Gudgel v. The Clorox Company

Background

This was a proposed class action concerning Clorox’s “Splash-less Bleach” product. Shana Gudgel alleged that she bought a 116-fluid-ounce container for $3.99 after the World Health Organization declared COVID-19 a pandemic. She alleged that she believed the product would be suitable for disinfecting surfaces, but later learned that the product contained only 1–5% sodium hypochlorite and was not suitable for disinfecting. She alleged that the product’s packaging and marketing were misleading, including because the disclosure that it was not for sanitization or disinfection appeared on the back of the label in small print.

Gudgel asserted claims under California’s Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law, as well as claims for negligent misrepresentation and unjust enrichment. She sought damages and an injunction requiring Clorox to stop the alleged deceptive practices. Clorox moved to dismiss for failure to state a claim under Rule 12(b)(6), argued that fraud-based allegations did not satisfy Rule 9(b)’s particularity requirement, and challenged standing to seek injunctive relief under Rule 12(b)(1).

Analysis

The court applied the reasonable-consumer test governing the three California consumer-protection claims. Under that test, a plaintiff must show that a significant portion of reasonable consumers would probably be deceived, not merely that some consumers might misunderstand a product.

The court found that the label did not contain an affirmative misrepresentation or deception suggesting that Splash-less Bleach could sanitize or disinfect. The court rejected Gudgel’s arguments based on the back-label disclaimer, the omission of the sodium hypochlorite percentage, “10x Deep Cleaning Benefits,” the word “regular,” the phrase “it’s the same Clorox product you love, now with more power per drop,” the alleged failure to disclose noncompliance with Centers for Disease Control and Prevention guidelines, and the word “concentrated.” The court concluded that these statements and omissions, considered individually or together, would not lead a reasonable consumer to believe the product had sanitizing or disinfecting capabilities. Because the court found no actionable deception, it did not reach Clorox’s alternative arguments concerning standing for injunctive relief or Rule 9(b).

The court also dismissed the negligent-misrepresentation claim because Gudgel had not identified a misrepresentation of a material fact. It dismissed the unjust-enrichment claim because Gudgel had not identified an independent theory separate from the unsuccessful statutory claims.

Disposition

The court granted Clorox’s motion to dismiss the complaint. Although the court was skeptical that Gudgel could amend successfully because the product packaging would not change and she had identified no additional facts, it granted her leave to amend. Any amended complaint had to be filed within 21 days. It could not add new parties or causes of action without court permission or Clorox’s agreement. The amended complaint also had to identify where Gudgel purchased the product and, if she continued relying on the phrase “it’s the same Clorox product you love, now with more power per drop,” identify its source and allege whether she saw or read and relied on it. Judge Phyllis J. Hamilton signed the order.