Milan v. Clif Bar & Company

Background

Ralph Milan, Sarah Aquino, and Elizabeth Arnold brought a proposed consumer class action against Clif Bar & Company. They challenged the health and wellness messages on Clif Bar’s Kid Zbars and “Classic” Clif Bars, alleging that the messages were deceptive because the products contribute to the dangers of excessive sugar consumption. The complaint asserted nine claims, including a claim under California’s Unfair Competition Law, and sought injunctive relief, corrective advertising, restitution, and damages.

The court had previously denied Clif Bar’s motion to dismiss, finding that the plaintiffs had stated a claim and could plausibly prove that a reasonable consumer would be deceived by the products’ packaging. After Clif Bar answered the complaint, it moved under Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings. That motion asks the court to decide the case based on the pleadings after they have been filed. Clif Bar argued that the plaintiffs lacked Article III standing—the constitutional requirement that a plaintiff show a sufficient injury and connection to the challenged conduct—to seek an injunction. Clif Bar also argued that California law could not govern a nationwide class under the applicable choice-of-law analysis.

Standing for Injunctive Relief

The court rejected Clif Bar’s standing argument. It first noted that Clif Bar could have raised the argument during its earlier motion-to-dismiss proceedings because the Ninth Circuit’s decision in Davidson v. Kimberly-Clark Corp. had already been published and amended. The court described the renewed argument as an improper successive motion to dismiss and criticized the litigation conduct.

On the substance of the standing issue, the court explained that Davidson held that a consumer who was previously deceived may still have standing to seek an injunction against false advertising or labeling. The court said Davidson offered illustrations—not two mandatory tests—for showing a threat of future harm. A consumer may plausibly allege future harm by claiming that the consumer cannot rely on the advertising in the future and therefore will not buy the product, or that the consumer might buy the product despite the earlier deceptive statement.

The court found the plaintiffs’ allegations comparable to those approved in Davidson. The plaintiffs alleged that they continued to want healthy nutrition bars, continued to see Clif Bar products while shopping, would buy the challenged products if they were actually healthy, and would likely buy them if they could trust Clif Bar’s health and wellness claims. The court concluded that the plaintiffs had plausibly alleged a future inability to rely on Clif Bar’s representations and that it was too early to conclude, as a matter of law, that they could not be deceived again.

The court also declined to consider Clif Bar’s argument that an FDA rule requiring added sugars to be identified in the Nutrition Facts panel defeated the request for an injunction. The court said that argument relied on information outside the complaint and concerned the merits and possible scope of injunctive relief, rather than whether the plaintiffs had standing to request that relief.

Nationwide Class and California Law

Clif Bar separately argued that California law could not be applied to a nationwide class. The court noted that Clif Bar had made the same argument in an earlier motion to strike the nationwide class allegations, which the court had denied as premature because it raised issues better suited to class certification.

The court found that nothing had changed. It characterized the renewed request as effectively an unsupported motion for reconsideration and held that the choice-of-law issue was best resolved at the class-certification stage, when the court would have a fuller record. The court therefore adopted the plaintiffs’ proposed procedure of reserving that analysis until class-certification proceedings.

Disposition and Discovery

The court denied Clif Bar’s motion for judgment on the pleadings. The order did not add a prejudice qualification to that denial. The court set a discovery hearing for October 22, 2020, directed responses to certain discovery-dispute letters by October 15, 2020, and instructed the parties to update the court and jointly report any disputes that had been resolved. The hearing was to be conducted through a Zoom webinar.