Smith v. Cabot Creamery Cooperative, Inc. et al
Filing
38
Order by Hon. Samuel Conti granting 22 Motion to Dismiss with prejudice.(sclc2, COURT STAFF) (Filed on 2/25/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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) Case No. 12-4591 SC
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TIMOTHY SMITH, ROHIT FEDANE,
) ORDER GRANTING
and MISTY JOHNSON, individually ) MOTION TO DISMISS
and on behalf of all others
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similarly situated,
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Plaintiffs,
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v.
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CABOT CREAMERY COOPERATIVE, INC. )
and AGRI-MARK, INC.,
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Defendants.
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I.
INTRODUCTION
Plaintiffs Timothy Smith, Rohit Fedane, and Misty Johnson
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("Plaintiffs") filed a putative class action lawsuit against
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Defendants Cabot Creamery Cooperative, Inc. ("Cabot") and its
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parent Agri-Mark, Inc. ("Defendants"), asserting a variety of
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statutory and common law claims.
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claims are all based on the core allegation that Defendants' yogurt
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product, which Plaintiffs purchased, was misbranded under federal
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food regulations.
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Defendants' motion to dismiss Plaintiffs' FAC.
See id. ¶¶ 1-6.
ECF No. 16 ("FAC").
Plaintiffs'
Now before the Court is
ECF No. 22 ("MTD").
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The motion is fully briefed,
ECF Nos. 27 ("Opp'n"), 32 ("Reply"),
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and suitable for decision without oral argument, Civ. L.R. 7-1(b).
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For the reasons discussed below, Defendants' motion is GRANTED, and
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Plaintiffs' claims are DISMISSED WITH PREJUDICE.
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II.
BACKGROUND
Yogurt is a dairy product made by combining milk with certain
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food-grade bacteria.
FAC ¶¶ 16-18.
The bacteria ferment the
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milk's lactose to produce lactic acid.
Id.
This fermentation
United States District Court
For the Northern District of California
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process causes the milk to coagulate and thicken into a liquid-
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solid mixture.
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solid portions of the yogurt manufacturing process, while Greek
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yogurt keeps only the solid.
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thicker, higher in protein, and lower in sugar than regular yogurt.
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Id. ¶ 20.
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Id. ¶ 5.
Id.
"Regular" yogurt maintains both the liquid and
Id. ¶¶ 19-20.
As a result it is
It also tends to be more expensive than regular yogurt.
Cabot markets "Cabot Greek," the product at issue in the
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instant matter, as "Greek-Style YOGURT."
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contains whey protein concentrate ("WPC") and milk protein
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concentrate ("MPC").
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protein powders that are essentially byproducts of cheese
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manufacturing.
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whey protein, it is WPC.
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proteins in the same proportion as they appear in cow's milk, it is
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MPC.
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material" to thicken Cabot Greek and increase its protein content,
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instead of making Greek yogurt the "authentic" way, which involves
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filtering the liquid whey byproduct during the manufacturing
Id.
Id. ¶ 26.
Id. ¶ 28.
Id. ¶ 22.
Cabot Greek
WPC and MPC are concentrated
If the protein powder contains mostly
Id. ¶ 29.
If it contains whey and casein
Plaintiffs allege that Cabot uses WPC and MPC as "filler
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process and keeping only the protein-rich solid portion.
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2, 20-21, 27-29, 32.
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Id. ¶¶ 1-
Plaintiffs are all consumers who purchased Cabot Greek
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believing it to be yogurt.
FAC ¶ 6.
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problem with Cabot Greek's manufacturing process arises from the
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Food and Drug Administration's ("FDA") strict guidelines, called
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Standards of Identity ("SOI(s)"), which define what may legally be
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called "yogurt."
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is not "yogurt" under FDA regulations and the Food, Drug, and
Id. ¶¶ 37-40.
According to Plaintiffs, the
Plaintiffs allege that Cabot Greek
United States District Court
For the Northern District of California
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Cosmetic Act ("FDCA"), 21 U.S.C. § 341, because it contains MPC and
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WPC, which Plaintiffs claims the FDA forbids as ingredients in
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yogurt.
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branding misled them into believing that they were purchasing
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genuine Greek yogurt and thereby paying a premium for it, which
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they would not have done if it were not so branded.
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6, 36.
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Id. ¶¶ 35-36, 43-44.
Plaintiffs allege that Cabot's
See id. ¶¶ 5-
Per these allegations, Plaintiffs bring the following causes
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of action against Cabot: (1) breach of express warranty; (2) breach
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of the implied warranty of merchantability; (3) breach of the
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implied warranty of fitness for a particular purpose; (4) unjust
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enrichment; (5) violation of California's Consumer Legal Remedies
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Act ("CLRA"), Cal. Civ. Code sections 1751 et seq.; (6) violation
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of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof.
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Code sections 17200 et seq.; (7) violation of California's False
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Advertising Law ("FAL"), Cal. Bus. & Prof. Code sections 17500 et
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seq.; (8) negligent misrepresentation; and (9) fraud.
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Defendants now move to dismiss Plaintiffs' FAC, arguing
primarily that the FDA permits the addition of MPC and WPC to
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yogurt, thereby rendering all of Plaintiffs' claims baseless
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because they are predicated on the FDA's purported prohibition of
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those ingredients.
MTD at 6-15.1
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III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure
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Block, 250 F.3d 729, 732 (9th Cir. 2001).
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on the lack of a cognizable legal theory or the absence of
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United States District Court
12(b)(6) "tests the legal sufficiency of a claim."
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For the Northern District of California
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Navarro v.
sufficient facts alleged under a cognizable legal theory."
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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
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1988).
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should assume their veracity and then determine whether they
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plausibly give rise to an entitlement to relief."
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Iqbal, 556 U.S. 662, 679 (2009).
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must accept as true all of the allegations contained in a complaint
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is inapplicable to legal conclusions.
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elements of a cause of action, supported by mere conclusory
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statements, do not suffice."
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Twombly, 550 U.S. 544, 555 (2007)).
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"limited to the complaint, materials incorporated into the
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complaint by reference, and matters of which the court may take
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judicial notice."
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(9th Cir. 2005).
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///
"Dismissal can be based
"When there are well-pleaded factual allegations, a court
Ashcroft v.
However, "the tenet that a court
Threadbare recitals of the
Id. (citing Bell Atl. Corp. v.
A court's review is generally
See Kourtis v. Cameron, 419 F.3d 989, 994 n.2
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Defendants assert a variety of other grounds for the FAC's
dismissal, MTD at 15-18, but since the Court resolves the instant
matter on Defendants' main argument, the Court need not and does
not address Defendants' remaining arguments.
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IV.
DISCUSSION
The parties' dispute is ultimately based on one predicate
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issue: whether FDA regulations forbid cultured dairy products
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containing WPC and MPC from being called "yogurt."
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they do.
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all of Plaintiffs' claims are premised on the FDA forbidding the
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addition of WPC and MPC to yogurt, all of Plaintiffs' claims fail.
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Defendants say they do not.
A.
Plaintiffs say
Defendants are right.
The Relevant FDA Regulations
The FDA promulgated its first SOIs for yogurt in 1981.
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United States District Court
For the Northern District of California
Since
C.F.R. §§ 131.200 (yogurt), 131.203 (lowfat yogurt), 131.206
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(nonfat yogurt).
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Fed. Reg. 9924; 47 Fed. Reg. 41519.
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The yogurt SOI specifies:
Yogurt is the food produced by culturing one
or more of the optional dairy ingredients
specified in paragraph (c) of this section
with a characterizing bacterial culture that
contains the lactic acid-producing bacteria,
Lactobacillus bulgaricus and Streptococcus
thermophilus. One or more of the other
optional ingredients specified in paragraphs
(b) and (d) of this section may also be
added. When one or more of the ingredients
specified
in
paragraph
(d)(1)
of
this
section are used, they shall be included in
the culturing process. All ingredients used
are safe and suitable.
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These SOIs became effective July 1, 1983.
21 C.F.R. § 131.200(a).
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The "optional dairy ingredients" that may be cultured per
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paragraph (c) of the yogurt SOI are "cream, milk, partially skimmed
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milk, or skim milk, used alone or in combination."
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131.200(c).
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D.
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optional ingredients," including (1) "[c]oncentrated skim milk,
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nonfat dry milk, buttermilk, whey, lactose, lactalbumins,
Id. §
Paragraph (b) permits the addition of Vitamins A and
Id. § 131.200(b).
Paragraph (d) permits the addition of "other
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lactoglobulins, or whey modified by partial or complete removal of
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lactose and/or minerals . . . ," as well as (2) nutritive
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carbohydrate sweeteners, (3) flavoring ingredients, (4) color
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additives, and (5) stabilizers.
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this list of other ingredients does not include MPC or WPC.
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id. § 131.200(d)(1)-5).
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(d)(1) of the SOI, and so despite being published that portion is
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not in effect.
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Fed. Reg. 41519-01 (Sept. 21, 1982) ("1982 Stay").
Id. § 131.200(d)(1)-(5).
Notably,
See
However, in 1982, the FDA stayed paragraph
Stay of Effective Date of Certain Provisions, 47
United States District Court
For the Northern District of California
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Plaintiffs allege that the SOI for yogurt, absent the stayed
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provision, "is an exclusive list of ingredients that may be added
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to yogurt," and that "if 'yogurt' contains any ingredient not on
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that list, as a matter of federal law it is not yogurt . . . ."
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FAC ¶ 43.
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not include WPC or MPC, those ingredients are prohibited.
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44.
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and is misbranded per FDA regulations and the FDCA.
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36, 43-44.
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claims.
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116-120, 123-28, 131-33.
Plaintiffs further claim that since the yogurt SOI does
Id. ¶
Therefore, Plaintiffs aver, Cabot Greek is not yogurt at all
See id. ¶¶ 35-
This allegation is the basis for all of Plaintiffs'
See id. ¶¶ 68-70, 76-83, 86-89, 92-94, 97-102, 109-113,
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Defendants' primary argument in moving to dismiss the FAC is
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that Plaintiffs' claims all fail because the FDA actually permits
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WPC and MPC as optional ingredients in yogurt.
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argument, Defendants point to several FDA statements, made
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consistently over the last thirty years, in which the agency has
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interpreted the effect of the stay and the remaining parts of the
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yogurt SOI.
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In support of this
MTD at 6-11.
In 1982, the FDA stated, "[The FDA] is staying the effective
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date of the provision[] of [§ 131.200(d)(1)] that restricts the
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kinds of safe and suitable milk-derived ingredients that may be
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used as optional ingredients to increase the nonfat solid contents
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of [yogurts] . . . ."
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this was the earliest date on which the FDA explained the effect of
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the 1982 Stay, which was not -- as Plaintiffs allege -- to render
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the remaining provisions of the yogurt SOI exclusive lists of
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ingredients, but rather to remove a restriction on what could be
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added to yogurt.
United States District Court
For the Northern District of California
Id.; see Reply at 2-3.
website, which included the following question and answer:
Q:
May whey protein concentrate (WPC)
and/or milk protein concentrate (MPC) be
used as ingredients in yogurt to increase
the nonfat solids content?
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A:
Yes. 21 C.F.R. 131.200(d), which would
have precluded WPC or MPC use, was one of
several
provisions
of
the
standard
of
identity for yogurt that were stayed in
1982, 47 F.R. 41519, September 21, 1982.
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NOTE: If WPC and MPC are used in Grade "A"
yogurt product, they must be Grade "A" and
come from an IMS Listed Source.
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Defendants note that
In 2004, the FDA published a Memorandum of Information on its
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1982 Stay at 41519.
ECF No. 33, ("RJN") Ex. A ("2004 Interpretation").2
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In 2009, the FDA proposed amendments to the yogurt SOI.
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Proposal to Revoke the Standards for Lowfat and Nonfat Yogurt and
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to Amend the Standard for Yogurt, 74 Fed. Reg. 2443-02 (Jan. 15,
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2009) ("2009 Proposal").
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it had stayed parts of the yogurt SOI that "restricted the type of
In the 2009 Proposal, the FDA noted that
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Defendants submitted a Request for Judicial Notice ("RJN"), ECF
No. 33, in support of their motion to dismiss. Plaintiffs do not
oppose the request and the documents contained in the RJN are
public records. The Court GRANTS Defendants' request and takes
judicial notice of the documents.
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milk-derived ingredients that may be used to increase the nonfat
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solids content of cultured milk and yogurts."
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1982 Stay at 41523).
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construction -- removal of a restriction rather than the narrowing
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of an exclusive list -- that the FDA offered in 1982.
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with 1982 Stay at 41519.
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competing priorities and limited resources, FDA has not held a
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public hearing to resolve these issues and the effective date for
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these provisions remains stayed. Therefore, these provisions were
United States District Court
For the Northern District of California
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never in effect."
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Id.
As Defendants note, this was the same
Compare id.
The FDA elaborated, "To date, due to
Thus, the FDA concluded:
[C]ultured milk and yogurts may deviate from
the relevant standards in the previously
mentioned respects. For example, although
the current standards do not permit the use
of certain ingredients such as preservatives
or a reconstituted dairy ingredient as a
basic ingredient, because of the stayed
provisions, FDA has not taken enforcement
action against the use of these ingredients
in yogurt, lowfat yogurt, or nonfat yogurt.
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Id. at 2444 (citing
Id.
Defendants claim that these express statements are controlling
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interpretations of the FDA's own regulations, thereby clarifying
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that WPC and MPC may lawfully be used as optional ingredients to
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increase the nonfat solid content of yogurt, as Cabot did.
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at 7-8, 10.
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cases: PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2575, reh'g denied,
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132 S. Ct. 55 (2011), and Bassiri v. Xerox Corp., 463 F.3d 927, 930
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(9th Cir. 2006).
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See MTD
To support this point, Defendants rely mainly on two
In PLIVA, the parties disputed whether and to what extent
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generic drug manufacturers could change their drugs' labels after
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FDA approval.
131 S. Ct. at 2575.
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The defendants argued that FDA
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regulations allowed them to change their drugs' labels without
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waiting for preapproval, which is ordinarily necessary when a drug
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company changes a label, but the FDA interpreted its regulations to
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bar changes without preapproval.
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this issue that "[t]he FDA's views are 'controlling unless plainly
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erroneous or inconsistent with the regulation[s] or there is any
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other reason to doubt that they reflect the FDA's fair and
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considered judgment.'"
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452, 461, 462, (1997)).
United States District Court
For the Northern District of California
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Id.
Id.
The Supreme Court held on
(quoting Auer v. Robbins, 519 U.S.
In Bassiri, the Ninth Circuit reviewed a district court's
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decision to give deference to several Department of Labor letters
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defining the term "normal compensation."
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district court had given those letters deference under Skidmore v.
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Swift & Co., 323 U.S. 134, 140 (1944), which sets the standard for
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courts' deference to agency interpretations of statutes.
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463 F.3d at 930.
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Department of Labor was interpreting regulations, not statutes, the
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district court should have applied the Supreme Court's rule from
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Auer (the same rule the Supreme Court applied in PLIVA, 132 S. Ct.
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at 2575), which is that "where an agency interprets its own
21
regulation, even if through an informal process, its interpretation
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of an ambiguous regulation is controlling under Auer unless
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'plainly erroneous or inconsistent with the regulation.'"
24
(quoting Auer, 519 U.S. at 461).
25
463 F.3d at 930.
The
Bassiri,
The Ninth Circuit held that because the
Id.
Plaintiffs do not grapple with these cases, but they attempt
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to dull the effect of the FDA's 2004 Interpretation by arguing that
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the source of the 2004 Interpretation -- a Q&A session at the 2004
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Regional Milk Seminar -- renders the 2004 Interpretation merely
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informal and, under Supreme Court precedent, "at most, informal
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statements of policy," which Plaintiffs claim would not be binding
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in the way a formal regulation would be.
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Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
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467 U.S. 837 (1984)).
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does not bar the Court from giving the FDA's clarifications
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deference, and agencies are not bound to limit their pronouncements
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to formal rulemaking, as the Supreme Court has made clear:
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"[B]ecause agencies normally address problems in a detailed manner
Opp'n at 12-13 (citing
This distinction is not relevant.
Chevron
United States District Court
For the Northern District of California
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and can speak through a variety of means, including regulations,
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preambles, interpretative statements, and responses to comments, we
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can expect that they will make their intentions clear if they
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intend for their regulations to be exclusive."
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v. Automated Med. Labs., 471 U.S. 707, 718 (1984).
15
further guidance: "Where an agency interprets its own regulation,
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even if through an informal process, its interpretation of an
17
ambiguous regulation is controlling under Auer unless 'plainly
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erroneous or inconsistent with the regulation.'"
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2575 (quoting Auer, 519 U.S. at 461).
20
Hillsborough County
PLIVA provides
132 S. Ct. at
Defendants correctly note that the "informal comments" from
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the meeting Plaintiffs mention were indeed formalized into a
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Memorandum of Information from the FDA, directed to "All Regional
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Food and Drug Directors."
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comments far more compelling than Plaintiffs would suggest.
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event, the FDA is permitted to clarify its regulations as it did in
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the 2004 Interpretation, and those clarifications are entitled to
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deference.
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guidance from the 2004 Interpretation indicates that the FDA
2004 Interpretation.
See Hillsborough, 471 U.S. at 718.
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This renders those
In any
Further, the FDA's
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understands its own guidelines to allow WPC and MPC as optional
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ingredients in yogurt.
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Further, per Auer, the FDA's statements in 2004 and 2009 show
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that it was interpreting its own ambiguous regulation regarding the
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yogurt SOI.
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completely unambiguous," Opp'n at 12, is plainly false given the
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posture of this case.
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such heated argument over the effects of the yogurt SOIs and the
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FDA's interpretation of them if the yogurt SOIs on their own were
Plaintiffs' contention that "the regulations are
The parties would likely not be engaged in
United States District Court
For the Northern District of California
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as easy to interpret as Plaintiffs claim.
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is ambiguous by definition because the FDA's stay of the "optional
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ingredients" provision could suggest either that "optional
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ingredients" are excluded entirely from the yogurt SOI, or
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potentially included by virtue of the stay.
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Moreover, the regulation
The FDA clarified in the 2004 Interpretation and the 2009
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Proposal that though it has not made a definitive ruling on the
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subject, it considers WPC and MPC acceptable optional ingredients
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in yogurt.
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statements from the FDA about its own regulations.
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therefore finds that MPC and WPC are permissible optional
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ingredients in yogurt under FDA regulations.
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all fail because they are premised on the argument that those
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ingredients are impermissible.
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GRANTED for these reasons.
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26
These interpretations are entitled to deference, being
B.
The Court
Plaintiffs' claims
Defendants' motion to dismiss is
Plaintiffs' Other Arguments
Plaintiffs provide four additional arguments for why the FDA
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regulations do not actually allow WPC or MPC in yogurt.
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arguments are all unconvincing on their own.
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These
First, Plaintiffs argue that the FDA has unambiguously stated
1
2
that WPC and MPC are forbidden in yogurt.
3
statements to which Plaintiffs refer actually concern the FDA's
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clarification that WPC and MPC are not allowed as basic ingredients
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in yogurt.
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Defendants' argument is that the FDA permits WPC and MPC as
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optional ingredients, which is how they are used in Cabot Greek.
8
The two categories of ingredients, basic and optional, are
9
factually and legally different and should not be conflated.3
United States District Court
The
This is irrelevant.
Second, Plaintiffs' argument that the 1982 Stay renders the
10
For the Northern District of California
See 2009 Proposal at 2452-53.
Opp'n at 10-13.
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yogurt SOI an "exclusive list" of acceptable ingredients fails
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because the FDA, as discussed in Section IV.A supra, has stated
13
otherwise, and its interpretation of its regulation is binding.
14
Further, Plaintiffs' authority here is inapposite.
15
on the following language from the Supreme Court's decision in
16
Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218,
17
232 (1943): "The announcements promulgating [the SOIs in question]
18
stated that they were so framed as to exclude substances not
19
mentioned in the definition."
20
actually undermines Plaintiffs' position.
21
that substances not mentioned in the yogurt SOIs were excluded from
Opp'n at 6.
Plaintiffs rely
But this language
The FDA never stated
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3
In support of their argument on this point, Plaintiffs also cite
FDA statements regarding "cheese food" products, in which the FDA
stated clearly that MPC cannot be added to "cheese foods" as an
optional ingredient. FAC ¶ 45. These statements are irrelevant to
the instant matter. Cheese foods and yogurt have different SOIs,
and the FDA's statements on one should not be taken to apply to the
other. Plaintiffs disagree, claiming that the FDA explained that
its findings on WPC and yogurt were "consistent with the agency's
recent tentative decision not to permit [MPC] as a basic ingredient
in standardized cheese," but that quotation concerned basic
ingredients, not optional ingredients, and as the Court has noted,
the two categories are not to be conflated. See Opp'n at 12
(citing 2009 Proposal at 2452-53).
12
1
yogurt.
As discussed in Section IV.A supra, it did the opposite.
2
Further, the SOIs in question in Quaker Oats specifically forbade
3
the food producer in that case from using the certain ingredients
4
in the product it produced.
5
That is not the issue here.
See Quaker Oats, 318 U.S. at 220-23.
Third, Plaintiffs argue that the FDA's failure to enact any
6
7
rules explicitly permitting WPC and MPC in yogurt from the 2009
8
Proposal means that the FDA meant to indicate that WPC and MPC had
9
always been prohibited in yogurt.
See Opp'n at 11.
This is
United States District Court
For the Northern District of California
10
unconvincing.
The FDA had interpreted its regulations to permit
11
WPC and MPC in yogurt in 1982 and 2004, and even in the 2009
12
Proposal itself.
13
supra (discussing the 2009 Proposal).
14
a section of the 2009 Proposal in which the FDA clarifies that WPC
15
and MPC are forbidden as basic ingredients, an argument the Court
16
rejected above.
17
Association] requested that FDA revise the yogurt standards to
18
allow the use of [WPC] as a basic ingredient . . . .") (citing 2009
19
Proposal at 2452-53) (emphasis added).
20
nothing at all about optional ingredients.
See 2009 Proposal at 2444; see also Section IV.A,
Plaintiffs misleadingly cite
See Opp'n at 11 ("[The National Yogurt
But this section says
Finally, Plaintiffs allege that WPC and MPC render Cabot Greek
21
22
"adulterated" because they are food additives, and moreover, are
23
not Generally Recognized as Safe ("GRAS"), thereby violating the
24
FDCA.
25
has stated specifically that MPC and WPC are permissible optional
26
ingredients in yogurt.
27
clearly if that same permissible addition would render the yogurt
28
illegally adulterated.
FAC ¶¶ 46-51.
This argument is also unavailing.
The FDA
It would not have made this statement so
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1
2
V.
CONCLUSION
For the reasons discussed above, the Court GRANTS Defendants
3
Cabot Creamery Cooperative, Inc. and Agri-Mark, Inc.'s motion to
4
dismiss Plaintiffs Timothy Smith, Rohit Fedane, and Misty Johnson's
5
first amended complaint.
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PREJUDICE.
Plaintiffs' complaint is DISMISSED WITH
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IT IS SO ORDERED.
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United States District Court
For the Northern District of California
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Dated: February ___, 2013
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UNITED STATES DISTRICT JUDGE
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