fact, imposing a duty under the circumstances here would be contrary to the more limited scope
`of duty recognized by courts, which seeks to avoid the risk of “limitless liability to an indeterminate
`class of persons conceivably injured by [some] negligent acts.” New York City Asbestos Litig., 840
`N.E.2d 115, 119 (N.Y. 2005) (citation and quotations omitted); see also AD MTD Entities at 13.8
`Moreover, even if the Make the Switch advertisements created a duty between the Altria Defendants
`and the school districts, the Entities do not explain how distributing adult-oriented advertisements
`to adult smokers could have somehow breached that duty.
`
`
`8 The Entities claim that factual disputes are “ill-suited for resolution on a motion to dismiss.” Opp.
`at 38 (quoting Bruton v. Gerber Prods. Co., 2014 WL 172111, at *11 (N.D. Cal. 2014)). But
`whether the Altria Defendants owed the school districts a duty of care is a question of law, AD MTD
`at 12 n.15 (citing cases), and should be determined “before the case-specific facts are considered,”
`Quiroz, 416 P.3d at 828 (citation and quotations omitted) (emphasis in original).
`-6-
`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
`CASE NO. 19-MD-02913-WHO
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`The Altria Defendants’ dissemination of JUUL’s Make the Switch advertisements to adult
`smokers also was not a deceptive act or practice as needed to state a New York General Business
`Law (“GBL”) or Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) claim. The
`Entities claim that the advertisements misrepresented JUUL products as “cessation devices.” Opp.
`at 28, 49. The advertisements, however, say nothing about smoking cessation or using JUUL
`products as a means to quit nicotine-containing products. They refer to JUUL products as
`“alternatives” to cigarettes that contain nicotine. Those statements are undeniably true—JUUL
`products are alternatives to cigarettes that contain nicotine. AD MTD Entities at 15 n.22, 17-18;
`AD MTD CAC at 33. Nor are these statements otherwise actionable. As this Court explained in
`Colgate II, “claims based on themes and vague terms in JUUL’s advertising are, as JUUL argues,
`nothing more than non-actionable puffery.” 402 F. Supp. 3d at 748 n.4. The Court’s conclusion
`was based in part on In re Fontem US, Inc. Consumer Class Action Litigation, 2016 WL 11503066
`(C.D. Cal. 2016), which held that advertising e-cigarettes as a “smarter alternative to regular
`cigarettes” was puffery. Id. at *8-9; see also Shields v. Alere Home Monitoring, Inc., 2015 WL
`7272672, at *10 (N.D. Cal. Nov. 18, 2015) (advertising blood test as a “convenient alternative to
`traditional lab tests” was puffery). The same is true here.9
`Distribution services, shelf space and retail services. The Entities claim that the Altria
`Defendants “worked with JLI on marketing intended to maintain and expand the market for e-
`cigarettes.” Opp. at 37. They base this claim on retail and distribution services and shelf-space
`provided by the Altria Defendants to JLI in 2019 and early 2020. See TAC ¶¶ 54, 472; Opp. at 37.
`But these services were provided at retail locations that are legally required to confirm each
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`9 Contrary to the Entities’ argument, Opp. at 49-50, courts routinely dismiss claims under GBL 349
`and 350 and FDUTPA where plaintiffs fail to allege a deceptive act. See, e.g., Axon v. Citrus World,
`Inc., 354 F. Supp. 3d 170, 183 (E.D.N.Y. 2018) (dismissing GBL claim for failure to allege
`deceptive act), aff'd sub nom. Axon v. Florida’s Nat. Growers, Inc., 2020 WL 2787627 (2d Cir.
`2020); Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241, 248 (S.D.N.Y. 2019) (same);
`Stefan v. Singer Island Condos. Ltd., 2009 WL 426291, at *15 (S.D. Fla. 2009) (same as to FDUTPA
`claim). Nor are the Entities correct that Federal Rule of Civil Procedure 9(b) does not apply to their
`claims. Opp. at 49. Where claims are grounded in allegations of fraud, as the Entities’ claims are
`here, Rule 9(b) applies. See, e.g., Keegan v. Am. Honda Motor Co., 838 F. Supp. 2d 929, 957 (C.D.
`Cal. 2012) (applying Rule 9(b)). Because the Entities fail to meet their pleading burden under Rule
`12(b)(6), however, there is no reason to reach this issue.
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
`CASE NO. 19-MD-02913-WHO
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 12 of 19
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`customer’s age before selling them JUUL products. Accordingly, even if these services
`“maintain[ed] or expand[ed] the market for e-cigarettes,” they did so only with respect to the adult
`market, and did not create or maintain the alleged underage vapor use underlying the Entities’
`nuisance claims.
`The same is true for allegations that the Altria Defendants offered “shelf space” to JLI that
`allowed JUUL products to be displayed “next to Altria’s iconic Marlboro cigarettes.” Opp. at 37.
`If anything, displaying JUUL products next to cigarettes and behind the counter shows that those
`products were intended for adult smokers and made them less accessible to minors.
`The Altria Defendants’ services also did not create a duty toward the school districts or show
`that they breached any duty. The services again involved no contact or relationship between the
`Altria Defendants and the school districts; they are complete strangers to these services. See AD
`MTD Entities at 13 n.17. Nor do the “foreseeability” and “public policy” factors relied upon by the
`Entities show that these services created a duty toward the school districts. The services were
`provided at retail locations prohibited from selling to minors. The possibility that these services
`would impact any minors is therefore unlikely and not foreseeable. It is even less foreseeable that
`they would have a wide enough impact to harm a school district. Indeed, as the Entities concede,
`all of these activities occurred after the alleged nuisance had already been created. AD MTD
`Entities at 22-23 & nn.28-29. And again, the only policy consideration relevant here is the one that
`limits duties and does not extend liability to complete strangers.
`For similar reasons, the Altria Defendants’ distribution and retail services did not constitute
`deceptive trade practices under the GBL or FDUTPA. These acts did not involve deceptive or
`unfair practices at all, let alone deceptive conduct toward the Entities or even underage vapor users.
`Altria’s October 25, 2018 letter to FDA. The Entities also continue to rely on Altria’s
`October 25, 2018 letter to former FDA Commissioner Scott Gottlieb. Even if this letter were
`actionable (it is not10), it would not support their claims. Aside from rank speculation, the Entities
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`10 The letter is protected by the Noerr-Pennington doctrine and not actionable under Buckman. AD
`MTD Entities at 23. The Entities adopt the Class Plaintiffs’ arguments in response. Opp. at 28 n.14.
`Those arguments are meritless and need no further discussion here. AD Reply MTD CAC at 9-10.
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`ALTRIA DEFS.’ REPLY IN SUPP. OF MOT. DISMISS SEVEN GOVERNMENT ENTITY COMPLAINTS
`CASE NO. 19-MD-02913-WHO
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`Case 3:19-md-02913-WHO Document 879 Filed 08/17/20 Page 13 of 19
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`do not allege that Altria’s letter had any impact on FDA, let alone changed FDA’s mind in a way
`that increased underage vapor use. In fact, given the letter’s substance, it is more likely it would
`have led the FDA to enact stricter policies against JUUL. Altria flatly told FDA that it “believe[d]
`that pod-based products”—which would have included the entire line of JUUL products—
`“significantly contribute to the rise in youth use of e-vapor products.” Letter from Willard to
`Gottlieb at 2 (Oct. 25, 2018) (AD MTD CAC Ex. 2) (“October 25, 2018 Letter”). Altria could not
`have been “facilitating” alleged youth marketing for JUUL products when telling FDA the format
`of those products contributed to underage vaping.11 Nor was Altria facilitating