Youngevity International, Corp. v. Smith et al

Filing 694

ORDER. Signed by Magistrate Judge Jill L. Burkhardt on 2/13/2020.(sxa)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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YOUNGEVITY INTERNATIONAL,
CORP.,

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ORDER

Plaintiff,

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Case No.: 16-cv-00704-BTM-JLB

v.
TODD SMITH, et al.,
Defendants.

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On December 26, 2019, the Honorable Barry Ted Moskowitz issued an Order

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Setting Trial, which set May 11, 2020, as the trial date for Plaintiff’s (“Youngevity’s”)

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claims under the Lanham Act and Unfair Competition Law. (ECF No. 675 at 1–2.) The

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Order also set February 14, 2020, as the deadline for the parties to submit a proposed

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pretrial order, which must contain: (1) a statement to be read to the jury; (2) a list of the

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causes of action to be tried; (3) a list of witnesses; (4) a list of exhibits; (5) a statement of

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stipulated facts; (6) a list of all deposition transcripts; and (7) proposed jury instructions.

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(Id. at 2.) In the Order, Judge Moskowitz directed the parties “to meet with the assigned

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magistrate judge to work out as many stipulations of fact as possible” and encouraged the

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parties “to consult with the assigned magistrate judge to work out any problems in

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preparation of the proposed pretrial order.” (Id. at 3.)
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16-cv-00704-BTM-JLB

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On January 29, 2020, counsel for the parties left a joint voicemail message with

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Judge Burkhardt’s chambers requesting the Court’s assistance in resolving disputes

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concerning the fact stipulations and proposed jury instructions in the parties’ proposed

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pretrial order. (ECF No. 690.) On February 6, 2020, the Court held a telephonic, counsel-

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only Status Conference wherein each party’s disputed fact stipulations were discussed.

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(ECF No. 692.) During the Conference, Defendants (“Wakaya”) took issue with the fact

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that Youngevity had not disclosed to Wakaya what allegedly false statements it intended

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to present to the jury in support of its Lanham Act claims for false or misleading

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advertising. Wakaya argued that knowing exactly what false statements Youngevity

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intends to present is critical to preparing the parties’ fact stipulations and crafting

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appropriate jury instructions. Youngevity objected to providing a specific list of statements

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it would rely on during trial and argued that the task would be impossible. Youngevity

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further argued that it had already identified which exhibits (more than 500) it intended to

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use in support of its Lanham Act claims. On February 10, 2020, the Court held a second

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telephonic, counsel-only Status Conference with the parties. (ECF No. 693.) Each party’s

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position on the issue remained the same.

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Judge Moskowitz has directed this Court to address whether Youngevity must now

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disclose to Wakaya the specific and allegedly false statements it intends to present to the

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jury in support of its Lanham Act claims. Section 43(a) of the Lanham Act, 15 U.S.C.

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§ 1125(a), prohibits the use of false designations of origin, false descriptions, and false

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representations in the advertising and sale of goods and services. See Cleary v. News Corp.,

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30 F.3d 1255, 1259 (9th Cir. 1994). There are five elements of a false advertising claim

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under the Lanham Act, the first element being “a false statement of fact by the defendant

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in a commercial advertisement about its own or another’s product.” Southland Sod Farms

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v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997). Given that Youngevity will be

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required to identify for the jury what false statements Wakaya made to satisfy the first

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element of its Lanham Act claims, the Court determines that Youngevity should now be

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required to disclose a specific list of those statements upon which it intends to rely at trial.
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Doing so will facilitate the parties’ trial preparation and will save judicial and litigation

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resources.

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Accordingly, no later than February 21, 2020, Youngevity shall provide Wakaya

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with a document specifying every allegedly false statement it intends to use to satisfy the

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“false statement of fact” requirement in the first element of a false advertising claim under

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the Lanham Act. The document shall individually list the specific statements and shall not

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reference general statements or categories of statements.

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IT IS SO ORDERED.
Dated: February 13, 2020

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