California Judge Rules on Motion to Dismiss Suit Alleging Home Depot Should Have Roundup Warnings

Last Friday, Judge Fernando M. Olguin granted some aspects of a Motion to Dismiss filed in a Central District of California case against Home Depot U.S.A. Inc. dismissing the class-action complaint and granting leave to amend. The complaint claimed the retailer did not sufficiently warn consumers about the alleged dangers from using Roundup, a common herbicide entangled in litigation, The complaint alleged this failure to warn violated California unfair competition laws.

Despite the overall dismissal of the complaint, the motion’s sections relating to the “defendant’s knowledge of glyphosate’s alleged carcinogenicity” and preemption were denied. The Judge told the parties in the order that although the complaint was dismissed, the plaintiffs have permission to amend their petition as long as a second amended complaint is filed by October 2. The judge also mentioned that the defendant could file another Motion to Dismiss (except as to the issues mentioned above), saying the parties would meet telephonically to discuss the motion.

The plaintiff, James Weeks, claimed in his complaint filed in August of last year that the defendant did not provide information about “the carcinogenic nature of Roundup” and that he and other consumers would not have purchased the product if they were aware of its potential harmful effects. He alleged the defendant knew of Roundup’s carcinogenic properties but did not pass the information to their customers.

The judge agreed with Home Depot’s allegations that the plaintiffs’ complaint seemed to allege a breach of Proposition 65 in California, which requires posted warnings on products that cause cancer, but the statute is not named in the complaint. According to the Order, the plaintiff said his claims were independent of the proposition and fell under unfair competition laws.

The judge did not agree with the defendant’s claims that the case was preempted by the Federal Insecticide, Fungicide and Rodenticide Act. He argued that the petitioner’s claims were related to a lack of warning signs at Home Depot, rather than the warnings on the product labels and that states retain the rights under the act to regulate and ban additional products.

The court also said it was “not convinced” about Home Depot’s argument that a preliminary injunction in a case where a California judge ruled that a cancer warning was not required on glyphosate products like Roundup would cover Home Depot in this case. Judge Olguin said the defendants in the other lawsuit were enjoined from enforcing the requirement against plaintiffs and those associated with them, which did not include Home Depot.

The plaintiff is represented by Milstein Jackson Fairchild and Wade. The defendant is represented by Unberg Zipser LLP and King and Spalding LLP.