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May-09-2002 10:51 am
Case Number: CGC-02-406217
Filing Date: May-09-2002 10:48
Juke Box: 001 Image: 00417856
ANSWER
MICHAEL DIPIRRO VS. COLDWATER CREEK et al
001000417856
Instructions:
Please place this sheet on top of the document to be scanned.~ "ORIGINAL =~
1 | LATHAM & WATKINS
Betty-Jane Kirwan (State Bar No. 050899)
2 R. Scott Pearson (State Bar No. 198145)
633 West Fifth Street, Suite 4000 San Francisco County Sof or
3 || Los Angeles, California 90071-2007 perior Court
Telephone: (213) 485-1234 MAY 9 - 2002
4 || Facsimile: (213) 891-8763 G
R
oy SADON PARK -L-Clerk
BSR aoa
5 | Attorneys for Defendant Coldwater Creek
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 | MICHAEL DIPIRRO CASE NO. 406217
12 Plaintiff,
COLDWATER CREEK'S ANSWER TO
13 v. UNVERIFIED COMPLAINT FOR
INJUNCTIVE RELIEF AND CIVIL
14 | COLOWATER CREEK; and DOES 1 PENALTIES
through 150,
15 Complaint Filed: 4/2/2002
16 Defendants. Trial Date: None Set
17 1. Defendant Coldwater Creek (“Coldwater Creek”) answers the Unverified
18 | Complaint for Injunctive Relief and Civil Penalties (“Complaint”) of plaintiff Michael DiPirro
19 | (“Plaintiff”) as follows:
20 GENERAL DENIAL
21 2. Pursuant to section 431.30(d) of the California Code of Civil Procedure,
22, | Coldwater Creek generally denies each and every allegation of the Plaintiffs Complaint, and
23 | further denies that Plaintiff has been damaged in any sum or sums whatsoever as a result of any
24 | alleged conduct of Coldwater Creek, and denies that Plaintiff is entitled to relief of any kind.
25 | / ti
26 Pits
27 ffi
28 li
Latham a Watkins COLDWATER CREEK'S ANSWER TO UNVERIFIED
arromueva AY LAW COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL
Toe aNcELes PENALTIESLatham a Watkins
28
ATTORNEYS AT Law
~ we
AFFIRMATIVE DEFENSES
3. Without concession to any claim or allegation by Plaintiff, Coldwater
Creek asserts the following separate and distinct Affirmative Defenses. By alleging the matters
set forth in the paragraphs below, Coldwater Creek does not thereby allege or admit that
Coldwater Creek has the burden of proof and/or the burden of persuasion with respect to any of
those matters.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
4. The Complaint and each cause of action contained therein fails to state a
claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
(No Knowing and Intentional Exposure)
5. Without admitting that any exposures occurred, to the extent they did
occur, the Complaint and each of its claims for relief therein are barred because at all relevant
times, Coldwater Creek acted in good faith and had no intention, nor knowledge, nor any
reasonable grounds to know, that any of its alleged conduct exposed any individual in the course
of doing business, or otherwise, to any chemical known to the State of California to cause cancer
or reproductive toxicity, and, for this reason, the Complaint fails to state facts sufficient to
constitute a cause of action against Coldwater Creek.
THIRD AFFIRMATIVE DEFENSE
(No Significant Risk of Causing Cancer)
6. Coldwater Creek is exempted from the warning requirements of Health &
Safety Code section 25249.6 because studies of the exposure to the chemicals listed in the
Complaint, based on evidence and standards of comparable scientific validity to the evidence and
standards which form the scientific basis for the listing of chemicals pursuant to Health & Safety
Code section 25249.8(a) and 22 California Code of Regulations section 12000 et seq., show that
the exposure, if any, poses no significant risk of causing cancer.
ttf
2
‘COLDWATER CREEK'S ANSWER TO UNVERIFIED
COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL
PENALTIESLatham & Watkins
28
ANIORNEYS AT Law
Los Angetes
FOURTH AFFIRMATIVE DEFENSE
(Lack of Standing to Represent General Public)
7. Plaintiff lacks standing to suc Coldwater Creek on behalf of the general
public.
FIFTH AFFIRMATIVE DEFENSE
{Action Not in the Public Interest)
8. Plaintiff is barred from pursuing its claim under Health and Safety Code
section 25249.7(d) because its action is not in the public interest.
SIXTH AFFIRMATIVE DEFENSE
(No Observable Effect)
9. Coldwater Creek is exempted from the warning requirement of Health &
Safety Code section 25249.6 because studies of the exposure lo the chemicals listed in the
Complaint, based on evidence and standards of comparable scientific validity to the evidence and
standards which form the scientific basis for the listing of chemicals pursuant to Health & Safety
Code section 25249.8(a) and 22 California Code of Regulations section 12000 et seq., show that
the exposure, if any, has no observable cffect of reproductive toxicity.
SEVENTH AFFIRMATIVE DEFENSE
(No Trustworthy Scientific Basis For Warning Requirements)
10. At all times relevant herein, the exposure limits and science underlying the
warning requirements alleged in the Complaint were and continue to be scientifically
untrustworthy and unreliable and, for this reason, the Complaint fails to state facts sufficient to
constitute a cause of action against Coldwater Creek.
EIGHTH AFFIRMATIVE DEFENSE
(Warnings Provided)
11. Atall times relevant herein, to the full extent required by law, if at all,
Coldwater Creek provided any clear and reasonable warnings regarding the known and
reasonably knowable potential health hazards and other dangers from exposure to the chemicals
alleged in the Complaint.
3
COLDWATER CREEK'S ANSWER TO UNVERIFIED
COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL
PENALTIESLatham & Watkins)
ATTORMEYS AT LAW
Los Auceres
~~ ~~
NINTH AFFIRMATIVE DEFENSE
(insufficient Control Over Exposure)
12. Plaintiff's claims are barred to the extent that they are based on alleged
exposures in usage settings as to which Coldwater Creck exercises insufficient control over the
manner, frequency or amount of the alleged exposure.
TENTH AFFIRMATIVE DEFENSE
(Intervening Independent Cause)
13. To the extent any alieged exposures occurred, and without admitting any
exposures did occur, the violations, losses, injuries and/or damages alleged in Plaintiff's
complaint were proximately caused or contributed to, in whole or in part, by the acts or
omissions of other partics to the action and/or third parties, persons or entities, and that said acts
or omissions were intervening and superseding causes of the alleged violations, losscs, injuries
ot damages, thus barring or diminishing Plaintiff's recovery against Coldwater Creek.
ELEVENTH AFFIRMATIVE DEFENSE
{Conduct Not Unlawful, Unfair or Fraudulent)
14. Atall relevant times, the alleged business practices and/or acts of
Coldwater Creek, as described in the Complaint, were in good faith and commercially reasonable
and are neither unlawful, nor unfair, nor fraudulent, and for this reason, Plaintiff's causes of
action for Unfair Competition, Business & Professions Code section 17200 et seq., arc barred.
Plaintiff's claims are also barred to the extent they are based upon purported violation ofa statute
or regulation that is of purely regulatory import or otherwise does not define “unlawful” conduct
for purposes of Business & Professions Code section 17200 et seq.
TWELFTH AFFIRMATIVE DEFENSE
(Truthful, Nonmisleading Statements)
15. Atall relevant times, the alleged statements of Coldwater Creek, as
described in the Complaint, were in good faith, truthful, and nonmisleading, and for this reason,
Plaintiff's cause of action under Business and Professions Code section 17500 e¢ seg. is barred.
fit
4
COLDWATER CREEK'S ANSWER TO UNVERIFIED
COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL
PENALTIES28
Latham & Watkins
ATEORHEYS AT LAM
Los Aceves
THIRTEENTH AFFIRMATIVE DEFENSE
(Reasonable Reliance Upon Others)
16. As to any and all purported acts or omissions of Coldwater Creek, as
alleged by Plaintiff, Coldwater Creck was entitled to, and did, reasonably rely on the work and
conclusions of professionals and/or factual data supplied by others.
FOURTEENTH AFFIRMATIVE DEFENSE
(Estoppel & Waiver)
17. Plaintiff is barred from recovery, in whole or in part, on its alleged causes
of action by the equitable doctrines of estoppel and waiver.
FIFTEENTH AFFIRMATIVE DEFENSE
(Laches)
18. Plaintiff's inexcusable and unreasonable delay in filing and serving this
action has operated to the detriment and prejudice of Coldwater Creek. Accordingly, Plaintiff's
causes of action, and cach of them, are barred, in whole or in part, by the doctrine of laches.
SIXTEENTH AFFIRMATIVE DEFENSE
(Unclean Hands)
19. Plaintiff is barred from maintaining this action by the equitable doctrine of
unclean hands.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Failure to Comply With Notice Requirements)
20. Plaintiff's causes of action are barred, in whole or in part, because of
Plaintiff's failure to comply with the pre-lawsuit notice requirements of California Health and
Safety Code section 25249.7(d) and Title 22 of the California Code of Regulations, section
12903.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Preemption)
21. The Complaint purports to impose requirements or standards different
from those imposed by federal and/or California law governing the chemicals or exposures, if
‘COLDWATER CREEK'S ANSWER TO UNVERIFIED
COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL,
PENALTIESwe Me
1 any, alleged in the Complaint. The Plaintiff's alleged causes of action are preempted by federal
2 | and/or California law.
3 NINETEENTH AFFIRMATIVE DEFENSE
4 (Valid Business Purpose/Tustification)
5 22. Plaintiff's claims are barred for the reason that the alleged conduct and
6. | statements of Coldwater Creek was at all times justified, made in the good faith, and undertaken
7 | for a valid business purpose.
8 TWENTIETH AFFIRMATIVE DEFENSE
9 (No Likelihood of Public Deception)
10 23. Plaintiff's claims are barred in whole or in part based on Plaintiff's failure
11 | to establish the required likelihood of public deception with respect to the challenged conduct.
12 TWENTY-FIRST AFFIRMATIVE DEFENSE
13 (Statutes of Limitations)
14 24. The Complaint, and each claim for relief thercin, is barred and/or limited
15 | by the applicable statutes of limitations, including, but not Jimited to, California Business and
16 | Professions Code section 17208, and California Code of Civil Procedure sections 338 and 340.
17 TWENTY-SECOND AFFIRMATIVE DEFENSE
18 (No Threat of Imminent or Immediate Harm)
19 25. No threat of imminent or immediate harm exists sufficient to support a
20 | request for injunctive relief.
21 TWENTY-THIRD AFFIRMATIVE DEFENSE
22 (Commerce Clause Violation)
23 26. Plaintiff secks to apply Health and Safety Code section 25249.6 in a
24 | manner that would pose an impermissible burden on interstate commerce under the United States
25 | Constitution.
26 | iit
27 lit
28 fii
6
Latham & Watkins COLDWATER CREEK'S ANSWER TO UNVERIFIED
ATTORNEYS At Law COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL
Cas anocuee PENALTIES28
Latham & Watkins
ATTORNEYS AT .Av
Las Anseres
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(No Claim For Restitution)
27. Plaintiff’s claims for restitution are barred by Kraus v. Trinity
Management Servs., 23 Cal. 4" 116 (2000) and Cortez v. Purolator Air Filtration Products Co.,
23 Cal. 4° 163 (2000). Plaintiff cannot identify the actual alleged victims, if any, nor can
Plaintiff quantify the amount of restitution such alleged victims can recover, nor can Plaintiff
establish that Coldwater Creek wrongfully acquired any property or benefit by unfair
competition, or otherwise.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Non-California Conduct)
28. Without admilting that any allegations, causes of action, or theories of
recovery against Coldwater Creck contained in the Complaint, which are denied, to the extent
they did occur, Plaintiffs claims are barred to the extent they arise out of alleged exposures,
unfair business practices or false or misleading statements which occurred outside of California.
‘TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Reservation of Rights)
29. The Complaint and each cause of action stated therein is pleaded ina
vague and conclusory fashion, and Coldwater Creek’ discovery and investigation is ongoing.
For these reasons, Coldwater Creek reserves the right to add or supplement affinnative defenses
as a factual basis for each claim becomes known.
Hit
fil
ttt
7
COLDWATER CREEK’S ANSWER TO UNVERIFIED
COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL
PENALTIESNS Se
1 WHEREFORE, Coldwater Creek prays for judgment as follows:
2 1. That Plaintiff takes nothing by virtue of its Complaint and that said
3 | Complaint be dismissed with prejudice;
4 2. That Coldwater Creek be awarded its costs of suit, including attorneys’
5 | fees; and
6 3. For any further relief as the Court may decm proper.
7 || Dated: May 8, 2002 LATHAM & WATKINS
Betty-Jane Kirwan
8 R. Scott Pearson
: Le
10 By.
R. Scott Pearson
11 Attomeys for Defendant
Coldwater Creek, Inc.
12. | La_nacsss3030.11w2000]
28
8
Latham & Watkins COLDWATER CREEK’S ANSWER TO UNVERIFIED
Arranneys. Av Law COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL
tes ances PENALTIESPROOF OF SERVICE
Jam employed in the County of Los Angeles, State of California. I am aver the age of 18
years and not a party to this action. My business address is Latham & Watkins, 633 West Fifth Streci,
Suite 4000, Los Angeles, CA 90071-2007.
On May 9, 2002, I served the following documents described as:
COLDWATER CREEK’S ANSWER T0 UNVERIFIED COMPLAINT FOR
INJUNCTIVE RELIEF AND CIVIL PENALTIES
by serving a true copy of the above-described documents in the following manner:
Tam familiar with the office practice of Latham & Watkins for collecting and processing
documents for mailing with the United States Postal Service. Under that practice, documents are
deposited with the Latham & Watkins personne] responsible for depositing documents with the United
States Postal Service; such documents are delivered to the United States Postal Service on that same day
in the ordinary course of business, with postage thereon fully prepaid. | deposited in Latham & Watkins’
interoffice mail a sealed envelope or package containing the above-described document and addressed as
set forth below in accordance with the office practice of Latham & Watkins for collecting and processing
documents for mailing with the United States Postal Service:
Gregory M. Sheffer
Sheffer & Chanler
4400 Keller Avenue, Suite 200
Oakland, CA 94605
Clifford A. Chanler
Sheffer & Chanler
Magnolia Lane (off Huckleberry Hill)
New Canaan, CT 06840-3801
I declare that I am employed in the office of a member of the Bar of, or permitted to
practice before, this Court at whose direction the service was made and declare under penalty of perjury
that the foregoing is true and correct.
Executed on May 9, 2002, at Los Angeles, California.
Preview
NMI San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet May-09-2002 10:51 am Case Number: CGC-02-406217 Filing Date: May-09-2002 10:48 Juke Box: 001 Image: 00417856 ANSWER MICHAEL DIPIRRO VS. COLDWATER CREEK et al 001000417856 Instructions: Please place this sheet on top of the document to be scanned.~ "ORIGINAL =~ 1 | LATHAM & WATKINS Betty-Jane Kirwan (State Bar No. 050899) 2 R. Scott Pearson (State Bar No. 198145) 633 West Fifth Street, Suite 4000 San Francisco County Sof or 3 || Los Angeles, California 90071-2007 perior Court Telephone: (213) 485-1234 MAY 9 - 2002 4 || Facsimile: (213) 891-8763 G R oy SADON PARK -L-Clerk BSR aoa 5 | Attorneys for Defendant Coldwater Creek 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 | MICHAEL DIPIRRO CASE NO. 406217 12 Plaintiff, COLDWATER CREEK'S ANSWER TO 13 v. UNVERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL 14 | COLOWATER CREEK; and DOES 1 PENALTIES through 150, 15 Complaint Filed: 4/2/2002 16 Defendants. Trial Date: None Set 17 1. Defendant Coldwater Creek (“Coldwater Creek”) answers the Unverified 18 | Complaint for Injunctive Relief and Civil Penalties (“Complaint”) of plaintiff Michael DiPirro 19 | (“Plaintiff”) as follows: 20 GENERAL DENIAL 21 2. Pursuant to section 431.30(d) of the California Code of Civil Procedure, 22, | Coldwater Creek generally denies each and every allegation of the Plaintiffs Complaint, and 23 | further denies that Plaintiff has been damaged in any sum or sums whatsoever as a result of any 24 | alleged conduct of Coldwater Creek, and denies that Plaintiff is entitled to relief of any kind. 25 | / ti 26 Pits 27 ffi 28 li Latham a Watkins COLDWATER CREEK'S ANSWER TO UNVERIFIED arromueva AY LAW COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL Toe aNcELes PENALTIESLatham a Watkins 28 ATTORNEYS AT Law ~ we AFFIRMATIVE DEFENSES 3. Without concession to any claim or allegation by Plaintiff, Coldwater Creek asserts the following separate and distinct Affirmative Defenses. By alleging the matters set forth in the paragraphs below, Coldwater Creek does not thereby allege or admit that Coldwater Creek has the burden of proof and/or the burden of persuasion with respect to any of those matters. FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 4. The Complaint and each cause of action contained therein fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE (No Knowing and Intentional Exposure) 5. Without admitting that any exposures occurred, to the extent they did occur, the Complaint and each of its claims for relief therein are barred because at all relevant times, Coldwater Creek acted in good faith and had no intention, nor knowledge, nor any reasonable grounds to know, that any of its alleged conduct exposed any individual in the course of doing business, or otherwise, to any chemical known to the State of California to cause cancer or reproductive toxicity, and, for this reason, the Complaint fails to state facts sufficient to constitute a cause of action against Coldwater Creek. THIRD AFFIRMATIVE DEFENSE (No Significant Risk of Causing Cancer) 6. Coldwater Creek is exempted from the warning requirements of Health & Safety Code section 25249.6 because studies of the exposure to the chemicals listed in the Complaint, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of chemicals pursuant to Health & Safety Code section 25249.8(a) and 22 California Code of Regulations section 12000 et seq., show that the exposure, if any, poses no significant risk of causing cancer. ttf 2 ‘COLDWATER CREEK'S ANSWER TO UNVERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIESLatham & Watkins 28 ANIORNEYS AT Law Los Angetes FOURTH AFFIRMATIVE DEFENSE (Lack of Standing to Represent General Public) 7. Plaintiff lacks standing to suc Coldwater Creek on behalf of the general public. FIFTH AFFIRMATIVE DEFENSE {Action Not in the Public Interest) 8. Plaintiff is barred from pursuing its claim under Health and Safety Code section 25249.7(d) because its action is not in the public interest. SIXTH AFFIRMATIVE DEFENSE (No Observable Effect) 9. Coldwater Creek is exempted from the warning requirement of Health & Safety Code section 25249.6 because studies of the exposure lo the chemicals listed in the Complaint, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of chemicals pursuant to Health & Safety Code section 25249.8(a) and 22 California Code of Regulations section 12000 et seq., show that the exposure, if any, has no observable cffect of reproductive toxicity. SEVENTH AFFIRMATIVE DEFENSE (No Trustworthy Scientific Basis For Warning Requirements) 10. At all times relevant herein, the exposure limits and science underlying the warning requirements alleged in the Complaint were and continue to be scientifically untrustworthy and unreliable and, for this reason, the Complaint fails to state facts sufficient to constitute a cause of action against Coldwater Creek. EIGHTH AFFIRMATIVE DEFENSE (Warnings Provided) 11. Atall times relevant herein, to the full extent required by law, if at all, Coldwater Creek provided any clear and reasonable warnings regarding the known and reasonably knowable potential health hazards and other dangers from exposure to the chemicals alleged in the Complaint. 3 COLDWATER CREEK'S ANSWER TO UNVERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIESLatham & Watkins) ATTORMEYS AT LAW Los Auceres ~~ ~~ NINTH AFFIRMATIVE DEFENSE (insufficient Control Over Exposure) 12. Plaintiff's claims are barred to the extent that they are based on alleged exposures in usage settings as to which Coldwater Creck exercises insufficient control over the manner, frequency or amount of the alleged exposure. TENTH AFFIRMATIVE DEFENSE (Intervening Independent Cause) 13. To the extent any alieged exposures occurred, and without admitting any exposures did occur, the violations, losses, injuries and/or damages alleged in Plaintiff's complaint were proximately caused or contributed to, in whole or in part, by the acts or omissions of other partics to the action and/or third parties, persons or entities, and that said acts or omissions were intervening and superseding causes of the alleged violations, losscs, injuries ot damages, thus barring or diminishing Plaintiff's recovery against Coldwater Creek. ELEVENTH AFFIRMATIVE DEFENSE {Conduct Not Unlawful, Unfair or Fraudulent) 14. Atall relevant times, the alleged business practices and/or acts of Coldwater Creek, as described in the Complaint, were in good faith and commercially reasonable and are neither unlawful, nor unfair, nor fraudulent, and for this reason, Plaintiff's causes of action for Unfair Competition, Business & Professions Code section 17200 et seq., arc barred. Plaintiff's claims are also barred to the extent they are based upon purported violation ofa statute or regulation that is of purely regulatory import or otherwise does not define “unlawful” conduct for purposes of Business & Professions Code section 17200 et seq. TWELFTH AFFIRMATIVE DEFENSE (Truthful, Nonmisleading Statements) 15. Atall relevant times, the alleged statements of Coldwater Creek, as described in the Complaint, were in good faith, truthful, and nonmisleading, and for this reason, Plaintiff's cause of action under Business and Professions Code section 17500 e¢ seg. is barred. fit 4 COLDWATER CREEK'S ANSWER TO UNVERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES28 Latham & Watkins ATEORHEYS AT LAM Los Aceves THIRTEENTH AFFIRMATIVE DEFENSE (Reasonable Reliance Upon Others) 16. As to any and all purported acts or omissions of Coldwater Creek, as alleged by Plaintiff, Coldwater Creck was entitled to, and did, reasonably rely on the work and conclusions of professionals and/or factual data supplied by others. FOURTEENTH AFFIRMATIVE DEFENSE (Estoppel & Waiver) 17. Plaintiff is barred from recovery, in whole or in part, on its alleged causes of action by the equitable doctrines of estoppel and waiver. FIFTEENTH AFFIRMATIVE DEFENSE (Laches) 18. Plaintiff's inexcusable and unreasonable delay in filing and serving this action has operated to the detriment and prejudice of Coldwater Creek. Accordingly, Plaintiff's causes of action, and cach of them, are barred, in whole or in part, by the doctrine of laches. SIXTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) 19. Plaintiff is barred from maintaining this action by the equitable doctrine of unclean hands. SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Comply With Notice Requirements) 20. Plaintiff's causes of action are barred, in whole or in part, because of Plaintiff's failure to comply with the pre-lawsuit notice requirements of California Health and Safety Code section 25249.7(d) and Title 22 of the California Code of Regulations, section 12903. EIGHTEENTH AFFIRMATIVE DEFENSE (Preemption) 21. The Complaint purports to impose requirements or standards different from those imposed by federal and/or California law governing the chemicals or exposures, if ‘COLDWATER CREEK'S ANSWER TO UNVERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL, PENALTIESwe Me 1 any, alleged in the Complaint. The Plaintiff's alleged causes of action are preempted by federal 2 | and/or California law. 3 NINETEENTH AFFIRMATIVE DEFENSE 4 (Valid Business Purpose/Tustification) 5 22. Plaintiff's claims are barred for the reason that the alleged conduct and 6. | statements of Coldwater Creek was at all times justified, made in the good faith, and undertaken 7 | for a valid business purpose. 8 TWENTIETH AFFIRMATIVE DEFENSE 9 (No Likelihood of Public Deception) 10 23. Plaintiff's claims are barred in whole or in part based on Plaintiff's failure 11 | to establish the required likelihood of public deception with respect to the challenged conduct. 12 TWENTY-FIRST AFFIRMATIVE DEFENSE 13 (Statutes of Limitations) 14 24. The Complaint, and each claim for relief thercin, is barred and/or limited 15 | by the applicable statutes of limitations, including, but not Jimited to, California Business and 16 | Professions Code section 17208, and California Code of Civil Procedure sections 338 and 340. 17 TWENTY-SECOND AFFIRMATIVE DEFENSE 18 (No Threat of Imminent or Immediate Harm) 19 25. No threat of imminent or immediate harm exists sufficient to support a 20 | request for injunctive relief. 21 TWENTY-THIRD AFFIRMATIVE DEFENSE 22 (Commerce Clause Violation) 23 26. Plaintiff secks to apply Health and Safety Code section 25249.6 in a 24 | manner that would pose an impermissible burden on interstate commerce under the United States 25 | Constitution. 26 | iit 27 lit 28 fii 6 Latham & Watkins COLDWATER CREEK'S ANSWER TO UNVERIFIED ATTORNEYS At Law COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL Cas anocuee PENALTIES28 Latham & Watkins ATTORNEYS AT .Av Las Anseres TWENTY-FOURTH AFFIRMATIVE DEFENSE (No Claim For Restitution) 27. Plaintiff’s claims for restitution are barred by Kraus v. Trinity Management Servs., 23 Cal. 4" 116 (2000) and Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4° 163 (2000). Plaintiff cannot identify the actual alleged victims, if any, nor can Plaintiff quantify the amount of restitution such alleged victims can recover, nor can Plaintiff establish that Coldwater Creek wrongfully acquired any property or benefit by unfair competition, or otherwise. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Non-California Conduct) 28. Without admilting that any allegations, causes of action, or theories of recovery against Coldwater Creck contained in the Complaint, which are denied, to the extent they did occur, Plaintiffs claims are barred to the extent they arise out of alleged exposures, unfair business practices or false or misleading statements which occurred outside of California. ‘TWENTY-SIXTH AFFIRMATIVE DEFENSE (Reservation of Rights) 29. The Complaint and each cause of action stated therein is pleaded ina vague and conclusory fashion, and Coldwater Creek’ discovery and investigation is ongoing. For these reasons, Coldwater Creek reserves the right to add or supplement affinnative defenses as a factual basis for each claim becomes known. Hit fil ttt 7 COLDWATER CREEK’S ANSWER TO UNVERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIESNS Se 1 WHEREFORE, Coldwater Creek prays for judgment as follows: 2 1. That Plaintiff takes nothing by virtue of its Complaint and that said 3 | Complaint be dismissed with prejudice; 4 2. That Coldwater Creek be awarded its costs of suit, including attorneys’ 5 | fees; and 6 3. For any further relief as the Court may decm proper. 7 || Dated: May 8, 2002 LATHAM & WATKINS Betty-Jane Kirwan 8 R. Scott Pearson : Le 10 By. R. Scott Pearson 11 Attomeys for Defendant Coldwater Creek, Inc. 12. | La_nacsss3030.11w2000] 28 8 Latham & Watkins COLDWATER CREEK’S ANSWER TO UNVERIFIED Arranneys. Av Law COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL tes ances PENALTIESPROOF OF SERVICE Jam employed in the County of Los Angeles, State of California. I am aver the age of 18 years and not a party to this action. My business address is Latham & Watkins, 633 West Fifth Streci, Suite 4000, Los Angeles, CA 90071-2007. On May 9, 2002, I served the following documents described as: COLDWATER CREEK’S ANSWER T0 UNVERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES by serving a true copy of the above-described documents in the following manner: Tam familiar with the office practice of Latham & Watkins for collecting and processing documents for mailing with the United States Postal Service. Under that practice, documents are deposited with the Latham & Watkins personne] responsible for depositing documents with the United States Postal Service; such documents are delivered to the United States Postal Service on that same day in the ordinary course of business, with postage thereon fully prepaid. | deposited in Latham & Watkins’ interoffice mail a sealed envelope or package containing the above-described document and addressed as set forth below in accordance with the office practice of Latham & Watkins for collecting and processing documents for mailing with the United States Postal Service: Gregory M. Sheffer Sheffer & Chanler 4400 Keller Avenue, Suite 200 Oakland, CA 94605 Clifford A. Chanler Sheffer & Chanler Magnolia Lane (off Huckleberry Hill) New Canaan, CT 06840-3801 I declare that I am employed in the office of a member of the Bar of, or permitted to practice before, this Court at whose direction the service was made and declare under penalty of perjury that the foregoing is true and correct. Executed on May 9, 2002, at Los Angeles, California.