`
`
`
`Jason J. Kim (State Bar No. 221476)
`kimj@huntonak.com
`HUNTON ANDREWS KURTH LLP
`550 South Hope Street, Suite 2000
`Los Angeles, California 90071-2627
`Telephone: (213) 532-2000
`Facsimile: (213) 532-2020
`
`Ryan P. Phair (admitted pro hac vice)
`Leslie W. Kostyshak (admitted pro hac vice)
`Emma J. Hutchison (admitted pro hac vice)
`rphair@huntonak.com
`lkostyshak@huntonak.com
`ehutchison@huntonas.com
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue, NW
`Washington, DC 20037
`Telephone: (202) 955-1921
`Facsimile: (202) 778-2201
`
`Attorneys for Defendants
`BATH & BODY WORKS, LLC and BATH
`& BODY WORKS, INC.
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`CARMEN PEREZ and ANDREA BROOKS,
`on behalf of themselves and those similarly
`situated,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`BATH & BODY WORKS, LLC; BATH &
`BODY WORKS, INC.,
`
`
`Defendants.
`
`
` CASE NO.: 5:21-CV-05606-BLF
`
`BBW’S MOTION TO DISMISS SECOND
`AMENDED COMPLAINT
`
`Date:
`
`Time:
`Courtroom:
`
`
`May 4, 2023
`9:00 a.m.
`3
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`5:21-CV-05606-BLF
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 2 of 34
`
`
`
`HUNTON ANDREWS KURTH LLP
`
`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
`PLEASE TAKE NOTICE THAT, on May 4, 2023 at 9:00AM or as soon thereafter as this
`matter may be heard before the Honorable Beth Labson Freeman, in Courtroom 3 of the United
`States District Court of Northern California, located at 280 South First Street, 5th floor, San Jose,
`California 95113, Defendants Bath & Body Works, LLC (“BBW”) and Bath & Body Works, Inc.
`(“BBWI”) (collectively, “Defendants”) will and hereby do move this Court for an order pursuant to
`Rule 12(b)(1) of the Federal Rules of Civil Procedure dismissing Plaintiff’s Second Amended
`Complaint for lack of standing as to Plaintiff’s request for injunctive relief and as to certain non-
`purchased products.
`
`Dated: December 5, 2022
`
`
`
`
`
`By:
`
`
`
` /s/ Jason J. Kim
`Ryan P. Phair
`Leslie W. Kostyshak
`Jason J. Kim
`Emma J. Hutchison
`Attorneys for Defendants
`BATH & BODY WORKS, LLC and
`BATH & BODY WORKS, INC.
`
`
`
`
`
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 3 of 34
`
`
`
`TABLE OF CONTENTS
`
`INTRODUCTION .................................................................................................................................1
`
`STATEMENT OF ISSUES TO BE DECIDED ....................................................................................1
`
`STATEMENT OF FACTS ....................................................................................................................1
`
`ARGUMENT .........................................................................................................................................4
`
`I.
`
`PLAINTIFF DOES NOT HAVE STANDING TO ASSERT A CLAIM FOR
`INJUNCTIVE RELIEF ..................................................................................................4
`
`A.
`
`B.
`
`Plaintiff Has Not—and Cannot—Establish Injury In Fact Under
`Davidson ............................................................................................................5
`
`The Injunction Requested By Plaintiff Is Not Traceable To The Only
`Alleged Misrepresentation And Is Beyond The Powers Of The Court
`To Redress .......................................................................................................10
`
`II.
`
`III.
`
`THERE IS NOTHING TO ENJOIN ............................................................................12
`
`PLAINTIFF DOES NOT HAVE STANDING TO CHALLENGE THE
`BODY POLISH ...........................................................................................................14
`
`CONCLUSION ....................................................................................................................................15
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`i
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 4 of 34
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Anthony v. Pharmavite
`No. 18-cv-02636-EMC, 2019 WL 109446 (N.D. Cal. Jan. 4, 2019) ...............................................8
`
`Boyd v. United States
`No. 15-cv-03494-BLF, 2017 WL 1133512 (N.D. Cal. Mar. 27, 2017) .........................................13
`
`Cimoli v. Alacer Corp.
`546 F. Supp. 3d 897 (N.D. Cal. 2021) ...........................................................................................10
`
`Clapper v. Amnesty Int’l USA
`568 U.S. 398 (2013) .........................................................................................................................5
`
`Dalewood Holding LLC v. City of Baldwin Park
`859 F. App’x 62 (9th Cir. 2021) ....................................................................................................13
`
`Davidson v. Kimberly-Clark Corp.
`889 F.3d 956 (9th Cir. 2018) ................................................................................................. passim
`
`Hangarter v. Provident Life & Acc.t Ins. Co.
`373 F.3d 998 (9th Cir. 2004) .........................................................................................................12
`
`In re Coca-Cola Prods. Mktg and Sales Pracs. Litig.
`No. 20-15742, 2021 WL 3878654 (9th Cir. Aug. 31, 2021) .................................................6, 7, 12
`
`Khasin v. R.C. Bigelow, Inc.
`No. C 12–02204 JSW, 2013 WL 2403579 (N.D. Cal. May 31, 2013) ..........................................15
`
`Klaehn v. Cali Bamboo LLC
`No. 21-55738, 2022 WL 1830685 (9th Cir. June 3, 2022) ..............................................................5
`
`Lanovaz v. Twinings N. Am., Inc.
`726 F. App’x 590 (9th Cir. 2018) ....................................................................................................6
`
`Levay v. AARP, Inc.
`No. 17-09041, 2018 WL 3425014 (C.D. Cal. July 12, 2018) ..........................................................7
`
`Levay v. AARP, Inc.
`No. 17-09041, 2018 WL 5794456 (C.D. Cal. Nov. 2, 2018) ..........................................................6
`
`Los Angeles v. Lyons
`461 U.S. 95 (1983) ...........................................................................................................................5
`
`Lujan v. Defs. of Wildlife
`504 U.S. 555 (1992) .........................................................................................................................4
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`i
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 5 of 34
`
`
`
`Metzler Inv. GMBH v. Corinthian Colleges, Inc.
`540 F.3d 1049, 1064 n.7 (9th Cir. 2008) ......................................................................................13
`
`Miller v. Ghirardelli Chocolate Co.
`912 F. Supp. 2d 861 (N.D. Cal. 2012) ...........................................................................................15
`
`Min Shook Shin v. Umeken USA, Inc.
`773 F. App’x 373 (9th Cir. 2019) ....................................................................................................8
`
`Nicolosi Distrib., Inc. v. FinishMaster, Inc.
`No. 18-cv-03587-BLF, 2019 WL 8883851 (N.D. Cal. Aug. 26, 2019) ........................................15
`
`Prescott v. Nestle USA, Inc.
`No. 19-cv-07471-BLF, 2020 WL 3035798 (N.D. Cal. June 4, 2020) .........................................6, 9
`
`Prescott v. Nestle USA, Inc.
`No. 19-cv-07471-BLF, 2022 WL 1062050 (N.D. Cal. April 8, 2022) ............................................9
`
`Risto v. Screen Actors Guild - Am. Fed’n of Television & Radio Artists
`No. 218CV07241, 2018 WL 7016345 (C.D. Cal. Nov. 6, 2018) ..................................................13
`
`Robles v. Gojo Indus.
`No. SACV 21-928, 2022 WL 2163846 (C.D. Cal. Mar. 16, 2022) .................................................9
`
`Shanks v. Jarrow Formulas, Inc.
`No. CV 18-09437, 2019 WL 7905745 (C.D. Cal. Dec. 27, 2019) ............................................9, 10
`
`Sonner v. Premium Nutrition Corp.
`971 F.3d 834, 844 (9th Cir. 2020) ...................................................................................................2
`
`Spokeo, Inc. v. Robins
`578 U.S. 330 (2016) .....................................................................................................................4, 5
`
`Town of Chester, N.Y. v. Laroe Est., Inc.
`581 U.S. 433 (2017) .........................................................................................................................4
`
`Washington Env’t Council v. Bellon
`732 F.3d 1131 (9th Cir. 2013) .......................................................................................................11
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`ii
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 6 of 34
`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`INTRODUCTION
`On July 14, 2022, this Court granted Bath & Body Works, LLC and Bath & Body Works,
`Inc.’s motion to dismiss Plaintiff Carmen Perez’s request for injunctive relief in her First Amended
`Complaint for failure to satisfy the standard set by the Ninth Circuit in Davidson v. Kimberly-Clark
`Corp., 889 F.3d 956 (9th Cir. 2018). In an effort to revive her request, Plaintiff has now amended her
`Complaint. But the only amendments that pertain to her request for injunctive relief are cosmetic in
`nature and merely pay lip service to Davidson’s requirements. Indeed, despite multiple
`opportunities, Plaintiff still has not been able to articulate any injury in fact that is fairly traceable to
`the only remaining misrepresentation in the case and that the Court could redress through the
`issuance of an injunction. Moreover, the vague and prophylactic “obey the law” injunction requested
`by Plaintiff is far beyond what the Ninth Circuit ever contemplated in Davidson and would require
`the Court to improperly micromanage BBW’s advertising and marketing campaigns on an ex ante
`basis going forward. This unprecedent intrusion would violate the important constitutional
`limitations on standing proscribed by Article III of the U.S. Constitution. Accordingly, the Court
`should reject Plaintiff’s invitation to ignore Davidson and finally dismiss her request for injunctive
`relief with prejudice.
`
`1.
`
`2.
`
`STATEMENT OF ISSUES TO BE DECIDED
`Whether Plaintiff has amended the Complaint to properly allege standing to assert her
`request for injunctive relief after such request was previously dismissed.
`Whether Plaintiff has amended the Complaint to properly allege standing for claims related
`to the unpurchased Mineral Body Polish.
`STATEMENT OF FACTS
`On July 21, 2021, Plaintiff Andrea Brooks and Carmen Perez brought this putative California
`class action against Bath & Body Works, LLC and Bath & Body Works, Inc. (collectively “BBW”
`or “Defendants”) alleging that certain moisturizing claims associated with BBW’s Hyaluronic Acid
`Products constituted false advertising. ECF No. 1. BBW moved to dismiss the Complaint on
`numerous grounds, including lack of standing to assert injunctive relief and to challenge certain
`
`1
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 7 of 34
`
`
`
`unpurchased products. In an attempt to avoid dismissal, however, Plaintiffs filed an untimely
`Amended Complaint, which the Court struck sua sponte. ECF Nos. 22, 26, 27. After the motion was
`fully briefed, Plaintiffs requested to amend the Complaint to fix the numerous issues BBW identified
`in its Motion. See ECF Nos. 22, 29, 35.
`On January 10, 2022, Plaintiffs filed their First Amended Complaint (“FAC”). ECF No. 47.
`The FAC again alleged that numerous claims were false and misleading and, in addition to damages,
`sought injunctive relief. The requested form of injunctive relief, however, was unclear and internally
`inconsistent. The Prayer for Relief sought a broad, prophylactic injunction prohibiting BBW from
`making any representation regarding the moisturizing properties of any products containing
`hyaluronic acid without “competent and reliable evidence,” as defined by Plaintiffs. See FAC at
`Prayer for Relief. But, elsewhere in the Complaint, Plaintiffs requested different forms of injunctive
`relief, including an injunction prohibiting BBW from offering hyaluronic acid products unless and
`until it removed the alleged misrepresentations and disclosed omitted facts. See FAC at ¶¶ 79, 91-92,
`123. Despite the varying requests, however, neither Plaintiff alleged any desire to purchase the
`product as advertised or, for that matter, at all. Instead, Plaintiff Perez only alleged that she had a
`general desire to purchase “other” cosmetic products from BBW and therefore did not even assert
`any future injury associated with BBW’s Hyaluronic Acid products. FAC ¶ 51.
`BBW subsequently filed a motion to dismiss on numerous grounds.1 See ECF No. 57. After
`oral argument, this Court issued an Order Granting in Part and Denying in Part BBW’s Motion to
`Dismiss. ECF No. 79. The Court dismissed claims related to all but one of Plaintiff’s alleged
`misrepresentations such that, at this point, the only remaining claim at issue is the allegedly false
`
`
`1 In BBW’s motion to dismiss, BBW challenged Plaintiff’s request for equitable relief, including
`injunctive relief, under Sonner v. Premium Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). The
`Court disagreed. ECF No. 79. BBW continues to believe that Sonner requires dismissal, but in light
`of the Court’s prior order does not re-assert that previously decided argument herein. BBW
`nonetheless reserves all rights to challenge Plaintiff’s request for equitable relief. Id. at 845
`(affirming dismissal of CLRA and UCL claims for failure to allege lack of adequate remedy at law).
`
`2
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 8 of 34
`
`
`
`statement that hyaluronic acid “attracts and retains up to 1,000x its weight in water to make skin
`look smoother and more supple.” Id. In addition, the Court had little trouble dismissing the
`injunctive relief claims pursuant to the Ninth Circuit’s seminal decision in Davidson v. Kimberly-
`Clark Corp., 889 F.3d 956 (9th Cir. 2018). Without addressing any of the other issues associated
`with Plaintiff’s injunctive relief claim, the Court noted that Plaintiff had failed to even allege the
`requisite desire to purchase any of the challenged products in the future again under Davidson. There
`was therefore no need to address the other defects associated with Plaintiff’s injunctive relief claim.
`Plaintiff Carmen Perez has now filed her Second Amended Complaint (“SAC”).2 See ECF
`No. 95. In so doing, Plaintiff made no changes to clarify her vague and inconsistent requests for
`injunctive relief. Instead, the only change to her stated basis for seeking injunctive relief is to make a
`small cosmetic change to the only paragraph that deals with her standing to seek such relief. A
`redline of this single paragraph shows that Plaintiff now simply included the Hyaluronic Acid
`products at issue, as well as other unspecified BBW moisturizing products, in her future purchase
`desires:
`
`5197. Ms. Perez continues to want to purchase Bath & Body Works
`products that could help improve the appearance of her skin, including,
`specifically, Bath & Body Works Hyaluronic Acid and moisturizing
`products such as those described above. She desires to purchase these
`and other cosmetic products from B&BW, and regularly visits B&BW
`stores where Defendants’ products are sold. Without purchasing and
`having the Products professionally tested or consulting scientific
`experts, Ms. Perez will be unable to determine if representations that
`Defendants make regarding the properties and feature features of its
`products are true. Ms. Perez understands that the formulation of
`Defendants’ Products may change over time or that Defendants may
`choose to market other products that contain misleading representations
`about the product. But as long as Defendants may use inaccurate
`representations about the capabilities of their hyaluronic acid products,
`then when presented with Defendants’ advertising, Ms. Perez continues
`to have no way of determining whether the representations regarding
`those capabilities are true. Thus, Ms. Perez is likely to be repeatedly
`presented with false or misleading information when shopping and
`
`2 Plaintiff Andrea Brooks’ claims have been stayed pending the resolution of her arbitration. See
`ECF No. 77. Consequently, this Motion will refer to Carmen Perez as the sole Plaintiff and will use
`the term “Plaintiff” for the remainder of this Motion.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`3
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 9 of 34
`
`
`
`unable to make informed decisions about whether to purchase
`Defendants’ products. Thus, she is likely to be repeatedly misled by
`Defendants’ conduct, unless and until Defendants are compelled to
`utilize accurate representations regarding the actual capabilities of
`hyaluronic acid.
`
`I.
`
`SAC at ¶ 97 (changes highlighted in bold). This is the first time that Plaintiff has ever asserted any
`desire to purchase BBW’s Hyaluronic Acid products in the future. Despite this curiously timed
`epiphany, however, Plaintiff never asserts that she would like to purchase the Hyaluronic Acid
`products as advertised in the future—meaning with the 1,000x claim—presumably because the
`entire thrust of her complaint is that this claim is categorically false and impossible to achieve.
`ARGUMENT
`PLAINTIFF DOES NOT HAVE STANDING TO ASSERT A CLAIM FOR
`INJUNCTIVE RELIEF
`The doctrine of standing is “an essential and unchanging part” of the case-or-controversy
`requirement of Article III of the U.S. Constitution. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
`(1992). The “irreducible constitutional minimum” of Article III standing consists of three elements.
`Id. at 560-61. Plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the
`challenged conduct of the defendant, and (3) that is likely to be redressed by a favorably judicial
`decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). As the party invoking federal
`jurisdiction, Plaintiff bears the burden of establishing these elements and, at the pleading stage, must
`“‘clearly … allege facts demonstrating’ each element.” Id. In addition, standing is not “dispensed in
`gross.” Town of Chester, N.Y. v. Laroe Est., Inc., 581 U.S. 433, 434 (2017). To the contrary, Plaintiff
`“must demonstrate standing for each claim [s]he seeks to press and for each form of relief that is
`sought.” Id.
`Plaintiff has not—and cannot—establish standing for her request for injunctive relief. This
`Court has already dismissed Plaintiff’s request for injunctive relief on standing grounds and, while
`the Court provided Plaintiff with an opportunity to amend her complaint to attempt to establish the
`constitutional prerequisites for standing, Plaintiff has once again failed to do so. The SAC makes
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`4
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 10 of 34
`
`
`
`only one minor cosmetic change that fails to alleviate the defects in her claim for injunctive relief.
`The Court should, therefore, dismiss her request for injunctive relief with prejudice.
`A.
`Plaintiff Has Not—and Cannot—Establish Injury In Fact Under Davidson
`The “injury in fact” requirement is the “first and foremost” requirement of constitutional
`standing. Spokeo, 578 U.S. at 338. To satisfy this important requirement, Plaintiff Perez must show
`that she suffered an invasion of a legally protected interest that is both (1) “concrete and
`particularized” and (2) “actual or imminent, not conjectural or hypothetical.” Id. at 339. In the
`context of injunctive relief, this means that the injury that would allegedly occur but for the
`requested relief “must be certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409
`(2013) (emphasis in original). It is not enough to assert that she has been injured in the past; instead,
`she must show that there is a “real or immediate threat” that she will again be wronged “in a similar
`way.” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Mere allegations of possible future injury,
`however, are not sufficient. Spokeo, 578 U.S. at 338.
`The Ninth Circuit has repeatedly emphasized that allegedly deceived consumers must plead
`facts sufficient to establish standing for injunctive relief in false advertising cases. See Klaehn v.
`Cali Bamboo LLC, No. 21-55738, 2022 WL 1830685, at *3 (9th Cir. June 3, 2022). Traditionally,
`district courts in the Ninth Circuit were rightfully skeptical of claims for injunctive relief in false
`labeling cases by consumers who were allegedly deceived. Davidson at 967-68 (explaining circuit
`split on pleading standard for injunctive relief in false advertising cases). The reasoning was simple:
`plaintiffs who are already aware of the deceptive nature of an advertisement are not likely to be
`misled into buying the relevant product in the future and, therefore, are not capable of being harmed
`in the same way. See, e.g., Davidson, 889 F.3d at 966-73. Accordingly, while such consumers could
`sue for damages as a remedy for the prior deception, they did not have standing to sue for injunctive
`relief when there was no possibility of future harm, let alone certainly impending future harm.
`In Davidson v. Kimberly-Clark Corp., the Ninth Circuit surveyed this existing body of case
`law and held that it was a “close question” whether standing could ever lie in such circumstances.
`Davidson, 889 F.3d at 971. Nonetheless, the Ninth Circuit expressed concern with establishing a
`bright-line rule that injunctive relief would never be available for a consumer who learns after
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`5
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 11 of 34
`
`
`
`purchasing a product that the label is false. Id. at 970. Instead, the Ninth Circuit held that a
`previously deceived consumer “may,” in certain circumstances, have standing to seek an injunction
`against false advertising or labeling. Id. at 969. But the Court was clear that the resolution of that
`question would depend on the facts alleged in the Complaint and that those allegations must satisfy
`the “plausibility” standard at the pleading stage just like any other. Id. at 964. Subsequent Ninth
`Circuit cases, moreover, have made clear that the circumstances in which standing may lie under
`Davidson are limited. See, e.g., In re Coca-Cola Prods. Mktg and Sales Pracs. Litig., No. 20-15742,
`2021 WL 3878654 (9th Cir. Aug. 31, 2021) (dismissing injunctive relief claims under Davidson
`based on factual deficiencies); Lanovaz v. Twinings N. Am., Inc., 726 F. App’x 590 (9th Cir. 2018)
`(same). See also Prescott v. Nestle USA, Inc., No. 19-cv-07471-BLF, 2020 WL 3035798, at *6 (N.D.
`Cal. June 4, 2020) (Freeman, J.) (Davidson only applies in “certain circumstances”) (“Prescott I”);
`Levay v. AARP, Inc., No. 17-09041, 2018 WL 5794456, at *3 (C.D. Cal. Nov. 2, 2018) (Davidson
`only applies in “certain circumstances”).
`The actual holding in Davidson thus turned on the specific facts alleged in the complaint.
`Davidson involved an allegedly false and deceptive claim by Kimberly-Clark that its pre-moistened
`wipes were “flushable.” To support their claim for injunctive relief, the deceived plaintiffs alleged
`that they “continue[d] to desire to purchase wipes that are suitable for disposal in a household toilet”
`and “would purchase truly flushable wipes manufactured by [Kimberly-Clark] if it were possible.”
`Davidson, 889 F.3d at 970 (internal quotations omitted). They therefore alleged that this desire—the
`desire to purchase Kimberly-Clark’s “flushable” wipe products as advertised if it were possible—
`was sufficient to establish standing. Id. at 971. The injury associated with this desire arose from the
`confusion that supposedly would occur when plaintiff was shopping in stores in the future, saw
`Kimberly-Clark’s wipes marketed as “flushable,” and couldn’t rely on the representation that the
`product was, in fact, truly flushable when she was considering whether to purchase it and, as a result,
`chose not to purchase it. Id. at 966, 971-72.
`The SAC, however, has come nowhere close to satisfying the Davidson standard in many
`critical respects. As an initial matter, unlike Davidson, Plaintiff has—tellingly—not alleged that she
`wishes to purchase BBW’s product as advertised. That alone is sufficient to warrant dismissal of her
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`6
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 12 of 34
`
`
`
`injunctive relief claim under Davidson. Indeed, the Ninth Circuit has squarely held that a plaintiff’s
`failure to allege that she wishes to purchase the product as advertised in the future is fatal to her
`standing to seek injunctive relief. For example, in In re Coca-Cola, the Ninth Circuit recently
`dismissed an injunctive relief claim at the pleading stage because none of the plaintiffs alleged “a
`desire to purchase Coke as advertised” and therefore could not establish any injury in fact. 2021 WL
`3878654 at *2 (emphasis in original). Numerous courts within the Ninth Circuit have reached similar
`results. See, e.g., Levay v. AARP, Inc., No. 17-09041, 2018 WL 3425014, at *3 (C.D. Cal. July 12,
`2018) (dismissing injunctive relief claim because Davidson required plaintiffs to allege a desire to
`purchase products “if it were to perform as advertised” and no such facts were alleged).
`This only stands to reason. To hold otherwise would turn Davidson on its head. As noted
`above, Davidson was concerned about previously deceived consumers “never” being able to
`establish standing and, as a result, it contemplated “limited circumstances” in which standing might
`be established if the previously deceived customer wanted to purchase the product as advertised in
`the future. But if all a plaintiff need do is allege a general desire to purchase an unspecified product
`in the future, no matter how the product may then be advertised, then the alleged injury would not be
`traceable to the claims at issue in the lawsuit and any plaintiff could establish standing simply by
`invoking the magic words. The limited exceptions contemplated by Davidson would therefore
`swallow the rule and an important constitutional limitation would be erased.
`Second, even if Plaintiff had made the necessary allegation, Davidson makes it clear that
`pleading standards still apply. To satisfy Article III, the allegation of injury must not only meet the
`plausibility standard just like any other but it also must meet the standards for concreteness,
`particularity, and imminence required by constitutional standing principles. Davidson, 889 F.3d at
`967. This is important because here, unlike in Davidson, there is reason to discount Plaintiff’s
`newfound intent to purchase various BBW products, including BBW’s Hyaluronic Acid products, in
`the future. Indeed, it is telling that Plaintiff never once alleged that she desired to purchase BBW’s
`Hyaluronic Acid products, let alone as advertised, until her injunctive relief claim was dismissed and
`she filed her SAC. It was only then—15 months after filing her Complaint and after her injunctive
`relief claim was dismissed—that she had this sudden epiphany. Moreover, during this time, Plaintiff
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`7
`
`BBW’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
`
`5:21-CV-05606-BLF
`
`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
`
`
`
`Case 5:21-cv-05606-BLF Document 102 Filed 12/05/22 Page 13 of 34
`
`
`
`has steadfastly insisted that BBW’s hyaluronic acid products don’t work and are essentially
`worthless. As such, it strains credulity for her to now suggest that she has developed a newfound
`desire to purchase products she deems to be worthless in the future. See Min Shook Shin v. Umeken
`USA, Inc., 773 F. App’x 373, 375 (9th Cir. 2019) (affirming dismissal of request for injunctive relief
`on plausibility grounds where plaintiff claimed product was “worthless” because “a plaintiff
`certainly will not purchase a worthless product in the future”). This is likely why she can only make
`a conclusory allegation. She is attempting to pay lip service to Davidson in a last-ditch attempt to
`revive a previously dismissed claim, rather than actually satisfying the important constitutional
`limitations imposed by Article III.
`In truth, of course, the real reason why she is not able to allege a desire to purchase the
`product as advertised in the future is because the gravamen of her entire complaint is that it is
`impossible for hyaluronic acid to ever retain 1,000x its weight in water. Davidson held that an injury
`based on a desire to make future purchases would only be concrete if it were possible for the product
`to be truthfully sold as advertised in the future, thereby creating the confusion regarding the future
`accuracy of that claim that caused her not to buy the product and served as the basis for her
`informational injury. Indeed, at the motion to dismiss stage, the Ninth Circuit held in Davidson that
`Plaintiff’s allegation that she “would purchase truly flushable wipes manufactured by Kimberly-
`Clark if it were possible” is what made her injury “concrete.” 889 F.3d at 971 (emphasis added). But
`Plaintiff here cannot plausibly allege that she would purchase BBW’s Hyaluronic Acid products in
`the future if hyaluronic acid truly retained 1,000x its weight in water because she has elsewhere
`alleged that this is impossible. The Complaint specifically alleges that the 1,000x claim is “false”
`and that hyaluronic acid is categorically “incapable of attracting or absorbing anywhere near 1,000
`times its weight in water.” SAC at ¶ 71 (emphasis added). Since that allegation must be accepted as
`true at the pleading stage, Plaintiff lacks standing by her own admission.
`This reasoning is best illustrated by an analogous case. In Anthony v. Pharmavite, plaintiffs
`challenged a manufacturer’s claim that a supplement cont