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Ryan Edmunson, On Behalf of v. the Procter & Gamble Company

May 17, 2011

RYAN EDMUNSON, ON BEHALF OF HIMSELF, ALL OTHERS SIMILARLY SITUATED AND THE GENERAL PUBLIC, PLAINTIFF,
v.
THE PROCTER & GAMBLE COMPANY,
DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [Doc. No. 9]

Presently before the Court is Defendant's motion to dismiss Plaintiff's complaint. [Doc. No. 9.] For the reasons stated below, the Court GRANTS Defendant's motion.

BACKGROUND

This is a putative class action involving two models of razor blade cartridges manufactured and marketed by Gillette, a division of The Proctor & Gamble Company ("P&G" or "Defendant"). [Compl. ¶ 8; Def.'s Mot. to Dism. ("MTD"), at 2 n.1.] Both razor blade cartridges fall within Defendant's "Fusion" line of razor systems: "Fusion" ("Fusion manual") and "Fusion Power."

A razor system includes a handle and razor cartridges. Handles are sold with one or more razor cartridges, and separate cartridges are sold for refill purposes. The Fusion Power handle includes a battery-operated mechanism that causes the handle and cartridge to vibrate during use. The Fusion manual handle does not include such a mechanism and does not vibrate during use.

Both the Fusion manual and Fusion Power cartridges work with either Fusion handle. The razor blades in the Fusion Power cartridges are coated with a patented, thin uniform telomer. [See Compl. ¶¶ 14-16; Def.'s MTD, at 3 & Ex. 2 (Patent No. 5,985,459 (the "'459 Patent")).] Fusion manual razor blades are also coated with telomer, but the coating on the Fusion manual razors is thicker and less uniform in thickness than the coating on the Fusion Power razors. [Def.'s Reply, at 2; Compl. ¶ 17.] The '459 Patent claims the thin uniform telomer coating "significantly lower[s] initial cutting forces which correlates with a more comfortable first shave." ['459 Patent, Abstract, at 1.] Plaintiff alleges the thicker telomer coating on the Fusion manual razors is "pushed back during the first several shaving strokes," and there is thus "no material difference in comfort or performance between the Fusion manual and Fusion Power cartridges." [Id. ¶ 17.] Plaintiff further alleges that, "to the extent there may be an immaterial, but nonetheless measurable [difference between the two blades], it disappears after the first shave and only applies when shaving a dry beard." [Compl. ¶ 16.]

The crux of Plaintiff's claims is that, since introducing the Fusion products in January 2006 and through the present, Defendant has engaged in deceptive advertising to suggest (1) the Fusion Power cartridges are materially different from, and superior to, the Fusion manual razors, and (2) the Fusion Power handles require use of Fusion Power cartridges. Defendant's advertising induces consumers to purchase the Fusion Power cartridges, a four-pack of which cost approximately 20% more than a four-pack of the Fusion manual cartridges. [Id. ¶ 2.]

Plaintiff points to several practices that allegedly deceive consumers as described above. The expensive blades are named "Fusion Power," which corresponds with the battery-operated "Fusion Power" handles. The two Fusion systems are color-coded to match the respective handles and cartridges: Fusion Power handles, cartridges, and packaging are orange, while portions of the Fusion manual handles, cartridges, and packaging are royal blue. Additionally, the packaging for the Fusion Power cartridges explicitly states that "Fusion Power cartridges can be used with all Fusion [handles]," while the packaging for the Fusion manual cartridges states that "[a]ll Fusion cartridges can be used with all Fusion [handles.]"*fn1 The Fusion Power cartridges are prominently labeled with the "Power" moniker, which corresponds with the Fusion Power handles. The labels for the Fusion Power cartridges state the Power blades have "a patented blade coating for incredible comfort," but the packages for the Fusion manual blades do not disclose that they are also coated with telomer. Fusion Power cartridges sell for a retail price approximately 20% higher than the Fusion manual cartridges, which itself suggests a meaningful difference between the two. When Defendant sells the Fusion Power handles, it gives the consumer a Fusion Power cartridge in the handle, but not a Fusion manual cartridge. [Pl.'s Opp'n, at 7-8 & n.5; Compl. ¶¶ 2-3, 12-18.]

Named Plaintiff Ryan Edmunson alleges he was exposed to Defendant's deceptive advertising claims, relied on those claims when he purchased Fusion Power cartridges, and "suffered injury in fact and lost money as a result." [Compl. ¶ 7.] Plaintiff's complaint raises three causes of action:

(1) Violations of California's Unfair Competition Law ("UCL"), (2) Violations of California's Consumers Legal Remedies Act ("CLRA"), and (3) Breach of Express Warranty.*fn2

LEGAL STANDARD

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 731 (9th Cir.2001). The court must accept all factual allegations pleaded in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Iqbal, 129 S. Ct. at 1949. In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Regardless of the title given to a particular claim, allegations grounded in fraud are subject to Rule 9(b)'s pleading requirements. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Where a plaintiff alleges a "unified course of fraudulent conduct" and relies entirely on that conduct as the basis for a claim, the claim is "grounded in fraud," ...


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