[00:00:03] Speaker 02:
Good morning, and may it please the court, James Treglia, appearing on behalf of the appellants.

[00:00:09] Speaker 02:
I would like to reserve five minutes of my time for rebuttal.

[00:00:11] Speaker 02:
Farewell.

[00:00:13] Speaker 02:
So briefly, we'll talk about the case itself.

[00:00:16] Speaker 02:
This is a case about talcum powder and the sale of talcum powder in the state of California.

[00:00:22] Speaker 02:
And as we were bringing this case, the one thing that stands out to me is, as we brought this case and as information about

[00:00:32] Speaker 02:
the potential contaminants within talcum powder became known to the public.

[00:00:36] Speaker 02:
The sale of this product dropped precipitously, so much so that— I'm going to interrupt you with a procedural question.

[00:00:43] Speaker 04:
Sure.

[00:00:44] Speaker 04:
Do you agree that we're not talking about further amendments to the complaint?

[00:00:50] Speaker 04:
You agree the seventh complaint is as good as it's going to get, and you want us to reverse the district court's determination that you did not meet the pleading standards?

[00:01:02] Speaker 04:
And that's the complaint you want to proceed on.

[00:01:05] Speaker 04:
You're not saying, it shouldn't have been with prejudice.

[00:01:08] Speaker 04:
I should have gotten my eighth chance.

[00:01:11] Speaker 02:
I should think I was at the fifth, not the seventh.

[00:01:14] Speaker 02:
I'm sorry.

[00:01:15] Speaker 02:
I added a couple.

[00:01:16] Speaker 02:
No, because I think the issues raised

[00:01:22] Speaker 02:
are going to have to—you need to be addressed one way or another.

[00:01:25] Speaker 02:
And so going further in a further amendment here or there I don't think is necessary.

[00:01:31] Speaker 02:
I would say factually, though, as we—I'm sorry.

[00:01:33] Speaker 01:
I think we understand the situation with the talcum.

[00:01:43] Speaker 01:
what I gather that during the class period and what the problem is the district court here says that there was your plaintiff just didn't really match up with the the ads or statements that she they were

[00:02:07] Speaker 01:
reporting to have seen or so on.

[00:02:10] Speaker 01:
The ones that were clearest about the talcum powder issue were around when this whole issue arose in 2018 when Johnson, when the company made distinct statements about they were safe, there was no danger and so on.

[00:02:27] Speaker 01:
But you don't have any allegation that you saw those as.

[00:02:31] Speaker 02:
So we don't.

[00:02:32] Speaker 02:
And the problem we have is, and this is inherent with this particular product, is this is a product that was for sale to the public, at least with regards to baby powder for over 100 years, with regards to the shower to shower product, that was for sale for over 50 years.

[00:02:48] Speaker 02:
And both plaintiffs

[00:02:51] Speaker 02:
alleged their complaint is that this was a product that they just bought.

[00:02:55] Speaker 02:
This was just something they bought as part of their regular day.

[00:02:59] Speaker 02:
And you can imagine a product that's out for sale for over 100 years isn't just going to be in the home of

[00:03:05] Speaker 02:
of the plaintiffs, it was in the home of their parents, it was in the home of their grandparents.

[00:03:09] Speaker 04:
But this is a false advertising place, and there may have been false advertising 80 years ago, 50 years ago, 25 years ago, but don't you have to plead some false advertising in the class period?

[00:03:26] Speaker 02:
Yes and no, and I think this is, and to give that point, I think two points there.

[00:03:30] Speaker 02:
One, I think there is a strong... Well, count by hundreds, yes.

[00:03:34] Speaker 03:
Is the judge gonna be sort of somehow get this from osmosis?

[00:03:38] Speaker 03:
How are they gonna know what's being claimed?

[00:03:42] Speaker 03:
And let me clarify that point.

[00:03:43] Speaker 02:
So yes, if it's a strict false advertising case, we're also making an admissions claim here, which is that, hey,

[00:03:53] Speaker 02:
There should have been a warning.

[00:03:56] Speaker 01:
But the legal issue with regard to that is the Prop 65.

[00:04:00] Speaker 02:
And so let me, and I thank you for bringing that up because I was going to address that point.

[00:04:05] Speaker 02:
The Prop 65 question, which is out there.

[00:04:09] Speaker 02:
There are a number, the three or actually four recent cases that have come down out

[00:04:14] Speaker 02:
unhelpfully for me, the Southern District of California, dealing with the sale of dark chocolate and the presence of contaminants there involving heavy metals.

[00:04:26] Speaker 02:
And in those cases, heavy metals, like cadmium, lead.

[00:04:31] Speaker 02:
Similar to in this case, we have asbestos, asbestosis fibers.

[00:04:36] Speaker 02:
There's arsenic, et cetera.

[00:04:37] Speaker 02:
There's similar heavy metals.

[00:04:39] Speaker 02:
And there, the scenario, and let me give you quickly the names of these cases.

[00:04:44] Speaker 02:
We have the Grouse versus Hershey case.

[00:04:46] Speaker 01:
Have you cited these?

[00:04:47] Speaker 02:
I have not, because they just came down in the lap very recently.

[00:04:50] Speaker 01:
Well, yes, and you should have sent in 20 AG items.

[00:04:53] Speaker 02:
And I can probably do that process.

[00:04:56] Speaker 01:
Would you please just, and the other thing you can do now when you leave is hand in a list of the cases, or you could have done it today, we have the form for that.

[00:05:04] Speaker 02:
I will be happy to provide that.

[00:05:06] Speaker 01:
But it's not very useful to give us cases now.

[00:05:08] Speaker 01:
We're not going to be able to do that.

[00:05:09] Speaker 02:
I appreciate that, and I apologize for that.

[00:05:11] Speaker 02:
But there are four cases, including two, that just came down

[00:05:15] Speaker 02:
Approximately, the one came down March 31, yeah, et cetera.

[00:05:23] Speaker 02:
So these are fairly recent cases all dealing with the sale of dark chocolate.

[00:05:28] Speaker 02:
And there, there seems to be a general consensus that Prop 65 issue, Prop 65 itself is there primarily as a warning label, as that warning label for cancer-causing issues.

[00:05:44] Speaker 02:
It's also, but it's not supposed to be a bar to other claims involving any other health issues.

[00:05:52] Speaker 02:
And that's, and one of the points I think that was raised in again the case that came down March 31st was this issue

[00:06:02] Speaker 02:
OK, yes, the dark chocolate or the heavy metals in the dark chocolate causes cancer and causes a problem, but it also causes other issues.

[00:06:12] Speaker 02:
And that's certainly what we've alleged in our complaint as well.

[00:06:14] Speaker 02:
So yes, asbestos does cause cancer.

[00:06:17] Speaker 03:
I guess my problem, I've reviewed the complaint, and God knows the district court has here too.

[00:06:24] Speaker 03:
It seems to me that there are sort of cursory statements about

[00:06:31] Speaker 03:
the plaintiffs having viewed, having relied, and that they were exposed to the marketing campaign.

[00:06:38] Speaker 03:
Tell me in the complaint where, when, how the plaintiffs were exposed to that advertisement.

[00:06:47] Speaker 03:
Is it in there?

[00:06:48] Speaker 03:
And if it is, tell me where.

[00:06:51] Speaker 02:
So it's not specifically in there, because again, we can't point to a specific advertisement made

[00:07:00] Speaker 02:
that they could rely on.

[00:07:01] Speaker 02:
Again, this is a product that was for sale for over 100 years.

[00:07:05] Speaker 04:
Are there any advertisements within the class period that you can point to that were prevalent?

[00:07:17] Speaker 02:
We can point to advertisements during the class period that were prevalent, and we attach those exhibits to the complaint.

[00:07:23] Speaker 03:
But not that they viewed them.

[00:07:25] Speaker 02:
and not that they viewed them.

[00:07:27] Speaker 02:
And again, this is the problem.

[00:07:30] Speaker 02:
The problem you have is the product that they're walking into a grocery store or a CVS or whatever and they're purchasing.

[00:07:37] Speaker 02:
And that's where we come back to the in-rate tobacco too issue, which is you're having a marketing campaign that goes on for so long that how do you point out which one when they first decided to start buying this product?

[00:07:51] Speaker 02:
a product that they've bought over and over and over and over and over again throughout the course of their lifetime.

[00:07:56] Speaker 02:
And that was the issue, one of the primary issues in rate tobacco too, was, okay, how do you point to an exact advertisement for someone in the class period when the person was purchasing the product?

[00:08:10] Speaker 01:
It doesn't seem that difficult to allege that from 2015 to 2019 or whatever the exact class period is,

[00:08:17] Speaker 01:
I saw ads of this company that said, you don't need dates, you don't need particular ads, but that said XYZ, that said pure, that said that they were safe, that there was no calc problem, and there's no such allegation.

[00:08:41] Speaker 01:
I mean, even without specifying a particular ad, without specifying a particular date, or even that during the class period, I saw lots of ads that conveyed the message that this was safe and pure and didn't have, and a talc was safe.

[00:09:02] Speaker 01:
There's nothing even like that.

[00:09:04] Speaker 02:
But again, this falls back into the problem.

[00:09:07] Speaker 02:
How can we possibly make that argument

[00:09:11] Speaker 02:
or make that statement and comply with rule 11 and requiring to be truthful, and yet we have class members or the plaintiffs can't point to a particular ad because there's something there.

[00:09:27] Speaker 01:
Let's assume you don't need a particular ad.

[00:09:31] Speaker 01:
Right.

[00:09:32] Speaker 01:
message that was conveyed during the class period was something that the defendant said somewhere or other that .

[00:09:42] Speaker 01:
.

[00:09:42] Speaker 02:
.

[00:09:44] Speaker 02:
Apologies.

[00:09:46] Speaker 02:
We do have those statements.

[00:09:49] Speaker 02:
We have marketing statements that are made during the class period as a .

[00:09:54] Speaker 02:
.

[00:09:54] Speaker 02:
.

[00:09:55] Speaker 01:
But not that you're .

[00:09:56] Speaker ?:
.

[00:09:56] Speaker ?:
.

[00:09:57] Speaker 01:
plaintiffs saw them or knew about them or had anything to do with them.

[00:10:03] Speaker 02:
That's and again that's true but again but in that but also I would say to some degree here you're talking about an extended class period as well because it's not necessarily just four years you're talking about an extension because you have a

[00:10:25] Speaker 02:
you know, a very long campaign, which is a legitimate point, of hiding the ball, of hiding the potential contaminants in these products.

[00:10:34] Speaker 01:
And so... But what it amounts to is that sometime before the class period, these people developed the understanding that this was a safe product and they continued to buy it and they didn't really look at any ads during the class period.

[00:10:50] Speaker 02:
That's correct.

[00:10:51] Speaker 01:
And so the question is, so this is clarifying because if that's your theory, the question is, can we, is that a legally viable theory?

[00:11:03] Speaker 02:
So I think it is given the nature, and again, these are where the concept of emissions and the concept of

[00:11:12] Speaker 02:
of these affirmative statements somewhat blend together, because we were talking about material facts here.

[00:11:18] Speaker 02:
The presence of these contaminants were material facts.

[00:11:21] Speaker 02:
There's no question about that.

[00:11:22] Speaker 02:
As soon as people were aware of the fact that there were contaminants in these products, they stopped buying them.

[00:11:29] Speaker 02:
And as we allege in the complaint, Bausch pulled the product from the market based on that.

[00:11:35] Speaker 02:
We couldn't allege that for JJCI, because JJCI pulled it off after we filed our fifth amended complaint.

[00:11:42] Speaker 02:
But there's no question that this was a material fact for all consumers of the presence of these contaminants.

[00:11:52] Speaker 02:
And again, we go back to this question of Prop 65.

[00:11:56] Speaker 02:
The consensus seems to be that if there are harms caused to the body that are in addition to just cancer or reproductive harms, then you can move forward into an omissions case because, again, in the words of it, because obviously these

[00:12:17] Speaker 02:
These products that may eventually cause cancer also are causing other harms.

[00:12:22] Speaker 02:
In the case of what we cite in the Fifth Amendment Complaint, it creates inflammation and cellular oxidation, which could eventually lead to cancer.

[00:12:36] Speaker 02:
It doesn't always.

[00:12:38] Speaker 02:
There's also risks of asbestiosis, et cetera.

[00:12:43] Speaker 02:
And so we allege all those things in the complaint.

[00:12:48] Speaker 02:
The key point, then, is we then go back into the, we then look into our analysis on omissions.

[00:12:57] Speaker 04:
Now you're in Prop 65.

[00:12:58] Speaker 02:
Well, then I'm in Prop, and let me say, again, I think there are two primary theories here.

[00:13:03] Speaker 02:
Number one, we have an omissions issue, but number two, we do have misstatements made over a period of time going back

[00:13:17] Speaker 01:
in some cases 50 years, in some cases going back 100 years, that are consistently deceptive because they hide the fact of the contaminants.

[00:13:37] Speaker 01:
case did say that they don't have to look at a particular misrepresentation, but it also said that they must have alleged that the defense's misrepresentation was an immediate cause of the injury-causing conduct, right?

[00:13:54] Speaker 01:
But not any particular one.

[00:13:56] Speaker 01:
So what in in re-tobacco supports your theory that they didn't have to do that either?

[00:14:07] Speaker 02:
So again, right, during the class period, and so, right, and so in rate tobacco two, you're talking about obviously the sale of tobacco products and people eventually getting addicted to those products, and then the question is, okay, how can you ask someone to go back prior to their addiction to pick out which ad it was when that may have been 30 years down the line?

[00:14:33] Speaker 02:
What I can say is consistently across the time period

[00:14:37] Speaker 02:
of for these talcum powder products, the consistent message was they're safe.

[00:14:45] Speaker 02:
They're safe for use.

[00:14:47] Speaker 02:
And then as we mentioned in the complaint, the products are placed out on store shelves.

[00:14:55] Speaker 02:
And in the case of baby powder, placed in the infantile.

[00:14:58] Speaker 04:
Why not consider that part of advertising, the product placement?

[00:15:04] Speaker 02:
Product placement, absolutely, because product placement is an important part of advertisements.

[00:15:08] Speaker 02:
Why manufacturers have planograms, which we allege in the complaint.

[00:15:13] Speaker 02:
So a planogram, and they work these out with the retailers, and the products are placed in very specific locations, and the locations are designed so that they increase the sales.

[00:15:28] Speaker 02:
It is also the case that the placement of a product on a shelf can be deemed to be deceptive and give some sort of warranty or some sort of affirmation that the product is safe and usable to the general public.

[00:15:47] Speaker 04:
Did either of your plaintiffs allege that the product placement had something to do with their purchase?

[00:15:54] Speaker 02:
They did, yes.

[00:15:57] Speaker 03:
All right, Council, did you want to save some time?

[00:15:59] Speaker 02:
I do.

[00:15:59] Speaker 02:
Thank you.

[00:16:12] Speaker 05:
Good morning, Your Honor.

[00:16:13] Speaker 05:
May it please the court, Naomi Scotton for LLT, formerly JJCI.

[00:16:20] Speaker 05:
The district court gave plaintiffs six opportunities to plead their claims, as we've discussed.

[00:16:25] Speaker 05:
And in dismissing the third amended complaint, it provided a very clear roadmap for exactly what they needed to do to plead their claims with sufficient specificity.

[00:16:39] Speaker 05:
They needed to allege reliance with particularity.

[00:16:42] Speaker 05:
They couldn't just plead around Prop 65.

[00:16:44] Speaker 05:
And if they thought there was something unsafe about the product,

[00:16:47] Speaker 05:
They needed to explain that in their complaint.

[00:16:51] Speaker 05:
They pled a fourth amended complaint and then a fifth amended complaint, but it still failed for those same basic reasons.

[00:16:57] Speaker 05:
They didn't plead reliance with sufficient particularity.

[00:17:00] Speaker 05:
They were pleading around Prop 65, and they didn't say what was unsafe about the product in their complaint.

[00:17:05] Speaker 05:
For those reasons, the court was correct to dismiss prejudice.

[00:17:10] Speaker 05:
I'd like to start with reliance.

[00:17:13] Speaker 05:
Your honors have correctly identified.

[00:17:14] Speaker 05:
They did not plead exposure to a long-term advertising campaign with sufficient specificity.

[00:17:21] Speaker 01:
If you- Well, they did plead an exposure to a long-term advertising campaign.

[00:17:25] Speaker 01:
The question is whether it had to be within the class period.

[00:17:29] Speaker 01:
I'm looking, excuse me.

[00:17:31] Speaker 01:
At the in re tobacco opinion, it doesn't seem exactly to deal with that question, but it does seem to assume that it didn't really have that the the injury of continuing to

[00:17:45] Speaker 01:
purchased it had to be within the class period, but that the exposure didn't necessarily have to be within the class period.

[00:17:53] Speaker 05:
I agree, Your Honor.

[00:17:54] Speaker 05:
I think that the exposure could extend back.

[00:17:56] Speaker 05:
The problem here is that the complaint doesn't allege that either.

[00:17:59] Speaker 05:
If you look at the complaint and what they actually allege in terms of exposure, they do not say, I saw websites.

[00:18:06] Speaker 05:
They do not say, I saw social media.

[00:18:09] Speaker 05:
They do not say, I saw press releases.

[00:18:11] Speaker 05:
If you look at 2 ER 188 paragraph 96,

[00:18:15] Speaker 05:
That's about as specific as it gets, and there they say they were subject to television advertisements along with the rest of the class.

[00:18:24] Speaker 05:
That's not even saying I saw them, it's kind of just saying I existed at the time that the TV ads existed, and then it kind of vaguely suggests they were also subject to print ads, but it isn't even quite saying that.

[00:18:37] Speaker 05:
They do address three specific TV ads that they say they saw, but those failed the reasonable... Are there other... Okay, and this is a little off.

[00:18:46] Speaker 01:
Are there other cases on this issue pending around?

[00:18:53] Speaker 05:
Are there other UCL actions?

[00:18:55] Speaker 01:
On the TALC issue?

[00:18:57] Speaker 05:
Not to my knowledge.

[00:18:58] Speaker 05:
I see.

[00:19:01] Speaker 05:
I will say that there's another Prop 65 action that mirrors this action where plaintiffs alleged that there were dangerous levels of contaminants in the product.

[00:19:10] Speaker 05:
That was the Hermalinda Luna case we mentioned in our brief.

[00:19:13] Speaker 05:
And in that case, plaintiff's lawyers actually paid JJCI $600,000 to dismiss the case.

[00:19:20] Speaker 05:
I believe it was an attorney's fees after their own expert's report demonstrated the amounts of alleged contamination.

[00:19:27] Speaker 05:
In other words, the plaintiff's experts alleged fell within Prop 65 safe harbor levels.

[00:19:32] Speaker 05:
So even when these cases are litigated, there is no merit there.

[00:19:35] Speaker 05:
The problem here is just the plaintiff's didn't satisfy Prop 65's notice requirements, so we haven't gotten that far.

[00:19:41] Speaker 05:
And then as to the separate affirmative representation claims, these plaintiffs haven't said that they saw them.

[00:19:49] Speaker 05:
So there's just a failure to allege exposure there.

[00:19:52] Speaker 01:
Do you think- Just to be clear, your claim, you're not contending that they had to allege that they saw ads even generally within the class period, but you're saying they didn't allege that they saw any ads ever, essentially?

[00:20:09] Speaker 05:
I think they have to allege that they were misled within the class period, and so I think that the advertising campaign, I mean, it should extend into the class period so that there's a connection between the actual purchases at issue.

[00:20:20] Speaker 05:
I think it can, excuse me, it can extend.

[00:20:22] Speaker 01:
I mean, they continue to purchase during the class period based on what they've seen previously, let's say, but you say that that hasn't been said either.

[00:20:31] Speaker 05:
No, there's just no specificity.

[00:20:33] Speaker 05:
Again, it's about exposure here.

[00:20:34] Speaker 01:
Which was the paragraph you said you thought was the closest

[00:20:36] Speaker 05:
I think it's 96, that's at 2ER 188.

[00:20:46] Speaker 05:
Again, it says in that paragraph that they were subject to ads along with the rest of the class members.

[00:20:51] Speaker 05:
It's not even saying they saw them.

[00:20:53] Speaker 05:
And if you look at the complaints, excuse me, the cases in state court that are applying this, even putting aside Rule 9B's specificity requirements, they're requiring much more that's in this complaint.

[00:21:03] Speaker 05:
For example, plaintiff's case, it's Morgan.

[00:21:06] Speaker 05:
There, plaintiffs were saying we were deceived by AT&T's ads about its phones and its networking.

[00:21:13] Speaker 05:
There, they said we did research about these plans.

[00:21:16] Speaker 05:
We looked it up online.

[00:21:18] Speaker 05:
We came into contact with press releases.

[00:21:20] Speaker 05:
I talked to other people who had seen them.

[00:21:22] Speaker 05:
And then we went to the store, and the things that I saw reinforced what I had seen.

[00:21:26] Speaker 05:
So there are very specific allegations, even just in state court, about how they came into contact with it.

[00:21:32] Speaker 05:
If you look at Bokin, it's a tobacco case that Inri Tobacco II was sort of incorporating the standard from.

[00:21:38] Speaker 05:
Their plaintiffs were saying, we saw billboards.

[00:21:40] Speaker 05:
There were tobacco ads from the time of my childhood everywhere.

[00:21:44] Speaker 05:
They were on sports cars, race tracks, sporting events, just everywhere.

[00:21:49] Speaker 05:
I was inundated with them.

[00:21:50] Speaker 05:
There's just absolutely nothing like that here that explains how plaintiffs came into contact with a long-term saturation advertising campaign.

[00:21:58] Speaker 05:
And if you look at the things that they're pointing out in their complaint, they're not saying they saw them.

[00:22:02] Speaker 05:
For example, press releases, all of the press releases that are attached as exhibit to their complaint were released after they admit that they stopped using the product.

[00:22:11] Speaker 05:
They were in response to the Reuters article that they said caused them to stop using the product.

[00:22:15] Speaker 05:
So this is not a case where they've sufficiently alleged reliance because they have an alleged exposure to a long-term advertising campaign.

[00:22:23] Speaker 05:
Another case that's helpful, a Judge Tiger's opinion in Opperman.

[00:22:28] Speaker 04:
Is it your position that to come within the tobacco to long-term pervasive advertising campaign that the campaign has to continue at least to the class period?

[00:22:42] Speaker 04:
Or can it all be previous?

[00:22:44] Speaker 05:
So I think it does have to continue to the class period.

[00:22:47] Speaker 05:
There has to be an actual connection with the purchases.

[00:22:50] Speaker 05:
I mean, these are claims that are subject to a three- and four-year statute of limitations, so you actually have to be misled within the class period.

[00:22:57] Speaker 05:
I think that's why the class period here starts in 2015.

[00:22:59] Speaker 05:
The complaint, I believe, was filed in 2019, so that's as far— I'm confused.

[00:23:03] Speaker 01:
I thought you said that they didn't—maybe they're just misled because they had seen these things earlier.

[00:23:09] Speaker 01:
I thought you said that they did not actually have to allege that they saw ads during the class period.

[00:23:14] Speaker 05:
I think it should extend into the class period so that you're drawing a connection or otherwise somehow explaining it.

[00:23:20] Speaker 05:
It's just there has to be a connection to the purchases in the class period.

[00:23:23] Speaker 05:
You have to be misled within the class.

[00:23:24] Speaker 01:
Well, as I understand, their connection is, you know, I've seen this for years and I continue to buy because no one told me otherwise, essentially.

[00:23:32] Speaker 01:
If that's the case.

[00:23:33] Speaker 01:
I suppose it's a different form of a disclosure allegation, which says there was an obligation to disclose because you had

[00:23:44] Speaker 01:
created this impression for so long that now you have an obligation to disclose it.

[00:23:49] Speaker 01:
Maybe that's the viable theory, maybe it isn't, but it's within the glass barrier.

[00:23:53] Speaker 05:
So if the failure to disclose claim is based on the existence of affirmative misrepresentations, you just sort of fall into the same issue where they have an alleged reliance on those affirmative misrepresentations with sufficient particularity.

[00:24:06] Speaker 05:
I understand

[00:24:07] Speaker 05:
that you're saying it's possible that there are sort of these old ads that stuck in your head and that influenced you during the class period.

[00:24:15] Speaker 05:
The problem here is if you start breaking out, the ads are identifying.

[00:24:18] Speaker 05:
I mean, for example, purity.

[00:24:20] Speaker 05:
For ads about purity, they have ads, I mean, if you've looked at the complaint, I think it's around paragraph 84 of the complaint where they just include a number of images of historical ads.

[00:24:31] Speaker 05:
They're very, very old.

[00:24:33] Speaker 05:
For purity, I think the last one is dated, the only one that even has a date is dated 1985.

[00:24:39] Speaker 05:
We're talking about purchases three decades later.

[00:24:41] Speaker 05:
And even as to that 1985 ad, they didn't say that they saw it.

[00:24:45] Speaker 05:
So there's just no connection to the actual plaintiffs in this case here.

[00:24:51] Speaker 05:
If the court has any questions about Prop 65.

[00:24:56] Speaker 01:
So what is your understanding of, this is a form of preemption essentially, that you can't have an allegation of a disclosure requirement that would otherwise be covered by Prop 65 that doesn't comply with Prop 65.

[00:25:15] Speaker 01:
And what's the basis for that?

[00:25:17] Speaker 05:
It's cell tech.

[00:25:18] Speaker 05:
It's a California decision where the court said that you can't plead around an absolute barrier to relief.

[00:25:24] Speaker 05:
The absolute barrier to relief here, it's principally the procedural requirements of Prop 65.

[00:25:30] Speaker 05:
The plaintiffs didn't provide 60 days notice.

[00:25:36] Speaker 01:
harms they're alleging are covered by Prop 65.

[00:25:38] Speaker 01:
What about that?

[00:25:40] Speaker 01:
Prop 65, as I recall, covers cancer and reproductive health.

[00:25:44] Speaker 05:
Nothing else?

[00:25:44] Speaker 05:
Yes, Your Honor.

[00:25:46] Speaker 05:
So I'm not sure what those harms are, and that's what the district court said when it was saying they hadn't sufficiently alleged that issues were false or misleading.

[00:25:55] Speaker 05:
If you look at their Prop 65 argument, I believe it's page 37 of their brief, they're explicitly saying they're talking about levels of contamination within Prop 65 safe harbor levels.

[00:26:05] Speaker 05:
And to the extent they're talking about inhalation risks,

[00:26:11] Speaker 05:
They don't really explain this argument in their brief.

[00:26:14] Speaker 05:
I think it's at five ER 940.

[00:26:18] Speaker 05:
The district court went through that and specifically said the bottle discloses inhalation risks, as in the risk that a child will accidentally aspirate the talc.

[00:26:28] Speaker 05:
And we sought judicial notice of those labels.

[00:26:31] Speaker 05:
You can see them at, it's ECF 52.

[00:26:34] Speaker 05:
It's one, two, and three of the district court's docket.

[00:26:37] Speaker 05:
It's just not addressed in their brief.

[00:26:39] Speaker 05:
So to the extent that there's some non-cancer harm, I'm not sure what it is.

[00:26:43] Speaker 05:
I don't think it's been briefed.

[00:26:45] Speaker 05:
And even beyond that, we are talking about carcinogenic chemicals that they're alleging that are regulated by Prop 65.

[00:26:52] Speaker 05:
And so that's sort of how this case has been briefed and what it's been about.

[00:26:57] Speaker 05:
Beyond that, I think it's forfeited.

[00:27:03] Speaker 05:
All right, if the court has no further questions.

[00:27:06] Speaker 05:
Any additional questions?

[00:27:08] Speaker ?:
No.

[00:27:09] Speaker 03:
All right, thank you.

[00:27:11] Speaker 03:
Thank you.

[00:27:19] Speaker 00:
Good morning.

[00:27:19] Speaker 00:
May it please the court, Karen Baumholt on behalf of Bausch Health US LLC.

[00:27:25] Speaker 00:
I will be very brief, hopefully even less than the five minutes I've taken.

[00:27:30] Speaker 00:
You've heard all the reasons why these claims fail as to both defendants, but I'd like to focus very briefly on Bausch and the shower-to-shower product because there is

[00:27:42] Speaker 00:
no allegation throughout six iterations of this complaint as to anything that Bausch, my client, said about the shower-to-shower product.

[00:27:52] Speaker 00:
First, and there's no reliance on anything that my client Bausch said.

[00:27:56] Speaker 00:
So first, tobacco too, as we've discussed, doesn't take away the element of reliance.

[00:28:03] Speaker 00:
But as to Bausch and shower-to-shower body powder,

[00:28:07] Speaker 00:
They have never alleged, these plaintiffs have never alleged not once that they relied on any statement by Bausch about shower to shower.

[00:28:15] Speaker 00:
And I would direct the court's attention to paragraphs 94 and 95 of the fifth amended complaint where plaintiffs tried to allege some sort of reliance on an ad campaign to the extent that they've done anything there.

[00:28:29] Speaker 00:
And I agree with my colleague here as to JJCI, they've really not alleged any reliance at all.

[00:28:36] Speaker 00:
94 and 95.

[00:28:39] Speaker 00:
But where they at least make the attempt, it's with regard to baby powder and statements they claim Johnson & Johnson made.

[00:28:47] Speaker 00:
That's not my client and it's not my client's product.

[00:28:49] Speaker 00:
There's not one word.

[00:28:50] Speaker 00:
Now again, I agree with everything that my colleague representing JJCI had to say, but again, any of the things that are missing there certainly don't work to Bausch and shower to shower.

[00:29:06] Speaker 00:
Plaintiff Gutierrez used Bausch and doesn't even claim to have purchased that product, for example.

[00:29:13] Speaker 00:
Plaintiff Luna, the best that she does is claim that she relied on statements, unspecified statements about baby powder and then somehow transposed those into shower to shower.

[00:29:26] Speaker 00:
That's the closest they ever come to talking about my client or the shower to shower product.

[00:29:35] Speaker 04:
I think it's kind of, I saw what the ingredients were and they're the same.

[00:29:39] Speaker 04:
So what Johnson and Johnson said about baby powder, I relied on to buy shower to shower.

[00:29:46] Speaker 00:
Yes and no.

[00:29:47] Speaker 00:
And the no part is they actually don't say, I saw those products, I compared those things and they're the same.

[00:29:54] Speaker 00:
They say someone might do that and someone might conclude and someone might think it's reasonable to think these two things are the same.

[00:30:02] Speaker 00:
but never have they claimed that Plaintiff Luna actually did that.

[00:30:06] Speaker 00:
And it's the same problem that my colleague spoke of.

[00:30:09] Speaker 00:
There's actually, there's no allegation of actual reliance.

[00:30:13] Speaker 01:
Lumping- The more general allegation of that by selling the products, there was an attestation of merchant ability and that Bausch was part of that.

[00:30:24] Speaker 00:
Well, they've not brought a warranty of merchant ability claim under California code that would govern that, right?

[00:30:31] Speaker 00:
And they've not acclaimed a UCL claim under an unlawful prong.

[00:30:35] Speaker 00:
The problem is that's not the claim that's been asserted here.

[00:30:38] Speaker 00:
And it also can't be the case that simply selling a product then amounts to a false advertising claim or a UCL claim.

[00:30:47] Speaker 00:
And in fact, that's not the law.

[00:30:50] Speaker 00:
And again, as to lumping and the reasons why the district court specifically dismissed the claims as to our client, as to Bausch and the Shower to Shower product, is you just don't see it in this complaint.

[00:31:02] Speaker 00:
And if ever the Dasvino cases and those cases that say you can't lump defendants were to apply, this would be the place.

[00:31:09] Speaker 00:
When you go paragraph after paragraph after paragraph, you see allegations about things that were done

[00:31:18] Speaker 00:
about in the 60s, in the 70s, in the 80s.

[00:31:21] Speaker 00:
It's alleged that Bausch purchased Shower to Shower in 2012.

[00:31:25] Speaker 00:
It is physically, temporally impossible for Bausch to have made any statements or misstatements in the 60s, the 70s, the 80s, and the 90s.

[00:31:35] Speaker 00:
And I won't belabor the point, but simply saying that Shower to Shower has been sold for 50 years cannot be

[00:31:46] Speaker 00:
a misstatement about what is in the product or is not in the product.

[00:31:50] Speaker 00:
That's really the only argument that's been made as to Bausch and Shower to Shower is that we said it's been sold for 50 years and it keeps you fresh and smelling good.

[00:32:00] Speaker 00:
That's just not a misstatement of anything.

[00:32:03] Speaker 00:
Unless the court has further questions, I see my time is almost up.

[00:32:09] Speaker 00:
Any additional questions?

[00:32:10] Speaker 00:
We'll submit on behalf of Bausch.

[00:32:12] Speaker 00:
Thank you, Your Honor.

[00:32:13] Speaker 00:
Thank you.

[00:32:24] Speaker 02:
All right.

[00:32:24] Speaker 02:
Thank you again for hearing me.

[00:32:26] Speaker 01:
Can you tell me again what paragraph in the complaint I should look at, which most clearly has the allegations that you think are necessary here, not on the disclosure issue?

[00:32:42] Speaker 01:
And then my second question is, do you have a disclosure claim that is not

[00:32:47] Speaker 01:
that is tied to the affirmative obligation to make a disclosure because of what was said previously.

[00:32:57] Speaker 01:
Those are two different questions.

[00:32:58] Speaker 02:
Right, right.

[00:32:59] Speaker 02:
I'm trying to catch my breath.

[00:33:01] Speaker 01:
Where in the complaint should I look again?

[00:33:03] Speaker 01:
I've been looking at paragraph 96, 94.

[00:33:08] Speaker 01:
I'm not finding anything there, but maybe I'm missing something.

[00:33:11] Speaker 02:
So where should I be looking?

[00:33:16] Speaker 02:
I apologize.

[00:33:18] Speaker 02:
I would say probably start with 94, but then the next.

[00:33:22] Speaker 01:
All right, so we're in 94.

[00:33:23] Speaker 01:
94 is very long.

[00:33:25] Speaker 01:
We're in 94.

[00:33:27] Speaker 01:
There's a lot of statements about these ads that said that they were asbestos free, but no one says that the, I gather those were later and there's nothing that says that the plaintiffs had any connection to those ads.

[00:33:40] Speaker 01:
So what should I be looking at?

[00:33:44] Speaker 02:
Your honor and unfortunately, I didn't have a copy of the Fifth Amendment in front of me, but I would... That doesn't make a lot of sense.

[00:33:53] Speaker 01:
Everything we're talking about here is what's in the Fifth Amendment.

[00:33:57] Speaker 02:
I understand.

[00:33:59] Speaker 02:
But it would start there.

[00:34:06] Speaker 02:
In terms of the reliance itself, again, trying to make sure that the allegations were not false, we did the best we could.

[00:34:19] Speaker 01:
Quite frankly, and quite frankly, my clients... Maybe you need some different plaintiffs, but anyway, go ahead.

[00:34:22] Speaker 02:
It's possible, but quite frankly, my clients have no recollection of what was the first ad that they saw that induced them to buy the product.

[00:34:31] Speaker 02:
Again, these are products that were literally on the shelves for over 30 years.

[00:34:34] Speaker 02:
They could have very well... It could have been that, it could have been an ad that their parents relied on, or the grandparents relied on.

[00:34:41] Speaker 02:
And that's kind of where we run into the in-rate tobacco too problem.

[00:34:45] Speaker 01:
And that this is a... Run into the fact that you've chose a certain

[00:34:49] Speaker 01:
kind of allegation.

[00:34:51] Speaker 01:
Maybe there's some other kind of lawsuit you could have brought, but this is about the representations that were made and what effect those representations had.

[00:35:01] Speaker 02:
Well, to that extent, we were somewhat boxed in by the ruling on Prop 65.

[00:35:08] Speaker 02:
Look, Prop 65, and to circle back to that, the Prop 65 issue fundamentally

[00:35:18] Speaker 02:
you know, there are certain requirements for a label to be, requirements before a label can be placed based on the overall content of the product.

[00:35:27] Speaker 02:
And Bausch and Johnson & Johnson have made it very clear that they don't, they fall below that level, but there's also an element of deceptiveness and that consumers made it, were not given the opportunity to make a choice as to what the risk factors were.

[00:35:42] Speaker 02:
And we do raise that point over and over again that this is a risk factor issue, that no,

[00:35:48] Speaker 02:
no consumer would put that on their child if they thought it could be contaminated with asbestos.

[00:35:55] Speaker 02:
In terms of the simply selling a product being a representation or violation of unfair competition laws, that is actually a case.

[00:36:03] Speaker 02:
It's in-ray steroid hormone.

[00:36:05] Speaker 02:
We cite to it in our brief.

[00:36:08] Speaker 02:
The other part of it, though, is the idea that the Prop 65 is a direct bar

[00:36:16] Speaker 02:
to any claim of deceptiveness.

[00:36:19] Speaker 02:
Again, we're not seeking the penalties that are allowed under Prop 65.

[00:36:23] Speaker 02:
But any claim of deceptiveness for any harms, if those harms also include cancer, I think is a problem.

[00:36:30] Speaker 02:
And that's, again, where we're at here.

[00:36:33] Speaker 02:
There were absolutely affirmative statements made that this is also largely an omissions case.

[00:36:41] Speaker 02:
And I think the district court was wrong

[00:36:44] Speaker 02:
in its determination that Prop 65 was an absolute bar to that sort of cause of action.

[00:36:48] Speaker 03:
Thank you, counsel.

[00:36:50] Speaker 03:
We appreciate the arguments of both sides.

[00:36:54] Speaker 03:
Thank you so much for that presentation.

[00:36:56] Speaker 03:
We will be in recess.

[00:36:59] Speaker 03:
We will submit this case at this time, and we will be in recess.