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2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 TIFFNI ALTES, Case No. 2:19-cv-04409-ODW (SKx) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR PRELIMINARY 14 BULLETPROOF 360, INC., INJUNCTION [31] 15 Defendant. 16 17 18 I. INTRODUCTION 19 Plaintiff Tiffni Altes (“Altes”) files a motion for preliminary injunction against 20 Defendant Bulletproof 360, Inc. (“Bulletproof”) for the sake of public health and the 21 right to a marketplace free of unfair competition. (See generally Mot. for Preliminary 22 Injunction (“Mot.”), ECF No. 31.) For the reasons that follow, the Court DENIES 23 Altes’s Motion for Preliminary Injunction (“Motion”).1 24 25 26 27
28 1 After carefully considering the papers filed in connection with the Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 Defendant Bulletproof manufactures, markets, distributes, and sells Bulletproof 3 Cold Brew Coffee (“Coffee Product”). (First Am. Compl. (“FAC”) ¶ 3, ECF No. 26.) 4 Altes alleges that she purchased the Coffee Product “at least twice in the last two 5 years.” (FAC ¶ 83.) Altes also alleges that she would not have purchased the product 6 had she known that the Coffee Product was unlawfully labeled or misbranded. (FAC 7 ¶ 83.) 8 Altes alleges that Bulletproof makes numerous deceptive and misleading health 9 claim. (FAC ¶¶ 27–37.) For instance, Altes lists the following statements and 10 representations that appear on the label of the Coffee Product as misleading and 11 deceptive: “All Day Energy + Protein,” “Certified Clean Coffee,” “Brain Octane Oil,” 12 “Fuel to Sustain Your Mind and Body,” 0g Sugar,” “Lasting Energy,” “Fewer 13 Cravings [] Brain Octane Oil Powers You Brain and Curbs Snack Attacks,” “It’s clean 14 coffee certified to be free of 27 energy-sapping toxins, plus grass-fed butter and 15 Bulletproof Octane Oil—extracted from the most potent part of the coconut—to 16 power your brain and body and give you steady, all day energy,” and “Essential for 17 Hair, Skin & Nails” on the Coffee Product with collagen protein. (FAC ¶¶ 62, 86.) 18 Altes also alleges that similar health claims appear on Bulletproof’s website 19 referenced on the label of the Coffee Product. (FAC ¶ 21.) 20 Altes further alleges that Bulletproof ignores the Food and Drug Administration 21 (“FDA”) regulations in marketing its Coffee Product, makes health benefit claims that 22 should require FDA new drug approval, and fails to comply with FDA regulations 23 governing nutrient content claims. (FAC ¶¶ 6–7, 50–70.) Specifically, Altes alleges 24 that Bulletproof fails to comply with the labeling requirements for over-the-counter 25 stimulant drug products despite its claims to boost energy. (FAC ¶¶ 46–49.) Altes 26 also alleges that Bulletproof violates FDA regulations by stating “zero sugar” and “0g 27 sugar” on its label without indicating that the product is “not a lowcalorie food.” 28 (FAC ¶¶ 50–61.) Bulletproof further makes unauthorized nutrient content claims 1 regarding the effects of collagen in its product. (FAC ¶¶ 61–64.) Finally, Altes 2 alleges that the FDA regulations disqualify the Coffee Product from making any 3 health claim at all because of its excessive saturated fats content. (FAC ¶¶ 65–70.) 4 Ultimately, Altes surmises that by deceiving consumers into purchasing unhealthy 5 products and failing to comply with various regulations, Bulletproof benefits from an 6 unfair advantage over competitors that comply with the state and federal law. (FAC 7 ¶ 9.) 8 As a result, on May 21, 2019, Altes brought suit against Bulletproof on behalf 9 of herself and all others similarly situated alleging a violation of the (1) Unfair 10 Competition Law (“UCL”) and (2) Consumer Legal Remedies Act (“CLRA”). (FAC 11 ¶¶ 88, 96–111.) Primarily for the sake of public health, Altes seeks a preliminary 12 injunction against Bulletproof and files the instant motion. 13 III. LEGAL STANDARD 14 Federal Rule of Civil Procedure 65 governs the issuance of preliminary 15 injunctions. An injunction is an exercise of a court’s equitable authority which should 16 not be invoked as a matter of course, but “only after taking into account all of the 17 circumstances that bear on the need for prospective relief.” Salazar v. Buono, 559 18 U.S. 700, 714 (2010). To obtain a preliminary injunction, the moving party must 19 show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to 20 the moving party in the absence of preliminary relief; (3) that the balance of the 21 equities tips in the moving party’s favor; and (4) that an injunction is in the public 22 interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 23 A preliminary injunction is “an extraordinary remedy that may only be awarded 24 upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22. The 25 moving party bears the burden of meeting all four Winter elements. DISH Network v. 26 FCC, 653 F.3d 771, 776–77 (9th Cir. 2011). 27 28 1 IV. REQUEST FOR JUDICIAL NOTICE2 2 Bulletproof seeks judicial notice of a screen capture of its website and two 3 journal articles that Altes relies on in her Motion. (Req. for Judicial Notice, ECF 4 No. 34.) “[A] court may judicially notice a fact that is not subject to reasonable 5 dispute because it: (1) is generally known within the trial court’s territorial 6 jurisdiction; or (2) can be accurately and readily determined from sources whose 7 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A document may 8 be incorporated by reference where neither party disputes its authenticity and the 9 pleading necessarily relies on the document. See Marder v. Lopez, 450 F.3d 445, 448 10 (9th Cir. 2006). Here, Bulletproof requests the Court to consider materials 11 incorporated by reference in both Altes’s Motion and the amended complaint. As 12 neither party disputes its authenticity, the Court may consider the exhibits in the 13 disposition of this Motion. 14 V. DISCUSSION 15 Altes seeks a preliminary injunction against Bulletproof primarily to protect the 16 health of current and future consumers. Bulletproof asserts that Altes faces no 17 irreparable harm and any possible injury could be redressed with monetary damages. 18 As a preliminary matter, Altes fails to specify what she seeks to enjoin. 19 (Mot. 12.) Specifically, she does not indicate whether she wishes the Court to order 20 Bulletproof to update its labels and become compliant with the FDA regulations, 21 enjoin Bulletproof from selling its Coffee Product altogether, or grant an entirely 22 different remedy. If narrowly tailored to prevent only the illegal conduct at issue, an 23 injunction is permissible, however, the Court does not reach the issue because it finds 24 that Altes has failed to assert any irreparable harm. 25 “[P]laintiffs seeking preliminary injunctive relief [must] demonstrate that 26 irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. A 27 2 Bulletproof files objections to the Declaration of Karl Nadolsky. (Evid. Objs. and Req. to Strike 28 Decl. of Karl Nadolsky, ECF No. 36.) As the Court finds on alternative grounds that Altes fails to assert cognizable irreparable harm, the Court DENIES all objection as moot. 1 mere possibility of irreparable harm is insufficient. Id.
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2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 TIFFNI ALTES, Case No. 2:19-cv-04409-ODW (SKx) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR PRELIMINARY 14 BULLETPROOF 360, INC., INJUNCTION [31] 15 Defendant. 16 17 18 I. INTRODUCTION 19 Plaintiff Tiffni Altes (“Altes”) files a motion for preliminary injunction against 20 Defendant Bulletproof 360, Inc. (“Bulletproof”) for the sake of public health and the 21 right to a marketplace free of unfair competition. (See generally Mot. for Preliminary 22 Injunction (“Mot.”), ECF No. 31.) For the reasons that follow, the Court DENIES 23 Altes’s Motion for Preliminary Injunction (“Motion”).1 24 25 26 27
28 1 After carefully considering the papers filed in connection with the Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 Defendant Bulletproof manufactures, markets, distributes, and sells Bulletproof 3 Cold Brew Coffee (“Coffee Product”). (First Am. Compl. (“FAC”) ¶ 3, ECF No. 26.) 4 Altes alleges that she purchased the Coffee Product “at least twice in the last two 5 years.” (FAC ¶ 83.) Altes also alleges that she would not have purchased the product 6 had she known that the Coffee Product was unlawfully labeled or misbranded. (FAC 7 ¶ 83.) 8 Altes alleges that Bulletproof makes numerous deceptive and misleading health 9 claim. (FAC ¶¶ 27–37.) For instance, Altes lists the following statements and 10 representations that appear on the label of the Coffee Product as misleading and 11 deceptive: “All Day Energy + Protein,” “Certified Clean Coffee,” “Brain Octane Oil,” 12 “Fuel to Sustain Your Mind and Body,” 0g Sugar,” “Lasting Energy,” “Fewer 13 Cravings [] Brain Octane Oil Powers You Brain and Curbs Snack Attacks,” “It’s clean 14 coffee certified to be free of 27 energy-sapping toxins, plus grass-fed butter and 15 Bulletproof Octane Oil—extracted from the most potent part of the coconut—to 16 power your brain and body and give you steady, all day energy,” and “Essential for 17 Hair, Skin & Nails” on the Coffee Product with collagen protein. (FAC ¶¶ 62, 86.) 18 Altes also alleges that similar health claims appear on Bulletproof’s website 19 referenced on the label of the Coffee Product. (FAC ¶ 21.) 20 Altes further alleges that Bulletproof ignores the Food and Drug Administration 21 (“FDA”) regulations in marketing its Coffee Product, makes health benefit claims that 22 should require FDA new drug approval, and fails to comply with FDA regulations 23 governing nutrient content claims. (FAC ¶¶ 6–7, 50–70.) Specifically, Altes alleges 24 that Bulletproof fails to comply with the labeling requirements for over-the-counter 25 stimulant drug products despite its claims to boost energy. (FAC ¶¶ 46–49.) Altes 26 also alleges that Bulletproof violates FDA regulations by stating “zero sugar” and “0g 27 sugar” on its label without indicating that the product is “not a lowcalorie food.” 28 (FAC ¶¶ 50–61.) Bulletproof further makes unauthorized nutrient content claims 1 regarding the effects of collagen in its product. (FAC ¶¶ 61–64.) Finally, Altes 2 alleges that the FDA regulations disqualify the Coffee Product from making any 3 health claim at all because of its excessive saturated fats content. (FAC ¶¶ 65–70.) 4 Ultimately, Altes surmises that by deceiving consumers into purchasing unhealthy 5 products and failing to comply with various regulations, Bulletproof benefits from an 6 unfair advantage over competitors that comply with the state and federal law. (FAC 7 ¶ 9.) 8 As a result, on May 21, 2019, Altes brought suit against Bulletproof on behalf 9 of herself and all others similarly situated alleging a violation of the (1) Unfair 10 Competition Law (“UCL”) and (2) Consumer Legal Remedies Act (“CLRA”). (FAC 11 ¶¶ 88, 96–111.) Primarily for the sake of public health, Altes seeks a preliminary 12 injunction against Bulletproof and files the instant motion. 13 III. LEGAL STANDARD 14 Federal Rule of Civil Procedure 65 governs the issuance of preliminary 15 injunctions. An injunction is an exercise of a court’s equitable authority which should 16 not be invoked as a matter of course, but “only after taking into account all of the 17 circumstances that bear on the need for prospective relief.” Salazar v. Buono, 559 18 U.S. 700, 714 (2010). To obtain a preliminary injunction, the moving party must 19 show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to 20 the moving party in the absence of preliminary relief; (3) that the balance of the 21 equities tips in the moving party’s favor; and (4) that an injunction is in the public 22 interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 23 A preliminary injunction is “an extraordinary remedy that may only be awarded 24 upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22. The 25 moving party bears the burden of meeting all four Winter elements. DISH Network v. 26 FCC, 653 F.3d 771, 776–77 (9th Cir. 2011). 27 28 1 IV. REQUEST FOR JUDICIAL NOTICE2 2 Bulletproof seeks judicial notice of a screen capture of its website and two 3 journal articles that Altes relies on in her Motion. (Req. for Judicial Notice, ECF 4 No. 34.) “[A] court may judicially notice a fact that is not subject to reasonable 5 dispute because it: (1) is generally known within the trial court’s territorial 6 jurisdiction; or (2) can be accurately and readily determined from sources whose 7 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A document may 8 be incorporated by reference where neither party disputes its authenticity and the 9 pleading necessarily relies on the document. See Marder v. Lopez, 450 F.3d 445, 448 10 (9th Cir. 2006). Here, Bulletproof requests the Court to consider materials 11 incorporated by reference in both Altes’s Motion and the amended complaint. As 12 neither party disputes its authenticity, the Court may consider the exhibits in the 13 disposition of this Motion. 14 V. DISCUSSION 15 Altes seeks a preliminary injunction against Bulletproof primarily to protect the 16 health of current and future consumers. Bulletproof asserts that Altes faces no 17 irreparable harm and any possible injury could be redressed with monetary damages. 18 As a preliminary matter, Altes fails to specify what she seeks to enjoin. 19 (Mot. 12.) Specifically, she does not indicate whether she wishes the Court to order 20 Bulletproof to update its labels and become compliant with the FDA regulations, 21 enjoin Bulletproof from selling its Coffee Product altogether, or grant an entirely 22 different remedy. If narrowly tailored to prevent only the illegal conduct at issue, an 23 injunction is permissible, however, the Court does not reach the issue because it finds 24 that Altes has failed to assert any irreparable harm. 25 “[P]laintiffs seeking preliminary injunctive relief [must] demonstrate that 26 irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. A 27 2 Bulletproof files objections to the Declaration of Karl Nadolsky. (Evid. Objs. and Req. to Strike 28 Decl. of Karl Nadolsky, ECF No. 36.) As the Court finds on alternative grounds that Altes fails to assert cognizable irreparable harm, the Court DENIES all objection as moot. 1 mere possibility of irreparable harm is insufficient. Id. “[A] party is not entitled to a 2 preliminary injunction unless he or she can demonstrate more than simply damages of 3 a pecuniary nature.” Regents of Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 519 4 (9th Cir. 1984) (citing Los Angeles Mem. Coliseum Comm’n v. NFL, 634 F.2d 1197, 5 1202 (9th Cir. 1980)); but see Herb Reed Enters., LLC v. Florida Entm’t Mgmt., 736 6 F.3d 1239, 1250 (9th Cir. 2013) (discussing, in the trademark context, that “[e]vidence 7 of loss of control over business reputation and damage to goodwill could constitute 8 irreparable harm”). “[P]laintiff must demonstrate potential harm which cannot be 9 redressed by a legal or an equitable remedy following a trial. The preliminary 10 injunction must be the only way of protecting the plaintiff from the harm.” Columbia 11 Sussex Mgmt., LLC v. City of Santa Monica, No. 219CV09991ODWSKX, 2019 WL 12 6893967, at *2 (C.D. Cal. Dec. 18, 2019) (citing Campbell Soup Co. v. ConAgra, Inc., 13 977 F.2d 86, 91 (3d Cir. 1992)). 14 Altes concedes “that the money she paid for Bulletproof can be quantified and 15 redressed with a restitutionary award.” (Reply 2, ECF No. 37.) Likewise, class 16 members’ claims that fraud or deception induced their purchase of the Coffee Product 17 can similarly be redressed by money damages. See Kane v. Chobani, Inc., No. 12-CV- 18 02425-LHK, 2013 WL 3776172, at *10 (N.D. Cal. July 15, 2013) (finding that the 19 damages from fraud-induced purchases are monetary); Colorado River Indian Tribes 20 v. Town of Parker, 776 F.2d 846, 850–51 (9th Cir.1985) (“[P]urely monetary injury is 21 compensable, and thus not irreparable.” (internal citations and quotations omitted)). 22 However, Altes also asserts that the significant health risk posed by the labels 23 constitutes irreparable harm. For example, she argues that consumers will 24 misconstrue the “0 sugar” and “Zero sugar” claims to mean that the product is low in 25 calories. (Mot. 9.) However, text on the label stating: “Brain Octane Oil” and “Grass- 26 Fed Butter” juxtaposes the zero sugar claims and clearly specifies the exact number of 27 calories and saturated fats present per serving size. (FAC ¶¶ 18, 20.) Consequently, 28 the Court does not believe that a reasonable consumer will be so deceived into 1 || consuming unwanted calories, and thereby, unintentionally causing irreparable harm 2 || to oneself. See Kane, 2013 WL 3776172, at *9 (N.D. Cal. July 15, 2013) (“Given that 3 || the labels accurately disclose the total amount of sugar in each yogurt, the Court is not 4 || persuaded that [dJefendant’s use of the term [evaporated cane juice] is likely to cause 5 || consumers to unintentionally consume excess sugar and to suffer irreparable health 6 || effects from the over-consumption of sugar.”) 7 To warrant a preliminary injunction, the moving party must show a likelihood 8 || of irreparable injury.’ As Altes has failed to do so here, she has not established that 9 || she is entitled to the extraordinary remedy of a preliminary injunction. Accordingly, 10 || the Court need not reach the likelihood of success on the merits, balance of hardships 11 || or the public interest. 12 IV. CONCLUSION 13 For the foregoing reasons, DENIES Altes’s Motion for Preliminary Injunction 14 || (ECF No. 31). 15 16 IT ISSO ORDERED. 17 18 February 25, 2020 19 Y 20 Geddiod OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE
23 24 25 26 7 3 To the extent that Altes asserts an irreparable harm due to deception in the marketplace, the Court finds the argument vague and speculative. In re Excel Innovations, Inc., 502 F.3d 1086, 1098 (9th 28 || Cir. 2007) (“Speculative injury cannot be the basis for a finding of irreparable harm.” (citations omitted).)