The Ninth Circuit has upheld dismissal of a class action complaint on Twombly/Iqbal plausibility grounds, noting that the standard has its roots in “judicial experience and common sense.” In Ebner v. Fresh, Inc., — F.3d —-, No. 13-56644, 2016 WL 1056088 (9th Cir. Mar. 17, 2016), the Ninth Circuit affirmed dismissal of various California consumer protection and equitable claims asserted against a manufacturer of high-end lip balm, “Sugar.” The decision is a solid win for defendants seeking early dismissal based on plausibility grounds.

Plaintiff’s Claims. According to the plaintiff, Fresh deceived consumers because, although the company (accurately) listed the net weight of the product on the label, a plastic stop device attached to the screw mechanism used to access the lip balm prevented 25% of the product from advancing past the tube opening. Plaintiff claimed that Fresh’s failure to augment the statement regarding the product’s net weight with a supplemental disclosure regarding product accessibility rendered the net weight statement deceptive and misleading.

Ninth Circuit Rejects Plaintiff’s Position. The Ninth Circuit, like the district court before it, disagreed. In an opinion authored by Judge A. Wallace Tashima, the court concluded that “Plaintiff cannot plausibly allege that the omission of supplemental disclosures about product weight rendered Sugar’s label ‘false or misleading’ to the reasonable consumer.” Ebner, 2016 WL 1056088, at *4. The court reasoned that the dispenser tube and screw mechanism used to “push up a solid bullet of lip balm” are “commonplace in the market,” and their mechanics are generally understood by the reasonable consumer. Id. at *5. Further, the plaintiff’s allegations made clear that the consumer was able to see whatever product remained below the tube opening. Thus, “the consumer’s knowledge that some additional product lies below the tube’s opening is sufficient to dispel any deception; at that point, it is up to the consumer to decide whether it is worth the effort to extract any remaining product with a finger or a small tool.” Id.

The court also affirmed dismissal of plaintiff’s claim that Fresh violated the “slack fill” prohibitions contained in California Business and Professions Code § 12606. Because nonfunctional slack fill is defined as “empty space” in a product’s container, lip balm that was actually present in the container but below the tube opening was not covered under the plain language of the statute.

Takeaway. Obtaining dismissal of “deception” claims on plausibility grounds can be a challenge for defendants in putative consumer class actions. But Ebner shows that there are limits to the deference courts must pay to the plaintiff’s pleading. Where the plaintiff’s allegations are contrary to marketplace norms, “judicial experience,” and/or “common sense,” they may be subject to dismissal under Twombly/Iqbal. Ebner may well be the new “go to” for arguing implausibility.