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Standing at a Fork in the Road: Prospective Injunctive Relief in the Ninth Circuit

By Sandra Hanian

Road-nature-lines-country1To have Article III standing to obtain injunctive relief in federal court, a plaintiff must allege a “real or immediate threat” that he will be wronged again in a similar way.  City of Los Angeles v. Lyons, 461 U.S. 95, 96 (1983).  This simple proposition has resulted in a split within the Ninth Circuit, where plaintiffs regularly seek injunctive relief in putative consumer class actions alleging false advertising in violation of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act.  The question is whether a representative plaintiff can establish a credible threat of future injury when he or she is already aware that the packaging and/or advertising claims on a product are allegedly misleading.  California federal district courts can be categorized into three camps on this issue.

In the first camp are courts that have interpreted Article III as imposing a “future intent to purchase” requirement.  These courts have found that even if a putative class representative is aware of an alleged misrepresentation, he still has standing to seek injunctive relief so long as he plausibly alleges an interest in purchasing the product at issue in the future.  See, e.g., Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) (Seeborg, J.).  These courts have relatedly held that if a consumer does not intend to purchase the offending product again, he does not have standing to seek injunctive relief because there is no danger that he will be misled again.  See, e.g., Delarosa v. Boiron, Inc., No. 10-1569, 2012 WL 8716658 (C.D. Cal. Dec. 28, 2012) (Tucker, J.); Mason v. Nature’s Innovation, Inc., No. 12-3019, 2013 WL 1969957 (S.D. Cal. May 13, 2013) (Moskowitz, J.).  Courts in this camp recognize the constraints imposed by Article III, noting that while “[i]t may very well be that the legislative intent behind California’s consumer protection statutes would be best served by enjoining deceptive labeling, . . . the power of federal courts is limited, and that power does not expand to accommodate the policy objectives underlying state law.”  Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-05222, 2014 WL 2451290 (N.D. Cal. June 2, 2014) (Chhabria, J.).

The second camp includes courts that have gone even further in imposing constitutional limitations on prospective injunctive relief.  These courts have held that, even if the named plaintiff in a consumer protection action were to demonstrate a future intent to purchase the product at issue, she would still be unable to establish standing because she is better informed about the alleged misrepresentations and therefore is in no danger of being misled in the same way again.  See, e.g., Khasin v. R. C. Bigelow, Inc., No. 12-02204, 2016 WL 1213767 (N.D. Cal. Mar. 29, 2016) (Orrick, J.).

The third camp is made up of courts that have rejected these limitations on standing, finding instead that a putative class representative can pursue consumer protection claims even when he evidences no intent to purchase the product at issue in the future.  For instance, in Henderson v. Gruma, the court focused on policy concerns and noted that if the rule was to deny standing to such a plaintiff seeking injunctive relief on behalf of a class, then “federal courts would be precluded from enjoining false advertising under California consumer protection laws because a plaintiff who had been injured would always be deemed to avoid the cause of the injury thereafter (‘once bitten, twice shy’) and would never have Article III standing.”  No. CV 10-04173, 2011 WL 1362188, at *7 (C.D. Cal. Apr. 11, 2011) (Matz, J.).  According to the Henderson court, such a result would “thwart the objective of California’s consumer protection laws.”  Id. at *8.  These courts often voice concern that putative class members do not have the same knowledge as the plaintiff – that is, there is a likelihood of repeat injury to the class, which may be unaware of the alleged misrepresentations.  See Harris v. Las Vegas Sands L.L.C., No. 12-10858, 2013 WL 5291142 (C.D. Cal. Aug. 16, 2013) (Gee, J.).

The Ninth Circuit is expected to take up this issue soon, as appellants have raised it in two cases currently before the court:  Nancy Lanovaz v. Twinings North America, Inc., No. 16-16628, and Victor v. R.C. Bigelow, Inc., No. 16-16639.  In both cases, the plaintiffs asserted on behalf of consumer classes that “antioxidant” representations on the defendants’ tea products were misleading because the products did not satisfy the minimum threshold requirements for antioxidants set by the Food and Drug Administration.  The district courts in both cases granted summary judgment for the defendants on the plaintiffs’ injunctive relief claims.  The district courts held that the plaintiffs lacked standing because, among other reasons, the plaintiffs failed to plausibly establish that they intended to purchase the tea products again in the future.  The only issue presented to the Ninth Circuit in both cases is whether the district court erred in holding that the plaintiffs lacked standing to seek injunctive relief.  A Ninth Circuit decision on this issue will have significant implications for certification of Rule 23(b)(2) consumer class actions under California law.