9th Circuit easily rejects In re GNC’s “all scientists must agree” standard for falsity

Sonner v. Schwabe North America, Inc., — F.3d —-, No.
17-55261, 2018 WL 6786616 (9th Cir. Dec. 26, 2018)
Happy holidays to me!
Sonner sued the sellers of two Ginkgold nutritional
supplements for violations of the UCL and CLRA and breach of express warranty.
Sonner alleged that the products were falsely labeled as capable of improving
various cognitive functions when in fact they provided no such benefits, citing
expert opinion and other scientific evidence (including evidence from
randomized controlled trials showing no difference from placebo) in
support.  The district court granted
summary judgment, relying on In re GNC to
hold that she couldn’t proceed on a literal falsity claim because she didn’t
show that all scientists agreed that the claims were false.  Instead, it reasoned, where “both sides have
produced expert testimony and scientific research in support of their claims,” but
Sonner failed to critique the expert testimony and each of the scientific
studies proffered by defendants by “challenging the methodology, structure, or
independence of [Schwabe’s] studies,”  the
evidence was “insufficient to allow a reasonable juror to conclude that there
is no scientific support for [Schwabe’s] claims.”
The court of appeals reversed: “UCL and CLRA claims are to
be analyzed in the same manner as any other claim, and the usual summary
judgment rules apply.”  The plaintiff has
the burden of proving falsity or misleadingness by a preponderance of the
evidence. “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. 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, memory, or concentration than a placebo.”
Requiring her to do more than that—to foreclose any possibility that the
products worked—wrongly elevated her burden far beyond that applicable to
summary judgment. Arguments going to the bases of experts’ opinions go to the
weight of the evidence in the fact-finder’s evaluation, “an inquiry that is not
proper at the summary judgment stage.”
Schwabe argued that the Ninth Circuit should follow In re GNC, 789 F.3d 505 (4th Cir. 2015),
which required—at the pleading stage—a plaintiff to allege that “all scientists
agree that [the products] are ineffective at providing the promised [ ]
benefits” in order to allege falsity under California law.  This holding was always dumb—among other
things, it rested on a misreading of the Lanham Act’s distinction between
literal falsity and implicit falsity—and the court of appeals here rejected it.  “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.” That’s not
how civil—or even criminal—litigation works. 
“If the plaintiff’s evidence suggests that the products do not work as
advertised and the defendant’s evidence suggests the opposite, there is a
genuine dispute of material fact for the fact-finder to decide.”  
Nor were Sonner’s claims essentially “lack of
substantiation” claims, which private plaintiffs are prohibited from pursuing
under California law. “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.” 
The breach of express warranty claims were reinstated for
the same reasons.
PS: Since In re GNC purported to interpret California law, can we now defer to the 9th Circuit to say that the case isn’t even right in the 4th Circuit?  I know, it would be better for a California state court to point this out–I can hope, though.

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