[00:00:01] Speaker 03:
Please be seated.

[00:00:06] Speaker 03:
I think that was 10 minutes.

[00:00:08] Speaker 03:
This is the closest I've ever come to obeying my promise.

[00:00:13] Speaker 03:
The next case that we have for oral argument is Hudson versus the Boppy Company, docket 24-1322.

[00:00:22] Speaker 03:
Council, when you're ready, please proceed.

[00:00:30] Speaker 04:
Good morning.

[00:00:32] Speaker 04:
May it please the court.

[00:00:33] Speaker 04:
My name is Paul Doolittle.

[00:00:34] Speaker 04:
I'm from Charleston, South Carolina, and I'm here today on behalf of Ms.

[00:00:38] Speaker 04:
Hudson and the punitive class of three million purchasers of the Boppy baby lounger.

[00:00:47] Speaker 04:
I would like to reserve three minutes for a bottle, please.

[00:00:52] Speaker 04:
As this court is probably aware, this is a case that stems from a dismissal in totality from the lower court at the District Court of Colorado.

[00:01:01] Speaker 04:
The judge in that decision dismissed every claim that was pled.

[00:01:06] Speaker 04:
And I think it's important to start with looking at what the decision of that judge stated in that opinion.

[00:01:14] Speaker 04:
The lower court said, this case is about whether the plaintiffs were misled

[00:01:20] Speaker 04:
and whether they would have never bought the product had they been aware of the safety issue, the product being the baby lounger that we're discussing.

[00:01:29] Speaker 04:
The court went on to say that all four claims, the unjust enrichment express warranty, warranty of merchantability, and the warranty of fitness for a particular purpose, the claims that were dismissed, that all four claims hinge on whether BAPI made misleading statements about the safety of its loungers.

[00:01:48] Speaker 04:
The court went on to highlight what it termed to be the only four statements in the record that it could see that were related to safety.

[00:01:57] Speaker 04:
In fact, most of these statements come from what's known as the Boppy Pledge.

[00:02:03] Speaker 04:
It's a pledge that Boppy honors, follows, and puts forth as its way that it does business.

[00:02:10] Speaker 04:
And these statements are as follows.

[00:02:13] Speaker 04:
Boppy is committed to the safety of infants.

[00:02:17] Speaker 04:
Papi is committed to everything possible to help make babies safer.

[00:02:25] Speaker 04:
The baby lounger is a safe place to put newborns down.

[00:02:30] Speaker 04:
And the fourth, that the recessed interior or place where the infants fit perfectly.

[00:02:38] Speaker 04:
Those are the four statements.

[00:02:39] Speaker 03:
Is that what the district court referred to as puffery?

[00:02:42] Speaker 04:
Correct, Your Honor.

[00:02:43] Speaker 04:
He said all four of those, the lower court said all four of those statements are complete puffery.

[00:02:48] Speaker 03:
And what about that?

[00:02:49] Speaker 03:
Do you have any law to the contrary?

[00:02:51] Speaker 04:
Your Honor, I think that whether or not those statements are puffery or statements of fact or statements of opinion is a matter for the jury to decide.

[00:03:01] Speaker 04:
It's not a matter for the court to take in a blanket issue statement and say, I've looked at these and no reasonable person, no reasonable juror could ever interpret a statement that says, we're committed to the safety of infants to apply to a baby lounger where infants die when you're placed in those loungers.

[00:03:21] Speaker 04:
So I think what the lower court has done is it substituted its opinion about what those statements were and inserted those into puffery.

[00:03:28] Speaker 04:
And we all know from law school, puffery involves when you tell somebody, the classic example was that this vehicle I'm selling a used car that was driven by my grandmother to the grocery store once a week into church on Sunday.

[00:03:41] Speaker 04:
And she never pressed the gas pedal press past a little bit of an inch.

[00:03:46] Speaker 04:
And she never went on the highway in that car.

[00:03:48] Speaker 04:
I mean, that's puffering.

[00:03:51] Speaker 00:
Can I ask you about Miss Hudson's standing in this case?

[00:03:53] Speaker 00:
What injury did she suffer?

[00:03:55] Speaker 04:
She suffered an economic injury by the purchase of a worthless product.

[00:03:58] Speaker 00:
Okay.

[00:03:59] Speaker 00:
Well, so I read your brief and argument to rely upon the benefit of the bargain theory.

[00:04:07] Speaker 00:
Has this court of Supreme Court ever endorsed that theory?

[00:04:12] Speaker 04:
This court, no.

[00:04:13] Speaker 04:
Other courts, yes.

[00:04:15] Speaker 00:
For example, the McGee opinion you cite from the Ninth Circuit?

[00:04:20] Speaker 04:
Correct, Your Honor.

[00:04:21] Speaker 04:
So there are several other courts that have accepted that, but I do not think this court, I think it's a court of novel impression, case of novel impression for this court as to whether or not those statements do give standing.

[00:04:33] Speaker 00:
All right.

[00:04:33] Speaker 00:
Let's say I agree with you in theory that the benefit of the bargain theory of standing is a way to plead economic harm.

[00:04:40] Speaker 00:
Did you actually plead it here?

[00:04:42] Speaker 04:
Yes, Your Honor.

[00:04:42] Speaker 04:
I believe in taking it in totality when you look at the amended complaint that was filed here, I believe in the liberal pleading rules when you're looking at pleading as to the rules that are interpretation of that pleading.

[00:04:52] Speaker 04:
I do believe that within that it is well pledged.

[00:04:55] Speaker 04:
Now, is it well pledged?

[00:04:56] Speaker 04:
Possibly not, Judge.

[00:04:57] Speaker 00:
It's not explicit, but you're saying if I look at the complaint as a whole, I can sort of cull out of that.

[00:05:03] Speaker 04:
In the totality of the complaint, which is I think what we're supposed to be doing when we look at first initial drafts of pleadings.

[00:05:08] Speaker 01:
If we spot you, I have also a question about standing.

[00:05:13] Speaker 01:
If we spot you that you have bled injury, you also need to plead traceability for your client, right?

[00:05:21] Speaker 04:
Correct.

[00:05:22] Speaker 01:
How have you done that here?

[00:05:23] Speaker 04:
The traceability for the client, there's no doubt she purchased the boppy lounger in question.

[00:05:31] Speaker 04:
There's no doubt that she used the lounger in question.

[00:05:33] Speaker 04:
It's alleged in the amended complaint that she did purchase it and how long she used it.

[00:05:39] Speaker 04:
She still had it when the refund option came available.

[00:05:42] Speaker 04:
She tried to make herself

[00:05:45] Speaker 04:
take advantage of the refund.

[00:05:47] Speaker 01:
She has to plead more than just a conclusory statement that she relied, right?

[00:05:53] Speaker 01:
What I'm trying to find, and maybe you could point me in your complaint because I don't want to miss it, is factual allegations to support the traceability element of standing for your client.

[00:06:03] Speaker 04:
And I think that's where we, in the complain itself, Judge, I mean, as a totality, when you look at the complain itself, I think it's within there.

[00:06:11] Speaker 04:
And I think what happens in this case and what we have a reversal, I mean, while we're seeking reversal, is the decision was issued too early.

[00:06:18] Speaker 04:
This is before even my client was even deposed.

[00:06:21] Speaker 04:
It was before any class member was deposed at all.

[00:06:23] Speaker 04:
To ask those very questions about what did you do?

[00:06:26] Speaker 04:
Did you purchase it?

[00:06:27] Speaker 04:
How long ago did you purchase it?

[00:06:28] Speaker 04:
Where's your receipts?

[00:06:29] Speaker 04:
But we do know from the record that she is a refund class member.

[00:06:34] Speaker 04:
So we do know that she did purchase the product and we do know that she was offered the $9 refund as opposed to the $30 purchase price.

[00:06:42] Speaker 01:
How should we be thinking about the fact that the district court resolved this on 12b6, but there were arguments about standing made before the district court that you did not respond to?

[00:06:56] Speaker 01:
And so I want to know how I should be thinking about the standing litigation in the district court for purposes of resolving that issue on appeal.

[00:07:06] Speaker 04:
Correct, Judge.

[00:07:07] Speaker 04:
I interpreted the district court's opinion in the reading, and this is based on the totality of circumstances with the judge's request for amendments and allowing the amendments, and the meeting confers that occurred, and of course, reading the briefing that was done before the amendments were done.

[00:07:25] Speaker 04:
And when you read that in totality, what I see is the 12b6.

[00:07:28] Speaker 04:
I mean, I don't see the standing issue raised by the court.

[00:07:31] Speaker 04:
I don't see the standing issue.

[00:07:33] Speaker 04:
I understand it's noted.

[00:07:34] Speaker 04:
I understand it's been briefed because lawyers are cautious and we want to make sure we address everything.

[00:07:39] Speaker 04:
But I don't believe in my reading of the opinion again, and again, I read it again this morning because I thought this issue was probably relevant and would be mentioned, but I read it as a complete, just 12b6 standard dismissal.

[00:07:51] Speaker 04:
I don't read standing as being paramount in the courts.

[00:07:54] Speaker 04:
decision.

[00:07:55] Speaker 04:
I mean, is it mentioned occasionally?

[00:07:57] Speaker 04:
Yes.

[00:07:57] Speaker 04:
But I mean, a standing opinion, when you don't have standing, that's typically what the court starts with, right?

[00:08:02] Speaker 04:
Number one, no standing, boom, done.

[00:08:04] Speaker 04:
We don't get to what statements are at issue.

[00:08:07] Speaker 04:
We don't get to calling the record and finding which statements mention safety.

[00:08:11] Speaker 01:
Yeah, I agree with you.

[00:08:13] Speaker 01:
I think that it would be strange to think the district court thought you lacked standing and then proceeded to issue an entirely advisory ruling, right?

[00:08:20] Speaker 01:
But the court does say that the benefit of the bargain theory, you have to do more.

[00:08:25] Speaker 01:
So do you think the court may have understood that more as characterizing elements of the claim and less of outstanding?

[00:08:32] Speaker 04:
That's my reading, Judge.

[00:08:33] Speaker 04:
I mean, Your Honor, that's how I interpret what the lower court was doing.

[00:08:38] Speaker 04:
I mean, we did not have the benefit of oral argument in that case.

[00:08:41] Speaker 04:
So we have no back and forth with the court to relate to you about what the questions were.

[00:08:48] Speaker 01:
But even if the district court didn't address it robustly or it wasn't litigated precisely, we still have an obligation to consider it, right?

[00:08:59] Speaker 04:
As an obligation, I'm not sure you have your obligated to.

[00:09:01] Speaker 04:
I certainly, you certainly are able to consider it and do with it what you will.

[00:09:06] Speaker 04:
I don't know.

[00:09:06] Speaker 04:
I don't think I would consider you obligated to address it in your opinion.

[00:09:11] Speaker 04:
I think you could simply remand this case back to have a decision on the 12b6 issue and leave the 12b1 issue open for the court to then bring it back up again and make a further record so that this court would have an understanding of what that record is.

[00:09:25] Speaker 04:
So if we're going to make a decision on standing, that we actually have a lower court that hears arguments on standing, that we brief standing, as opposed to have a mention and an opinion from the lower court, this somewhat refers to standing, but in conjunction with the 12b6.

[00:09:40] Speaker 04:
So I think the lower court opinion is confusing, frankly.

[00:09:44] Speaker 01:
You think that there's facts that are relevant to the standing determination?

[00:09:47] Speaker 04:
I do judge.

[00:09:48] Speaker 04:
I think that there are other facts that would be relevant to a standing determination.

[00:09:52] Speaker 04:
If you ask me what those are right now, I'm blank on one to anticipate your second question, but I do think that there will be factual developments that would be necessary to relay and to put in the record so that when this court does make a decision on standing, which is a hugely important issue as you all are all aware,

[00:10:11] Speaker 04:
I think it would be incumbent upon us to make sure that the record is replete with all of the evidence and all the facts and everything that we could possibly do to, you know, then issue precedent on standing.

[00:10:23] Speaker 04:
Such a, you know, monumental issue is standing and we all know standing has become one of the, you know, the favorite

[00:10:33] Speaker 04:
appellate issues of the day.

[00:10:36] Speaker 04:
It's certainly one of the ones that we in class action work counter on a frequent and regular basis.

[00:10:41] Speaker 04:
But again, when we were talking with the court, when we were doing the briefing below, when we are reading the court's opinions and the court's leading C.J.

[00:10:52] Speaker 04:
Graal's amendment, we're not thinking the court was grappling with standing.

[00:10:56] Speaker 00:
And so, yeah.

[00:10:56] Speaker 00:
And I think... A moment ago, you said that Ms.

[00:10:58] Speaker 00:
Hudson bought a worthless product, but how can I...

[00:11:02] Speaker 00:
glean that from the record when my understanding is she purchased the boppy pillow, enjoyed the use of it for five months without incident, and then essentially tucked it away for a couple years until there was a recall, and then she got a refund.

[00:11:15] Speaker 00:
So how was that a worthless product for her?

[00:11:19] Speaker 04:
Worthless products.

[00:11:20] Speaker 04:
So, Judge, she's not allowed to use it anymore.

[00:11:22] Speaker 04:
So while I might have had use of it, it's just like purchasing a car.

[00:11:26] Speaker 04:
If I buy a car today and I drive it for three months and then I park it in my garage for a feeling of I'm taking the bus now or I'm riding a bike to get exercise, whatever reason, because I'm not using the product doesn't mean I didn't pay for it.

[00:11:39] Speaker 04:
Doesn't mean it's not my money that she used to pay for it and I'm storing that product.

[00:11:43] Speaker 04:
She could have had subsequent children.

[00:11:44] Speaker 04:
She could have used it for her grandchildren.

[00:11:46] Speaker 04:
She could have given it to a niece and aunt.

[00:11:47] Speaker 04:
It had value until the CPSC came out in conjunction with Boppy.

[00:11:53] Speaker 04:
However, you want to read the record below as to whether or not it was a voluntary recall, a mandatory recall.

[00:11:58] Speaker 04:
Boppy's web page I think sums it up where they say we worked with the CPSC in this recall.

[00:12:03] Speaker 00:
But even on the benefit of the bargain theory, why doesn't the $9 refund reflect market value that she

[00:12:10] Speaker 00:
was able to use it safely for five months.

[00:12:13] Speaker 00:
Therefore, rather than the market value being the $30 she paid, the true market value was only $21.

[00:12:18] Speaker 00:
So even if it's worth zero, even under your theory of benefit of the bargain, why doesn't the refund factor into that?

[00:12:25] Speaker 04:
Because the refund is inadequate in this situation, Judge.

[00:12:28] Speaker 04:
And we did not get a chance to develop that factual record below.

[00:12:32] Speaker 04:
And I see my time has expired.

[00:12:38] Speaker 02:
Thank you.

[00:12:38] Speaker 02:
Good morning.

[00:12:39] Speaker 02:
May it please the court?

[00:12:40] Speaker 02:
My name is Sherry Clevens of Dentons on behalf of the Boppy Company.

[00:12:45] Speaker 02:
As the district court correctly perceived, Ms.

[00:12:47] Speaker 02:
Hudson personally experienced no tragedy and no deception.

[00:12:52] Speaker 02:
This court should affirm dismissal of her lawsuit for three reasons.

[00:12:56] Speaker 02:
First, Ms.

[00:12:56] Speaker 02:
Hudson asserts economic injury because she alleges that she would not have purchased or paid as much for the newborn lounger if its safety risks had been disclosed.

[00:13:07] Speaker 02:
But the marketing statements that she relies on from Boppy's website

[00:13:11] Speaker 02:
were not a part of the bargain because she never saw them prior to her purchase.

[00:13:15] Speaker 02:
And the product warnings that were a part of the bargain prominently disclosed the risks on the packaging and the labels.

[00:13:22] Speaker 02:
Therefore, she has no economic harm.

[00:13:25] Speaker 02:
Second, Ms.

[00:13:26] Speaker 02:
Hudson is attempting to pivot to a design defect theory, but the law of this court forbids her from doing so for the first time on appeal.

[00:13:35] Speaker 02:
And her second amended complaint does not state a design defect claim.

[00:13:38] Speaker 02:
And finally, Ms.

[00:13:39] Speaker 02:
Hudson lacks standing to bring suit.

[00:13:43] Speaker 02:
With respect to the economic injury, Ms.

[00:13:45] Speaker 02:
Hudson claims that because she purchased the product without full knowledge of the risks, she has been economically injured.

[00:13:53] Speaker 02:
But cases cited by both parties in this case show that the context of the communications at issue is crucial to the overall issue of the false or misleading elements in the marketing.

[00:14:07] Speaker 02:
Here, the total marketing and context of that marketing shows, number one, that the four statements that were at issue and which were located on BAPI's website were not seen by Ms.

[00:14:20] Speaker 02:
Hudson prior to her purchase of the product.

[00:14:22] Speaker 02:
In fact, the BAPI pledge, which we heard from counsel about, was not even put on that website until several years after the product had been purchased.

[00:14:31] Speaker 02:
So she could not have seen those marketing statements and they were not a part of what she believed to be

[00:14:37] Speaker 02:
the benefit of her bargain with the company.

[00:14:40] Speaker 02:
But two statements do fall within the correct temporal frame, right?

[00:14:44] Speaker 02:
They do.

[00:14:44] Speaker 02:
And those statements, when taken in context and compared against the overall marketing, which would include the disclaimers and warnings on the package themselves,

[00:14:53] Speaker 02:
show that there was no misleading statement, and the importance of the warnings cannot be understated.

[00:14:59] Speaker 02:
The warnings were located both on the outside package of the product, which she would have seen when she went in to purchase the product at Walmart,

[00:15:08] Speaker 02:
She also had warnings that were located on the inside of the packaging, i.e.

[00:15:13] Speaker 02:
on the product itself.

[00:15:14] Speaker 02:
As long as that tag was never removed, those warnings were always visible to the consumer.

[00:15:19] Speaker 02:
Those warnings stated clearly and prominently that the product, if misused and used for sleep, carried with it a risk of positional asphyxia and suffocation, and provided advice to the consumer about how to use it properly to avoid risk of death or injury.

[00:15:35] Speaker 02:
And so when you look at the totality of the circumstances, those two statements that say that BAPI is committed to safety doesn't undermine or in fact conflict with the statements in the warnings and disclaimers located on the package itself.

[00:15:51] Speaker 02:
And that is very consistent with a number of the cases that we cited in our brief.

[00:15:55] Speaker 02:
So for example, the Avondia case from the Third Circuit involves a diabetes drug where the packaging for the product states on the package that it is safe and effective.

[00:16:06] Speaker 02:
It also on the backside or inside in the product slip contains information about the potential risks of using that product, including side effects.

[00:16:14] Speaker 02:
And the court in that case concludes that it's not actionable where the safety warnings contain detailed information about potential risks.

[00:16:22] Speaker 02:
while at the same time the packaging states that it is safe and effective.

[00:16:26] Speaker 02:
The difference between our case and the Avantia case are significant, and that is that our safe and effective statements were located on a website not seen by this purchaser.

[00:16:36] Speaker 02:
So it's even a step removed from the facts in Avantia, which the court there found did not create a risk of false or misleading advertising.

[00:16:49] Speaker 02:
You can see a reproduction of the warning labels in our briefs at page 12 or 23.

[00:16:54] Speaker 02:
They're in the record.

[00:16:56] Speaker 02:
They show bright orange warning icons, package warnings as I said on the outside and on the package itself, and instructions about how it could be used.

[00:17:04] Speaker 02:
Now, one of the things that we heard from opposing counsel is that he didn't have an opportunity, Ms.

[00:17:10] Speaker 02:
Hudson didn't have an opportunity to fully develop the record as to her injury.

[00:17:15] Speaker 02:
But the allegations in the complaint provide more than enough basis for this court to conclude that there would not be, that Ms.

[00:17:24] Speaker 02:
Hudson would not be able to state a claim under Rule 12B6.

[00:17:27] Speaker 01:
So counsel, I know you said you were going to get to standing as the third part of your presentation, but I'm trying to understand how to read the district court's order.

[00:17:35] Speaker 01:
And maybe you could help me with that.

[00:17:38] Speaker 01:
Is it your view that the district court passed on standing in this case?

[00:17:42] Speaker 01:
No, it's my view that by passed on, do you mean skipped over it?

[00:17:46] Speaker 01:
No, no, I'll be more precise.

[00:17:47] Speaker 01:
Do you think the district court ruled on standing in this case?

[00:17:50] Speaker 02:
I do.

[00:17:50] Speaker 02:
I think that first of all, it was fully briefed by us in our briefs at the lower court.

[00:17:55] Speaker 02:
So it's part of the record, and the court does conclude in the opinion that under the benefit of the bargain theory that plaintiff has not met its burden of establishing standing.

[00:18:05] Speaker 01:
So if we're to read the district court as having concluded that Miss Hudson can't get into court because she doesn't satisfy the injury element of the standing inquiry, what are we to make of the rest of the opinion or the rest of the order?

[00:18:21] Speaker 01:
I mean, if there's no standing, why reach the

[00:18:25] Speaker 01:
merits.

[00:18:26] Speaker 02:
I view it as an alternative conclusion.

[00:18:28] Speaker 02:
In other words, that there's no standing and at the same time the court also concludes that the case can be dismissed under Rule 12 v.

[00:18:33] Speaker 02:
6.

[00:18:34] Speaker 01:
Okay.

[00:18:35] Speaker 01:
Could you address traceability?

[00:18:38] Speaker 01:
Your argument's focused on the absence of injury.

[00:18:40] Speaker 01:
You briefed traceability to us.

[00:18:44] Speaker 01:
Could you maybe elaborate on whether there is a problem for Ms.

[00:18:49] Speaker 01:
Hudson here to show traceability for standing purposes?

[00:18:52] Speaker 02:
Yes, Your Honor.

[00:18:54] Speaker 02:
Allegation and the argument asserts that Ms.

[00:18:59] Speaker 02:
Hudson has standing because she purchased the product and used the product.

[00:19:03] Speaker 02:
That is not enough to establish traceability because she has to establish that she was injured by the marketing that creates this express or implied warranty that she relies on in her claims.

[00:19:14] Speaker 02:
So the very fact that she never saw any of the warnings is significant.

[00:19:18] Speaker 02:
Now, in the lower court, we had an obligation set by the court

[00:19:23] Speaker 02:
to meet and confer at length prior to the filing of our motion to dismiss.

[00:19:27] Speaker 02:
And in those meet and confers, two of them which occurred, both after the original complaint and after the first amended complaint, we identified this issue and this pleading defect and noted that the fact that Ms.

[00:19:38] Speaker 02:
Hudson had not seen these marketing materials prior to the purchase essentially rendered her claim

[00:19:47] Speaker 02:
unsuccessful under Rule 12b6 because she couldn't establish an injury.

[00:19:51] Speaker 02:
We also identified the 12b1 issue.

[00:19:54] Speaker 01:
But you didn't separately move under 12b1?

[00:19:57] Speaker 02:
We did not.

[00:19:57] Speaker 02:
We briefed it in our reply, but yes, we did not initially move.

[00:20:02] Speaker 02:
The amended pleadings that were then filed by Ms.

[00:20:05] Speaker 02:
Hudson failed to address those issues.

[00:20:07] Speaker 02:
So I read that as she was unable to assert that she had reviewed those, doesn't appear in any of her pleadings.

[00:20:13] Speaker 02:
She's now repled twice to

[00:20:15] Speaker 02:
the point of a second amended complaint.

[00:20:17] Speaker 02:
So the idea that we should go back down to further develop a record, we don't need a further developed record.

[00:20:23] Speaker 02:
The allegations in and of themselves establish both a lack of standing and a lack of injury.

[00:20:28] Speaker 00:
Counsel, can I ask, though, you were saying that the lack of pleading traceability defeats her claim, but to be more specific,

[00:20:36] Speaker 00:
You think that applies to all four claims because the first three claims deal with the warranties, but the fourth one's unjust enrichment.

[00:20:43] Speaker 00:
So why would that be, or is that, I guess, a separate analysis for traceability?

[00:20:48] Speaker 02:
I think it's the same analysis, Your Honor, because ultimately she asserts an economic injury arising from what she says is a product that is worth less than she believed that it was.

[00:21:00] Speaker 02:
And if you look ultimately at

[00:21:02] Speaker 02:
what the allegations are.

[00:21:14] Speaker 02:
sort of an alternative way of pleading the same point, which is that Bobby got the benefit of her purchase even though she would not have paid that value if she had understood the risks.

[00:21:24] Speaker 02:
And the problem with her argument is that she did understand the risks.

[00:21:28] Speaker 02:
The warnings included on the package fully disclosed that issue.

[00:21:31] Speaker 02:
And in the complaint,

[00:21:33] Speaker 02:
She goes on even further to describe both the recall and the infant injuries that occurred allegedly as a result of the product.

[00:21:41] Speaker 02:
And when you dig into what is attached to the complaint, including the articles that are linked in her complaint, I think it's footnote two, that article describes that the way in which those infants were injured were through

[00:21:55] Speaker 02:
use of the product that was inconsistent with the product warnings.

[00:21:59] Speaker 02:
And so she's not establishing even in the allegations that a proper use of this product created a risk that she didn't understand.

[00:22:07] Speaker 02:
Ultimately, if there's a risk of this product, it is by consumers misusing it in a way that is inconsistent with the product labels and warnings.

[00:22:15] Speaker 02:
And that is all factored into her bargain based on the fact that she knew all of that information from the product warnings before she purchased

[00:22:25] Speaker 03:
So is there no plaintiff across this land who could make a viable claim on this so long as they received the warning on the benefit of the bargain?

[00:22:35] Speaker 03:
In other words, counsel says she just wouldn't have bought it.

[00:22:39] Speaker 03:
And that's a question.

[00:22:40] Speaker 03:
Who knows if she would have bought it?

[00:22:42] Speaker 03:
You're saying even if she wouldn't have bought it, that doesn't matter because the warnings were there.

[00:22:50] Speaker 02:
If the facts asserted by a different plaintiff were the same, I would agree that that plaintiff would be equally unsuccessful.

[00:22:56] Speaker 02:
If in fact, we had a plaintiff who had reviewed these warnings in advance, that might create standing and perhaps that plaintiff would be able to establish or at least a ledge, I should say, an injury.

[00:23:08] Speaker 02:
I would contend if we were to go into the merits that they would nonetheless fail on the claim at the ultimate stage because the

[00:23:17] Speaker 02:
warnings combined with the marketing doesn't create a falsity and doesn't create a warranty that is violated by the company.

[00:23:23] Speaker 02:
But if you're talking about whether or not such a plaintiff could survive a 12b6 motion, I think it's possible.

[00:23:29] Speaker 02:
But those are not the facts here, and this plaintiff cannot under the facts on this record.

[00:23:34] Speaker 03:
The one reference that I see to standing is kind of a casual drive-by almost, and nothing at the end of the opinion explaining what's happening, what's being ordered, even mentioned standing.

[00:23:47] Speaker 03:
This case seems awfully, the question that the district court was looking at to say, perhaps, was say, no standing, is awfully intertwined with the merits, it seems to me.

[00:23:59] Speaker 03:
Is there a case like that, where an appellate court on this sort of a record with that kind of an intertwined merits has said no standing?

[00:24:12] Speaker 02:
I can't think of one, Your Honor.

[00:24:13] Speaker 02:
So I'm not sure that there is.

[00:24:15] Speaker 03:
Then why would we not send it back and say, Judge, we read your order and we see this one sentence, we're unsure what it means.

[00:24:22] Speaker 03:
We don't want to proceed if there's no standing.

[00:24:24] Speaker 03:
The rest of it's irrelevant.

[00:24:26] Speaker 03:
And so please advise.

[00:24:28] Speaker 02:
I would agree that there's no standing.

[00:24:32] Speaker 02:
I mean, I think that that's a threshold issue.

[00:24:34] Speaker 02:
I agree on that.

[00:24:35] Speaker 02:
At the same time, I think that this court was proper in determining that the case also fails under 12B6.

[00:24:41] Speaker 01:
Council, I just want to follow on Judge Phillips' question.

[00:24:46] Speaker 01:
Is it possible that remand wouldn't necessarily be useful here if we're only confined to the standing allegations in the complaint?

[00:24:55] Speaker 01:
Is it your position that we are looking to the four corners of the complaint to discern standing at this stage?

[00:25:01] Speaker 01:
That is correct.

[00:25:02] Speaker 01:
And is that the same posture that the district court would be in if we remanded?

[00:25:05] Speaker 02:
It is.

[00:25:06] Speaker 02:
And therefore, I think this court can conclude that there's no standing in the case rather than remanding it back for reconsideration of an issue that is plain

[00:25:14] Speaker 02:
based on the allegations set forth in the complaint.

[00:25:19] Speaker 02:
There are no further questions.

[00:25:20] Speaker 02:
I thank the court for its time.

[00:25:22] Speaker 00:
Actually, Counsel, I have one more just to help me on this.

[00:25:24] Speaker 00:
Sure.

[00:25:24] Speaker 00:
You mentioned before that the standing arguments were developed fully in your briefs in the record below.

[00:25:29] Speaker 00:
Can you just point my attention to what specific pleading that you think develops this argument?

[00:25:35] Speaker 02:
Yes, Your Honor.

[00:25:36] Speaker 02:
Just give me one second to find it.

[00:25:39] Speaker 02:
It's in the record in the appendix at 42 to 44.

[00:25:43] Speaker 02:
and 70 to 72.

[00:25:46] Speaker 02:
There was no response to those from Ms.

[00:25:48] Speaker 02:
Hudson.

[00:25:49] Speaker 03:
Can you summarize what it says?

[00:25:51] Speaker 02:
It addresses the traceability issue and argues that because she did not see the marketing statements at issue, that she did not have standing to pursue the claim.

[00:26:01] Speaker 00:
Did you argue lack of injury in fact to the district court?

[00:26:04] Speaker 02:
I don't recall, but I believe that we did.

[00:26:08] Speaker 02:
Thank you.

[00:26:09] Speaker 04:
Thank you.

[00:26:10] Speaker 04:
May it please the court.

[00:26:11] Speaker 04:
I think that your honors have hit the nail on the head when you're looking at this issue and whether or not you're going to issue an opinion that's going to go forth with presidential value.

[00:26:20] Speaker 04:
The record is simply just deficient for us to decide a standing issue in this case.

[00:26:26] Speaker 04:
The motion that was made was a 12b6 motion.

[00:26:29] Speaker 04:
It wasn't a 12b1 motion.

[00:26:31] Speaker 04:
We don't have anything from the court other than, as your honor says, a drive-by mention of the 12b1 standing issue.

[00:26:39] Speaker 04:
Certainly when I was dealing with the amended complaints, when we are going through the documents and going through what the court has asked us and hinted at what it's looking at, I viewed this as a warnings case.

[00:26:53] Speaker 04:
I viewed this as the safety issue.

[00:26:57] Speaker 04:
I did not view the standing as something that was relevant.

[00:27:01] Speaker 04:
Frankly, I do not even recall if I asked Ms.

[00:27:03] Speaker 04:
Hudson the question about, did you see these warnings before you purchased the product?

[00:27:07] Speaker 04:
It just didn't occur to me.

[00:27:09] Speaker 04:
I mean, certainly I could have asked her that if she said that, put it in the pleading.

[00:27:13] Speaker 04:
We would have made it past the 12b1 standard essay.

[00:27:15] Speaker 04:
We would have been at the 12b6, which we probably would be here based on what the court ruled below.

[00:27:20] Speaker 04:
I think we'd probably still be here.

[00:27:22] Speaker 04:
But I think the proper procedure here is to remand to the lower court to give us a clear indication of what it is the judge is ruling on, what it is that's really tossing the case on, and what it ended up allowing me the opportunity to

[00:27:37] Speaker 04:
amend that complaint to allege that language if in fact Ms.

[00:27:40] Speaker 04:
Hudson did have some connection with the warnings or did see something in connection from BAPI because frankly, we just didn't develop that in the lower record.

[00:27:48] Speaker 04:
So I think it would be in the interest of judicial thoroughness, I think we should do that.

[00:27:53] Speaker 00:
Counsel, what is our standard review here?

[00:27:55] Speaker 00:
DeNova, Your Honor.

[00:27:56] Speaker 00:
So if it's a DeNova review and we're just looking at the complaint, again, even if Judge Domenico were to do that and evaluate standing, it would come back up, wouldn't we just do the same analysis ourselves?

[00:28:07] Speaker 04:
Denovo on a 12b6 or 12b1.

[00:28:09] Speaker 04:
So, I mean, that's the real question, I think, is whether or not we get, which Denovo, which one are you reviewing, Denovo, 12b6 or 12b1?

[00:28:18] Speaker 04:
And I think that's where we have the inquiry that needs to be placed with the lower court.

[00:28:22] Speaker 04:
And, you know, in my opinion, allowing an amended complaint at that lower court to tee up all the issues so that this court can then properly issue a procedural, precedential ruling on the standing issue.

[00:28:32] Speaker 04:
Thank you, Honors.

[00:28:33] Speaker 03:
Thank you, Counsel.

[00:28:34] Speaker 03:
Thank you for your arguments.

[00:28:35] Speaker 03:
The case is submitted.

[00:28:36] Speaker 03:
Counsel are excused.