UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TARA FARRELL, et al.,

Plaintiffs,

v.

NEW MILLENNIUM CONCEPTS, LTD.,

Defendant. 

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C.A. No. 3:22-cv-00728-M

DEFENDANT’S MOTION TO DISMISS

PLAINTIFFS’ CLASS ACTION COMPLAINT AND BRIEF IN SUPPORT

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1

FACTUAL BACKGROUND......................................................................................................... 2

ARGUMENT.................................................................................................................................. 4

I. Legal standards .......................................................................................................... 4

II. Each claim must be dismissed because Plaintiffs fail to plead that any 

Challenged Representation was false......................................................................... 7

A. Testing of a wrong product does not allege anything about the falsity of 

representations related to the products that the Plaintiffs actually 

purchased. ......................................................................................................... 7

B. The Challenged Representations are vague, generalized statements that 

cannot be proved false. ................................................................................... 10

III. Each claim must be dismissed because Plaintiffs fail to plead that NMCL knew 

any alleged representation was false........................................................................ 12

IV. Each claim must be dismissed because Plaintiffs fail to plead that they relied on 

NMCL’s representations when buying the products. .............................................. 14

V. Plaintiffs’ UCL claim fails because they do not plead an underlying violation of 

law to sustain it. ....................................................................................................... 15

VI. Punitive damages are not available for Plaintiffs’ claims........................................ 16

CONCLUSION............................................................................................................................. 17

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TABLE OF AUTHORITIES

Page(s)

Cases

Abramson v. Marriott Ownership Resorts, Inc.,

155 F. Supp. 3d 1056 (C.D. Cal. 2016) ...................................................................................13

Am. Realty Tr., Inc. v. Travelers Cas. & Sur. Co. of Am.,

362 F. Supp. 2d 744 (N.D. Tex. 2005) ......................................................................................5

Arabian v. Organic Candy Factory,

2018 WL 1406608 (C.D. Cal. Mar. 19, 2018)...........................................................................7

In re Arris Cable Modem Consumer Litig.,

2018 WL 288085 (N.D. Cal. Jan. 4, 2018)........................................................................14, 15

Asghari v. Volkswagen Grp. of Am., Inc.,

42 F. Supp. 3d 1306 (C.D. Cal. 2013) .....................................................................................15

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...............................................................................................................5, 8

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...................................................................................................................5

Benchmark Elecs., Inc. v. J.M. Huber Corp.,

343 F.3d 719 (5th Cir. 2003), opinion modified on denial of reh’g, 355 F.3d 

356 (5th Cir. 2003).....................................................................................................................5

Berry v. Indianapolis Life Ins. Co.,

2011 WL 3555869 (N.D. Tex. Aug. 11, 2011)..........................................................................6

Berry v. Indianapolis Life Ins. Co.,

638 F. Supp. 2d 732 (N.D. Tex. 2009) ......................................................................................8

Biliouris v. Sundance Res., Inc.,

559 F. Supp. 2d 733 (N.D. Tex. 2008) .....................................................................................5

Brooks v. United Dev. Funding III, L.P.,

2020 WL 6132230 (N.D. Tex. Apr. 15, 2020) ..........................................................................2

Cirulli v. Hyundai Motor Co.,

2009 WL 5788762 (C.D. Cal. June 12, 2009) .........................................................................11

Clemens v. DaimlerChrysler Corp.,

534 F.3d 1017 (9th Cir. 2008) ...........................................................................................15, 16

Case 3:22-cv-00728-M Document 50 Filed 04/21/22 Page 3 of 24 PageID 743
iii

Cont’l Auto. Sys., Inc. v. Avanci, LLC,

2020 WL 5627224 (N.D. Tex. Sept. 10, 2020)..........................................................................2

Dyson, Inc. v. Garry Vacuum, LLC,

2011 WL 13268002 (C.D. Cal. Jan. 4, 2011) ............................................................................9

Eckler v. Wal-Mart Stores, Inc.,

2012 WL 5382218 (S.D. Cal. Nov. 1, 2012).........................................................................8, 9

Elson v. Black,

542 F. Supp. 3d 556 (S.D. Tex. 2021), appeal filed, No. 21-20349 (5th Cir. 

July 7, 2021).........................................................................................................................6, 11

Enea v. Mercedes-Benz USA, LLC,

2019 WL 402315 (N.D. Cal. Jan. 31, 2019)......................................................................13, 14

Goel v. Coalition Am. Holding Co.,

2011 WL 13128300 (C.D. Cal. July 5, 2011)..........................................................................16

Greater Hous. Transp. Co. v. Uber Techs., Inc.,

155 F. Supp. 3d 670 (S.D. Tex. 2015).....................................................................................11

Grimes v. Nationwide Prop. & Cas. Ins. Co.,

2011 WL 13248993 (S.D. Tex. Nov. 22, 2011) ........................................................................5

Grimm v. APN Inc.,

2017 WL 6398148 (C.D. Cal. Aug. 31, 2017)...........................................................................8

In re Hydroxycut Mktg. & Sales Pracs. Litig.,

801 F. Supp. 2d 993 (S.D. Cal. 2011)........................................................................................7

Kabbash v. Jewelry Channel, Inc. USA,

2017 WL 2473262 (W.D. Tex. June 7, 2017) ...................................................................14, 16

Kerkorian v. Samsung Elecs. Am., Inc.,

2019 WL 6918293 (E.D. Cal. Dec. 19, 2019) ...........................................................................7

Kougl v. Xspedius Mgmt. Co.,

2005 WL 1421446 (N.D. Tex. June 1, 2005) ............................................................................5

Padilla v. Costco Wholesale Corp.,

2013 WL 195769 (N.D. Ill. Jan. 16, 2013)................................................................................9

Petkevicius v. NBTY, Inc.,

2017 WL 1113295 (S.D. Cal. Mar. 24, 2017) .........................................................................16

Pizza Hut, Inc. v. Papa John’s Int’l, Inc.,

227 F.3d 489 (5th Cir. 2000) .............................................................................................10, 11

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Presidio Enters., Inc. v. Warner Bros. Distrib. Corp.,

784 F.2d 674 (5th Cir. 1986) .............................................................................................10, 11

Punian v. Gillette Co.,

2015 WL 4967535 (N.D. Cal. Aug. 20, 2015) ..................................................................12, 13

R2 Invs. LDC v. Phillips,

401 F.3d 638 (5th Cir. 2005) .....................................................................................................8

Rahman v. Mott’s LLP,

2014 WL 325241 (N.D. Cal. Jan. 29, 2014)..............................................................................6

Ranieri v. AdvoCare Int’l, L.P.,

336 F. Supp. 3d 701 (N.D. Tex. 2018) ......................................................................................5

Riviana Foods, Inc. v. Golden Star Trading, Inc.,

2020 WL 6153602 (S.D. Tex. Apr. 6, 2020)...........................................................................11

Roper v. Big Heart Pet Brands, Inc.,

2020 WL 7769819 (E.D. Cal. Dec. 30, 2020) .........................................................................17

Sandwich Chef of Tex., Inc. v. Reliance Nat’l Indem. Ins. Co.,

319 F.3d 205 (5th Cir. 2003) ...................................................................................................12

Sheppard v. Tex. Dep’t of Transp.,

158 F.R.D. 592 (E.D. Tex. 1994)...............................................................................................2

In re Sony Grand WEGA KDF–E A10/A20 Series Rear Projection HDTV 

Television Litig.,

758 F. Supp. 2d 1077 (S.D. Cal. 2010)....................................................................................11

Spector v. Mondelez Int’l, Inc.,

2017 WL 4283711 (N.D. Ill. Sept. 27, 2017) ........................................................................8, 9

Swearingen v. Healthy Beverage, LLC,

2017 WL 1650552 (N.D. Cal. May 2, 2017).........................................................12, 14, 15, 16

Tomek v. Apple Inc.,

636 F. App’x 712 (9th Cir. 2016)............................................................................................13

United States v. Bollinger Shipyards, Inc.,

775 F.3d 255 (5th Cir. 2014) ...................................................................................................13

Vess v. Ciba-Geigy Corp. USA,

317 F.3d 1097 (9th Cir. 2003) .................................................................................................12

Vitt v. Apple Comput., Inc.,

469 F. App’x 605 (9th Cir. 2012)......................................................................................10, 11

Case 3:22-cv-00728-M Document 50 Filed 04/21/22 Page 5 of 24 PageID 745
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In re Wal-Mart Stores, Inc. Wage & Hour Litig.,

505 F. Supp. 2d 609 (N.D. Cal. 2007).....................................................................................16

Weiss v. Trader Joe’s Co.,

2018 WL 6340758 (C.D. Cal. Nov. 20, 2018), aff’d, 838 F. App’x 302 (9th 

Cir. 2021)...................................................................................................................................7

U.S. ex rel. Willard v. Humana Health Plan of Tex. Inc.,

336 F.3d 375 (5th Cir. 2003) .....................................................................................................5

Williams v. WMX Techs., Inc.,

112 F.3d 175 (5th Cir. 1997) ...............................................................................................5, 12

Wilson v. Hewlett Packard Co.,

668 F.3d 1136 (9th Cir. 2012) .....................................................................................12, 13, 14

Statutes

Cal. Health & Safety Code § 116825.............................................................................................16

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Defendant New Millennium Concepts, Ltd. (“NMCL”) moves to dismiss the Class Action 

Complaint (Dkt. 1, “Complaint”) filed by Plaintiffs Tara Farrell, Henly Velarde, and Douglas 

Wells (“Plaintiffs”) pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6).

PRELIMINARY STATEMENT

NMCL is a family-owned business that has provided industry-leading water filter systems 

for twenty-three years. NMCL’s water filter systems use proprietary technology to dramatically 

reduce contaminants in water, making non-potable water potable. NMCL has verified the 

performance of its water filter systems through independent, accredited third-party laboratory 

testing, and NMCL publishes the results from its testing on its website so customers can review 

the raw data regarding the performance of its products. Never before has any regulatory authority 

or another plaintiff challenged the performance of NMCL’s products.

But now, Plaintiffs are on the second iteration of this putative class action before a second 

Court.1 Plaintiffs—who each purchased only a single type of water filter system or component part 

sold by NMCL—purport to bring this nationwide class action lawsuit on behalf of individuals who 

purchased one of many different types of water filter products sold by NMCL. Plaintiffs allege 

NMCL misrepresented how its water filter systems perform, and they base their claims on 

laboratory testing commissioned by their counsel. But Plaintiffs’ claims suffer a fatal defect—

Plaintiffs tested the wrong product. They tested a product (i) they did not purchase, (ii) NMCL 

prohibits from sale in California where each Plaintiff resides, and (iii) designated for residential 

and outdoor use unlike the outdoor-only system that two of the Plaintiffs purchased.

2 Because the

1 See Farrell v. New Millennium Concepts, Ltd., No. 2:21-cv-0075 (E.D. Cal.) (first-filed case 

that Farrell voluntarily dismissed); Farrell v. New Millennium Concepts, Ltd., No. 2:21-cv-01691 

(E.D. Cal.) (second-filed case that Judge Mendez transferred to this Court).

2 The third Plaintiff does not allege that he purchased any water filter system.

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Plaintiffs’ factual allegations (i.e., testing) do not match their claims (i.e., products), Plaintiffs do 

not adequately allege that NMCL made any misrepresentations to Plaintiffs. This requires 

dismissing all of Plaintiffs’ claims.

Plaintiffs’ claims should be dismissed for additional, independent reasons.

• Puffery: The Challenged Representations are too general to be actionable. Descriptors 

like “filter,” “remove,” “dramatically,” and “greatly” are not capable of being proved

false. The Complaint does not even try to define what they mean, because it can’t—the 

terms are too vague.

• No Knowledge: Plaintiffs do not adequately plead NMCL knew that its representations 

were allegedly false. Plaintiffs do not identify any studies, tests, or complaints that 

would have caused NMCL to know such—much less any that NMCL knew about at 

the time the representations were allegedly made to the Plaintiffs.

• No Reliance: Plaintiffs do not adequately allege they relied on NMCL’s 

representations when buying the products. They plead no facts to support which 

representations they relied on, or when, where, or how they relied on them.

For these reasons and more, the Court should dismiss Plaintiffs’ claims in their entirety with 

prejudice.

FACTUAL BACKGROUND3

NMCL is a Texas company that manufactures gravity-fed water filter systems with 

proprietary, contaminant-reducing technology. Plaintiff Tara Farrell allegedly purchased a Travel 

Berkey, an NMCL water filter system, in or around October 2019 from Amazon. Compl. ¶ 8. 

Plaintiff Henly Velarde allegedly purchased a Travel Berkey in or around May 2020 from a dealer 

of NMCL products. Id. ¶ 9. Plaintiff Douglas Wells allegedly purchased NMCL’s filters, called 

3 This summary comes from the allegations in the Complaint and properly-considered websites. 

The Court can and should consider the websites cited herein because they are “referred to” in the 

Complaint, “central to [Plaintiffs’] claims,” and/or judicially noticeable. Cont’l Auto. Sys., Inc. v. 

Avanci, LLC, 2020 WL 5627224, at *3 (N.D. Tex. Sept. 10, 2020) (subsequent history omitted); 

Brooks v. United Dev. Funding III, L.P., 2020 WL 6132230, at *33-34 (N.D. Tex. Apr. 15, 2020); 

Sheppard v. Tex. Dep’t of Transp., 158 F.R.D. 592, 595-98 (E.D. Tex. 1994). (For citations, all 

internal citations and quotation marks are omitted and emphasis is added.)

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Purification Elements, from Amazon in and around January 2020, and he apparently did not 

purchase an NMCL water filter system. Id. ¶ 10. NMCL’s product packaging describes the rates 

at which the products remove certain contaminants from water. Id. ¶ 23. It also refers customers 

to NMCL’s website, where customers may view certain accredited third-party laboratory test 

results confirming the rates at which NMCL’s products remove contaminants from water. Id.4

Plaintiffs allege that the marketing and labeling for the Travel Berkey and Purification 

Elements—as well as for five other NMCL water filter systems Plaintiffs never purchased—made 

the following three alleged misrepresentations regarding the products:

• The “Purification Representation”: The products constitute “purification” systems. 

Compl. ¶ 4.

• The “Contaminant-Reduction Representation”: The products “remove” or 

“dramatically” or “greatly” “reduce” contaminants, id., and contaminants are removed

at certain rates. Id. ¶ 21.

• The “Longevity Representation”: The products purify and/or filter water for 3,000 

gallons per Purification Element. Id. ¶ 4.

(collectively, the “Challenged Representations”). Plaintiffs fail, however, to allege any specific 

facts showing that the products they purchased fail to perform consistent with the Challenged 

Representations. Rather, Plaintiffs’ claims rest entirely on testing that Plaintiffs’ lawyers 

purportedly conducted on a different product—the Crown Berkey. That testing is not relevant here, 

for several reasons: (1) it occurred roughly one year after Plaintiffs purchased their products, (2)

none of the Plaintiffs purchased the Crown Berkey, (3) the Crown Berkey is designated for both 

residential and outdoor use, whereas the Travel Berkey is designated only for outdoor use,5 and 

4 Black Berkey® Purification Elements Test Results, New Millennium Concepts, Ltd.,

http://berkeywaterkb.com/black-berkey-purification-elements-test-results/ (last visited April 21, 

2022).

5 See Multi-Use Systems, New Millennium Concepts, Ltd., https://www.berkeywater.com/multiuse-systems/ (last visited April 21, 2022); Crown Berkey System (6 gal), New Millennium 

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(4) NMCL prohibits the Crown Berkey from being sold in California, where the Plaintiffs reside. 

As NMCL’s website states:

6

The Complaint offers no explanation as to why Plaintiffs failed to test the specific products they 

allegedly purchased, or even a system that was authorized for sale in California, designated for the 

same type of use, or purchased at the relevant time.

The Complaint also fails to allege any facts indicating that NMCL knew any of its 

representations were allegedly false. Plaintiffs do not identify any studies, tests, or complaints—

or any other information, for that matter—that could give rise to any inference that NMCL knew 

a representation allegedly was not true. The Complaint likewise is devoid of any facts to support 

an allegation that Plaintiffs relied on NMCL’s representations when they bought the products.

ARGUMENT

I. Legal standards

Plaintiffs cannot state a claim through “labels and conclusions” or “a formulaic recitation 

Concepts, Ltd., https://www.berkeywater.com/crown-berkey-system-6-gal/ (last visited April 21, 

2022); Outdoor Systems, New Millennium Concepts, Ltd.,

https://www.berkeywater.com/outdoor-systems/ (last visited April 21, 2022).

6 See Policy Regarding Sales of Berkey® Products to Residents of California and Iowa, New 

Millennium Concepts, Ltd., https://www.berkeywater.com/ca-ia-sales-policy (last visited April 

21, 2022).

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of the elements” of a claim, and the Court cannot accept as true “a legal conclusion couched as a 

factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If Plaintiffs only plead 

“factual content” to suggest the possibility of a violation—rather than a “reasonable inference that 

the defendant is liable”—the claim must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Allegations grounded in fraud, however, are subject to the “heightened particularity” 

requirement of Rule 9(b). Ranieri v. AdvoCare Int’l, L.P., 336 F. Supp. 3d 701, 712 (N.D. Tex. 

2018). To satisfy this heightened standard, Plaintiffs must state with particularity what statements 

were fraudulent and why, who made the statements and to whom, and where and when the 

statements were made. See U.S. ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 

384 (5th Cir. 2003) (discussing the “‘who, what, when, where, and how’ of the alleged fraud”); 

Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997). Where, as here, a plaintiff’s 

claims arise from the “same set” of allegedly fraudulent conduct, Rule 9(b) applies to each claim 

even if “not technically termed fraud.” See Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 

719, 723 (5th Cir. 2003), opinion modified on denial of reh’g, 355 F.3d 356 (5th Cir. 2003); 

Grimes v. Nationwide Prop. & Cas. Ins. Co., 2011 WL 13248993, at *3 (S.D. Tex. Nov. 22, 2011) 

(holding the requirements of Rule 9(b) “apply to all cases where the gravamen of the claim is fraud 

even though the theory supporting the claim is not technically termed fraud”).7

To be sure, each of Plaintiffs’ claims arises from the core allegation that NMCL made 

deceptive and fraudulent misrepresentations about its products.8 See, e.g., Compl. ¶ 2 (“As a result 

7 Cf. Am. Realty Tr., Inc. v. Travelers Cas. & Sur. Co. of Am., 362 F. Supp. 2d 744, 752 (N.D. Tex. 

2005) (applying Rule 9(b) to non-fraud claims “intertwined” with a fraud claim); Williams v. WMX 

Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997) (same); Biliouris v. Sundance Res., Inc., 559 F. 

Supp. 2d 733, 737 (N.D. Tex. 2008) (dismissing claim based on the same operative facts as a fraud 

claim that failed to satisfy Rule 9(b)); Kougl v. Xspedius Mgmt. Co., 2005 WL 1421446, at *5-6 

(N.D. Tex. June 1, 2005) (same).

8 Plaintiffs assert common law claims for breach of express warranty, breach of implied warranty 

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of Defendant’s fraudulent marketing scheme, . . . defrauded consumers . . . .”); id. ¶ 62 at 63 

(requesting punitive damages for an alleged breach of express warranty as a result of alleged 

“fraudulent conduct”); id. ¶ 66 at 64 (same as to alleged breach of implied warranty); id. ¶ 67 

(alleging NMCL was unjustly enriched by engaging in “fraudulent, misleading, and deceptive 

representations and omissions”); id. ¶¶ 72-73 (asserting UCL claim based on “false, misleading, 

fraudulent, and deceptive statements” and a “false and fraudulent marketing scheme”); id. ¶ 89 

(“Fraudulent & Material Challenged Representations”); id. ¶ 93 (“Defendant’s use of the 

Challenged Misrepresentations to sell the Products violates California Civil Code sections 1572 

(actual fraud), 1573 (constructive fraud), 1709-1710 (fraudulent deceit), and 1711 (deceit upon 

the public).”); id. ¶ 112 (asserting CLRA claim based on the alleged “false, misleading, deceptive, 

and fraudulent Challenged Representations”). The Complaint uses forms of the term fraud nearly 

50 times, and that does not include similar terms like misrepresent and deceive. 

In fact, federal district courts in Texas—including in this District—have applied Rule 

9(b) to the very UCL, FAL, CLRA, and unjust enrichment claims asserted here. See Berry v. 

Indianapolis Life Ins. Co., 2011 WL 3555869, at *7 (N.D. Tex. Aug. 11, 2011) (dismissing 

UCL, FAL, and unjust enrichment claims, among others, pursuant to Rule 9(b)); Elson v. Black, 

542 F. Supp. 3d 556, 565 (S.D. Tex. 2021) (dismissing CLRA and UCL claims pursuant to Rule 

9(b)). And while there is understandably not an abundance of case law in the Fifth Circuit 

analyzing these California claims, federal courts in California routinely apply Rule 9(b) to the 

statutory claims and associated common law claims that Plaintiffs assert. Rahman v. Mott’s LLP, 

of merchantability, and unjust enrichment, and statutory claims under California’s Unfair 

Competition Law (Cal. Bus. & Prof. Code § 17200, “UCL”), False Advertising Law (Cal. Bus. & 

Prof. Code § 17500, “FAL”), and Consumer Legal Remedies Act (Cal. Civ. Code § 1750, 

“CLRA”).

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2014 WL 325241, at *8 (N.D. Cal. Jan. 29, 2014) (stating the Ninth Circuit “has specifically held 

that Rule 9(b)’s heightened pleading standard applies to claims for violation of the UCL, FAL, or 

CLRA that are grounded in fraud”); Weiss v. Trader Joe’s Co., 2018 WL 6340758, at *2 (C.D. 

Cal. Nov. 20, 2018) (applying Rule 9(b) and dismissing statutory CLRA, UCL, and FAL claims, 

as well as common law breach of express warranty, breach of implied warranty of 

merchantability, and unjust enrichment claims), aff’d, 838 F. App’x 302 (9th Cir. 2021).9 Each 

of Plaintiffs’ claims must satisfy Rule 9(b).

II. Each claim must be dismissed because Plaintiffs fail to plead that any Challenged 

Representation was false.

To establish any of their claims, Plaintiffs must allege that the Challenged Representations 

were false. But Plaintiffs’ allegations of falsity fall short of Rule 9(b)’s exacting standard because 

they rely on testing of a product that the Plaintiffs did not and could not have purchased. Further, 

Plaintiffs challenge certain representations that are nonactionable and incapable of being false. 

Thus, all of Plaintiffs’ claims must be dismissed.

A. Testing of a wrong product does not allege anything about the falsity of 

representations related to the products that the Plaintiffs actually purchased.

The centerpiece of Plaintiffs’ falsity allegations, and thereby each claim, is the alleged test 

results for the Crown Berkey system—a product Plaintiffs did not purchase and which NMCL 

specifically prohibits from being sold in California. Yet the Court should not make “unwarranted 

9 See also Kerkorian v. Samsung Elecs. Am., Inc., 2019 WL 6918293, at *3 (E.D. Cal. Dec. 19, 

2019) (similar); Arabian v. Organic Candy Factory, 2018 WL 1406608, at *3 (C.D. Cal. Mar. 19, 

2018) (similar); In re Hydroxycut Mktg. & Sales Pracs. Litig., 801 F. Supp. 2d 993, 1005, 1008 

(S.D. Cal. 2011) (similar). Where relevant Fifth Circuit case law is sparse, this brief cites to federal 

courts in California because the bulk of consumer class actions are brought in California and the 

named Plaintiffs’ claims may arise under California law. To be clear, however, that California law 

may govern the claims of these named Plaintiffs who reside in California does not mean that 

California law applies to the claims of putative class members outside of California.

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deductions” or “strain to find inferences favorable to the plaintiffs.” R2 Invs. LDC v. Phillips, 401 

F.3d 638, 642 (5th Cir. 2005).

To start, the Complaint has no factual basis to support any alleged falsity. The Complaint 

lacks any specific allegations regarding the efficacy or filtration capabilities of the Travel Berkey 

system or the standalone Purification Elements Plaintiffs purchased. The “disconnect between the 

representation at issue and what the studies cited by [Plaintiffs] actually show” suggests Plaintiffs’ 

“claims may be wholly speculative” and should be dismissed under Rule 9(b). See Eckler v. WalMart Stores, Inc., 2012 WL 5382218, at *6-7, *8 n.10 (S.D. Cal. Nov. 1, 2012) (dismissing claims 

where plaintiff failed to cite any studies “examining the effectiveness of the actual Product in 

providing the benefits actually represented on the Product label”). This would not even satisfy the 

Rule 8(a) standard, because the Court cannot “reasonably infer” from a study of a different product 

that NMCL “has engaged in false or deceptive advertising on the basis of the facts alleged. And 

that means dismissal” of all claims “is proper.” Id.; see Spector v. Mondelez Int’l, Inc., 2017 WL 

4283711, at *5 (N.D. Ill. Sept. 27, 2017) (holding that “Plaintiff’s false advertising claim [did] not 

meet the Rule 8(a) standard articulated by Iqbal, much less Rule 9(b)’s requirement that the 

circumstances constituting fraud must be stated with particularity,” where plaintiff based her 

allegations on test results for a product not at issue in the case). 

In addition to needing a factual basis for falsity, the Complaint also must allege why the 

challenged statements were false. Berry v. Indianapolis Life Ins. Co., 638 F. Supp. 2d 732, 738 

(N.D. Tex. 2009). And the explanation of “why” must address the challenged products. See Grimm 

v. APN Inc., 2017 WL 6398148, at *6 (C.D. Cal. Aug. 31, 2017) (dismissing UCL, FAL, and 

CLRA claims where plaintiff “describes what terms on [defendant’s] labels were misleading, but 

she does not describe why they are misleading”). Plaintiffs’ reliance on tests of the Crown

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Berkey—a product they did not and could not have purchased—are inadequate to demonstrate why 

NMCL’s representations regarding the products Plaintiffs actually purchased are false. As one 

court has explained, resting falsity allegations on this kind of test is a “problem for [Plaintiff]” 

because “none of the[] studies actually involved [the product at issue].” Eckler, 2012 WL 5382218, 

at *6. Indeed, articles and tests that “raise questions regarding the truth” of a company’s statements 

but “do[] not specifically address [the actual] product,” simply “fail[] to satisfy Rule 9(b).” Dyson, 

Inc. v. Garry Vacuum, LLC, 2011 WL 13268002, at *11, *16 (C.D. Cal. Jan. 4, 2011); see Eckler, 

2012 WL 5382218, at *6-7, *8 n.10 (dismissing claims where the plaintiff failed to cite any studies 

examining the actual product); Padilla v. Costco Wholesale Corp., 2013 WL 195769, at *4 (N.D. 

Ill. Jan. 16, 2013) (dismissing claim because the plaintiff “has failed to make any connection 

between the clinical studies that he cites and the actual representations appearing on the . . . product 

label”).

Even if Plaintiffs did not base each claim on allegedly fraudulent conduct, Plaintiffs’ falsity 

allegations would nevertheless fail under Rule 8(a). Under Rule 8(a), Plaintiffs must still allege 

facts sufficient to plausibly infer that the asserted test “directly support[s] [their] allegation of 

falsity.” Spector, 2017 WL 4283711, at *7. But a test or analysis made “in reference to a product 

not at issue here . . . is not direct evidence of falsity.” Id. Plaintiffs’ study, which tested a product 

they did not purchase, provides no basis under any standard for the Court to reasonably infer that 

NMCL’s representations were false. As such, dismissal is required.

Moreover, Plaintiffs’ conclusory allegation that the tested and purchased products were 

substantially similar does not salvage their claims. See Spector, 2017 WL 4283711, at *5, *7 

(where plaintiff relied on tests of a different-sized product not at issue in the case, her allegations 

required “a leap [ ] made through nothing but speculation” to reach her conclusion of falsity); 

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Compl. ¶ 41. The Crown Berkey and Travel Berkey offer different designs, operations, and uses. 

Unlike the outdoor-only products Plaintiffs purchased, the Crown Berkey is a much larger multiuse system designated for both residential and outdoor use. Because of these differences between 

the Crown Berkey and the products Plaintiffs purchased, the Crown Berkey is not authorized for 

sale in California. Put simply, a product that is expressly prohibited from sale in Plaintiffs’ home 

state cannot be substantially similar to the products permitted for sale there. As demonstrated 

above, Plaintiffs cannot point to the test of a different product to support their falsity allegations. 

Left without any other explanation for why NMCL’s claims are false, Plaintiffs have failed 

to adequately plead falsity, and their claims must be dismissed.

B. The Challenged Representations are vague, generalized statements that 

cannot be proved false.

Next, Plaintiffs’ claims must be dismissed because the Challenged Representations are too 

vague and generalized to be actionable. To be an actionable affirmative misrepresentation, a 

statement must be a “specific and measurable claim, capable of being proved false or of being 

reasonably interpreted as a statement of objective fact.” Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 

227 F.3d 489, 496 (5th Cir. 2000); Presidio Enters., Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 

674, 679 (5th Cir. 1986) (“A statement of fact is one that (1) admits of being adjudged true or false 

in a way that (2) admits of empirical verification.”). Statements are not actionable where they 

consist of “inherently vague and generalized terms” and are “not factual representations that a 

given standard has been met.” Vitt v. Apple Comput., Inc., 469 F. App’x 605, 607 (9th Cir. 2012). 

Plaintiffs apparently do not contest that NMCL’s products remove contaminants, as 

Plaintiffs’ test results confirm as much. Instead, Plaintiffs claim that NMCL misrepresented that 

its products (i) are “water ‘purification’ systems or water ‘purifiers’” that (ii) “‘dramatically’ or 

‘greatly’ reduce contaminants” (iii) for a certain number of uses. Compl. ¶¶ 4, 19, 21, 24. Courts 

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have repeatedly held that vague and generalized terms like these—purify, filter, remove, 

dramatically, and greatly—are not actionable. In Elson, for example, the Court found very similar 

statements nonactionable: that a product will “reduce,” “virtually eliminate,” and “eliminate” 

cellulite. Elson v. Black, 542 F. Supp. 3d 556, 561 (S.D. Tex. 2021), appeal filed, No. 21-20349 

(5th Cir. July 7, 2021); see, e.g., Pizza Hut, 227 F.3d at 496 (holding that the slogan “Better 

Ingredients. Better Pizza.” was too vague and generalized to be actionable); Presidio, 784 F.2d at 

679 (holding that words like “amazing,” “perfect,” “wonderful,” and “excellent” are “mere puffing 

or dealer’s talk”); Riviana Foods, Inc. v. Golden Star Trading, Inc., 2020 WL 6153602, at *10 

(S.D. Tex. Apr. 6, 2020) (holding “Prime Grade” is “general, subjective, and not quantifiable”); 

Greater Hous. Transp. Co. v. Uber Techs., Inc., 155 F. Supp. 3d 670, 684-85 (S.D. Tex. 2015) 

(holding claims of “safest” ride service that consumers can “trust” are not capable of being proved 

false).

Courts in California, where the Plaintiffs live and purchased the products, agree. In Vitt, 

for example, the Ninth Circuit held that descriptors such as “durable,” “portable,” “rugged,” “built 

to withstand reasonable shock,” “reliable,” and “high performance” were generalized, 

nonactionable puffery. 469 F. App’x at 607; see Cirulli v. Hyundai Motor Co., 2009 WL 5788762, 

at *3 (C.D. Cal. June 12, 2009) (holding that a statement about a vehicle’s “excellent design, 

construction, and safety” is nonactionable); In re Sony Grand WEGA KDF–E A10/A20 Series Rear 

Projection HDTV Television Litig., 758 F. Supp. 2d 1077, 1089 (S.D. Cal. 2010) (holding that 

statements about televisions’ “high” or “superior picture quality” are nonactionable).

Like the statements in these cases, the general descriptors here like “purify,” “filter,” 

“remove,” “dramatically,” and “greatly” are subjective and nonactionable. Indeed, Plaintiffs are 

unable to define what these terms mean because the terms are too vague. If they cannot be defined, 

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they cannot be proved false.10 Accordingly, the Court should dismiss Plaintiffs’ claims. Cf. 

Williams, 112 F.3d at 178 (stating that when alleged fraud “walks close to non-actionable 

expression of opinion, 9(b) takes on especial force”).

III. Each claim must be dismissed because Plaintiffs fail to plead that NMCL knew any 

alleged representation was false.

Plaintiffs do not adequately plead that NMCL knew its representations were false or that 

there was any alleged defect in its products. An “indispensable” element of fraud is “knowledge” 

of falsity. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1104 (9th Cir. 2003). So, Plaintiffs must 

plead that NMCL knew its representations were false because, as explained in Part I, Plaintiffs’ 

claims are grounded in fraud. More specifically, Plaintiffs must sufficiently allege the following:

• UCL claim: NMCL “had knowledge of the basic facts that rendered [its] statements 

misleading at the time the statements were made” or that NMCL “was aware of the 

defect when Plaintiffs purchased [the defective product].” Punian v. Gillette Co., 2015 

WL 4967535, at *12 (N.D. Cal. Aug. 20, 2015). 

• CLRA claim: NMCL “was aware of a defect at the time of sale.” Wilson v. Hewlett 

Packard Co., 668 F.3d 1136, 1145 (9th Cir. 2012). 

• FAL claim: NMCL “knew [or should have known] that any allegedly false or 

misleading statements were false or misleading when made.” Punian, 2015 WL 

4967535, at *9; see Abramson v. Marriott Ownership Resorts, Inc., 155 F. Supp. 3d 

1056, 1067 (C.D. Cal. 2016) (dismissing FAL claim where plaintiffs did not 

“adequately allege that [defendant] knew or should have known that the statement was 

untrue or misleading”). 

• Common law claims: NMCL knew its representations were false when made, because 

10 If Plaintiffs allege that NMCL promised “pure water” free of anything but H20 by calling their 

products “water purifiers,” the Purification and Longevity Representations still fail. First, NMCL 

never promised pure H20—that is just Plaintiffs’ characterization of what NMCL actually said. 

E.g., Compl. ¶¶ 19-20. Second, according to Plaintiffs, the Contaminant-Reduction Representation 

only promised to reduce contaminants by a certain percent—and at times no more than 80%—so 

no reasonable consumer could have expected pure H20. Compl. ¶ 4; Sandwich Chef of Tex., Inc. 

v. Reliance Nat’l Indem. Ins. Co., 319 F.3d 205, 218-19 (5th Cir. 2003) (holding that “[k]nowledge 

of the truth defeats a claim of fraud”); Swearingen v. Healthy Beverage, LLC, 2017 WL 1650552, 

at *5 (N.D. Cal. May 2, 2017) (holding claim is nonactionable “where Plaintiffs acknowledge that 

they were aware of the true nature of [the representation]”).

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each of Plaintiffs’ common law claims is grounded in the same fraudulent conduct as 

the statutory claims above. See supra Part I. 

Although a plaintiff must only generally plead “knowledge,” the allegations “must still satisfy the 

plausibility standard of Rule 8, and conclusory statements are insufficient.” See, e.g., Enea v. 

Mercedes-Benz USA, LLC, 2019 WL 402315, at *5 (N.D. Cal. Jan. 31, 2019) (dismissing UCL 

and CLRA claims for failing to plausibly allege defendant’s knowledge of product defect); United 

States v. Bollinger Shipyards, Inc., 775 F.3d 255, 260 (5th Cir. 2014) (requiring plaintiff to plead 

knowledge under Rule 8).

Plaintiffs fail to allege any facts supporting their allegation that NMCL knew (or, with 

respect to the FAL claim, should have known) that the Challenged Representations were allegedly 

false. Plaintiffs cite no studies, tests, or customer complaints that were inconsistent with NMCL’s 

representations and communicated or even available to NMCL. Plaintiffs do not (and could not) 

allege that the testing their counsel performed—on a different product, approximately one year 

after Plaintiffs purchased their products—was available to NMCL when the Plaintiffs purchased 

the products. See Tomek v. Apple Inc., 636 F. App’x 712, 713-14 (9th Cir. 2016) (affirming 

dismissal of CLRA and UCL claims where plaintiff failed to allege specific facts indicating the 

defendant knew its advertisements were misleading at the time plaintiff purchased the product); 

Wilson, 668 F.3d at 1147-48 (holding that complaints made over two years after plaintiffs’ 

purchase did “not support an inference that [defendant] was aware of the defect at the time it sold 

the [product] to Plaintiffs”). Plaintiffs also fail to acknowledge NMCL’s own accredited thirdparty testing made available to the public on NMCL’s website. Plaintiffs do not address this 

testing, much less allege any knowledge contrary to it. Plaintiffs do not identify any facts, such as 

contradictory studies or tests, that would have caused NMCL to question the accuracy of these 

independent, third-party tests, including at the time Plaintiffs purchased the products.

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In short, Plaintiffs’ only allegations on the issue of knowledge consist of legal conclusions. 

See, e.g., Compl. ¶ 39 (“Defendant knew, or should have known, that the Challenged 

Representations were false, misleading, deceptive, and unlawful, at the time that the Products were 

advertised, warranted, and/or sold and, instead, intentionally and deliberately used the Challenged 

Representations to sell Products regardless.”). Plaintiffs’ failure to plead facts to support these 

legal conclusions is fatal to each claim, and each should be dismissed. See Wilson, 668 F.3d at 

1147-48 (affirming dismissal of CLRA and UCL claims where plaintiff failed to adequately plead 

defendant’s knowledge); Enea, 2019 WL 402315, at *5 (holding “conclusory statement that 

‘Defendants at all relevant times were aware of the defects’” was insufficient to “plausibly allege 

that Defendants had knowledge of the defects”).

IV. Each claim must be dismissed because Plaintiffs fail to plead that they relied on 

NMCL’s representations when buying the products. 

Plaintiffs do not adequately allege that they relied on NMCL’s representations when they 

bought the products. So, each claim must be dismissed. To sustain their UCL, CLRA, FAL, and 

unjust enrichment claims based on fraudulent misrepresentations, Plaintiffs must allege with 

particularity under Rule 9(b) that they actually relied on NMCL’s alleged misrepresentations when 

buying the products. See Kabbash v. Jewelry Channel, Inc. USA, 2017 WL 2473262, at *9 (W.D. 

Tex. June 7, 2017); In re Arris Cable Modem Consumer Litig., 2018 WL 288085, at *8-10 (N.D. 

Cal. Jan. 4, 2018); Swearingen v. Healthy Beverage, LLC, 2017 WL 1650552, at *3-5 (N.D. Cal. 

May 2, 2017). The same is true for Plaintiffs’ express and implied warranty claims because 

Plaintiffs and NMCL were not in privity of contract. See Clemens v. DaimlerChrysler Corp., 534 

F.3d 1017, 1023 (9th Cir. 2008); Asghari v. Volkswagen Grp. of Am., Inc., 42 F. Supp. 3d 1306, 

1335 (C.D. Cal. 2013) (dismissing express warranty claim for failing to allege reliance where the 

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parties were not in privity of contract).11 Plaintiffs fail to plead reliance, let alone with particularity. 

In conclusory fashion devoid of any factual allegations, Plaintiffs repeatedly claim that

each class member “relied on the Challenged Representations in deciding to purchase the 

Products.” Compl. ¶ 113; see id. ¶¶ 8(3), 9(3), 10(3), 14(a)(1), 36, 90. Only once in the 80-

page Complaint do Plaintiffs allege anything more—and it is not much more. In one unrelated 

paragraph on personal jurisdiction, Plaintiffs merely allege that “every consumer” relied on 

the Purification and Contaminant-Reduction Representations on the product “labeling and 

packaging.” Id. ¶ 14(a)(3). But dismissal is required because they do not provide any facts, let 

alone facts specific to Plaintiffs—like when or where they relied on these representations, or 

how they relied on the packaging of products they bought online and never claim to have seen 

before purchase. See In re Arris, 2018 WL 288085, at *8-10; Swearingen, 2017 WL 1650552, 

at *3-5. Further, this sole paragraph never alleges that they relied on the Longevity 

Representation. Nor could it. Plaintiffs allege this representation appeared only on NMCL’s 

website, not on the product “labeling and packaging.” Id. ¶¶ 24, 26(b).12

Plaintiffs do not particularly allege that they relied on NMCL’s representations when 

buying the products. Thus, each claim must be dismissed. Asghari, 42 F. Supp. 3d at 1335; 

Clemens, 534 F.3d at 1023; Moore, 966 F.3d at 1020; Kabbash, 2017 WL 2473262, at *9.

V. Plaintiffs’ UCL claim fails because they do not plead an underlying violation of 

law to sustain it.

Finally, Plaintiffs’ UCL claim fails for one final reason. A UCL claim requires either 

11 Plaintiffs do not allege privity of contract with NMCL because they can’t—they admittedly did 

not purchase from NMCL. Compl. ¶¶ 8-10.

12 Plaintiffs never allege to have relied on NMCL’s website when purchasing the products, and to 

the extent they claim otherwise, they do not plausibly allege how they relied on NMCL’s website 

while purchasing the products from other sellers who did not sell on that site. Compl. ¶¶ 8-10.

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“unlawful, unfair or fraudulent” conduct. Swearingen, 2017 WL 1650552, at *3. There was no 

“fraudulent” misrepresentation for the reasons discussed above, and Plaintiffs do not allege an 

“unfair” practice that violated antitrust law or otherwise harmed competition. Id. That leaves the 

“unlawful” prong—here, an alleged underlying violation of Cal. Health & Safety Code § 

116825. Compl. ¶ 94(a); Dkt. 13 at 5-6. Yet that statute applies to water treatment devices that 

are sold for residential use. Compl. ¶ 94(a); Cal. Health & Safety Code § 116825(a). The Travel 

Berkey system that the Plaintiffs purchased is an outdoor-only system, not a residential one, so 

Cal. Health & Safety Code § 116825 does not apply here.13 The UCL claim should be dismissed.

VI. Punitive damages are not available for Plaintiffs’ claims.

The Court should dismiss Plaintiffs’ requests for punitive damages. Punitive damages are 

not recoverable under the UCL or FAL, nor for breach of express warranty, breach of implied 

warranty, or unjust enrichment under California law. See In re Wal-Mart Stores, Inc. Wage & Hour 

Litig., 505 F. Supp. 2d 609, 620 (N.D. Cal. 2007); Petkevicius v. NBTY, Inc., 2017 WL 1113295, 

at *10 (S.D. Cal. Mar. 24, 2017); Goel v. Coalition Am. Holding Co., 2011 WL 13128300, at *9 

(C.D. Cal. July 5, 2011).

That leaves Plaintiffs’ claim under the CLRA, which lacks any facts to support punitive 

damages. To sufficiently plead punitive damages under the CLRA, Plaintiffs must allege facts 

indicating that an “officer, director, or managing agent” of NMCL acted with fraud or malice. 

Roper v. Big Heart Pet Brands, Inc., 2020 WL 7769819, at *16 (E.D. Cal. Dec. 30, 2020). Here, 

Plaintiffs do not allege any facts about NMCL officers, directors, managing agents (or any other 

NMCL representative, for that matter), let alone that anyone acted with fraud or malice. See supra 

13 See Outdoor Systems, New Millennium Concepts, Ltd., https://www.berkeywater.com/outdoorsystems/ (last visited April 21, 2022). 

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Part III. Their request for punitive damages under the CLRA should be dismissed along with their 

other requests for punitive damages.

CONCLUSION

Plaintiffs base their allegations entirely on testing of a product they did not purchase and 

that is prohibited from sale in California. Plaintiffs have not demonstrated “why” NMCL’s 

representations are false, much less “how” NMCL had knowledge of any such falsity. Plaintiffs 

also have not alleged how vague descriptors like “dramatically” and “greatly” are capable of being 

proved false, let alone how Plaintiffs relied on those statements when buying the products. For 

these and the other reasons discussed above, Plaintiffs’ Complaint should be dismissed in its 

entirety with prejudice.

Dated: April 21, 2022 Respectfully Submitted,

/s/ Ronald W. Breaux

Ronald W. Breaux 

Texas Bar No. 02937200

Benjamin G. Goodman

Texas Bar No. 24091433

Benjamin B. Breckler

Texas Bar No. 24121922

HAYNES AND BOONE, LLP

2323 Victory Avenue, Suite 700

Dallas, Texas 75219

214.651.5000 (phone)

214.651.5940 (fax)

ron.breaux@haynesboone.com

benjamin.goodman@haynesboone.com

benjamin.breckler@haynesboone.com

Counsel for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on April 21, 2022, the foregoing document was served on all counsel 

of record via the Court’s electronic filing system.

/s/ Ronald W. Breaux

Ronald W. Breaux

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