Miller v. Nature's Path Foods, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IAN MILLER, Case No. 23-cv-05711-JST Plaintiff, 8 ORDER DENYING MOTION TO 9 v. DISMISS AND STRIKE 10 NATURE'S PATH FOODS, INC., Re: ECF Nos. 31, 32 Defendant. 11 12 13 Before the Court is Nature’s Path’s motion to dismiss and motion to strike. ECF Nos. 31, 14 32. The Court will deny both motions. 15 I. BACKGROUND 16 Nature’s Path is a Canadian company that “manufactures, distributes, markets, advertises, 17 and sells a variety of breakfast and snack products under the brand names ‘Nature’s Path,’ 18 ‘Envirokids,’ ‘Love Crunch,’ and others.” ECF No. 1 ¶¶ 11, 17. Plaintiff Ian Miller on multiple 19 occasions purchased Nature’s Path’s Heritage Flakes, Flax Plus Raisin Bran, Flax Plus Multibran 20 Flakes, and the Heritage Original Crunch cereals from retail stores in California. Id. ¶ 60. Miller 21 made his purchases after reading and relying on the products’ front label claims that they 22 contained 5 grams of protein per serving. Id. ¶ 61. Miller claims these statements are misleading 23 because Nature’s Path’s products do not contain 5 grams of protein that the human body can 24 actually use. Id. ¶ 2. 25 Miller’s claims turn on the difference between protein quantity and protein quality. Not all 26 proteins are the same in their ability to meet human nutritional requirements. Id. ¶ 3. Specifically, 27 not all proteins contain the nine amino acids essential to human protein synthesis and/or are not 1 The Protein Digestibility Corrected Amino Acid Score (“PDCAAS”), is the Food and Drug 2 Administration’s (“FDA”) measure of protein quality and it accounts for both the amino acid 3 profile and the digestibility of the protein. Id. ¶ 29 (quoting 21 C.F.R. § 101.9(c)(7)(ii)). Under 4 this method, manufacturers determine the amount of essential amino acids that the food contains 5 and then combine that with the protein’s digestibility into an overall discount factor (score from 6 0.0-1.0) that represents the actual amount of protein the food provides nutritionally when 7 multiplied by raw protein quantity. Id. ¶ 30. The regulations call this the “corrected amount of 8 protein per serving.” 21 C.F.R. § 101.9(c)(7)(i). 9 FDA regulations, and California’s Sherman Food Drug & Cosmetic Law (the “Sherman 10 Law”), do not always require manufacturers to include the corrected amount of protein per serving 11 on their packaging. However, when a company chooses to make a protein claim such as “5 grams 12 of protein per serving” outside of the Nutrition Facts Panel (“NFP”) on its packaging, FDA 13 regulations require it to include a statement of the corrected amount of protein per serving 14 expressed as a Percent of Daily Value (“%DV”). 21 C.F.R § 101.9(c)(7)(i). 15 Nature’s Path makes protein content claims on its products’ packaging. For example, its 16 Heritage Flakes cereal states it has “5 grams of protein per serving” on the front of the box. ECF 17 No. 1 ¶¶ 2, 18. However, it does not include a corrected amount of protein per serving expressed 18 as a %DV, in violation of FDA regulations and California’s Sherman Law. Id. ¶ 19. Miller claims 19 this omission is misleading because most consumers are unaware of the nutritional value of 20 various protein sources. Id. ¶ 40. Thus, when consumers see a front-label quantitative protein 21 claim, they believe that all of the advertised protein will be nutritionally available. Id. If, 22 however, Nature’s Path provided the corrected amount of protein as a %DV, consumers, such as 23 Miller, would be alerted to the fact that its products provide a significantly lower amount of the 24 daily value of protein than higher quality protein products. Id. If the %DV had been included on 25 the products, Miller alleges he would not have purchased them or would have paid less for them. 26 Id. ¶ 61. 27 Miller brought this class action against Nature’s Path for violations of: (1) California’s 1 (3) common law fraud, deceit and/or misrepresentation; (4) California’s Unfair Competition Law 2 (“UCL”); and (5) unjust enrichment. ECF No. 1. Nature’s Path then filed this motion to dismiss 3 and motion to strike the nationwide class. ECF Nos. 31, 32. 4 II. JURISDICTION 5 The Court has jurisdiction under 28 U.S.C. § 1332. 6 III. LEGAL STANDARD 7 A. Rule 12(b)(6) 8 A complaint must contain “a short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Dismissal under Rule 12(b)(6) is 10 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support 11 a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 12 Cir. 2008). A complaint need not contain detailed factual allegations, but facts pleaded by a 13 plaintiff “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain 15 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted). “A claim has 17 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 18 reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court must 19 “accept all factual allegations in the complaint as true and construe the pleadings in the light most 20 favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 21 However, the Court is not “required to accept as true allegations that are merely conclusory, 22 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 23 F.3d 1049, 1055 (9th Cir. 2008) (quotation marks and citation omitted). 24 B. Rule 12(b)(2) 25 When a defendant objects to the Court’s personal jurisdiction over it pursuant to Federal 26 Rule of Civil Procedure 12(b)(2), “the plaintiff bears the burden of establishing that jurisdiction is 27 proper.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). Absent an evidentiary 1 “Uncontroverted allegations in the plaintiff’s complaint must be taken as true”, and “[c]onflicts 2 between the parties over statements contained in affidavits must be resolved in the plaintiff’s 3 favor.” Id. (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 4 2004)). “Where, as here, there is no applicable federal statute governing personal jurisdiction, the 5 district court applies the law of the state in which the district court sits.” Schwarzenegger, 374 6 F.3d at 800. “Because California’s long-arm jurisdictional statute is coextensive with federal due 7 process requirements, the jurisdictional analyses under state law and federal due process are the 8 same.” Id. at 800–01. 9 C. Rule 12(f) 10 Under Rule 12(f) of the Federal Rules of Civil Procedure, the Court “may strike from a 11 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 12 “The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must 13 arise from litigating spurious issues by dispensing with those issues prior to trial.” Clancy v. 14 Bromley Tea Co., 308 F.R.D. 564, 568 (N.D. Cal. 2013) (quoting Whittlestone, Inc. v. Handi-Craft 15 Co., 618 F.3d 970, 973 (9th Cir. 2010)). 16 IV. DISCUSSION 17 A. Personal Jurisdiction 18 “Personal jurisdiction must exist for each claim asserted against a defendant.” Action 19 Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) (citation omitted). 20 Courts “have recognized two types of personal jurisdiction: ‘general’ (sometimes called ‘all- 21 purpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.” Bristol-Myers 22 Squibb Co. v. Super. Ct., 582 U.S. 255, 262 (2017) (citation omitted). 23 Nature’s Path argues this Court lacks personal jurisdiction over the claims of unnamed 24 class members who purchased products outside of California. ECF No. 31 at 14–16. Miller, 25 however, contends that the Court may exercise both general jurisdiction and specific jurisdiction 26 over these claims. ECF No. 36 at 10–13. 27 1. General Jurisdiction 1 incidents underlying the claim occurred in a different State.” Bristol-Myers, 582 U.S. at 262 2 (emphasis and citation omitted). General jurisdiction arises “when [the defendant’s] affiliations 3 with the State are so ‘continuous and systematic’ as to render them essentially at home in the 4 forum State.” Goodyear Dunlop Tires Operations S.A. v. Brown, 564 U.S. 915, 919 (2011). 5 Although general jurisdiction might be found elsewhere in an “exceptional case,” a corporation is 6 usually “at home” only in its place of incorporation and its principal place of business. Ford 7 Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 358–59 (2021). 8 Nature’s Path is a Canadian company with its principal place of business in Richmond, 9 British Columbia. ECF No. 1 ¶ 11. Miller, however, relying on the Supreme Court’s decision in 10 Mallory v. Norfolk Southern Railway Company, 600 U.S. 122 (2023), argues Nature’s Path is 11 subject to general jurisdiction in California because it has appointed an agent to receive service of 12 process here. ECF No. 36 at 12. Miller misreads Mallory. In Mallory, the Supreme Court 13 reaffirmed the constitutionality of state laws that require out-of-state corporations to consent to 14 general personal jurisdiction as a condition of doing business with the state. Mallory, 600 U.S. at 15 127, 146. Thus, Norfolk Southern, a Virginian company, could be sued in Pennsylvania by an 16 out-of-state plaintiff arising from out-of-state acts “because it had agreed to accept service of 17 process in [Pennsylvania] on any suit as a condition of doing business there.” Id. at 133. The 18 relevant Pennsylvania law required out-of-state companies that registered to do business in the 19 state consent to general personal jurisdiction. Id. at 127. California, by contrast, has no such 20 requirement. AM Tr. v. UBS AG, 681 Fed. App’x 587, 588–89 (9th Cir. 2017) (“California does 21 not require corporations to consent to general personal jurisdiction in that state when they 22 designate an agent for service of process or register to do business.”) Accordingly, Nature’s Path 23 has not consented to, and is not subject to, general personal jurisdiction in California. See 24 Rosenwald v. Kimberly Clark Corp., 22-cv-04993-LB, 2023 WL 5211625, at *6 (N.D. Cal. Aug. 25 14, 2023). 26 2. Specific Jurisdiction 27 Specific jurisdiction arises when a defendant’s contacts with the forum give rise to the 1 must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity 2 or an occurrence that takes place in the forum State and is therefore subject to the State’s 3 regulation.’” Bristol-Myers, 582 U.S. at 262 (quoting Goodyear, 564 U.S. at 919). 4 The parties do not dispute the Court has jurisdiction over Miller’s claims, the named 5 California Plaintiff, or those of the unnamed California class members. ECF No. 31 at 14. 6 However, the parties dispute whether the Court may exercise specific jurisdiction over the out-of- 7 state, unnamed plaintiffs’ claims in light of the Supreme Court’s decision in Bristol-Myers. Id. at 8 14–16; ECF No. 36 at 10–13. Bristol-Myers was a mass tort action brought in California state 9 court, alleging that Bristol-Myers’ drug, Plavix, damaged plaintiffs’ health. Bristol-Myers, 582 10 U.S. at 259. The Supreme Court found that California courts could not exercise specific 11 jurisdiction over the out-of-state plaintiffs’ claims because the claims did not arise in California or 12 out of the company’s activities there. Id. at 265. Specific jurisdiction, the Court explained, 13 requires an “affiliation between the forum and the underlying controversy, principally an activity 14 or an occurrence that takes place in the forum State.” Id. at 262 (quoting Goodyear, 564 U.S. at 15 919). The Supreme Court left open “whether the Fifth Amendment imposes the same restrictions 16 on the exercise of personal jurisdiction by a federal court.” Id. at 269. 17 Although the Ninth Circuit has not addressed the issue, it has found that motions to dismiss 18 unnamed plaintiffs for lack of personal jurisdiction, prior to class certification, are premature. 19 Moser v. Benfytt, Inc., 8 F.4th 872, 878 (9th Cir. 2021). This is “because putative class members 20 ‘are always treated as nonparties’ and ‘become parties to an action – and thus subject to dismissal 21 – only after class certification.’” Id. (quoting Molock v. Whole Foods Mkt. Grp., 952 F.3d 293 22 (D.C. Cir. 2020) (emphasis in original)). Accordingly, Nature’s Path’s motion to strike the 23 nationwide class for lack of personal jurisdiction is denied as premature. 24 B. Article III Standing 25 Article III of the U.S. Constitution authorizes the judiciary to hear “cases” and 26 “controversies.” To establish standing a “plaintiff must have (1) suffered an injury in fact, (2) that 27 is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed 1 injury-in-fact” occurs when the “plaintiffs spent money that, absent defendants’ actions they 2 would not have spent.” Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011). 3 Nature’s Path argues that Miller has failed to establish an injury-in-fact. ECF No. 32 at 27. 4 Relying on TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), it contends that because Miller “is 5 merely seeking to ensure a defendant’s ‘compliance with regulatory law’” he has failed to 6 establish a concrete injury-in-fact. Id. (quoting TransUnion LLC, 594 U.S. at 427). Unlike the 7 plaintiffs in TransUnion, however, Miller has pleaded a particularized allegation of harm: he 8 spent money on Nature’s Path’s products that, absent their omissions, he otherwise would not 9 have spent. ECF No. 1 ¶ 62 (“had Defendant adequately disclosed the corrected amount of protein 10 per serving for each Product expressed as a %DV, as FDA regulations require, Plaintiff Miller 11 would not have purchased the Products or would have, at minimum, paid less for them.”) This is a 12 concrete injury sufficient to confer standing. See Maya, 658 F.3d at 1069 (plaintiffs’ allegations 13 that “they would not have purchased their homes had defendants made the disclosures allegedly 14 required by law” constituted “actual and concrete economic injuries.”); see also TransUnion, 594 15 U.S. at 425 (monetary harms “readily qualify as concrete injuries under Article III.”) 16 Nature’s Path also argues that Miller lacks standing to obtain an injunction because he is 17 now aware of the labelling deficiencies and is thus unlikely to be deceived by them again. ECF 18 No. 32 at 27–29. In addition, it claims Miller fails to plausibly allege a desire to purchase their 19 products in the future. Id. These arguments ignore well-settled law. The Ninth Circuit has 20 recognized that a “previously deceived consumer may have standing to seek an injunction against 21 false advertising or labeling, even though the consumer now knows or suspects that the advertising 22 was false.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018). This is 23 because “[k]nowledge that the advertisement or label was false in the past does not equate to 24 knowledge that it will remain false in the future” and “the threat of future harm may be the 25 consumer’s plausible allegations that she will be unable to rely on the product’s advertising or 26 labeling in the future, and so will not purchase the products although she would like to.” Id. at 27 969–70. This is what Miller alleges here. ECF No. 1 ¶ 64 (“Miller continues to desire to purchase 1 on Defendant’s labels when shopping for protein products in the future”). 2 Finally, Nature’s Path argues Miller lacks standing to sue for products he didn’t purchase. 3 ECF No. 32 at 26–27. As this Court has previously explained, “analyzing the ‘sufficient 4 similarity’ of the products is not a standing inquiry, but rather an early analysis of the typicality, 5 adequacy, and commonality requirements of Rule 23.” Clancy v. Bromley Tea Co., 308 F.R.D. 6 564, 571 (N.D. Cal. 2013); see also Moore v. EO Prods., LLC, No. 22-cv-07618, 2023 WL 7 6391480, at *4 (N.D. Cal. Sept. 29, 2023) (“After Melendres, this Court and others in this district 8 have applied the class certification approach to whether class representatives may represent a class 9 of individuals who purchased different products from the class representatives.”) Accordingly, “it 10 is premature to consider [Miller’s] ability to represent a class who purchased different products 11 than he did.” Dailey v. A&W Concentrate Co., 519 F. Supp. 3d 668, 672 (N.D. Cal. 2021) (citing 12 Clancy, 308 F.R.D. at 569–71). 13 C. Preemption 14 The Supremacy Clause of the Constitution enables Congress to enact legislation that 15 preempts state law. See Gibbons v. Ogden, 22 U.S. 1, 211 (1824). “Federal preemption occurs 16 when: (1) Congress enacts a statute that explicitly pre-empts state law; (2) state law actually 17 conflicts with federal law; or (3) federal law occupies a legislative field to such an extent that it is 18 reasonable to conclude that Congress left no room for state regulation in that field.” Chae v. SLM 19 Corp., 593 F.3d 936, 941 (9th Cir. 2010) (citation omitted). 20 1. Express Preemption 21 “To avoid a patchwork quilt of conflicting state labeling laws, the [Food, Drug, and 22 Cosmetic Act (“FDCA”)] includes a preemption provision that establishes a national and uniform 23 standard for certain labeling statements.” Greenberg v. Target Corp., 985 F.3d 650, 655 (9th Cir. 24 2021). The FDCA preempts only those state law claims that impose requirements “not identical 25 to” its own. Id. Congress, thus, limited preemption to state laws that “impose more or 26 inconsistent burdens on manufacturers than the burdens imposed by the FDCA.” Krommenhock v. 27 Post Foods, LLC, 255 F. Supp. 3d 938, 951 (N.D. Cal. 2017) (quoting Gallagher v. Bayer AG, No. 1 Nature’s Path argues Miller’s challenges to their front label protein claims are preempted 2 because “FDA regulations specifically permit the total amount of protein by weight in grams in 3 food products to be calculated based on the nitrogen method.” ECF No. 32 at 20–22 (citing 21 4 C.F.R. § 101.9(c)(7)). Accordingly, Nature’s Path reasons that Miller, through this suit, seeks to 5 impose labeling requirements that are not identical to the requirements of the FDCA, and are 6 therefore preempted. Id. at 22. Nature’s Path is correct that FDA regulations permit 7 manufacturers to make protein claims based on the nitrogen method. 21 C.F.R. §§ 101.13(o), 8 101.9(c)(7). As such, courts “routinely find expressly preempted standalone claims that 9 representations of protein content using the nitrogen method are misleading.” Guerra v. KIND, 10 LLC, No. 22-cv-06654-RS, 2023 WL 3436093, at *6 (N.D. Cal. May 11, 2023). 11 But Miller’s claims do not rest on the theory that Nature’s Path’s “representations of 12 protein content using the nitrogen method are misleading” on their own. Id. Rather, Miller relies 13 on 21 C.F.R. section 101.9(c)(7)(i), which “requires the manufacturer to display PDCAAS- 14 corrected protein content as a percent daily value figure within the NFP” when the label includes 15 such a protein claim. Nacarino v. Kashi Co., 77 F.4th 1201, 1205 (9th Cir. 2023). Miller alleges 16 that Nature’s Path’s protein content claims are misleading since they do not include the quality- 17 adjusted percentage, as required under 21 C.F.R. section 101.9(c)(7)(i). This claim is not 18 expressly preempted because it is based on an alleged violation of FDA regulations and therefore 19 “requires nothing more or less than what the FDCA already requires.” Guerra, 2023 WL 20 3436093, at *7. 21 2. Implied Preemption 22 Even if a state law is not expressly preempted by the FDCA it may still be impliedly 23 preempted if it conflicts with the FDCA’s provisions. Buckman Co. v. Plaintiffs’ Legal Comm., 24 531 U.S. 341, 348 (2001). There is no private right of action under the FDCA. Perez v. Nidek 25 Co., Ltd., 711 F.3d 1109, 1119 (9th Cir. 2013). Rather, “[t]he FDA is responsible for investigating 26 potential violations of the FDCA.” Id. Thus, state claims that “exist solely by virtue of the 27 FDCA . . . requirements,” Buckman, 531 U.S. at 348, are impliedly preempted as they “conflict[] 1 at 1119. 2 Nature’s Path argues Miller’s state law claims are impliedly preempted under Buckman as 3 an impermissible attempt to privately enforce the FDCA and its regulations. ECF No. 32 at 19. In 4 Buckman, patients who suffered injuries from bone screws brought “state-law causes of action 5 claiming that [defendants] made fraudulent representations to the FDA as to the intended use of 6 the bone screws and that, as a result, the devices were improperly given market clearance and were 7 subsequently used to the plaintiffs’ detriment.” Buckman, 531 U.S. at 346–47. The Supreme 8 Court held that such “[s]tate-law fraud on the FDA claims conflict[ed] with the FDA’s 9 responsibility to police fraud consistently with the Administration’s judgment and objectives.” Id. 10 at 350. Such claims, which “exist solely by virtue of the FDCA disclosure requirements” are 11 preempted. Id. at 353. 12 However, as recognized by the Ninth Circuit, “Buckman . . . left the door open to state-law 13 claims ‘parallel’ to federal requirements.” McClellan v. I-Flow Corp., 776 F.3d 1035, 1040 (9th 14 Cir. 2015). To avoid preemption, “[t]he plaintiff must be suing for conduct that violates the 15 FDCA (or else his claim is expressly preempted []) but the plaintiff must not be suing because the 16 conduct violates the FDCA (such a claim would be impliedly preempted under Buckman).” Perez, 17 711 F.3d at 1120 (citation omitted) (emphasis in original). Miller’s claims satisfy these 18 requirements. Miller brings his claims under California’s Sherman Law, which imposes 19 requirements identical to those in the FDCA. Brazil v. Dole Food Co., Inc., 935 F. Supp. 2d 947, 20 954 (N.D. Cal. 2013) (finding that “through the Sherman Law, California has expressly adopted 21 the federal labeling requirements as its own”). As this Court has explained, the Sherman Law 22 “exists independently . . . and violating its requirements would be a valid state cause of action 23 even if the [FDCA] ceased to exist.” Clancy v. Bromley Tea Co., 308 F.R.D. 564, 574 (N.D. Cal. 24 2013). Unlike in Buckman, where the plaintiffs’ claims depended on federal law, Miller’s claims 25 do “not depend on the [FDCA], except in the sense that the Sherman Law mirrors the 26 requirements of the FDCA.” Id. Accordingly, his state law claims are not impliedly preempted. 27 Davidson v. Sprout Foods, Inc., 106 F.4th 842, 845 (9th Cir. 2024) (“federal law does not preempt 1 D. Consumer Protection Claims 2 1. Reasonable Consumer Test 3 Under California’s UCL, FAL, and CLRA, “claims based on deceptive or misleading 4 marketing must demonstrate that a ‘reasonable consumer’ is likely to be misled by the 5 representation.” Moore v. Trader Joe’s Co., 4 F.4th 874, 881 (9th Cir. 2021) (citing Ebner v. 6 Fresh Inc., 838 F.3d 958, 965 (9th Cir. 2016)). “This standard is higher than a ‘mere possibility’ 7 that the statement at issue ‘might conceivably be misunderstood by some few consumers viewing 8 it in an unreasonable manner.’” Amin v. Subway Rests., Inc., No. 21-cv-00498-JST, 2022 WL 9 20184652, at *3 (N.D. Cal. July 7, 2022) (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 10 4th 496, 508 (2003)). “Rather, the standard requires a likelihood ‘that a significant portion of the 11 general consuming public or of targeted consumers, acting reasonably in the circumstances, could 12 be misled.” Id. (quoting Lavie, 105 Cal. App. 4th at 508). “[A] plaintiff’s unreasonable 13 assumptions about a product’s label will not suffice.” Moore, 4 F.4th at 882 (citing Becerra v. Dr. 14 Pepper/Seven Up., Inc., 945 F.3d 1225, 1229–30 (9th Cir. 2019)). “California courts . . . have 15 recognized that whether a business practice is deceptive will usually be a question of fact.” 16 Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008). Thus, it is a “rare situation” 17 when “granting a motion to dismiss is appropriate.” Id. at 939. 18 Nature’s Path argues this is one of those rare cases where dismissal is warranted because 19 no reasonable consumer would interpret the protein claims to “represent anything other than the 20 total amount of protein in the product per serving” given the rest of the packaging. ECF No. 32 at 21 24. Specifically, Nature’s Path points to the description on their Heritage Flakes cereal which 22 states it is “A Delicious Blend of Kamut Khorasan, Wheat, Oats, Spelt, Millet & Quinoa.” Id. 23 Nature’s Path argues that because plant-based proteins like wheat and oats are “incomplete” 24 proteins, a reasonable consumer would know that not all of the protein from the product could be 25 absorbed and used by humans. Id. 26 At this stage the Court must accept all of Miller’s factual allegations as true and draw all 27 reasonable inferences in his favor. It is not clear, as Nature’s Path suggests, that most consumers 1 oats would alert them to the fact not all the protein is usable. Rather, as another court in this 2 district explained, “when a manufacturer emphasizes a product’s protein content” on its 3 packaging, “the manufacturer is implicitly suggesting that the product is a good source of protein” 4 and “that statement is misleading without including information about the product’s protein 5 quality on the nutrition facts panel.” Rausch v. Flatout, Inc., 660 F. Supp. 3d 855, 860 (N.D. Cal. 6 2023). Accordingly, the Court finds Miller has plausibly alleged Nature’s Path’s labels could 7 deceive a reasonable consumer. See Rausch, 660 F. Supp. 3d at 863; see also Lesh v. DS 8 Naturals, LLC, 22-cv-01036-HSG, 2023 WL 2530986, at *5 (N.D. Cal. Mar. 15, 2023). 9 2. Reliance 10 To have standing under the UCL, FAL, and CLRA, a plaintiff must have “‘actually relied’ 11 on whatever defect in a product label allegedly makes it actionable when making [their] decision 12 to buy the product.” Shaeffer v. Califa Farms, LLC, 44 Cal. App. 5th 1125, 1143 (2020) (quoting 13 Kwikset Corp. v. Superior Ct., 51 Cal. 4th 310, 317, 326–27 (2011)). To satisfy this requirement, 14 plaintiffs must allege that they “would not have bought the product but for the allegedly actionable 15 misrepresentation or omission.” Id. (quotation marks and citation omitted). 16 Miller alleges that he purchased the products “after reading and relying on” the front label 17 protein claims. ECF No. 1 ¶ 61. He alleges he “believed the truth of each representation, i.e., that 18 the product would actually provide the full amount of protein claimed on the front labels in a form 19 a human could utilize” and that had Nature’s Path “not made the protein claims on the front of its 20 packages, he would not have been drawn to the Products and would not have purchased them.” Id. 21 ¶¶ 61, 62. He further alleges that he “looked at and read the NFP on the Heritage Flakes cereal 22 before purchasing them for the first time” and that he would have not purchased them, or paid less, 23 had the %DV been disclosed. Id. ¶¶ 62, 63. 24 Nature’s Path contends these allegations are not plausible, arguing that if a consumer was 25 genuinely concerned about the %DV “they would not buy products that did not have that 26 information listed.” ECF No. 32 at 25. While this is one possible inference, it is not the only 27 plausible one, and at this stage the Court must draw all reasonable inferences in Miller’s favor. 1 2018) (whether reliance was justified in a particular circumstance “may be decided as a matter of 2 law if reasonable minds can come to only one conclusion based on the facts”). While Miller 3 alleges protein content is something he considers when making food purchases, he doesn’t allege 4 he is an expert on the matter or that he has detailed knowledge of NFP labeling requirements. It’s 5 plausible that Miller was drawn to the products based on their protein claims and assumed, 6 incorrectly, that all of their stated protein amounts were usable. Accordingly, the Court finds 7 Miller has adequately alleged reliance. 8 E. Equitable Claims 9 Under “traditional principles governing equitable remedies in federal courts,” a plaintiff 10 “must establish that she lacks an adequate remedy at law before securing equitable” relief. Sonner 11 v.Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). 12 Nature’s Path argues that Miller’s equitable claims must be dismissed under Sonner 13 because he fails to demonstrate that he “lacks an adequate remedy at law.” ECF No. 32 at 30. 14 However, “[t]his Court, together with the majority of courts in this district, understands Sonner to 15 require far less at the pleading stage.” In re Natera Prenatal Testing Litig., 664 F. Supp. 3d 995, 16 1012 (N.D. Cal. 2023). At the pleading stage it is sufficient for a “plaintiff to plead that her legal 17 remedies are inadequate or plead equitable claims in the alternative because her legal remedies are 18 inadequate.” Brown v. Van’s Int’l Foods, Inc., No. 22-cv-00001-WHO, 2022 WL 1471454, at *13 19 (N.D. Cal. May 10, 2022). This is what Miller has alleged here. ECF No. 1 ¶¶ 113–115. 20 Accordingly, the Court declines to dismiss his equitable claims. 21 F. Unjust Enrichment 22 Nature’s Path also contends that Miller’s unjust enrichment claim must be dismissed 23 because unjust enrichment is not an independent cause of action in California. ECF No. 32 at 30– 24 31. While California case law on this issue could be clearer,1 the Ninth Circuit “has construed the 25 1 “There is no cause of action in California labeled ‘unjust enrichment.’” City of Oakland v. 26 Oakland Raiders, 83 Cal. App. 5th 458, 477 (2022) (citation omitted). “But ‘[c]ommon law principles of restitution require a party to return a benefit when the retention of such benefit would 27 unjustly enrich the recipient; a typical cause of action involving such remedy is ‘quasi-contract.’” 1 common law to allow an unjust enrichment cause of action through quasi-contract.” ESG Capital 2 Partners, LP v. Stratos, 828 F.3d 1023, 1038 (9th Cir. 2016) (citing Astiana v. Hain Celestial 3 Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015)). “[Nature’s Path] is therefore incorrect that the 4 unjust enrichment claim should be dismissed solely on the ground that no such claim is cognizable 5 under California law.” In re Toyota RAV4 Hybrid Fuel Tank Litig., 534 F. Supp. 3d 1067, 1120 6 (N.D. Cal. 2021) (quotation marks and citation omitted). 7 G. Motion to Strike Class Claims 8 “[A] motion to strike class claims based only on the pleadings is proper only if the court ‘is 9 convinced that any questions of law are clear and not in dispute, and that under no set of 10 circumstances could the claim or defense succeed.’” Parducci v. Overland Sols., Inc., 399 F. 11 Supp. 3d 969, 976 (N.D. Cal. 2019) (quoting In re iPad Unlimited Data Plan Litig., No. 10-cv- 12 2553-RMW, 2012 WL 2428248, at *2 (N.D. Cal. June 26, 2012)). 13 Nature’s Path asks the Court to strike Miller’s national class allegations because Miller 14 lacks standing to bring claims under the laws of states in which he does not reside and was not 15 injured. ECF No. 31 at 16–17. This Court has previously found that determinations of nationwide 16 class standing should be deferred until class certification. See e.g. In re Natera, 664 F. Supp. 3d at 17 1013–14. In Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015), the Ninth Circuit adopted the 18 “class certification approach” to such standing issues, holding “that once the named plaintiff 19 demonstrates her individual standing to bring a claim, the standing inquiry is concluded, and the 20 court proceeds to consider whether the Rule 23(a) prerequisites for class certification have been 21 met.” 784 F.3d at 1261–62. “Although Melendres ‘involved a dissimilarity in injuries suffered,’ 22 while this case involves named plaintiffs bringing legal claims pursuant to state laws for states 23 they did not reside in, ‘the distinction is not material for purposes of taking the class certification 24 approach.’” Hrapoff v. Hisamitsu Am., Inc., No. 21-cv-01943-JST, 2022 WL 2168076, at *2 25

26 has been unjustly enriched at the expense of another may be required to make restitution. Where the doctrine applies, the law implies a restitutionary obligation, even if no contract between the 27 parties itself expresses or implies such a duty. Though this restitutionary obligation is often 1 (N.D. Cal. June 16, 2022) (quoting Pecanha v. Hain Celestial Grp., Inc., No. 17-cv-04517-EMC, 2 }} 2018 WL 534299, at *9 (N.D. Cal. Jan. 24, 2018)). 3 Nature’s Path also asks the Court to strike the national class allegations because under 4 Mazza v. American Hondo Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012), California law cannot 5 apply to the nationwide claims. ECF No. 31 at 18. This Court has found that “[s]uch a detailed 6 || choice-of-law analysis is not appropriate at this stage of the litigation” but “[rJather, such a fact- 7 || heavy inquiry should occur during the class certification stage, after discovery.” Clancy v. 8 Bromley Tea Co., 308 F.R.D. 564, 572 (N.D. Cal. 2013). While Mazza “will be relevant to the 9 decision whether to certify any proposed class or sub-class . . . at this early stage of the litigation, 10 ‘tt would be premature to speculate about whether the difference in various states’ consumer 11 protection laws are material in this case.” Jd. (quoting Forcellati v. Hyland’s, Inc., 876 F. Supp. 12 2d 1155, 1159 (C.D. Cal. 2012)). Accordingly, the Court declines to strike Miller’s nationwide 13 class allegations. CONCLUSION 3 15 For the foregoing reasons the Court denies Nature’s Path’s motion to dismiss and motion a 16 || to strike.

= i IT IS SO ORDERED. || Datea: September 11, 2024 .

19 JON S. TIGAR 20 nited States District Judge 21 22 23 24 25 26 27 28