Facts

On July 27, 2020, Plaintiff Anthony Moreno filed a putative class action against Vi-Jon LLC after purchasing its hand sanitizing products, which purport to kill all or almost all germs on hands. In his Fourth Amended Complaint, Moreno alleged that the claims regarding the products' germ-killing power were false and misleading and brought causes of action for: (1) violation of California's Unfair Competition Law (UCL); (2) violation of California's False Advertising Law ("FAL"), (3) violation of California's Consumer Legal Remedies Act ("CLRA"), (4) breach of express warranty; and (5) quasi-contract.

Plaintiff appealed the dismissal of the Third Amended Complaint, and the Ninth Circuit reversed in part and vacated and remanded in part. Upon remand to the district court, Vi-Jon moved to dismiss for the fifth time, contending that Moreno had still not sufficiently pled a plausible claim for relief under the reasonable consumer standard of the CLRA, FAL and UCL. To satisfy this test, a plaintiff must show that members of the public are likely to be deceived by the defendant's claims. This requires more than a mere possibility that a label might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Rather, it requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.

Result

The court granted the motion to dismiss, explaining that Moreno failed to plausibly allege that a reasonable consumer would be misled by the front label on Defendant's Products to believe the Products kill 99.99% of all germs. Given Moreno's multiple prior amendments, the court determined that further amendment of the pleadings would be futile, and it dismissed the complaint without leave to amend.

Other Information

Plaintiff has appealed the decision to the Ninth Circuit Court of Appeals, where the case remains pending.