Dismissal Briefing Continues in Juul Marketing Case

In the latest dismissal filings submitted to Northern District of California Judge William H. Orrick in the sweeping multi-district litigation accusing e-cigarette companies Juul Labs, Inc. (JLI), Altria Client Services LLC, Altria Enterprises LLC, Altria Group Distribution Company, and Altria Group, Inc. (collectively Altria) of using deceptive marketing practices to entice underaged smokers, the defendants contended that the government plaintiffs’ claims should be dismissed.

The litigation implicates both the retail companies and some of their current and former executives. It was originally filed in 2019 and is currently being pursued by both private parties and “bellwether” government entities, a collection of seven school districts from around the country.

The government entities accused the vaping product manufacturers of public nuisance, negligence, and statutory consumer protection law violations for allegedly targeting school-age children to stimulate the growth of a youth nicotine market. This round of dismissal briefing followed arguments that, among others, the plaintiffs’ claims should be dismissed on a preemption basis.

According to the government entities, the defendants levelled marketing campaigns at minors through the design and advertisement of JUUL products, which, in turn, caused an uptick in underage vapor use that forced the school districts to incur certain expenses on tobacco education and counseling services as they responded. “These actions created a public health crisis of youth e-cigarette use at epidemic levels,” the government entities said in a filing.

Altria argued that, with respect to JUUL products, its actions “were directed at adult consumers,” and “they do not support any of the youth-focused claims brought by the [government] [e]ntities.” Rather, Altria explained of its entities, “[t]hese actions did not create or maintain a nuisance that allegedly consists of underage vapor use; they did not assume or breach any duty of care with respect to school districts; and they did not engage in deceptive trade practices directed at underage individuals.”

Furthermore, Altria contended, the plaintiffs have a causation problem: their theory is “too remote, indirect and attenuated” to allege that its “actions caused underage  individuals, who would not have used vapor products absent those services, to begin and then continue vaping at schools within the area covered by that [government] [e]ntity, and did so to such a large extent that the [e]ntity incurred costs that it otherwise would not have.”

JLI defended on slightly different grounds, arguing that the plaintiffs “have failed to plead cognizable causes of action,” yet they “urge this Court to stretch the boundaries” of the law by suing it for economic damages stemming from others’ e-cigarette use. Because the plaintiffs themselves do not contend that they bought JLI’s vaping products, and therefore could not plead products liability or fraud, the plaintiffs do not deserve “a license to expand nuisance or negligence law, or to seek damages that are unrecoverable under statutory consumer protection law,” JLI explained. “At every turn,” the company argued, the plaintiffs “ask this Court to cabin or disregard well-established state-law limits on nuisance and negligence claims.”

The hearing on the motion to dismiss before Judge Orrick is scheduled for September 21, 2020.

The government entities are represented by Beasley Allen Crow Methvin Portis and Miles PC, Goza Honnold LLC, Wagstaff and Cartmell LLP, Miller Pitt Feldman & McAnally PC, Lynn Lynn Blackman & Manitsky PC, Robbins Geller Rudman Dowd LLP, Begley Carlin & Mandio LLP, Beggs & Lane RLLP, Migliaccio & Rathod LLP, Briscoe Ivester & Bazel LLP, Renne Public Law Group, Keller Rohrback LLP and Gacovino Lake & Associates.

Juul Labs, Inc. is represented by Munger, Tolles & Olson LLP and Kirkland & Ellis LLP. Altria is represented by Arnold & Porter Kaye Scholer LLP.