Bullard v. Costco Wholesale Corp.

Background

Larisa Bullard brought this proposed class action alleging that Kirkland “Signature Baby Wipes, Fragrance Free” are unfit for their intended use because they contain unsafe levels of per- and polyfluoroalkyl substances, commonly called PFAS. The opinion states that Nice-Pak Products, Inc. manufactured the wipes and Costco Wholesale Corp. marketed and sold them.

The court dismissed Bullard’s original complaint but allowed her to amend it. The first amended complaint identified three specific PFAS that plaintiff’s counsel’s testing allegedly detected in the wipes. The defendants then moved to dismiss the amended complaint, but the court denied that motion in an earlier order.

Requests for reconsideration

The defendants asked for permission to file a motion asking the court to reconsider its earlier denial of their motion to dismiss. They argued that the earlier order improperly mixed the question of standing—whether Bullard was entitled to bring the case in federal court—with the question of whether the complaint pleaded enough facts to state a claim under California law.

The defendants relied on an unpublished Ninth Circuit memorandum concerning a similar product case. They argued that an omission-based fraud claim fails as a matter of law if the omitted fact does not create a risk to human health, and that Bullard’s allegations about the health risks of the identified PFAS were insufficient.

The court rejected that argument. It explained that the earlier order had recognized that the defendants were not challenging standing and that, when economic injury is alleged, standing and the merits can be closely connected. The court also stated that the earlier decision relied on Ninth Circuit precedent indicating that a plaintiff did not have to prove that the quantity of an allegedly harmful substance in a product was actually unsafe at the pleading stage.

The court noted that the original complaint had been dismissed because it did not identify the specific PFAS found in testing or otherwise allege ingredients of a type and in quantities that made the asserted legal theories viable. The amended complaint supplied additional identification. The court stated that there was no basis to dismiss the amended complaint and that the defendants’ request for reconsideration amounted to disagreement with the earlier analysis, which was not a valid ground for reconsideration. The request for leave to seek reconsideration was denied.

Request for interlocutory appeal

The defendants alternatively asked the court to certify the earlier denial order for interlocutory appeal. An interlocutory appeal is an appeal before final judgment. The court explained that such certification may be available in exceptional circumstances when the order involves a controlling legal question, there is substantial disagreement about that question, and an immediate appeal could materially advance the end of the litigation.

The court stated that the pleading standards involved might qualify as a controlling legal question. But it found no substantial ground for disagreement about the result on the specific facts of this case, despite tension among some non-precedential decisions in broadly similar cases. It also found that an immediate appeal would not plainly advance the litigation because, even if an appellate court found the allegations insufficient, the likely result would be further amendments to the complaint.

The court concluded that, even assuming the defendants met the minimum statutory requirements, they had not shown that this was an exceptional case warranting certification. The request to certify the denial order for interlocutory appeal was also denied.

Disposition

Judge Richard Seeborg denied the defendants’ request for leave to seek reconsideration and denied their alternative request to certify the earlier order for interlocutory appeal.