Yamasaki v. Zicam LLC

Background

Venus Yamasaki filed a proposed class action concerning several Zicam cold-remedy products. She alleged that the products were advertised as “clinically proven to shorten colds,” but that they had not been clinically proven to affect the duration of the common cold and lacked adequate scientific support for that statement. She asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, as well as a breach-of-warranty claim. She sought to represent a class of California consumers who purchased seven Zicam products.

Church & Dwight Co., Inc., identified in the opinion as the successor to Zicam LLC and Matrixx Initiatives, Inc., filed a motion to dismiss the amended complaint. While that motion was pending, Church & Dwight moved to stay, or pause, all discovery.

Legal standard

The court explained that the Federal Rules of Civil Procedure do not automatically pause discovery when a potentially case-dispositive motion is pending. Under Rule 26(c), however, a court may issue a protective order for good cause to prevent undue burden or expense. Courts in the district apply a two-part test: the pending motion must potentially dispose of the entire case or the issue targeted by discovery, and the motion must be capable of being decided without discovery. Applying that test requires a preliminary review of the motion’s merits.

Court’s analysis

The court found good cause to stay discovery. It concluded that the motion to dismiss presented strong arguments that Yamasaki’s claims were improper claims based only on a lack of substantiation—that is, claims asserting that the defendant lacked evidence supporting its advertising statements.

The court noted that private plaintiffs generally may not demand substantiation for advertising claims. It also observed that, although Yamasaki alleged that the products had not been clinically tested and lacked scientific support, she did not identify studies evaluating the products if she intended to argue that the “clinically proven” statements were false rather than merely unsupported. The court said these issues could be difficult for Yamasaki to overcome, even if she were allowed to amend the complaint. For that reason, it found that the motion to dismiss could potentially dispose of the case.

The court further found that the motion to dismiss would be fully briefed the following month and could be decided without additional discovery. It therefore determined that staying discovery would conserve the parties’ and the court’s resources and create minimal risk of prejudice.

Disposition

The court GRANTED the motion and STAYED all discovery pending resolution of the motion to dismiss. The order did not decide the motion to dismiss itself.