Amado v. The Procter & Gamble Co.

CASE NAME: Amado v. The Procter & Gamble Co.

TYPE OF CASE: False advertising; unfair competition

COURT: U.S. Northern District

JUDGE(S): Judge Maxine M. Chesney

DEFENSE LAWYERS: Covington & Burling LLP, Henry Liu, Cortlin H. Lannin, Amy S. Heath

PLAINTIFF LAWYERS: Fitzgerald Joseph LLP, Jack Fitzgerald, Paul K. Joseph, Melanie Persinger, Trevor M. Flynn, Caroline S. Emhardt

Class actions are rarely ended as early as the motion to dismiss stage, but that's what a Covington & Burling LLP team achieved when plaintiffs alleged that The Procter & Gamble Co.'s popular fiber supplement Metamucil is falsely advertised as beneficial to health because the sugar added to some versions of the product is harmful and negates any health benefits.

Their complaint targeted several representations on the product label and cited more than 40 scientific studies about the negative health effects of sugar and the effectiveness of fiber -- making dismissal seemingly an uphill battle. Amado v. The Procter & Gamble Co., 3:22-cv-05427 (N.D. Cal., filed Sept. 22, 2022).

"Part of the reason plaintiff lawyers love these big false advertising cases is because they can be difficult for the defense to get rid of early," said Covington's Cortlin H. Lannin, whose team included Amy S. Heath and Henry Liu.

The claims in such cases often turn on whether the product statements alleged to be false are, in fact, legitimate claims about how the nutrient or dietary ingredient in question is intended to affect the normal structure or function of the human body. Structure/function claims, as they are known, are permitted by federal law.

In the Metamucil case, the defense contended that the claims were legitimate and the plaintiffs' state law claims were preempted; the plaintiffs argued that the challenged claims do not fall in the structure/function category and preemption does not apply.

That clash of views usually prompts courts to call for discovery, eliminating early dismissal. "Judges are averse to kicking them early, and the law as it has developed in California encourages the mindset that more discovery is a good thing," Lannin said.

Heath said the defense team had recent case law on its side, however. "We made good use of a 9th Circuit opinion that affirmed dismissal of a similar case at the summary judgment stage, and we advanced it to the motion to dismiss stage," she said, referring to Greenberg v. Target Corp., 19-16699 (9th Cir., op. filed Jan. 13, 2021).

Also favoring more discovery was the large number of scientific studies cited in the complaint. "There were dozens of dense studies, and that looked like a lot of evidence," Lannin said. "We argued they were all off point, and Judge Chesney, to her immense credit, looked hard at them. She did the work, put the plaintiffs to their burden and agreed with us that there was no evidence our claims were false."

Plaintiff attorney John J. (Jack) Fitzgerald did not respond to a message seeking comment.

--John Roemer