[00:00:00] Speaker 03: We will now move on to the final argument set on today's calendar and That is Meyer versus CVS pharmacy case number 24-482 [00:01:07] Speaker 03: You're fine. [00:01:46] Speaker 01: Good morning. [00:01:47] Speaker 01: May I please the court? [00:01:49] Speaker 01: Chagokol on behalf of the appellant plaintiff, Joseph Meyer, I'm going to try to attempt to reserve three minutes of my time for rebuttal. [00:01:58] Speaker 01: The question here, what does the label mean? [00:02:01] Speaker 01: Would a reasonable consumer understand the label to mean? [00:02:06] Speaker 01: We plausibly allege that the reasonable consumer would think that the label means that it would kill 99.99% of many common germs commonly found on their hands. [00:02:18] Speaker 03: Ultimately, though, is that question, is that a legal question or a factual question? [00:02:26] Speaker 01: The label understanding, Your Honor, at the 12b6 stage, which is where we are at at this point, is whether that interpretation is reasonable. [00:02:34] Speaker 01: But ultimately, that's going to be a factual question. [00:02:38] Speaker 03: Well, that's what I'm wondering, though, because, I mean, what a reasonable, [00:02:48] Speaker 03: consumer would think, I don't, let me pinpoint it. [00:02:54] Speaker 03: I mean, I'm a little worried about the survey data and what we do with it because on the one hand, you could look at it and say, well, you have a survey data here in the complaint that says, you know, there could be some confusion out there. [00:03:09] Speaker 03: But is that ultimately how we look at it or is it a legal question? [00:03:13] Speaker 03: I'll give you an example. [00:03:15] Speaker 03: In the First Amendment, [00:03:16] Speaker 03: establishment clause context, well, pre-Bremerton, where we used to apply the lemon test and you used to look at what a reasonable observer would think, would they think that it was, was there a religious entanglement or not. [00:03:34] Speaker 03: We didn't go and poll everyone and say, you know, what do you think? [00:03:40] Speaker 03: Do you think that this is religious or not? [00:03:43] Speaker 03: It ultimately was a, [00:03:45] Speaker 03: a legal standard. [00:03:47] Speaker 03: And so I guess what I'm wondering is, to what degree can you plead around this, or are we left with, as judges, kind of looking at this and saying, I'm going to imply some reasonable consumer standard, and does this satisfy that? [00:04:09] Speaker 01: Well, Your Honor, I think it boils down to what is a plausible allegation, right? [00:04:15] Speaker 01: And a plausible allegation in light of this type of case would be what a reasonable consumer potentially would think. [00:04:22] Speaker 01: And you're right that not every survey is going to be giving you the answers to those questions. [00:04:28] Speaker 01: For example, Your Honor heard the Dr. Pepper case, right? [00:04:32] Speaker 01: And in that case, the conclusion of the survey was... Remind me, this was the diet. [00:04:37] Speaker 03: The diet, Dr. Pepper. [00:04:40] Speaker 03: Whether you would lose weight by drinking diet, Dr. Pepper. [00:04:42] Speaker 01: Exactly. [00:04:43] Speaker 01: Regardless of whether you drank 20 cans of Dr. Pepper, regardless of whether you exercised, regardless of whether you wait for five people. [00:04:53] Speaker 01: So the conclusion in that case was completely logical this case a lot simpler than that We're just asking people to tell us what the label means something that they do almost every single day One thing that gives me pause is I mean this survey was Designed for the express purpose of this litigation. [00:05:12] Speaker 02: I mean is that really a fact under 12b6 motion [00:05:17] Speaker 02: Because otherwise, it seems that you can always evade a motion dismissed by commissioning a survey and say, look, there's a split. [00:05:25] Speaker 02: The results are ambiguous or supports our view. [00:05:27] Speaker 02: Therefore, it's a factual question. [00:05:29] Speaker 01: Well, Your Honor, I'm not saying for you to ignore your common sense. [00:05:32] Speaker 01: That's not my take. [00:05:34] Speaker 01: But in this case, we asked 534 people, people who buy this product. [00:05:39] Speaker 01: And we showed them the front and the back, not just the front. [00:05:42] Speaker 02: Yeah, I have problems with how the survey was done. [00:05:47] Speaker 02: That's the thing is then do we engage in that kind of analysis at a 12b6? [00:05:50] Speaker 02: I mean, do we do like mini daubert analysis at the pleading stage? [00:05:53] Speaker 02: Seems like we don't shouldn't even consider them at this stage. [00:05:56] Speaker 01: Correct your honor. [00:05:57] Speaker 01: It's the 12b6 stage meaning they can come out and have their own experts come out and say hey the survey is no good. [00:06:03] Speaker 01: At the 12b6 stage? [00:06:04] Speaker 01: I mean that seems no no no that's the 12b6 stage. [00:06:06] Speaker 01: We are at the 12b6 stage. [00:06:08] Speaker 03: That shouldn't happen. [00:06:09] Speaker 03: That I think is the problem that Judge Lee's attuning us to is [00:06:14] Speaker 03: It seems like it puts a thumb on the scale for all plaintiffs to just come in with it. [00:06:18] Speaker 03: I mean, you could ask three people and get three different answers and say, well, look, there's confusion. [00:06:25] Speaker 03: That can't be what the law is. [00:06:30] Speaker 01: Well, Your Honor, the law doesn't really require a survey, right? [00:06:34] Speaker 03: And I give you that. [00:06:34] Speaker 03: That's why I'm wondering, how much credence do we put into it? [00:06:40] Speaker 03: Maybe the question is, do you win up or down without the survey? [00:06:47] Speaker 01: We can certainly talk about that, and I believe we have grounds to win without the survey. [00:06:51] Speaker 01: But just addressing the survey point briefly, it's not just say, let me commission a survey and therefore I win. [00:06:59] Speaker 01: Look at McGinnity, for example, 50-50 on both sides, and therefore the plaintiff lost because it wasn't clear [00:07:05] Speaker 01: which way consumers were leaning, which ways they were not. [00:07:07] Speaker 01: Very different than 85% of people believing that this is the takeaway from the labor. [00:07:12] Speaker 03: Well, yeah, so I'm not sure that that's the right interpretation of McGinty, actually, because McGinty says, we give you, we take these allegations as true, but they're not helpful. [00:07:27] Speaker 03: It's not clear what McGinty was saying. [00:07:28] Speaker 03: McGinty could have been saying, they're not helpful because the results of the survey, [00:07:33] Speaker 03: are inconclusive or McGinty could have been saying, it doesn't really matter. [00:07:37] Speaker 03: You can have all the survey data but we're going to look at this in our, you know, whatever. [00:07:43] Speaker 03: The objective observer as we think the objective observer as we're sitting in our desk, you know, pondering this case, it's a very difficult position I feel like to put the judges in in this because there's no easy way to get out of this. [00:07:59] Speaker 03: I mean, we're constantly, [00:08:01] Speaker 03: I agree with you. [00:08:02] Speaker 03: You could ask 10 different people what you think you're getting when you buy this product. [00:08:07] Speaker 03: And I think you're going to get 10 different answers. [00:08:09] Speaker 01: That's a possibility, Your Honor. [00:08:10] Speaker 01: But looking back at McGinney, I'm not saying that that's the holding of the case. [00:08:15] Speaker 01: They took the survey. [00:08:16] Speaker 03: You're saying that the survey data was different in this case than in that case. [00:08:20] Speaker 01: Well, they looked at the survey data, and it kind of went against the plaintiff. [00:08:25] Speaker 01: So it's not just a matter of let me do a survey, and therefore I win. [00:08:30] Speaker 01: Let's see the results of the survey. [00:08:32] Speaker 01: We're not limited in guessing what a reasonable consumer is going to think. [00:08:36] Speaker 01: We know, at least we have some data points of what a reasonable consumer is saying. [00:08:40] Speaker 01: And that's certainly plausible. [00:08:42] Speaker 01: You know, six out of seven people are saying, yeah, I read the back, and I read the front, and I think this is going to kill 99.99. [00:08:49] Speaker 03: So your survey looked at both the front and the back. [00:08:52] Speaker 03: For purposes of our review, you're saying, though, that you win even if you don't look to the back. [00:08:58] Speaker 03: that all we have to do, I think your argument is, all we have to do is look at the front that says kills 99.9% of germs, end of story, your case goes forward. [00:09:09] Speaker 01: That is certainly an unambiguous statement under Whiteside. [00:09:14] Speaker 01: And I can address that if you like. [00:09:16] Speaker 01: But even if you look at the back, that doesn't save them. [00:09:19] Speaker 01: And I can go over those three arguments. [00:09:22] Speaker 01: And part of that is the first problem for the back statement is [00:09:28] Speaker 01: It's ambiguous. [00:09:29] Speaker 01: Second problem is that it potentially contradicts the front. [00:09:32] Speaker 01: And third, it's making a new promise. [00:09:35] Speaker 01: So just drawing attention to ambiguous, some of the interpretations of many are misleading. [00:09:44] Speaker 01: The Bell Court has told us that where an advertisement is accessible to two plausible meanings, one false, one true, the advertiser is liable for the misleading variation. [00:09:54] Speaker 01: The Ninth Circuit and Whiteside [00:09:56] Speaker 01: held that the back label would need to make it impossible, impossible, for a reasonable consumer to be misled. [00:10:03] Speaker 01: So looking at the back statement, the fact that it eliminated more than 99.99% of many common harmful germs and bacteria in as little as 15 seconds, is many eight germs? [00:10:14] Speaker 01: Is it 800? [00:10:14] Speaker 01: Does it include the many common germs that we alleged on the complaint are not killed? [00:10:20] Speaker 02: I agree with you that the term many is very ambiguous. [00:10:26] Speaker 02: So some people may think that means 80% of the most common germs in your hand. [00:10:31] Speaker 02: It may mean just like five germs, which may end up being like 10%, which then in that case might be misleading. [00:10:36] Speaker 02: But I guess, did you have to plead a bit more about those facts and say, I know you might not have as much information, but saying, look, many actually here in this case means only 10%. [00:10:48] Speaker 02: And therefore, it's misleading. [00:10:50] Speaker 02: I don't think that's there in this complaint. [00:10:53] Speaker 01: Well, Your Honor, the problem that I have with that is that we're trying to find an interpretation that is true instead of just looking whether it's possible that there's an interpretation that's misleading. [00:11:03] Speaker 01: And the inquiry isn't at the stage whether I can muster an interpretation that is true. [00:11:08] Speaker 01: it's whether I can muster interpretation that potentially is misleading. [00:11:11] Speaker 01: And in that sense, many could be misleading because many could include exactly the germs that I mentioned, paragraphs 35 through 50 of the complaint, for example. [00:11:21] Speaker 01: And that way, many wouldn't save them if anything would be misleading, and therefore, someone would still be misled. [00:11:26] Speaker 01: The second problem, which Your Honor just highlighted somewhat, is that it potentially contradicts many [00:11:36] Speaker 01: There are several interpretations of many, some of which potentially contradicts them. [00:11:40] Speaker 01: For example, suppose, Your Honor Judge Lee, you stated that you would write 100% of the panel's opinions. [00:11:47] Speaker 01: And then later you said, I'll write 100% of many of the panel's opinions. [00:11:52] Speaker 01: That second statement isn't clarifying the first. [00:11:56] Speaker 01: It's making a new promise. [00:11:58] Speaker 01: It's contradicting it. [00:11:59] Speaker 01: No one's going to read it or listen to it and say, oh, OK, he didn't mean all of the panel's opinions. [00:12:06] Speaker 01: There's a narrowing to be done. [00:12:08] Speaker 03: What about the asterisks? [00:12:10] Speaker 03: I mean, Whiteside does seem to give some significance to the asterisks and sort of says, look, when you see an asterisks, you can't assume that the statement is taken at face value. [00:12:23] Speaker 03: There's some qualification to that statement. [00:12:26] Speaker 03: Now, your argument seems to be, yeah, this was too much of a qualification of that statement. [00:12:34] Speaker 01: So White's side says that an asterisk gives you notice that there might be additional information about the statement. [00:12:41] Speaker 01: It doesn't necessarily mean that every single consumer, when they go to the grocery store, they're going to pick out the label and say, oh, let me turn it before I buy it. [00:12:48] Speaker 01: So putting that aside, I think that's a factual question. [00:12:52] Speaker 01: But even if you look at the back label, even if you know that there is additional information, that statement at this stage would have to have a specific purpose, which is to clarify the front statement. [00:13:03] Speaker 01: And the front statement says, you'll kill 99.99% of germs. [00:13:08] Speaker 01: If you're going to try to clarify that, you can't go and give a less precise or more ambiguous statement in the back. [00:13:15] Speaker 01: Why not? [00:13:16] Speaker 03: Well, because the back statement was if they had said, let's just pretend that the back statement was on the front. [00:13:24] Speaker 01: You'd still be arguing that it was receptive. [00:13:26] Speaker 01: Well, if the back statement was in the front, then you'd definitely have an ambiguous statement, right? [00:13:30] Speaker 01: Because at that point, the inquiry for an ambiguous statement [00:13:33] Speaker 01: whether a reasonable person would necessarily require additional information in order to know if there is a specific promise being made. [00:13:41] Speaker 01: So you have many comments, and your question would be, which many? [00:13:44] Speaker 01: And you would turn to the back to clarify the potential ambiguity and potentially to try to dissolve any misleading possibility that the statement would have. [00:13:54] Speaker 03: So the only way this is not misleading is if they give the [00:14:01] Speaker 03: Specific they got to have another asterisk next to many then they got to have a third box and says well many means Well, that would be potentially one way right you could just say kills many germs instead of 99.99 percent of germs But I thought you said that if you had the back label [00:14:20] Speaker 03: on the front, it would still be misleading, because just saying it kills 99% of many germs, in your view, is misleading. [00:14:26] Speaker 01: Well, it's a little, the analysis is slightly different, because if you're looking at the back label in relation to the front label, then the back label needs to do the following. [00:14:36] Speaker 01: It needs to make the misleading statement, the front label, impossible to be misled, right? [00:14:41] Speaker 01: So a reasonable person would be impossibly misled by that statement after they read the clarification. [00:14:47] Speaker 01: And so imagine a product, let's say, that says organic to some extent. [00:14:52] Speaker 01: And the back label says 70% organic. [00:14:55] Speaker 01: You're not going to be misled because the back label directly addresses the ambiguous statement to some extent. [00:15:01] Speaker 01: The problem here is that you have a more precise statement on the front and a less precise statement in the back. [00:15:07] Speaker 01: The defendant is trying to get the benefit of a scientific promise, skills 99.99% of germs, and with no accountability. [00:15:16] Speaker 01: and then say many common germs, which a reasonable consumer is going to read that and say, which many? [00:15:22] Speaker 01: I don't know. [00:15:23] Speaker 01: And then there's the third problem. [00:15:25] Speaker 00: Go ahead. [00:15:25] Speaker 00: I was going to ask you, because you didn't really brief it, your expert report from, I think it was Professor Calder, who addressed the various interpretations of the front and back labels. [00:15:39] Speaker 00: And I just wasn't, I mean, part of me was wondering why that wasn't addressed more in your briefing. [00:15:43] Speaker 00: But the way I understand it, he was saying, [00:15:46] Speaker 00: there were two asterisks on the front and a consumer could be thinking that the 99.9% kills 99% of germs was the asterisk to the first asterisk, which was about fast and effective, and that they might never turn around because there were two asterisks on the front. [00:16:07] Speaker 00: And then they were saying even if they did turn it around and look at the back label because of the asterisk, they could interpret [00:16:16] Speaker 00: that statement on the back as saying that it was a clarification of the two front asterisks as saying we kill 99.9% of germs and then we kill a subset of those germs in less than 15 seconds, right? [00:16:37] Speaker 00: And that it would all still support what you think are the consumers are plausibly deceived into thinking, which is that it does kill [00:16:46] Speaker 00: 99.9 9% of germs on our hands and in some subset even quicker less than 15 seconds I don't I guess is that expert group I don't hear any argument that we can't consider that extra report on the pleading stage is creating enough of a plausible allegation that you get past 12 v 6 motion to dismiss and [00:17:10] Speaker 01: I certainly think that that adds to the plausibility of the allegations, right? [00:17:14] Speaker 01: We have someone who spent his whole life in marketing and helping companies with marketing saying, look, this is what's going to happen when a consumer looks at it. [00:17:22] Speaker 01: On top of that, you have the survey saying, hey, they looked at both sides, and that's what they think. [00:17:26] Speaker 01: They could have easily said no, right? [00:17:28] Speaker 01: Some people did. [00:17:28] Speaker 01: The majority of people were thinking that it was the other way. [00:17:32] Speaker 01: But that also segues way into the third issue with the back label. [00:17:38] Speaker 01: Because the back label is also not talking about the same exact thing as the front label. [00:17:42] Speaker 01: The front label talks about 99.99%. [00:17:43] Speaker 01: The back label says more than 99.99%. [00:17:48] Speaker 01: So imagine you're walking into a store. [00:17:50] Speaker 01: and it says 90% off for the clothes. [00:17:53] Speaker 01: And then you get inside and one of the racks says 100% off, right, more than 99.99%. [00:17:59] Speaker 01: But it's only that one rack. [00:18:01] Speaker 01: The person walking through the store is not concerned about the ones on extra sale. [00:18:06] Speaker 01: They want to know about the 90% off the entire store. [00:18:09] Speaker 01: And when they go and pay for the product, for the shirts and sweaters, whatever that they picked, they would be saying, hey, I'm supposed to get my 90% off. [00:18:17] Speaker 01: That's why I walked in. [00:18:18] Speaker 01: And that's the problem with the bait and switch and switching what you're actually referring to on the front label versus the back label. [00:18:25] Speaker 03: Well, except that the difference here is, presumably, if we're looking at the front and the back, everything's there before you, quote, walk into the store and make the purchase. [00:18:34] Speaker 03: And that's what makes this a little bit different in your hypothetical. [00:18:37] Speaker 01: The only problem, Your Honor, the inquiry isn't that we read both statements as if they were made on the front label. [00:18:43] Speaker 01: The inquiry is we read the first statement and then the back to see whether it clarifies the front. [00:18:50] Speaker 04: Well, why don't we give you some time for rebuttal we've taken Thank you honor Morning your honors may please the court Anthony hop on behalf of CVS and by John LLC I want to address the survey because I know it's something that the court finds important before I do that there to to [00:19:19] Speaker 04: preliminary points I want to address. [00:19:21] Speaker 04: First, in Whiteside, this court held that a reasonable consumer cannot simply look at a statement on a front label of a product, ignore the asterisk, and claim to have been misled. [00:19:31] Speaker 04: In this case, the plaintiff admitted in his first amended complaint that he ignored the asterisk and he never read the back label. [00:19:38] Speaker 04: And we've raised that in our briefs. [00:19:39] Speaker 04: That's been raised multiple times. [00:19:40] Speaker 03: That's the operative complaint right now? [00:19:42] Speaker 04: That is the operative complaint right now. [00:19:44] Speaker 04: The second amended complaint never says that the plaintiff read the back label. [00:19:48] Speaker 04: All it says is it talks about the back layers. [00:19:50] Speaker 03: But the second amendment complaint, you said the first amendment complaint. [00:19:53] Speaker 04: Right. [00:19:53] Speaker 04: He admitted it. [00:19:54] Speaker 04: He admitted that in the first amendment complaint. [00:19:56] Speaker 03: Then he amended it. [00:19:57] Speaker 04: Right. [00:19:57] Speaker 04: And in the second amendment complaint, [00:19:59] Speaker 04: He never specifically pleads that he read the back label. [00:20:03] Speaker 03: That was made without the benefit of Whiteside. [00:20:06] Speaker 03: If your theory is right on that, then why wouldn't we remand it to give him a chance to replede? [00:20:11] Speaker 04: Well, he's been deposed, Your Honor. [00:20:13] Speaker 04: This has been up on appeals since the second time. [00:20:16] Speaker 04: The plaintiff admitted under oath that he never read the back label, and that is in the record. [00:20:20] Speaker 04: So there's no point in repleding something he's already admitted in his pleadings and under oath. [00:20:27] Speaker 04: The second issue I want to raise before we get to the survey is that Robles and Moreno, two panels of this circuit. [00:20:39] Speaker 03: We're not bound by either one of those. [00:20:41] Speaker 03: Understood. [00:20:42] Speaker 03: Well, I don't know that you understand that because your briefing says that the district court aired because it didn't apply robles. [00:20:48] Speaker 03: That's just a nonsensical argument. [00:20:50] Speaker 03: Like it's persuasive authority, but it might as well have come from the district of Guam for, I mean, it doesn't mean anything. [00:20:57] Speaker 03: So I, I, I mean, I just, I'm a little frustrated with how much you hung your hat on robles now Merino. [00:21:04] Speaker 03: I'm not saying they're not relevant, but the way you advocated for it in your brief was It didn't do you it didn't it didn't make your point because we can't we're not bound by Robles fair enough your honor I'll move on to the survey Fair enough [00:21:29] Speaker 04: Robles and Moreno, two different panels of this court, non-binding opinions, with that understanding, have held, as a matter of law, that this precise language, with these precise claims, was not misleading to a reasonable concern. [00:21:41] Speaker 04: And one of those was post-White side. [00:21:43] Speaker 04: Yes, one of those was post-White side. [00:21:45] Speaker 04: Moreno was post-White side. [00:21:47] Speaker 04: Robles was pre-White side. [00:21:48] Speaker 04: And to be candid, the allegations in Robles, the underlying allegations, were slightly different. [00:21:54] Speaker 04: Moreno and this complaint, the complainant issue, the fourth amended complaint in Moreno, [00:21:59] Speaker 04: And the complaint in this case are virtually identical. [00:22:02] Speaker 04: I think they were patterned on each other. [00:22:04] Speaker 04: And therefore, hopefully persuasive authority. [00:22:07] Speaker 04: A panel of this court held that the plaintiff must observe the asterisk, turn the product over, and look at the real label. [00:22:19] Speaker 04: And that the real label narrows the claim on the front. [00:22:21] Speaker 04: The asterisk modifies 99.99% of germs. [00:22:25] Speaker 04: Asterisk. [00:22:26] Speaker 04: Turn it over. [00:22:27] Speaker 04: It says effective in eliminating. [00:22:29] Speaker 04: More effective at eliminating many common harmful germs 99.9 percent of many common harmful germs so the many Modifies germs and that many germs Can you tell me sorry? [00:22:42] Speaker 03: Can you tell me what? [00:22:43] Speaker 04: Sure because I I don't think there's any representation Well, and this is the court did consider this in robles that what's being the the and in the district court said this the representation of [00:22:57] Speaker 04: is the product is effective at eliminating more than 99.99% of many common harmful germs. [00:23:04] Speaker 04: There's a subset of many common harmful germs you would have on your hands. [00:23:07] Speaker 04: The product is 99.9% effective in killing those germs. [00:23:11] Speaker 04: For example, the product is essentially rubbing alcohol. [00:23:15] Speaker 04: It's ethyl alcohol with a surfactant. [00:23:18] Speaker 04: It's the same thing that doctor puts on your arm when he gives you a shot. [00:23:22] Speaker 04: It kills many common harmful germs on your skin. [00:23:24] Speaker 04: Does it kill every germ? [00:23:26] Speaker 04: No, we don't, we don't claim that it does. [00:23:28] Speaker 04: Plaintiff has a list of about a dozen germs in his complaint and basically says it doesn't kill these germs. [00:23:34] Speaker 04: Well, both those things can be true. [00:23:36] Speaker 04: It can kill many common, harmful germs on your skin. [00:23:39] Speaker 04: At the same time, not kill a list of about 12 germs. [00:23:44] Speaker 02: I think if the backstatement said it kills 99.9% of most common germs or most common germs on the hand, I think that would be clearly, at least in my view, okay. [00:23:55] Speaker 02: You're clarifying the front statement in view you can understand. [00:23:59] Speaker 02: The problem here, I think it's a little bit in the gray area. [00:24:01] Speaker 02: I don't think the back statement directly contradicts the front statement, but almost kind of renders it, I don't want to say meaningless, but kind of takes, I mean, you make kind of a bold statement in the back and the front, and in the back, you kind of walk it back. [00:24:17] Speaker 02: It's like CVeth giveth and CVeth taketh. [00:24:20] Speaker 02: I mean, I'm not sure what that means. [00:24:25] Speaker 02: And that's a little problematic, or at least it's in the gray area. [00:24:28] Speaker 02: Because basically, we make this bold claim, and on the one hand, you say many. [00:24:31] Speaker 02: And no one knows what's many. [00:24:32] Speaker 02: If it turns out it's only about 5%, I think that would be potentially deceptive. [00:24:38] Speaker 02: But if it turns out it's most, then probably not. [00:24:41] Speaker 02: And you just don't define many. [00:24:43] Speaker 02: So what do we do with that? [00:24:44] Speaker 04: Well, I think you have to look at it in the context of the pleadings in this case. [00:24:48] Speaker 04: What plaintiff has said is that he expected the product to kill all common germs on his hands. [00:24:52] Speaker 04: All comments throughout the complaint the second amended complaint says multiple multiple times at what they expected because of the ninety nine point nine percent That it would kill all or virtually all of any germ that he might ever have on his hands And that's not what the product label says it says many it's less than all so no matter what many means Right in the cut and we believe it means more than some a lot it many means The consumer at least in this case sorry to interrupt your honor the consumer in this case [00:25:22] Speaker 04: at least should know, based on what they've said, if they believe, as the complaint lays out, that it's going to kill every common germ they're going to have on their hand, every potential possible common germ they would have on their hand, when they flip it over and they see many. [00:25:36] Speaker 03: That might be unreasonable. [00:25:38] Speaker 03: So that's one way you're saying to get out of this case, is to say the plaintiff had an unreasonable expectation that would not be consistent with a reasonable consumer. [00:25:47] Speaker 04: And that's what the court held. [00:25:48] Speaker 03: But still, CVS isn't making a representation. [00:25:53] Speaker 03: Mean you can't tell me even here. [00:25:55] Speaker 03: What what does it actually kill? [00:25:58] Speaker 00: It again, I think it kills what it says many of the common germs that you would get to the back label That's correct right so the front label says kills ninety nine point nine percent of germs Asterisk and with another aster saying fast and effective and we have an expert report saying that [00:26:21] Speaker 00: Consume this is designed to lead consumers to believe it kills pretty much all germs and You know they could interpret one asterisk as modifying the other and just never turn it around and That that is probably that is I mean all we're asking for is a plausible [00:26:42] Speaker 00: Allegation at the 12 v6 stage we're not actually Determining the merits and you could go and you could have an ex counter expert you could attack their expert you could say you know reasonable consumers would understand those asterisks to mean to be referring to something on the back in the question that standard is pretty high they have to see those asterisks and [00:27:03] Speaker 00: feel that they must, they recently need to, they're required to look for more information and understand what CVS is saying. [00:27:10] Speaker 00: But you make a pretty bold statement on the front. [00:27:13] Speaker 00: Fast and effective kills 99.99% of germs. [00:27:20] Speaker 00: So you have to get to the back label even to get to what you're saying was a qualification of that statement, which is a pretty significant qualification of that statement. [00:27:31] Speaker 00: And then we also have an expert report saying they would not necessarily read it the way you're arguing it should be read. [00:27:36] Speaker 00: There is more than one plausible interpretation of your pretty vague and ambiguous statement, given what you said on the front label. [00:27:46] Speaker 00: So why at this stage of 12b6 wouldn't [00:27:50] Speaker 00: My understanding of California law is that this is generally a fact issue. [00:27:54] Speaker 00: And it's only when it's very clearly not misleading do we rule as a matter of law. [00:27:59] Speaker 00: Why isn't there enough here with the allegations and the expert report and these other things to get past the plausibility standard? [00:28:07] Speaker 04: Well, first, to your first point, the expert's saying they may not even turn it over. [00:28:11] Speaker 04: Whiteside says they have to turn it over. [00:28:13] Speaker 00: What if we don't I mean Whiteside you're saying Whiteside's at a categorical rule that Anytime there's an asterisk we have to that necessarily creates the ambiguity I mean I'm not sure Whiteside goes that far in Whiteside We had an asterisk next to plant-based and then on the front label itself something that said you know by weight 70% in the courts and in that circumstance [00:28:43] Speaker 00: they would turn back, and then the back actually clarified what that meant. [00:28:47] Speaker 00: And this seems pretty different to me from Whiteside. [00:28:51] Speaker 00: And I would hesitate to read Whiteside as saying, any time there's an asterisk, no matter the context, it categorically means there's enough ambiguity here. [00:29:01] Speaker 04: Well, Your Honor, I understand you may not read Whiteside that way, but I believe that that's exactly what Whiteside says. [00:29:07] Speaker 04: That Whiteside says, a reasonable consumer who observes an asterisk [00:29:10] Speaker 04: will know that there's more information. [00:29:12] Speaker 04: In Whiteside, it was on the front of the package. [00:29:14] Speaker 04: In this case, it's on the back of the package. [00:29:15] Speaker 04: In Moreno, the court applied Whiteside and said, we must turn it over to look at the back of the package. [00:29:21] Speaker 04: And what the back of the package does is that it limits, it qualifies the front label statement. [00:29:27] Speaker 04: It says many, not all. [00:29:29] Speaker 04: Under the impression that it kills all germs, once you follow Whiteside, flip it over, you look, it says many. [00:29:36] Speaker 04: And if you want a product that kills all germs, you put it back on the shelf. [00:29:41] Speaker 00: And what if I disagree with your reading of Whiteside? [00:29:44] Speaker 04: There's not much I can do with that, Your Honor. [00:29:46] Speaker 04: I think we do disagree. [00:29:47] Speaker 04: I think Whiteside is very clear. [00:29:48] Speaker 00: So if it's not categorical, though, what is your best argument for the asterisk in this context, and really two of them, creating enough ambiguity? [00:29:58] Speaker 00: I mean, given that we have an expert report, at least in this case, and I don't know about the other unpublished cases that you're citing, because they don't mention any expert report. [00:30:06] Speaker 00: They don't mention two asterisks, et cetera, which is why I think they're [00:30:11] Speaker 00: not as persuasive as you suggest, because at least in this case, we have two asterisks plus an expert saying a reasonable consumer wouldn't interpret that asterisk as requiring them to look further. [00:30:25] Speaker 04: Again, Your Honor, to the extent, and I know we disagree, but to the extent that that expert's opinion conflicts with California law, I think the court can disregard the notion that they wouldn't turn it over. [00:30:35] Speaker 04: Right. [00:30:35] Speaker 04: And the question that it does, is the back label ambiguous? [00:30:39] Speaker 04: One could argue that it is or it isn't, but what it doesn't do is promise what the plaintiff claims it does. [00:30:45] Speaker 04: The plaintiff in this case claims that it promises it'll kill nearly every single germ that you would ever possibly have on your hands. [00:30:52] Speaker 04: It doesn't say that. [00:30:53] Speaker 04: It clearly doesn't say that. [00:30:55] Speaker 04: Whether or not you interpret many to be this or that, it's less than all. [00:30:59] Speaker 00: What about the expert says, well, because it says kills more than 99.99% of many common germs [00:31:09] Speaker 00: In less than 15 seconds, there's more than one way they could be saying that it kills the many common germs in less than 50 seconds and the rest of them in more time I would I mean that the problem here is that there's more than one? [00:31:22] Speaker 00: Plausible interpretation, so why don't they get to a jury under those circumstances the district court held and and [00:31:30] Speaker 04: And moreno and and robles have held that it's that it's not ambiguous that none of those decisions are binding on us So what do you have an independent argument? [00:31:39] Speaker 00: can you tell me in light of the expert and the specific facts of this case I? [00:31:48] Speaker 00: Mean if there if there is Ambiguity and there is a plausible interpretation that would be deceiving and confusing to consumer Why don't they get? [00:32:00] Speaker 00: Think sorry, I think they get past pleadings. [00:32:03] Speaker 04: I think the expert can try to force ambiguity into this I think you know any the plaintiff counsel can but but what you what you end up it with is under the facts of this case is that label ambiguous and does it contradict Does it support plaintiffs argument does it say what the plaintiffs claim? [00:32:20] Speaker 04: It may say something else. [00:32:22] Speaker 04: You could come up with a hypothetical, as the expert did, about other things and other things that other people might think. [00:32:28] Speaker 03: But in this case, it doesn't. [00:32:31] Speaker 03: Coming back to Whiteside, because this is making me think, I thought what Whiteside said was, if you have an asterisk, you have to go to the back unless the front statement is unambiguously deceptive. [00:32:44] Speaker 03: So I always read Whiteside. [00:32:47] Speaker 03: to sort of flip the presumption to say, you've got to go to the back unless it's unambiguously deceptive. [00:32:54] Speaker 03: And I would say that even plaintiffs aren't arguing that the front is unambiguously deceptive. [00:32:59] Speaker 03: They seem to be arguing that the front is ambiguous and the back doesn't help cure it. [00:33:04] Speaker 04: Well, they have argued that it's unambiguously deceptive. [00:33:07] Speaker 04: And as I've said, and I know they're not binding, but Robles and Moreno have both said that this specific language, well, actually, Robles said the specific language is ambiguous, said that. [00:33:16] Speaker 04: On the front. [00:33:18] Speaker 04: Yes, on the front. [00:33:19] Speaker 04: Moreno said, you don't even have to decide if it's ambiguous because of the asterisk. [00:33:22] Speaker 04: You go to the real label and see what that says. [00:33:24] Speaker 04: And that's what Whiteside says, at least in my view. [00:33:26] Speaker 03: Well, I guess that's where I'm going to. [00:33:27] Speaker 03: I mean, they may be arguing that it's unambiguously deceptive. [00:33:31] Speaker 03: But I'm not sure. [00:33:32] Speaker 03: I mean, it seems like ambiguity cuts against the plaintiff on the question of whether to go to the back label. [00:33:40] Speaker 03: I'm not entirely sure what ambiguity does. [00:33:42] Speaker 03: That's what I'm struggling with. [00:33:44] Speaker 03: What do we do if we go to the back? [00:33:46] Speaker 03: Because I can't tell that you're making a representation. [00:33:48] Speaker 03: You're saying something. [00:33:50] Speaker 03: I just have no clue what you're saying. [00:33:52] Speaker 03: And you're saying, if you don't understand that, then don't buy the product. [00:33:56] Speaker 04: That's one thing. [00:33:57] Speaker 04: Absolutely, Your Honor. [00:33:57] Speaker 04: But the other thing, again, we're saying, and to be clear, I've said this several times, is what that label doesn't promise is what the plaintiff claims it does. [00:34:05] Speaker 00: But California law says you can't really just make an ambiguous statement and say, because we weren't clear, we win. [00:34:12] Speaker 00: The problem I have is in the cases you're relying on, the back label statement actually was quite clear. [00:34:22] Speaker 00: In the baby wipes case, you go to the back label, it says, [00:34:29] Speaker 00: very clearly natural and synthetic ingredients. [00:34:34] Speaker 00: So there's just really, at that point, no doubt that the diaper contains or uses synthetic ingredients. [00:34:42] Speaker 00: Here, I mean, even assuming that you're right, that the asterisk means consumer has to look to the back. [00:34:50] Speaker 00: They look to the back. [00:34:52] Speaker 00: I don't think that dispels necessarily [00:34:57] Speaker 00: What you said on the front which was kills ninety nine point nine percent of terms? [00:35:02] Speaker 00: Yeah, it just creates Arguably or they plausibly alleged more confusion right so it to me. [00:35:10] Speaker 00: It's not like it said it created Clarity it didn't make the back label didn't create clarity that negates the claim If you're saying there, I mean That's I think that's where I have a trouble with and you're saying it we dears [00:35:27] Speaker 00: Do you win only if the back label is clear? [00:35:31] Speaker 00: What happens if it's confusing? [00:35:34] Speaker 04: I win if my client wins if the back label is clear enough, if it's clear enough to dispel what plaintiff said is the confusion caused by the front label. [00:35:42] Speaker 04: And it does. [00:35:43] Speaker 04: I mean, it clearly does. [00:35:44] Speaker 04: It says less than all. [00:35:47] Speaker 04: Now, I know I'm over time. [00:35:48] Speaker 04: I'm happy to address the survey issue if the court is willing. [00:35:50] Speaker 04: If not, I can submit. [00:35:52] Speaker 03: I don't think we can. [00:35:54] Speaker 03: Yeah, I think we could. [00:35:55] Speaker 04: Thank you. [00:35:56] Speaker 03: Thank you. [00:36:04] Speaker 01: Your Honor, just a second ago, Mr. Hopp said that the Robles panel said that the front statement in Robles was ambiguous. [00:36:14] Speaker 01: That same panel in Sutter had the statement, kills 99.99 percent of germs, no asterisk, and they said it was unambiguous and it was deceptive. [00:36:24] Speaker 03: So that... Which one said unambiguous and it was deceptive? [00:36:28] Speaker 01: Sutter, S-O-U-T-E-R versus Edgewall. [00:36:34] Speaker 01: S-O-U-T-E-R versus Edgewall. [00:36:38] Speaker 01: And that's the same panel as Robles. [00:36:41] Speaker 01: So the idea that Robles is saying that the front label has to be ambiguous. [00:36:45] Speaker 03: And that was an unpublished opinion? [00:36:47] Speaker 01: They're all unpublished opinions, Your Honor. [00:36:49] Speaker 03: We've made a mess of this, haven't we? [00:36:50] Speaker 01: Yeah, I understand. [00:36:52] Speaker 01: A couple other things. [00:36:53] Speaker 01: Judge Lee and Judge Nelson, I think you both hit it right in the navel, right in the head. [00:36:58] Speaker 01: The back label needs to clarify the front label. [00:37:02] Speaker 03: Well, maybe. [00:37:03] Speaker 03: Maybe not. [00:37:04] Speaker 03: I mean, maybe they're just not saying anything. [00:37:08] Speaker 01: Well, even if they're not saying anything, how can you say then that it's making it impossible for someone to be deceived? [00:37:13] Speaker 03: Because the statement, when you're looking at the back label, is that someone would have to... I think it's the reasonable consumer, whether the reasonable consumer can be deceived. [00:37:24] Speaker 02: Suppose the facts show that, and you guys agree, that this product kills 80% or 99% of the 80 most common germs. [00:37:35] Speaker 02: Would the statement still be false? [00:37:37] Speaker 02: It still uses the word many common germs. [00:37:40] Speaker 02: And we know now for a fact, this alcohol kills 80%. [00:37:43] Speaker 02: Would that be misleading? [00:37:45] Speaker 02: 80% of... The many means really 80%. [00:37:48] Speaker 02: The facts show... The label still uses the word many in the back, but the science shows it's 80%. [00:37:54] Speaker 01: So in the back it's saying 80%? [00:37:56] Speaker 02: No, no. [00:37:56] Speaker 02: It still says many, but we're saying the facts are it's 80% of the common germs are killed. [00:38:02] Speaker 02: Would that still be deceptive? [00:38:04] Speaker 01: Yeah, you would, Your Honor. [00:38:05] Speaker 01: So turning out the back label, and this is going to get a little annoying because it's math, [00:38:09] Speaker 01: The back label says it kills more than 99.99% of germs, many common germs. [00:38:15] Speaker 01: 99% of something, right? [00:38:17] Speaker 01: And in this case, the way the percentage works, you have to multiply it by the thing that we're talking about, the denominator. [00:38:25] Speaker 01: So in this case, it would be 99% multiplied by X, because X is not defined. [00:38:31] Speaker 01: And depending on how you define X, it could be misleading, or it could be not misleading. [00:38:36] Speaker 02: Yeah, but if it's 80%, then I think we could say probably, I think as a matter of law, the reasonable consumer would interpret many to mean 80%, right? [00:38:46] Speaker 01: How many grains of sand are in the desert? [00:38:50] Speaker 01: What is many, right? [00:38:51] Speaker 01: That's the question. [00:38:52] Speaker 02: If it's 80% though, and that's, I guess, maybe the one thing maybe didn't do enough is in the complaint. [00:38:57] Speaker 02: If you allege the complaint, in reality, alcohol only kills 30% of common germs. [00:39:05] Speaker 02: In that case, maybe, yes, it is deceptive because maybe a reasonable consumer would construe many to mean at least most. [00:39:13] Speaker 02: Maybe even 50%, I don't know. [00:39:15] Speaker 02: I guess that that's the one part that's missing in the complaint of what is the allegation about the efficacy of this product. [00:39:23] Speaker 02: Because it actually may be true. [00:39:25] Speaker 02: If it kills 85%, I think many is fine. [00:39:27] Speaker 02: We just don't know that here based on the complaint. [00:39:30] Speaker 01: I have three problems with that. [00:39:32] Speaker 01: The first one, many could mean all. [00:39:34] Speaker 01: For example, suppose you have four vehicles. [00:39:37] Speaker 01: And I say Judge Lee has many vehicles. [00:39:40] Speaker 01: One black, one blue, one yellow, one pink. [00:39:43] Speaker 01: I just mentioned all of them, and it's consistent with many. [00:39:46] Speaker 01: Second problem that I have, for us to draw a specific percentage that is no longer misleading, regardless, without any plausible allegation saying that everyone's going to think about 80% rather than the germs that are likely to encounter, 99.99% of them, would be to ignore the percentage that they're actually telling us, which is 99.99. [00:40:08] Speaker 03: And the third- No, it's actually not ignoring the percentage. [00:40:13] Speaker 03: probably is true. [00:40:15] Speaker 03: There's some subcategory of all germs that it kills 99.9%. [00:40:18] Speaker 03: I mean, at the end of the day, this is used by doctors, right? [00:40:23] Speaker 03: I mean, before you get a shot, I mean, there's some efficacy to this. [00:40:28] Speaker 03: It just doesn't kill everything. [00:40:31] Speaker 01: I don't agree with you, Your Honor. [00:40:33] Speaker 01: It does kill some germs. [00:40:36] Speaker 01: I agree with you. [00:40:37] Speaker 03: But your client is saying it kills all germs, and that's the only way [00:40:42] Speaker 01: My client is saying it will kill 99.99% of the germs that they will encounter. [00:40:47] Speaker 01: Off germs includes the germs that are likely to encounter. [00:40:50] Speaker 01: We're not talking about a germ that they haven't discovered. [00:40:53] Speaker 01: Look, they could have easily written the label to say kills 99, that kills many germs on the front label. [00:40:59] Speaker 03: They decided to put- But you would argue that's still deceptive. [00:41:03] Speaker 01: kills many germs. [00:41:04] Speaker 01: No, potentially that wouldn't be deceptive, your honor. [00:41:06] Speaker 01: It would be ambiguous. [00:41:08] Speaker 03: I thought you said 99% of many germs. [00:41:09] Speaker 01: No, no, no, no. [00:41:10] Speaker 01: Just kills many germs. [00:41:11] Speaker 01: That would, because now you're adding the percentage, and then you're opening up as to what is the question. [00:41:17] Speaker 01: So you're right that it kills some germs. [00:41:21] Speaker 01: And I didn't pick the percentage. [00:41:23] Speaker 01: They did. [00:41:23] Speaker 01: That's why I'm saying 99.99%. [00:41:26] Speaker 01: That's the scientific precise percentage that they picked, not me. [00:41:31] Speaker 01: The third problem, just going back to Judge Nelson's question, is that you're saying for us to plead the opposite. [00:41:38] Speaker 01: We're saying that 99 killed, the statement is misleading, and I have to disprove or say whatever the number of germs that this product actually does, instead of just saying it's misleading, doesn't do what you promise. [00:41:51] Speaker 01: That would require the pleading stage for me to potentially investigate and discover how effective this product is, other than what they're promising. [00:41:59] Speaker 01: Meaning, is it 80? [00:42:01] Speaker 01: Is it 70? [00:42:02] Speaker 01: Is it 50? [00:42:03] Speaker 01: Maybe tests and things of that nature that it would require at the pleading stage shouldn't be required. [00:42:09] Speaker 01: What I should be looking at is discovery and see what is the underlying data that they have to support the statement. [00:42:15] Speaker 01: And to the extent that that doesn't support the statement, therefore it's misleading. [00:42:19] Speaker 01: So that's the problem that I would have with saying 80% saves them or 50% saves them. [00:42:25] Speaker 01: It flips the burden into the plaintiff to investigate the claims, and maybe they won't even have access to some of these documents. [00:42:32] Speaker 01: If it's a different product, maybe the plaintiff can go in the lab and just go and test every single one of them and find out. [00:42:39] Speaker 01: But bringing back to the facts of this case, [00:42:42] Speaker 03: Council, we've let you go over pretty well. [00:42:44] Speaker 03: Are there more questions? [00:42:47] Speaker 03: I appreciate it. [00:42:48] Speaker 03: It's a very interesting case, but I think we got to close it off. [00:42:51] Speaker 03: Thank you, Your Honor. [00:42:52] Speaker 03: Thank you. [00:42:53] Speaker 03: Thank you to both counsel for your arguments in the case. [00:42:55] Speaker 03: The case is now submitted and that concludes our arguments for the day.