KATHLEEN SONNER, оn behalf of herself and all others similarly situated, Plaintiff-Appellant, v. SCHWABE NORTH AMERICA, INC.; NATURE‘S WAY PRODUCTS, LLC, Defendants-Appellees.
No. 17-55261
United States Court of Appeals for the Ninth Circuit
December 26, 2018
D.C. No. 5:15-cv-01358-VAP-SP. Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, Chief Judge, Presiding. Argued and Submitted May 16, 2018, Pasadеna, California. Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.
SUMMARY*
False Advertising Claims
The panel reversed the district court‘s summary judgment in favor of sellers of two nutritional supplements in a consumer class action allеging false advertising claims under California‘s Unfair Competition Law (“UCL“), and the Consumers Legal Remedies Act (“CLRA“).
The panel clarified that UCL and CLRA claims are to be analyzed in the same manner as any other claim, and the usual summаry judgment rules apply. The panel held that under California law, the plaintiff has the burden of proving by a preponderance of the evidence that a challenged advertisement is false or misleading under the UCL and CLRA. To defeat summary judgment, the plaintiff need only produce evidence of a genuine dispute of material fact that could satisfy the preponderance of the evidence burden at trial. The panel further held that the plaintiff met her burden by producing expert testimony and other scientific data that the nutritional supplement had no more of an effect on mental sharpness, memory, or concentration than a plаcebo. The panel held that the district court erred by requiring plaintiff to do more, and by elevating plaintiff‘s burden well beyond what is usually required to defeat summary judgment. The panel remanded for further proceedings.
COUNSEL
Leslie E. Hurst (аrgued), Paula R. Brown, Thomas J. O‘Reardon II, and Timothy G. Blood, Blood Hurst & O‘Reardon LLP, San Diego, California; Todd D. Carpenter, Carlson Lynch Sweet Kilpela & Carpenter LLP, San Diego, California; for Plaintiff-Appellant.
Michael P. Bryant (argued), Gordon & Rees LLP, San Diego, Cаlifornia; Thomas R. Watson, and Kevin W. Alexander, Gordon & Rees LLP, Los Angeles, California; for Defendants-Appellees.
Jeffrey S. Jacobson, Kelley Drye & Warren LLP, New York, New York, for Amicus Curiae Council for Responsible Nutrition.
PER CURIAM:
Kathleen Sonner filed a consumer сlass action against the sellers of two Ginkgold nutritional supplements for violations of California‘s Unfair Competition Law,
I.
Schwabe North America, Inc. and Nature‘s Way Products (сollectively, “Schwabe“) market and sell nutritional supplements, including two products known as “Ginkgold Advanced Ginkgo Extract” and “Ginkgold Max Advanced Ginkgo Extract Max.” The labels on both products tout benefits to “mental sharpness,” “memory,” and “concentration.”
On July 7, 2015, Sonner filed a class action complaint against Schwabe for violations of California‘s UCL, CLRA, and breach of express warranty.1 Sonner alleges that the operative ingredient in both products, the EGb 761 variety of Ginkgo biloba extract, does not actually have any of the advertised cognitive benefits. On September 14, 2016, Schwabe moved for summary judgment, supporting its motion with expert testimony from Dr. Alan F. Shatzberg, аs well evidence from randomized controlled trials, that Ginkgo biloba benefits cognitive function. In opposition, Sonner produced expert testimony from Dr. Beth E. Snitz, who analyzed several clinical studies and meta-anаlyses to conclude that “Ginkgo biloba is no more effective than [a] placebo for improving cognitive functioning or preventing cognitive decline.” Sonner also proffered independent reviews and meta-analyses, randomized controlled trials, and a scientific review article to support her contention that Ginkgo biloba does not benefit cognitive functions.
On February 2, 2017, the district court granted summary judgment in favor of Schwаbe. The district court acknowledged
II.
We have jurisdiction under
III.
Summary judgment is appropriate only when “there is no genuine dispute as to any material fact.”
Under California law, the plaintiff has the burden of proving by a preponderance of the evidence that a challenged advertisement is false or misleading under the UCL and CLRA.2 See Paduano v. Am. Honda Motor Co., 169 Cаl. App. 4th 1453, 1463, 1472, 1473 (2009); Nat‘l Council Against Health Fraud, Inc. v. King Bio Pharms., Inc., 107 Cal. App. 4th 1336, 1341-42 (2003). Therefore, to defeat summary judgment, Sonner need only produce evidence of a genuine dispute of material fact that could satisfy the preponderance of the evidence burden at trial. See Celotex, 477 U.S. at 322-23. Sonner easily met her burden by producing expert testimony and other scientific data that Ginkgo biloba has no more of an effect on mental sharpness, mеmory, or concentration than a placebo. See Provenz v. Miller, 102 F.3d 1478, 1490 (9th Cir. 1996) (“As a general rule, summary judgment is inappropriate where an expert‘s testimony supports the non-moving party‘s case.” (quoting In re Worlds of Wonder Sec. Litig., 35 F.3d 1407, 1425 (9th Cir. 1994))). By requiring Sonner to do more—by not only producing affirmative expert evidence of her own but also “foreclos[ing] any possibility” that Schwabe‘s products provided the labeled benefits—the district court elevated Sonnеr‘s burden well beyond what is usually required to defeat summary judgment. Again, a plaintiff need only show a triable issue of material fact to proceed to trial, see
Schwabe argues that a more exacting summary judgment standard applies to false advertising claims brought under the UCL and CLRA, relying on a Fourth Circuit decision, In re GNC Corp., 789 F.3d 505 (4th Cir. 2015). The cоurt in that case affirmed the district court‘s dismissal of the plaintiffs’ UCL and other state false advertising claims for failure to state a claim. In re GNC Corp., 789 F.3d at 518. The court reasoned that because the plaintiffs did “not allege that all scientists agree that [the products] are ineffective at providing the promised [] benefits,” they failed to show as a matter of law that the advertised claims are false. Id. at 515 (“When litigants concede that some reasonablе and duly qualified scientific experts agree with a scientific proposition, they cannot also argue that the proposition is ‘literally false.‘“). Some district courts in our circuit have adopted similar reasoning in weighing competing expert evidence in false advertising cases at the summary judgment stage. See, e.g., Korolshteyn, 2017 WL 3622226, at *5-6, *12-13; cf. Mullins v. Premier Nutrition Corp., 178 F. Supp. 3d 867, 893-96 (N.D. Cal. 2016) (accepting In re GNC Corp.‘s standard for literal falsity claims, but denying summary judgment because the plaintiff successfully undermined the defendant‘s supporting expert testimony and scientific research). Other district courts in our circuit have flatly disagreed. See, e.g., Racies v. Quincy Bioscience, LLC, No. 15-cv-00292-HSG, 2017 WL 6418910, at *4 (N.D. Cal. Dec. 15, 2017) (“The Court is not persuaded by In re GNC or Korolshteyn, and does not believe the California Supreme Court would adopt their reasoning.“); Farar, 2017 WL 5952876, at *17 (stating that conflicting expert evidence “would merely create a genuine issue of material fact inappropriate for summary adjudication“).
We arе unpersuaded by the notion that a plaintiff must not only produce affirmative evidence, but also fatally undermine the defendant‘s evidence, in order to proceed to trial. “[A]bsolute certainty is not the evidentiary bеnchmark in civil (or even criminal) litigation,” Hobbs v. Gerber Prods. Co., No. 17 CV 3534, 2018 WL 3861571, at *7 (N.D. Ill. Aug. 14, 2018), and it has never been the standard for weighing conflicting evidence for purposes of summary judgment. If the plaintiff‘s evidence suggests that the products do not wоrk as advertised and the defendant‘s evidence suggests the opposite, there is a genuine dispute of material fact for the fact-finder to decide. We see no reason to diverge from the usual summary judgment rules fоr UCL and CLRA claims.
Schwabe also argues that Sonner‘s claims are essentially “lack of substantiation” claims, which private plaintiffs are prohibited from pursuing under California law. See King Bio Pharms., Inc., 107 Cal. App. 4th at 1344. The district court rejected this argument, and so do we. Sonner has the burden of proof as to her claims, unlike a substantiation claim where the onus is on the defendant to substantiate the assertions in its advertisements. See id. at 1340, 1343-46.
* * *
We therefore reverse the district cоurt‘s judgment in favor of Schwabe as to the UCL and CLRA claims, as well as the breach of express warranty claim that relies
REVERSED AND REMANDED.