An MDL court in New Hampshire has denied the motion to dismiss filed by Dial Corp. in consolidated putative class actions brought by consumers in 10 states alleging that the company falsely advertised the antibacterial properties of its “Dial Complete” soaps. In re Dial Complete Mktg. & Sales Practices Litig., MDL No. 2263 (U.S. Dist. Ct., D.N.H., decided March 26, 2013). The allegations in this complaint are similar to claims made against Colgate-Palmolive in litigation discussed elsewhere in this Report.
Among other matters, the defendant here unsuccessfully (i) challenged the sufficiency of the pleadings; (ii) raised the primary jurisdiction doctrine, claiming that proposed Food and Drug Administration regulations on antibacterial ingredient triclosan are “imminent”; and (iii) argued that various state-specific claims fail as a matter of law. Addressing the latter, the court states, “As to the remaining bases for defendant’s motion to dismiss, none has been shown to warrant dismissal of plaintiffs’ claims— at least not at this stage. It would, however, appear that several of defendant’s arguments (e.g., privity as a requirement for implied warranty claims in some states, the requirement of prior notice under Ohio’s Consumer Sales Practices Act, etc.) lend themselves more properly to resolution at the summary judgment stage, based upon a more complete record and more thorough briefing by the parties.”
The court granted the plaintiffs’ “assented-to motion to dismiss, without prejudice, their request for injunctive relief.”