537 F.Supp.3d 1103
S.D. Cal.2021Background
- Plaintiffs (23 named) filed a putative class action against Kodiak Cakes alleging (1) nonfunctional slack fill (opaque boxes much larger than the contained mix) and (2) deceptive marketing (claims like “no preservatives,” “free of artificial additives,” “non‑GMO,” “healthy,” and “protein‑packed”).
- Plaintiffs assert six causes of action: multistate consumer‑protection claims, California CLRA, UCL, FAL, breach of express warranty, and quasi‑contract/unjust enrichment. The FAC covers a class period from Jan 1, 2015 onward.
- Kodiak moved to dismiss under Rules 12(b)(1) and 12(b)(6) (standing and failure to state a claim) and to strike portions of the FAC under Rule 12(f). The court resolved evidentiary questions about defendant’s website labels and denied judicial notice of high‑resolution internal “proofs.”
- The court analyzed (a) Article III standing for nationwide claims and injunctive relief, (b) Rule 9(b) pleading particularity where fraud is alleged, (c) the reasonable‑consumer standard for CLRA/UCL/FAL claims, and (d) CFPLA/nonfunctional slack‑fill theory under the UCL’s unlawful prong.
- Rulings in brief: court dismissed without prejudice claims under laws of states where no named plaintiff resides or purchased product; dismissed certain injunctive‑relief theories; sustained many of Plaintiffs’ California consumer claims in part; dismissed some marketing theories (non‑GMO and protein claims) and warranty/unjust‑enrichment counts for pleading defects; denied motion to strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to assert nationwide multistate claims | Plaintiffs seek to enforce all 50 states’ consumer laws on behalf of a nationwide class; they rely on unnamed class members | Kodiak: named plaintiffs lack Article III connection to most states; cannot plead laws of states where they were not injured | Court: dismissed claims under laws of states where no named plaintiff resides/was injured (leave to amend) |
| Standing for injunctive relief | Plaintiffs allege they would buy Kodiak products in future if labeling/filling were corrected | Kodiak: Plaintiffs lack likelihood of future injury (they can check net weight, nutrition facts; slack‑fill is discoverable) | Court: injunctive relief allowed only for non‑GMO theory (plaintiffs cannot verify non‑GMO from label); injunctive relief dismissed (no leave) for slack‑fill and most other marketing theories |
| Rule 9(b) and reliance for CLRA/FAL/UCL fraud theories | Plaintiffs alleged who/what/when/where/how, per‑product misrepresentation chart, and individual purchase allegations | Kodiak: allegations are boilerplate, fail to state which plaintiff relied on which representation, and lack specifics on falsity | Court: Rule 9(b) applies (Plaintiffs allege a unified fraudulent course) but plaintiffs provided sufficient particularity to survive at pleading stage for most packaging claims; actual reliance sufficiently pleaded for packaging purchases (except most non‑packaging advertising, with one limited exception) |
| Reasonable‑consumer test: slack‑fill deception | Plaintiffs: opaque nonpliable boxes and comparisons to competitors plausibly deceive reasonable consumers about quantity/yield | Kodiak: boxes disclose net weight, servings, and sometimes final yield; consumers can compare price/ounce or check nutrition facts; online purchases weaken slack‑fill claim | Court: mixed—claims survive where package does not disclose final product output or other cues to quantity; slack‑fill theory plausible for many products and survives as unlawful/unfair UCL predicate (CFPLA and federal standard) but fails where labels disclose sufficient yield/servings; online purchases do not automatically defeat slack‑fill claims because federal law controls over CFPLA mode‑of‑commerce carveout |
| Marketing claims (“no preservatives” / “free of artificial additives” / “non‑GMO” / “healthy” / “protein‑packed”) | Plaintiffs: those terms created actionable consumer expectations; product ingredients include substances plaintiffs allege are preservatives, additives, or GMO derivatives; “healthy” and “protein‑packed” imply measurable nutritional qualities | Kodiak: many claims are puffery or clarified by prominent nutrition/ingredient labeling; plaintiffs lack testing/proof of GMO or that listed minor ingredients render claims false; “protein‑packed” coexists with bold protein grams on packaging | Held: “no preservatives” and “free of artificial additives” survive at pleading stage (except unspecified extra ingredients must be pleaded with specificity); “non‑GMO” dismissed for lack of specificity and reliance on information‑and‑belief; “healthy” survives only as to one online Double Dark Chocolate Muffin Mix description (plaintiff Stewart); “protein‑packed” dismissed because packaging itself shows grams of protein prominently |
| Breach of express warranty (nationwide) | Plaintiffs assert warranties formed by marketing representations | Kodiak: plaintiffs fail to identify applicable state law(s), fail to plead specific warranty terms, and failed to give statutory notice | Court: dismissed warranty claim with leave to amend; plaintiffs must identify governing state laws and separate state claims |
| Quasi‑contract / unjust enrichment (nationwide) | Plaintiffs seek restitution for overpayments | Kodiak: restitution is a remedy not an independent claim; plaintiffs fail to plead governing state law; quasi‑contract barred where express contract/warranty exists | Court: dismissed unjust‑enrichment/quasi‑contract claim with leave to amend for non‑California law; to the extent pleaded under California law, quasi‑contract dismissed without leave because parallel express warranty claim exists |
| Motion to strike (Rule 12(f)) | N/A (plaintiffs opposed) | Kodiak sought to strike references to out‑of‑state laws, online‑purchase slack‑fill theory, any deficient theories, and equitable relief requests | Court: denied motion to strike (12(f) inappropriate substitute for 12(b)(6); allegations not immaterial or scandalous) |
Key Cases Cited
- Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018) (distinguishes judicial notice from incorporation‑by‑reference and cautions against overuse)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (Article III standing requires particularized, concrete injury)
- Davidson v. Kimberly‑Clark Corp., 889 F.3d 956 (9th Cir. 2018) (previously deceived consumers may have standing for injunctive relief when deceptive labeling cannot be verified by the consumer)
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) (Rule 9(b) applies to claims grounded in a unified course of fraudulent conduct)
- Williams v. Gerber Prod. Co., 552 F.3d 934 (9th Cir. 2008) (front‑of‑package misrepresentations can deceive reasonable consumers despite fine‑print disclosures)
- Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) (no deceptive slack‑fill claim where package context, weight disclosure, and industry expectations dispel deception)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (conclusory allegations insufficient under Rule 8)