Wilson v. Frito-Lay North America, Inc.

MOTION for Summary Judgment

N.D. Cal.February 24, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST GIBSON, DUNN & CRUTCHER LLP ANDREW S. TULUMELLO, SBN 196484 atulumello@gibsondunn.com GEOFFREY M. SIGLER gsigler@gibsondunn.com JASON R. MELTZER jmeltzer@gibsondunn.com 1050 Connecticut Avenue, NW Washington, DC 20036 Telephone: 202.955.8500 Facsimile: 202.467.0539 Attorneys for Defendant Frito-Lay North America, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MARKUS WILSON and DOUG CAMPEN, individually and on behalf of all others similarly situated, Plaintiffs, v. FRITO-LAY NORTH AMERICA, INC. Defendant. Case No. 12-cv-01586-JST Assigned to the Honorable Jon S. Tigar DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT Hearing: Date: May 1, 2017 Time: 2:00 p.m. Place: Courtroom 9 Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 1 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST TO THIS COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: Please take notice that on May 1, 2017, at 2:00 p.m., or as soon thereafter as may be heard by the Honorable Jon S. Tigar, in Courtroom 9 of this Court, Defendant Frito-Lay North America, Inc. (“Frito-Lay”) will and hereby does move this Court pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting summary judgment in its favor. Defendant brings this amended motion on the ground that there is no genuine dispute of material fact with respect to whether Plaintiffs Doug Campen and Markus Wilson can satisfy the elements of their claims. Frito-Lay is therefore entitled to judgment in its favor. This Amended Motion is based on this Notice of Motion, the attached Memorandum of Points and Authorities, and on such other written and oral arguments as may be presented to the Court. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 2 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST TABLE OF CONTENTS Page STATEMENT OF ISSUES TO BE DECIDED .............................................................................. vivii I. INTRODUCTION AND SUMMARY OF THE ARGUMENT ............................................... 1 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ........................................... 3 III. SUMMARY JUDGMENT STANDARD ................................................................................. 5 IV. ARGUMENT ............................................................................................................................ 5 A. Summary Judgment Should Be Entered Against Plaintiff Campen.............................. 5 1. Plaintiff Campen Does Not Challenge “0 Grams Trans Fat,” So These Claims Should Be Dismissed. ........................................................................... 5 2. Plaintiff Campen’s Claims Challenging “Natural” Also Fail, Because He Did Not Rely On The Challenged Statement. ............................................. 7 3. Plaintiff Campen Lacks Any Claim For Monetary Relief. ............................. 10 4. Plaintiff Campen Has Not Established Any Entitlement To Injunctive Relief. .............................................................................................................. 11 B. Summary Judgment Should Be Entered Against Plaintiff Wilson. ............................ 13 1. By His Own Admission, Mr. Wilson Did Not Rely On The “0 Grams Trans Fat” Statement When Buying Lay’s Classic Potato Chips. .................. 13 2. Mr. Wilson Provided No Factual Support For The Theory Of Deception This Court Allowed To Proceed Past The Pleadings..................... 15 3. Plaintiff Wilson Cannot Show Any Entitlement To Monetary Relief. ........... 17 4. Plaintiff Wilson Has Not Established Any Entitlement To Injunctive Relief. .............................................................................................................. 18 C. Plaintiffs Have Not Established That It Is Probable That The Statements Are Likely To Have Deceived A Significant Portion of Consumers. ................................ 18 D. The “0 Grams Trans Fat” Claims Also Fail As A Matter Of Law. ............................. 20 1. The FDA Has Stated That “0 Grams Trans Fat” Statements Are Permissible Statements About Amounts That Do Not Require Reference Statements. ..................................................................................... 21 2. Frito-Lay Cannot Be Subjected To Liability For Following FDA Guidance. ........................................................................................................ 26 V. CONCLUSION ....................................................................................................................... 28 Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 3 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) ii DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST Cases Alcala v. Monsanto Co., No. 08-cv-4828, 2014 WL 1266204 (N.D. Cal. Mar. 24, 2014) ......................................................7 Baghdasarian v. Amazon.com, Inc., 458 F. App’x 622 (9th Cir. 2011) .....................................................................................................9 Bartalini v. Blockbuster Entm’t, Inc., No. 98-cv-03943, 1999 WL 1012383 (N.D. Cal. Nov. 8, 1999) ......................................................5 Bates v. United Parcel Service, Inc., 511 F.3d 974 (9th Cir. 2007) .....................................................................................................11, 18 Bishop v. 7-Eleven, Inc., No. 12-cv-2621 (N.D. Cal. 2012) .....................................................................................................3 Bixby v. KBR, Inc., No. 09-cv-632, 2012 WL 4754942 (D. Or. Oct. 4, 2012) ...............................................................14 Blevins v. Marin, No. 11-cv-3475, 2013 WL 5718869 (E.D. Cal. Oct. 11, 2013) ........................................................6 Brazil v. Dole Packaged Foods, LLC, 660 F. App’x 531 (9th Cir. 2016) ...................................................................................................19 Bronson v. Johnson & Johnson, Inc., No. 12-cv-4184, 2013 WL 1629191 (N.D. Cal. Apr. 16, 2013) .....................................................13 Bruton v. Gerber Prods., Co., No. 12-cv-2412, 2014 WL 7206633 (N.D. Cal. Dec. 18, 2014) .....................................................19 C. Pappas Co., Inc. v. E & J Gallo Winery, 610 F. Supp. 662 (E.D. Cal. 1985) ..................................................................................................13 Cal. Rest. Ass’n v. San Francisco, No. 08-cv-3685, 2009 WL 5066894 (N.D. Cal. Jan. 5, 2009) ........................................................26 Cashmere & Camel Hair Mfr. Inst. v. Saks Fifth Ave., 284 F.3d 302 (1st Cir. 2002) ...........................................................................................................20 Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939 (S.D. Cal. 2007) .............................................................................................14 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..........................................................................................................................5 Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 4 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) iii DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012) ....................................................................................................................27 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ....................................................................................................................11, 18 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008) ...................................................................................................19, 20 Conley v. Gibson, 355 U.S. 41 (1957) ............................................................................................................................5 Craig v. Twinings N. Am., Inc., No. 14-cv-5214, 2015 WL 505867 (W.D. Ark. Feb. 5, 2015) ........................................................25 Cytosport, Inc. v. Vital Pharms., Inc., 894 F. Supp. 2d 1285 (E.D. Cal. 2012) ...........................................................................................25 Delacruz v. Cytosport, Inc., No. 11-cv-3532, 2012 WL 2563857 (N.D. Cal. June 28, 2012) .....................................................16 FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) ....................................................................................................................27 Gest v. Bradbury, 443 F.3d 1177 (9th Cir. 2006) .........................................................................................................11 Graham v. VCA Antech, Inc., No. 14-cv-8614, 2016 WL 5958252 (C.D. Cal. Sept. 12, 2016) ............................................6, 9, 10 Hobbs v. Sprague, 87 F. Supp. 2d 1007 (N.D. Cal. 2000) ............................................................................................13 Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940 (D.C. Cir. 2012) ........................................................................................................25 In re iPhone Application Litig., 6 F. Supp. 3d 1004 (N.D. Cal. 2013) ..........................................................................................6, 10 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1991) .............................................................................................................7 Khasin v. Hershey Co., No. 12-cv-1862, 2014 WL 1779805 (N.D. Cal. May 5, 2014) ...............................................6, 9, 10 Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937 (Cal. 2003) ..................................................................................................................17 Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 5 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) iv DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST Lanovaz v. Twinings N. Am., Inc., No. 12-cv-2646, 2016 WL 4585819 (N.D. Cal. Sept. 2, 2016) ................................................12, 18 Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (Cal. Ct. App. 2003) ...............................................................................2, 19 Lilly v. Jamba Juice Co., No. 13-cv-2998, 2015 WL 1248027 (N.D. Cal. Mar. 18, 2015) ....................................................12 Luke v. Family Care & Urgent Med. Clinics, 246 F. App’x 421 (9th Cir. 2007) ...................................................................................................20 Major v. Ocean Spray Cranberries, Inc., No. 12-cv-03067, 2015 WL 859491 (N.D. Cal. Feb. 26, 2015) .................................................9, 10 Mathews v. Gov’t Emps. Ins. Co., 23 F. Supp. 2d 1160 (S.D. Cal. 1998) .......................................................................................11, 13 Mizques v. Hoover, No. 04-cv-76, 2006 WL 2506049 (D. Mont. Aug. 28, 2006) ...........................................................6 Nguyen v. Medora Holdings, LLC, No. 14-cv-618, 2015 WL 4932836 (N.D. Cal. Aug. 18, 2015) ................................................12, 18 O’Shea v. Epson Am., Inc., No. 09-cv-8063, 2011 WL 3299936 (C.D. Cal. July 29, 2011) ........................................................7 Ogden v. Bumble Bee Foods, LLC, No. 12-cv-1828, 2014 WL 27527 (N.D. Cal. Jan. 2, 2014) ................................................11, 15, 17 Opperman v. Path, Inc., 87 F. Supp. 3d 1018 (N.D. Cal. 2014) ......................................................................................13, 18 Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220 (5th Cir. 1991) ...........................................................................................................20 Ploplis v. Panos Hotel Grp., LLC, 267 F. Supp. 2d 487 (M.D.N.C. 2003) ..............................................................................................7 Ramos Irizarry v. Rivera Varela, 59 F. Supp. 2d 358 (D.P.R. 1999) ...................................................................................................11 Ries v. Ariz. Beverages USA LLC, No. 10-cv-01139, 2013 WL 1287416 (N.D. Cal. Mar. 28, 2013)...................................................19 Schering-Plough Healthcare Prods., Inc. v. Schwarz Pharma Inc., 586 F.3d 500 (7th Cir. 2009) ...........................................................................................................25 Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 6 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) v DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST Shore v. A.W. Hargrove Ins. Agency, Inc., 873 F. Supp. 992 (E.D. Va. 1995) .....................................................................................................7 Summit Tech., Inc. v. High-Line Med. Instr. Co., 922 F. Supp. 299 (C.D. Cal. 1996) .................................................................................................25 Taylor v. Louisville/Jefferson Cty. Metro Gov’t, 400 F. Supp. 2d 1014 (W.D. Ky. 2005) ............................................................................................7 Thomas v. Costco Wholesale Corp., No. 12-cv-2908, 2013 WL 1435292 (N.D. Cal. Apr. 9, 2013) .......................................................10 Thomas v. Costco Wholesale Corp., No. 12-cv-2908, 2014 WL 1323192 (N.D. Cal. Mar. 31, 2014) ....................................................16 In re Tobacco Cases II, 207 P.3d 20 (Cal. 2009) ..............................................................................................................8, 14 United States v. AMC Entm’t, Inc., 549 F.3d 760 (9th Cir. 2008) ...........................................................................................................28 United States v. Various Slot Machines on Guam, 658 F.2d 697 (9th Cir. 1981) ...........................................................................................................20 Vavak v. Abbott Labs., Inc., No. 10-cv-1995, 2011 WL 10550065 (C.D. Cal. June 17, 2011) ...................................................13 Versarge v. Twp. of Clinton, 984 F.2d 1359 (3d Cir. 1993) ..........................................................................................................11 Walker v. B&G Foods, Inc., No. 15-cv-3772, 2016 WL 463253 (N.D. Cal. Feb. 8, 2016) .........................................................22 Walton v. U.S. Marshals Serv., 492 F.3d 998 (9th Cir. 2007) ...........................................................................................................20 Wigg v. Sioux Falls Sch. Dist. 49-5, 274 F. Supp. 2d 1084 (D.S.D. 2003) ...............................................................................................11 Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) ...........................................................................................................18 Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134 (N.D. Cal. 2013) ..............................................................4, 13, 14, 20, 26, 27 Wilson v. Frito-Lay N. Am., Inc., No. 12-cv-01586, 2013 WL 1320468 (N.D. Cal. Apr. 1, 2013) .................................................2, 16 Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 7 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) vi DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST Wiser v. Norfolk S. Ry. Co., No. 11-cv-1805, 2013 WL 500191 (E.D. Mo. Feb. 11, 2013) ........................................................11 Withers v. eHarmony, Inc., No. 09-cv-2266, 2011 WL 8156007 (C.D. Cal. Mar. 4, 2011) ...................................................6, 10 Yeager v. Bowlin, 693 F.3d 1076 (9th Cir. 2012) ..........................................................................................................7 Statutes Cal. Bus. & Prof. Code § 17200 .............................................................................................4, 6, 10, 18 Cal. Bus. & Prof. Code § 17500 .........................................................................................4, 6, 9, 10, 18 Cal. Civ. Code § 1750 .......................................................................................................4, 6, 10, 16, 18 Rules Fed. R. Civ. P. 56 ................................................................................................................................2, 5 Fed R. Evid. 611(c) ...............................................................................................................................14 Regulations 21 C.F.R. § 10.85(k) .............................................................................................................................25 21 C.F.R. § 101.13(b) ...........................................................................................................................21 21 C.F.R. § 101.13(h) ...............................................................................................................20, 22, 24 21 C.F.R. § 101.13(i) ..........................................................................................................21, 22, 23, 27 21 C.F.R. § 101.54 ................................................................................................................................21 21 C.F.R. § 101.56 ................................................................................................................................21 21 C.F.R. § 101.62(c) ............................................................................................................................24 58 Fed. Reg. 2,302 (Jan. 6, 1993) .........................................................................................................15 68 Fed. Reg. 41,434 (July 11, 2003) .....................................................................................................24 81 Fed. Reg. 33,741 (May 27, 2016) ....................................................................................................24 Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 8 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vii DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST STATEMENT OF ISSUES TO BE DECIDED 1. Plaintiff Doug Campen’s Claims. Whether Frito-Lay is entitled to summary judgment in its favor because there is no genuine issue of material fact regarding whether Plaintiff Campen can satisfy the elements of his claims. 2. Plaintiff Markus Wilson’s Claims. Whether Frito-Lay is entitled to summary judgment in its favor because there is no genuine issue of material fact regarding whether Plaintiff Wilson can satisfy the elements of his claims. 3. All Claims. Whether Frito-Lay is entitled to summary judgment on all of Plaintiffs’ claims because Plaintiffs cannot establish based on the facts in the record that a significant portion of reasonable consumers are likely to be deceived by the challenged label statements. 4. “0 Grams Trans Fat” Claims. Whether Frito-Lay is entitled to summary judgment on all “0 grams Trans Fat” claims because the FDA explicitly and repeatedly authorized these statements and Frito-Lay did not have “fair notice” under Supreme Court and Ninth Circuit precedent that would warrant the imposition of liability based on Plaintiffs’ interpretation of the regulations. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 9 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF THE ARGUMENT This is a putative class action brought by two California plaintiffs challenging two label statements on five Frito-Lay snacks. Specifically, several years ago some of the snacks included the factually accurate statement “0 grams Trans Fat.” Plaintiffs contend, based on their interpretation of FDA labeling regulations, that this statement should have referred them to the back panel for information about total fat in the snacks. Second Am. Compl., ECF No. 47 (“SAC”) ¶¶ 88-94. Plaintiffs allege that because of this purported regulatory violation they were deceived into believing that the snacks would “only make positive contributions to [their] diet[s]” and that they “did not contain . . . total fat at levels in the food that may increase the risk of disease or health related condition that is diet-related.” SAC ¶¶ 15, 87, 103, 171-72. One of the two Plaintiffs, Mr. Campen, also alleges that he was deceived by a “Made With All Natural Ingredients” statement, appearing several years ago on two Frito-Lay products, on the separate ground that those products contain certain ingredients that in Plaintiffs’ view are artificial and synthetic. SAC ¶ 46, 55-57. Discovery has long been closed in this case. Based on this record, the testimony and evidence show—without any genuine factual dispute—that Plaintiffs cannot establish they relied on or were injured by the challenged label statements. First, Mr. Campen gave the following sworn testimony at his deposition: (1) he is not challenging “0 grams Trans Fat” statements, only “Made With All Natural Ingredients” statements on two products; (2) he testified that he bought these products not because of the “Made With All Natural Ingredients” statements, but because of their taste and because they were good snacks; and (3) he also disavowed any claim for monetary relief on his own behalf. Not only did Mr. Campen’s sworn testimony refute the complaint’s allegations, but he also provided no other testimony or evidence to support the required elements of reliance, injury, damages, or entitlement to restitution. Nor is Mr. Campen entitled to injunctive relief, as undisputed evidence shows that the “natural” statements he challenges were removed from the products more than three and a half years ago and there is no evidence that Frito-Lay intends to re-introduce those statements. Mr. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 10 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 Campen thus has not demonstrated even a remote possibility that he stands to suffer “imminent” or “immediate” future harm in the absence of an injunction. Second, although Mr. Wilson purports to challenge the “0 grams Trans Fat” statement on Lay’s Classic Potato Chips, these claims also collapsed at his deposition: (1) his testimony also shows that he did not rely on the challenged statement when buying Lay’s Classic Potato Chips; (2) he admitted that he never believed the chips were healthy, never believed they would make only “positive contributions to [his] diet,” and never believed they would not “increase his risk of a diet- related disease or health-related condition,” all of which directly refute the allegations of deception in the SAC, see ¶¶ 15, 87, 103, 171-72; (3) he never saw any “0 grams Trans Fat” label with a reference to saturated fat, even though this “partial” reference statement was the reason the Court let the claim survive a motion to dismiss; and (4) he claims to seek a “fair refund,” but he has offered no evidence (expert or otherwise) to support such a claim. Like Mr. Campen, Mr. Wilson is also not entitled to injunctive relief because the challenged label statements were removed from the products more than three and a half years ago and there is no evidence that they will return. Third, Plaintiffs lack any evidence to satisfy the additional requirement—for all of their claims—that “it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (Cal. Ct. App. 2003). Even if Plaintiffs could show that they personally were deceived and injured by the challenged statements (and they cannot), they have no consumer survey or other evidence to show that the label statements deceived any other consumers—let alone a “significant portion” of them. Finally, Plaintiffs’ challenges to the accurate “0 grams Trans Fat” statement fails for the additional reason that it is rooted in a misreading of FDA labeling regulations. Under the FDA’s rules, these statements are “amount” claims that do not require a reference statement regarding total fat content (or any nutrient for that matter). The regulatory support for Frito-Lay’s stand-alone “0 grams Trans Fat” statements is powerful and clear. But even if the FDA’s regulations were viewed as ambiguous, as the Court concluded in this case with respect to the FDA’s MSG regulations, see Wilson v. Frito-Lay N. Am., Inc., No. 12-cv-01586, 2013 WL 1320468, at *10 (N.D. Cal. Apr. 1, Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 11 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 2013), Frito-Lay should not be subjected to liability for not implementing a regulation in a manner for which it did not receive fair notice. For all of these reasons, the Court should grant summary judgment in favor of Frito-Lay. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The lawyer-driven nature of this litigation that Plaintiffs described at their depositions, while not dispositive, is instructive. It explains how the case arrived at this point—having gone through multiple rounds of motions to dismiss and over a year’s worth of discovery—with named Plaintiffs who lack any evidence to support the theories asserted in the SAC, and whose deposition testimony actually contradicts those claims. Both Plaintiffs joined this case not because they suffered any actual injury from the challenged label statements, but because they were told about an “opportunity” to participate in this litigation by Plaintiffs’ counsel—who have filed dozens of similar cases in this Court—and by a plaintiff in one of those other cases. In early 2012, Plaintiff Markus Wilson met with Plaintiffs’ counsel and a mutual friend at a restaurant and bar. Wilson Depo. 23:11-14.1 Over drinks, Plaintiffs’ counsel discussed a lawsuit dealing with food labels and an “opportunity.” Id. at 23:11-25:22. Mr. Wilson later called Plaintiffs’ counsel, who described the theory of the case, and Mr. Wilson agreed to join as a named plaintiff. Id. at 26:20-28:1. Plaintiffs’ counsel instructed Mr. Wilson to purchase a bag of Lay’s Classic Potato Chips and to keep the receipt and packaging for the chips, and Mr. Wilson followed that instruction. Id. at 60:18-62:10, 87:7-22. That one package—attached to his original complaint—is the only package on which Mr. Wilson recalled noticing a “0 grams Trans Fat” statement. Id. at 55:10-19, 56:23-57:1; Wilson, No. 12-cv-01586, ECF No. 1. The other Plaintiff, Doug Campen, was encouraged to join by a plaintiff in another class action filed by the same lawyers—Scott Bishop, who is also a friend of Mr. Campen. Campen Depo. 47:9-20.2 Mr. Bishop told Mr. Campen that “something was going on with labels and if [he] wanted to inquire about it, to give [counsel] a call.” Id. at 48:17-25. Mr. Campen called Plaintiffs’ counsel, 1 Mr. Campen’s and Mr. Wilson’s depositions are attached as Exhibits F and G, respectively, to Jason Meltzer’s Declaration In Support of Frito-Lay’s Amended Motion for Summary Judgment (“Meltzer Decl.”). 2 See Bishop v. 7-Eleven, Inc., No. 12-cv-2621 (N.D. Cal. 2012). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 12 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 who encouraged Mr. Campen to come into his office. Id. at 47:11-20, 50:4-7. There, Plaintiffs’ counsel asked Mr. Campen to fill out some paperwork making him a named plaintiff in this case, and then told Mr. Campen the theory of deception against Frito-Lay. Id. at 50:9-51:13. In their SAC, Plaintiffs tried to challenge over 90 Frito-Lay products and three label statements, see SAC ¶¶ 43-44, 61-62, 83-84, based mainly on the contention that the products were “misbranded”; they contended that they need not allege or show that they personally relied on any of the challenged statements, id. ¶ 4. The Court rejected this “misbranding” theory, finding unequivocally that “plaintiffs must show that they lost money or property because of reliance on an allegedly unlawful practice, in order to establish standing for UCL unlawfulness claims.” Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1144-45 (N.D. Cal. 2013). After multiple dismissals, the surviving claims are asserted under California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq., and the Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.: (1) In the SAC (as modified by this Court’s orders), Doug Campen alleges reliance, deception, and injury from “0 grams Trans Fat” label statements on Lay’s Classic Potato Chips, Lay’s Honey Barbecue Potato Chips, Lay’s Kettle Cooked Mesquite BBQ Potato Chips, Cheetos Puffs, and Fritos Original Corn Chips. Mr. Campen also alleges reliance, deception, and injury from “Made With All Natural Ingredients” labels on Lay’s Honey Barbecue and Lay’s Kettle Cooked Mesquite BBQ Potato Chips. See SAC ¶¶ 2, 5; Wilson, 961 F. Supp. 2d at 1148. (2) In the SAC (as modified by this Court’s orders), Markus Wilson alleges reliance, injury, and deception from the “0 grams Trans Fat” statement on Lay’s Classic Potato Chips. Mr. Wilson does not challenge “Made With All Natural Ingredients” labels. See SAC ¶¶ 2, 5; Wilson, 961 F. Supp. 2d at 1148. The parties conducted fact discovery for approximately one year, and it closed more than two years ago on February 13, 2015. The parties fully briefed Frito-Lay’s prior summary judgment motion, and Plaintiffs filed their motion for class certification, along with their expert evidence. As Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 13 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 the Court expressly recognized in its order granting a stay, at this point, Plaintiffs have had every opportunity to support their claims with affirmative evidence. ECF No. 150, at 3. III. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[C]onclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment,” and “[i]f the factual context makes the nonmoving party’s claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Bartalini v. Blockbuster Entm’t, Inc., No. 98-03943, 1999 WL 1012383, at *3, 5 (N.D. Cal. Nov. 8, 1999). IV. ARGUMENT A. Summary Judgment Should Be Entered Against Plaintiff Campen. The SAC alleges that Mr. Campen relied on and was deceived and injured by “0 grams Trans Fat” labels on five Frito-Lay products, and by “Made With All Natural Ingredients” labels on two of these five products. SAC ¶¶ 2, 5. Mr. Campen, however, has not provided any factual support for his claims. Summary judgment therefore is warranted on his claims. 1. Plaintiff Campen Does Not Challenge “0 Grams Trans Fat,” So These Claims Should Be Dismissed. The purpose of discovery is “to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.” Conley v. Gibson, 355 U.S. 41, 48 (1957). Not only did Mr. Campen fail to produce any evidence regarding his “0 grams Trans Fat” challenges during discovery, he also indicated that he is not pursuing those challenges during his deposition. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 14 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 Mr. Campen testified that he was fully prepared to explain his claims at his deposition. Campen Depo. 74:25-75:7. When asked to identify the label statements he was challenging, Mr. Campen’s testimony was unequivocal: he stated that he was challenging the “label that says ‘all natural.’” Id. at 56:9-12. And when asked whether he was challenging any other label statements, he replied “No.” Id. at 56:13-15. In fact, over four hours in which he was deposed and asked to discuss his claims and assertions, and in which he was re-directed by his own counsel three separate times, Mr. Campen did not once mention trans fat in any context—despite answering two direct questions about which label statements he was challenging. Mr. Campen’s testimony requires summary judgment in favor of Frito-Lay on all of his “0 grams Trans Fat” allegations (relating to Lay’s Classic Potato Chips, Lay’s Honey Barbecue Potato Chips, Lay’s Kettle Cooked Mesquite BBQ Potato Chips, Cheetos Puffs, and Fritos Original Corn Chips). First, Mr. Campen lacks any factual basis for reliance or injury from a “0 grams Trans Fat” statement, both of which are required elements for claims under the UCL, FAL, and CLRA. See, e.g., Graham v. VCA Antech, Inc., No. 14-cv-8614, 2016 WL 5958252, at *8 (C.D. Cal. Sept. 12, 2016) (granting summary judgment on UCL claim where plaintiff’s own deposition testimony established that she could not show actual reliance); Khasin v. Hershey Co., No. 12-cv-1862, 2014 WL 1779805, at *4 (N.D. Cal. May 5, 2014) (granting summary judgment to defendant on many UCL claims because plaintiff’s deposition testimony revealed that he did not rely on and was not injured by many of the challenged statements); In re iPhone Application Litig., 6 F. Supp. 3d 1004, 1018, 1027 (N.D. Cal. 2013) (same with respect to UCL and CLRA claims); Withers v. eHarmony, Inc., No. 09-cv-2266, 2011 WL 8156007, at *3 (C.D. Cal. Mar. 4, 2011) (same). Although Mr. Campen’s counsel identified the “0 grams Trans Fat” label in interrogatory responses, Mr. Campen did not sign or verify these responses, which means that the response is not admissible evidence. See Blevins v. Marin, No. 11-cv-3475, 2013 WL 5718869, at *1 (E.D. Cal. Oct. 11, 2013) (“[A]ll responses to interrogatories . . . must be verified . . . in order to be an admissible form at summary judgment[.]”); Mizques v. Hoover, No. 04-cv-76, 2006 WL 2506049, at *3 (D. Mont. Aug. 28, 2006) (finding unverified interrogatory responses inadmissible on summary judgment). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 15 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 Second, as numerous courts have held, a plaintiff’s concessions at his deposition are sufficient to narrow the claims he has asserted. See, e.g., Alcala v. Monsanto Co., No. 08-cv-4828, 2014 WL 1266204, at *1 n.2 (N.D. Cal. Mar. 24, 2014) (finding upon review of the plaintiff’s deposition testimony that he had narrowed his claims to respiratory problems only); O’Shea v. Epson Am., Inc., No. 09-cv-8063, 2011 WL 3299936, at *3 n.4 (C.D. Cal. July 29, 2011), aff’d, 566 F. App’x 605 (9th Cir. 2014) (explaining that, although plaintiffs initially alleged affirmative misrepresentations by defendants, concessions in their depositions narrowed claims to only a “pure omission” theory).3 Claims cannot go forward when the named plaintiff who pleaded them later provides no factual support for them, even when asked at a deposition. Mr. Campen has no deposition or other evidence to support the required elements with respect to any trans fat claims.4 Accordingly, summary judgment in favor of Frito-Lay is warranted on Mr. Campen’s trans fat claims. 2. Plaintiff Campen’s Claims Challenging “Natural” Also Fail, Because He Did Not Rely On The Challenged Statement. Summary judgment is also warranted on Mr. Campen’s challenges to “Made With All Natural Ingredients” statements on two products—Lay’s Honey Barbecue Potato Chips and Lay’s Kettle Cooked Mesquite BBQ Potato Chips. Mr. Campen’s testimony shows that he did not rely on this statement in buying these products.5 3 See also Ploplis v. Panos Hotel Grp., LLC, 267 F. Supp. 2d 487, 496 (M.D.N.C. 2003) (granting summary judgment for defendant on constructive discharge claim where plaintiff denied at her deposition that she was constructively discharged in her deposition), aff’d sub nom. Ploplis v. Panos Hotel Grp., LLC, 84 F. App’x 359 (4th Cir. 2004); Taylor v. Louisville/Jefferson Cty. Metro Gov’t, 400 F. Supp. 2d 1014, 1018 (W.D. Ky. 2005) (dismissing claims where plaintiff testified at deposition that he had no facts to support them); Shore v. A.W. Hargrove Ins. Agency, Inc., 873 F. Supp. 992, 996-97 (E.D. Va. 1995) (holding that plaintiff abandoned one of her claims by conceding in her deposition that she did not believe she was terminated because of her age). 4 In opposing Frito-Lay’s original motion for summary judgment, Plaintiffs submitted a declaration from Mr. Campen purporting to take back his unambiguous deposition testimony. Such a “sham” declaration, submitted after the close of fact discovery, cannot create a genuine issue of material fact for summary judgment purposes. See Yeager v. Bowlin, 693 F.3d 1076, 1081 (9th Cir. 2012) (affirming district court’s invocation of the “sham” affidavit rule to disregard a declaration submitted in opposition to summary judgment); Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (“a party cannot create an issue of fact by an affidavit contradicting his prior testimony”). 5 In his deposition, Mr. Campen for the first time asserted that he also was challenging an “all natural” statement on Cheetos Puffs. See Campen Depo. 57:1-12. Neither Plaintiff ever alleged Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 16 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 It is well-established that a plaintiff cannot show reliance unless he demonstrates “that the misrepresentation was an immediate cause of the injury producing conduct.” In re Tobacco Cases II, 207 P.3d 20, 39 (Cal. 2009). This means that “the representation [must] . . . b[e] a substantial facto[r] in influencing [a purchasing] decision.” Id. Mr. Campen cannot satisfy these standards. To the contrary, his deposition testimony repeatedly confirms that he bought the challenged products for reasons having nothing to do with the natural label. In response to questions about why he purchased Lay’s Honey Barbecue and Lay’s Mesquite BBQ, he testified that the chips “taste good.” Campen Depo. 64:14-16 (“Q: Why have you purchased the Lay’s Honey Barbecue? A: Because they taste good.”); id. at 63:10-13 (“Q: And what do you like about the Kettle . . . flavor or chip? A: I like the barbecue flavor. It’s – you know, they are good.”). Mr. Campen also testified that he purchased the challenged products since the mid-nineties, fifteen years before the natural label appeared on the packaging. See Campen Depo. 59:14-22, 85:22-86:9; Wutzke Decl. ¶ 6.6 He acknowledged that during this period “it [was] fair to say” that “natural was not something that [he] relied upon in buying the product[s],” Campen Depo. 69:2-10, and that he purchased Lay’s Kettle Barbecue whether it had the natural label or not. Id. at 86:21- 87:2. Moreover, Mr. Campen specifically testified that, even when the packaging did carry the “natural” statement, he bought the products for unrelated reasons: Q: And then since you bought them when they had their natural labels on and you bought them when they didn’t have their natural labels on, is it fair to say that the natural label isn’t the reason that you bought them? A: Yes. that there was an “all natural” statement on Cheetos Puffs in any of their three complaints. Nor could they—Cheetos Puffs has never carried a “Made With All Natural Ingredients” statement. See Decl. of Darren Wutzke (“Wutzke Decl.”), ¶ 5. In addition, Plaintiffs have repeatedly shifted their views about the Fritos product Mr. Campen is even alleged to have consumed. The SAC alleges “Fritos Original.” SAC ¶ 2(e). In their opposition to Frito-Lay’s second motion to dismiss, ECF No. 64, however, Plaintiffs informed this Court that “Fritos Original” was “errantly identified” and that Mr. Campen in fact challenged “Frito’s Chili Cheese Corn Chips.” Id. at 1 n.1; Meltzer Decl., Ex. L. Thus, not even the allegations are consistent. In any event, Cheetos Puffs and Fritos products should now be dismissed from the case because Mr. Campen’s “challenges” to them involve only the “0 grams Trans Fat” label, and Mr. Campen testified that he is not challenging that label. See supra Part IV.A.1. 6 The Declaration of Darren Wutzke In Support Of Frito-Lay North America, Inc.’s Amended Motion for Summary Judgment is attached to the Meltzer Decl. as Exhibit M. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 17 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 Q: And that things like taste and that it was a good snack were the reasons you purchased them? A: Yes. Id. at 87:17-25. Even Mr. Campen’s own attorney, on his third “re-direct,” could not prompt Mr. Campen to testify that he “relied” on the natural label. Plaintiffs’ counsel asked, “was the natural label a substantial factor in your purchase decision?” Mr. Campen still refused to say yes, and instead stated that he “thought those would be healthier than another chip without it.” Campen Depo. 88:5-10. Mr. Campen’s statement about what he thought the labels meant—that they were “healthier” in comparison to other products—is not a statement about reliance. Nor does it negate his repeated and unequivocal statements that he did not rely on the “natural” label statement to make a purchase decision—as cases directly on point in this Circuit establish. See Major v. Ocean Spray Cranberries, Inc., No. 12-cv-03067, 2015 WL 859491, at *3 (N.D. Cal. Feb. 26, 2015) (granting summary judgment to defendant where, in response to questions about reliance on a “No Sugar Added” statement, plaintiff stated that she thought the statement made the products “better and healthier,” but did not testify that the statement was a “motivating factor for her purchase”); Khasin, 2014 WL 1779805, at *4 (a plaintiff’s testimony about “concerns” that the product should have had disclosures were insufficient to raise a genuine issue of material fact as to reliance where plaintiff “never stated that he relied on the omission of either disclaimer when purchasing the . . . product”).7 A plaintiff who admits that he did not buy a product because of a “natural” statement, and who (after being given every opportunity) does not testify that he relied on the statement in making his purchase, simply cannot maintain a claim—particularly where he proffers no other evidence of reliance. Moreover, Mr. Campen’s testimony that he thought the “natural” statement meant that the products were “healthy” is not the theory of deception he pleaded in the SAC. See SAC ¶ 46. Rather, he specifically alleged that the “natural” statement misled him into thinking that all of the ingredients 7 See also Graham, 2016 WL 5958252, at *8 (granting summary judgment on UCL claim where plaintiff’s own deposition testimony established that she could not show actual reliance); Baghdasarian v. Amazon.com, Inc., 458 F. App’x 622, 623-24 (9th Cir. 2011) (affirming summary judgment where plaintiff’s deposition testimony revealed that he did not rely on the challenged statements). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 18 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 were “all natural” and not artificial or synthetic. SAC ¶ 46. At summary judgment, to prevail on his theory of deception, Mr. Campen must raise a genuine issue of material fact as to whether he relied on the “natural” label—not to mean that the chips were “healthy”—but that they contained nothing but “natural” ingredients. SAC ¶ 46, 55-57. Again, cases from this District make this distinction clear. See Major, 2015 WL 859491, at *3 (granting summary judgment to defendant in part because plaintiff testified that a “no sugar added” statement misled her into thinking that the product was healthy, which was not the theory of deception alleged in her complaint).8 Mr. Campen should be taken at his word. He did not establish the reliance required under the UCL, FAL, and CLRA. See Graham, 2016 WL 5958252, at *8; Khasin, 2014 WL 1779805, at *4; In re iPhone Application Litig., 6 F. Supp. 3d at 1018, 1027; Withers, 2011 WL 8156007, at *3. Accordingly, Frito-Lay is entitled to summary judgment on Mr. Campen’s “natural” claims. 3. Plaintiff Campen Lacks Any Claim For Monetary Relief. Summary judgment also should be granted against Mr. Campen because he produced no evidence supporting his claim that he suffered any damages. To the contrary, he testified very clearly at his deposition that he is not seeking any monetary relief. His testimony was unequivocal, answering a simple “[n]o” to three consecutive questions about whether he sought monetary relief. See Campen Depo. 52:6-22. Even after Plaintiffs’ counsel tried to “re-direct,” Mr. Campen still affirmatively testified that he did not seek any form of monetary relief. Id. at 76:22-77:4 (“Q: Okay. So with respect to the testimony you just gave about the monetary supplements for the whole class, to be clear, you’re not seeking compensation yourself? A: No. I want the whole -- you know, the whole State of California. Q: But not including yourself; correct? A: Yeah.”). These repeated concessions compel judgment against Mr. Campen on any claim for monetary relief of any kind 8 Lest there be any doubt, Mr. Campen also testified that he knows about and looks at the Nutrition Facts, ingredients, and the front and occasionally the back label to make purchasing decisions for snack chips, further demonstrating that he was not deceived in any manner. Campen Depo. 40:15- 41:14; 42:3-7, 17-19; see Thomas v. Costco Wholesale Corp., No. 12-cv-2908, 2013 WL 1435292, at *5 (N.D. Cal. Apr. 9, 2013) (dismissing “0 grams trans fat” claim because plaintiff “admit[ted] to having ‘read the labels’” and “[t]herefore she was aware of the trans fat . . . as well as the content of other types of fat . . ., all of which was clearly stated on the labeling of the product she purchased”). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 19 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 because a claim cannot go to trial for relief that the plaintiff expressly states he does not want.9 They also independently require dismissal of Mr. Campen’s claims for lack of Article III standing and statutory standing under the UCL, FAL and CLRA. See Ogden v. Bumble Bee Foods, LLC, No. 12- cv-1828, 2014 WL 27527, at *6-7 (N.D. Cal. Jan. 2, 2014) (“to establish standing under the UCL or FAL, a plaintiff must demonstrate that ‘she suffered injury in fact and [ ] lost money or property as a result of the unfair competition”; “to have standing under the CLRA,” a plaintiff must have suffered injury and damages as a result of the alleged misrepresentations). 4. Plaintiff Campen Has Not Established Any Entitlement To Injunctive Relief. Summary judgment on Mr. Campen’s claims for injunctive relief is also warranted. SAC ¶¶ 197, 199, 208, 215, 223, 231, 236, 245. To survive summary judgment on a claim for injunctive relief, a plaintiff must demonstrate—with testimony and evidence, not mere allegations—“a real and immediate threat of repeated injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (emphasis added). “[P]ast wrongs do not in themselves amount to [a] real and immediate threat of injury necessary to make out a case or controversy.” Id. at 103. Rather, the plaintiff must establish “a sufficient likelihood that he will again be wronged in a similar way.” Bates v. United Parcel Service, Inc., 511 F.3d 974, 985 (9th Cir. 2007) (emphasis added); Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006) (plaintiff must show that he is “realistically threatened by a repetition of the violation”). A plaintiff may survive summary judgment only where there is “evidence in the record” showing the “probability of future violations.” Mathews v. Gov’t Emps. Ins. Co., 23 F. Supp. 2d 1160, 1165 (S.D. Cal. 1998). Mr. Campen cannot satisfy this evidentiary burden. Mr. Campen offers no evidence of any “imminent risk of harm.” Nor could he, because the 9 See Versarge v. Twp. of Clinton, 984 F.2d 1359, 1363 & n.1 (3d Cir. 1993) (finding claim for monetary damages abandoned when plaintiff stated at deposition that no monetary damages were sought); Wiser v. Norfolk S. Ry. Co., No. 11-cv-1805, 2013 WL 500191, at *4 (E.D. Mo. Feb. 11, 2013) (granting summary judgment to defendant on damages claim where plaintiff admitted in his deposition that he was “not seeking damages”); Wigg v. Sioux Falls Sch. Dist. 49-5, 274 F. Supp. 2d 1084, 1089-90 (D.S.D. 2003), aff’d in part & rev’d in part on other grounds, 382 F.3d 807 (8th Cir. 2004) (holding that plaintiff abandoned her right to recover damages because she stated clearly on two occasions in her deposition that she was not seeking damages, even though she later tried to file an errata sheet and an affidavit “contending that she misspoke”); Ramos Irizarry v. Rivera Varela, 59 F. Supp. 2d 358, 362 (D.P.R. 1999) (dismissing damages claims where plaintiff “waived any claim for damages during the taking of his deposition”). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 20 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 label statements are not on the products anymore, and have not been for three and a half years—a fact that distinguishes this case from Lilly v. Jamba Juice Co., No. 13-cv-2998, 2015 WL 1248027, at *4 (N.D. Cal. Mar. 18, 2015) (Tigar, J.). See Wutzke Decl. ¶¶ 4, 7. Mr. Campen has not produced any evidence that Frito-Lay will use the labels in the future, while Frito-Lay produced considerable and undisputed evidence that it will not use the labels in the future— as Frito-Lay witnesses explained at length. See Jacoby Depo. 28:13-18 id. at 29:4-7 see also id. at 29:23-25, 31:3-6, 49:18-22, 90:1-11, 91:3-5, 145:17-24; Garner Depo. 67:2-6 see also id. at 51:9-16, 52:21- 24, 61:16-21, 66:15-67:6, 72:8-10, 97:23-98:3.10 Given this undisputed evidence from Frito-Lay, there is no genuine dispute of material fact as to whether Mr. Campen faces a “real and immediate” threat of future harm from labels that have not been on the products for more than three and a half years; Mr. Campen produced no evidence showing that Frito-Lay is likely to bring back the labels. His claim for injunctive relief is thus purely speculative, and summary judgment on Mr. Campen’s claims is appropriate on the separate and independent grounds of standing and mootness. See, e.g., Lanovaz v. Twinings N. Am., Inc., No. 12- cv-2646, 2016 WL 4585819, at *3 (N.D. Cal. Sept. 2, 2016) (granting defendant summary judgment and holding that plaintiff lacked standing to seek injunctive relief where plaintiff cited no evidence that the offending labels were likely to return) (appeal filed); Nguyen v. Medora Holdings, LLC, No. 10 Relevant portions of Ms. Dalheim’s (Regulatory Affairs Manager), Ms. Garner’s (Vice President of Marketing), and Ms. Jacoby’s (Senior Vice President of Finance) Rule 30(b)(6) depositions are attached to the Meltzer Decl. as Exhibits I, J and K, respectively. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 21 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 14-cv-618, 2015 WL 4932836, at *8 & n.59 (N.D. Cal. Aug. 18, 2015) (holding that plaintiffs lacked standing to pursue injunctive relief where defendant voluntarily removed “all natural” labels from packaging of chips, plaintiffs pointed to no evidence that the labels would change back, and where defendant’s CFO testified that although the statement was removed because of lawsuit, the statement had no impact on sales); Opperman v. Path, Inc., 87 F. Supp. 3d 1018, 1056 (N.D. Cal. 2014) (Tigar, J.) (holding that plaintiffs could not establish standing to seek injunctive relief where defendants discontinued challenged practices because there was no realistic threat of repetition).11 B. Summary Judgment Should Be Entered Against Plaintiff Wilson. Summary judgment in favor of Frito-Lay on all of Plaintiff Wilson’s claims is also warranted. Following the Court’s order on Frito-Lay’s motion to dismiss the SAC, Mr. Wilson’s only remaining claims challenge one label statement, “0 grams Trans Fat,” on one product, Lay’s Classic Potato Chips. SAC ¶¶ 2, 5; Wilson, 961 F. Supp. 2d at 1148. Summary judgment on those claims is appropriate. 1. By His Own Admission, Mr. Wilson Did Not Rely On The “0 Grams Trans Fat” Statement When Buying Lay’s Classic Potato Chips. Mr. Wilson has produced no evidence that he relied on the “0 grams Trans Fat” statement in purchasing Lay’s Classic Potato Chips. To the contrary, at his deposition, he admitted that, although he has purchased Lay’s Classic Potato Chips products for decades, Wilson Depo. 47:5-12, he remembers seeing the “0 grams Trans Fat” label statement only once: at the time of his last purchase of Lay’s Classic Potato Chips, which he made at the express direction of his lawyers after they had 11 See also Mathews, 23 F. Supp. 2d at 1165 (request for injunctive relief was moot because defendant had “discontinued” the challenged conduct); Hobbs v. Sprague, 87 F. Supp. 2d 1007, 1012 (N.D. Cal. 2000) (same); C. Pappas Co., Inc. v. E & J Gallo Winery, 610 F. Supp. 662, 672 (E.D. Cal. 1985) (noting that continuing activity is required for injunctive relief); Bronson v. Johnson & Johnson, Inc., No. 12-cv-4184, 2013 WL 1629191, at *1 n.2 (N.D. Cal. Apr. 16, 2013) (dismissing injunctive relief claims challenging allegedly deceptive labels on Splenda packets because the defendants’ attorney filed a declaration stating that the defendants had discontinued two of the challenged products); Vavak v. Abbott Labs., Inc., No. 10-cv-1995, 2011 WL 10550065, at *4 (C.D. Cal. June 17, 2011) (dismissing with prejudice injunctive relief claims related to allegedly contaminated infant formula because defendant recalled the defective formula and plaintiff did not allege any real or immediate threat that she would be wronged again). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 22 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 fully explained the theory of the case. Wilson Depo. 56:23-57:1; 87:7-22. This final token purchase of Lay’s does not provide any basis to recover under California’s consumer protection statutes. In enacting Proposition 64, California voters intended to eradicate frivolous and abusive lawsuits “by prohibiting private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact.” In re Tobacco Cases II, 207 P.3d 20, 32 (Cal. 2009) (quoting Prop. 64, § 1, subd. (e) (emphasis omitted)). Courts have therefore rejected claims of injury when litigants have purchased products for the purpose of bringing suit. See, e.g., Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939, 948 (S.D. Cal. 2007) (“[T]he Court concludes requiring nothing more than a token purchase would undermine Proposition 64’s reform purposes . . . . An attorney who became aware of false advertising but who had no client who was harmed by it could easily ‘create’ a client with standing to sue by directing a willing party who was not deceived by the advertising to make a purchase.”). Mr. Wilson’s token purchase at the direction of counsel—the only purchase for which he recalls seeing the “0 grams Trans Fat” statement—thus provides him with no basis on which to sustain a claim for relief. As to his Lay’s purchases before his involvement in this case, Mr. Wilson admitted that he “didn’t notice” any trans fat statement. Wilson Depo. 56:7, see id. at 56:8-10 (“[Y]ou’re asking me if I recall, under oath, if they were there or not, and I’m answering that I don’t recall if they were or not.”); see also id. at 56:23-57:1. Rather, he purchased the chips because he “wanted a plain potato chip,” he “like[d] regular potato chips,” they “tasted good,” and he liked the “Lay’s brand,” among other reasons unrelated to the trans fat statement. Id. at 47:17-48:3, 48:14-18, 49:2-50:1. Even when Plaintiffs’ counsel tried to re-direct Mr. Wilson to prompt him to testify that he noticed the label statements before his token purchase, Mr. Wilson never testified that he relied on the label statement in making a purchase, and Plaintiffs’ counsel’s questions were improperly leading, objected to, and the responses inadmissible.12 Mr. Wilson thus cannot sustain a claim that he was 12 Mr. Wilson’s deposition testimony in response to his own counsel’s examination on re-direct is inadmissible on this motion in light of the improper and leading form of the questions asked and the objections made. See, e.g., Bixby v. KBR, Inc., No. 09-cv-632, 2012 WL 4754942, at *3-4 (D. Or. Oct. 4, 2012) (excluding, as inadmissible under Federal Rule of Evidence 611(c), responses to leading deposition questions where the deponents were not hostile or opposing parties to the party the questioning attorney represented); Wilson Depo. 117:15-19; 118:15-21, 119:8-120:19 (raising Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 23 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 misled by or relied on the “0 grams Trans Fat” statement in connection with any of these purchases. See Wilson, 961 F. Supp. 2d at 1143 (allowing Plaintiffs to bring claims based on statements they never saw would be “an affront to state and federal standing rules”); Ogden, 2014 WL 27527, at *11 (granting summary judgment in connection with back-of-the-package statements when plaintiff testified she “never really looked at” them). 2. Mr. Wilson Provided No Factual Support For The Theory Of Deception This Court Allowed To Proceed Past The Pleadings. Mr. Wilson also offered no evidence to support the theory of deception that this Court allowed past the pleadings. The SAC alleges that Plaintiffs “would not have purchased [the challenged products] had they known the truth about these products, i.e. that the products failed to only make positive contributions to Plaintiffs’ diet and did contain one or more nutrients like total fat at levels in the food that increased the risk of disease or health related condition that is diet related.” SAC ¶¶ 87, 103, 171-172. But Mr. Wilson, at his deposition, expressly disagreed with this allegation, compelling summary judgment on the element of deception. When specifically asked whether he believed that the potato chips he purchased “only made positive contributions to [his] diet,” Mr. Wilson replied, “No.” Wilson Depo. 99:6-11. Mr. Wilson repeatedly testified that at no point during the decades in which he purchased the chips did he believe they were “healthy.” Id. at 58:13-23. Mr. Wilson also testified that he “had no way to answer” whether he believed that the products he purchased “contained levels of total fat that increased . . . risk of a diet-related disease or health-related condition.” Id. at 99:13-21. Nor is there any expert testimony on this issue. No triable issue of fact exists as to whether Mr. Wilson ever believed—or was deceived into believing— that Lay’s Classic Potato Chips made only “positive contributions to [his] diet” or contained “total fat at levels in the food that increased the risk of a disease or a health condition that is diet-related,” Frito-Lay’s objections to improper re-direct). The inadmissibility rules of evidence governing witness examination on re-direct exist to protect the truth-finding function and to prevent leading “softball” and conclusory questions from creating genuine issues of material fact. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 24 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 as alleged repeatedly in the SAC (¶¶ 15, 87, 103, 171-72).13 Accordingly, summary judgment should be granted for Frito-Lay on this claim. Mr. Wilson’s deposition testimony also shows that summary judgment on the element of deception is warranted on another, independent ground. In ruling on Frito-Lay’s first motion to dismiss, the Court recognized that several courts had dismissed similar “0 grams Trans Fat” statement challenges, but found that this case involved a “distinct fact pattern” because the Plaintiffs alleged that the trans fat statement was accompanied by a reference statement referring to saturated fat. Wilson, 2013 WL 1320468, at *14. The Court concluded that the Plaintiffs sufficiently alleged that the statement referring to saturated fat “misdirect[ed]” them from considering total fat (see id. at *8, *14), and other courts have taken this distinction into account.14 During his deposition, however, Mr. Wilson could not recall ever having seen this type of label statement involving an allegedly distracting reference statement—even at the time of his token purchase of Lay’s directed by lawyers. With respect to the token purchase, he testified that he could not remember whether that package “contained a reference statement directing [him] to see the Nutrition Facts on the back panel.” Wilson Depo. 57:2-5. And discovery revealed that the package he bought did not have a saturated fat reference statement. See Compl., ECF No. 1, Ex. 1; Meltzer Decl., Ex. H. Thus, contrary to the alleged distraction cited by Plaintiffs to survive a motion to dismiss, Mr. Wilson was not, in fact, “misdirected” by a saturated fat statement. He admitted that 13 Indeed, the FDA has explicitly warned against any attempt to equate reference statement thresholds in the FDA’s labeling regulations to a lack of healthiness or to an increased risk of disease. In announcing its approach to reference statement levels for nutrients including total fat, the FDA warned that the “establishment of disclosure levels” should not be considered “an open invitation for product liability suits for all products exceeding the threshold amounts.” 58 Fed. Reg. 2,302, 2,307 (Jan. 6, 1993). It emphasized that “foods that contain nutrients at levels that exceed the disclosure level are not unsafe, will not cause a diet related disease, and are not dangerous or ‘bad’ foods.” Id. at 2,308 (emphasis added). The FDA also concluded that “there are no generally recognized levels at which nutrients such as . . . [total] fat in an individual food will pose an increased risk of disease.” Id. at 2,307 (emphasis added). 14 Several courts have held that a “0 grams Trans Fat” claim, standing alone, is “neither a false statement nor a misrepresentation and therefore, not an actionable claim.” Thomas v. Costco Wholesale Corp., No. 12-cv-2908, 2014 WL 1323192, at *6 (N.D. Cal. Mar. 31, 2014) (distinguishing Wilson as involving a “partial” reference statement); Delacruz v. Cytosport, Inc., No. 11-cv-3532, 2012 WL 2563857, at *8-10 (N.D. Cal. June 28, 2012). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 25 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 he does not remember seeing such a statement and it is undisputed that it did not appear on the product he purchased. Summary judgment is therefore appropriate on this ground as well. 3. Plaintiff Wilson Cannot Show Any Entitlement To Monetary Relief. Although the SAC asserts a claim for damages under the CLRA, Mr. Wilson produced no evidence that he was damaged. Mr. Wilson testified at his deposition that he is not seeking damages for any of the purchases that supposedly involved deception based on the “0 grams Trans Fat” statement. Wilson Depo. 32:12-19 (“Q: Are you hoping to receive money for participating in this case? A: No, sir. Q: You’re not seeking damages? . . . A: Damages, not particularly for me, no; for the class.”). Significantly, Mr. Wilson also testified that the challenged products were not overpriced, either because of the challenged statements or otherwise; thus, he is not seeking any sort of price premium for the challenged products. See id. 109:22-24 (“Q: You’re not contending that the products were overpriced or mispriced; right? A: No, sir.”). Like Mr. Campen, Mr. Wilson’s testimony requires summary judgment on his damages claims. As Mr. Wilson explained at his deposition, the only monetary relief that he seeks is a “fair refund” for the single purchase he made at the direction of his lawyers, after they had explained the theory of the case to him. Wilson Depo. 108:18-21, 114:23-115:2. But there is no legal basis for any refund on this purchase, because at the time of the purchase Mr. Wilson could not have relied on any challenged statement and was not injured at the time by that token, made-for-litigation purchase. See Ogden, 2014 WL 27527, at *6-7 (requiring proof of reliance and injury to sustain claims for restitution). Plaintiffs’ experts also provided no damages or restitution amounts for either Plaintiff, but instead purported to submit amounts for the entire State of California, see ECF No. 119-10 (Declaration of Dr. Donald May at ¶¶ 76-78), which is inadequate as Plaintiffs can recover only for their own claims. Cf. Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937, 947 (Cal. 2003). Summary judgment is accordingly appropriate on all of Mr. Wilson’s claims for damages and restitution. For the same reasons (because he did not suffer injury or damage), dismissal of Mr. Wilson’s claims is also independently required for lack of Article III standing and statutory standing under the UCL, FAL, and CLRA. See Ogden, 2014 WL 27527, at *6-7. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 26 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 4. Plaintiff Wilson Has Not Established Any Entitlement To Injunctive Relief. Like Mr. Campen, to prevail on his claim for injunctive relief, Mr. Wilson must show a “real and immediate threat of repeated injury,” not merely past wrongs. Lyons, 461 U.S. at 102. And like Mr. Campen, he did not do so. Mr. Wilson has failed to present any evidence that “‘he will again be wronged in a similar way.’” Bates, 511 F.3d at 985. Mr. Wilson does not face an “immediate threat of repeated injury” because the challenged label is not in use, and will not be used in the future. See Wutzke Decl. ¶ 7. This is especially true because, See Jacoby Depo. 34:2-5 id. at 49:6- 7 id. at 122:1-22 ; Garner Depo. 44:22-23 ( see also id. at 147:6-16, 150:12-13. Indeed, Frito-Lay’s , and Frito-Lay used the label only sporadically throughout the putative class period. See Garner Depo. 150:10-11 ; id. at 44:18-19 id. at 146:20-147:16 Jacoby Depo. 49:14-16 ; id. at 122:13-17 . Mr. Wilson produced no evidence to suggest that Frito-Lay will resume the use of these labels or to dispute Frito-Lay’s evidence that it will not do so. Absent this evidence, Mr. Wilson’s claims for injunctive relief are moot and he lacks standing because he failed to show an imminent risk of harm. See Opperman, 87 F. Supp. 3d at 1056; Nguyen, 2015 WL 4932836, at *8; Lanovaz, 2016 WL 4585819, at *3. C. Plaintiffs Have Not Established That It Is Probable That The Statements Are Likely To Have Deceived A Significant Portion of Consumers. Plaintiffs’ UCL, FAL, and CLRA claims also require them to satisfy the reasonable consumer standard, which requires evidence that members of the public are likely to be deceived. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Thus, to survive summary Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 27 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 judgment, Plaintiffs “must produce evidence showing ‘a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.’” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008). Put another way, Plaintiffs must show that “it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Lavie, 105 Cal. App. 4th at 508 (emphases added). A “few isolated examples of actual deception are insufficient” to survive summary judgment. Clemens, 534 F.3d at 1026 (internal quotation marks omitted). Plaintiffs’ evidence is wholly insufficient to create a genuine issue of material fact on deception, as cases in this District make clear. There is no consumer survey regarding how consumers interpret the labels on the products at issue. Plaintiffs did not even show that they themselves were misled as they alleged, let alone that a “significant portion” of consumers would be misled. See Bruton v. Gerber Prods., Co., No. 12-cv-2412, 2014 WL 7206633, at *6 (N.D. Cal. Dec. 18, 2014) (granting summary judgment on this issue where plaintiff offered nothing more than her own testimony, FDA regulations, and FDA warning letters) (appeal pending); Ries v. Ariz. Beverages USA LLC, No. 10-cv-01139 RS, 2013 WL 1287416, at *6-7 (N.D. Cal. Mar. 28, 2013) (granting summary judgment where plaintiffs failed to offer “extrinsic evidence that a significant portion of the consuming public would be confused” by the challenged statements).15 Plaintiffs have no consumer survey or extrinsic evidence to show how a reasonable consumer would perceive the challenged statements, much less be deceived by them as alleged in the SAC or otherwise. By contrast, Frito-Lay produced undisputed evidence that there was no customer confusion about either label statement. See Garner Depo. 37:18-20 ; id. at 91:12-13 id. 15 Brazil v. Dole Packaged Foods, LLC, 660 F. App’x 531 (9th Cir. 2016) (per curiam) (unpublished), is not to the contrary. There, the Ninth Circuit held that a genuine dispute of fact on this issue existed where plaintiff proposed to prove that the label was misleading by citing, inter alia, “consumer surveys prepared for the litigation.” Id. at 533. Here, Plaintiffs do not—and cannot—point to any consumer surveys prepared for the litigation addressing the challenged statements on the products at issue showing that reasonable consumers would be misled in the manner alleged. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 28 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 at 95:8-12 id. at 96:14-15 ; id. at 177:12-16 ; id. at 186:18-20 Although Plaintiffs submitted an “opinion” from Dr. Julie Caswell, who conclusorily stated that the “Made With All Natural Ingredient” and “0 grams Trans Fat” statements are “material,” ECF No. 119-4 ¶ 28, this Court has already recognized in this case that materiality is a different element than likelihood of deception. ECF No. 159, at 4 n.3 (citing Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d 302, 309 n.5 (1st Cir. 2002)). Moreover, “[i]n this circuit, ‘[e]xpert opinion . . . may defeat summary judgment” only if “the factual basis for the opinion is stated in the affidavit.’” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1008 (9th Cir. 2007); United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir. 1981) (“[I]n the context of a motion for summary judgment, an expert must back up his opinion with specific facts.”). Dr. Caswell’s conclusory opinion testimony falls well short of that threshold. She did not speak to either Plaintiff, much less any other class member, or perform any empirical or other analytical work. In fact, she cited no factual evidence to support her “opinion.” As a result, her “unsupported” declaration “setting forth ultimate or conclusory facts and conclusions of law [is] insufficient to . . . defeat a motion for summary judgment.” Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224 (5th Cir. 1991) (internal quotation marks omitted); Luke v. Family Care & Urgent Med. Clinics, 246 F. App’x 421, 424 (9th Cir. 2007) (“An expert opinion that is merely a conclusory statement without adequate supporting facts is insufficient to defeat a summary judgment motion.”). Frito-Lay is thus entitled to summary judgment for the independent reason that Plaintiffs proffered no evidence to establish that it is probable that either statement would mislead a significant portion of consumers. Clemens, 534 at 1026. D. The “0 Grams Trans Fat” Claims Also Fail As A Matter Of Law. Finally, summary judgment on any “0 grams Trans Fat” statement also should be granted because—even if Plaintiffs’ claims on this issue survived to this point—the statement is “fully compliant” with applicable FDA regulations and guidance. According to the SAC, the “0 grams Trans Fat” statement is an “improper” nutrient content claim governed by “21 C.F.R. § 101.13(h)” and, therefore, Frito-Lay was allegedly prohibited from using the statement without a reference Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 29 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 statement referring consumers to the back panel for total fat content. SAC ¶¶ 88-91. The FDA itself has taken the contrary view and, as this Court concluded with respect to MSG claims earlier in the case, Wilson, 961 F. Supp. 2d at 1146-47, Frito-Lay should not be subjected to liability in this case based on an interpretation of the regulations of which it did not have fair notice. The handful of warning letters to other companies on which Plaintiffs rely did not involve the circumstances present here, were not directed to or seen by Frito-Lay, and thus do not change this result. 1. The FDA Has Stated That “0 Grams Trans Fat” Statements Are Permissible Statements About Amounts That Do Not Require Reference Statements. Plaintiffs’ theory is that the “0 grams Trans Fat” statement is a nutrient content claim, which they contend triggers a requirement for a reference statement about total fat that was not present on Frito-Lay’s labels. FDA and senior FDA officials, however, have repeatedly stated that “0 grams Trans Fat” statements are “considered factual statements, not nutrient content claims” and that a “0 grams Trans Fat” claim—even without a reference statement—is “not considered misbranded under the Act.” Frito-Lay’s Request For Judicial Notice (“RJN”) Ex. B (Letter from Dir., Office of Nutritional Products, Labeling and Dietary Supplements, FDA) (Apr. 14, 2006).16 This conclusion follows from the FDA’s regulations, which expressly distinguish between characterizing claims that need to be accompanied by reference statements, see 21 C.F.R. § 101.13(b)(1) (e.g., “low sodium”), and mere statements of fact that are not subject to a reference statement requirement, see 21 C.F.R. § 101.13(i)(3) (e.g., “5 grams of fat”). The FDA regulations delineate these two categories of label statements by defining a nutrient content claim as “[a] claim that expressly or implicitly characterizes the level of a nutrient of the type required to be in nutrition labeling.” 21 C.F.R. § 101.13(b) (emphasis added) (Meltzer Decl., Ex. A). The word “characterizes” is key to these definitions, and FDA regulations provide an extensive list that “characterize” nutrient levels including (among others) “light,” “lite,” “free,” “high,” “low,” “good source,” “contains,” “provides,” “more,” “reduced,” “less,” “added,” “extra,” “plus,” “fortified,” “enriched,” and “modified.” See generally 21 C.F.R. §§ 101.13, 101.54, 101.56. As these 16 Frito-Lay requests that the Court take judicial notice of this letter and other FDA materials discussed below. See Frito-Lay’s Request For Judicial Notice (“RJN”). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 30 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 definitions make clear, numeric statements without characterizing verbiage (adjectives) are not characterizing claims. They are statements of amount. The FDA permits manufacturers to make a “statement about the amount . . . of a nutrient,” without requiring a reference statement, if the statement of amount does not “characterize the level of the nutrient in the food and it is not false or misleading in any respect (e.g., ‘100 calories’ or ‘5 grams of fat’).” 21 C.F.R. § 101.13(i)(3). As the FDA explained in promulgating this regulation, “there are some circumstances in which an amount claim cannot be considered to characterize in any way the level of a nutrient in a food. For example, the statement ‘100 calories’ or ‘5 grams of fat’ on the principal display panel of a food would be a simple statement of amount that, by itself, conveys no implied characterization of the level of the nutrient.” 58 Fed. Reg. 2,302, 2,310 (Jan. 6, 1993) (Meltzer Decl., Ex. B). The statement at issue in this case—“0 grams Trans Fat”—falls squarely within this permitted category of “amount” statements that are not “characterizing” claims. The trans fat statement did not contain a “characterizing” word set out in FDA regulations such as “low,” “no,” or “only,” and, in fact, tracks almost exactly the example of an amount statement given in the regulation itself (“5 grams of fat”). Frito-Lay’s “0 grams Trans Fat” statement was, therefore, expressly authorized by 21 C.F.R. § 101.13(i)(3). See also Walker v. B&G Foods, Inc., No. 15-cv- 3772, 2016 WL 463253, at *3-4 (N.D. Cal. Feb. 8, 2016) (Tigar, J.) (recognizing distinction between “No Trans Fat” and “Trans Fat Free” unauthorized nutrient content claims, and “0g Trans Fat” statements of amount permissible under 21 C.F.R. § 101.13(i)(3)). In promulgating 21 C.F.R. § 101.13(i)(3), the FDA recognized that it was providing a solution for companies who wish to make stand-alone amount claims by stating that it had “carefully prescribed the circumstances in which such statements may be used in new § 101.13(i).” 58 Fed. Reg. at 2,309 (emphasis added). Nowhere did the FDA state that statements of amount, as opposed to characterizing claims, are subject to the reference requirements of § 101.13(h). The two regulations are thus mutually exclusive: if a statement is a “characterizing” claim, it is subject to the requirements of 101.13(h). If a statement is not a characterizing claim, but simply a statement of amount, it can be made under Section 101.13(i), just like “5 grams of fat.” The statement at issue Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 31 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 here, “0 grams Trans Fat,” falls squarely within this permitted category of factual statements that are not “characterizing” claims—and, therefore, are not subject to reference statement requirements. Critically, this is not solely Frito-Lay’s interpretation of the FDA’s labeling regime. The FDA itself has interpreted these two regulations in the same fashion. For numerous nutrients, including, but not limited to, “0 grams Trans Fat,” the FDA has repeatedly advised industry that it can make a statement of amount on the front of a package so long as the statement does not include any “characterizing” language. The most express example of this is a letter from the FDA to the Center for Science in the Public Interest in 2006. See RJN, Exhibit B. In 2006, that group petitioned the FDA to stop the use of stand-alone “0 grams Trans Fat” statements by referencing 21 C.F.R. § 101.13(h). See RJN, Ex. A. The FDA denied the petition on the grounds that 21 C.F.R. § 101.13(h) did not apply. The FDA explained that “The 0g trans fat statements presented in your letter are considered factual statements, rather than nutrient content claims, in accordance with § 101.13(i)(3) and the products are not considered misbranded under the Act.” RJN, Ex. B. The FDA further explained that the use of descriptive modifiers, such as “only” or “contains,” would serve as characterizing nutrient content claims, but that a simple statement of amount would not. Id.; see also Dalheim Depo. 76:18-77:20, 84:22-85:4. In short, although CSPI urged the FDA to take the position Plaintiffs take in this case, the FDA refused—clearly and unambiguously. The FDA continued to give similar guidance to the industry regarding non-characterizing claims for years.17 17 See RJN, Ex. C (FDA, A Food Labeling Guide at 51 (1994)) (permitting “x grams of omega-3 fatty acids”); RJN, Ex. D (FDA Letter to Flowers Baking Company of Thomasville, Inc. (July 27, 2003)) (“[T]he regulations permit statements that do not in any way implicitly characterize the level of a nutrient in a food and are not false or misleading in any respect (see 21 CFR 101.13(i)(3)). For example, statements such as ‘100 calories’ or ‘5 grams of fat’ or, in this instance, ‘7 grams of carbohydrate,’ are permissible labeling claims.”); RJN, Ex. E (FDA, Draft Guidance, Whole Grain Label Statements (Feb. 2006)) (“Manufacturers can make factual statements about whole grains on the label of their products such as . . . ‘10 grams of whole grains’ (21 CFR 101.13(i)(3) provided that the statements are not false or misleading under section 403(a) of the Federal Food, Drug, and Cosmetic Act . . . and do not imply a particular level of the ingredients, i.e., ‘high’ or ‘excellent source.’”); RJN, Ex. F (FDA Letter to Optimum Nutrition (Nov. 30, 2009)) (“[Y]our client may declare the amount (e.g., grams) of carbohydrates in a serving of his bar . . . [under] 21 C.F.R. 101.13(i)(3).”); RJN Ex. G (FDA Letter to BestLife Int’l, Inc. (Feb. 4, 2009) (while a company could Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 32 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 This regulatory history makes the claim against Frito-Lay groundless and unfair. Frito-Lay’s regulatory personnel reviewed and relied on the FDA’s guidance that the “0 grams Trans Fat” statements are permissible statements of fact that do not “characterize” the amount of trans fat in the product, Dalheim Depo. 61:14-23, 76:18-25, 107:4-15, 188:18-189:14. In 2004, Frito-Lay also submitted a letter to the FDA stating its understanding that “0 grams Trans Fat” is an amount claim governed by § 101.13(i)(3). See id. at 62:4-20, 64:19-24. In addition, unlike much of the industry, Frito-Lay adopted a highly conservative position about how “0 grams Trans Fat” statements should be made. In its 2004 letter to the FDA, the company stated that although Frito-Lay could permissibly make a stand-alone “0 grams Trans Fat” statement, it would include a voluntary reference statement to saturated fat if the product did not qualify for a “low” in saturated fat claim. Dalheim Depo. 62:3-14. In setting the thresholds this way, Frito-Lay recognized that the FDA associated saturated fats and trans fats id. at 66:16-19.18 Frito-Lay referred consumers to saturated fat at levels that were lower than the FDA’s reference statement threshold for “characterizing” claims.19 In short, while virtually all of the industry used stand-alone “0 grams Trans Fat” statements without any reference statement, Frito-Lay’s approach was more conservative in labeling and enabled any consumers trying to avoid the “bad” fats for heart health identified by FDA (trans fat and saturated fat) to do so. Id. at 66:16-19. Although the SAC alleges that the FDA “sent warning letters to the industry, including many of [Frito-Lay’s] peer food manufacturers, for the same types of improper ‘0 grams Trans Fat’ . . . nutrient content claims,” SAC ¶ 99, it is undisputed that Frito-Lay never received a warning letter not say “No Trans Fat,” the company could “make a truthful statement on a product’s label that specifies the amount of trans fat (21 C.F.R. § 101.13(i)),” i.e., 0 grams Trans Fat). 18 The FDA has also recently recognized (repeatedly) that “current dietary recommendations and clinical guidelines encourage replacing saturated and trans fatty acids with beneficial fats, such as polyunsaturated and monounsaturated fatty acids,” and “no longer emphasize total fat.” FDA Final Rule, Food Labeling, Revision of the Nutrition & Supplement Facts Labels, 81 Fed. Reg. 33,741, 33,744, 33,780-81, 33,783-84 (May 27, 2016) (Meltzer Decl., Ex. E). 19 Compare 21 C.F.R. § 101.62(c)(2)(i) (products cannot make a low saturated fat claim if they contain more than 1.0 grams of saturated fat per reference amount customarily consumed) with 21 C.F.R. § 101.13(h)(1) (setting the reference statement level at 4.0 grams of saturated fat per reference amount customarily consumed). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 33 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 itself and never saw any of those warning letters addressed to other companies. See Dalheim Depo. 50:3-14 , see id. at 54:13-21. As the evidence demonstrates, Frito-Lay was completely transparent in submissions to the FDA about how it interpreted the pertinent regulations and how it intended to label its products. Moreover, in the years Frito-Lay used the challenged statement on its labels (beginning in 2004), the FDA never questioned Frito- Lay’s approach to labeling trans fat, Dalheim Depo. 50:9-14, 54:13-21. In fact, in its trans fat rulemakings, the FDA praised Frito-Lay by name for becoming the first manufacturer to remove trans fat from its portfolio. See 68 Fed. Reg. 41,434, 41,473, 41,502 n.150 (July 11, 2003) (Meltzer Decl., Ex. D). Indeed, Frito-Lay was also the first manufacturer to label trans fat voluntarily in the Nutrition Facts panel before the labeling rules became mandatory. Dalheim Depo. 69:16-70:1. In any event, as several courts have held, and as FDA’s regulations state, warning letters do not represent the FDA’s official position. See, e.g., Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940, 944 (D.C. Cir. 2012) (warning letters “plainly do not mark the consummation of FDA’s decisionmaking”); Schering-Plough Healthcare Prods., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 505 (7th Cir. 2009) (same); see also 21 C.F.R. § 10.85(k) (a warning letter “is an informal communication that represents the best judgment of that employee at that time but does not constitute an advisory opinion, does not necessarily represent the formal position of FDA, and does not bind or otherwise obligate or commit the agency to the views expressed”). This is clear because the FDA has stated that “0 grams Trans Fat” claims are allowed in other warning letters and in formal rejections of petitions to change the rules governing “0 grams” statements.20 In addition, on the heels of these few warning letters attached to the SAC, which involved different factual circumstances than those at issue here,21 the FDA released another letter that addressed a number of 20 See Cytosport, Inc. v. Vital Pharms., Inc., 894 F. Supp. 2d 1285, 1296 (E.D. Cal. 2012); Summit Tech., Inc. v. High-Line Med. Instr. Co., 922 F. Supp. 299, 306 (C.D. Cal. 1996); Craig v. Twinings N. Am., Inc., No. 14-cv-5214, 2015 WL 505867, at *7 (W.D. Ark. Feb. 5, 2015). 21 The warning letters issued to other companies attached to the SAC targeted products making trans-fat-related statements where the products at issue were high in saturated fat but did not refer consumers to saturated fat information, unlike the products at issue in this case, which did refer consumers to “saturated fat” information if the product did not qualify for a “low” in saturated fat claim. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 34 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 front-of-pack claims, including trans fat claims. See SAC, Ex. 7. That letter targeted characterizing claims such as “free of trans fat,” and said such statements can be misleading “when a product is high in saturated fat”—not total fat—and “especially so when the claim is not accompanied by” a reference statement. Id. (emphasis added). Frito-Lay did not make a “characterizing” claim. Moreover, Frito-Lay’s products were never “high” in saturated fat. And, any time a Frito-Lay product was not “low” in saturated fat, Frito-Lay did provide a reference statement to saturated fat to help consumers identify bad fats in the very way FDA suggested. See Dalheim Depo. 122:9-12. Even under the FDA’s own explanation of the warning letters, Frito-Lay’s use of the “0 grams Trans Fat” statement was permissible, conservative, and certainly not deceptive.22 2. Frito-Lay Cannot Be Subjected To Liability For Following FDA Guidance. Even if this Court were inclined to agree with Plaintiffs’ interpretation of the FDA’s regulations, Frito-Lay is still entitled to summary judgment on the alternative ground that there was never “fair notice” of this requirement—just as the Court held with respect to Plaintiffs’ MSG claims. Frito-Lay’s labels were fully consistent with FDA regulations and guidance as Frito-Lay reasonably interpreted them, and as the FDA itself interpreted them for many years. This Court previously dismissed with prejudice claims challenging “No MSG” statements because Frito-Lay was “simply not on notice during the Class Period that its labels did not comply with the FDA rule.” Wilson, 961 F. Supp. 2d at 1147. As it explained, “the only information about the FDA’s MSG regulations that would have been available to [Frito-Lay] were warning letters 22 If further confirmation of Frito-Lay’s position were needed, Former FDA Commissioner David Kessler—who was the Commissioner when these FDA regulations were promulgated—and Congressman Henry Waxman—the lead sponsor of the Nutrition Labeling and Education Act— filed an amicus brief explaining the labeling regime and regulations in a case in this District challenging menu labeling laws. See RJN Ex. J (Brief of Amici Curiae Rep. Henry Waxman, et al., Cal. Rest. Ass’n v. San Francisco, No. 08-cv-3685, 2009 WL 5066894 (N.D. Cal. Jan. 5, 2009)). The consumer protection groups Public Citizen and CSPI joined the brief, as did the American College of Preventive Medicine and the American Diabetes Association. The amici explained that, under the FDA’s regulations, “an accurate quantitative statement (e.g., 200 mg of sodium) that does not ‘characterize’ the nutrient level may be used to describe any amount of a nutrient present,” and went on to use the example of “0 grams Trans Fat” as a permitted factual statement that did not require a reference statement. RJN Ex. J at pp. 25-26 (citation omitted). The reasoning in this brief addresses “0 grams Trans Fat” at length as an example of a permissible statement of amount, and fully supports Frito-Lay’s reading of the regulations. See id. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 35 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 based on specific factual circumstances and a proposed rule that was abandoned.” Id. It held that “[t]o insist that [Frito-Lay] should have been complying with a regulation that was not explicitly clarified . . . would buck due process and Ninth Circuit precedent.” Id. The same is true here. Indeed, the Supreme Court of the United States has specifically cautioned against the “unfair surprise” caused by the imposition of retroactive effect of a drastic change to long-standing interpretations implemented by an agency. See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2167 (2012) (to “impose potentially massive liability . . . for conduct that occurred well before that interpretation was announced . . . would seriously undermine the principle that agencies should provide regulated parties fair warning of the conduct a regulation prohibits or requires” (quotation marks omitted)); FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317-18 (2012) (explaining that “[a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required” and that “regulated parties should know what is required of them so they may act accordingly”). These principles control here. Frito-Lay relied on FDA guidance expressly stating that “0 grams Trans Fat” claims are permissible amount claims, Dalheim Depo. 76:18-77:20; 84:14-85:4, 107:8-15, 111:17-23; it nonetheless labeled conservatively and used a reference statement for saturated fat whenever a product was not low in saturated fat, id. at 122:9-12, 123:19-22, 124:1-11; it informed the FDA of its position, id. at 61:17-23, 62:4-14; it never received a warning letter despite using the claim on-and-off for 10 years, id. at 50:9-14, 54:13-21; and the FDA, as recently as 2013 (after this suit was filed), reiterated the bedrock principle that a purely factual statement of amount can appear on the front of the pack without a reference statement.23 On these facts, concluding that Frito-Lay “misapplied” the 23 See RJN, Ex. H (FDA Guidance for Industry: A Food Labeling Guide at N.21 (Jan. 2013)) (“A manufacturer may make a statement about a nutrient for which there is no established daily value as long as the claim specifies only the amount of the nutrient per serving and does not implicitly characterize the level of the nutrient in the product. Such a claim might be ‘x grams of omega-3 fatty acids.’ Such claims must be outside the Nutrition Facts label. 21 CFR 101.13(i)(3)”); RJN, Ex. I (FDA, Label Claims for Conventional Foods and Dietary Supplements (Dec. 2013)) (“Nutrient content claims describe the level of a nutrient in the product, using terms such as free, high, and low, or they compare the level of a nutrient in a food to that of another food, using terms such as more, reduced, and lite. An accurate quantitative statement (e.g., 200 mg of sodium) that does not otherwise ‘characterize’ the nutrient level may be used to describe the amount of a nutrient present. Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 36 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 DEFENDANT FRITO-LAY NORTH AMERICA, INC’S NOTICE OF MOTION AND AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586 regulation when Frito-Lay followed the FDA’s words to the letter, see RJN, Exs. B & G, and took a conservative approach to trans fat labeling, would pointedly “buck due process.” Wilson, 961 F. Supp. 2d at 1147; United States v. AMC Entm’t, Inc., 549 F.3d 760, 770 (9th Cir. 2008). As the Court held, the law does not allow the imposition of retroactive punishment in these circumstances. V. CONCLUSION For the reasons stated above, this Court should GRANT Defendant Frito-Lay North America, Inc.’s motion for summary judgment with respect to all of Plaintiffs’ claims. Dated: February 24, 2017 Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP By: /s/ Andrew S. Tulumello Andrew S. Tulumello Geoffrey M. Sigler Jason R. Meltzer 1050 Connecticut Avenue, NW Washington, DC 20036 Telephone: 202.955.8500 Facsimile: 202.467.0539 Attorneys for Defendant Frito-Lay North America, Inc. However, a statement such as ‘only 200 mg of sodium’ characterizes the level of sodium by implying that it is low.”). Case 3:12-cv-01586-JST Document 163 Filed 02/24/17 Page 37 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MARKUS WILSON and DOUG CAMPEN, individually and on behalf of all others similarly situated, Plaintiffs, v. FRITO-LAY NORTH AMERICA, INC. Defendant. Case No. 12-cv-01586-JST [PROPOSED] ORDER GRANTING DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S AMENDED MOTION FOR SUMMARY JUDGMENT Case 3:12-cv-01586-JST Document 163-1 Filed 02/24/17 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANT FRITO-LAY NORTH AMERICA, INC.’S AMENDED MOTION FOR SUMMARY JUDGMENT CASE NO. 12-CV-01586-JST ORDER Defendant moves for summary judgment on all of Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 56. After reviewing the parties’ briefs, the authorities cited therein, and the admis- sible evidence submitted by the parties, and for the reasons described in the accompanying Memoran- dum Opinion, the Court agrees that there is no genuine dispute of material fact with respect to whether the individual Plaintiffs can satisfy the elements of their claims. They cannot. Accordingly, the Court GRANTS Defendant’s Amended Motion for Summary Judgment, and directs the Clerk of the Court to enter judgment in Defendant’s favor. IT IS SO ORDERED. Dated: _____________, 2017 _______________________ The Honorable Jon S. Tigar United States District Court Judge Case 3:12-cv-01586-JST Document 163-1 Filed 02/24/17 Page 2 of 2