UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 ANDREW S. TULUMELLO, SBN ATulumello@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 00 Connecticut Avenue, N.W. Washington, DC 00 Telephone: Facsimile: 0..0 Attorneys for Defendants Frito-Lay North America, Inc. and Frito-Lay, Inc. BARRY ALLRED and MANDY C. ALLRED, on behalf of themselves, all others similarly situated, and the general public, v. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Plaintiffs, FRITO-LAY NORTH AMERICA, INC., a Delaware corporation; and FRITO-LAY, INC., a Delaware corporation, Defendants. CASE No. -cv-0-jls-bgs DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION AND/OR CLARIFICATION Hearing: Date: June, 0 Time: :0 p.m. Place: Courtroom D Judge: Hon. Janis L. Sammartino

2 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 TABLE OF CONTENTS I. INTRODUCTION... II. LEGAL STANDARD... III. ARGUMENT... Page A. New Circumstances Exist And Confirm That Plaintiffs Malic Acid Allegations Are Speculative And Implausible.... B. The Court s Ingredient List Disclosure Ruling Misreads The Malic Acid Regulation... C. The Court Should Clarify That The Continuous Accrual Doctrine Does Not Authorize Claims Based On Purchases Outside The Limitations Periods.... IV. CONCLUSION... i CV

3 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 Cases TABLE OF AUTHORITIES Page(s) Allen v. Similasan Corp., F. Supp. d 0 (S.D. Cal. 0)... Amarel v. Connell, 0 F.d (th Cir. )... Aryeh v. Canon Bus. Sols., Inc., P.d (Cal. 0)... 0 Ashcroft v. Iqbal, U.S. (00)..., Bell Atl. Corp. v. Twombly, 0 U.S. (00)... Engurasoff v. Coca-Cola Co., No. -cv-0, 0 WL 0 (N.D. Cal. Aug., 0)... Gitson v. Trader Joe s Co., No. -cv-, 0 WL 00 (N.D. Cal. Mar., 0)... Hunter v. Nature s Way Prods., LLC, No. -cv-, 0 WL (S.D. Cal. Aug., 0)... 0, Ivie v. Kraft Foods Global, Inc., No. -cv-, 0 WL (N.D. Cal. Feb., 0)... Lee v. City of Los Angeles, 0 F.d (th Cir. 00)... Rankin v. Global Tel*Link Corp., No. -cv-, 0 WL (N.D. Cal. July, 0)... Sch. Dist. No. J, Multnomah Cty., v. ACandS, Inc., F.d (th Cir. )... Schwarz v. United States, F.d (th Cir. 000)... Smith v. Clark Cty. Sch. Dist., F.d 0 (th Cir. 0)... i CV

4 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 United States v. Howard, F.d (th Cir. 00)... Yunker v. Pandora Media, Inc., No. -cv-, 0 WL (N.D. Cal. Mar. 0, 0)... Statutes U.S.C...., Rules Civ. L.R..... Regulations C.F.R , C.F.R..0...,, ii DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CV

5 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID.0 Page of 0 0 I. INTRODUCTION Defendants Frito-Lay North America, Inc. and Frito-Lay, Inc. (collectively, Frito-Lay ) respectfully move for reconsideration and/or clarification of the Court s Order Denying Defendants Motion to Dismiss (the Order ) issued on March, 0 (D.E. ). In its Order, the Court held that it could not determine at this stage as a matter of law that Plaintiffs claims were implausible and preempted, and held that Plaintiffs adequately pleaded that the continuing violation exception applied to toll the statute of limitations governing their claims. Reconsideration is warranted in light of new developments further demonstrating the implausibility of Plaintiffs allegations regarding the function of malic acid in Lay s Salt & Vinegar Flavored Potato Chips (the Product ) and because the Order contains errors of law regarding the federal regulations governing malic acid labeling and the scope of the continuous accrual exception to the statutes of limitations. Frito-Lay respectfully requests that the Court reconsider its earlier decision and dismiss Plaintiffs claims as implausible and preempted. II. LEGAL STANDARD District courts have the inherent authority to entertain motions for reconsideration of interlocutory orders. Amarel v. Connell, 0 F.d, (th Cir. ). A party may apply for reconsideration [w]henever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part[.] Civ. L.R..(i)(). Under Local Rule.(i)(), reconsideration may be appropriate if new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application. Id. Reconsideration may also be appropriate if the district court () is presented with newly discovered evidence, () committed clear error or the initial decision was manifestly unjust, or () if there is an intervening change in controlling law. Sch. Dist. No. J, Multnomah Cty., v. ACandS, Inc., F.d, (th Cir. ). It is common for both trial and appellate courts to reconsider and change positions when CV

6 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 they conclude that they made a mistake. This is routine in judging, and there is nothing odd or improper about it. Smith v. Clark Cty. Sch. Dist., F.d 0, (th Cir. 0). III. ARGUMENT Plaintiffs contend that Frito-Lay s Product is mislabeled because it does not disclose on the front and back of each package that the ingredient malic acid is an artificial flavor and because the Product s ingredient list does not describe malic acid with sufficient specificity. In its Motion to Dismiss, Frito-Lay explained that () Plaintiffs assertion that malic acid is an artificial flavor imparting, simulating or reinforcing a vinegar flavor in the Product is not adequately pleaded or plausible as a matter of law; () Plaintiffs challenge to the ingredient list disclosure of malic acid is preempted by statutes and regulations requiring the listing of ingredients by their common or usual name ; and () Plaintiffs claims based on purchases of the Product made outside the applicable statute of limitations periods must be dismissed as timebarred. See generally D.E. - ( Mot. ). The Court denied Frito-Lay s motion based on its holdings that: () it could not make a factual determination at this stage regarding whether malic acid is an artificial flavor imparting, simulating or reinforcing a vinegar flavor in the Product (see Order at -0), () it was not clear from FDA regulations that malic acid was the common or usual name for both the L and DL forms of malic acid (see Order at ), and () Plaintiffs adequately pled an exception to the statute of limitations based on alleged continuing violations (see Order at ). Frito-Lay respectfully submits that the Court s prior ruling should be reconsidered and modified for the following reasons. First, new class action complaints filed by Plaintiffs counsel after Frito-Lay filed its Motion to Dismiss confirm what Frito-Lay has argued all along that Plaintiffs contention that malic acid functions as an artificial flavor imparting, simulating, resembling, or reinforcing a vinegar flavor in the Product is wholly conclusory and utterly implausible as a matter of law. Second, the Court s holding on Frito Lay s ingredient list malic acid CV

7 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 disclosure is based on an erroneous reading of C.F.R..0, the FDA regulation on malic acid. Third, even if Plaintiffs have adequately pled the application of the continuous accrual exception, case law including the principal case relied upon by the Court establishes that the exception does not authorize claims based on purchases made outside the limitations period. Complaint should be dismissed. Upon reconsideration, Plaintiffs A. New Circumstances Exist And Confirm That Plaintiffs Malic Acid Allegations Are Speculative And Implausible. Although the Court previously held that whether malic acid is an artificial flavor simulating, resembling or reinforcing a vinegar flavor in the Product is a factual determination that would be inappropriately resolved on a motion to dismiss[,] Order at, new circumstances confirm that Plaintiffs allegations on this issue are implausible as a matter of law. On September, 0 after Frito-Lay filed its Motion to Dismiss Plaintiffs counsel filed a class action complaint in Hilsley v. Ocean Spray Cranberries, Inc., that has since been removed to this Court. Defs. RJN, Ex. A ( Ocean Spray Complaint ), No. :-cv- (S.D. Cal., removed Nov., 0), ECF No. -. The Ocean Spray Complaint alleges that Ocean Spray has mislabeled its CranApple juice beverage by failing to state the presence of artificial flavors on the front label, and affirmatively stating no artificial flavors, based on the inclusion of malic acid. Ocean Spray Complaint,, 0. The Ocean Spray Complaint further contends that malic acid provides the signature characterizing flavor of On a motion to dismiss, a court may take judicial notice of matters of public record without converting the motion to dismiss into a summary judgment motion. Lee v. City of Los Angeles, 0 F.d, (th Cir. 00). Frito-Lay requests that the Court take judicial notice of the Ocean Spray Complaint. See Defs. RJN; United States v. Howard, F.d, n. (th Cir. 00) (holding courts may take judicial notice of court records in other cases); Yunker v. Pandora Media, Inc., No. - cv-, 0 WL, at * & n. (N.D. Cal. Mar. 0, 0) (taking judicial notice of the First Amended Complaint in an action raising similar allegations as those at issue in the case before the court). CV

8 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 apples[,] id., provides a characterizing apple flavor, id., that both l-malic acid and d-malic acid give a tart, fruity flavor to food products[,] id., that Ocean Spray uses malic acid in its beverage to simulate the tart, fruity flavor of apples and cranberries, id., and that [t]he dl-malic acid is a synthetic flavoring material which creates, simulates or reinforces the characterizing Cranberry-Apple flavor of the Product[,] id. 0. On December, 0 over a month after briefing on Frito-Lay s motion was complete Plaintiffs counsel filed another class action complaint based on the use of malic acid, with the same named plaintiff. Defs. RJN, Ex. B ( General Mills Complaint ), Hilsley v. Gen. Mills, Inc., No. :-cv-0 (S.D. Cal., removed Feb., 0), ECF No. -. This time, counsel took aim at General Mills fruit-flavored sugary snack products. General Mills Complaint. The General Mills Complaint similarly alleges that the fruit snacks are mislabeled because they fail to state the presence of artificial flavors on the front label, and affirmatively state no artificial flavors, when the products in fact contain malic acid. Id.. The General Mills Complaint also further alleges that malic acid confers a tart, fruit-like flavor and simulates the flavor of actual fruit[,] id. 0, that malic acid helps make the Products... taste more like fruit[,] id., that both forms of malic acid provide a tart, fruity flavor when added to food products[,] id. 0, that [t]he Products synthetic d-l malic acid simulates, resembles, and reinforces the characterizing fruit flavor for the Products[,] id., and that [t]he d-l malic acid is an artificial flavoring material that creates, simulates, and reinforces the Products characterizing fruit flavors[,] id.. The same attorneys. The same theory of omitted artificial flavor labeling. The same ingredient. But now, far from alleging that malic acid is placed in the For the same reasons as for the Ocean Spray Complaint, Frito-Lay also requests that the Court take judicial notice of the General Mills Complaint. See Defs. RJN; supra n.. CV

9 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 Product to simulate the sour flavor of vinegar[,] D.E. - ( Compl. ), as Plaintiffs alleged in this case, they claim in Ocean Spray and General Mills that malic acid simulates fruit flavors. The two new complaints confirm what Frito-Lay has argued all along Plaintiffs contention that malic acid imparts, simulates, resembles, or reinforces a vinegar flavor is implausible as a matter of law. As Frito-Lay has explained, FDA s malic acid regulation specifies that malic acid is used in chewing gum, hard candy, soft candy, jams and jellies, fruits and fruit juices, and gelatins, puddings, and fillings none of which tastes like vinegar or has a vinegar flavor. See Mot., (quoting C.F.R..0(d)). And the website Plaintiffs incorporated by reference into their own Complaint states that malic acid contributes to the sourness of green apples and confers a tart taste to wine. D.E. -, Ex. A. Again, not vinegar. Plaintiffs cannot plausibly contend that malic acid is a sort of super flavor, able to impart any and all flavors in the world particularly in the absence of any supporting facts. The Ocean Spray Complaint and General Mills Complaint are significant developments that warrant reconsideration and modification of the Court s prior Order. The Ocean Spray and General Mills Complaints demonstrate that Plaintiffs factual allegations regarding malic acid are simply twisted to fit counsel s theory of liability against Frito-Lay. The Complaint nowhere refers to any testing Plaintiffs have performed on Frito-Lay products, or for that matter to any factual investigation into the function that malic acid serves in Frito-Lay s Salt & Vinegar chips at all. Nor are there any factual allegations to support the conclusory assertion that malic acid imparts a vinegar flavor. Compl., 0. The vinegar allegations are pure ipse dixit. It is well within the Court s authority to dismiss their claims at this stage because of this shortcoming in their pleadings. The court need not accept as true... In ruling on Frito-Lay s Motion to Dismiss, the Court took judicial notice of the web page at Frito-Lay s request. Order at. CV

10 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page 0 of 0 0 allegations that contradict facts that may be judicially noticed by the court[.] Schwarz v. United States, F.d, (th Cir. 000). Indeed, this is precisely the type of case in which Twombly and Iqbal enable courts to provide a gatekeeping role at the pleading stage. Those cases do not give Plaintiffs and their counsel license to subject defendants like Frito-Lay to costly discovery based on inconsistent, self-contradicting allegations, and speculation about the possible function of ingredients. Plaintiffs must plead facts that nudge[] their claims across the line from conceivable to plausible[.] Bell Atl. Corp. v. Twombly, 0 U.S., 0 (00). In its Order, the Court relied upon Engurasoff v. Coca-Cola Co., No. -cv- 0, 0 WL 0, at * (N.D. Cal. Aug., 0), Gitson v. Trader Joe s Co., No. -cv-, 0 WL 00, at * (N.D. Cal. Mar., 0), and Ivie v. Kraft Foods Global, Inc., No. -cv-, 0 WL, at *0 (N.D. Cal. Feb., 0), as supporting its conclusion that it cannot make a factual determination at this stage as to whether malic acid is an artificial flavor. Order at 0. But none of these cases involved the type of self-contradicting allegations that fatally undermine the plausibility of Plaintiffs allegations here. In fact, Ivie actually supports Frito- Lay s argument for dismissal on these grounds. The plaintiffs in Ivie challenged natural lemon [lemonade] flavor with other natural flavor labels on the defendants Crystal Light products, stating that certain compounds provided [the Crystal Light] products with artificial flavor[.] 0 WL, at *. The Court dismissed the claims. Even if these compounds could be artificial flavors, the court need not answer that question because plaintiff does not allege any cognizable claim that these ingredients actually simulate[], resemble[], or reinforce[] the characterizing [lemon] flavor, which would be necessary to adequately plead any violation of C.F.R. 0.(i)(). Id. (emphasis added) (quoting Ashcroft v. Iqbal, U.S., (00) ( The plausibility standard... asks for more than a sheer possibility that a defendant has acted unlawfully. ) and Twombly, 0 U.S. at ( Factual allegations must be enough to raise a right to relief above the speculative level. )). CV

11 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 Plaintiffs bare assertion contradicted by FDA s malic acid regulation, sources incorporated into their Complaint, and their counsel s own pleadings in other cases does not constitute a cognizable claim that malic acid actually imparts, simulates, resembles, or reinforces the Product s characterizing vinegar flavor. Their conclusory allegations are insufficient. In light of these subsequent developments, the Court should reconsider its conclusion that Plaintiffs have sufficiently and plausibly pled that malic acid is an artificial flavor simulating vinegar in the Product. And, as the Court s Order acknowledged, if malic acid is not an artificial flavor simulating a vinegar flavor under the federal Food, Drug, & Cosmetic Act ( FDCA ) and related FDA regulations, Plaintiffs claims demanding that malic acid be labeled as an artificial flavor on the Product label would seek to impose requirements stricter than the requirements of the FDCA... [and] be preempted. Order at. Similarly, if malic acid is not an artificial flavor simulating a vinegar flavor, then no reasonable consumer would be deceived by the Product s labeling. See Order at. Frito-Lay respectfully urges the Court to modify its earlier ruling, and to dismiss Plaintiffs claims as preempted and implausible. B. The Court s Ingredient List Disclosure Ruling Misreads The Malic Acid Regulation. Plaintiffs also allege the Product is mislabeled because it lists malic acid in the ingredients list, as opposed to d-l-malic acid. Compl.,. Frito-Lay argued in its Motion to Dismiss that this claim is preempted by federal statutes and regulations requiring ingredients to be listed by their common or usual name. See Mot. (citing U.S.C. (i)(); C.F.R. 0.(a)()). Because the Court s decision rejecting The fact that Plaintiffs here have failed to plausibly allege that malic acid in the Product is an artificial flavor simulating the taste of vinegar does not mean that potential plaintiffs could never satisfy Twombly and Iqbal. Plaintiffs could, for example, support their artificial flavor theory with substantial testing showing that malic acid simulates, resembles, or reinforces a characterizing flavor, or imparts a particular flavor. But a conclusory allegation contradicted by FDA regulations, Plaintiffs own sources, and their own counsel s pleadings, is plainly insufficient. CV

12 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 Frito-Lay s preemption argument was based on a misreading of the malic acid regulation, C.F.R..0(a), it was error, and the Court should reconsider and find Plaintiffs claims preempted. In the Order, the Court rejected Frito-Lay s contention that malic acid is the common name of the L and DL forms of malic acid, stating, this assertion does not find support in the regulations. Order at. The Court held that malic acid is the common name only for hydroxy, ethanedicarboxylic acid. Id. (citing C.F.R..0(a)). The Court deemed it plausible that there was an important distinction between L-malic acid and DL-malic acid that requires specifying which type was used. Id. But this reading of the statute overlooks important text in the regulation. C.F.R..0(a) reads: Malic acid (CHO, CAS Reg. No. of L- form, CAS Reg. No. of DL-form ) is the common name for hydroxy, ethanedicarboxylic acid (emphasis added). In stating that malic acid is the common name for this chemical compound, the regulation expressly includes both the L-form and DL-form. The text of the regulation itself therefore confirms Frito- Lay s argument that malic acid is the common or usual name and thus the name that must be included in the ingredients list under U.S.C. (i) even for DLmalic acid. The parenthetical in C.F.R..0(a) establishes that malic acid is the common or usual name of the ingredient at issue, as opposed to a collective (generic) name prohibited by C.F.R. 0.(b). The Court erred in rejecting Frito-Lay s preemption argument based on an interpretation of the regulation that reads out this parenthetical. Plaintiffs contention that the use of the term malic acid in the ingredients list is prohibited would create serious disruption in the industry. See Iqbal, U.S. at In its prior Order, the Court accepted Plaintiffs allegations that the malic acid used in the Product throughout the proposed class period was DL-malic acid for purposes of the motion to dismiss. Even accepting Plaintiffs allegations as true (which Frito-Lay disputes), Plaintiffs claims regarding the ingredient list disclosure fail. CV

13 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 (a court reviewing a complaint for plausibility should draw on its judicial experience and common sense ). Without citing a single instance in which FDA has taken enforcement action or issued a warning letter based on the use of the term malic acid in the ingredients list, Plaintiffs theory would force every manufacturer to revise their food labels to specify whether their product uses L-malic acid or DL-malic acid. To the contrary, the FDA warning letters cited by Frito-Lay in its motion and judicially noticed by the Court, see Order at, state that companies must include malic acid not L-malic acid or DL-malic acid in their ingredients lists. See D.E. -, Ex. B ( Our investigator observed that the V00 Apple Mango product is made with malic acid and gum acacia solution; however these ingredients are not declared on the label. (emphasis added)); see also id., Ex. C. Plaintiffs do not identify a single manufacturer who does specify which type is used. Nothing in the text of the statute or regulations suggests this is a plausible reading of FDA s requirements. The additional complaints Plaintiffs counsel have filed based on the use of malic acid further underscore this point Kellogg, Ocean Spray, and General Mills are all examples of other major companies that have complied with the regulation as written to include malic acid in the ingredients list and that now face the prospect of an unprecedented labeling overhaul. Because the Court erred in its reading of the relevant malic acid regulations, reconsideration of the initial Order is warranted. Upon reconsideration, based on federal statutes and regulations governing malic acid and requiring use of an ingredient s common or usual name in the ingredients list, the Court should find Plaintiffs claims preempted. C. The Court Should Clarify That The Continuous Accrual Doctrine Does Not Authorize Claims Based On Purchases Outside The Limitations Periods. Reconsideration of the Court s earlier ruling and dismissal of Plaintiffs claims in their entirety is warranted for the reasons discussed above. But even if the Court declines to modify its ruling on preemption and plausibility, case law merits CV

14 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 clarification of the Court s holding as to the application of the statutes of limitations to Plaintiffs claims. Plaintiffs bring claims based on purchases of the Product dating back six years prior to the filing of the Complaint. Compl.. The Court acknowledged in its Order that the limitations periods for Plaintiffs claims are shorter Plaintiffs CLRA and FAL claims are subject to a three-year statute of limitations and their UCL and breach of warranty claims are subject to a four-year statute of limitations. See Order at. Accordingly, Defendants moved to dismiss as untimely Plaintiffs CLRA and FAL claims based on purchases pre-dating May, 0, and Plaintiffs UCL and breach of warranty claims based on purchases pre-dating May, 0. Mot.. The Court denied Defendants motion, finding that [i]t would be inequitable to hold the continuing violation doctrine does not apply to this case. Order at. The Court expressed concern about allow[ing] Defendants to obtain immunity from this violation even for recent and ongoing malfeasance. Id. (quoting Aryeh v. Canon Bus. Sols., Inc., P.d, 0 (Cal. 0)). The Court relied extensively on Hunter v. Nature s Way Prods., LLC, No. -cv-, 0 WL (S.D. Cal. Aug., 0), another case in which the plaintiff claimed to have purchased allegedly mislabeled products both prior to and during the limitations periods. As Hunter itself illustrates, the continuous accrual doctrine permits claims based on purchases made during the limitations period, but does not authorize claims based on purchases made prior to the limitations period. In Hunter, the plaintiff alleged that she first purchased the defendants coconut oil products approximately five years ago and continued to purchase the product approximately once per month. 0 WL, at *. The defendants argued that the plaintiff s time to bring any claim based on the purchase of coconut oil expired three years (for CLRA and FAL claims) or four years (for UCL and breach of warranty claims) after her initial purchase. Id. at *. The court disagreed, finding the continuing violation exception applied, and concluding that the plaintiff has plausibly alleged UCL and breach of warranty claims 0 CV

15 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID.0 Page of 0 0 for the four-year statute of limitations and FAL and CLRA claims for the three-year statute of limitations preceding the filing of the Complaint. Id. at * (emphasis added). But the exception did not extend to cover the plaintiffs claims based on earlier purchases. The court stated, The remaining issue regarding the statute of limitations is whether Plaintiff Levin has sufficiently alleged that the delayed discovery doctrine applies, thus allowing her to bring claims that accrued outside of the respective statute of limitations periods. Id. Just as the Court did here (see Order at ), the Hunter court found that the plaintiff had not adequately pled that the delayed discovery rule applies. Id. It then held, Because Plaintiff Levin has failed to meet her burden to adequately plead the inability to have made an earlier discovery despite reasonable diligence, Plaintiff Levin s claims for alleged violations that occurred outside of the respective statute of limitations for the CLRA, UCL, FAL, and breach of warranty claims are time-barred. Id. (emphasis added). The same result is appropriate here. The Court s ruling that the continuous accrual doctrine applies would only entitle Plaintiffs to bring claims based on purchases within the three- and four-year limitations period, even though by their own admission they first bought the Product in 0 or earlier. Compl.. But their claims based on purchases prior to that three- and four-year period should remain timebarred. See also Allen v. Similasan Corp., F. Supp. d 0, 0 (S.D. Cal. 0) (finding alleged mislabeling claims based on purchases within the statutory period not barred, but dismissing claims for purchases made prior to the statutory period); Rankin v. Global Tel*Link Corp., No. -cv-, 0 WL, at * (N.D. Cal. July, 0) (applying the continuing violation exception, but holding [t]o the extent the claims are based on conduct that occurred outside the applicable limitations period, the claims are dismissed ). This clarification is consistent with the Court s prior Order; limiting Plaintiffs claims to those based on purchases within the limitations period would not only be consistent with the case law, but also would not CV

16 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 entitle Frito-Lay to obtain immunity from alleged recent violations, as the Court may have sought to avoid. See Order at. In light of Hunter, the Court erred in relying on the continuing violation exception to permit Plaintiffs to bring claims based on purchases made outside the limitations period. Frito-Lay respectfully requests that the Court clarify that its holding that the continuous accrual doctrine applies means only that Plaintiffs may bring claims based on purchases made in the three or four years prior to the filing of the Complaint, and that claims based on earlier purchases are time-barred. IV. CONCLUSION For the foregoing reasons, Frito-Lay respectfully requests that the Court reconsider its Order Denying Defendants Motion to Dismiss, and modify the Order to dismiss Plaintiffs claims. Dated: April, 0 GIBSON, DUNN & CRUTCHER LLP By: /s/ Andrew S. Tulumello Andrew S. Tulumello Andrew S. Tulumello, SBN ATulumello@gibsondunn.com 00 Connecticut Avenue, N.W. Washington, DC 00 Telephone: Facsimile: 0..0 Attorneys for Defendants Frito-Lay North America, Inc. and Frito-Lay, Inc. CV

17 Case :-cv-0-jls-bgs Document - Filed 0/0/ PageID. Page of 0 0 CERTIFICATE OF SERVICE I, Andrew S. Tulumello, hereby certify that I caused the foregoing document to be electronically filed via the Court s CM/ECF system. Notice of this filing will be served to all parties by operation of the Court s electronic filing system. Dated: April, 0 /s/ Andrew S. Tulumello Andrew S. Tulumello CV