Huskey v. Colgate-Palmolive Co.

• Decision Date: 14 September 2020
• Docket Number: No. 4:19-cv-02710-JAR,4:19-cv-02710-JAR
• Parties: Drew HUSKEY et al., Plaintiffs, v. COLGATE-PALMOLIVE COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

486 F.Supp.3d 1339

Drew HUSKEY et al., Plaintiffs,

v.COLGATE-PALMOLIVE COMPANY, Defendant.

No. 4:19-cv-02710-JAR

United States District Court, E.D. Missouri, Eastern Division.

Signed September 14, 2020

Daniel F. Harvath, Harvath Law Group, LLC, St. Louis, MO, for Plaintiffs.

Dean N. Panos, Pro Hac Vice, Jenner and Block, LLP, Chicago, IL, Kate Spelman, Pro Hac Vice, Jenner and Block, Los Angeles, CA, Lisa A. Pake, Matthew Ambrose Martin, Haar and Woods, LLP, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Colgate-Palmolive Company's (hereinafter, "Colgate") motion to dismiss, or, in the alternative, strike the nationwide class allegations. (Doc. No. 28). The matter is fully briefed and ready for disposition. For the following reasons, the Court will grant the motion in part and deny it in part.

I. Background

Colgate markets Speed Stick and Lady Speed Stick Stainguard antiperspirant products (hereinafter, "Stainguard products") as antiperspirant that "fights" yellow stains and white marks on clothing (hereinafter, the "Challenged Claim"). Plaintiff Drew Huskey and Plaintiff Jamie Richard both allege that, in or around July of 2019, they both purchased Stainguard products for personal use and, after using the products, they experienced white marks and the development of yellow stains on their clothing. Plaintiffs assert that these marks and stains were caused and created by the aluminum zirconium tetrachlorohydrex GLY (hereinafter, "aluminum") found within the Stainguard products and that—because the product itself contains an ingredient that creates these marks—that Colgate's claims that Stainguard products "fight" yellow stains and white marks are false and misleading.

Plaintiff Huskey originally brought this class action petition in St. Louis County Circuit Court against Colgate asserting claims for breach of warranty (Count One); breach of implied contract (Count Two); and unjust enrichment (Count Three) on behalf of a nationwide putative class. Huskey also asserted claims against Colgate for misleading, false and deceptive marketing under the Missouri Merchandising Practices Act (hereinafter, "MMPA"), RSMo. § 407.010 et seq., (Count Four) and for injunctive relief (Count Five) on behalf of a putative subclass in the State of Missouri. Colgate removed the action to this Court on October 4, 2019. (Doc. No. 1). Likewise, Plaintiff Richards brought a substantively similar complaint—alleging the same claims against Colgate—in St. Louis City Circuit Court. Colgate removed Richard's action on October 29, 2019, and the cases were consolidated on November 12, 2019. (See Doc. No. 12, Richards v. Colgate-Palmolive Company et al. , 4:19-cv-02934-JAR).

II. Legal Standard

The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim for relief "must include sufficient factual information to provide the ‘grounds’ on which the claim rests, and to raise a right to relief above a speculative level." Schaaf v. Residential Funding Corp. , 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly , 550 U.S. at 555 & n.3, 127 S.Ct. 1955 ). This obligation requires a plaintiff to plead "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

When considering a motion to dismiss, the Court accepts as true all of the factual allegations contained in the complaint, even if it appears that "actual proof of those facts is improbable," id. at 556, 127 S.Ct. 1955, and reviews the complaint to determine whether its allegations show that the pleader is entitled to relief. Id. at 555-56, 127 S.Ct. 1955 ; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions, however. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice"). In addition, all reasonable inferences from the complaint must be drawn in favor of the nonmoving party. Young v. City of St. Charles, Mo. , 244 F.3d 623, 627 (8th Cir. 2001).

III. Discussion

Colgate moves to dismiss all of Plaintiffs’ claims. First, Colgate argues that Plaintiffs have failed to state a claim under the MMPA because (1) they have failed to allege sufficient facts showing that a reasonable consumer would be deceived by the Challenged Claim and (2) their allegations indicate that their purchases were made for the preconceived purpose of filing this lawsuit, rather than for personal, family, or household use. Second, Colgate alleges that Plaintiffs’ claim for injunctive relief must fail because Plaintiffs do not allege a future intent to purchase the Stainguard products and—even to the extent that they did—Missouri law does not recognize injunctive relief as an independent cause of action. Third, Colgate argues that Plaintiffs’ common law claims must be dismissed because they are implausible. Further, Colgate argues that Plaintiffs failed to sufficiently allege breach of warranty because they did not assert that they provided Colgate with pre-suit notice and that their breach of implied contract claim must fail because the duty of good faith and fair dealing is not recognized in an implied-in-law contract.

Colgate also advances two arguments as to why Plaintiffs’ putative nationwide class allegations for breach of warranty, breach of implied contract, and unjust enrichment should be dismissed. First, Colgate argues that the allegations must be dismissed because Plaintiffs will be unable to satisfy Rule 23(b)(3) due to the material variations in the laws of each consumer's home state which Colgate represents must be applied to their consumer protection claims. Second, Colgate argues that, applying the principles in Bristol-Myers Squibb Co. v. Superior Court , ––– U.S. ––––, 137 S. Ct. 1773, 1781, 198 L.Ed.2d 395 (2017) (hereinafter, " Bristol-Myers "), the Court lacks personal jurisdiction over the claims of non-resident putative class members thereby necessitating the dismissal of the class allegations.

A. MMPA Claims

The MMPA is a broad statute, prohibiting "[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce." Mo. Rev. Stat. § 407.020.1. To state a claim under the MMPA, a plaintiff must show that (1) he purchased merchandise from the defendant; (2) for personal, family, or household purposes; and (3) suffered an ascertainable loss; (4) as a result of an unlawful practice. Mo. Rev. Stat. § 407.025(1). A complaint alleging misrepresentations under the MMPA must also satisfy Rule 9(b) of the Federal Rules of Civil Procedure, which requires that the allegations of fraud be pled with particularity. Vitello v. Natrol, LLC , No. 4:18 CV 915 RWS, 2018 WL 6304900, at *1 (E.D. Mo. Dec. 3, 2018).

1. Whether the Challenged Claim Would Be Deceptive to a Reasonable Consumer

Colgate first argues that Plaintiffs have failed to allege sufficient facts showing that the Challenged Claim is deceptive to a reasonable consumer. Rather, Colgate argues, Plaintiffs rely on conclusory arguments that do not meet the Rule 9(b) particularity requirement. In support of this assertion, Colgate begins by attacking Plaintiffs’ allegations that Colgate's Stainguard products contain "nearly exactly the same ingredients" as non-Stainguard products—including aluminum, which Plaintiffs assert causes the stains—and contains "no added ingredients to ‘fight’ stains or white marks." Colgate contends that Plaintiffs cannot rely on their own assessments of the Stainguard products’ ingredients to prove the inability of the Stainguard formula "as a whole" to "fight" stains. (Doc. No. 29 at 6-7) (citing Hodges v. Vitamin Shoppe, Inc. , No. 13-3381, 2014 WL 200270 (D.N.J. Jan. 15, 2014) ).

In addition, Colgate argues that Plaintiffs’ allegations that they noticed stains on their clothing after using the products does not necessarily mean the Challenged Claim is false. Specifically, Colgate argues that a reasonable consumer would not be deceived by its claim that the Stainguard product fights stains because it is "common sense" that a product that claims to fight stains does not mean that it prevents stains altogether. (Id. at 7). Colgate goes on to state that, "[t]he only logical way to understand the Challenged Claim[ ] is in relation to conventional antiperspirants that do not make such claims"; in other words, that "fights," taken in context, should be understood to mean that the Stainguard products are formulated to relatively reduce the staining effects typically associated with antiperspirants. (Doc. No. 29; Doc. No. 33 at 4) (citing Becerra v. Dr Pepper/Seven Up, Inc. , 945 F.3d 1225 (9th Cir. 2019) (holding that, in context, the use of the word diet is understood as a relative claim about that soft drink's caloric amount compared to a regular soft drinks)). Colgate further urges the Court to take into consideration that Plaintiffs admitted in their original complaints—although not in their amended complaints—that the Stainguard products "might in fact cause less staining" than other antiperspirants. Colgate argues that the fact that Plaintiffs admitted that...