911 F.3d 989
9th Cir.2018Background
- Plaintiff Kathleen Sonner brought a class action under California’s UCL and CLRA and for breach of express warranty challenging labels for two Ginkgold products that advertised benefits to “mental sharpness,” memory, and concentration.
- Sonner alleged the active ingredient (EGb 761 Ginkgo biloba) provides no cognitive benefits and supported that claim with expert testimony (Dr. Beth Snitz), RCTs, meta-analyses, and reviews concluding no effect beyond placebo.
- Defendants Schwabe North America and Nature’s Way moved for summary judgment, submitting contrary expert testimony (Dr. Alan Shatzberg) and studies showing cognitive benefits from Ginkgo biloba.
- The district court granted summary judgment for defendants, reasoning Sonner failed to critique the methodology or independence of defendants’ studies and therefore did not eliminate the possibility that the products worked.
- The Ninth Circuit reversed, holding that usual summary judgment rules apply: a plaintiff need only present evidence creating a genuine dispute of material fact sufficient to meet her burden at trial (preponderance), not negate all contrary expert evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper summary judgment standard for UCL/CLRA false-advertising claims | Sonner: apply ordinary summary judgment rules; her expert evidence and studies create triable issue | Schwabe: plaintiffs must show as a matter of law that advertising is false; must discredit opposing experts (In re GNC approach) | Court: ordinary summary judgment standard applies; plaintiff need only raise a genuine dispute of material fact sufficient to meet preponderance at trial |
| Who bears burden of proof on falsity | Sonner: plaintiff bears burden to prove falsity by preponderance | Schwabe: argued for stricter standard or de facto higher burden due to competing science | Court: plaintiff has burden by preponderance; producing evidence creating a triable issue is enough to defeat summary judgment |
| Whether conflicting expert evidence warrants summary judgment | Sonner: conflicting expert opinions create triable issue for jury | Schwabe: conflicting science can justify summary judgment for defendant if plaintiff doesn’t show scientific consensus against defendant | Court: conflicting expert evidence does not justify summary judgment; credibility and weight are for jury/trier of fact |
| Whether claim is a prohibited "lack of substantiation" claim | Sonner: claims allege falsity (plaintiff bears burden), not mere lack of substantiation | Schwabe: claims effectively seek defendant to substantiate claims (improper for private plaintiff) | Court: Sonner’s claims require plaintiff proof and are not barred as lack-of-substantiation claims |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard and role of evidentiary burdens at summary judgment)
- Celotex Corp. v. Catrett, 477 U.S. 317 (nonmoving party must produce evidence showing a genuine dispute of material fact)
- Provenz v. Miller, 102 F.3d 1478 (expert testimony supporting nonmoving party generally precludes summary judgment)
- In re GNC Corp., 789 F.3d 505 (Fourth Circuit decision adopting stricter approach to falsity where scientific disagreement exists)
- Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (standard of review for summary judgment in Ninth Circuit)