[00:00:00] Speaker 03:
Thank you, Your Honor.

[00:00:03] Speaker 01:
Thank you both.

[00:00:04] Speaker 01:
We have one remaining case on the calendar, Moreno versus Vijon.

[00:00:07] Speaker 01:
It is case number 23-55631.

[00:00:57] Speaker 00:
Good morning, and may it please the court.

[00:00:59] Speaker 00:
Naomi Specter on behalf of plaintiff appellant Anthony Moreno.

[00:01:03] Speaker 00:
I'm going to attempt to reserve five minutes of my time for a battle.

[00:01:07] Speaker 00:
The district court once again committed a reversible error by dismissing plaintiff's complaint at the pleading stage.

[00:01:13] Speaker 00:
In direct contravention of established Ninth Circuit precedent under the guise of the reasonable consumer standard, the district court substituted its own unfounded fact finding for the well-plead facts of the Fourth Amendment complaint.

[00:01:27] Speaker 00:
If allowed to stand, the district court's decision will disrupt the longstanding rule eight jurisprudence of this circuit by permitting a district court to ignore and dispute the plausible facts pled.

[00:01:39] Speaker 00:
The facts of this case are straightforward.

[00:01:42] Speaker 00:
Plaintiff purchased hand sanitizer products during front label statements that say that the products killed 99.99% of germs, followed by an asterisk, which references a rear label statement that the products are effective at eliminating 99.99%

[00:01:57] Speaker 00:
of many common harmful germs and bacteria in as little as 15 seconds.

[00:02:03] Speaker 00:
Plaintiff alleges that both the front and back label statements are false as they are written and misleading to reasonable consumers.

[00:02:12] Speaker 03:
Can you address the rope?

[00:02:14] Speaker 03:
We've got these two cases that were from the same panel, the Souter case and the Robles case.

[00:02:18] Speaker 03:
Can you address those and how this case fits in that?

[00:02:21] Speaker 03:
They're not binding on this panel.

[00:02:23] Speaker 03:
But we try not to disagree.

[00:02:26] Speaker 03:
Which one of those should we follow, and why, or maybe not either one?

[00:02:33] Speaker 03:
Maybe this is a different kind of case.

[00:02:35] Speaker 00:
Certainly.

[00:02:36] Speaker 00:
So Souter versus Edgewell and Robles versus Gojo were decided three days apart.

[00:02:41] Speaker 00:
This panel should follow Souter versus Edgewell and not Robles versus Gojo because the facts of this case are akin to Souter versus Edgewell.

[00:02:52] Speaker 00:
In Robles versus Gojo, the facts are readily distinguishable because in that case, the plaintiff alleged that they believed that the product would kill all germs everywhere.

[00:03:03] Speaker 00:
In this case, as in the Souter case, the plaintiff alleges that he believed that the products would kill all germs on his hands, including common germs.

[00:03:18] Speaker 03:
It's a short—it's a MIMDISPO, so it's a short decision, but is that what the—is that what the decision turned on?

[00:03:26] Speaker 00:
It actually—so the first—the second sentence of that decision states—and this is the Ninth Circuit decision from August 3rd, 2023—because we agree that Robles fails to state a plausible claim that the reasonable consumer would be misled,

[00:03:42] Speaker 00:
into thinking the product kills 99.99% of all germs in existence, or all germs known to science, we affirm.

[00:03:49] Speaker 00:
And so the decision really does turn on that.

[00:03:54] Speaker 01:
And importantly— Does it turn on the label, or does it turn on the allegations the plaintiff made in the case?

[00:04:00] Speaker 00:
It turns on the allegations that the plaintiff made in that case.

[00:04:03] Speaker 01:
So when you said facts, I thought that was—that's what I'm trying to get at.

[00:04:06] Speaker 01:
I don't think it's distinguishable on the facts of the label.

[00:04:11] Speaker 01:
I think that case rose and fell based upon what the plaintiff alleged.

[00:04:15] Speaker 00:
I agree with you, Your Honor, and I believe, if I'm not mistaken, in that case, the plaintiff was given the opportunity to amend their complaint before the district court and declined to do so.

[00:04:24] Speaker 00:
And so the Ninth Circuit was not pleased that the plaintiff had not addressed the district court's opinion when given the opportunity to do so, and then the plaintiff had to stand on those facts.

[00:04:39] Speaker 01:
I'm not being displeased, but the plaintiff was boxed in and said, that's my complaint, and those are my allegations.

[00:04:45] Speaker 01:
But I don't think you've had a chance to answer Judge Van Dyke's question about suitor.

[00:04:49] Speaker 00:
So suitor versus Edgewell is a hand-wiped product.

[00:04:55] Speaker 00:
It also states on the front label, kills 99.99% of germs.

[00:05:00] Speaker 00:
There's no asterisks in suitor, and there is a different statement on the back label than is at issue here.

[00:05:06] Speaker 00:
However, where the cases are aligned is when you look at the pleadings.

[00:05:10] Speaker 00:
What was pled in suitor and what is pled in this case

[00:05:14] Speaker 00:
are aligned in terms of the plaintiff's allegations that the products fail to kill germs on hands and fail to kill common germs.

[00:05:23] Speaker 00:
And I would like to quote, if the court will indulge me from the suitor court,

[00:05:29] Speaker 00:
And it really drives home the point that the cases are aligned in terms of the facts of this case as pled in the facts of suitor.

[00:05:39] Speaker 00:
The court found that the allegations that the active ingredient in the hand white product cannot quote

[00:05:45] Speaker 00:
eliminate many pathogens that are commonly found on hands and responsible for millions of infections each year, plausibly suggest that a reasonable consumer could be misled by the label's assertion that the hand wipe kills 99.99% of germs.

[00:06:00] Speaker 00:
And that is referencing the allegations of the complaint.

[00:06:03] Speaker 01:
So I think that's right.

[00:06:05] Speaker 01:
So let me ask you, in this case, the product in this case on the front label, I'm going to say, and I'm going to assume it's ambiguous.

[00:06:11] Speaker 01:
And there's an asterisk, which I think is very meaningful.

[00:06:14] Speaker 01:
And so on my scorecard, I look at the back label.

[00:06:17] Speaker 01:
And the question is whether that clarifies what I think is an ambiguous front label.

[00:06:22] Speaker 01:
And the problem with the back label, it seems to me, is that it says many.

[00:06:26] Speaker 01:
Many.

[00:06:27] Speaker 01:
And I'm reading many types of germs.

[00:06:29] Speaker 01:
Why is that wrong?

[00:06:31] Speaker 01:
As opposed to just not promising very much.

[00:06:34] Speaker 00:
Right, and so when you say that it clarifies, I don't disagree with you, I agree with you.

[00:06:39] Speaker 00:
And so what Williams versus Gerber teaches us is that a back label that is clarifying confirms, right?

[00:06:46] Speaker 00:
So when Williams versus Gerber, the ingredient list confirmed the representations on the front or in that case disputed.

[00:06:53] Speaker 00:
But here, the back label does not serve as a confirmation because as alleged,

[00:06:58] Speaker 00:
the back label is of itself false and misleading.

[00:07:02] Speaker 00:
And the reason for that is because, as alleged, the products fail to kill approximately 40% of the germs that are most commonly found on hands.

[00:07:13] Speaker 00:
So when you have a statement like the one on the back label here that says effective at killing,

[00:07:18] Speaker 00:
99.99 percent of many common harmful germs and bacteria.

[00:07:22] Speaker 00:
The allegation is that consumers understand that to mean that it kills more germs than the products in fact kill.

[00:07:28] Speaker 03:
So if it doesn't kill 40 percent of the types of germs that could be on your hand, that means that, I mean, I don't know if it's necessarily true, but in theory it could kill 60 percent, right, the leftover.

[00:07:40] Speaker 03:
And that seems to be many.

[00:07:41] Speaker 03:
That even seems to be most.

[00:07:43] Speaker 03:
So I'm trying to understand why that helps you and doesn't help them, because if you give any weight to the word many.

[00:07:53] Speaker 00:
Sure.

[00:07:53] Speaker 00:
So that would be a question of fact, right?

[00:07:57] Speaker 00:
And our argument is that you can't make that determination at the pleading stage.

[00:08:03] Speaker 03:
I have a question that might help with that.

[00:08:05] Speaker 03:
So let's just change one word in the back label.

[00:08:07] Speaker 03:
If it said effective at eliminating 99% of one common harmful germ.

[00:08:14] Speaker 03:
Then it'd be pretty clear, I think, to any reader that it's talking it'll kill 99 percent of the population of one type of species, type whatever of germ, right?

[00:08:25] Speaker 03:
Do you think that statement would be misleading, effectively eliminating 99 percent of one common harmful germ?

[00:08:32] Speaker 03:
Would that be misleading if it actually did kill, you know, almost all, you know, basically effectively all of that particular species if you used it?

[00:08:40] Speaker 03:
Would that be misleading?

[00:08:42] Speaker 00:
So hypothetically speaking, if I saw the back label statement, which is not what's alleged here, would that statement ameliorate for me the falsity of the front label representation kills 99.99% of germs, and I'm a reasonable consumer?

[00:09:00] Speaker 00:
I don't think it would.

[00:09:01] Speaker 00:
The reason is because under the case law, you can't disclaim something that's false on the front with a statement on the back.

[00:09:10] Speaker 00:
That's very clearly said in the recent Ninth Circuit case in McGinnity versus Proctor and Gamble.

[00:09:16] Speaker 00:
You can't make a materially false misleading- That's not quite what McGinnity says.

[00:09:21] Speaker 01:
McGinney talks about an unambiguously false statement on the front label, right?

[00:09:25] Speaker 01:
Right.

[00:09:26] Speaker 01:
And if I think that the front label is ambiguous in this case, but not unambiguously false, it seems to me that is another slice of case.

[00:09:37] Speaker 01:
But you have an asterisk here.

[00:09:40] Speaker 01:
So I think that you easily get over the hurdle that we're going to look at the back label, hence my point, which is I think we're looking to see whether it clarifies.

[00:09:49] Speaker 01:
Do you think that?

[00:09:50] Speaker 01:
that that decision tree is wrong?

[00:09:53] Speaker 00:
Respectfully, I think that as pled, the front label statement is most important and we state that the back label statement is in small and very difficult to read font.

[00:10:04] Speaker 00:
And then we cite in our papers to Moore versus Trader Joe's, which I know has been talked about at some length with the Manuka honey, right?

[00:10:11] Speaker 00:
And the distinction between a consumer of a specialty product like Manuka honey that would be charged with scrutinizing a label

[00:10:20] Speaker 01:
consumer of an everyday low-cost good like the hand sanitizer issue here who wouldn't necessarily turn the back label over and scrutinize that label statement I think that I'd like to ask you to shift gears a little bit sure I'm just ask you as a hypothetical if the front label is ambiguous mm-hmm but not unambiguously false okay there's got an asterisk on it so we look at the back and if the back label is

[00:10:46] Speaker 01:
We look to see whether it clarifies, and since it says that this product kills many, 99% of many, then that could be read as just not promising very much, which I think would be bad for you.

[00:11:00] Speaker 01:
You have another claim that I'm not sure the district court dealt with, and it is in paragraphs 49 and 50 of your complaint, and that's where you argue that

[00:11:13] Speaker 01:
The product, the reasonable consumer would understand if you put this stuff on your hands, 99% of certain types, most common types of germs and viruses on the hand would be killed.

[00:11:24] Speaker 01:
And then in fact, that's not true in the real world because we all have stuff on our hands, oil, hand lotion, whatever.

[00:11:32] Speaker 01:
so that that's misleading, but I think for a very different way, in a very different way.

[00:11:37] Speaker 01:
What I can't figure out is whether that is, I think you pled that very clearly.

[00:11:41] Speaker 01:
I look to see in the opposition, your opposition to the motion to dismiss.

[00:11:45] Speaker 01:
Do you think the district court's order grappled with that?

[00:11:48] Speaker 00:
I don't think it did at all.

[00:11:49] Speaker 00:
I think it completely disregarded that fact.

[00:11:52] Speaker 00:
And the scientific- It's not a fact.

[00:11:55] Speaker 00:
It's an allegation.

[00:11:55] Speaker 00:
The allegation, which is supported by the scientific declaration that we submitted before the district court that the presence of things like grease or grime or sweat on your hands dramatically reduces the efficacy of hand sanitizer.

[00:12:11] Speaker 01:
Here's why I'm not sure whether the district court grappled with it or not.

[00:12:14] Speaker 01:
The district court has some

[00:12:17] Speaker 01:
statements in his order in the order to the effect of everybody knows you have to wash your hands school children know you have to wash your hands so i'm trying to figure out whether it is the with this allegation missed

[00:12:29] Speaker 01:
because this is a Fourth Amendment complaint.

[00:12:32] Speaker 01:
I think the district court was understandably frustrated to try to figure out what is your theory.

[00:12:36] Speaker 01:
And I have a lot of, as a former trial court judge, I have sympathy for the district court judge.

[00:12:41] Speaker 01:
He shouldn't have to guess.

[00:12:42] Speaker 01:
And I think he's working really hard to try to figure out what is the complaint here?

[00:12:46] Speaker 01:
What is the allegation?

[00:12:48] Speaker 01:
So Hans, I looked at the opposition to see, did you really raise it?

[00:12:51] Speaker 01:
And I think you did, but it sure wasn't the focus of your argument.

[00:12:56] Speaker 01:
So where do I look to see that he ruled on it?

[00:12:59] Speaker 00:
You think he didn't?

[00:13:02] Speaker 00:
I think that he didn't.

[00:13:04] Speaker 01:
I think that the fact- What about his allegations?

[00:13:05] Speaker 01:
Then why would he include these statements that school children know you have to wash your hands?

[00:13:09] Speaker 01:
What's that mean?

[00:13:10] Speaker 01:
What's that about?

[00:13:11] Speaker 00:
He uses that fact to ameliorate the falsity of the label representations in a vacuum.

[00:13:16] Speaker 00:
He doesn't reference back to, you have to wash your hands before you use hand sanitizer, right?

[00:13:21] Speaker 00:
He doesn't say that in the absence of having clean hands, hand sanitizer can't be effective and therefore hand washing is also important.

[00:13:28] Speaker 00:
He never makes that connection at all.

[00:13:31] Speaker 00:
He just says, everybody knows hand washing is important, period.

[00:13:35] Speaker 00:
Therefore, reasonable consumers aren't misled by these label statements.

[00:13:39] Speaker 01:
One other thing I want to ask you about, you several times talk about the order says that you didn't abide by the mandate.

[00:13:49] Speaker 01:
Because he'll say, well, you make the allegations that now you're talking about types of germs on hands that commonly appear on hands.

[00:13:55] Speaker 01:
But in the very next sentence, you scooted back to this very broad suggestion that you're talking about germs in the universe.

[00:14:02] Speaker 01:
So he's trying to nail you down.

[00:14:04] Speaker 01:
What is your claim?

[00:14:06] Speaker 01:
What is your response to that?

[00:14:08] Speaker 00:
So our response is really that we do talk about, we try to start from a very broad context and narrow it down, right?

[00:14:15] Speaker 00:
So here's how ethyl alcohol works.

[00:14:17] Speaker 00:
Here's why ethyl alcohol is not effective in general.

[00:14:20] Speaker 00:
Here's why ethyl alcohol is not effective against a subset of germs on your hands.

[00:14:24] Speaker 00:
And here is why the products are not effective against germs that are commonly found on hands.

[00:14:29] Speaker 00:
And so we tried to take a broader,

[00:14:34] Speaker 00:
perspectives by taking a step back to really explain to the court what ethyl alcohol is and what its limitations are.

[00:14:42] Speaker 01:
All right.

[00:14:43] Speaker 01:
My understanding is that by doing, your briefing talks about this funneling.

[00:14:50] Speaker 01:
Tell me what your claim is now.

[00:14:51] Speaker 01:
Is it the top of the funnel or the bottom of the funnel?

[00:14:53] Speaker 01:
Were you using that as an example?

[00:14:55] Speaker 01:
This report needs to know what your claim is.

[00:14:57] Speaker 00:
Right.

[00:14:58] Speaker 00:
OK.

[00:14:58] Speaker 00:
So the claim is that the products do not kill 99.99% of germs commonly found on hands.

[00:15:06] Speaker 01:
As a matter of fact?

[00:15:08] Speaker 00:
As a matter of fact.

[00:15:09] Speaker 01:
OK.

[00:15:12] Speaker 01:
And I think your claim is that's true in the vacuum.

[00:15:17] Speaker 01:
and that it's truer still in real life when people have stuff on their hands.

[00:15:21] Speaker 01:
Absolutely.

[00:15:22] Speaker 01:
Okay.

[00:15:22] Speaker 01:
We'll put two minutes on the clock when you come back.

[00:15:24] Speaker 01:
Appreciate it.

[00:15:25] Speaker 01:
Thank you.

[00:15:33] Speaker 04:
May it please the court Anthony hop on behalf of I John LLC.

[00:15:38] Speaker 04:
This case has been dismissed four times.

[00:15:41] Speaker 04:
Uh, we're now on our second trip to the ninth circuit and the plaintiff is once again arguing

[00:15:45] Speaker 04:
Like he did the last time that the district court misread, misunderstood, misinterpreted his fourth amended complaint.

[00:15:53] Speaker 04:
The district court did nothing of the sort.

[00:15:56] Speaker 04:
This court should affirm because the district court's fourth dismissal order in this case properly applied Twombly, Iqbal, McGinnity, Robles, and its judicial experience and common sense to hold that the nonconclusory factual allegations in the fourth amended complaint are not sufficient to state a claim.

[00:16:17] Speaker 04:
The district court was not required to accept as true or sufficient allegations which are merely conclusory.

[00:16:23] Speaker 04:
The district court correctly observed that the plausibility review that it was undertaking under Iqbal and Twombly is context-specific and requires the court to draw on its judicial experience and common sense.

[00:16:36] Speaker 04:
Here, the court correctly used that common sense to hold that taken together the entire complaint, the plaintiff's allegations do not add up to a valid claim that the label statements on Vijon's products would be misleading to a reasonable consumer.

[00:16:52] Speaker 04:
Plaintiff contends that to survive a motion to dismiss, all he had to do was to plead that the product does not kill 99.99% of common germs on hands.

[00:17:02] Speaker 04:
There's two problems with that.

[00:17:03] Speaker 04:
One, it's not the label claim.

[00:17:05] Speaker 04:
The label claim is not what the label says.

[00:17:07] Speaker 04:
The plaintiff's claim, again, mischaracterizes the label.

[00:17:12] Speaker 04:
The label says, as the court pointed out, many.

[00:17:16] Speaker 04:
The rear label says the product kills

[00:17:18] Speaker 04:
99.99% of many common harmful germs in 15 seconds or less.

[00:17:23] Speaker 04:
It doesn't promise to kill all common germs on your hands.

[00:17:27] Speaker 04:
And that's what plaintiff claims.

[00:17:29] Speaker 02:
So what do you do with the argument that, well, in fact, if I'm just a normal person with normal sort of greasy hands and I use this, it does not, in fact, kill 99% even of the germs that might be killed in laboratory conditions?

[00:17:44] Speaker 04:
Sure, the greasy hands argument is something that the district court did deal with previously, dealt with previously in, I think, the first, dismissing the first amended complaint or the second amended complaint.

[00:17:53] Speaker 04:
So you have to go back a couple of decisions in this case to read what the court said.

[00:17:58] Speaker 04:
But the court has disregarded that several times.

[00:18:01] Speaker 04:
And here's why.

[00:18:02] Speaker 04:
Ordinary consumers don't use hand sanitizers when they're fishing, gardening, making hamburger, things like that.

[00:18:10] Speaker 04:
When your hands are greasy, grimy, dirty,

[00:18:12] Speaker 04:
You wash them, and that's the importance.

[00:18:15] Speaker 04:
The court didn't talk about hand washing and what children know in a vacuum.

[00:18:20] Speaker 04:
It was in that context that you know.

[00:18:22] Speaker 02:
There are an awful lot of people who use hand sanitizers when they sort of walk into an unfamiliar place.

[00:18:29] Speaker 02:
They don't wash their hands first.

[00:18:30] Speaker 02:
They just use the hand sanitizer.

[00:18:31] Speaker 04:
Sure.

[00:18:31] Speaker 04:
They use hand sanitizer when soap and water are not available.

[00:18:34] Speaker 04:
And that's the main thing.

[00:18:35] Speaker 02:
They might use them just anyway.

[00:18:37] Speaker 02:
I mean, so I don't think you can fully answer the claim by saying people will wash their hands and then use hand sanitizer.

[00:18:43] Speaker 04:
We don't say people wash their hands and then use hand sanitizer.

[00:18:46] Speaker 04:
They use hand sanitizer and maybe then wash their hands.

[00:18:49] Speaker 02:
You're in the grocery store.

[00:18:50] Speaker 02:
Or maybe not.

[00:18:51] Speaker 02:
Or maybe not.

[00:18:51] Speaker 02:
That doesn't seem to me that necessarily then answers the objection, which is to say that it depends whether you're going to get 99.9.

[00:19:01] Speaker 02:
It depends on whether you've washed your hands first.

[00:19:04] Speaker 04:
It does not, in a normal situation, I mean, we're talking about, I think, an abnormal situation.

[00:19:09] Speaker 04:
Your hands are greasy, grimy, dirty.

[00:19:11] Speaker 04:
I mean, that's what the complaint says, greasy, grimy, dirty.

[00:19:13] Speaker 04:
Not getting out of your car and going into the grocery store.

[00:19:17] Speaker 01:
But greasy, I mean, I could put hand lotion on my hands, though.

[00:19:19] Speaker 04:
It could.

[00:19:20] Speaker 04:
And if you're using hand sanitizer to take hand lotion off, then you're not using it reasonably.

[00:19:27] Speaker 04:
That's not what it's for.

[00:19:29] Speaker 04:
I mean, your hands are greasy, grimy, dirty.

[00:19:30] Speaker 04:
The product does not promise to clean your hands.

[00:19:33] Speaker 04:
It is not a hand cleaner, and it's not advertised that way.

[00:19:36] Speaker 01:
I just asked her, what's your claim?

[00:19:40] Speaker 01:
Because I'm very mindful this is a Fourth Amendment complaint.

[00:19:43] Speaker 01:
And her first answer is that it doesn't clean 99.99%.

[00:19:48] Speaker 01:
It doesn't do that.

[00:19:51] Speaker 01:
And then her second argument, which I think is a different theory, is in real life it also doesn't do that.

[00:19:56] Speaker 01:
So I think she's saying even in a Petri dish, just scientifically as a matter of fact, we can show that it doesn't kill that number of types of germs that are commonly found on hands.

[00:20:07] Speaker 01:
And then I think it's a separate argument.

[00:20:09] Speaker 01:
And by the way, in real life, it won't because people have stuff on their hands.

[00:20:13] Speaker 04:
Yes, Your Honor.

[00:20:15] Speaker 04:
OK.

[00:20:15] Speaker 04:
Yes.

[00:20:16] Speaker 04:
Go ahead.

[00:20:16] Speaker 04:
OK.

[00:20:17] Speaker 04:
And I don't believe that's what the amended complaint says.

[00:20:19] Speaker 04:
I mean, it says if you read the amended complaint as the district court did, you read it all.

[00:20:24] Speaker 04:
The first thing it says in paragraph 12 footnote 3 is that consumers believe that it will kill all or nearly all germs on hands.

[00:20:41] Speaker 04:
They understand that it means that it kills completely

[00:20:43] Speaker 04:
completely kills all germs on hands.

[00:20:46] Speaker 04:
That's how the complaint starts off.

[00:20:48] Speaker 04:
And case after case has rejected that, including Robles, that it doesn't promise that.

[00:20:52] Speaker 04:
It never promises that.

[00:20:54] Speaker 04:
And then they talk about, in a petri dish, what it does or doesn't do.

[00:20:57] Speaker 04:
There is an allegation in there that it only kills, I think, 1,227 germs which are

[00:21:08] Speaker 04:
pathogenic and transmissible by hands.

[00:21:10] Speaker 04:
It toggles back and forth between this all germs and transmissible by hands.

[00:21:14] Speaker 04:
Only two points in the complaint.

[00:21:16] Speaker 04:
I think it's paragraph 17 and maybe paragraph 47.

[00:21:20] Speaker 04:
Does it say many common harmful germs in hands?

[00:21:23] Speaker 04:
But then as the district court points out, immediately thereafter starts talking about transmissible, starts talking about specific germs.

[00:21:30] Speaker 01:
But I agree with you.

[00:21:32] Speaker 01:
I have tortured my law clerk over this case for the last couple of weeks to figure out what does it say.

[00:21:36] Speaker 01:
And I do think it's challenging, but I think she's clarified today what she's talking about.

[00:21:44] Speaker 01:
And so that's what I'm trying to get your response to.

[00:21:47] Speaker 04:
She may have attempted to clarify what she's talking about, but I don't think the amended complaint clarifies that at all.

[00:21:51] Speaker 04:
And I think we're with the amended complaint here and how the judge read it and whether or not Judge Miller read it again correctly.

[00:21:58] Speaker 04:
It has many things in it, but Judge Miller read it all and distilled it, and you cannot take

[00:22:04] Speaker 04:
a couple of times where the complaint says, sprinkles the word common in there, and divorced that from the rest of the complaints.

[00:22:11] Speaker 01:
Well, I was trying to make a different point following up on your comment.

[00:22:14] Speaker 01:
I mean, it does say the kinds of, and I think her backup talks about types of germs that are transmissible by hand.

[00:22:25] Speaker 01:
You think that doesn't mean that they're commonly found on hands, or that's not a proxy, that's not sufficient?

[00:22:30] Speaker 04:
The way the complaint, yes, exactly, Your Honor.

[00:22:33] Speaker 04:
I believe that just saying that it doesn't kill germs which are common and transmissible by hands is not the same thing as saying it doesn't kill many common, harmful germs on hands.

[00:22:45] Speaker 04:
The product, as the court pointed out earlier, doesn't promise everything.

[00:22:49] Speaker 04:
It doesn't promise all that.

[00:22:50] Speaker 01:
So her first theory, I think, is her toughest.

[00:22:52] Speaker 01:
I'll grant you that, because you have seven minutes left.

[00:22:55] Speaker 01:
I'm more concerned about paragraphs 49 and 50, about in real life.

[00:22:59] Speaker 01:
People understand that that is a given, that that's what's going to happen if they put this stuff on their hands.

[00:23:04] Speaker 01:
And her paragraphs 49 and 50 say, in real life, people have stuff on their hands, oil, sweat, whatever.

[00:23:09] Speaker 01:
What about that?

[00:23:10] Speaker 04:
Again, Your Honor, I think

[00:23:14] Speaker 04:
The real point is that you have to think about how ordinary, normal, reasonable consumers use hand sanitizer.

[00:23:20] Speaker 04:
If you've just put hand lotion on your hands, the next thing you're going to do is not to use hand sanitizer.

[00:23:26] Speaker 01:
OK, but I put hand lotion on my hands because I'm sitting at the desk and I work with paper all day, and then an hour later,

[00:23:31] Speaker 01:
I want to use hand sanitizer.

[00:23:34] Speaker 01:
I still have some lotion on my hands, don't I?

[00:23:36] Speaker 04:
You might, Your Honor.

[00:23:36] Speaker 04:
But again, you may or may not.

[00:23:39] Speaker 04:
But the product is still going to kill many common germs on your hands, even if it doesn't kill all of them, even if there's something having to do with it.

[00:23:46] Speaker 01:
The point is that it promises to kill 99.99%.

[00:23:49] Speaker 01:
Her first argument is it doesn't do that in a Petri dish.

[00:23:51] Speaker 01:
I don't know, because we're not finding facts.

[00:23:53] Speaker 01:
And then her second argument is people don't have their hands in Petri dishes.

[00:23:57] Speaker 01:
They put this stuff on their hands, not Petri.

[00:23:58] Speaker 04:
That's true.

[00:23:59] Speaker 04:
The product has to be tested, Your Honor, and it's tested.

[00:24:02] Speaker 04:
And as we pointed out in our response to the amended complaint and below, many, many times, it's tested according to FDA standards.

[00:24:09] Speaker 04:
FDA does say use it in a Petri dish.

[00:24:11] Speaker 04:
Test it according to this method.

[00:24:12] Speaker 01:
You bet.

[00:24:13] Speaker 01:
And so that's why I'm not talking about the first theory.

[00:24:15] Speaker 01:
I'm talking about the second theory, because people don't buy it to put it in Petri dishes.

[00:24:18] Speaker 01:
They buy it to put it on their hands.

[00:24:20] Speaker 04:
Okay.

[00:24:21] Speaker 04:
But that said, you know, the Petri dish method is the way that it's tested, and that's what's represented.

[00:24:26] Speaker 04:
It kills those germs, and if those germs are in the hands, it will kill them.

[00:24:28] Speaker 02:
I understand Petri dish is how it is tested.

[00:24:31] Speaker 02:
I'm not sure I agree with you that that's how it's represented.

[00:24:34] Speaker 02:
I mean, there's nothing here that says kills 99.99 in Petri dishes.

[00:24:39] Speaker 02:
Fair enough.

[00:24:40] Speaker 02:
It's a hand sanitizer.

[00:24:41] Speaker 02:
Fair enough, Your Honor.

[00:24:41] Speaker 02:
Yes, it does.

[00:24:42] Speaker 02:
And it talks about this number without qualification.

[00:24:45] Speaker 02:
I'm supposed to assume, at least I'm going to assume, you're talking about what happens on hands.

[00:24:50] Speaker 01:
not in petri dish absolutely your honor but I'm also spent half of the last oral argument that it's hand sanitizer I was there that was hand sanitizer and so certainly we're talking about how it behaves on hands right that's right

[00:25:01] Speaker 01:
So I think Judge Fletcher's point on this is well taken, but I would appreciate your response.

[00:25:05] Speaker 04:
Yes.

[00:25:05] Speaker 04:
And again, all I can do, Your Honor, is go back to what a reasonable consumer does, what a reasonable consumer thinks.

[00:25:11] Speaker 04:
If your hands are dirty, greasy, grimy.

[00:25:13] Speaker 04:
And we're not talking about maybe a little bit of hand lotion from an hour ago.

[00:25:16] Speaker 04:
We're talking about gardening, fishing, things like that.

[00:25:19] Speaker 02:
Does it kill 99.99 if I put hand lotion on my hand two hours before?

[00:25:25] Speaker 02:
I doubt it.

[00:25:25] Speaker 04:
That hasn't been proven, Your Honor, and presumably has not been tested.

[00:25:29] Speaker 02:
Well, I think we're not at the proof stage.

[00:25:30] Speaker 02:
We've been through many, many iterations at the complaint stage.

[00:25:33] Speaker 04:
That's true.

[00:25:34] Speaker 04:
We've been through many, many iterations.

[00:25:35] Speaker 04:
And I will say, again, I mean, my response is what my response is, that ordinary consumers use it the way they do and think about it.

[00:25:42] Speaker 04:
I mean, where does one use hand sanitizer?

[00:25:44] Speaker 01:
Use it in the store.

[00:25:45] Speaker 01:
Wait a minute.

[00:25:46] Speaker 01:
Ordinary users use it.

[00:25:47] Speaker 01:
How do you think ordinary users use it?

[00:25:49] Speaker 04:
Reasonable consumers.

[00:25:49] Speaker 04:
Just think about it.

[00:25:50] Speaker 04:
Think where you see hand sanitizer, where hand sanitizer is used.

[00:25:53] Speaker 01:
All over the place.

[00:25:54] Speaker 04:
all over the place, in the grocery store, in the bank, here, on the bus.

[00:25:58] Speaker 04:
When you don't have soap and water available, it is not a substitute for soap and water.

[00:26:02] Speaker 04:
And that's what it goes back to.

[00:26:03] Speaker 04:
If your hands are dirty, greasy, grimy, you shouldn't wash them.

[00:26:06] Speaker 04:
That's what the judge said.

[00:26:07] Speaker 01:
Right.

[00:26:07] Speaker 01:
So I'm not trying to be difficult.

[00:26:09] Speaker 01:
I'm really not.

[00:26:09] Speaker 01:
And I understand you've made several trips to the podium on this case.

[00:26:13] Speaker 01:
But here's the problem.

[00:26:14] Speaker 01:
It is ubiquitous hand sanitizer now.

[00:26:17] Speaker 01:
So people use it all over the place.

[00:26:19] Speaker 01:
I don't think that helps you.

[00:26:20] Speaker 01:
I think that hurts you.

[00:26:22] Speaker 01:
Because it's representing that it'll kill 99.99% of germs commonly found on my hands, isn't it?

[00:26:29] Speaker 01:
In all of those different scenarios, whether I'm at the airport or...

[00:26:34] Speaker 04:
Many.

[00:26:34] Speaker 04:
It will kill many of those common germs on your hands.

[00:26:36] Speaker 04:
Yes, Your Honor.

[00:26:37] Speaker 04:
99.9% of many common germs on your hands.

[00:26:39] Speaker 04:
Not every single one, and maybe not in every scenario.

[00:26:42] Speaker 02:
I understand how it can be many, but when I'm in the airport, of the germs that it will kill, really effectively, will it kill 99.99?

[00:26:50] Speaker 02:
If I'm just a person of an ordinary life, I just show up at the airport?

[00:26:53] Speaker 02:
I don't think so.

[00:26:55] Speaker 02:
It will if I'm a Petri dish.

[00:26:58] Speaker 02:
But if I'm just an ordinary person living my ordinary life, and I show up at the airport,

[00:27:01] Speaker 02:
Am I going to get 99.9 on those germs that it kills effectively?

[00:27:05] Speaker 04:
Well, let's talk about what it is and what it does, Your Honor.

[00:27:07] Speaker 04:
It's alcohol.

[00:27:09] Speaker 04:
It's ethyl alcohol with a surfactant.

[00:27:12] Speaker 04:
I understand what it does.

[00:27:13] Speaker 04:
And what it does is it denatures protein.

[00:27:15] Speaker 04:
Now, the ordinary consumer may not know that, but to your point, what it does is any germ that's got a protein shell, it will kill.

[00:27:21] Speaker 04:
Now, will it get through?

[00:27:22] Speaker 04:
If you use enough of it, maybe it'll get through your lotion.

[00:27:26] Speaker 04:
But I mean, if it touches the surface of your hands, it will kill, it will denature every bacteria because they're covered in protein.

[00:27:34] Speaker 04:
That's how they're, there's a few non-enveloped viruses that it will not kill.

[00:27:40] Speaker 04:
And that's where the many comes in.

[00:27:41] Speaker 04:
It doesn't kill all of those germs.

[00:27:43] Speaker 04:
And so, you know, if your hands are dirty, greasy, grimy, an ordinary consumer, maybe take an extra shot of it, right?

[00:27:49] Speaker 04:
Maybe you use a little bit more of it.

[00:27:50] Speaker 04:
But it will, once it gets there, it will kill those germs on your hands.

[00:27:54] Speaker 02:
It kills many germs on your hands.

[00:27:55] Speaker 02:
I'm focusing on what the Judge Krishna is focused on.

[00:27:58] Speaker 02:
It does not say in laboratory conditions.

[00:28:02] Speaker 02:
It implies that in ordinary real life conditions, 99.99% will be killed.

[00:28:09] Speaker 02:
That strikes me as not literally true.

[00:28:12] Speaker 04:
It states that it will kill 99.99% of many common harmful germs in your hand.

[00:28:18] Speaker 02:
And of those for which it is really effective, in ordinary real life, where I've been out, I don't know, doing stuff.

[00:28:25] Speaker 02:
Maybe I did put hand lotion on a couple hours ago.

[00:28:28] Speaker 02:
Maybe I put on some sunscreen a little bit ago.

[00:28:31] Speaker 01:
Maybe you shook hands with somebody else.

[00:28:33] Speaker 02:
Is it going to kill 99.99?

[00:28:34] Speaker 02:
I doubt it.

[00:28:36] Speaker 02:
It's going to kill an awful lot.

[00:28:38] Speaker 02:
It will.

[00:28:38] Speaker 02:
99.99 is what you did in the lab.

[00:28:41] Speaker 04:
Right.

[00:28:42] Speaker 04:
And what we say in the, it will kill 99.99% of every single germ that it's tested against, according to those FDA standards, in the lab.

[00:28:49] Speaker 02:
But my point is, as to those, against which it is very effective.

[00:28:54] Speaker 02:
Right.

[00:28:54] Speaker 02:
So I'm in your category.

[00:28:56] Speaker 04:
Yes.

[00:28:58] Speaker 02:
In real life, as opposed to the lab,

[00:29:00] Speaker 02:
How do I know that you'll actually kill 99.99?

[00:29:03] Speaker 02:
I don't think you've shown that.

[00:29:05] Speaker 04:
And I submit that on the label it says many.

[00:29:08] Speaker 02:
It doesn't say all.

[00:29:10] Speaker 02:
But it says 99.99 of many.

[00:29:11] Speaker 02:
I'm now in the category of which it does 99.99.

[00:29:14] Speaker 02:
And as to those in real life, I'm not sure that's true.

[00:29:20] Speaker 04:
Even in real life, Your Honor, our submission is that it will kill 99.99.

[00:29:23] Speaker 04:
It is 99.99% effective.

[00:29:27] Speaker 04:
with respect to many common harmful germs.

[00:29:29] Speaker 04:
So if it misses a couple, in the lab and on your hands, Your Honor, because it's not been tested on your hands, I warn.

[00:29:36] Speaker 01:
That's my point.

[00:29:37] Speaker 01:
And I think I just interrupted Judge Fletcher.

[00:29:39] Speaker 01:
I'm sorry.

[00:29:40] Speaker 01:
I just assumed that I get up in the morning, I take a shower, I'm pretty good, and then from there on out, it's all downhill.

[00:29:46] Speaker 01:
I touch my car keys, I touch my refrigerator handle, I touch a doorknob.

[00:29:51] Speaker 01:
And so I think our hands are, I didn't want to think about it, probably pretty disgusting.

[00:29:57] Speaker 04:
I'm not gonna, I'm not gonna say you're disgusting.

[00:30:00] Speaker 01:
I don't blame you.

[00:30:01] Speaker 01:
I don't blame you.

[00:30:02] Speaker 01:
But if I look at that, at the label, I think it's, right, because our hands go all over in the world touching knobs and shaking hands.

[00:30:12] Speaker 04:
Right.

[00:30:13] Speaker 01:
And that's what people are, that's the representation people are relying on, it seems to me.

[00:30:17] Speaker 01:
And I don't mean to beat this dead horse, but isn't that a big problem for you?

[00:30:21] Speaker 04:
I don't believe so, Your Honor, because again, you use hand sanitizer when soap and water are not available.

[00:30:26] Speaker 04:
The context, the real world context, isn't just hand sanitizer.

[00:30:31] Speaker 04:
The real world context is hand sanitizer plus soap and water when it's available.

[00:30:35] Speaker 04:
It is not a substitute.

[00:30:36] Speaker 04:
It's not sold as a substitute.

[00:30:37] Speaker 01:
Under what circumstance does the product kill 99.99% of common germs found on hands, outside of a petri dish?

[00:30:46] Speaker 04:
When it touches those germs on your hands.

[00:30:51] Speaker 04:
petri dish or your hand.

[00:30:53] Speaker 01:
As long as I just stepped out of the shower.

[00:30:55] Speaker 04:
No, not necessarily.

[00:30:56] Speaker 04:
You've got bacteria on your hands, it'll denature all those bacteria.

[00:30:59] Speaker 04:
Your example was if there's something between the bacteria and your hands.

[00:31:05] Speaker 01:
Right, and that's the problem.

[00:31:06] Speaker 01:
And my premise is I'm suspecting that there is a lot.

[00:31:10] Speaker 01:
There may be a lot more.

[00:31:11] Speaker 01:
Sweat, dirt, hand lotion.

[00:31:12] Speaker 04:
No?

[00:31:15] Speaker 01:
Grime from just touching other things grime.

[00:31:18] Speaker 04:
Yes, if there's grime you wash that's our point if there's grime, okay, your label doesn't say 99.99 in the lab it doesn't say if you wash your hands first it just says 99.99 Right and if the product touches the germs on your hands if it can contact those germs it will kill them Why how do we know that because it does it in the future?

[00:31:40] Speaker 02:
And you've said a lot more than that is on the label

[00:31:44] Speaker 04:
it's hand sanitizer, your honor.

[00:31:45] Speaker 04:
It kills the germs in your hand.

[00:31:46] Speaker 02:
It is, and it's very effective insofar as what it does.

[00:31:50] Speaker 02:
The question is whether it lives up to the label.

[00:31:54] Speaker 04:
And we believe it does, your honor.

[00:31:56] Speaker 03:
You've been very patient.

[00:31:57] Speaker 03:
Go right ahead.

[00:31:59] Speaker 03:
This is kind of something I haven't really thought a lot of.

[00:32:01] Speaker 03:
So I'm looking at the, I guess it's the Fourth Amendment complaint, yeah.

[00:32:05] Speaker 03:
And so it's paragraph 16, ER 152.

[00:32:07] Speaker 03:
It says, it just has this one sentence.

[00:32:09] Speaker 03:
It says, the products are additionally ineffective or dirty, greasy, sweaty, or wet.

[00:32:14] Speaker 03:
Is that the only, where, is that the only allegation in the complaint, or is there other, other allegation, I'm trying to figure out, this just seems pretty conclusory to me.

[00:32:25] Speaker 01:
I think we're looking at 49 and 50.

[00:32:27] Speaker 03:
49, oh, progress 49 and 50.

[00:32:36] Speaker 03:
Is there, I'm trying to remember, is this,

[00:32:40] Speaker 03:
This is a fraud claim, right?

[00:32:42] Speaker 03:
And so there's heightened pleading requirements for—so can you just assert that—I mean, can they just assert that—I mean, I'm trying to figure out here whether I even think this is a true assertion or not.

[00:32:54] Speaker 03:
I know we have to take assertions at this stage as true, but that's the whole point of—

[00:32:59] Speaker 03:
the height and pleading requirement for fraud claims is that normally you have to like do something more than just say it.

[00:33:05] Speaker 03:
What's going on there?

[00:33:07] Speaker 04:
In this complaint, Your Honor, I would submit that that is conclusory, and it doesn't satisfy Twamble or Iqbal or Twombly.

[00:33:13] Speaker 03:
Because we're talking about lotion stuff, and I'm trying to figure out like, I mean, I don't think any of us have any idea whether it actually

[00:33:19] Speaker 03:
Like, you know, if I put on lotion and one hour later or two hours later use hand sanitizer, what it actually does, does it kill 99% of some, I'll use the word some because many and some is not really different in this context, you know, some types of germs.

[00:33:32] Speaker 03:
And if it, they basically have a couple of paragraphs that say it doesn't, but I'm trying to figure out what to do with that.

[00:33:41] Speaker 03:
I guess the idea would be if we disagree with them on what we're calling part one, the idea that their interpretation of just reading out many so that it kills 99% of germs and all they're left with is this.

[00:33:54] Speaker 03:
This definitely was not been the meat of their case.

[00:33:57] Speaker 03:
This is just a tale, but all of a sudden it'll become the only thing that's left and then what they'll be, it would go forward as to a trial or to like, I guess battle the experts on whether or not this

[00:34:10] Speaker 03:
what happens when you put lotion on?

[00:34:11] Speaker 04:
I would certainly have to go forward on a trial with respect to, you know, who puts hand sanitizer on after they use lotion.

[00:34:17] Speaker 04:
I assume that the predominance would be an issue at that point.

[00:34:20] Speaker 03:
No, but you're assuming that when you put hand sanitizer on, that statement you just said is assuming that when you put it on after you put on lotion that it's ineffective, but I'm not sure they say that.

[00:34:29] Speaker 03:
They don't actually use, talk about lotion, but they say

[00:34:32] Speaker 03:
dirt moisture and grime, it's ineffective.

[00:34:34] Speaker 03:
I guess we just have to take that as a given.

[00:34:37] Speaker 04:
I don't believe you have to take it as a given, Your Honor.

[00:34:39] Speaker 04:
I think it's, I don't think it's well-pled.

[00:34:40] Speaker 04:
I don't think it's well-pled.

[00:34:41] Speaker 03:
Yeah, so maybe that would help me.

[00:34:43] Speaker 03:
What would be, and I'm sorry, I'm kind of, but it's kind of, what would count as being well-pled?

[00:34:50] Speaker 03:
Do we give them a fifth chance, you know, on this issue?

[00:34:54] Speaker 04:
I would certainly hope not, Your Honor, and I'm not going to try to rewrite the plaintiff's complaint as I stand here, but I will say that there's certainly not enough in this complaint.

[00:35:01] Speaker 04:
to say that these are well-pled, plausible allegations about what happens when your hands are dirty.

[00:35:07] Speaker 03:
What happened?

[00:35:07] Speaker 03:
We've already been up here one time before, and as I understand it, you're saying that actually these were directly addressed, these claims, by the district court in the dismissal of the second amendment complaint, which is what was appealed up last time up here?

[00:35:22] Speaker 04:
I'm not sure if it was the second amendment complaint, the first amendment complaint.

[00:35:24] Speaker 04:
It might have even been the third, but that has been addressed below.

[00:35:28] Speaker 03:
I'm just trying to figure out whether it was addressed by the court below before it came up, because when I read our admittedly very short MemDISPO last time up here, it doesn't address this issue at all.

[00:35:40] Speaker 03:
It seems to acknowledge that as pled .

[00:35:44] Speaker 03:
.

[00:35:44] Speaker 03:
.

[00:35:44] Speaker 03:
our whole MemDISPO last time seems to be on the basis that as pled, yeah, these claims don't

[00:35:49] Speaker 03:
They don't fault the district court for having dismissed the claims as pled.

[00:35:56] Speaker 03:
They just say, you need to give them another chance to replete.

[00:35:58] Speaker 03:
So if these claims were already in there, I don't think they're directly addressed by our prior order, but it just seems like, I don't know, it's weird because it's just kind of all of a sudden becoming the big issue in the case and it seems like it's an afterthought at most in the complaint.

[00:36:11] Speaker 04:
Right, which is not what I expected to talk about today because it is an afterthought and it's not the main part of the complaint.

[00:36:17] Speaker 04:
You know, like I said, it was in a prior complaint.

[00:36:20] Speaker 04:
It was addressed below.

[00:36:21] Speaker 04:
And I'm not sure which opinion.

[00:36:22] Speaker 04:
We'll have to go look.

[00:36:24] Speaker 04:
But also, in this complaint, it's a couple of perfunctory allegations.

[00:36:29] Speaker 04:
And I don't think it satisfies Iqbal and Tom.

[00:36:32] Speaker 02:
So what's missing?

[00:36:34] Speaker 04:
I declined to rewrite the complaint.

[00:36:37] Speaker 02:
I understand you don't want to write the complaint.

[00:36:38] Speaker 02:
But you do say it's not enough.

[00:36:40] Speaker 02:
And I think it's a fair question.

[00:36:41] Speaker 02:
What's missing?

[00:36:43] Speaker 04:
It would have to be more detail about under what conditions.

[00:36:45] Speaker 04:
What germs it kills.

[00:36:47] Speaker 04:
when hands are dirty greasy grimy because it does it is alcohol it will cut through whatever's on your hands.

[00:36:53] Speaker 04:
So I again without without having thought about it or trying to figure out how it would be best said.

[00:37:00] Speaker 04:
I just have to submit, Your Honor, that it's not well said here, not well pled here, and I would ask on behalf of my client that this not be sent back for a fifth time.

[00:37:10] Speaker 04:
The defendant has been litigating this case for four years and getting these claims dismissed by Judge Miller for good reasons, and so I would ask that the case not be remanded for that reason.

[00:37:21] Speaker 01:
I think last time at oral argument there was a concession, actually.

[00:37:25] Speaker 01:
that plaintiffs could amend to cure the problem that was hanging us up last time, hence the remand.

[00:37:34] Speaker 04:
What I remember saying, Your Honor, and you and I were facing each other across the same distance, was that if it was pled differently, it might be a different complaint.

[00:37:41] Speaker 04:
And that's basically what the court said.

[00:37:43] Speaker 04:
That is that if it was pled differently, it might withstand a motion to dismiss.

[00:37:48] Speaker 04:
And it was pled differently, and it didn't withstand a motion to dismiss twice.

[00:37:53] Speaker 01:
I think I was speaking to a different point, but that's okay.

[00:37:57] Speaker 01:
I'm sure you'd be happy to stop talking about this.

[00:38:04] Speaker 01:
I was just responding.

[00:38:05] Speaker 01:
No, there's no secret handshake here.

[00:38:07] Speaker 01:
I was just responding to your statement about what happened last time and why it was remanded last time, and I think there was agreement on record and Mendespo mentioned that.

[00:38:18] Speaker 01:
I'm ready to hear from opposing counsel.

[00:38:20] Speaker 01:
Thank you so much for your patience with our questions.

[00:38:30] Speaker 00:
So you heard defense counsel say that hand sanitizer is used when soap and water aren't available.

[00:38:35] Speaker 00:
Those are exactly the situations where you would expect hands to be dirty, grimy, or greasy, which is why it is included in the Fourth Amendment complaint.

[00:38:43] Speaker 00:
For example, after pumping gas at the grocery store, there's all kinds of stuff on your hands.

[00:38:49] Speaker 00:
The very first paragraph in the complaint says that consumers are entitled to know when hand sanitizer is effective and when it isn't so that they'll wash their hands

[00:38:59] Speaker 01:
Can we go back to—forgive me for interrupting you, but is the Fourth Amendment a complaint?

[00:39:02] Speaker 01:
I think Judge Van Dyke is right and opposing counsel.

[00:39:06] Speaker 01:
This was not the—the second theory wasn't the showcase, right?

[00:39:10] Speaker 01:
And so here we are.

[00:39:11] Speaker 01:
His response is that this is impermissibly conclusory, doesn't withstand equal tumbling.

[00:39:17] Speaker 01:
What is your response to that, please?

[00:39:19] Speaker 00:
So beginning in paragraph 63 of the complaint, paragraph 63 through paragraph 152, we describe the microbes that are not killed by the products that are commonly found on hands and cause at least millions of cases of infection in the United States each year.

[00:39:37] Speaker 00:
And we do that by citing to scientific sources, for example, paragraph 66,

[00:39:42] Speaker 01:
So this is all, forgive me again, you're talking now about what I've been referring to as your first theory, where you're just saying it's not true.

[00:39:50] Speaker 01:
Right, so where we were- I'm talking about your second theory, which I was referring to as not having been your showcase, which is that in real life, under real life conditions, it doesn't perform this way.

[00:40:02] Speaker 00:
Okay, and so what are the non-conclusory allegations?

[00:40:05] Speaker 00:
So we cite to our retained scientific expert, and that expert report was submitted before the district court in response to defendant's opposition to ... I'm sorry, in response to defendant's motion to dismiss.

[00:40:24] Speaker 00:
And in that report, she talks about how the products do respond under real world conditions.

[00:40:31] Speaker 00:
So there's images of hand prints and where consumers wash their hands with soap and water versus using hand sanitizer, all of the germs and bacterium that are left following the use of hand sanitizer where

[00:40:44] Speaker 03:
Hands are greasy grimy dirty sweaty and that is all set forth in her expert report, which is Generally cited to in this complaint Yeah, can I ask a question about that because I'm looking at it because I see where you cite to this is Fortuno Is that right or to not oh, yeah, yeah, I'm sorry So I see a lot of sites that it doesn't look to me and you what you do is you have your your numbered paragraph and then you drop a footnote and you cite to

[00:41:08] Speaker 03:
But I don't see that site with regard to 16 or 49 or 50.

[00:41:14] Speaker 03:
And I honestly haven't read the expert report, but are you—you're telling us that if I went and read the expert report that that expert addressed this dirty, greasy theory?

[00:41:28] Speaker 03:
Not—because all the sites you have are to your other—what we might call your first theory.

[00:41:32] Speaker 03:
Do you know if the expert addressed the dirty, greasy theory?

[00:41:36] Speaker 00:
She did.

[00:41:36] Speaker 00:
It's her third opinion in the report.

[00:41:39] Speaker 03:
So you could just add a footnote to the... I was remiss in not adding a footnote to paragraph 50.

[00:41:46] Speaker 00:
That's absolutely correct.

[00:41:48] Speaker 00:
I just want to leave the court with one additional item.

[00:41:50] Speaker 00:
The last time we were before this court,

[00:41:53] Speaker 00:
defense counsel told you that the germs against which defendant does test in a petri dish are 23 bacterium and two yeast strains.

[00:42:02] Speaker 00:
And as pled, those are not common, found in a common consumer setting and they are not testing on hands.

[00:42:09] Speaker 00:
And that is the basis for the label statements at issue in this case.

[00:42:14] Speaker 00:
That defies a reasonable consumer expectation and it certainly defies the express representations on the labels which are false and misleading as written.

[00:42:23] Speaker 01:
Thank you both for your argument and advocacy.

[00:42:26] Speaker 01:
We're going to take that case under advisement and stand in recess for the day.