[00:00:23] Speaker 02:
All right, Mr. Robinson, you can proceed.

[00:00:26] Speaker 04:
Thank you, Your Honor.

[00:00:27] Speaker 04:
Good morning and may it please the court.

[00:00:28] Speaker 04:
I am Brent Robinson for plaintiff Nicholas Brown, plaintiff and appellant, I should say.

[00:00:33] Speaker 04:
With the court's leave, I would reserve five minutes of my time for rebuttal.

[00:00:38] Speaker 04:
Your Honor, I think the briefing has adequately addressed the detailed pleading and legal issues in this case.

[00:00:44] Speaker 04:
And so with permission, I would bring the court back to a higher level view and focus its attention on what I think is the central question undergirding this case.

[00:00:53] Speaker 04:
whether Mr. Brown has plausibly alleged that Brita's failure to warn about the limits of its filtration system is likely to deceive a reasonable consumer.

[00:01:06] Speaker 04:
Because this case, unlike the case involving Moore versus Trader Joe's, which I didn't realize we were going to talk about so much today, but unlike that case, which involves specialized allegations around Manica honey, which only really makes sense in context for somebody who knows the honey market.

[00:01:23] Speaker 00:
But doesn't BRITA provide a performance data sheet?

[00:01:27] Speaker 00:
And how is that not enough information for someone to look at and say, oh, there's some stuff it just doesn't fully clean out of my water?

[00:01:34] Speaker 04:
Yeah, Your Honor, for a few reasons.

[00:01:36] Speaker 04:
First, it's hidden behind the QR code, and it's unreasonable and unlikely.

[00:01:40] Speaker 04:
And we've been alleged that only 7% to 11% of consumers would even look at the back label, let alone for a $17 filter, whip out their phones, and check internet research.

[00:01:51] Speaker 04:
But California law is also clear that it's not required.

[00:01:53] Speaker 04:
Consumers are not required to clarify representations made by looking to back labels or other sources.

[00:02:00] Speaker 04:
And also, those data sheets don't disclose what the product doesn't do, which is the issue here.

[00:02:06] Speaker 04:
The issue here, this is a complete omission case, a failure to disclose information that is necessary to disclose to avoid misleading a reasonable consumer.

[00:02:16] Speaker 01:
What council, what would lead a reasonable consumer to think that the Brita product would eliminate all contaminants?

[00:02:25] Speaker 01:
That's exactly it.

[00:02:26] Speaker 01:
The label says reduce.

[00:02:27] Speaker 01:
Reduce doesn't mean remove altogether.

[00:02:30] Speaker 04:
That's true your honor and I don't dispute the English language aspect of that, the definitional notion of remove versus reduce.

[00:02:37] Speaker 04:
But that's exactly what I want to focus on today, because unlike the consumers who might know that for honeys, they're not going to just eat off of Monica flowers and bring their nectar to the hive, right?

[00:02:49] Speaker 04:
Because bees be bees.

[00:02:51] Speaker 04:
But with these consumers, Mr. Brown has alleged that he is unexperienced, untrained, and uneducated in water filtration technologies.

[00:02:58] Speaker 04:
And that's going to be true for the consumers that he would represent in this case.

[00:03:02] Speaker 04:
So the knowledge that these consumers have about tap water and filtration needs comes from our collective experience, so to speak.

[00:03:12] Speaker 04:
So, for example, consumers know from perhaps children having watched at this point, Aaron Brockovich, they know that hexavalent chromium through industrial applications may risk leakage into the water tables and then thus into tap water supplies.

[00:03:28] Speaker 04:
They know from recent events in the last decade in Detroit and elsewhere,

[00:03:33] Speaker 04:
that lead pipes, old lead pipes in municipal water distribution systems can cause lead to seep into tap water and cause lead poisoning in children especially.

[00:03:44] Speaker 01:
That would be the problem with the piping and the distributor, not Brita's filtration, right?

[00:03:50] Speaker 04:
That is true at the first step, Your Honor, but what I'm talking about is the reasonable expectations of consumers.

[00:03:54] Speaker 04:
And Mr. Brown has alleged with specificity about his tap water in Los Angeles a large number of what are in fact common contaminants in tap water across our country, but specifically that are present in his tap water, including hexavalent chromium, including arsenic, including nitrate and nitrite, all of which are present in what levels that far exceed established recognized guidelines for safe consumption.

[00:04:19] Speaker 00:
So Council, I'm with you in that people are now a little bit more aware, given everything that's happened, Aaron Brockovich, everything in Detroit.

[00:04:27] Speaker 00:
I'm from the Central Valley.

[00:04:28] Speaker 00:
We have a lot of water issues there.

[00:04:29] Speaker 00:
But I'm not following them not understanding the difference between reduce and remove.

[00:04:35] Speaker 04:
Well, Your Honor, it doesn't even get to the label yet, because what I'm describing is a consumer who is concerned about the health implications for their tap water, and then they look for a solution.

[00:04:48] Speaker 04:
And they see the Brita filter, which is identified as a filter for tap water.

[00:04:54] Speaker 00:
But it's not saying it's a solution to all water problems.

[00:04:56] Speaker 00:
It's saying we will reduce.

[00:04:59] Speaker 00:
We're not removing.

[00:05:00] Speaker 00:
We're not going to say, hey, at the end of the day, you're going to have safe, clean, free of everything tap water.

[00:05:05] Speaker 00:
You're going to have tap water that may be reduced with certain chemicals in it.

[00:05:09] Speaker 04:
That's true, Your Honor.

[00:05:10] Speaker 04:
But it says reduce these chemicals and more.

[00:05:14] Speaker 04:
It says three times contaminants.

[00:05:15] Speaker 04:
And so the impression that a reasonable consumer might have going into this, and we think that we've plausibly alleged this, is that

[00:05:22] Speaker 04:
This is a tool to filter tap water, to remove what I would expect are the risks at present in my tap water, and it's not clear from the label that it's not going to do that.

[00:05:34] Speaker 04:
And so we need a warning.

[00:05:42] Speaker 04:
And what is clear is that Mr. Brown has alleged he bought this filter, his filters, because he wanted to protect his health.

[00:05:49] Speaker 04:
And the filter says it would make tap water specifically healthier and cleaner.

[00:05:54] Speaker 04:
And he assumed, as we suggest a reasonable consumer would, that that means that this filter is going to protect against what is commonly seen in tap water.

[00:06:03] Speaker 04:
It doesn't do that.

[00:06:04] Speaker 04:
And Britta, it concedes that they knew that it doesn't do that.

[00:06:07] Speaker 04:
And that, of course, is obvious, I think, in some level based on

[00:06:11] Speaker 04:
any number of things, but putting aside that, the labels are what's important here.

[00:06:14] Speaker 02:
Well, is it true that the Brita filter eliminates some hazardous materials or reduces the overall quantity of the toxins in the water in LA?

[00:06:28] Speaker 04:
Yes, Your Honor, it does, but only for the specific ones that it is designed to remove.

[00:06:33] Speaker 04:
And that's where the deception comes into play, because the consumer is not going to know, just based on the information that's immediately available to them at the time of purchasing decision, what the limitations are on this product.

[00:06:44] Speaker 04:
And the reason, I acknowledge that for face value this seems like a much closer case, until

[00:06:51] Speaker 04:
you consider the perspective of the reasonable consumer and what they are trying to do to the problem that they are trying to solve, because this product, it is undisputed, does not solve that problem.

[00:07:03] Speaker 04:
It solves some problems, and if you get into the technical details and the QR code and the back of the package and then go hunting, you realize that the filtering going on here is just a drop in the proverbial bucket.

[00:07:17] Speaker 04:
Compare the situation, though.

[00:07:18] Speaker 04:
with the parade of horribles that Brita referenced in its answering brief.

[00:07:24] Speaker 04:
N95 masks don't have a warning, they say, that this doesn't solve all of your ills.

[00:07:29] Speaker 04:
But in fact, it does.

[00:07:30] Speaker 04:
It's built into the name.

[00:07:32] Speaker 04:
It only filters, N95 by its very title, only filters 95% of airborne particulates.

[00:07:38] Speaker 04:
So that warning about the limitations of efficacy are right there on the label to address the reasonable expectations consumers might otherwise have.

[00:07:47] Speaker 04:
Same thing with sunscreen.

[00:07:50] Speaker 04:
An SPF factor literally discloses the extent to which that product will shield you from harmful radiation emitted by the sun.

[00:08:00] Speaker 01:
So an AD- What would you have Brita do on its label?

[00:08:04] Speaker 01:
What would you modify?

[00:08:06] Speaker 04:
I would have them place a warning on their label.

[00:08:09] Speaker 04:
about the limits of their filtration technology and specifically tell consumers, warning, this product does not reduce or remove common contaminants present in tap water, all common, all contaminants present in tap water.

[00:08:24] Speaker 01:
So the consumers know that... It does reduce, doesn't it?

[00:08:26] Speaker 04:
It reduces some.

[00:08:28] Speaker 04:
It reduces the ones that, again, are stashed away in the QR code slash report you can access through its website.

[00:08:35] Speaker 04:
But it doesn't reduce all.

[00:08:36] Speaker 04:
And that's the key thing here, because these consumers are faced with an environment that is increasingly imperiled.

[00:08:41] Speaker 04:
I mean, we're seeing news reports every single day.

[00:08:43] Speaker 04:
The reality is that microplastics, forever chemicals, we're learning that those are everywhere and everything, including us, and more importantly, they're in our tap water.

[00:08:52] Speaker 04:
which is an increasing threat not only to ourselves but our children.

[00:08:56] Speaker 00:
In your mind, would it be sufficient for Brita to say they don't reduce every contaminant in drinking water or do they specifically have to say we don't reduce microplastics, we don't reduce some other things but by name?

[00:09:12] Speaker 00:
What is sufficient?

[00:09:13] Speaker 04:
I think it would be sufficient to say that they don't reduce or remove common hazardous contaminants present in tap water.

[00:09:24] Speaker 04:
I think it's not necessary to get into the weeds to that full extent, although I think the appropriateness of an appropriate remedy might be subject to discovery, frankly.

[00:09:34] Speaker 04:
I think we've alleged it broadly.

[00:09:36] Speaker 04:
But I think the key here is

[00:09:39] Speaker 04:
The question is whether we've plausibly alleged consumer deception.

[00:09:43] Speaker 04:
And I think based on what a reasonable consumer would know and understand about the threats that they face and what this product appears to do for them based on just representations on the label, I think we have plausibly alleged that Brita

[00:09:59] Speaker 04:
has a duty to disclose the limits of its filtration technology in order to avoid deceiving consumers.

[00:10:06] Speaker 04:
And so for those reasons, Your Honor, we would respectfully urge the court to reverse the district court's order dismissing this case and remand for further proceedings so that Mr. Brown's allegations, his plausible claims of consumer deception, can undergo the rigors of discovery, class certification, and a trial in front of a jury of his peers so they can weigh these materiality issues.

[00:10:29] Speaker 02:
All right.

[00:10:29] Speaker 02:
Thank you, Council.

[00:10:30] Speaker 04:
Thank you, Your Honours.

[00:10:51] Speaker 03:
Good morning.

[00:10:52] Speaker 03:
May it please the court, Jonah Nobler of Patterson Belknap for Appoli Britta Products Company.

[00:10:57] Speaker 03:
The plaintiff here bought Brita's entry-level water filter with an accompanying pitcher.

[00:11:03] Speaker 03:
That package said the filter reduces five specifically named contaminants, contra what you heard a moment ago

[00:11:11] Speaker 03:
The package does not say the product reduces these five and more.

[00:11:16] Speaker 03:
The front label says that it reduces chlorine, mercury, copper, and more and explicitly points readers to the back panel for additional information.

[00:11:26] Speaker 03:
There on the back panel, not under a QR code, not on the internet, it says the five chemicals explicitly, chlorine, mercury, copper, cadmium, and zinc.

[00:11:36] Speaker 03:
That's all right there on the box.

[00:11:39] Speaker 03:
There's no dispute that the product does what it says.

[00:11:42] Speaker 03:
Independent standard setting bodies have certified it as reducing those five named contaminants to EPA acceptable levels.

[00:11:50] Speaker 03:
The package doesn't say that the product reduces any other contaminant besides the listed five, still less that it completely removes everything.

[00:12:00] Speaker 03:
Yet that's how this plaintiff purports to have understood the label.

[00:12:04] Speaker 03:
Below, his main theory was affirmative misrepresentation.

[00:12:08] Speaker 03:
The district court rightly dismissed that theory.

[00:12:11] Speaker 03:
It held that no reasonable consumer could perceive what this plaintiff perceived from the product's label.

[00:12:17] Speaker 03:
And that holding has not been appealed.

[00:12:19] Speaker 03:
That's critical.

[00:12:21] Speaker 03:
The plaintiff has not appealed the holding that, given what this label says, reasonable consumers could not expect complete expungement of all contaminants.

[00:12:30] Speaker 03:
That is the unappealed law of the case.

[00:12:32] Speaker 03:
What remains is this omissions theory that Brita still somehow deceives consumers by failing to exclude an express disclaimer that it doesn't do what the district court already held reasonable people don't think it does.

[00:12:47] Speaker 03:
That theory fails for multiple reasons.

[00:12:49] Speaker 03:
I'd like to focus on reasonable consumer and then duty.

[00:12:53] Speaker 03:
The reasonable consumer analysis here is simple.

[00:12:56] Speaker 03:
Again, the district court held that the express statements on the package already make clear the limits of what the filter does.

[00:13:03] Speaker 01:
Council, I'm sorry to interrupt, but the district court didn't address the material emissions theory that the appellant is bringing before us today, right?

[00:13:13] Speaker 03:
That's not correct, Your Honor.

[00:13:14] Speaker 03:
There was a short discussion of it.

[00:13:17] Speaker 03:
What the district court held was, given that reasonable consumers would not be confused about what's on the label,

[00:13:24] Speaker 03:
No omission is necessary to correct deception.

[00:13:28] Speaker 01:
So you're right, the district court did... But there's another branch of that theory, which is you have to warn someone, regardless of whether there was a misleading affirmative statement of some sort of safety hazard or a defect in the central functioning of the product.

[00:13:41] Speaker 01:
That wasn't addressed at all, right, by the district court?

[00:13:44] Speaker 03:
Your Honor, let's be clear.

[00:13:46] Speaker 03:
there never is an obligation to warn if there is no deception absent the warning.

[00:13:53] Speaker 03:
So you are correct.

[00:13:54] Speaker 03:
There are two situations where there is a duty to disclose.

[00:13:57] Speaker 03:
One is where it's necessary to correct a false affirmative statement.

[00:14:01] Speaker 03:
One is the test, the Hodgson test, which we'll talk about.

[00:14:05] Speaker 03:
But regardless of those tests, if

[00:14:08] Speaker 03:
A disclosure is not necessary to correct deception.

[00:14:11] Speaker 03:
If there would be no deception absent a disclosure, then the disclosure is futile, it's unnecessary, it's superfluous.

[00:14:19] Speaker 03:
So that's what the district court held.

[00:14:20] Speaker 01:
Right, and that's fine.

[00:14:22] Speaker 01:
I think the district court held.

[00:14:23] Speaker 01:
But again, apart from that, under the law, it appears to me that there is a duty to warn of a defect.

[00:14:32] Speaker 01:
Not to correct any misstatement, but a duty to warn of a defect, whether it be a defect in the central functioning or a defect inherent in the safety hazards that the product contains.

[00:14:45] Speaker 01:
And that, I don't think that, I don't see it in the opinion.

[00:14:48] Speaker 03:
Well, let's go to that, but again, I would say that if reasonable, the defect here is that the product doesn't do X, Y, and Z, okay?

[00:14:58] Speaker 03:
It's not that this product will catch fire.

[00:15:00] Speaker 03:
I agree with you that if,

[00:15:02] Speaker 03:
if there could be an independent duty to disclose that.

[00:15:05] Speaker 03:
But this is a unique case in that the supposed defect is just the inverse of what is said already on the label.

[00:15:11] Speaker 03:
The defect is we don't do Y and Z. It says on the label we do X and only X. So this is a unique case where you don't need to go through that whole duty to disclose analysis because it can't possibly deceive to not disclose what the product doesn't do.

[00:15:25] Speaker 03:
But let's talk about duty to disclose.

[00:15:28] Speaker 03:
There are two types of defects that can trigger a disclosure duty.

[00:15:31] Speaker 03:
an unreasonable safety hazard defect and a central function defect that renders the product incapable of use by any consumer.

[00:15:40] Speaker 03:
There's no unreasonable safety hazard defect here.

[00:15:43] Speaker 03:
In every single case where courts have found such a defect,

[00:15:46] Speaker 03:
The product created a new dangerous condition that didn't exist before, a dishwasher that catches fire, or a car whose engine explodes.

[00:15:54] Speaker 03:
All of plaintiff's cases are of that form.

[00:15:57] Speaker 03:
Here, by contrast, the only alleged safety hazard is the background condition of tap water.

[00:16:02] Speaker 03:
Plaintiff has been exposed to that purported hazard his entire life.

[00:16:06] Speaker 03:
So have we all.

[00:16:07] Speaker 03:
I'm exposing myself to it right now.

[00:16:10] Speaker 03:
Plaintiff can't allege that Brita's filter created that hazard, let alone made it any worse.

[00:16:15] Speaker 03:
To the contrary, council just admitted a moment ago that it makes that risk better.

[00:16:19] Speaker 03:
It reduces that risk.

[00:16:21] Speaker 03:
No case has ever found an unreasonable safety hazard defect where the relevant risk pre-existed the product and indeed the product reduces that risk.

[00:16:31] Speaker 03:
In his reply brief, the best plaintiff could come up with was a case called Sloan versus General Motors, but I read that case, and that case involves a car with an oil defect that causes the engine to shut down and catch fire.

[00:16:43] Speaker 03:
That merely proves Britta's point.

[00:16:45] Speaker 03:
A car crash or an auto fire isn't a background risk of life which people would face anyway, even if they never bought a car.

[00:16:53] Speaker 03:
Tap water is.

[00:16:55] Speaker 03:
The complaint doesn't plausibly allege that the risk of drinking LA tap water rises to the level of what case law recognizes as unreasonable.

[00:17:04] Speaker 03:
Take this court's decision and plum baby food.

[00:17:07] Speaker 03:
In that case, the defendant was selling baby food with toxic heavy metals in it.

[00:17:11] Speaker 03:
But this court found no unreasonable safety hazard requiring disclosure.

[00:17:15] Speaker 03:
For one thing, heavy metal contamination was widespread in the environment, so it wasn't something wholly abnormal.

[00:17:22] Speaker 03:
And for another thing, none of the plaintiffs in that case alleged their children had gotten sick.

[00:17:26] Speaker 03:
This case is even weaker than that.

[00:17:29] Speaker 03:
Here, as we note in our brief, regulators at every level of government say that plaintiffs top water is safe.

[00:17:35] Speaker 03:
Indeed, LA Department of Water and Power says that it's among the best anywhere.

[00:17:39] Speaker 03:
And that's even before it's been run through a Brita filter.

[00:17:42] Speaker 01:
But isn't that a question of fact?

[00:17:44] Speaker 01:
Whether tap water is safe now and as I understand your friend's theory on the other side that Brita's labeling and Brita's product gives the impression that it would ameliorate these hazards associated with tap water.

[00:18:01] Speaker 01:
And if that's not true, then there's a duty to warn that's created.

[00:18:07] Speaker 01:
So Brita is not creating the unsafe background condition, but Brita is promising on their theory to ameliorate that adverse background condition.

[00:18:19] Speaker 01:
And if it's not doing so sufficiently, then Brita has the obligation

[00:18:23] Speaker 01:
to warn.

[00:18:24] Speaker 03:
Your Honor, Brita is promising to reduce five specific chemicals to the levels that it says on its packaging that it will reduce.

[00:18:31] Speaker 03:
There is no dispute about that.

[00:18:33] Speaker 03:
It doesn't say anywhere that it will remove them all.

[00:18:36] Speaker 03:
It doesn't say anywhere that it will reduce every chemical.

[00:18:40] Speaker 03:
So that's just something that plaintiffs unreasonably leaped to.

[00:18:43] Speaker 03:
Reasonable consumers could not, and this is not challenged.

[00:18:46] Speaker 03:
This is the affirmative misrepresentation holding that Judge Gee reached below, and he has not challenged.

[00:18:52] Speaker 03:
she held that reasonable consumers would look at these express statements on the label and understand this product reduces five chemicals and no more.

[00:19:01] Speaker 03:
That is law of the case.

[00:19:02] Speaker 03:
So maybe in another case, this court could explore, you know, when there's an obligation to disclose, but not when there is an unappealed holding that reasonable consumers understand what this product does and doesn't do.

[00:19:14] Speaker 03:
I'd like to touch on the central function test now.

[00:19:17] Speaker 03:
In Hodgson, this court held that

[00:19:19] Speaker 03:
To have a central function defect, the product must be so broken that it's incapable of use by any consumer.

[00:19:25] Speaker 03:
That's not this case.

[00:19:27] Speaker 03:
The filter does exactly what the label says it will.

[00:19:30] Speaker 03:
That might not satisfy Mr. Brown, but it's perfectly satisfactory for others, for example.

[00:19:36] Speaker 03:
Many people use this entry-level filter to reduce the taste of chlorine in their water.

[00:19:40] Speaker 03:
That's right there in the complaint.

[00:19:42] Speaker 03:
One of the advertising claims is better tasting water.

[00:19:44] Speaker 03:
And it says on the back, reduces chlorine, parentheses, taste and odor.

[00:19:49] Speaker 03:
Those people don't care about uranium.

[00:19:51] Speaker 03:
They just want their water to taste better.

[00:19:53] Speaker 03:
This filter isn't incapable of use by those consumers or by many consumers who are satisfied with an entry-level filter.

[00:20:01] Speaker 03:
Plaintiff argues in his reply brief that for a central function defect, there need not be a complete loss of utility and that all that's required is that the defect somehow relate to the product's central function.

[00:20:12] Speaker 03:
That is wrong.

[00:20:13] Speaker 03:
This court rejected that exact argument in Knowles versus Aris International.

[00:20:18] Speaker 03:
The site is 847 Federal Appendix 512 at footnote one.

[00:20:23] Speaker 02:
Does Greta offer other filters, like not in she level,

[00:20:29] Speaker 02:
actually reduce some of the other contaminants that Mr. Brown is talking about?

[00:20:37] Speaker 03:
Yes, Judge Wardlaw, thank you for asking that.

[00:20:39] Speaker 03:
That's one of the contextual inferences of the type that you wrote about in Moore versus Trader Joe's.

[00:20:44] Speaker 03:
This product appears on shelves next to more expensive Brita filters, this is all in the complaint, whose labels say they reduce far more contaminants than this one does and cost more.

[00:20:54] Speaker 03:
A reasonable shopper wouldn't assume that this entry-level standard filter that Mr. Brown paid $15 for at a grocery store does everything that those other more expensive products that list 15 or 20 or 30 contaminants on their labels do, and then even more beside that.

[00:21:10] Speaker 03:
That is a contextual inference that I think is fair to make, especially when all those labels are pled in the complaint.

[00:21:15] Speaker 03:
Indeed, one of the false statements that Judge Gee considered below and rejected was of the elite filter reduces three times more contaminants than the entry-level filter.

[00:21:25] Speaker 03:
So if that is a statement being made of these products, this plaintiff must know that these products filter different numbers of contaminants and that the entry-level filter doesn't reduce everything.

[00:21:37] Speaker 03:
That's just basic logic.

[00:21:40] Speaker 03:
Getting back to duty to disclose.

[00:21:44] Speaker 03:
Again, this plaintiff has not alleged that whatever the limitations of this product render it unusable to every consumer.

[00:21:51] Speaker 03:
And this plaintiff has not alleged that a unreasonable safety hazard.

[00:21:58] Speaker 03:
Again, the risk that the test is not any safety hazard.

[00:22:01] Speaker 03:
It has to be unreasonable.

[00:22:02] Speaker 03:
And as Williams versus Yamaha Motors held, and as this court held in Plum Baby Food, safety hazards that are

[00:22:10] Speaker 03:
widely known, that are not completely expected, that are not freakish accidents, don't count.

[00:22:16] Speaker 03:
In plum baby food, which again involved vulnerable children eating baby food containing heavy metals, the court said that heavy metals are ubiquitous in our environment, so that's not the kind of unreasonable safety hazard that you'd have to disclose, like an exploding washing machine.

[00:22:32] Speaker 03:
Here, look at paragraph 24 of the complaint.

[00:22:36] Speaker 03:
It alleges that arsenic is, quote, naturally found in the earth's crust and is widely distributed throughout the environment in the air, water, and land.

[00:22:45] Speaker 03:
It also alleges that no segment of our society can escape exposure to PFAS.

[00:22:50] Speaker 03:
These kinds of things are just what this court looked at in Plum Baby Food and said, perhaps these are risks.

[00:22:55] Speaker 03:
Perhaps these are things that consumers wouldn't want, but they don't rise to the level of an unreasonable safety hazard under the narrow and specific duty to disclose theory.

[00:23:06] Speaker 03:
And that's important because if you open up the disclosure duty to anything a consumer might care about,

[00:23:12] Speaker 03:
your product labels would look like stock prospectuses.

[00:23:15] Speaker 03:
There needs to be clear and narrow rules about the specific things that have to be affirmatively disclosed so that manufacturers know what needs to go on their labels and the labels don't get overrun with warnings that will obscure the warnings that are truly important.

[00:23:30] Speaker 01:
Council, why isn't it a question of fact as to whether a safety hazard is reasonable or unreasonable?

[00:23:38] Speaker 03:
So in case after case, this court has resolved this at the pleading stage.

[00:23:42] Speaker 03:
Williams versus Yamaha was absolved at the pleading stage.

[00:23:46] Speaker 03:
The Harris versus Knowles decision from this court was resolved at the pleading stage.

[00:23:50] Speaker 03:
The Kali Bamboo case, this court resolved it at the pleading stage in all of these decisions affirming the district court's dismissal.

[00:23:58] Speaker 03:
And the reason why it isn't a question of fact is because, first of all, we don't create the hazard, that is just

[00:24:06] Speaker 03:
There's never been any case where a product that reduces hazard was held to have an unreasonable safety hazard defect.

[00:24:12] Speaker 03:
So that's not a question of fact.

[00:24:13] Speaker 03:
That's just unprecedented.

[00:24:15] Speaker 03:
And even then, drinking tap water that we're all exposed to all the time every day of our life cannot rise to the level of unreasonable in the meaning of Williams versus Yamaha and Plum Baby Food.

[00:24:27] Speaker 03:
There might be other cases where it's a fact issue.

[00:24:29] Speaker 03:
It's not here.

[00:24:30] Speaker 03:
Finally, even if they did allege a safety hazard that qualified or a central function defect, they'd need to allege exclusive knowledge.

[00:24:37] Speaker 03:
That's the other half of the duty to disclose test.

[00:24:40] Speaker 03:
And they can't do that here.

[00:24:41] Speaker 03:
As Judge Gee held below, Brita's own product labels already communicate to reasonable consumers what the products do and don't do.

[00:24:50] Speaker 03:
So the supposed defect, right, we don't reduce uranium

[00:24:54] Speaker 03:
is already something that reasonable consumers know just from reading the labels.

[00:24:59] Speaker 01:
Your time is running out.

[00:25:00] Speaker 01:
I have one last question about amendment of the complaint.

[00:25:03] Speaker 01:
So why shouldn't the district court give plaintiff another chance at this, another shot at this?

[00:25:09] Speaker 03:
Two reasons.

[00:25:10] Speaker 03:
One, the plaintiff never

[00:25:11] Speaker 03:
filed a proper request below, all he did was, at the last sentence of his opposition brief, said, if the court dismisses, we want to amend.

[00:25:19] Speaker 03:
Didn't specify what they'd say, didn't specify what they'd add.

[00:25:23] Speaker 03:
This court in Foscaris and courts across the country have held that's not enough.

[00:25:27] Speaker 03:
Also, even now, in any of the briefing, this plaintiff has not said what he could or would add.

[00:25:32] Speaker 03:
And it's clear there's nothing he could add, given the unappealed reasonable consumer holding establishes as law of the case that consumers already know what the products do and don't do, given he can't possibly allege exclusive knowledge because it's in our performance data sheets, it's on our website, this is all undisputed.

[00:25:49] Speaker 03:
It would be futile to allow amendment.

[00:25:52] Speaker 03:
Thank you.

[00:25:53] Speaker 02:
Thank you, counsel.

[00:26:02] Speaker 04:
I shall endeavor not to use all of my remaining time.

[00:26:05] Speaker 04:
A few points, Your Honor, just in response to my friend's comments.

[00:26:10] Speaker 04:
First, this is on de novo review.

[00:26:12] Speaker 04:
This Court's not bound by the District Court's decisions, even if they're not appealed here.

[00:26:17] Speaker 04:
You have complete plenary review of the record and all aspects to it in deciding this complete omission theory that, Your Honor, was correct, is not addressed in the District Court's decision at all.

[00:26:29] Speaker 04:
Partial omission is, but not complete omission.

[00:26:35] Speaker 04:
My friend addressed the Sloan versus GM case, the one involving the low fuel, low oil level warning in cars.

[00:26:43] Speaker 04:
And just to be clear, any internal combustion engine that uses oil as a lubricant, if you let it run all the way down, it will catch fire eventually or cease.

[00:26:54] Speaker 04:
I mean, that's just the inherent risk of an internal combustion engine.

[00:26:59] Speaker 04:
And so the oil level warning,

[00:27:03] Speaker 04:
dealt with an inherent risk, and it made it less risky if it was working functionally and it wasn't.

[00:27:10] Speaker 04:
And that was enough to create a safety risk there.

[00:27:17] Speaker 04:
And so it's similar here.

[00:27:18] Speaker 04:
The Sprita filter product and the reasonable consumer would expect this product to make their tap water safer.

[00:27:25] Speaker 04:
And it does to some extent, but not to the extent the reasonable consumer would expect, and so we need a warning here.

[00:27:31] Speaker 04:
The question of central ask you quickly.

[00:27:34] Speaker 02:
What would if you if you were given leave to amend?

[00:27:37] Speaker 02:
What would you?

[00:27:38] Speaker 02:
What could you add to bolster this complaint?

[00:27:42] Speaker 04:
Well your honor we've We've referenced three things in our briefing we could we could allege further particulars particularity regarding contamination levels in our clients tap water and

[00:27:53] Speaker 04:
in case the court's concerned about the safety aspect of what risk of exposure is actually present here, although I frankly think that we've alleged quite a bit there.

[00:28:01] Speaker 04:
For example, my friend referenced arsenic.

[00:28:03] Speaker 04:
Arsenic is common in the environment, but it's not necessarily common in tap water.

[00:28:08] Speaker 04:
And the complaint specifically alleges that Los Angeles' tap water has been tested and found to have five times the minimum or the maximum exposure level for arsenic, five times.

[00:28:19] Speaker 04:
And so tap water in Los Angeles, where our client lives, is especially risky.

[00:28:25] Speaker 04:
And arsenic, I think it's table five, exhibit five of the complaint, Your Honor, has the full table showing all of the contaminants and whether the products that issue here filter them.

[00:28:35] Speaker 04:
Arsenic is not filtered by any of them.

[00:28:37] Speaker 01:
Council what about the argument on the other side being made that that Britta is not creating that background condition right and so therefore doesn't have a duty to warn and if we were to hold that that would be a very novel holding novel proposition

[00:28:52] Speaker 04:
I don't think it's novel, Your Honor, in the product liability side of things.

[00:28:56] Speaker 04:
And here we have exposure to toxic chemicals.

[00:28:58] Speaker 04:
So the concerns that have animated other courts in reluctance to bring product liability into this consumer space, I think that's mitigated here because we are dealing with something that is indisputably dangerous.

[00:29:10] Speaker 01:
It's not a danger created by the Brita product.

[00:29:14] Speaker 04:
No, Your Honor, but it's an endanger inherent to what the reasonable consumer expects about water filtration and the risks that they're trying to resolve by using water filtration products.

[00:29:25] Speaker 01:
What's your best case for that proposition?

[00:29:28] Speaker 04:
Yes, Your Honor, just give me one second to pull it up here.

[00:29:31] Speaker 04:
I apologize for the time delay.

[00:29:57] Speaker 04:
I am sorry, Your Honor.

[00:29:58] Speaker 04:
I will confess that I don't always smart your time by digging.

[00:30:01] Speaker 01:
Okay, we'll review the briefs again.

[00:30:03] Speaker 04:
We do cite them in our reply brief.

[00:30:04] Speaker 04:
I do remember specifically this issue being addressed there and forgive me again for not having that on hand.

[00:30:10] Speaker 04:
I want to address the central functioning aspect of this.

[00:30:14] Speaker 04:
I think this court's decision in Hodson is pretty clear that when it said completely incapable of use, it was responding to what the plaintiff there had alleged.

[00:30:22] Speaker 04:
He didn't have a use for this chocolate because it was made using slave labor in the supply chain.

[00:30:28] Speaker 04:
But chocolate was not incapable of use, and that was the rejoinder to that.

[00:30:31] Speaker 04:
But the actual analysis of the opinion focuses on

[00:30:34] Speaker 04:
things that are impacting central utility.

[00:30:37] Speaker 04:
Now here we have a filter that the reasonable consumer looks at and expects based on any number of factors, including what it specifically stated on the label, is going to make my tap water safer and healthier.

[00:30:51] Speaker 04:
That's the central function.

[00:30:52] Speaker 04:
Does this product filter my tap water and make it healthier?

[00:30:56] Speaker 04:
And as we've alleged, we think without a warning, a consumer's going to be deceived about whether it does so.

[00:31:00] Speaker 04:
I see my time is up, unless you have a question, Your Honor.

[00:31:04] Speaker 02:
Thank you, Your Honor.

[00:31:05] Speaker 02:
Thank you.

[00:31:05] Speaker 02:
Thank you, Council.

[00:31:06] Speaker 02:
Brown versus the Breeder Products Company is submitted.

[00:31:13] Speaker 02:
This session, of course, is adjourned for today.

[00:31:15] Speaker 02:
And the panel is going to conference briefly about these cases, and then

[00:31:24] Speaker 02:
Judge De Alba and Judge Chun will come back out and talk to the students from USC.

[00:31:33] Speaker 02:
I'm sorry that I'm not able to participate today.

[00:31:37] Speaker 02:
I have another commitment elsewhere.

[00:31:39] Speaker 02:
So thank you very much.

[00:31:43] Speaker 02:
All rise.

[00:31:43] Speaker 02:
This court for this session stands adjourned.