Coe et al v. General Mills, Inc.

Filing 61

ORDER by Judge Thelton E. Henderson granting in part and denying in part 49 Motion to Dismiss First Amended Complaint. (tehlc3, COURT STAFF) (Filed on 2/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NANCY COE, et al.,
Plaintiffs,

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v.
GENERAL MILLS, INC.,
Defendant.

Case No. 15-cv-05112-TEH
ORDER GRANTING IN PART AND
DENYING PART MOTION TO
DISMISS FIRST AMENDED
COMPLAINT

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This matter comes before the Court on Defendant General Mills, Inc.’s motion to

United States District Court
Northern District of California

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dismiss Plaintiffs’ injunctive relief claims from the First Amended Complaint. The Court

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finds this matter suitable for resolution without oral argument, see Civil L.R. 7-1(b), and

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now GRANTS IN PART and DENIES IN PART the motion as discussed below.

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BACKGROUND
Plaintiffs Nancy Coe, Tori Castro, and Pamela Mizzi filed this putative class action

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to challenge the labeling and advertising of Defendant’s Cheerios Protein product. The

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Court granted Defendant’s motion to dismiss Plaintiffs’ injunctive relief claims from the

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original complaint, observing that:

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This issue was recently addressed in detail by another court in
this district, and the Court finds that decision persuasive. See
Anderson v. Seaworld Parks & Entm’t, Inc., Case No. 15-cv02172-JSW, 2016 WL 4076097, at *5-9 (N.D. Cal. Aug. 1,
2016). Like that court, this one “is unwilling to hold, as a
matter of law, that a plaintiff could never pursue a claim for
prospective injunctive relief under the UCL or the [False
Advertising Law] merely because the plaintiff now knows the
truth about the alleged misrepresentation.” Id. at *7.
However, the Court agrees with “the majority view . . . that a
plaintiff must allege the intent to purchase a product in the
future in order to have standing to seek prospective injunctive
relief.” Id. at *6 (collecting cases); see also Lilly v. Jamba
Juice Co., No. 13-cv-02998-JST, 2015 WL 1248027, at *3-5
(N.D. Cal. Mar. 18, 2015) (“[A] willingness to consider a
future purchase is sufficient.”). Plaintiffs have not done so

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here, but counsel indicated at oral argument that Plaintiffs
might be able to cure this deficiency with leave to amend.
Defendant’s motion to dismiss is therefore GRANTED without
prejudice.
Aug. 10, 2016 Order at 11-12.
The First Amended Complaint (“FAC”) now includes allegations that Plaintiffs Coe

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and Castro, both California residents who seek to represent a class of California plaintiffs,

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“would purchase Cheerios Protein again in the future if the product were remedied to

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reflect Defendant’s labeling and marketing claims for it.” FAC ¶¶ 14-15. Plaintiff Mizzi,

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a New York resident who seeks to represent a class of New York plaintiffs, does not allege

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any future intent to purchase the product.

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United States District Court
Northern District of California

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DISCUSSION
As Defendant correctly observes, some courts in this district have concluded that

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plaintiffs who know about an alleged deception can never have standing to sue for

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injunctive relief. E.g., Jones v. Nutiva, Inc., No. 16-cv-00711-HSG, 2016 WL 5210935, at

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*10 (N.D. Cal. Sept. 22, 2016); Khasin v. R.C. Bigelow, Inc., No. 12-cv-02204-WHO,

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2016 WL 1213767, at *5 (N.D. Cal. Mar. 29, 2016); Garrison v. Whole Foods Mkt. Grp.,

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Inc., No. 13-cv-05222-VC, 2014 WL 2451290, at *5 (N.D. Cal. June 2, 2014). However,

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this Court has already rejected that line of reasoning. Aug. 10, 2016 Order at 11.

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The question now before the Court is whether Plaintiffs’ allegations that they would

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purchase Cheerios Protein only if the product matched its labeling is sufficient to confer

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standing. Defendant is correct that even if Plaintiffs were to prevail on their claims, this

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Court could not order a change in the composition of the Cheerios Protein product; instead,

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the injunctive relief would be limited to having the label accurately reflect the product’s

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contents. Anderson v. Hain Celestial Grp., Inc., 87 F. Supp. 3d 1226, 1235 (N.D. Cal.

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2015). Two courts in this district have found this fatal to plaintiffs’ standing to seek

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injunctive relief. First, in Anderson, the court concluded that the plaintiff lacked standing

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because she admitted that she was “not interested in products with unnatural ingredients”

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and, therefore, “still would not purchase Defendant’s products even if it was ordered to
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remove the ‘All Natural’ label; the offensive unnatural ingredients would still be there.”

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Id. Likewise, another court found no standing in a case concerning a vegan mayonnaise

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substitute because there was “no possibility of confusion to [the plaintiff] as a consumer.”

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Duran v. Hampton Creek, No. 15-cv-05497-LB, 2016 WL 1191685, at *7 (N.D. Cal.

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Mar. 28, 2016). The product was always going to be a vegan spread, the court reasoned,

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and the plaintiff “disavowed interest in any product that is not mayonnaise: he would not

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have purchased the product if he had known it was not mayonnaise and instead would have

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purchased true mayonnaise or nothing at all.” Id.
In this case, by contrast, there is a “possibility of confusion” to Plaintiffs since it is

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possible that Defendant will change the composition of Cheerios Protein so that it is more

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United States District Court
Northern District of California

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appealing to Plaintiffs. This is sufficient to confer standing to seek injunctive relief on

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plaintiffs, like Coe and Castro, who allege “a willingness to consider a future purchase.”

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Lilly, 2015 WL 1248027, at *4. As the Lilly court explained:

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[T]he manufacturer may change or reconstitute its product in
the future to conform to the representations on the label. . . . In
that event, the product would actually become the product that
our hypothetical consumer values most highly, and it would be
labeled as such. But unless the manufacturer or seller has been
enjoined from making the same misrepresentation, our
hypothetical consumer won’t know whether the label is
accurate. And she won't know whether it makes sense to spend
her money on the product, since she will suspect a continuing
misrepresentation. In fact, knowing about the previous
misrepresentation, she probably won’t buy it – even though it is
now precisely the product she wants above all others. So,
while other consumers may purchase the (now correctly
labeled) product, our consumer – the person most likely to
suffer future injury from this misrepresentation – will be
deprived of it. A rule that prevents this consumer from seeking
an injunction doesn’t comport with traditional notions of
standing; it prevents the person most likely to be injured in the
future from seeking redress.

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Id. (footnote omitted); see also Duran, 2016 WL 1191685, at *7 (agreeing with Lilly but

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finding facts distinguishable). To the extent other cases, including Anderson v. Hain, are

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inconsistent with the above, the Court rejects their reasoning.

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Unlike Plaintiffs Coe and Castro, however, Plaintiff Mizzi does not allege any
willingness to consider a future purchase, even after having been given leave to amend to
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do so. Plaintiffs argue that only one named plaintiff in a class action needs to have

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standing, Opp’n at 3 n.2, but they fail to consider that the complaint alleges claims on

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behalf of two classes: a class of California consumers and a class of New York consumers.

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Plaintiffs Coe’s and Castro’s standing is sufficient to support the injunctive relief claims of

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the California class, but Plaintiff Mizzi’s lack of standing is fatal to the injunctive relief

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claims of the New York class. “Unless the named plaintiffs are themselves entitled to seek

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injunctive relief, they may not represent a class seeking that relief.” Hodgers-Durgin v. de

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la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999). Because the sole named plaintiff of the New

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York class lacks standing to seek injunctive relief, the Court must therefore dismiss the

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New York class’s injunctive relief claims. Plaintiffs have already had an opportunity to

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United States District Court
Northern District of California

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amend the complaint and chose only to add allegations concerning Plaintiffs Coe and

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Castro and not Plaintiff Mizzi. Accordingly, dismissal of the New York injunctive relief

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claims is with prejudice.

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CONCLUSION
For the reasons discussed above, Defendant’s motion to dismiss Plaintiffs’

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injunctive relief claims is DENIED as to the California class and GRANTED as to the

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New York class.

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IT IS SO ORDERED.

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Dated: 02/06/17

_____________________________________
THELTON E. HENDERSON
United States District Judge

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