Anglin ex rel. Situated v. Edgewell Pers. Care Co., Case No. 4:18-CV-00639-NCC
| Decision Date | 07 December 2018 |
| Docket Number | Case No. 4:18-CV-00639-NCC |
| Parties | INGRID ANGLIN, COLLEEN GORMAN, PAUL LAMBRAKIS, ELIJAH NATAL, MATTHEW NELSON, COURTNEY PARKER, and SHAYAN TARI, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. EDGEWELL PERSONAL CARE COMPANY; EDGEWELL PERSONAL CARE BRANDS, LLC; EDGEWELL PERSONAL CARE LLC; PLAYTEX PRODUCTS, LLC; and SUN PHARMACEUTICALS, LLC, Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Defendants' Motion to Dismiss or Stay Plaintiffs' Complaint, or, in the Alternative, Strike the Nationwide Class Allegations. (Doc. 21.) The seven named Plaintiffs in this putative class action and Defendants have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(c)(1). (Doc. 13.) The Motion is fully briefed and ready for disposition. For the following reasons, Defendants' Motion will be GRANTED, in part, and DENIED, in part.
Plaintiffs Ingrid Anglin, Colleen Gorman, Paul Lambrakis, Elijah Natal, Matthew Nelson, Courtney Parker, and Shayan Tari ("Plaintiffs") bring this putative class action mislabeling lawsuit against Defendants Edgewell Personal Care Company; Edgewell Personal Care Brands, LLC; Edgewell Personal Care LLC; Playtex Products, LLC; and Sun Pharmaceuticals, LLC ("Defendants"), on behalf of themselves and all other similarly situated persons who purchased Banana Boat Kids Tear-Free Sting-Free Continuous Spray Sunscreen ("Banana Boat Kids Spray"), Banana Boat Baby Tear-Free Sting-Free Continuous Spray Sunscreen ("Banana Boat Baby Spray"), and Banana Boat Baby Tear-Free Sting-Free Lotion Sunscreen ("Banana Boat Baby Lotion"), labeled as "SPF 50" or "SPF 50+" ("Products").1 (Doc. 1 ¶ 3.)
The individual Plaintiffs allege they each purchased one or more of these Products and allege that the Products were labeled as having an "SPF 50" or "SPF 50+" but, in fact, had a lower SPF. (Id. ¶¶ 8, 17-23, 36.) Plaintiffs allege that "[i]n actuality, rigorous scientific testing has revealed that the Products do not provide an SPF of 50, much less '50+'." (Id. ¶ 36.) Specifically, Plaintiffs allege that Consumer Reports magazine reported in May 2016 that "its own testing had revealed that Banana Boat Kids SPF 50 sunscreen lotion had an SPF of only 8." (Id. ¶ 37.) In addition, Plaintiffs allege that they conducted their own independent testing utilizing FDA methods and that such tests demonstrated the Products had SPFs lower than listed on the label. (See id. ¶¶ 38-41.) Plaintiffs allege that Defendants knew or should have known, based on testing, that these Products have a lower SPF than stated on the label. (Id. ¶ 7.) Had they known the Products contained less UV protection than advertised, Plaintiffs and the putative class members would not have purchased the sunscreen, relied on it to protect them, or paid as much for the product. (Id. ¶ 11, 54.) As a result of Defendants' false, misleading, deceptive, and reckless labeling and marketing of the Products, Plaintiffs claim they and putative class members have suffered economic injury by paying for a falsely advertised product and being deprived of the full intended use of their purchased sunscreen. (Id. ¶¶ 5, 9, 12, 55, 57-58.)
Based on these allegations, Plaintiffs seek damages and equitable remedies as set out in the following eleven counts: Breach of Warranty (Count I), Breach of Implied Contract (Count II), Unjust Enrichment (Count III), Illinois Consumer Fraud & Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (Count IV), New York General Business Law § 349 (Count V), New York General Business Law § 350 (Count VI), New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. (Count VII), New Jersey Truth in Consumer Contract, Warranty, and Notice Act, N.J.S.A. 56:12-14 et seq. (Count VIII), Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201, et seq. (Count IX), California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. (Count X), and California Consumers Legal Remedies Act, Cal. Civil Code §§ 1750, et seq. (Count XI).2
Defendants moved to dismiss or stay the case or, in the alternative, strike the nationwide class allegations. (Doc. 21.) They argue that Plaintiffs' claims fall under the primary jurisdiction of the U.S. Food & Drug Administration ("FDA"), and, as a result, the primary jurisdiction doctrine compels dismissal or a stay of the case. (Id. ¶ 1.) Defendants argue the Complaint should also be dismissed because Plaintiffs' claims are preempted in their entirety by federal law. (Id. ¶ 2) In the alternative, Defendants argue several of the state law claims should be dismissed because Plaintiffs have not pleaded essential elements of their state law claims, and thus fail to state a claim for relief. (Id.¶ 3.) Finally, and also in the alternative, Defendants move this Court to enter an order striking Plaintiffs' nationwide class allegations, arguing that individual issues predominate. (Docs. 21, 22.)
Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Federal Rule of Civil Procedure 12(b)(6) provides for a motion to dismiss based on the "failure to state a claim upon which relief can be granted." To survive a motion to dismiss a complaint must show "'that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to defeat a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). The pleading standard of Rule 8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "When ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court must "draw all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005). However, "[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008).
Defendants first argue that the FDA has primary jurisdiction over Plaintiffs' claims and, as a result, the primary jurisdiction doctrine compels dismissal or a stay of the case. Defendants argue that sunscreen is one of the most highly regulated consumer products, particularly for SPF, and is statutorily regulated by the FDA under the Food, Drug, and Cosmetic Act ("FDCA") as an over-the counter drug. Because it falls within the FDA's statutory mandate, the FDA has primary jurisdiction over the at-issue Products. In fact, Defendants argue, the FDA published a "sunscreen Final Rule," codified in 21 C.F.R. § 201.327, mandating a whole host of highly specialized, highly scientific, and precise technical and scientific protocols that manufacturers must follow relating to testing and labeling. Defendants further contend a stay or dismissal is warranted particularly since the FDA is actively engaged in regulating issues central to the case. For these reasons, Defendants argue the Court should defer to the FDA and dismiss, or, at a minimum, issue a stay pending resolution of the FDA's ongoing agency action and investigation. (Doc. 22.)
Primary jurisdiction is a common law doctrine used to coordinate judicial and administrative decision making. George v. Blue Diamond Growers, No. 4:15-CV-962-CEJ, 2016 WL 1464644, at *1 (E.D. Mo. Apr. 14, 2016) (citing City of Osceola, Ark. v. Entergy Arkansas, Inc., 791 F.3d 904, 908-09 (8th Cir. 2015) (quotation and citation omitted). Even when jurisdiction is proper in a given case, a court must consider whether an executive agency has primary jurisdiction. Entergy Arkansas, 791 F.3d at 908. The primary jurisdiction doctrine "'applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.'" Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005) (quoting United States v. W. Pac. R. R. Co., 352 U.S. 59, 63-64 (1956)). The doctrine allows a court with jurisdiction to refer a case to the appropriate administrative agency for initial decision. Thornton v. Pinnacle Foods Grp., LLC, No. 4:16-CV-00158-JAR, 2016 WL 5793193, at *1 (E.D. Mo. Sept. 30, 2016).
There is no "fixed formula" for deciding whether an agency has primary jurisdiction over a case. Entergy Arkansas, 791 F.3d at 909. Instead, the applicability of the doctrine depends on whether the reasons for the doctrine are present and whether applying the doctrine will aid the purposes for which the doctrine was created. Access Telecomms. v. Sw. Bell Tel. Co., 137 F.3d 605, 608 (8th Cir. 1998). The Eighth Circuit has stated that courts apply the doctrine for two main reasons. Id. First, the doctrine may be applied "to obtain the benefit of an agency's expertise and experience," as ...
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