Miller v. Peter Thomas Roth, LLC

Background

Defendants Peter Thomas Roth, Designs, Global, and Labs LLC marketed specialty skincare products. Kari Miller contended that defendants falsely and deceptively advertised that the hyaluronic acid in their Water Drench products could attract and retain up to 1,000 times its weight in water. The challenged advertising apparently also claimed that the hyaluronic acid could attract and retain water from the atmosphere.

An earlier order largely denied defendants’ motion for summary judgment but granted summary judgment against Miller’s challenge to the atmospheric-absorption claim. That earlier ruling concluded that Miller had not provided enough evidence of the claim’s falsity, without deciding whether she had provided enough evidence that she relied on it. Miller asked the court to reconsider that ruling and separately moved for summary judgment against PTR Labs.

Reconsideration

The court granted reconsideration. Under California Business and Professions Code § 17200, advertising may be unlawful if it is false, actually misleading, or likely to deceive or confuse the public. A private plaintiff must also show injury and loss of money or property resulting from the misleading advertising.

The court determined that PTR Labs had challenged only Miller’s standing to pursue the atmospheric-absorption claim, based on whether she relied on that part of the advertising. PTR Labs had not moved for summary judgment on the merits of whether the claim was false. Because the party seeking summary judgment must show that no genuine dispute of material fact exists, the court concluded that summary judgment on the merits had been improper.

The court also found sufficient evidence to create a genuine dispute about Miller’s reliance. Miller’s interrogatory response said she relied on claims that hyaluronic acid draws in atmospheric vapor. PTR Labs argued that this response was a sham because Miller’s deposition testimony identified a different advertising claim and did not mention reliance on the atmospheric-absorption claim. The court declined to disregard the interrogatory response because the contradiction was not clear and unambiguous. Whether Miller would be believed was for the jury, not the court at the summary-judgment stage.

Miller’s Summary-Judgment Motion

The court denied Miller’s motion for summary judgment because triable issues remained. First, the parties disputed whether Miller relied on the advertising and would have bought the products without the alleged misrepresentation.

Second, the parties offered competing expert evidence about the advertising’s truth and deceptiveness. Miller relied on Dr. Michael Pirrung’s testimony that hyaluronic acid could not attract and retain 1,000 times its weight in water, and Dr. J. Michael Dennis’s survey evidence about California consumers’ understanding of the advertisements. PTR Labs relied on Dr. Robert Y. Lochhead’s testimony that hyaluronic acid could attract and retain that amount of water and on Prof. Dominique Hanssens’s response to the survey evidence. The court held that disputes over the experts’ methods and credibility concerned the weight of the evidence and could not be resolved on summary judgment.

Third, the court held that whether the advertising was deceptive or merely nonliteral promotional language was a factual question. The inquiry would consider how a reasonable consumer would understand the advertising compared with reality. The court stated that this issue, as well as the disputed reliance and scientific evidence, required a fact-finder’s determination.

Disposition

The court granted Miller’s motion for reconsideration and denied her motion for summary judgment. Miller may take her challenge to the atmospheric-absorption advertising claim to trial. The court also stated that factual disputes precluded summary judgment on her California Business and Professions Code § 17200 claim and, by extension, her § 17500 claim. Judge William Alsup signed the order.