Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ebner v. Fresh, Inc.

United States Court of Appeals, Ninth Circuit

March 17, 2016

ANGELA EBNER, Plaintiff-Appellant,
v.
FRESH, INC., a Delaware Corporation, Defendant-Appellee

         Argued and Submitted January 11, 2016, Pasadena, California

          Appeal from the United States District Court for the Central District of California. DC No. 8:13 cv-00477 JVS-RNB. James V. Selna, District Judge, Presiding.

          SUMMARY[*]

         California Law

         The panel affirmed the district court's Fed.R.Civ.P. 12(b)(6) dismissal of a plaintiff's putative consumer class action alleging that cosmetics and skin care products manufacturer Fresh, Inc. deceived consumers about the quantity of lip balm in its Sugar Lip Treatment product line.

         The panel held that under California law, plaintiff has not alleged, and cannot allege, facts to state a plausible claim that the Sugar label was false, deceptive, or misleading; and thus, the district court did not err in dismissing the label-based claims. The panel also held that because plaintiff cannot plausibly allege that Sugar's design and packaging was deceptive, the district court did not err in dismissing the packaging-based claims. The panel further held that the district court correctly concluded that the First Amended Complaint failed to allege a violation of the California Fair Packaging and Labeling Act, Cal. Bus. & Prof. Code § 12606(b).

         The panel held that any further amendment of plaintiff's complaint would be futile. Finally, the panel held that because the First Amended Complaint failed to state a claim under any of the California statutes -- the Unfair Competition Law, the Consumer Legal Remedies Act, the False Advertising Law, and the Fair Packaging and Labeling Act, the unjust enrichment cause of action was mooted.

         Henry Alexander Iliff (argued), Dorsey & Whitney LLP, New York, New York; James E. Howard, Dorsey & Whitney LLP, Seattle, Washington; Adam H. Springel, Springel & Fink LLP, Costa Mesa, California, for Plaintiff-Appellant.

         Stephen R. Smerek (argued), Drew A. Robertson, and Shawn Rieko Obi, Winston & Strawn LLP, Los Angeles, California, for Defendant-Appellee.

         Before: Jerome Farris, A. Wallace Tashima, and Jay S. Bybee, Circuit Judges. Opinion by Judge Tashima.

          OPINION

         A. Wallace Tashima, Circuit Judge.

         Angela Ebner (" Plaintiff" ) alleges that cosmetics and skin care products manufacturer Fresh, Inc. (" Fresh" ) deceived consumers about the quantity of lip balm in its Sugar Lip Treatment (" Sugar" ) product line. Although Sugar's label accurately indicates the net weight of included lip product, the tube design uses a screw mechanism that allows only 75% of the product to advance up the tube. A plastic stop device prevents the remaining 25% from advancing past the tube opening. Each Sugar tube contains a weighted metallic bottom and is wrapped in oversized packaging. Plaintiff brought a putative consumer class action against Fresh, alleging that Fresh's label, tube design, and packaging are deceptive and misleading. The district court granted Fresh's Rule 12(b)(6) motion to dismiss Plaintiff's First Amended Complaint (" FAC" ) with prejudice. We affirm.

         I.

         We accept as true the well-pleaded factual allegations in the complaint. Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). According to the FAC, Sugar is a lip treatment that comes in a variety of flavors and tints and sells in retail stores and on the internet for approximately $22.50 to $25.00 per unit. Over the past four years, Plaintiff, a California resident, has purchased Sugar at various locations in Southern California.

         Sugar comes in an oversized dispenser tube that uses a screw mechanism to push the lip product to the top of the tube. The tube is packaged and sold in a large cardboard box. Both the tube and the cardboard box have labels indicating the net weight of the included lip product. For an " original" size tube, the indicated product weight is " 4.3g e 0.15 oz." ; for the " mini" size, the label reads " 2.2.g e 0.08 oz." The FAC does not allege that the Sugar tube contains less than the stated quantity of product. Rather, it alleges that the stated product quantity is false and misleading because only a portion of that product is reasonably accessible to the consumer. Specifically, the tube's screw mechanism permits only 75% of the total lip product to advance past the top of the tube. A plastic stop device prevents the remaining 25% of the product " from being accessible to the consumer in its intended manner or any other reasonable manner." Plaintiff alleges that the " intended manner" of application is to apply the product from the tube directly to the lips. By contrast, other lip balms using a dispenser tube, such as Burt's Bees, make " all or more" of the advertised product weight accessible to the consumer.

         Plaintiff alleges that Sugar's " vastly oversized tubes and boxes" create the misleading impression that each unit has a larger quantity of lip product than it actually contains. Each Sugar tube also contains a 5.35 gram metallic weight that is concealed at the base of the tube. Collectively, the tube, cardboard box, weighted bottom, and 4.3 grams of lip product in an original tube of Sugar weigh approximately 29 grams. Plaintiff contends that as a result of Fresh's labeling, design, and packaging practices, she ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.