Esquibel v. Colgate-Palmolive Co.

Background

Abigail Esquibel, Tammy Searle, Jeremy Wahl, Aimen Halim, and Nicholas Salerno filed a proposed class action against Colgate-Palmolive Co. and Tom’s of Maine, Inc. The complaint asserted claims under the federal Magnuson-Moss Warranty Act; California consumer-protection laws; the Illinois Consumer Fraud and Deceptive Business Practices Act; and state-law theories including breach of express warranty, fraud, constructive fraud, and unjust enrichment.

The plaintiffs alleged that Tom’s Wicked Fresh! Mouthwash was marketed as “natural” and as being made with naturally sourced or naturally derived ingredients, but contained per- and polyfluoroalkyl substances, known as PFAS. They alleged that independent third-party testing detected multiple PFAS, including PFOA, in material amounts. They claimed the defendants misrepresented the product and failed to disclose or warn consumers about PFAS.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, under Rule 12(b)(6) for failure to state a claim, under Rule 9(b) for failure to plead fraud with the required specificity, and under the primary jurisdiction doctrine.

Standing and the Testing Allegations

The court focused on Article III standing, the constitutional requirement that a plaintiff show a concrete injury connected to the defendant’s conduct that a court can remedy. In a proposed class action, the named plaintiffs must establish standing for themselves; they cannot rely on the possible standing of unnamed class members.

The court held that the plaintiffs had not plausibly alleged an injury in fact. Their claims depended on the assertion that the mouthwash bottles they purchased contained PFAS. But the Amended Complaint did not say that the plaintiffs’ actual bottles were tested. It also did not provide facts about how many units were tested, where those units were acquired, where the testing occurred, when it occurred, or which entity performed the testing.

The court explained that the problem was not that the plaintiffs had failed to defend the accuracy or methodology of the testing. Instead, the complaint lacked enough information to support a plausible connection between the testing and the products the named plaintiffs purchased. The court said the allegations established only a “sheer possibility” that those products contained PFAS.

The court also rejected the plaintiffs’ alternative theory that the risk that the product might contain PFAS was itself an economic injury. The court stated that the plaintiffs needed to plausibly allege that PFAS was present in the mouthwash they purchased. If their purchases did not contain PFAS, the court reasoned, they received the natural mouthwash they had bargained for.

Disposition

Judge Laura Taylor Swain granted the defendants’ motion to dismiss the Amended Complaint in its entirety for lack of subject matter jurisdiction. The order therefore resolved the motion on the threshold issue of constitutional standing rather than ruling on the defendants’ other stated grounds for dismissal.

The plaintiffs were granted leave to move for permission to file a Second Amended Complaint that complies with the standing requirements discussed in the order. Any such motion must include the proposed complaint and a redline comparing it with the Amended Complaint. The motion must be filed within 21 days after entry of the Memorandum Order. If the plaintiffs do not file it within that period, the action will be dismissed for lack of subject matter jurisdiction without further advance notice.