[00:00:01] Speaker 02:
Please go ahead.

[00:00:03] Speaker 02:
How much time, if any, do you want to try to reserve for rebuttal?

[00:00:06] Speaker 04:
I don't think I'm going to need that much time anyway, but let's say five, 10.

[00:00:11] Speaker 02:
Okay, very well.

[00:00:11] Speaker 02:
It's up to you.

[00:00:13] Speaker 02:
Please proceed.

[00:00:15] Speaker 04:
Thank you, Your Honors.

[00:00:16] Speaker 04:
I think in this case, what we have is fairly straightforward.

[00:00:22] Speaker 04:
There are a number of confusing representations on a product.

[00:00:28] Speaker 04:
those confusing representation.

[00:00:29] Speaker 04:
Oh, forgive me.

[00:00:30] Speaker 02:
Before we even get to that, as I think you know, from what we ask you to provide, I'm not sure we have jurisdiction.

[00:00:39] Speaker 02:
Will you please explain why we do, based on the citizenship involved, based on the amounts involved, let's start with the citizenship issue.

[00:00:49] Speaker 02:
Why do we have jurisdiction?

[00:00:51] Speaker 04:
Well, two of the three plaintiffs certainly are California residents.

[00:00:56] Speaker 04:
The defendant corporation is not.

[00:00:59] Speaker 04:
Diversity of jurisdiction based on citizenship is straightforward.

[00:01:02] Speaker 02:
Based on what do we know that?

[00:01:05] Speaker 03:
What evidence?

[00:01:06] Speaker 03:
Under the Second Amendment, the complaint that citizenship of the defendant is not alleged.

[00:01:12] Speaker 04:
That is true, but that fact is part of the record by judicial notice in the lower court proceedings and not contested by the defendant.

[00:01:21] Speaker 02:
What document?

[00:01:24] Speaker 04:
I do not have that at my fingertips.

[00:01:26] Speaker 02:
Well, the documents that I see you've got a letter, but it doesn't say anything about citizenship.

[00:01:32] Speaker 02:
And the fact that somebody has an office somewhere doesn't tell us anything.

[00:01:36] Speaker 02:
What evidence can you point us to that shows that you've got diversity?

[00:01:42] Speaker 03:
And I'll be fair.

[00:01:44] Speaker 03:
What Mr. Boutros says about that or doesn't say about that has absolutely no relevance to your burden.

[00:01:54] Speaker 03:
You bear the burden of proving and pleading.

[00:01:59] Speaker 03:
What he says or won't say, what he'll agree to or doesn't agree to, has absolutely no relevance to me.

[00:02:07] Speaker 03:
So that's why this is an important question for you.

[00:02:11] Speaker 04:
then I would ask the court to take judicial notice of the information which is publicly available, which states where Kimberly Clark is based and has its principal place of business.

[00:02:21] Speaker 02:
But that's not what our jurisprudence... Don't you have to show by a judicially noticeable document that you produce what the citizenship is?

[00:02:31] Speaker 02:
All you've got here is saying that they have offices somewhere.

[00:02:33] Speaker 02:
That doesn't tell us anything.

[00:02:36] Speaker 04:
Well, I'm not contesting that in the complaint there is no allegation to that.

[00:02:43] Speaker 03:
In the letter that you want us to judicially notice, it doesn't help either.

[00:02:51] Speaker 04:
Do you, I mean, I do not think it is reasonably contestable where Kimberly Clark is based, Your Honor.

[00:02:59] Speaker 04:
If there's a question about what appropriate document the court can take judicial notice of, I am perfectly happy to submit a supplemental document, but this is not something that is a challenge from the standpoint of judicial notice.

[00:03:14] Speaker 02:
Well, as I'm sure you know,

[00:03:18] Speaker 02:
We have a sui sponte obligation to determine jurisdiction whether people raise it or not.

[00:03:24] Speaker 02:
In this case, you got the diversity issue and then you got the issue of damages.

[00:03:27] Speaker 02:
If we get to that, you're talking about minuscule.

[00:03:31] Speaker 02:
If you were to prove your complaint, you've got minuscule numbers of people or of dollars involved.

[00:03:39] Speaker 02:
How do you get to $5 million?

[00:03:42] Speaker 02:
Under what circumstances could you possibly reach that?

[00:03:46] Speaker 04:
Well, that's only one of the bases.

[00:03:48] Speaker 02:
No, I understand that, but I'd like you to address that one, please.

[00:03:52] Speaker 04:
Well, given how much this is being contested, I don't think there's a challenge that there could be a very significant amount of money for attorney's fees.

[00:04:00] Speaker 02:
But you have the burden to show that, do you not?

[00:04:04] Speaker 02:
And there's nothing in the complaint.

[00:04:07] Speaker 02:
You don't say we meet the jurisdictional because we're going to get more than $5 million.

[00:04:10] Speaker 02:
There's just nothing there.

[00:04:13] Speaker 03:
And that's your burden.

[00:04:15] Speaker 03:
And the defense says that we're permitted to rely on a chain of reason that includes assumptions to calculate the amount in controversy.

[00:04:25] Speaker 03:
But that's only here when it's on removal from the state court.

[00:04:28] Speaker 03:
That's the only thing it says in those cases.

[00:04:32] Speaker 03:
We're not on removal in this case.

[00:04:34] Speaker 03:
You filed it dead set right here.

[00:04:37] Speaker 03:
We can't look at the removal cases to give you jurisdiction as to the amount in controversy.

[00:04:46] Speaker 04:
Well, I'm not opining one way or another on the sufficiency of removal cases.

[00:04:51] Speaker 04:
What I am saying is that it is not an unreasonable interpretation of a complaint where one asks for punitive damages, where one asks for attorney's fees.

[00:05:03] Speaker 04:
one asserts a class action and one asserts that there are many, many individuals involved, it is not unreasonable to get to that number.

[00:05:12] Speaker 04:
I don't have to prove with respect, but I will.

[00:05:15] Speaker 03:
But frankly, you should sign me a case that says that and I don't find it.

[00:05:20] Speaker 03:
That's a good argument for you to make because you have to, but find me a case.

[00:05:24] Speaker 03:
You didn't even sign me a case that says that.

[00:05:27] Speaker 03:
No, it isn't there.

[00:05:29] Speaker 03:
It is your burden to allege it.

[00:05:32] Speaker 03:
is your burden to alleged merely alleged you don't even have to prove but you didn't allege anything that's the problem i understand what you're saying but

[00:05:47] Speaker 04:
If the real concern is can you not divine it from the complaint, the standard with respect with which you should approach the complaint is whether it is reasonably inferable.

[00:06:01] Speaker 04:
There's no magic to saying... What says that?

[00:06:05] Speaker 03:
When you can't even allege simply that the amount in controversy exceeds the threshold limit,

[00:06:12] Speaker 03:
That's what I've seen in other complaints, and you didn't even allege that.

[00:06:16] Speaker 03:
What case will get me to that?

[00:06:19] Speaker 03:
But I understand your argument.

[00:06:21] Speaker 03:
I'm just saying it's really sounding on deaf ears.

[00:06:26] Speaker 01:
So you're saying we should infer, based on the allegation that this is going to be a class action, that you're seeking attorney's fees and seeking punitive damages that is more than $5 million?

[00:06:40] Speaker 04:
That it is not unreasonable.

[00:06:43] Speaker 04:
Yes, that is the standard.

[00:06:44] Speaker 02:
And what case would you cite that says that's sufficient?

[00:06:50] Speaker 04:
I do not have a case at my fingertips right now.

[00:06:52] Speaker 02:
There isn't any.

[00:06:53] Speaker 02:
There isn't any.

[00:06:54] Speaker 02:
You have to plead it.

[00:06:56] Speaker 02:
And you haven't pled it.

[00:06:57] Speaker 02:
You're saying that we basically have to infer by cobbling together these elements, the punitive damages, et cetera, et cetera, et cetera, to get to the total amount.

[00:07:07] Speaker 02:
You have to at least allege it.

[00:07:09] Speaker 04:
Yes, but that doesn't have to be true.

[00:07:12] Speaker 04:
But that does not have to be alleged by saying, here is my allegation that I meet that.

[00:07:18] Speaker 04:
You can reasonably look at what is in the complaint.

[00:07:21] Speaker 02:
You're saying that the court has to infer

[00:07:25] Speaker 02:
based on its own analysis of the merits, that you have some reasonable chance of reaching that.

[00:07:32] Speaker 02:
As my colleague pointed out, if you'd have said, when you add everything all together, it's going to be more than $6 million.

[00:07:37] Speaker 02:
At least there's an allegation.

[00:07:39] Speaker 04:
If I had to do this again, would I say it?

[00:07:43] Speaker 04:
Of course I'd say it.

[00:07:44] Speaker 04:
But your standard is not, do you have to infer it?

[00:07:48] Speaker 04:
Your standard is, is it reasonable?

[00:07:51] Speaker 02:
No, the standard is not that.

[00:07:54] Speaker 02:
What do you have to plead for us to have jurisdiction?

[00:07:58] Speaker 02:
And that's what we're missing here.

[00:08:00] Speaker 04:
I think I may be talking past you.

[00:08:03] Speaker 04:
I recognize that that is a burden that the plaintiff has.

[00:08:08] Speaker 04:
What I disagree with is that it has to say, I plead X. You can look at the complaint.

[00:08:16] Speaker 04:
And if the complaint is reasonably permissible to support that allegation, your job is done.

[00:08:23] Speaker 04:
You do not have to make me say the words.

[00:08:26] Speaker 02:
But that completely eviscerates the statute.

[00:08:29] Speaker 02:
Why would anybody ever have to plead any amount?

[00:08:30] Speaker 02:
You just say, oh, just look at the complaint, and you can reasonably infer what it would be.

[00:08:35] Speaker 02:
That's not what Congress said, is it?

[00:08:37] Speaker 04:
No, that's not true.

[00:08:38] Speaker 04:
If, for example, I didn't allege a class action, if, for example, I didn't allege attorney's fees, if, for example, I didn't allege punitive damages, from the face of the complaint, you could not reasonably infer the jurisdiction.

[00:08:52] Speaker 01:
Well, I see these kind of cases with these allegations in district court, and most of them don't get to $5 million.

[00:09:06] Speaker 01:
So how are we supposed to infer, just simply because of those allegations, we're at five million?

[00:09:12] Speaker 04:
That's not the standard.

[00:09:13] Speaker 04:
The standard is, is it not possible?

[00:09:17] Speaker 04:
It's not, is it likely?

[00:09:19] Speaker 04:
What you are supposed to do with respect is look at the complaint and say, based on these allegations, is it not possible?

[00:09:27] Speaker 04:
Then we don't have jurisdiction.

[00:09:29] Speaker 02:
That's an amazing statement.

[00:09:32] Speaker 02:
So you're basically saying the burden is on the court to determine whether, based on the pleadings and the merits of your claim, whether it's possible that you could reach it, that the standard is met.

[00:09:43] Speaker 02:
That completely eviscerates the statute, does it not?

[00:09:47] Speaker 04:
No, because I need to make factual allegations upon which that possible determination can be made.

[00:09:52] Speaker 02:
But then you're asking the court to basically, based on the pleadings, to evaluate the potential of the merits to get there.

[00:10:00] Speaker 02:
And that's not what we're required to do, is it?

[00:10:02] Speaker 04:
I would say in response, what you're arguing is that it is a very formalistic task that you have.

[00:10:08] Speaker 02:
That's what we do.

[00:10:09] Speaker 04:
No, I don't think so.

[00:10:10] Speaker 04:
I think you're supposed to actually look at what's in the complaint rather than labels.

[00:10:15] Speaker 02:
Do you want to save any of your time?

[00:10:16] Speaker 02:
It's entirely up to you.

[00:10:17] Speaker 02:
You've got five minutes left.

[00:10:19] Speaker 02:
If you want to keep going, please do.

[00:10:22] Speaker 02:
Address the claim.

[00:10:28] Speaker 04:
I think I will at this point in time, because I don't know what

[00:10:31] Speaker 04:
Is on your honors minds with respect to the substance.

[00:10:34] Speaker 00:
I will then stop and do the rest in rebuttal very well Okay, let's hear then from I guess mr.. Boutros Thank you honors good morning may please the court Theodore Boutros for Kimberly Clark I'll start with jurisdiction we respectfully submit this court has jurisdiction under the class-action Fairness Act which was enacted in

[00:11:01] Speaker 00:
precisely to protect defendants and give them a federal forum in a class action that purports to be national in scope.

[00:11:09] Speaker 02:
Let me ask you this, Mr. Boutros.

[00:11:12] Speaker 02:
I think the merits of the case, you have an easy case.

[00:11:14] Speaker 02:
But I think you've got a jurisdictional problem.

[00:11:17] Speaker 02:
So walk us through how can we retain jurisdiction to come up with an answer in the merits based on what you know are the two issues.

[00:11:27] Speaker 02:
Walk us through.

[00:11:28] Speaker 02:
One, two, three, four, five.

[00:11:29] Speaker 02:
What do we do to keep this case that allows you to get to the merits?

[00:11:34] Speaker 00:
Absolutely, Your Honor.

[00:11:35] Speaker 00:
First, the district court did find CAFA jurisdiction at ER 7 and diversity jurisdiction.

[00:11:42] Speaker 00:
Your Honor, we're asking about where in the record the court took judicial notice.

[00:11:47] Speaker 00:
It's at ER 147, which was the original dismissal order, and the court cited the 10K from Kimberly Clark.

[00:11:55] Speaker 00:
And it's undisputed.

[00:11:57] Speaker 00:
It's an out-of-state company with its home and elsewhere in state of incorporation.

[00:12:02] Speaker 00:
So I think there is diversity under the lenient standards of the Class Action Fairness Act.

[00:12:09] Speaker 02:
As you know.

[00:12:10] Speaker 02:
I think it was attached to Exhibit 1 to the Second Amendment Complaint.

[00:12:16] Speaker 02:
That doesn't really establish Kimberly Clark's citizenship.

[00:12:21] Speaker 02:
Where in the documents does it show the citizenship?

[00:12:25] Speaker 02:
It shows where some offices are.

[00:12:27] Speaker 02:
Where in the documents do we see that?

[00:12:29] Speaker 00:
Your Honor, I have to agree that the plaintiff showing here was, to say the least, flimsy, nonexistent.

[00:12:37] Speaker 00:
I can't defend it.

[00:12:39] Speaker 00:
And same on the merits, if I get to that.

[00:12:41] Speaker 00:
But we did submit a declaration under 28 U.S.C.

[00:12:46] Speaker 00:
section 1653, which specifically allows the court to allow, on appeal, supplemental pleadings to show jurisdiction.

[00:12:55] Speaker 02:
Okay, and that's what I want you to do.

[00:12:56] Speaker 02:
Yes.

[00:12:56] Speaker 00:
Okay.

[00:12:57] Speaker 00:
That's our roadmap.

[00:12:58] Speaker 00:
Let's go there.

[00:12:59] Speaker 02:
What do we do, complying with that statute, to give them an opportunity to do the pleadings that you think are necessary to keep this case here?

[00:13:07] Speaker 00:
Your honor, I don't think that they have to do anything else, that we, under the class action fairness act, and I pointed to the St.

[00:13:14] Speaker 00:
Paul Mercury insurance case, you were asking about amount in controversy.

[00:13:17] Speaker 00:
There, the Supreme Court said that where the plaintiff originally files in federal court, the standard is even more lenient.

[00:13:24] Speaker 00:
That's an amount in controversy, that there has to be no, to a legal certainty, the amount in controversy has to fall below the level.

[00:13:32] Speaker 02:
But in this case,

[00:13:33] Speaker 02:
I mean, what if it's $0.99 or $1.49 or something like that?

[00:13:40] Speaker 02:
How do you get to $5 million?

[00:13:41] Speaker 02:
I mean, you gave him, what, $6 million for the whole world, but we're not talking about the whole world here.

[00:13:48] Speaker 02:
How do you get rationally to $5 million?

[00:13:52] Speaker 00:
It flows from the allegations of the complaint, which seeks a U.S.

[00:13:57] Speaker 00:
national class.

[00:13:59] Speaker 00:
Every single purchaser, and this is what they're alleging, in the United States,

[00:14:03] Speaker 00:
from the beginning of time of the sale of this product, so it's a three-year period, across the United States, it seeks full refund.

[00:14:10] Speaker 00:
We think that's absurd, but that's what the complaint has put in controversy.

[00:14:15] Speaker 00:
And it's saying that they should get full refunds for the complete amount of the purchase price.

[00:14:20] Speaker 00:
And our declaration under Section 1653 from Mr. Ramlett

[00:14:26] Speaker 00:
States that that's six million dollars in terms of the full amount so that gets us to five million and above there So you think this that the six million dollar figure you gave to them?

[00:14:37] Speaker 00:
Flies basically absolutely and under st.

[00:14:40] Speaker 00:
Paul mercury insurance from the Supreme Court unless to a legal certainty It doesn't fly then there's the we meet the amount in controversy Standard and I think in here was to under the class action fairness act unlike under ordinary circumstances

[00:14:56] Speaker 00:
The statute says we aggregate the claims of the individual class members.

[00:15:02] Speaker 00:
We think the claims are baseless, but we assume based on the complaint and make inferences from the allegations of the complaint.

[00:15:09] Speaker 00:
That's the court's Perez decision, this court's decision.

[00:15:13] Speaker 00:
And we're allowed to extrapolate so we can stay in federal court.

[00:15:16] Speaker 00:
And CAFA, the Class Action Fairness Act, was meant to protect defendants, give us a federal forum, rather than going back to state court where the standards

[00:15:25] Speaker 00:
are looser, not as well defined.

[00:15:27] Speaker 02:
But again, as you very well know, CAFA is where you have state court involvement.

[00:15:32] Speaker 02:
This case was filed in federal court.

[00:15:35] Speaker 02:
Doesn't that make a difference?

[00:15:36] Speaker 00:
I don't think so for these purposes.

[00:15:38] Speaker 00:
I think CAFA can give original jurisdiction, diversity jurisdiction.

[00:15:42] Speaker 00:
A plaintiff can choose to file and obtain diversity jurisdiction under CAFA in the first instance.

[00:15:50] Speaker 00:
And that's what happened here.

[00:15:51] Speaker 00:
We know we can't stipulate to jurisdiction in the court.

[00:15:54] Speaker 00:
I understand now, in retrospect, the court looking at this and saying, what's our basis for jurisdiction?

[00:16:02] Speaker 00:
But it really is important.

[00:16:03] Speaker 00:
We've been litigating these issues.

[00:16:05] Speaker 00:
The claims, if we go back to state court, we'll remove.

[00:16:10] Speaker 00:
We'll be back up here.

[00:16:12] Speaker 00:
And we will say their claims, based the way they define them,

[00:16:17] Speaker 00:
Create diversity jurisdiction and they're seeking punitive damages, statutory damages.

[00:16:23] Speaker 00:
And in these cases, plaintiffs argue that damages should be 10 million, 20 million, 50 million, 100 million.

[00:16:29] Speaker 00:
You look at the settlements.

[00:16:30] Speaker 02:
But they have to state that, don't they?

[00:16:32] Speaker 00:
They usually do.

[00:16:33] Speaker 00:
But we are entitled under section 1653, it's a pretty unusual provision, on appeal to put in evidence so that we can get the federal forum that Congress said we were entitled to.

[00:16:45] Speaker 00:
And that's all we're asking for here.

[00:16:47] Speaker 00:
The parties have litigated this.

[00:16:49] Speaker 00:
We've spent a lot of time and effort.

[00:16:50] Speaker 00:
It would just prolong things.

[00:16:52] Speaker 00:
I wouldn't urge the court to keep jurisdiction if I didn't think it had it.

[00:16:56] Speaker 00:
But I think that under the Class Action Fairness Act, which was a remarkable bipartisan piece of legislation,

[00:17:04] Speaker 00:
It was meant to stop.

[00:17:05] Speaker 02:
There's a lot of that in Washington.

[00:17:06] Speaker 00:
It's been a while.

[00:17:07] Speaker 00:
But those were the days.

[00:17:09] Speaker 00:
And it was meant to put a stop to this sort of class action that purports to be national, that's seeking big dollars, that brings in a foreign, an out of state corporation into state court where the rules are different.

[00:17:24] Speaker 00:
There's no 23F appeal.

[00:17:26] Speaker 00:
And so that's why we think it's just crucial that we should be able to stay in federal court under the Class Action Fairness Act.

[00:17:33] Speaker 00:
and a pain of ruling on the merits.

[00:17:35] Speaker 02:
So from your perspective, there is enough under at least the construction of CAFA that you have to keep this here to do otherwise it would be a complete waste of time.

[00:17:47] Speaker 02:
You're just basically starting all over again and sooner or later you have to get to the merits and that's what you want, right?

[00:17:53] Speaker 02:
Exactly.

[00:17:54] Speaker 02:
I gather they do too.

[00:17:55] Speaker 00:
I think they do.

[00:17:56] Speaker 00:
Council didn't argue on the merits.

[00:17:58] Speaker 00:
I think I know why because their claims are baseless.

[00:18:01] Speaker 00:
But we're here in federal court, and if we go back to state court, for example, or the court dismisses with prejudice or sends us back to district court, we're going to be back up here.

[00:18:10] Speaker 00:
We're fully briefed.

[00:18:12] Speaker 00:
And again, I completely understand the court's desire not to take jurisdiction where it doesn't have it.

[00:18:17] Speaker 00:
But I go back to the Class Action Fairness Act.

[00:18:20] Speaker 00:
It was meant to change the rules precisely because of class actions like this one that are flimsy.

[00:18:25] Speaker 02:
So from your perspective,

[00:18:27] Speaker 02:
1653 and other provisions allow us to keep that.

[00:18:32] Speaker 02:
We may need to give them an opportunity to amend, right?

[00:18:37] Speaker 02:
To make the allegations that are necessary.

[00:18:39] Speaker 02:
You don't even think that's necessary.

[00:18:41] Speaker 00:
I don't think it's necessary.

[00:18:42] Speaker 00:
I think the defendants, and in some of the cases that we've cited from this court under 1653, the defendants put in evidence

[00:18:49] Speaker 00:
to show the amount in controversy.

[00:18:50] Speaker 00:
I think it's the general dentistry case.

[00:18:53] Speaker 00:
The Blue Ridge case was the diversity question, and the court said, you know, no purpose would be, nothing to be gained by going back to the district court.

[00:19:04] Speaker 00:
This court could, on a cold record, which is what would happen in the district court, just look at the declaration we submitted, find, yes, there's diversity.

[00:19:12] Speaker 00:
Yes, there's $6 million in controversy.

[00:19:15] Speaker 00:
before we even get to punitive damages, statutory damages, attorney's fees.

[00:19:20] Speaker 00:
It adds up even when you have what we believe are substantively baseless claims.

[00:19:25] Speaker 00:
So we think the court should keep... It has jurisdiction.

[00:19:29] Speaker 00:
It should move to the merits and affirm the dismissal below.

[00:19:35] Speaker 02:
Okay.

[00:19:35] Speaker 02:
I think we have your position on that.

[00:19:37] Speaker 02:
Thank you, Your Honor.

[00:19:37] Speaker 02:
And I gather you don't like their position on the merits either.

[00:19:40] Speaker 00:
I don't.

[00:19:40] Speaker 00:
So I will move to that.

[00:19:43] Speaker 00:
Somewhat like jurisdiction.

[00:19:45] Speaker 00:
The plaintiffs did not even cite the correct legal standards.

[00:19:49] Speaker 00:
First, they cited the Iqbal decision from the Supreme Court on the most basic principle.

[00:19:57] Speaker 00:
What's the standard on 12b6?

[00:19:59] Speaker 00:
They say it's nonsense, and they have a big quote that they purport is from the Iqbal majority, but it's actually from the dissent.

[00:20:05] Speaker 00:
The standard is not, as plaintiffs put it, nonsense.

[00:20:09] Speaker 00:
It's plausibility, as this court well knows.

[00:20:11] Speaker 00:
And this court,

[00:20:12] Speaker 00:
has repeatedly affirmed dismissals under the 12b6 case provision in this exact context, consumer labeling, the McGinnity case, the Whiteside case, which they don't even cite in their brief, in their opening brief.

[00:20:27] Speaker 00:
And even when we briefed it in our brief, the reply brief is one paragraph that doesn't cite a single case.

[00:20:34] Speaker 00:
It's basically a default un-briefing.

[00:20:37] Speaker 00:
They don't, to publish a precedential decision from this court that catalogs all the prior decisions and sets a standard that they do not even try to meet in their brief.

[00:20:47] Speaker 00:
So on that basis alone, the court should affirm.

[00:20:51] Speaker 00:
And then if we get to the merits.

[00:20:53] Speaker 00:
So the test under Whiteside and the cases that came before it is, generally with the reasonable consumer test, the consumer we assume should

[00:21:05] Speaker 00:
Look at the whole context, the whole package, common sense.

[00:21:09] Speaker 00:
There should be, the plaintiff has to show that there's a meaningful capacity to deceive a significant number of membership of the public.

[00:21:18] Speaker 00:
And the only time you can't look at the full package is where the front label is unambiguously deceptive, such that it makes a specific promise that would mean the consumer has no reason to look at the back.

[00:21:33] Speaker 00:
It's all the opposite of that.

[00:21:35] Speaker 00:
The Kleenex Wet Wipes front label is accurate and truthful.

[00:21:39] Speaker 00:
There's no claim that it doesn't wipe away 99% of the germs.

[00:21:43] Speaker 00:
There's no claim that it says it kills germs.

[00:21:46] Speaker 00:
There's no claim that it uses harsh chemicals.

[00:21:50] Speaker 00:
It says no harsh chemicals on the front label.

[00:21:54] Speaker 00:
There's nothing to suggest it's a germicide.

[00:21:57] Speaker 03:
The plaintiffs point to... Therefore, the front label is unambiguous.

[00:22:03] Speaker 00:
It's unambiguously accurate as opposed to unambiguously deceptive.

[00:22:08] Speaker 00:
They don't claim that it doesn't do the things it does.

[00:22:11] Speaker 00:
They claim that a reasonable consumer would have been some sort of comparative advertising expert who would know about all these other products and would decide that because the color of the label is orange that that meant it was a germicide because hospital soap

[00:22:27] Speaker 00:
I didn't even know that before I got into this case.

[00:22:30] Speaker 00:
So it's a series of logical inferences, speculation, idiosyncratic views of the plaintiffs, and that's not the reasonable consumer test.

[00:22:40] Speaker 00:
It's what would a reasonable consumer interpret from the label.

[00:22:44] Speaker 00:
And here, a reasonable consumer would assume there's no harsh chemicals, which is true, that it wipes away the germs, it doesn't kill them on contact, and it even has

[00:22:56] Speaker 00:
wipes away again in capital letters after their wet wipes, and it says no harsh chemicals.

[00:23:03] Speaker 00:
Then if you do go to the back, it confirms and amplifies these same features.

[00:23:09] Speaker 00:
It talks about the cleansing power of water.

[00:23:12] Speaker 00:
It says anytime, anywhere.

[00:23:14] Speaker 00:
It's safe on skin.

[00:23:16] Speaker 00:
It's dermatologically tested, hyperallergenic.

[00:23:20] Speaker 00:
It's alcohol-free, paraben-free.

[00:23:22] Speaker 00:
It says no harsh chemicals, no chemicals.

[00:23:25] Speaker 00:
So it confirms what's on the front label.

[00:23:28] Speaker 00:
And the point I really want to emphasize is that consumers view that as a big plus.

[00:23:32] Speaker 00:
The Whiteside case, the argument was it said it was plant-based, all-natural, and then there were some synthetic ingredients.

[00:23:42] Speaker 00:
Here, the fact that this was marketed as a product that had no harsh chemicals, that's something a lot of people want.

[00:23:50] Speaker 00:
The plaintiffs say, well, gee, all you're getting is the ability to wash your hands at a sink.

[00:23:55] Speaker 00:
No, the whole point of the product is you can wash your hands with soap and water anywhere you are, the convenience of that with a natural, non-harsh chemical product.

[00:24:05] Speaker 00:
They admit there are soap and water, even according to the plaintiffs.

[00:24:12] Speaker 00:
And they point to COVID, which I do want to address because, first of all, the product was put on the market before COVID.

[00:24:19] Speaker 00:
Secondly, I think we all remember that the big mantra during the early days of the pandemic and throughout was wash your hands with soap and water.

[00:24:30] Speaker 00:
Sing happy birthday while you do it.

[00:24:32] Speaker 00:
So the ability, the fact that a product was put on the market that would allow you to do that anywhere you were, out in the country, anywhere in the, you know, in your office, whatever, that's a beneficial product.

[00:24:43] Speaker 00:
And they, there's some insinuations, some sort of scam to trick people

[00:24:47] Speaker 00:
into thinking this was a germicide.

[00:24:49] Speaker 00:
Um, and that just, there's no plausible allegations that suggests that, uh, whatsoever.

[00:24:55] Speaker 00:
And it's counter to common sense in common, I think to, to everything we know.

[00:25:00] Speaker 03:
And I'll, I'll just maybe finish with- They use, they use the historical idea of COVID to say that they,

[00:25:10] Speaker 03:
don't need to really prove so much misunderstanding, that it's a relaxed standard of reasonableness.

[00:25:18] Speaker 03:
Is there only proof necessary?

[00:25:20] Speaker 03:
How do you respond to that?

[00:25:22] Speaker 00:
They don't set a single case for that.

[00:25:23] Speaker 00:
It's not correct.

[00:25:25] Speaker 00:
And in fact, it really sort of proves the opposite.

[00:25:27] Speaker 00:
If people were hyper concerned with removal of germs or killing germs, then they would have been more vigilant to see what the product, to read the label.

[00:25:37] Speaker 03:
I think the Trader Joe's case from this court says... Well, not only that, but did you target this product to a particularly disadvantaged group?

[00:25:49] Speaker 03:
No, and we didn't target it to COVID.

[00:25:51] Speaker 00:
Or a vulnerable group?

[00:25:52] Speaker 00:
No, we did not, you're right.

[00:25:54] Speaker 00:
And it was a great product.

[00:25:55] Speaker 00:
And the fact that washing your hands during COVID, it really struck me as I was coming down the pike here to the argument that

[00:26:04] Speaker 00:
That was a big advice from everyone.

[00:26:08] Speaker 00:
Wash your hands with soap and water.

[00:26:10] Speaker 00:
That's what these products allowed you to do anywhere you were.

[00:26:14] Speaker 00:
And so this case is baseless on the merits.

[00:26:16] Speaker 00:
We respectfully submit the court has jurisdiction.

[00:26:19] Speaker 00:
We would like to stay in federal court to avoid the ping-ponging back and forth again.

[00:26:23] Speaker 00:
and very much appreciate the argument time today.

[00:26:25] Speaker 00:
Thank you very much.

[00:26:26] Speaker 02:
Thank you for your patience and waiting.

[00:26:28] Speaker 02:
Any questions about my colleague?

[00:26:30] Speaker 02:
I think not.

[00:26:30] Speaker 02:
Thank you.

[00:26:31] Speaker 02:
All right.

[00:26:31] Speaker 02:
Thank you.

[00:26:32] Speaker 02:
So Mr. Rosenberg, you've got a little time.

[00:26:37] Speaker 04:
Thank you, Your Honors.

[00:26:40] Speaker 04:
I think we could recognize that someone who is selling soap is not going to advertise that their product is safe.

[00:26:49] Speaker 04:
Someone who is selling soap is not going to argue that they don't have harsh chemicals.

[00:26:54] Speaker 04:
They are trying to skim under the

[00:27:00] Speaker 04:
difference between what's alcohol and what's soap.

[00:27:04] Speaker 04:
They use all of the alcohol language, the 99% stuff, they specialize in getting rid of germs, and yet it's just soap.

[00:27:12] Speaker 04:
But it doesn't say it's just soap, and they want you to pay extra money for something which will get you what alcohol does, but it isn't quite alcohol.

[00:27:21] Speaker 02:
And that's not the thing at Soap.

[00:27:23] Speaker 02:
The standard you have to deal with is the reasonable consumer.

[00:27:27] Speaker 02:
Absolutely.

[00:27:28] Speaker 02:
You're basically saying the reasonable lawyer.

[00:27:31] Speaker 02:
That's different.

[00:27:32] Speaker 02:
No.

[00:27:35] Speaker 02:
Why would the reasonable consumer, for example, think that an orange product contains germicides, which I think you're alleging.

[00:27:43] Speaker 02:
Why is that reasonable?

[00:27:46] Speaker 04:
Well, I have 10 plaintiffs who said so.

[00:27:51] Speaker 04:
Now, I suppose a judge could say that all along.

[00:27:54] Speaker 03:
Just because you have 10, that doesn't really say anything.

[00:27:57] Speaker 03:
10 isn't an acceptable number of what you have to have for this kind of misleading evidence.

[00:28:04] Speaker 04:
Well, we're talking about what's reasonable.

[00:28:06] Speaker 04:
And right now we have the question of what a judge thinks is reasonable versus 10 consumers.

[00:28:12] Speaker 03:
Did you get an expert that said anything?

[00:28:16] Speaker 03:
Not yet.

[00:28:18] Speaker 01:
So you're saying that they were misleading and they were suggesting their product contained alcohol, but doesn't the product say it does not contain alcohol?

[00:28:29] Speaker 04:
I am saying they suggested it was alcohol-like.

[00:28:34] Speaker 04:
They advertised it as being just like what you'd have in the Purell hand sanitizers, but it doesn't have any of that nasty stuff.

[00:28:42] Speaker 04:
They certainly didn't advertise it with soap.

[00:28:44] Speaker 04:
They didn't advertise that these were like picnic wipes.

[00:28:47] Speaker 04:
And they asked a premium for it.

[00:28:50] Speaker 04:
Why do you suppose they did that?

[00:28:59] Speaker 04:
There's a case, which I don't think either side cited, but I will mention it because I think it's particularly relevant.

[00:29:05] Speaker 03:
Did you file a letter to us to mention that case to us?

[00:29:10] Speaker 04:
No, and I won't mention it if you think it's inappropriate.

[00:29:14] Speaker 02:
Why don't you give it to us?

[00:29:17] Speaker 02:
You haven't got much else, so let's see what you got.

[00:29:20] Speaker 04:
It's Joe versus Kimberly Clark, 2013 U.S.

[00:29:24] Speaker 04:
District Lexus, 173.

[00:29:28] Speaker 04:
two one sixths.

[00:29:31] Speaker 04:
It says the issue is not whether the unmodified use of pure natural is devoid of meaning, it is which meaning a reasonable consumer would ascribe to it.

[00:29:41] Speaker 04:
The court concludes this is not a question that can be resolved on a Rule 12b6 motion.

[00:29:46] Speaker 04:
With respect, when California came up with its consumer protection statutes, it was not looking for a panel of judges to say, no, we don't think so.

[00:29:59] Speaker 02:
How do you determine what the reasonable consumer is then?

[00:30:03] Speaker 04:
I think you have to be expansive in understanding as a human being.

[00:30:07] Speaker 04:
I think you have to put yourself in a position of people struggling at a time of COVID, looking at a package, which has got all sorts of stuff, which is confusing.

[00:30:18] Speaker 04:
And now you say, I'm being a lawyer.

[00:30:20] Speaker 04:
You're saying that a reasonable consumer, all calm-like, is going to sit, look at this product, say, hmm, let me just study and read all the labeling before I make a decision.

[00:30:30] Speaker 02:
Council, with respect.

[00:30:32] Speaker 02:
I think you heard Mr. Boutreau say this product was produced well before COVID, wasn't produced specifically for COVID.

[00:30:40] Speaker 02:
And if you look at the front of the package, it's not confusing and it's not ambiguous.

[00:30:47] Speaker 02:
But if you do look at the back, it's even more clear.

[00:30:49] Speaker 02:
I guess I'm just struggling with where the reasonable consumer would assume any of the things that you're alleging about this product based upon what you see at the front of the package.

[00:31:00] Speaker 02:
What am I missing?

[00:31:01] Speaker 04:
What you're doing is you're putting yourself at the position of being a jury.

[00:31:07] Speaker 04:
The allegations say what a reasonable consumer thinks about a 99% representation, what a consumer thinks about alcohol as a successful product, what it thinks about killing on contact, not by scrubbing.

[00:31:24] Speaker 04:
These are allegations that 10 people believe.

[00:31:28] Speaker 04:
What 10 people?

[00:31:29] Speaker 04:
I'm sorry?

[00:31:30] Speaker 04:
What 10 people?

[00:31:31] Speaker 04:
The 10 original plaintiffs in this case.

[00:31:33] Speaker 04:
We're down to three now because of jurisdictional questions, but the facts are still alleged.

[00:31:38] Speaker 04:
They're still in the record.

[00:31:39] Speaker 02:
All right, your time is up.

[00:31:40] Speaker 02:
Let me ask whether either of my colleagues has additional questions.

[00:31:44] Speaker 02:
I think not.

[00:31:44] Speaker 02:
So we thank all counsel.

[00:31:45] Speaker 02:
The case just argued is submitted and the court stands adjourned for the day.

[00:31:51] Speaker 02:
Thank you.