District Court decertifies class of customer service representative employed by Safety-Kleen Systems, Inc.

United States District Court Judge Phyllis J. Hamilton (Northern District of California) granted Defendant Safety-Kleen Systems, Inc.'s motion to decertify a class of "customer service representatives."  Wamboldt v. Safety-Kleen Systems, Inc., 2010 WL 3743925 (N.D. Cal. Sept. 20, 2010).  The CSRs had duties extending well beyond what one might expect from the job title, including customer sales, client collections, and various telephone responsibilities, as well as on-site servicing of equipment, transportation of hazardous waste, and driving of company vehicles in order to perform customer service calls.  The hazardous waste transportation and the occasional use of large vehicles (in excess of 30,000 lbs. gross vehicle weight) were the primary culprits underlying the motion to decertify.

Breaking News: Ninth Circuit issue two class action opinions addressing novel issues in the Ninth Circuit

After a bit of a lull on the class action front, the Ninth Circuit had a busy morning.  Two major opinions on class action issues were just issued by Ninth Circuit panels, and both opinions are sure to generate a good deal of discussion.  Both address areas of unsettled law among various federal courts.  The first is of interest to wage & hour practitioners and the second addresses the argument that large statutory damage awards defeat "superiority" of the class action procedure:

• Wang v. Chinese Daily News, Inc. (9th Cir. Sept. 27, 2010) is something of a kitchen sink of class action issues.  Among other things, the Ninth Circuit affirmed (1) the concurrent prosecution of a FLSA opt-in collective action and a Rule 23 opt-out class action, (2) the invalidation of Rule 23 opt-outs due to coercion, (3) the decision to conduct a corrective opt-out process after the trial, and (4) certification under Rule 23(b)(2).  The Court also held that the UCL was not preempted by the FLSA.
• Bateman v. American Multi-Cinema, Inc. (9th Cir. Sept. 27, 2010) concerned the singular issue of a class certification denial on superiority grounds.  The Ninth Circuit concluded that none of the three grounds relied upon by the district court — the disproportionality between the potential statutory liability and the actual harm suffered, the enormity of the potential damages, or AMC’s good faith compliance — justified the denial of class certification on superiority grounds.

Both opinions are substantial, and I will try to give both an extended treatment this evening.  Full disclosure: Greg Karasik of Spiro Moss represents Plaintiff Bateman.

District Court narrows but does not entirely decertify class alleging misclassification as exempt from overtime

United States District Court Judge Samuel Conti (Northern District of California) granted in part and denied in part Defendant Dollar Tree Stores, Inc.'s Motion to Decertify a class of store managers contending that they were misclassified as exempt from overtime.  Cruz v. Dollar Tree Stores, Inc., 2010 WL 3619800 (N.D. Cal. Sept. 9, 2010).  The facts and result here are interesting.

Dollar Tree requires its store managers to certify that they spend more than fifty percent of their actual work time each week performing tasks on a list of 17 items that are all arguably managerial-type duties. Dollar Tree's expert, Robert Crandall, MBA, analyzed employee task certifications comprising 29,431 workweeks during the class period.  The analysis shows that approximately 62 percent of store managers "always certified that they spent the majority of their workweeks on the seventeen managerial tasks, 2.5 percent reported that they never spent most of their time performing these tasks, and about 35 percent of SMs fall somewhere in between."  Slip op., at 2.

The Court then offered this interesting analysis:

In this case, unlike in Wells Fargo II, Whiteway, and Weigele, Plaintiffs have common proof of how SMs were actually spending their time. Plaintiffs can rely on the certification forms that SMs signed every week to, in the words of the Ninth Circuit, transform what would otherwise be an individual issue into a common one. See Wells Fargo I, 571 F.3d at 959. However, the Ninth Circuit's reasoning in Vinole and Wells Fargo I persuades the Court of the need to narrow the class definition to include only SMs who responded “no” on their certification forms during the class period. Narrowing the class in this way ensures that common issues will predominate over individual ones, and significantly lessens the risk that the class consists of both injured and uninjured parties.

In this case, Plaintiffs “must show that it is more likely than not that [Dollar Tree's] exemption as applied to [SMs] was a policy or practice of misclassification.” Marlo, 251 F.R.D. at 483. In order to make this showing, Plaintiffs can point to common evidence including Dollar Tree's decision to uniformly classify SMs as exempt, Dollar Tree's employment hierarchy and structure, its standardized policies and training procedures for SMs, the common tools it requires SMs to utilize, and, most importantly of all, the fact that SMs often certified on a weekly basis that they were not spending most of their time on managerial tasks. Dollar Tree's common policy of having SMs fill out weekly certifications obviates the need for much individual testimony from SMs concerning how they spent their time.

The Court is persuaded that common issues will predominate over individual ones only if it narrows the class to SMs who responded “no” at least once on the weekly payroll certification forms. According to Dollar Tree's analysis of certification forms comprising 29,431 workweeks, approximately 62 percent of SMs always certified that they spent a majority of their time performing managerial tasks. Crandall Decl. ¶¶ 15, 22-23. If the class were to continue to include SMs who always certified “yes,” then Plaintiffs would be required to show that these SMs were not always being truthful, and this issue could not be resolved without resorting to individualized inquiries that would quickly overwhelm the common issues in this case.

No such individualized inquiries are necessary if the Court focuses its attention on SMs who certified “no.” Dollar Tree classified this group of employees as exempt, yet they certified at least once that they were spending most of their time during particular workweeks performing non-managerial tasks. With regard to this group of employees, Plaintiffs can use the weekly payroll certifications and the other evidence of Dollar Tree's standardized practices and procedures in their attempt to convince the jury that “misclassification was the rule rather than the exception” at Dollar Tree. See Sav-On Drugs Stores, Inc. v.Super. Ct., 34 Cal.4th 319, 330, 17 Cal.Rptr.3d 906, 96 P.3d 194 (2004).

Slip op., at 6-7.  The Court then addressed what is, perhaps, the most obvious challenge to this approach:

Nonetheless, the Court recognizes that some SMs may have always certified “yes” even though they were not spending most of their time on managerial tasks. The Court does not want to preclude these SMs from pursuing their misclassification claims on an individual basis. The Court is willing to entertain a motion to equitably toll the statute of limitations on their misclassification claims so as to preserve their right to pursue individual claims against Dollar Tree. See Marlo, 251 F.R.D. at 476, 488 (after decertification of case, inviting parties to brief question of whether statute of limitations on plaintiff's individual claims should be tolled).

Slip op., at 8.  The balance of the opinion consists mostly of a discussion about the positions of the respective experts used by the parties.  While that is also an educational read, the Court's solution regarding the class definition (only those persons that certified at least once that they did not meet the 50% level) is worth taking the time to evaluate carefully.

Surreptitious "flash cookies" track web activity, are hard to remove, and are now the subject of class action lawsuits

You likely have heard of "cookies," the small bits of code stored by websites in your browser.  Cookies allow sites to look up your preferences when you return, or present different content to new visitors.  Cookies can improve your internet experience, but they can also be used to track your movements across websites.  Generally speaking, this is often accomplished through "third-party cookies," which belong to an advertising site, and not the website you are visiting.  When you visit subsequent sites that have relationships with an ad network, that network can ask your browser if it is storing one of its cookies.  If it is, the network can assemble a profile of your internet activity.

Many people know that browser settings can be adjusted to reject third-party cookies.  Or, you can clear out all cookies stored in your browser.  Don't you feel safe now that you've cleared all those cookies?

Turns out that clearing cookies isn't enough anymore.  Adobe's flash technology allows sites providing flash video of any sort to store a code snippet on a user's computer when the user views that flash content.  These "Flash cookies" are larger in size than html cookies (100 kilobytes of information in the case of flash cookies, or 25 times what a browser html cookie can hold).  This added size allows for the storage of far more information about a user's internet activities.  Moreover, flash cookies can be used for one particularly despicable purpose - they can be used to restore deleted html cookies.  In other words, you think you actively protected your privacy by deleting all "cookies" (really, just the html cookies), and when a site that can read a flash cookie sees that you used to have a related html cookie on your browser, it can restore that deleted cookie.  Thus the recent trend to refer to these cookies as "zombie cookies," the cookies that cannot die.

This sneaky new form of visitor tracking has resulted in a number of class action lawsuit.  The New York Times reported on several such lawsuits in an article earlier today.  Wired reported on other suits in July of this year.  These days you need your own home IT support just to know whether you are being spied on by the websites you visit.

COMPLEX TECH: Windows Phone 7 news rundown

I'm exceedingly interested in the potential of Windows Phone 7 as a mobile platform for information access.  It has the potential to replace the iPhone as the standard for innovative platform design.  And it might ultimately do a better job of allowing clear access to many types of information that those in the legal industry currently access through other smartphone platforms.  If you aren't up to speed on this release that may be less than 2 months away, here is a sample of recent news: 

• As reported on Engadget, Microsoft shows off a few major applications that will be available at launch or soon thereafter and releases the final set of developer tools.  If you aren't a tech junkie, this won't mean much to you, but, no matter what you may think of Microsoft, the fact is that Microsoft makes some of the best developer tools out there.  The ease of application development will open Windows Phone 7 to a large number of potential developers.  Winsupersite.com discusses the developer advantage.
• Here is a thorough preview of Windows Phone 7 from Engadget.
• And Winsupersite.com has a massive, multi-part examination of the phone by Paul Thurrott, who will be releasing a book about Windows Phone 7 at or right after launch.
• HTC will be releasing Windows Phone 7 hardware.  This may be video of what to expect.
• Samsung will also have Windows Phone 7 hardware available at launch.
• Verizon will likely carry Windows Phone 7 hardware, but possibly not until 2011.
• Some pre-release applications already look like they will provide a superior experience on Windows Phone 7, such as Seesmic.

I didn't upgrade to the antenna-on-the-outside iPhone 4.  I'm keeping the powder dry for a phone running Windows Phone 7.  Looks like the restraint will be rewarded. 

Ninth Circuit considers "crux of the complaint" rule to determine when arbitrator decides arbitrability

It's not to early to nominate the year 2010 as the year of the arbitration wars.  In our latest installment, Obi Wan is asked to assemble forces...sorry, Clone Wars.  Today the Ninth Circuit examined the question of "whether the 'crux of the complaint' rule requires the question of arbitrability to be determined by the arbitrator when a plaintiff’s challenge to the arbitration clause does not appear in his complaint." Bridge Fund Capital Corporation v. Fastbucks Franchise Corporation, Slip op., at 14205 (9th Cir. Sept. 16, 2010).

In the span of a few paragraphs, the Court set out the essentials of the "crux of the complaint" test:

“The arbitrability of a particular dispute is a threshold issue to be decided by the courts,” Nagrampa, 469 F.3d at 1268, unless that issue is explicitly assigned to the arbitrator, see Rent-A-Ctr., W., Inc. v. Jackson, ___ U.S. ___, 130 S. Ct. 2772, 2775 (2010) (holding that arbitrability is a question for the arbitrator “where the agreement explicitly assigns that decision to the arbitrator”). While the validity of an arbitration clause can be a question for the arbitrator where the “crux of the complaint is that the contract as a whole (including its arbitration provision)” is invalid, the court determines the validity of the clause where the challenge is “specifically [to] the validity of the agreement to arbitrate.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006).

In other words, when a plaintiff’s legal challenge is that a contract as a whole is unenforceable, the arbitrator decides the validity of the contract, including derivatively the validity of its constituent provisions (such as the arbitration clause). See Buckeye, 546 U.S. at 445-46 (explaining that “as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. [U]nless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.”). However, when a plaintiff argues that an arbitration clause, standing alone, is unenforceable—for reasons independent of any reasons the remainder of the contract might be invalid—that is a question to be decided by the court. See Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1120 (9th Cir. 2008) (“[O]ur case law makes clear that courts properly exercise jurisdiction over claims raising (1) defenses existing at law or in equity for the revocation of (2) the arbitration clause itself.”).

After Buckeye, we have applied the “crux of the complaint” rule as a method for differentiating between challenges to the arbitration provision alone and challenges to the entire contract. Nagrampa, 469 F.3d at 1268. In Buckeye, the Court held that “because [the plaintiffs] challenge[d] the Agreement, but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract. The challenge should therefore be considered by an arbitrator, not a court.” 546 U.S. at 446. In Nagrampa, we distinguished Buckeye because “the complaint in Buckeye, unlike Nagrampa’s complaint, did not contain claims that the arbitration provision alone was void and unenforceable, but rather alleged that the arbitration provision was unenforceable because it was contained in an illegal usurious contract which was void ab initio.” Nagrampa, 469 F.3d at 1268. Fastbucks contends that Buckeye, and not Nagrampa, applies here because Plaintiffs’ complaint does not contain a specific challenge to the arbitration clause.

We disagree. This case presents a third scenario not described in either Buckeye or Nagrampa; namely, a specific challenge to the arbitration clause that is not raised as a separate claim in the complaint. See Winter v. Window Fashions Prof’ls, Inc., 83 Cal. Rptr. 3d 89, 93 (Ct. App. 2008) (distinguishing Buckeye and Nagrampa and holding that arbitrability was for the court to decide where the plaintiff’s specific “challenge to the arbitration clause was [raised] in response to [a] petition to compel arbitration” rather than in the complaint). Because the material question is whether the challenge to the arbitration provision is severable from the challenge to the contract as a whole, Buckeye, 546 U.S. 444-45; Rent-A-Ctr., 130 S. Ct. at 2778, the inclusion of, or failure to include, a specific challenge in the complaint is not determinative. See Winter, 83 Cal. Rptr. 3d at 93. What matters is the substantive basis of the challenge.

Slip op., at 14209-11.

I report on this decision primarily because the sudden explosion of arbitration issues in different contexts is interesting, at least to me.  Tomorrow I will find out whether I successfully beat back a claim that Stolt-Nielsen preempts Gentry.  It looks like I will be paying attention to arbitration decisions for some time to come.

State Court Docket Watch Summer 2010 now available from the Federalist Society

Like the headline says, State Court Docket Watch Summer 2010 is now available here on the The Federalist Society website.   The newest edition includes thoughts on Business and Professions Code section 17200 after the passage of Proposition 64.  Pay no attention to the odd coincidence that one of the contributors has a name very similar to mine.  I would never engage in shameless self-promotion and how dare you say that.

COMPLEX TECH: IE9 beta now available for public download from Microsoft

If living on the cutting edge is just your thing, then you might be interested in looking at Internet Explorer 9 beta.  IE9 beta is available for download now.  It is a beta product, so quirks are to be expected.  If you want to know what you are getting into before jumping into murky beta waters, read this review.

The newest version of IE is a great looking program.  I've seen a few layout quirks, but this blog looks right, so everything is mostly right in the world.  Of course, I did discover that the Create a Post pop-up doesn't work on SquareSpace under IE9 beta.  If the connection isn't obvious already, this blog is hosted on SquareSpace (thus I write this post in Chrome).

I did notice that, not surprisingly, Exchange web access works just like it should.  If I notice any other bugs on any law-related sites, I will post a follow-up.

Careful allegations can avoid collateral estoppel issues

United States District Court Judge Claudia Wilken (Northern District of California) denied a motion to strike class allegations when the Court concluded that allegations concerning Kenmore Dryers were sufficiently different from allegations in a prior suit that collateral estoppel could not bar the present suit.  Murray v. Sears, Roebuck and Co., 2010 WL 3490214 (Sept. 3, 2010).  The Court described the basics of the collateral estoppel doctrine as follows:  

Collateral estoppel, or issue preclusion, bars re-litigation of issues when:

(1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding.

Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir.2006). However, “it is inappropriate to apply collateral estoppel when its effect would be unfair.” Eureka Fed. Sav. & Loan Ass'n v. Am. Cas. Co. of Reading, Pa., 873 F.2d 229, 234 (9th Cir.1989).

Only the first element of collateral estoppel is at issue in this motion. Plaintiff disputes that the class certification issues necessarily decided in the previous proceeding are identical to those presently before the Court. The Court looks to four factors to aid in “[d]etermining whether two issues are identical for purposes of collateral estoppel: (1) is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? (2) does the new evidence or argument involve the application of the same rule of law as that involved in the prior proceeding? (3) could pretrial preparation and discovery related to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? and (4) how closely related are the claims involved in the two proceedings?” Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1116 (9th Cir.1999) (citations omitted).

Slip op., at 2-3.  The Court then compared the allegations from a prior case to those in the current one, concluding that the allegations in the current case were sufficient at the pleading stage to resolve the issue raised in the prior class action in the Seventh Circuit:

In granting class certification, the district judge said that because “Sears marketed its dryers on a class wide basis ... reliance can be presumed.” Reliance on what? On stainless steel preventing rust stains on clothes? Since rust stains on clothes do not appear to be one of the hazards of clothes dryers, and since Sears did not advertise its stainless steel dryers as preventing such stains, the proposition that the other half million buyers, apart from Thorogood, shared his understanding of Sears's representations and paid a premium to avoid rust stains is, to put it mildly, implausible, and so would require individual hearings to verify.

Id. at 748. In sum, the “deal breaker” against Thorogood's class allegations was “the absence of any reason to believe that there is a single understanding of the significance of labeling or advertising clothes dryers as containing a ‘stainless steel drum.’ ” Id.

Plaintiff has sufficiently amended his complaint so as to differentiate it from the complaint in Thorogood to avoid the application of collateral estoppel. Unlike the complaint in Thorogood, the amended complaint includes allegations that Defendants expressly advertised the significance of the fact that their dryers contain stainless steel drums. For instance, Sears' website describes the “Stainless Steel Drum” as “Durable Drum eliminates rusting and chipping for long lasting performance.” First Amended Complaint (1AC) ¶ 50 (emphasis added). Sears' website and in-store brochures state that Kenmore Dryers will “KEEP YOU CLOTHES LOOKING GREAT: An exclusive, all stainless steel drum provides lasting durability.” Id. ¶ 52 (upper case in original; emphasis added). These allegations are of the precise type that the Seventh Circuit said would distinguish Thorogood from a claim in which common issues might predominate.

Slip op., at 3-4.

Artful pleading saves the day.

Article III standing not shown and claims lacking necessary facts leads to dismissal of consumer class action alleging carcinogens in baby bath products

United States District Court Judge Claudia Wilken (Northern District of California) granted a motion to dismiss plaintiffs' Second Amended Complaint in a consumer class action alleging various defendants knowingly manufactured and sold bath products for children that contain probable carcinogens and other unsafe substances.  Herrington v. Johnson & Johnson Consumer Companies, Inc., 2010 WL 3448531 (Sept. 1, 2010).  The Court found the allegations related to the risk of harm too remote to satisfy the plaintiffs' Article III burden:

Plaintiffs do not cite controlling authority that the “risk of harm” injury employed to establish standing in environmental cases applies equally to product liability actions. At least two out-of-circuit cases are instructive on the nature of the increased risk of harm necessary to create an injury-in-fact. In Sutton v. St. Jude Medical S.C., Inc., a product liability case, the Sixth Circuit concluded that a plaintiff had standing when he alleged that the implantation of a medical device exposed him to “a substantially greater risk” of harm. 419 F.3d 568, 570-75 (6th Cir.2005). In Public Citizen, Inc. v. National Highway Traffic Safety Administration, the D.C. Circuit, addressing a petitioner's standing to challenge agency action, expressed doubts about finding that any increased risk of harm inflicted an injury-in-fact. 489 F.3d 1279, 1293-96 (D.C.Cir.2007). The court recognized that, under its precedent, standing was appropriate in such cases “when there was at least both (i) a substantially increased risk of harm and (ii) a substantial probability of harm with that increase taken into account.” Id. at 1295. These cases and Central Delta suggest that, to the extent that an increased risk of harm could constitute an injury-in-fact in a product liability case such as this one, Plaintiffs must plead a credible or substantial threat to their health or that of their children to establish their standing to bring suit.

Plaintiffs have not alleged such a threat. In essence, they complain that (1) 1,4-dioxane and formaldehyde are probable human carcinogens; (2) “scientists believe there is no safe level of exposure to a carcinogen,” 2AC ¶ 68; (3) children are generally more vulnerable to toxic exposure than adults; and (4) 1,4-dioxane and formaldehyde have been detected in Defendants' products. However, Plaintiffs do not allege that 1,4-dioxane and formaldehyde are in fact carcinogenic for humans. Nor do they plead that the amounts of the substances in Defendants' products have caused harm or create a credible or substantial risk of harm.  This contrasts with the showing in Central Delta, in which the landowners cited the defendant agency's own reports, which predicted that “the majority of the months during which the standard would be exceeded are projected to be peak-irrigation months during plaintiffs' growing seasons.” Central Delta, 306 F.3d at 948. The plaintiffs also cited reports showing “the negative effects of increased salinity on the various crops that they grow” and themselves reported that “their harvests were damaged in the past due to high salinity in the water.” Id. Here, Plaintiffs do not plead facts to suggest that a palpable risk exists. They only allege that 1,4-dioxane and formaldehyde may be carcinogenic for humans, that there could be no safe levels for exposure to carcinogens and that Defendants' products contain some amount of these substances. Indeed, as Plaintiffs plead, the Consumer Product Safety Commission (CPSC) has stated that, although the presence of 1,4-dioxane “is cause for concern,” the CPSC is merely continuing “to monitor its use in consumer products.” 2AC ¶ 64. The risk Plaintiffs plead is too attenuated and not sufficiently imminent to confer Article III standing.

Opinion, at 3.  The Court granted leave to amend, so it is unclear whether the plaintiffs can meet the challenging task of alleging facts that will satisfy their Article III standing.

The Court also offered some interesting remarks about Rule 9(b) as it pertains to the plaintiffs' fraud and UCL claims:

Herrington and Haley cite In re Tobacco II Cases, 46 Cal.4th 298, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009), to argue that they are not required to allege which representations they specifically saw. There, addressing the allegations necessary to plead reliance to establish standing to bring a UCL claim, the California Supreme Court stated that “where ... a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the plaintiff relied on particular advertisements or statements.” Id. at 328, 93 Cal.Rptr.3d 559, 207 P.3d 20; see also Morgan, 177 Cal.App.4th at 1257-58, 99 Cal.Rptr.3d 768. However, Plaintiffs have not plead that they viewed any of Defendants' advertising, let alone a “long-term advertising campaign” by Defendants. Even if they did, In re Tobacco II merely provides that to establish UCL standing, reliance need not be proved through exposure to particular advertisements; the case does not stand for, nor could it, a general relaxation of the pleading requirements under Rule 9(b). See, e.g ., In re Actimmune Mktg. Litig., 2009 WL 3740648, at *13 (N.D.Cal.).

As for alleged non-disclosures, a modified pleading standard applies “on account of the reduced ability in an omission suit ‘to specify the time, place, and specific content’ relative to a claim involving affirmative misrepresentations.” In re Apple & AT & TM Antitrust Litig., 596 F.Supp.2d 1288, 1310 (N.D.Cal.2008) (quoting Falk v. Gen. Motors Corp., 496 F.Supp.2d 1088, 1099 (N.D.Cal.2007)). Herrington and Haley's primary complaint is that Defendants did not disclose information concerning the presence of 1,4-dioxane and formaldehyde. See, e.g., 1AC ¶¶ 32, 198. Their failure to plead the time and place of these omissions will not defeat their claims. And reliance on these nondisclosures could be presumed if their allegations suggested that the omitted facts were material. See, e.g., Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir.1975). However, Herrington and Haley have not made such allegations. Although they plead that they would not have purchased Defendants' products had they known of the presence of 1,4-dioxane and formaldehyde, a fact is material if a reasonable person “would attach importance to its existence or nonexistence in determining” whether to purchase the product. Morgan, 177 Cal.App.4th at 1258, 99 Cal.Rptr.3d 768 (citation and internal quotation marks omitted). Because Herrington and Haley have not averred facts that show that the levels of these substances caused them or their children harm, under the objective test for materiality, the alleged non-disclosures are not actionable.

Opinion, at 8.  Hmmm.  It's just a tiny bit of formaldehyde in your baby's bubble bath.  It's not a material fact.