Case 3:17-cv-01381-JAM Document 274 Filed 08/12/20 Page 1 of 51
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`
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`No. 3:17-cv-01381 (JAM)
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`MARK J. PATANE et al.,
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`Plaintiffs,
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`NESTLÉ WATERS NORTH AMERICA,
`INC.,
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`v.
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`
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`Defendant.
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`
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`
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`ORDER GRANTING IN PART AND DENYING IN PART
`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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`Plaintiffs have filed this class action lawsuit alleging that defendant Nestlé Waters North
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`America, Inc. (“Nestlé”) fraudulently labels and sells its Poland Spring bottled water product as
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`“spring water” when in fact it is not spring water as defined by law. Nestlé has now moved for
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`summary judgment on all of plaintiffs’ claims arising under the laws of Connecticut, Maine,
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`Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, and Rhode Island. For
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`the reasons set forth below, I will deny the motion except as to one of plaintiffs’ claims under
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`Rhode Island law.
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`Nestlé argues for dismissal on the ground that there is no private right of action for the
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`violation of state “spring water” standard laws and, alternatively, that any right of action is
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`foreclosed by safe harbor exemptions under state law and by doctrines that limit collateral
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`attacks on state-issued permits or licenses. Based on my state-by-state evaluation of these
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`arguments, I generally conclude that the lack of a specific right of action for the violation of a
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`state law spring water standard does not foreclose the underlying conduct from being actionable
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`under separate state statutes that prohibit unfair and deceptive trade practices or from being
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`actionable to the extent that they amount to fraud and breach of contract. I further conclude—
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`with the exception of Rhode Island—that at least a genuine issue of fact remains whether Nestlé
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`is entitled to the benefit of any regulatory safe harbor exemptions or whether plaintiffs’ claims
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`amount to an impermissible collateral attack on state-issued licenses or permits.
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`BACKGROUND
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`Nestlé labels and sells its Poland Spring water products as “spring water” in retail, home,
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`and office markets. Doc. #229-1 at 1 (¶ 1). Plaintiffs have purchased Poland Spring water since
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`2003 and reside in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York,
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`Pennsylvania, and Rhode Island. Ibid. (¶ 2). Nestlé has packaged its water at bottling facilities in
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`Poland Spring and Hollis, Maine, and Framingham, Massachusetts, since 2003, and since 2009
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`has also used a fourth facility in Kingfield, Maine. Id. at 2 (¶¶ 3-4). From 2003 to 2017, the
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`water packaged at these four facilities came from eight sites in Maine. Ibid. (¶ 5).1
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`In 2018, I dismissed plaintiffs’ initial complaint because their state law claims as framed
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`were all preempted by the federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301-
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`392. Doc. #142; Patane v. Nestlé Waters N. Am., Inc., 314 F. Supp. 3d 375 (D. Conn. 2018).
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`Plaintiffs then filed an amended complaint on behalf of consumers in the eight states listed above
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`as well as Vermont, alleging state common law claims for fraud and breach of contract in
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`addition to state statutory claims for consumer fraud and unfair trade practices. Doc. #160. I
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`dismissed the Vermont law claims and allowed the rest to proceed. Doc. #179; Patane v. Nestlé
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`Waters N. Am., Inc., 369 F. Supp. 3d 382 (D. Conn. 2019). Plaintiffs seek, among other
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`remedies, money damages and a permanent injunction enjoining Nestlé from selling its Poland
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`1 Nestlé contends that this is the class period; plaintiffs argue that it extends to the present. Doc. #229-1 at 2 (¶ 5).
`Plaintiffs have not yet filed their motion for class certification, at which time it would be appropriate for the Court to
`decide the class period, if any. Nevertheless, the fact that there has been no class certification determination poses no
`bar to ruling on Nestlé’s motion for summary judgment. See Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d
`Cir. 1998); Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 507 (E.D.N.Y. 2017).
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`Spring water as “spring water.” Doc. #160 at 283-324. Nestlé now moves for summary judgment
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`on all of plaintiffs’ claims. Doc. #219.
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`DISCUSSION
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`The principles governing the Court’s review of a motion for summary judgment are well
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`established. Summary judgment may be granted only if “the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.” Fed. R. Civ. P. 56(a). The Court must view the facts in the light most favorable to the party
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`who opposes the motion for summary judgment and then decide if those facts would be
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`enough—if eventually proved at trial—to allow a reasonable jury to decide the case in favor of
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`the opposing party. My role at summary judgment is not to judge the credibility of witnesses or
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`to resolve close contested issues of fact but solely to decide if there are enough facts that remain
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`in dispute to warrant a trial. See generally Tolan v. Cotton, 572 U.S. 650, 656-57 (2014) (per
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`curiam); Benzemann v. Houslanger & Assocs., PLLC, 924 F.3d 73, 78 (2d Cir. 2019).
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`This case involves state law claims over which the Court has federal diversity
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`jurisdiction. Absent a controlling decision from a state’s highest court on a question of state law,
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`a federal court’s role is to carefully predict how the state court would rule on the issue presented.
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`See Haar v. Nationwide Mut. Fire Ins. Co., 918 F.3d 231, 233 (2d Cir. 2019). In so doing, a
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`federal court should give proper regard to the relevant rulings of the state’s lower courts and may
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`also consider decisions from other jurisdictions on the same or analogous issues. See In re Thelen
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`LLP, 736 F.3d 213, 219 (2d Cir. 2013) (subsequent case history omitted).
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`Nestlé moves for summary judgment on three grounds. First, Nestlé argues that there is
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`no private right of action under applicable state law for the claimed violations by Nestlé of state
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`law “spring water” standards. Doc. #219-1 at 18-27. Second, Nestlé argues that applicable state
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`law recognizes a safe harbor defense to foreclose liability against Nestlé in light of alleged state
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`regulatory approvals of Nestlé “spring water” for sale. Id. at 27-38. Third, Nestlé argues that this
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`lawsuit functions as an impermissible collateral attack on the administrative approvals of state
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`regulators for the sale of Nestlé’s product as “spring water.” Id. at 39-48.
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`In the discussion below, I will address this trio of arguments with respect to each of the
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`applicable States in alphabetical order. Because the parties’ briefing overwhelmingly focuses on
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`plaintiffs’ statutory claims, I will address those claims before turning to the common law claims.
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`Connecticut
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`1. Private right of action under Connecticut law
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`In Count VI of the amended complaint, plaintiffs allege a violation of the Connecticut
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`Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. §§ 42-110a–42-110q, a law which
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`creates a private right of action to recover damages for “[a]ny person who suffers any
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`ascertainable loss of money or property . . . as a result of the use or employment of a method, act
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`or practice” that amounts to “unfair methods of competition and unfair or deceptive acts or
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`practices in the conduct of any trade or commerce.” Id. §§ 42-110g(a), 42-110b(a). CUTPA is
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`expressly intended to “be remedial and be so construed.” Id. § 42-110b(d).
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`As I have previously ruled, Connecticut law adopts the federal “spring water” standard.
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`See Patane, 369 F. Supp. 3d at 392-93 (citing Conn. Gen. Stat. §§ 21a-150(14) and 150e(c)). The
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`Connecticut Food, Drug and Cosmetic Act (“CFDCA”), Conn. Gen. Stat. § 21a-91 et seq.,
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`provides in turn that “[a] food shall be deemed to be misbranded . . . [i]f its labeling is false or
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`misleading in any particular,” id. § 21a-102(a), and “food” is defined to include “articles used for
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`. . . drink for humans,” id. § 21a-92(10). Yet the CFDCA does not provide a private right of
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`action; instead, it states that “[a]ll such proceedings for the enforcement, or to restrain violations,
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`of this chapter shall be by and in the name of the state of Connecticut.” Id. § 21a-99.
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`Nestlé argues that plaintiffs’ CUTPA claim may not proceed on the basis of a statute such
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`as the CFDCA that does not itself provide for a private right of action and allows only for its
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`public enforcement by the State of Connecticut. According to Nestlé, “the Connecticut Supreme
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`Court has repeatedly held private plaintiffs cannot predicate a CUTPA claim on violations of law
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`barring private enforcement actions.” Doc. #219-1 at 24. In fact, however, the Connecticut
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`Supreme Court has ruled to the contrary in cases that Nestlé fails to cite or acknowledge. See
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`Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 119 A.3d 1139, 1150-51 (Conn. 2015)
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`(allowing CUTPA claim based on violation of the Connecticut Unfair Insurance Practices Act,
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`which itself has no private right of action provision and which allows only for enforcement by
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`the insurance commissioner); Eder Bros. v. Wine Merchants of Connecticut, Inc., 880 A.2d 138,
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`146-47, 149-50 (Conn. 2005) (allowing CUTPA claim based on violation of the Liquor Control
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`Act, notwithstanding that the Liquor Control Act vests exclusive authority for its enforcement in
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`the department of consumer protection). Thus, as the Connecticut Supreme Court has recently
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`noted, “a plaintiff may predicate a CUTPA claim on violations of statutes or regulations that
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`themselves do not allow for private enforcement.” Cenatiempo v. Bank of Am., N.A., 219 A.3d
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`767, 792 n.16 (Conn. 2019).
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`Nestlé relies instead on cases that have nothing to do with whether a CUTPA claim may
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`proceed on the basis of a violation of a different statute for which there is no private right of
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`enforcement. Doc. #219-1 at 24 nn.8-9. For example, Nestlé cites Perez-Dickson v. City of
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`Bridgeport, 43 A.3d 69 (Conn. 2012), a case that does not mention CUTPA and that stands for
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`the unremarkable proposition that a plaintiff may not sue under a statute unless the legislature
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`intended a suit to be brought under the statute. Of course, CUTPA itself expressly provides for a
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`private right of action, so Perez-Dickson is irrelevant here.
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`Nestlé also relies on Connelly v. Housing Authority of City of New Haven, 567 A.2d 1212
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`(Conn. 1990), a case in which the Connecticut Supreme Court concluded that the acts of a local
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`housing authority were subject to one of CUTPA’s exemptions, Conn. Gen. Stat. § 42-110c. This
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`exemption has nothing to do with whether a CUTPA claim may be predicated on conduct in
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`violation of another statute that does not itself provide for a private right of action.
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`Nestlé similarly misplaces its reliance on Blass v. Rite Aid of Connecticut, Inc., 16 A.3d
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`855 (Conn. Super. Ct. 2009), aff’d, 16 A.3d 737 (Conn. App. 2011). There, the court held that
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`consumers could not bring a CUTPA claim to recover overpaid sales taxes in part because the
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`relevant state sales tax statute expressly creates an alternative administrative remedy to recover
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`any such overpayment—specifically, consumers could apply to the Commissioner of Revenue
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`Services for a refund. See Blass, 16 A.3d at 860-63. Here, however, the CFDCA provides no
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`alternative means of recovery for consumers. Nor is there any Connecticut statute that precludes
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`the use of CUTPA to seek a remedy for a violation of the CFDCA. See, e.g., Water Pollution
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`Control Auth. of the City of Norwalk v. Flowserve US, Inc., 782 F. App’x 9, 15 (2d Cir. 2019)
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`(no CUTPA claim for violation of the Connecticut Product Liability Act which has a provision
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`that makes it the exclusive means by which a party may secure a remedy for an injury from a
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`defective product). Accordingly, I conclude that the lack of a private right of action under the
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`CFDCA does not preclude plaintiffs’ CUTPA claim.
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`2. Safe harbor exemption under Connecticut law
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`Nestlé claims the benefit of CUTPA’s “safe harbor” exemption provision. CUTPA
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`expressly exempts from liability “[t]ransactions or actions otherwise permitted under law as
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`administered by any regulatory board or officer acting under statutory authority of the state or of
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`the United States,” and it places “[t]he burden of proving exemption . . . upon the person
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`claiming the exemption.” Conn. Gen. Stat. § 42-110c.
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`To determine the application of this exemption, a court must first identify the
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`“transactions or actions” at issue by determining “the broader pattern of activity by the
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`defendant, not the specific allegations of misconduct.” Garcia v. Fry, 186 F. Supp. 3d 228, 234
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`(D. Conn. 2016) (citing Connelly, 567 A.2d at 1213, 1216); see also Wind Corp. v. Wesko Locks,
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`Ltd., 2018 WL 8729585, at *4 (D. Conn. 2018) (conduct at issue is “importing foreign-
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`manufactured products into the United States for sale to furniture manufacturers,” not the alleged
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`“making [of] false declarations regarding the country of origin of a product”). Here, Nestlé’s
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`broader pattern of activity is its sale of bottled water as “spring water” in Connecticut. A court
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`must also determine whether the conduct at issue—the sale of bottled water as “spring water”—
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`is “expressly authorized and pervasively regulated.” Normand Josef Enterprises, Inc. v.
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`Connecticut Nat. Bank, 646 A.2d 1289, 1305 (Conn. 1994) (emphasis omitted).
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`According to Nestlé, it is entitled to the benefit of the safe harbor exemption because
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`“regulatory agencies in the eight states at issue, charged by law with regulating the sale of
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`bottled water, have indisputably preapproved and authorized the sale of Poland Spring as
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`‘spring water,’ including the use of the terms ‘spring water’ and ‘natural spring water’ on its
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`labels.” Doc. #219-1 at 27. The trouble, however, is that the evidence submitted by Nestlé does
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`not conclusively show that Connecticut regulators specifically approved Nestlé’s sale of bottled
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`water as “spring water.” Nestlé’s evidence with respect to Connecticut regulatory approvals
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`includes but a smattering of annual licenses for just some of the years within the class period and
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`that were issued by the Connecticut Department of Consumer Protection, and these licenses
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`reflect permission for bottled water in general and without any further reference or approval
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`specific to spring water. Doc. #219-3 at 104-114 (Mathews Decl. Exs. DD, EE, and FF); see also
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`Doc. #229-19 (Connecticut license application requiring applicant to identify “Type of product”
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`as “Bottled Water” or “Other Beverage” but without specification of “spring water”).
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`Nestlé has also submitted correspondence from its compliance consultant to the
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`Connecticut Department of Consumer Protection stating Nestlé’s intent to sell its water as
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`“spring water.” Doc. #219-3 at 116-122 (Mathews Decl. Exs. GG and HH). But the relationship
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`of these representations by Nestlé to the approval and issuance of licenses is unclear.
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`Kevin Mathews—a former Nestlé employee responsible for obtaining its licenses from
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`1989 to March 2019—otherwise attests that for Connecticut and all the other states at issue in
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`this case “each issued licenses, permits or certificates approving the sale of Poland Spring bottled
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`water as ‘spring water’ in their respective states.” Doc. #219-3 at 2 (¶ 4). But this claim (that the
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`licenses specifically approved the sale of Poland Spring water “as ‘spring water’”) is disputed by
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`plaintiffs and it is not conclusively corroborated by reference to the legal or agency materials that
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`establish the scope and effect of the issued licenses. See also Doc. #254 at 4 (¶ 15) (plaintiffs’
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`supplemental declaration re lack of information from Connecticut regulators re approval of
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`spring water designation); Doc. #266-1 at 4-5 (¶¶ 15-19) (plaintiffs’ second supplemental
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`declaration re depositions of compliance consultant and Mathews showing their lack of first-
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`hand knowledge concerning scope of administrative review and approval); Doc. #265-1 at 16
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`(Nestlé compliance consultant deposition testimony re lack of knowledge that Connecticut
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`“affirmatively determined that Poland Spring water complies with the FDA identity standard”).
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`The documents do not conclusively corroborate Mathews’s claim that Connecticut specifically
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`approved the sale of Poland Spring bottled water as spring water, and Mathews otherwise
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`acknowledged at his deposition (Doc. #265-4 at 8) that he had no personal knowledge for his
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`conclusory statements about the scope and effect of state-issued licenses. See Spiegel v.
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`Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (district court may not rely at summary judgment on
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`evidence that would be inadmissible hearsay at trial).2
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`Nestlé argues that “[f]or safe harbor immunity to attach, it is only legally relevant what
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`action the states took (i.e., did the state issue a permit or license authorizing the sale of Poland
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`Spring bottled water as spring water?)” and that “[h]ow a state reached its determination to
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`authorize the sale of Poland Spring bottled water as spring water is not relevant to the safe
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`harbor defense.” Doc. #267 at 3. Even assuming this to be so, a genuine fact issue remains as to
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`whether the Connecticut licenses actually constituted an authorization for the sale of Poland
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`Spring bottled water as spring water. Accordingly, I conclude that a genuine fact issue remains
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`with respect to whether the CUTPA safe harbor exemption provision applies.
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`3. Collateral attack under Connecticut law
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`Nestlé further argues that plaintiffs’ CUTPA claim amounts to an improper collateral
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`attack on the issuance of a license to sell bottled water by the Connecticut Department of
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`Consumer Protection. But even assuming Connecticut law limits lawsuits that function as a
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`collateral attack on the issuance of a regulatory permit, plaintiffs do not seek to penalize or
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`enjoin Nestlé’s sale of bottled water in general, and as explained above a genuine fact issue
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`remains whether Connecticut regulatory authorities expressly approved Nestlé’s sale of bottled
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`water as “spring water” within the meaning of Connecticut law. Accordingly, a genuine fact
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`2 The Mathews declaration makes a similar conclusory and hearsay assertion for each one of the other states at issue
`in this litigation in addition to Connecticut. For the same reason as explained here and because Mathews does not
`have firsthand knowledge and any demonstrated admissible basis for knowledge beyond what is stated in the
`documents attached to his declaration, I decline to conclude that such statements by Mathews characterizing the
`scope and effect of each state’s regulatory actions is sufficient to preclude a genuine fact issue on the issue of
`whether any of the states approved the sale of Poland Spring water as spring water.
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`issue remains before I can determine whether plaintiffs’ lawsuit functions as an improper
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`collateral attack of a regulatory permit under Connecticut law.
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`Maine
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`1. Private right of action under Maine law
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`In Count XI of the amended complaint, plaintiffs allege a violation of both the Maine
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`Unfair Trade Practices Act (“MUTPA”), Me. Rev. Stat. tit. 5, §§ 205-A–214, and the Maine
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`Uniform Deceptive Trade Practices Act (“MUDTPA”), Me. Rev. Stat. tit. 10 §§ 1211-1216.
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`MUTPA creates a private right of action to pursue damages and equitable relief for “[a]ny person
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`who purchases . . . goods . . . primarily for personal, family or household purposes and thereby
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`suffers any loss of money or property . . . as a result of the use or employment by another person
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`of a [prohibited trade practice].” Me. Rev. Stat. tit. 5, § 213. MUDTPA in turn creates a private
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`right of action to seek injunctive relief against any person who, “in the course of his business . . .
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`[r]epresents that goods . . . have . . . characteristics . . . that they do not have . . . ; [r]epresents
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`that goods . . . are of a particular standard . . . if they are of another; . . . [a]dvertises goods . . .
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`with intent not to sell them as advertised . . . ; or [e]ngages in any other conduct which similarly
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`creates a likelihood of confusion or misunderstanding.” Me. Rev. Stat. tit. 10, §§ 1212(1), 1213.
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`Its remedies are “in addition to remedies otherwise available against the same conduct under the
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`common law or other statutes of [Maine].” Id. § 1213.
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`As I have previously ruled, Maine law adopts the federal “spring water” standard. See
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`Patane, 369 F. Supp. 3d at 392-93 (citing Code Me. R. 10-144 Ch. 231, § 2). Nestlé argues that
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`Maine law does not provide for a private right of action for a violation of the state law “spring
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`water” standard. Nestlé further argues that because the law of Maine does not expressly create a
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`private right of action for the misbranding of a product as spring water, then plaintiffs may not
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`rely on MUTPA or MUDTPA to pursue such a claim. But Nestlé does not cite authority to show
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`that an action for a violation of MUTPA or MUDTPA is precluded if the action is based on a
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`violation of a state law regulation for which there is no standalone cause of action.
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`Nestlé misplaces its reliance on Wawenock, LLC v. Dep’t of Transp., 187 A.3d 609 (Me.
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`2018), a case in which the Maine Supreme Judicial Court restated the general rule that “[w]hen a
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`private right of action exists . . . it is most often created by express language,” id. at 612, and
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`concluded that a particular Maine law known as the Sensible Transportation Policy Act did not
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`create a private right of action. The ruling in Wawenock did not address MUTPA or MUDTPA.
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`In light of the remedial purposes of MUTPA and MUDTPA and in the absence of precedent to
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`suggest that these statutes should be given a restrictive interpretation, I decline to conclude that
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`under Maine law a cause of action under MUTPA or MUDTPA may not proceed if the
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`underlying unfair or deceptive conduct constitutes a violation of a regulatory or statutory
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`provision of Maine law for which there is no independent cause of action.
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`Nestlé also cites First of Maine Commodities v. Dube, 534 A.2d 1298 (Me. 1987), but
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`that case has nothing to do with allowance of a private right of action. Instead, it discusses an
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`express exemption under MUTPA, id. at 1301-02, an issue that goes to Nestlé’s safe harbor
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`defense rather than the existence of a private right of action. Accordingly, I conclude that the
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`lack of an express private right of action for the violation of Maine’s spring water standard does
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`not preclude a cause of action under MUTPA or MUDTPA.
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`2. Safe harbor exemption under Maine law
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`MUTPA expressly exempts from liability “[t]ransactions or actions otherwise permitted
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`under laws as administered by any regulatory board or officer acting under statutory authority of
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`the State or of the United States.” Me. Rev. Stat. tit. 5, § 208(1). The statutory provision was
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`amended in September 2007 to expressly require that a party seeking immunity show both that
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`“[i]ts business activities are subject to regulation by a state or federal agency” and that “[t]he
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`specific activity that would otherwise constitute a violation of [MUTPA] is authorized, permitted
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`or required by a state or federal agency or by applicable law, rule or regulation or other
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`regulatory approval.” Id. § 208(1)(A)-(B).3
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`The parties do not dispute that Nestlé’s “business activities” are generally “subject to
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`regulation” by an agency. The sale of bottled water in Maine is regulated by the Maine
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`Commissioner of Agriculture, Conservation and Forestry, see Me. Rev. Stat. tit. 32, §§ 1751-
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`1854, and the Maine Department of Health and Human Services, see Code Me. R. 10-144 Ch.
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`231, §§ 1-11.
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`To evaluate Nestlé’s claim to the exemption, then, I must initially determine what is
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`Nestlé’s “specific activity that would otherwise constitute a violation of [MUTPA]” by
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`considering “the allegedly illegal conduct.” Campbell v. First Am. Title Ins. Co., 644 F. Supp. 2d
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`126, 134 (D. Me. 2009) (citing Good v. Altria Group, Inc., 501 F.3d 29 (1st Cir. 2007), aff’d,
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`555 U.S. 70 (2008), and Provencher v. T & M Mortg. Sols., Inc., 2008 WL 2447472, at *7 (D.
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`3 A preliminary issue is whether the amendment to the MUTPA should apply retroactively or only prospectively
`from its effective date. See Hulin v. Fibreboard Corp., 178 F.3d 316, 318-19 (5th Cir. 1999) (state retroactivity
`doctrines substantive for purposes of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)). In Maine, “absent
`language to the contrary, legislation affecting procedural or remedial rights should be applied retroactively, whereas
`legislation affecting substantive rights should be applied prospectively,” and at the same time, “all statutes will be
`considered to have a prospective operation only, unless the legislative intent to the contrary is clearly expressed or
`necessarily implied from the language used.” Greenvall v. Maine Mut. Fire Ins. Co., 788 A.2d 165, 166-67 (Me.
`2001). Amendments are non-substantive if they “do not change the legal significance of acts occurring before the
`amendments.” Id. at 167. I find that the second part of the amendment is non-substantive because it “does not alter
`existing rights or obligations, but merely clarifies what those existing rights and obligations have always been.”
`Maine Sch. Admin. Dist. No. 27 v. Maine Pub. Employees Ret. Sys., 983 A.2d 391, 399 (Me. 2009) (cleaned up). It
`simply clarified the “transactions or actions” at issue, what it means for them to be “otherwise permitted,” and what
`are “laws as administered by any regulatory board or officer acting under statutory authority of the State or of the
`United States.” But see Provencher v. T & M Mortg. Sols., Inc., 2008 WL 2447472, at *7 n.5 (D. Me. 2008)
`(finding, without explanation, amendment was “clearly substantive”). Even assuming the first part of the amendment
`is substantive (because a business’s specific “transactions or actions” can be regulatorily approved without its
`general “business activities” being subject to regulation), whether that has been the case here is not disputed.
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`Case 3:17-cv-01381-JAM Document 274 Filed 08/12/20 Page 13 of 51
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`Me. 2008)). Here, the specific activity alleged to violate MUTPA is Nestlé’s sale of ordinary
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`groundwater as “spring water” in Maine. Cf. Good, 501 F.3d at 55-58 (cigarette manufacturer’s
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`use of the terms “light” and “lowered tar and nicotine” in its product advertisements is the
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`specific activity at issue).
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`Next I must determine whether Nestlé’s sale of its water as “spring water” “is
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`“authorized, permitted or required” by law. See Campbell, 644 F. Supp. 2d at 134. This express
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`requirement was added in 2007 in an apparent attempt by the Maine legislature to clarify that
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`MUTPA exempts only those transactions “otherwise permitted, not otherwise regulated.” Id. at
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`133 (quoting Good, 501 F.3d at 58); see also Provencher, 2008 WL 2447472, at *7 (“The
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`defendants do not identify any of their actions, which the plaintiff has alleged violated
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`[MUTPA], as being specifically permitted by any statute or regulation.”).4
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`A similar analysis applies under MUDTPA which expressly exempts from liability
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`“[c]onduct in compliance with the orders or rules of, or a statute administered by, a federal, state
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`or local governmental agency.” Me. Rev. Stat. tit. 10, § 1214(1)(A). It further provides that
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`MUDTPA “shall be construed to effectuate its general purpose to make uniform the law of those
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`states which enact it.” Id. § 1215.
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`Maine courts appear to have only once had occasion to apply the MUDTPA exemption.
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`In Laing v. Clair Car Connection, 2003 WL 1669624 (Me. Super. 2003), a used-car purchaser’s
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`MUDTPA claim against the dealer for failure to disclose the car’s accident history failed under
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`the exemption “[b]ecause [the dealer] properly complied with . . . [a] statute specifically
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`4 Nestlé’s reliance on First of Me. Commodities v. Dube, 534 A.2d 1298 (Me. 1987), and Wyman v. Prime Disc.
`Sec., 819 F. Supp. 79 (D. Me. 1993), which itself relies on Dube, ignores that the First Circuit understood Dube to
`hold that the exemption applies to conduct that “is subject to specific standards left to the enforcement of an
`administrative agency, not merely those circumstances in which the agency’s regulatory scheme is generally
`‘extensive’ or ‘detailed.’” Good, 501 F.3d at 58.
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`Case 3:17-cv-01381-JAM Document 274 Filed 08/12/20 Page 14 of 51
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`enumerating the disclosure duties of used car dealers.” Id. at *3. The statute in question required
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`dealers to disclose any damage the vehicle sustained “if that information is known to the dealer,”
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`Me. Rev. Stat. tit. 10, § 1475(2-A)(D), and the purchaser did not dispute that the dealer had
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`obtained two inspections of the vehicle that showed no damage. See Laing, 2003 WL 1669624,
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`at *1. The court’s interpretation of MUDTPA’s text would appear to exempt from liability
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`conduct that is alleged to be unlawful under MUDTPA, but that also complies with the terms of a
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`statute that specifically sets forth duties governing such conduct.
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`Because the parties have not cited, and I have not found, any other authority defining the
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`proper scope of the MUDTPA exemption, I turn to the statute itself, mindful that MUDTPA was
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`enacted in 1969 and went into effect in 1973. In Maine, statutes are interpreted to give effect to
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`the legislature’s intent. See Ford Motor Co. v. Darling’s, 151 A.3d 507, 515 (Me. 2016).
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`Accordingly, courts start by attempting to apply a statute’s plain language in the context of the
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`statutory scheme, construing it to avoid surplusage, interpretations “inimical to the public
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`interest,” and absurd or illogical results. Ibid. Only if a statute’s text is ambiguous will courts
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`turn to legislative history and other indicia of legislative intent. Ibid.
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`First, I must determine the “conduct” at issue. Nestlé appears to allege that the conduct at
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`issue is its sale of Poland Spring water as “spring water,” Doc. #219-1 at 30; plaintiffs appear to
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`allege that it is the misleading of consumers, Doc. #229 at 35. As I have already noted, the Laing
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`court appears to have interpreted the conduct at issue as the behavior alleged to violate the
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`MUDTPA. I agree with that interpretation. That the word “conduct” appears in an exemption
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`provision and is followed by the phrase “in compliance with [certain other law]” suggests that
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`the conduct at issue must at least be arguably unlawful. The MUDTPA liability provision lists a
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`series of behaviors that constitute deceptive trade practices, including “[r]epresent[ing] that
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`goods . . . have . . . characteristics, [or] ingredients . . . that they do not have,” and concluding
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`with “any other conduct which similarly creates a likelihood of confusion or of
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`misunderstanding.” Me. Rev. Stat. tit. 10, § 1212(1) (emphasis added). This interpretation also
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`promotes harmony with the MUTPA exemption. Here, Nestlé’s alleged unlawful behavior is its
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`allegedly deceptive sale of ordinary groundwater as “spring water” in Maine.
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`Second, I must determine whether the conduct is “in compliance with” certain other law.
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`Because MUDTPA instructs that it is to be interpreted in conformity with other such statutes, I
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`look to other states that, like Maine, have adopted the federal Uniform Deceptive Trade Practices
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`Act (“UDTPA”), 7A U.L.A. 265 (1964 & 1966), including its exemption provision, id. § 4(a).
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`For example, the Colorado Supreme Court ha