Dalewitz v. The Procter & Gamble Company

Background

Alan Dalewitz brought this putative class action individually and on behalf of similarly situated individuals. He alleged that The Procter & Gamble Company’s Oral-B Glide dental floss products were marketed in a misleading way because of the alleged presence of per- and polyfluorinated substances, known as PFAS.

The initial complaint and the first amended complaint asserted claims under sections 349 and 350 of New York’s General Business Law and a fraudulent-concealment claim. The court had previously dismissed the initial complaint with permission to amend. After filing the first amended complaint, Dalewitz sought permission under Federal Rule of Civil Procedure 15(a)(2) to file a second amended complaint based on direct PFAS testing results. The proposed second amended complaint identified specific PFAS chemicals and alleged that the product Dalewitz purchased contained PFAS, causing him an injury. It also eliminated the fraudulent-concealment claim.

Arguments

Procter & Gamble opposed the amendment. It argued that Dalewitz had not shown the required good cause or extraordinary circumstances, that the proposed amendment was futile because it failed to state a claim and did not establish Article III standing, and that Dalewitz acted in bad faith by waiting to conduct direct PFAS testing.

Court’s analysis

Under Rule 15(a)(2), courts should generally allow amendments when justice requires, unless factors such as undue delay, bad faith, unfair prejudice, or futility justify denial.

The court found no undue delay. Dalewitz sought amendment only months after filing the first amended complaint. The direct testing results were unavailable when that complaint was filed, Dalewitz received the results on or about January 18, 2024, and his counsel notified Procter & Gamble of the planned amendment on January 30, 2024.

The court also found no undue prejudice. The case remained at the pleading stage: Procter & Gamble had not filed an answer, discovery had not begun, and the proposed amendment would not require substantial additional discovery or trial preparation. The court further noted that the proposed pleading eliminated one claim and relied on direct PFAS testing instead of the earlier total-organic-fluorine testing.

The court rejected the bad-faith argument. Dalewitz had sought additional time to pursue testing, and he notified Procter & Gamble promptly after receiving the results. The court found that Procter & Gamble’s allegations of bad faith were conclusory and insufficient to deny the amendment.

Finally, the court declined to conduct a detailed futility analysis at this stage because those issues were better suited to a motion to dismiss. The court stated that the proposed allegations appeared responsive to deficiencies identified by Procter & Gamble and therefore could not be deemed futile at that point. This observation did not decide whether the amended claims would survive a later motion to dismiss.

Disposition

Judge Nelson S. Roman granted Dalewitz’s request for leave to file a second amended complaint. The court ordered Dalewitz to file it by March 19, 2025. Procter & Gamble was directed to answer or otherwise seek permission to move in response by April 9, 2025. The order resolved the motion to amend; it did not decide the merits of the PFAS-related claims, standing, or the sufficiency of the amended pleading.