Antitrust and Unfair Competition Law

Summary Judgment Standard for False Advertising Under California’s UCL No Different than Any Other Claim

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Robert E. Connolly
Law Office of Robert E. Connolly

In Sonner v. Schwabe North America, Inc., __ F.3d. ___, 2018 WL 6786616 (9th Cir. Dec. 26, 2018) the Ninth Circuit reversed a grant of summary judgment in favor of sellers of two nutritional supplements in a consumer class action alleging false advertising claims under California’s Unfair Competition Law (“UCL”), and the Consumers Legal Remedies Act (“CLRA”). The Court “clarif[ied] that UCL and CLRA claims are to be analyzed in the same manner as any other claim, and the usual summary judgment rules apply.”

Have you ever wondered whether gingko biloba actually provides the cognitive function benefits (“mental sharpness” and “concentration”) listed on the supplement’s label? “Does not,” said the plaintiff’s expert. “Does too,” said the expert for the defendant who makes and sells the supplement. The plaintiff never challenged the methodology of the defendants’ expert. Because the defendants produced contrary expert evidence, the district court granted summary judgment to the defendants, reasoning that there was “insufficient evidence to allow a reasonable juror to conclude that there is no scientific support for defendant’s claims.” Id. at *2.

The Court of Appeals noted that “District courts in our circuit appear to be split on the summary judgment standard that applies to false advertising claims under California’s UCL and CLRA [California Legal Remedies Act].” Id. at *1(citations omitted). The per curiam opinion noted that to defeat summary judgment, “the nonmoving party must produce evidence of a genuine dispute of material fact that could satisfy its burden at trial.” Id. at *2. The opinion found plaintiff did this by producing expert testimony and other scientific data that gingko biloba has no more an effect on mental sharpness than a placebo. It was not appropriate at the summary judgment stage to require Plaintiff to foreclose the possibility that the gingko biloba possessed the advertised qualities. Id. At summary judgment, Plaintiff had only to show, which she did, a triable issue of material fact.

The district court had applied a more exacting standard—if plaintiff concedes that some qualified experts agree with the claims, then the claims cannot be “literally false” and summary judgment is appropriate. Idat *3. The Ninth Circuit resolved the split stating, “We are 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.” Id. Accordingly, the Court held that “[w]e see no reason to diverge from the usual summary judgment rules for UCL and CLRA claims.” Id.

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