Munsell v. Colgate-Palmolive Co.

463 F.Supp.3d 43

Angela MUNSELL, individually and on behalf of all others similarly situated, Plaintiff,

v.COLGATE-PALMOLIVE CO. and Tom's of Maine, Inc., Defendants.

Civil Action No. 19-12512-NMG

United States District Court, D. Massachusetts.

Signed May 20, 2020

Adam M. Stewart, Edward F. Haber, Ian J. McLoughlin, Shapiro Haber & Urmy LLP, Boston, MA, for Plaintiff.

Ann Marie Wahls, Pro Hac Vice, Latham & Watkins LLP, Chicago, IL, Samuel A. Townsend, U. Gwyn Williams, Latham & Watkins LLP, Boston, MA, for Defendants.

MEMORANDUM & ORDER

GORTON, J.

This putative class action involves claims of unfair and deceptive practices in violation of the consumer protection laws of Massachusetts and Rhode Island by Angela Munsell ("plaintiff" or "Munsell") on behalf of herself and a class of similarly situated individuals against Colgate Palmolive Co. ("Colgate") and its subsidiary, Tom's of Maine ("Toms", collectively with Colgate, "defendants").

Pending before the Court is the motion of defendants to dismiss the complaint.

I. Background

A. The Parties

Defendant Colgate is a Delaware corporation with its principal place of business in New York. Colgate manufactures and sells various oral, personal and home care products, such as toothpaste and deodorant, throughout the United States.

In 2006, Colgate conducted an all cash acquisition of an 84% stake in defendant Tom's for approximately $100 million. Tom's was founded 1970 and maintains its principal place of business in Maine. Tom's purported mission is to help consumers live a more environmentally friendly and sustainable life by offering alternatives to oral and personal care products using only naturally sourced and naturally derived ingredients. Tom's submits that it chooses product ingredients by consulting its "Stewardship Model", which contains certain standards for natural and sustainable ingredients.

Munsell, the putative class representative and named plaintiff, has been a resident of Pawtucket, Rhode Island since the spring of 2016. Prior to that, Munsell lived in Taunton, Massachusetts. She alleges that she has regularly purchased Tom's "natural" toothpaste and deodorant products since 2015.

B. The Market for Natural Personal Care Products

Plaintiff alleges that Tom's, seeking to capitalize on the growing market for personal care products derived from nature, has misled consumers into purchasing its products at a premium by labelling them as "natural".

The word "natural" is prominently displayed on the front panel of the packaging of Tom's toothpaste and deodorant/antiperspirant products ("the Products"). On another panel of each box, Tom's includes a link to its website and invites consumers to navigate online to further investigate what makes Tom's products "natural". The packaging also includes a section labeled "what's inside matters" which refers consumers to Tom's Stewardship Model as a description of Tom's definition of what it considers natural and sustainable. Tom's also provides a description of what it believes makes a product "natural and good" on the packaging of the Products.

C. Previous Settlement in Gay v. Tom's

In 2014, a separate class of consumers brought a similar lawsuit challenging Tom's use of the word "natural" on certain "Covered Products" which includes the Products at issue in this case. See Gay v. Tom's, No. 0:14-cv-60604-KMM (S.D. Fla. 2014). The following year, the parties entered into a Settlement Agreement ("the 2015 Settlement") which authorized Tom's to continue to use the word "natural" to market and describe the Covered Products as long as Tom's provided additional information on its packaging and website regarding its standards for natural, sustainable and responsible sourcing of ingredients.

The 2015 Settlement certified a settlement class of consumers who purchased at least one Covered Product between March, 2009, and September, 2015. Members of the settlement class who failed to exclude themselves are deemed to have released all claims against Tom's relating to Tom's use of the word "natural" to advertise and sell the Covered Products.

D. Plaintiff's Allegations

Plaintiff contends that, since the end of 2015, she has regularly purchased Tom's Products to satisfy her desire to utilize personal care products derived from nature and that are environmentally friendly. Plaintiff alleges that she was misled into doing so because, despite Tom's claim of using only "natural" and sustainable ingredients, the Products each contain artificial, synthetic and/or chemically processed ingredients, including xylitol, sodium lauryl, glycerin, xantham gum, sorbitol, glycerin, ascorbic acid and aluminum chlorohydrate. Munsell submits that consumers, such as herself, whose purchasing decisions are driven by a desire to maintain a natural lifestyle, have been and continue to be misled into purchasing the Products at a premium by virtue of Tom's misuse of the word "natural" which is belied by the inclusion of non-natural ingredients.

Plaintiff brings this action pursuant to Mass. Gen. Laws c. 93A and R.I. Gen. Laws § 6-13.1-1 on behalf of herself and two classes of similarly situated individuals against Tom's and Colgate for unfair and deceptive practices.

E. The Proposed Classes

Plaintiff proposes two classes of consumers. The first, "the Massachusetts Class", consists of

All persons who have purchased Tom's of Maine toothpaste or deodorant Products in Massachusetts that were labeled "natural" yet contained artificial, synthetic and/or chemically processed ingredients between December 5, 2015 and the present.

The second, "the Rhode Island Class", consists of

All persons who have purchased Tom's of Maine toothpaste or deodorant Products in Rhode Island that were labeled "natural" yet contained artificial, synthetic and/or highly chemically processed ingredients between December 5, 2015 and the present.

II. Motions to Dismiss

A. Legal Standard

1. Fed. R. Civ. P. 12(b)(1)

In opposing a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), the plaintiff bears the burden of establishing that the Court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If the defendant mounts a "sufficiency challenge", the court will assess the sufficiency of the plaintiff's jurisdictional allegations by construing the complaint liberally, treating all well-pled facts as true and drawing all reasonable inferences in the plaintiff's favor. Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

If, however, the defendant advances a "factual challenge" by controverting the accuracy, rather than the sufficiency, of the alleged jurisdictional facts, "the plaintiff's jurisdictional averments are entitled to no presumptive weight" and the court will consider the allegations by both parties and resolve the factual disputes. Id. The court has "broad authority" in conducting the inquiry and can, in its discretion, consider extrinsic evidence in determining its own jurisdiction. Id. at 363-64.

2. Fed. R. Civ. P. 12(b)(2)

On a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), the plaintiff bears the burden of showing that the Court has authority to exercise jurisdiction over defendants. Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015). Where, as here, the Court will decide a motion to dismiss for lack of personal jurisdiction without first holding an evidentiary hearing, the Court applies the "prima facie" standard of review and takes the plaintiff's

properly documented evidentiary proffers as true and construe[s] them in the light most favorable to [plaintiff's] jurisdictional claim.

A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016). A plaintiff cannot, however, rely on "unsupported allegations" and "must put forward evidence of specific facts to demonstrate jurisdiction exists." Id. (internal citations omitted).

In a diversity suit, this Court acts as "the functional equivalent of a state court sitting in the forum state." See Astro–Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 8 (1st Cir. 2009). As such, to make a prima facie showing of personal jurisdiction in diversity cases, the plaintiff must demonstrate that the exercise of jurisdiction 1) is permitted by the applicable state long-arm statute, and 2) coheres with the Due Process Clause of the Fourteenth Amendment of the United States Constitution by showing that each defendant has "minimum contacts" with Massachusetts. Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002).

The Court's jurisdiction may be either "specific" or "general." United States v. Swiss Am. Bank, 274 F.3d 610, 618 (1st Cir. 2001). Specific jurisdiction requires a "demonstrable nexus" between the claims of the plaintiff and the defendant's contacts in the forum state. Id. A plaintiff must make an "affirmative showing" that 1) the litigation relates to or arises out of the defendant's contacts with the forum state; 2) the defendant purposefully availed itself of the privilege of conducting business in the forum state; and 3) jurisdiction over the defendant is reasonable under the circumstances. Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995). General jurisdiction, on the other hand, exists when the defendant has engaged in "continuous and systematic activity, unrelated to the suit, in the forum state." Swiss Am. Bank, 274 F. 3d at 618.

Defendant challenges this Court's exercise of personal jurisdiction with respect to the Due Process Clause, not the long-arm statutes of either Massachusetts or Rhode Island.

3. Fed. R. Civ. P. 12(b)(6)

To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering the...