Sensible Foods, LLC v. World Gourmet, Inc. et al

Filing 43

Order by Hon. Samuel Conti granting in part and denying in part 30 Motion to Dismiss.(sclc2, COURT STAFF) (Filed on 2/21/2012)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 10 For the Northern District of California United States District Court 9 11 12 13 14 SENSIBLE FOODS, LLC, ) ) Plaintiff, ) ) v. ) ) WORLD GOURMET, INC.; HAIN GOURMET, ) INC.; HAIN CELESTIAL GROUP, INC.; ) WORLD GOURMET MARKETING, LLC; AND ) SENSIBLE SNACKS, INC., ) ) Defendants. ) ) I. 15 Case No. 11-2819 SC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT INTRODUCTION Plaintiff Sensible Foods, LLC ("Plaintiff") brings this action 16 against Defendants World Gourmet, Inc. ("World Gourmet"), Hain 17 Gourmet, Inc. ("Hain Gourmet"), Hain Celestial Group, Inc., ("Hain 18 Celestial"), World Gourmet Marketing, LLC ("WGM"), and Sensible 19 Snacks, Inc. ("Sensible Snacks") (collectively, "Defendants"). 20 No. 28 ("FAC"). 21 Dismiss Plaintiff's First Amended Complaint pursuant to Rule 22 12(b)(6) of the Federal Rules of Civil Procedure. 23 ("Mot."). 24 claims. 25 37 ("Reply"). 26 PART and DENIES IN PART Defendants' Motion. 27 /// 28 /// ECF Now before the Court is Defendants' Motion to ECF No. 30 Defendants seeks to dismiss five of the FAC's twelve Id. The Motion is fully briefed. ECF Nos. 36 ("Opp'n"), For the reasons set forth below, the Court GRANTS IN 1 II. BACKGROUND As always when considering a Rule 12(b)(6) motion, the Court 2 3 takes all the well-pleaded facts of the operative complaint as 4 true. 5 previous Order partially granting Defendants' motion to dismiss 6 Plaintiff's original complaint. 7 brief, this case is about a trademark dispute between competitors 8 in the healthy snack food business. 9 use or have sought to use trademarks that prominently feature the The Court has already summarized this case's history in a See ECF No. 26 ("Order"). In Plaintiff and Defendants both United States District Court For the Northern District of California 10 word "sensible." 11 parties' ongoing trademark dispute, Defendant Hain Celestial 12 contemplated buying Plaintiff, but the sale never materialized. 13 the course of sale negotiations, the parties signed a 14 Confidentiality Agreement. 15 proceedings before the Trademark Trial and Appeal Board ("TTAB"), 16 Defendants improperly disclosed certain confidential information in 17 violation of the Agreement. 18 misuse of trade names and marks similar to Plaintiff's. 19 The procedural history of this case is as follows. 20 initially brought suit before this Court on sixteen claims. ECF 21 No. 1 ("Compl."). ECF 22 No. 14. 23 Court dismissed with prejudice.1 24 Plaintiff's claims without prejudice.2 25 1 26 27 28 Some time ago, in apparent response to the In Plaintiff now alleges that during Plaintiff also alleges continuing Plaintiff Defendants moved to dismiss all sixteen. Plaintiff voluntarily withdrew four claims, which the The Court also dismissed six of Finally, the Court left six The Court dismissed with prejudice claims for: trademark infringement under California law; cyberpiracy under both the federal Lanham Act and California law; and unjust enrichment. Order at 6. 2 The Court dismissed without prejudice claims for: breach of contract; breach of implied contract; breach of implied covenant of 2 1 of Plaintiff's claims undisturbed.3 Plaintiff timely filed a First Amended Complaint.4 2 Plaintiff 3 now asserts claims for: (1) breach of implied contract, against 4 Hain Celestial; (2) breach of contract -- specifically, the 5 Confidentiality Agreement -- against Hain Celestial; (3) breach of 6 implied covenant of good faith and fair dealing, against Hain 7 Celestial; (4) contributory infringement; (5) unfair competition 8 under California Business and Professions Code section 17200 et 9 seq.; (6) deceptive trade practices under California Business and United States District Court For the Northern District of California 10 Professions Code section 17500 et seq.; (7) false advertising under 11 California Business and Professions Code section 17500 et seq.; (8) 12 trademark infringement under the federal Lanham Act, 15 U.S.C. § 13 1051 et seq.5; (9) reverse confusion under the Lanham Act, § 1114 14 et seq.; (10) cancellation of federal trademark registration under 15 the Lanham Act, §§ 1064 and 1119; (11) false advertising, 16 misrepresentation, and unfair competition under the Lanham Act, § 17 1125(a) et seq.; and (12) common law trademark infringement. 18 /// 19 20 21 good faith and fair dealing; contributory trademark infringement; and false advertising under both California law and the federal Lanham Act. Order at 19-20. 3 22 23 24 25 26 27 28 The Court left undisturbed claims for: unfair competition and deceptive trade practices under California law; trademark infringement, reverse confusion, and cancellation of trademark registration under the Lanham Act; and common law trademark infringement. Order at 20. 4 Plaintiff attached the Confidentiality Agreement to the First Amended Complaint. ECF No. 28 Ex. CA ("CA"). The Court therefore may properly consider the contents of the Confidentiality Agreement while deciding this motion. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). 5 Further references to the Lanham Act are to section numbers within Title 15 of the United States Code. 3 1 Of these twelve claims, Defendants challenge five: claim 1 2 (breach of implied contract by Hain Celestial); claim 2 (breach of 3 the Confidentiality Agreement by Hain Celestial); claim 3 (breach 4 of implied covenant of good faith and fair dealing by Hain 5 Celestial); claim 7 (false advertising under California law); and 6 claim 11 (false advertising, misrepresentation, and unfair 7 competition under the Lanham Act). 8 9 United States District Court For the Northern District of California 10 III. LEGAL STANDARD A motion to dismiss under Federal Rule of Civil Procedure 11 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. 12 Block, 250 F.3d 729, 732 (9th Cir. 2001). 13 on the lack of a cognizable legal theory or the absence of 14 sufficient facts alleged under a cognizable legal theory." 15 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 16 1988). 17 should assume their veracity and then determine whether they 18 plausibly give rise to an entitlement to relief." 19 Iqbal, 129 S. Ct. 1937, 1950 (2009). 20 court must accept as true all of the allegations contained in a 21 complaint is inapplicable to legal conclusions. 22 recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice." 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 25 in a complaint must be both "sufficiently detailed to give fair 26 notice to the opposing party of the nature of the claim so that the 27 party may effectively defend against it" and "sufficiently 28 plausible" such that "it is not unfair to require the opposing "Dismissal can be based "When there are well-pleaded factual allegations, a court 4 Ashcroft v. However, "the tenet that a Threadbare Id. (citing Bell Atl. The allegations made 1 party to be subjected to the expense of discovery." Starr v. Baca, 2 633 F.3d 1191, 1204 (9th Cir. 2011). 3 plead sufficient facts, leave to amend should be given freely, but 4 "a district court may dismiss without leave where a plaintiff's 5 proposed amendments would fail to cure the pleading deficiencies 6 and amendment would be futile." 7 Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). When a complaint fails to Cervantes v. Countrywide Home 8 9 IV. DISCUSSION United States District Court For the Northern District of California 10 A. Breach of Implied Contract by Hain Celestial (Claim 1) 11 To state a claim for breach of contract, a plaintiff must 12 allege (1) that a contract existed between plaintiff and defendant, 13 (2) that plaintiff has substantially performed or been excused from 14 performance, (3) that defendant breached, and (4) that plaintiff 15 suffered resultant damages. 16 Appel, 74 Cal. App. 4th 299, 307 (Cal. Ct. App. 1999) (citing 17 Otworth v. S. Pac. Transp. Co., 166 Cal. App. 3d 452, 459 (Cal. Ct. 18 App. 1985)). 19 the same elements as does a cause of action for breach of contract, 20 except that the promise is not expressed in words but is implied 21 from the promisor's conduct." 22 Inc., 161 Cal. App. 4th 172, 182 (Cal. Ct. App. 2008). See, e.g., Harris v. Rudin, Richman & "A cause of action for breach of implied contract has Yari v. Producers Guild of Am., 23 The Court previously dismissed Plaintiff's breach of implied 24 contract claim because Plaintiff failed to allege which defendant 25 was a party to the implied contract, what the terms of the contract 26 were, or how it had been breached. 27 has substantially revised this claim. 28 the other party to the implied contract was Hain Celestial. 5 See Order at 13-14. Plaintiff Plaintiff now alleges that FAC ¶ 1 191. 2 obligations on Hain Celestial: first, to stop using the marks 3 "sensible snack" and "sensible snacks" (together, "the Sensible 4 Snack(s) mark"), and, second, to "enter purchase discussions for 5 the Plaintiff . . . ." 6 Celestial continued to use the Sensible Snack(s) mark, 7 notwithstanding the implied contract. Id. Plaintiff further alleges that Hain Id. ¶ 195. Defendants move to dismiss on three grounds. 8 9 Plaintiff alleges that the implied contract imposed two First, they claim that the Confidentiality Agreement precludes Plaintiff from United States District Court For the Northern District of California 10 asserting a claim for breach of implied contract because it 11 contained a merger clause that "expressly superseded all prior 12 agreements 'with respect to the subject matter thereof.'" 13 6 (quoting FAC Ex. 1 ("CA") at 3). 14 First Amended Complaint to admit that Hain Celestial entered into 15 the allegedly promised purchase discussions, and therefore to 16 negate Plaintiff's claim for breach of a promise to do so. 17 7. 18 inadequately alleges the existence of consideration to support Hain 19 Celestial's purported promise to stop using the Sensible Snack(s) 20 mark. Mot. at Second, Defendants read the Id. at Third, they contend that the First Amended Complaint See id. at 7-10. Plaintiff responds that Hain Celestial's alleged promise to 21 22 discontinue use of the Sensible Snack(s) mark lies outside the 23 scope of the Confidentiality Agreement's merger clause. 24 8. 25 clause against Hain Celestial because, according to Plaintiff's 26 brief, Hain Celestial's attorney drafted the Confidentiality 27 Agreement. 28 stay the TTAB proceedings, alleged in the First Amended Complaint Opp'n at It urges the Court to interpret any ambiguity in the merger Id. at 9. Lastly, Plaintiff argues that its promise to 6 1 at paragraph 191, served as consideration for Hain Celestial's 2 promises. 3 Id. at 10-12. The Court declines to dismiss this claim. Taking the 4 allegations of the First Amended Complaint as true, Plaintiff has 5 alleged that it exchanged an agreement to stay the TTAB proceedings 6 for two promises from Hain Celestial: a promise to discontinue use 7 of the Sensible Snack(s) mark and a promise to discuss purchasing 8 Plaintiff. 9 effectively admits that Hain Celestial held the allegedly promised As Defendants note, the First Amended Complaint United States District Court For the Northern District of California 10 purchase discussions with Plaintiff. But holding the purchase 11 discussions would not, by itself, give Plaintiff the benefit of its 12 alleged bargain. 13 of Hain Celestial's alleged promise to stop using the Sensible 14 Snack(s) mark. 15 the Court must take this allegation as true. Plaintiff would also have to receive the benefit Plaintiff alleges that it did not, FAC ¶ 195, and 16 Defendants' argument that the Confidentiality Agreement's 17 merger clause precludes Plaintiff's breach of implied contract 18 claim is unavailing. 19 Confidentiality Agreement specify what "subject matter," or 20 matters, the parties had in mind when they wrote the phrase "with 21 respect to the subject matter thereof" in the Confidentiality 22 Agreement's merger clause. 23 the Court to make factual findings based on evidence extrinsic to 24 the Confidentiality Agreement as well as to the pleadings. 25 Court may not go so far in the context of a Rule 12(b)(6) motion. 26 Neither the First Amended Complaint nor the Answering that question would require The Defendants contend that the First Amended Complaint 27 contradicts Plaintiff's argument that the Confidentiality Agreement 28 related to a different "subject matter" than the alleged implied 7 1 contract. Reply at 3. The Court sees no such contradiction. The 2 pleading describes with reasonable clarity a straightforward 3 exchange of promises: Plaintiff's promise to stay the TTAB 4 proceedings for Hain Celestial's promises to discuss purchasing 5 Plaintiff and to stop using the Sensible Snack(s) mark. 6 Confidentiality Agreement simply does not address Hain Celestial's 7 second alleged promise. 8 argument that the Confidentiality Agreement and the alleged implied 9 contract concern two different subject matters. The That is not inconsistent with Plaintiff's Hain Celestial United States District Court For the Northern District of California 10 allegedly made two promises, but it does not necessarily follow 11 that both promises must have been part of the subject matter of the 12 Confidentiality Agreement: 13 pertain to both promises while the Confidentiality Agreement 14 pertained to only one. 15 the express terms of the Confidentiality Agreement and the 16 pleadings. The Court cannot determine otherwise from Accordingly, the Court DENIES Defendants' motion to dismiss 17 18 The alleged implied contract could claim 1.6 B. 19 Breach of Confidentiality Agreement by Hain Celestial (Claim 2) 20 Plaintiff intends to assert this claim against Hain Celestial 21 22 for violation of the Confidentiality Agreement. FAC ¶¶ 200-21. 23 its briefing, however, Plaintiff admits that the First Amended 24 In Complaint contains an "inadvertent drafting mistake" and seeks 25 26 27 28 6 Because the Court has not relied on the rule of construction construing ambiguous documents against their drafters, see Opp'n at 9, the Court does not reach Defendant's argument that application of the rule here would be improper, Reply at 4. 8 1 leave to amend. 2 this claim is whether to dismiss it with prejudice. 3 Opp'n at 13-14. Therefore, the only question for The Court rules that dismissal with prejudice is warranted 4 because the amendments proposed by Plaintiff would be futile. 5 Cervantes, 656 F.3d at 1041. 6 brief to indicate what it intended to write in the First Amended 7 Complaint. 8 alleges that Hain Celestial revealed Plaintiff's confidential 9 information -- which Plaintiff identifies as its "profitability" -- Id. at 13. See Plaintiff has used its Opposition The First Amended Complaint currently United States District Court For the Northern District of California 10 in a document filed as part of the TTAB proceedings, the TTAB 11 Answer. 12 a different document filed in that same proceeding, the TTAB 13 Response. 14 and the Court takes judicial notice of them for the purpose of 15 determining whether the proposed amendment would be futile. 16 ECF Nos. 32 Ex. 1 ("TTAB Answer"), 39 Ex. 1 ("TTAB Response"). 17 Defendants point out, neither document says anything about 18 Plaintiff's profitability. 19 does not adequately plead a breach, and neither would Plaintiff's 20 proposed amendment. 21 its claim in the Opposition brief amounted to Plaintiff's third 22 bite at the apple, that the Court's previous Order already gave 23 Plaintiff guidance concerning this claim, and that the Court has 24 already put Plaintiff on warning that failure to attend to 25 important details would not be tolerated, see Order at 1 n.1, the 26 Court sees no reason to give Plaintiff a fourth bite. 27 28 Id. at 13. Plaintiff would amend the pleading to indicate Id. at 13. Both documents are part of the public record See As Therefore, Plaintiff's current pleading Considering that Plaintiff's restatement of The Court GRANTS Defendants' motion to dismiss claim 2 and DISMISSES that claim WITH PREJUDICE. 9 C. 1 Breach of Implied Covenant of Good Faith and Fair Dealing by Hain Celestial (Claim 3) 2 The implied covenant of good faith and fair dealing is 3 4 "implied by law in every contract." Guz, 24 Cal. 4th at 350. 5 Court previously dismissed Plaintiff's implied covenant claim 6 because Plaintiff failed to identify on which contract it based the 7 claim. 8 existence of three contracts with Hain Celestial. 9 Plaintiff identifies these as: (1) "an implied agreement that [Hain The Plaintiff has amended this claim and now alleges the FAC § 225. United States District Court For the Northern District of California 10 Celestial] would discontinue the use of the phrase, 'sensible 11 snack(s),' to eliminate the resulting public confusion and 12 Plaintiff would agree to stay the TTAB Proceedings;" (2) the 13 written Confidentiality Agreement; and (3) "an oral agreement to 14 facilitate the purchase of Plaintiff by [Hain Celestial] . . . ." 15 Id. 16 implied covenants arising from these promises by allegedly 17 continuing to use the Sensible Snack(s) mark, revealing Plaintiff's 18 confidential information, and refusing to buy Plaintiff. 19 Plaintiff claims, in essence, that Hain Celestial breached the None of these provide a proper basis for a breach of implied 20 covenant claim. To the extent that Plaintiff bases this claim on 21 violations of the implied covenant arising from the first and 22 second agreements, it must fail because these allegations merely 23 reallege contractual breaches as breaches of the implied covenant. 24 Such claims are superfluous and properly dismissed. 25 4th at 352-53. 26 Hain Celestial's alleged refusal to buy Plaintiff, the claim must 27 fail for two reasons. 28 substantive duties or limits on the contracting parties beyond Guz, 24 Cal. To the extent that Plaintiff bases this claim on First, the implied covenant cannot "impose 10 1 those incorporated in the specific terms of their agreement." Id. 2 at 349-50. 3 enter into purchase discussions, not an agreement to buy Plaintiff. 4 And, as discussed in Section IV.A supra, the First Amended 5 Complaint indicates that Hain Celestial did in fact enter into the 6 contemplated purchase discussion. 7 for breach of the implied covenant on allegations that Plaintiff 8 actually received the benefit of its bargain. Plaintiff alleges the existence of an agreement to Plaintiff cannot base a claim The only way this agreement could support a breach of implied 9 United States District Court For the Northern District of California 10 covenant claim is if it was an agreement for Hain Celestial to 11 later agree to buy Plaintiff -- that is, an "agreement to agree," 12 as distinct from an agreement to negotiate. 13 Robbins U.S.A., 96 Cal. App. 4th 1251, 1257-58 n.10 (Cal. Ct. App. 14 2002) (explaining distinction). 15 existence of an agreement to negotiate, an agreement which, taking 16 the allegations of the First Amended Complaint as true, Hain 17 Celestial substantially performed. 18 that its agreement with Hain Celestial amounted to an agreement to 19 later agree to purchase Plaintiff. 20 alia, that Hain Celestial "reneged on its promise to pay a fair 21 price"). 22 invalid as a matter of law. 23 n.10. 24 discussions, Plaintiff received the benefit of that bargain. 25 Either way, the implied covenant claim fails as a matter of law. 26 Accordingly, the Court GRANTS Defendants' motion to dismiss See Copeland v. Baskin Plaintiff essentially alleges the Plaintiff also, however, hints See FAC ¶ 236 (alleging, inter To the extent that this is an agreement to agree, it is Copeland, 96 Cal. App. 4th at 1257-58 To the extent it is merely an agreement to enter purchase 27 claim 3 and DISMISSES that claim WITH PREJUDICE. 28 /// 11 D. 1 False Advertising Under California Law (Claim 7) and 2 False Advertising, Misrepresentation, and Unfair 3 Competition under the Lanham Act (Claim 11) As in its previous Order, the Court addresses Plaintiff's 4 5 state and federal false advertising claims together. Previously, 6 the Court dismissed Plaintiff's false advertising claims because 7 they identified no false statements of fact. 8 Plaintiff has extensively revised these claims. 9 (state law claim), ¶¶ 328-37 (Lanham Act claim, incorporating Order at 15-16. FAC ¶¶ 267-301 United States District Court For the Northern District of California 10 allegations in state law claim). Plaintiff now alleges that 11 Defendants have made false statements by: (1) using the word 12 "veggie" in the name of its Veggie Straws, Veggie Chips, and Veggie 13 Crisps products when in fact those products are "primarily potato 14 product[s]," see id. ¶¶ 268, 282; (2) using the word "apple" in the 15 name of its Apple Straws product when in fact that product is a 16 "primarily potato product," see id. ¶¶ 268, 283; (3) making various 17 health-related claims -- for example, that Defendants' products are 18 "the next generation in unique and better-for-you snacks" -- that 19 mislead the public into thinking Defendants' products are healthy, 20 see id. ¶¶ 278, 291; 21 trademark "Sensible Portions" partially in front of a heart-shaped 22 design, in a manner that misleads the public into thinking 23 Defendants' products are healthy, see Opp'n at 17 (citing FAC ¶ 24 101). and (4) on Defendants' logo, positioning the 25 While a court deciding a Rule 12(b)(6) motion must take a 26 complaint's well-pleaded factual allegations as true, it also must 27 determine, relying on its "judicial experience and common sense," 28 whether those allegations amount to a "plausible" claim. 12 Iqbal, 1 129 S. Ct. at 1950. 2 plausibility requirement. 3 strains the boundaries of the English language -- to say that 4 products made primarily from potatoes are not made of "veggies." 5 Similarly, Plaintiff complains of the word "apple" in the name of 6 the Apple Straws product, all the while alleging that the product 7 contains pureed apples. 8 cannot credibly claim that the words "veggie" and "apple," when 9 used to describe products containing veggies and apples, are United States District Court For the Northern District of California 10 Here, Plaintiff has not met Iqbal's "literal falsit[ies]." It is simply implausible -- indeed, it FAC ¶ 271. In both cases, Plaintiff Id. ¶¶ 282, 283. Plaintiff's claim that Defendants have made actionably false 11 12 health claims fares no better. A district court may determine as a 13 matter of law whether an advertising statement is mere puffery or a 14 factual, and hence actionable, statement. 15 Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir. 16 1999). 17 of being reasonably interpreted as a statement of objective fact."7 18 Id. 19 Opp'n at 14-15 (collecting statements). 20 examples, the statement that Defendants' products contain the 21 "right" ingredients, FAC § 277, is not capable of being proved 22 false. 23 claim that its products are "guilt free," id. ¶ 278, as a statement 24 of objective fact. Coastal Abstract Serv., Actionable statements are "capable of being proved false or Here, each statement identified by Plaintiff is puffery. See To take two representative Likewise, no consumer could reasonably take Defendants' 25 26 27 28 7 A corollary of this rule is that Plaintiff's statements on these points -- for example, its statement that "[t]he relevant purchasing public thinks that [Defendants'] Products are healthy," FAC ¶ 291 -- are not factual allegations but rather conclusions of law which are not entitled to the presumption of truth. Cf. Iqbal, 129 S. Ct. at 1950. 13 Plaintiff's last argument, that the Sensible Portions logo 1 2 itself forms the basis of a false advertising claim because it 3 includes a heart symbol, lacks merit. 4 statement "capable of being proved false or of being reasonably 5 interpreted as a statement of objective fact." 6 Serv., 173 F.3d at 731. 7 discussion of various parts of Food and Drug Administration 8 regulations promulgated in Title 21 of the Code of Federal 9 Regulations. A heart symbol is not a Coastal Abstract Plaintiff devotes considerable time to a Opp'n at 14-18. This discussion is marginally United States District Court For the Northern District of California 10 relevant at best because Defendants do not rely on the FDA 11 regulations and Plaintiff has not brought a claim under them. 12 Plaintiff has adequately pled facts that allow the Court to 13 ascertain the viability of Plaintiff's false advertising claims, 14 and these claims fail as a matter of law. 15 GRANTS Defendants' motion to dismiss claims 7 and 11 and DISMISSES 16 those claims WITH PREJUDICE. Accordingly, the Court 17 18 V. CONCLUSION 19 For the foregoing reasons, the Court GRANTS IN PART AND DENIES 20 IN PART the motion by Defendants World Gourmet, Inc., Hain Gourmet, 21 Inc., Hain Celestial Group, Inc., World Gourmet Marketing, LLC, and 22 Sensible Snacks, Inc. to dismiss Plaintiff Sensible Foods, LLC's 23 First Amended Complaint, and rules as follows: 24 • Plaintiff's second claim (breach of contract), third claim 25 (breach of implied covenant of good faith and fair dealing), 26 seventh claim (false advertising under California Business and 27 Professions Code section 17500), and eleventh claim (false 28 advertising, misrepresentation, and unfair competition under 14 1 the Lanham Act, 15 U.S.C. § 1125(a) et seq.) are DISMISSED 2 WITH PREJUDICE. 3 • Plaintiff's first claim (breach of implied contract) remains 4 undisturbed, as do the other claims asserted in Plaintiff's 5 First Amended Complaint. 6 7 The parties are hereby ordered to appear before this Court for 8 a case management conference on Friday, March 16, 2012, at 10:00 9 a.m. in Courtroom One, United States Courthouse, 450 Golden Gate United States District Court For the Northern District of California 10 Avenue, San Francisco, California. The parties are to file one 11 Joint Case Management Conference Statement seven days prior to the 12 conference. 13 14 IT IS SO ORDERED. 15 16 17 Dated: February 21, 2012 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 15

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