Antitrust Law Daily Wrap Up, ADVERTISING—DNH: Colgate-Palmolive’s Motion to Dismiss Claims Relating to Softsoap Antibacterial Challenging Sufficiency of the Pleadings Denied, (Apr 5, 2013)

By Peter Reap, J.D., LL.M.

A motion to dismiss the claims brought in a consolidated consumer class action against Colgate-Palmolive Company, the maker of Softsoap Antibacterial, challenging the sufficiency of the pleadings on various grounds was denied without prejudice because neither party adequately briefed the different state laws that governed the class’ claims, the federal district court in Concord, New Hampshire, has ruled (In re: Colgate-Palmolive Antibacterial Hand Soap Marketing and Sales Practices Litigation, April 2, 2013, Barbadoro, P.).

The plaintiffs assert that numerous scientific studies over the last 15 years have raised doubts about the safety and effectiveness of triclosan, the active ingredient in Softsoap Antibacterial. For example, they claim that studies showed that repeated use of triclosan hand soap can produce bacteria that are resistant to the chemical. The plaintiffs allege that Colgate is liable for damages because it induced class members to purchase Softsoap Antibacterial by making false and misleading marketing claims.

They bring consumer protection claims in California, Florida, Illinois, Nevada, and New Jersey; breach of express warranty claims in California, Florida, Illinois, Nevada, New Jersey, and South Carolina; breach of implied warranty claims in California, Florida, Nevada, New Jersey, and South Carolina; and unjust enrichment claims in Florida, Illinois, Nevada, New Jersey, and South Carolina.

The law the court must use to resolve the plaintiffs’ claims in this multidistrict litigation would vary depending upon the choice of law rules of each transferor court, the court observed. However, neither party adequately briefed the law that governs the plaintiffs’ claims.

For example, the elements of consumer protection claims differed from state to state, the court explained. In Illinois and Florida, a plaintiff must prove that the defendant intended to induce reliance on a false representation of material fact. In California, a plaintiff need not demonstrate intent.

Moreover, the elements of breach of express warranty claims also differed from state to state. In Florida, a plaintiff must provide notice of the breach to the seller before bringing suit. Notice was not required in other states.

Not only did the elements of the plaintiffs’ claims differ from state to state, but state courts also interpreted those elements differently, the court reasoned. For example, Colgate argued that its advertising claims were nonactionable puffery that could not provide the basis of plaintiffs’ consumer protection claims. States had varying standards for determining whether an advertising statement constituted "puffery," the court observed.

Therefore, because neither party adequately briefed the significant questions raised by Colgate as to the sufficiency of the claims in light of the applicable state law, Colgate’s motion to dismiss was denied without prejudice. The clerk was ordered to schedule a telephone conference to discuss how Colgate would be permitted to test the viability of the plaintiffs’ claims.

The case is No. 12-md-2320-PB.

Attorneys: David A. Anderson (Pierce Atwood LLP) for Colgate-Palmolive Co. Lucy J. Karl (Shaheen & Gordon) for plaintiffs.

Companies: Colgate-Palmolive Co.

Cases: Advertising StateUnfairTradePractices NewHampshireNews