Tom’s of Maine (Tom’s) continues to make news as it litigates class actions regarding its “natural” products. In a recent motion to dismiss, Tom’s asserts that a multiplication of lawsuits on the same issues is neither in the interests of justice or judicial economy.

In Coburn v. Tom’s of Maine (U.S.D.C., C.D. Cal.) filed June 8, 2020, Susan Coburn alleges that she and other similarly-situated consumers in California and nationwide were enticed to purchase Tom’s toothpaste products at premium prices, based upon Tom’s representations on its packaging and corporate website that the products were “all natural” and without artificial ingredients. Plaintiff alleges that Tom’s violated California’s Consumers Legal Remedies Act (CA Civil Code § 1750, et seq.) and Business & Professions Code (§§ 17200, et seq. and §§ 17500, et seq.) by labeling and advertising “natural” products that were not natural, misrepresenting the quality of the products, and creating consumer confusion regarding the word “natural” in the sale of its toothpaste. For relief, Plaintiff seeks consumer refunds, disgorgement of company revenue from the sale of the products to consumers that cannot be identified, and an injunction barring misleading advertising of the toothpaste products.

Most recently, on September 2, 2020, Tom’s moved the court for an order dismissing the Coburn class action. In its motion, Tom’s argues, among other things, that the Coburn lawsuit duplicates another pending class action, de Lacour v. Colgate-Palmolive Co., (U.S.D.C., S.D.N.Y), filed three years prior to Coburn. Tom’s, a subsidiary of Colgate, contends that the Coburn lawsuit represents an identical class and makes the same allegations as the de Lacour lawsuit. Tom’s argues that, for the purposes of judicial efficiency and the avoidance of duplicate or inconsistent judgments, the California court should apply the first-to-file rule and dismiss the Coburn lawsuit. In determining whether to apply the first-to-file rule, a court analyzes three factors: 1) chronology of the lawsuits [comparing when the complaints were first filed]; 2) similarity of the parties; and 3) similarity of the issues (Kohn Law Grp., Inc. v. Auto Parts Mfg., Miss., Inc., 787 F.3d 1237 at 1240 (9th Cir., 2015)). Tom’s asserts that, on the basis of the first-to-file analysis, the court is well within its discretion to dismiss the Coburn action.

As a second prong of its motion to dismiss, Tom’s argues that a 2015 court-approved, agreement settling a similar class action, Gay v. Tom’s of Maine (U.S.D.C., S.D. Fla.), should preclude certain Gay class members from pursuing any claims in Coburn. In Gay, a class of consumers filed suit challenging the use of the word, “natural”, on Tom’s packaging. Tom’s asserts that the Gay settlement class includes members of the Coburn class. As to the overlap, Tom’s contends that the Gay class members who did not opt out of the settlement and received compensation after submitting a valid claim and release, should be barred from pursuing additional recovery in Coburn.

At a minimum, Tom’s of Maine requests that the California court stay the Coburn suit, pending the outcome of de Lacour.

Companies who offer consumer products should keep on an eye on these pending lawsuits to see how courts handle the issue of similar suits in multiple jurisdictions.

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