Vicente v. Cakes Body, LLC

Background

Lily Ann Vicente sued Cakes Body, LLC, alleging that representations about Cakes Covers were misleading. The representations she said she saw included statements that the covers were “grippy, not sticky” and images showing the covers adhering to users’ arms. Vicente alleged that the covers did not remain in place with movement, including when used under tight-fitting tops.

Cakes Body moved to dismiss and/or strike portions of the complaint. It also requested judicial notice of website pages and a video transcript. The court granted judicial notice only as to the existence of those materials, not the truth of statements in them or what disclaimers Vicente may have seen.

Claims Based on Product Representations

The court held that Vicente plausibly alleged that the “grippy, not sticky” statements and related images were misleading. Under California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act, a representation may be unlawful even if it is not literally false when it has the capacity, likelihood, or tendency to deceive. The court concluded that “grippy” was specific enough to describe a product characteristic and was not merely advertising exaggeration, or “puffery.”

The court also concluded that Cakes Body’s alleged instruction to wear the covers under a tight-fitting top did not defeat the claims. The complaint included social-media advertisements that did not appear to contain that instruction, and Vicente alleged that the covers failed to adhere even under tight-fitting tops. The court stated that consumers are not necessarily expected to look past a misleading prominent representation to find the truth in a less prominent disclaimer.

Because the fraud-based claims survived, the court held that Vicente’s claims under the unfair and unlawful prongs of California’s Unfair Competition Law also survived. The court separately held that the “grippy, not sticky” representation was sufficient to support Vicente’s express-warranty claim. The court also found that the complaint provided enough detail to satisfy Federal Rule of Civil Procedure 9(b), which requires fraud to be pleaded with particularity.

Allegations Concerning Other Statements and Products

The court agreed that Vicente could not challenge representations she never saw. But it denied Cakes Body’s motion to strike allegations concerning other statements because those statements could potentially bear on the case and were not shown to be unduly prejudicial. Whether Vicente can represent purchasers who saw other, similar representations can be considered during class certification, the later stage at which the court decides whether a proposed class may proceed.

The court also held that Vicente could assert claims on behalf of absent class members who bought different products if those products were substantially similar and involved similar alleged misrepresentations. At that stage, the court did not view the different sizes as too dissimilar for the claims to proceed. It stated that further questions about Vicente’s adequacy and whether her claims are typical of the proposed class were more appropriately considered at class certification.

Nationwide Class Allegations

The court denied the request to strike the nationwide class allegations. It found that California law could constitutionally apply to the claims and that Cakes Body had not shown that other states’ laws differed materially from California law. The court nevertheless stated that it was difficult to imagine the case proceeding as a nationwide class action and invited the parties to propose ways to address that issue at the initial case-management conference.

Ruling and Case Status

Judge Vince Chhabria granted in part and denied in part Cakes Body’s motion to dismiss and/or strike. The motion was granted as to Vicente’s demand for punitive damages, which the court struck because Vicente conceded that request. The motion was denied in all other respects, including as to the challenged fraud-based, express-warranty, related California consumer-protection, and class-related allegations. A case-management conference was scheduled for October 25, 2024, and discovery could not proceed before that conference.