In re: Nestle Boost Nutritional Drink Litigation

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE: NESTLE BOOST NUTRITIONAL Case No. 21-cv-09812-JSC DRINK LITIGATION 8 ORDER RE: DEFENDANT’S MOTION 9 FOR SUMMARY JUDGMENT AS TO THE NAMED PLAINTIFFS 10 Re: Dkt. Nos. 83, 88 11 12 Plaintiffs filed a putative class action on behalf of consumers who purchased two of 13 defendant Nestlé HealthCare Nutrition, Inc.’s products—Boost Glucose Control and Boost 14 Glucose Control High Protein—alleging the “representations that the Products control glucose and 15 are designed for diabetics are deceptive.” (Dkt. No. 59 ¶ 5.) Pending before the Court is 16 Defendant’s motion for summary judgment as to the three named plaintiffs. Having carefully 17 considered the parties’ submissions, and with the benefit of oral argument on April 17, 2025, the 18 Court GRANTS in part and DENIES in part Defendant’s motion. While Sandra George lacks 19 statutory standing to challenge the alleged misrepresentations because undisputed evidence 20 establishes she did not rely on them, there are genuine disputes of fact as to Bruce Horti and 21 Steven Owen. 22 BACKGROUND 23 Defendant markets and distributes Boost Glucose Control and Boost Glucose Control High 24 Protein.1 Plaintiffs challenge three statements that have appeared on Defendant’s labels during the 25 26 27 1 relevant period’: (1) “designed for people with diabetes”; (2) the name of the product (“Boost ’ 2 Glucose Control”); and (3) “helps manage blood sugar” followed by an asterisk referring to ’ 3 language on the back of the label stating “Clinically shown to produce a lower blood sugar 4 || response vs. a standard nutritional drink in people with type 2 diabetes. Incorporate into a 5 balanced diet as part of a medically supervised diabetes management plan. Not a substitute for 6 medication.” (Dkt. Nos. 84-2 (bold in original); 84-3.)?> Examples of the front and back label 7 statements are pictured below: 8 Taal ee eR | a —HELPS 9 cattaee MA eNestie MANAGE NES 4 MANAGE. @ □□□□ BLOOD SUGAR* a Abdi | MOM □□ □□ 1 Bo CeodiaRenenter) epee aa | |iase 8 versa | omen □□□□□□□ ls ‘ncorpgraie BOOSTOLUCOSE. □□ ue poukpabemaeeerne| cl er = in Biz Marulactuted for □□□□□ □□□□□□□□□□ □□□□□□□□□ Inc. EE = | [Him | pe aan | remeron 22 (Dkt. No. 84-2; Dkt. No. 84-3.) 23 24 25 ? While the labels changed slightly over time, the parties—citing Docket No. 79—agree such variation does not affect Plaintiffs’ claims for purposes of this motion. (Dkt. No. 83 at 4 n.2; Dkt. 26 || No. 88-3 at 9.) Docket No. 79 is a stipulation “[s]olely for purposes of briefing related to Plaintiffs . .. motion for class certification.” Because both parties refer to the stipulation in 07 arguing the present summary judgment motion, the Court understands the stipulation to apply to the summary judgment motion, too. 28 3 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. rT 1 Plaintiffs sued in December 2021, alleging “[t]he Products are mislabeled, and trick[] 2 reasonable consumers into believing that [they] can prevent and treat diabetes.” (Dkt. No. 1 ¶ 4.) 3 The court to whom the case was previously assigned twice granted Defendant’s motion to 4 dismiss—the second time with prejudice. (Dkt. Nos. 27, 39.) 5 The Ninth Circuit reversed. (Dkt. No. 47.) First, the court held Plaintiffs pleaded an injury 6 sufficient to support standing because “Plaintiffs allege[d] that they purchased a product they 7 otherwise would not have bought but for defendant’s alleged misrepresentations” so “[t]he 8 purchase price itself [was] a ‘tangible economic injury.’” (Id. at 2.) Second, the court held a 9 “reasonable consumer could understand [the challenged] representations to indicate that the 10 product will have a positive effect on diabetes and blood sugar levels” so Plaintiffs sufficiently 11 alleged the label representations were likely to mislead a reasonable consumer. (Id. at 2-3.) 12 In February 2024, Plaintiffs filed the operative consolidated complaint. (Dkt. No. 59.) 13 Bruce Horti, Sandra George, and Steven Owen (the “Named Plaintiffs”) are citizens of California 14 and New Jersey who purchased Boost Glucose Control. The complaint alleges “Defendant’s 15 representations are reasonably understood by consumers, and were understood by Plaintiffs, to 16 mean that the Products would have some affirmatively therapeutic impact on their blood glucose 17 levels, or otherwise mitigate, treat, or prevent prediabetes or diabetes.” (Id. ¶ 5.) Specifically, 18 Plaintiffs allege the name “Boost Glucose Control” and the representation it “helps manage blood 19 sugar” “convey to a reasonable consumer that the Products affirmatively do something to control 20 blood sugar: that whatever one’s blood glucose is at the time they take the Products, drinking the 21 Products will make it better.” (Id. ¶ 50.) Plaintiffs further allege the statement “designed for 22 people with diabetes” “reasonably conveyed to Plaintiffs that the Products were scientifically 23 formulated to have some mechanism of action that provides a therapeutic benefit regarding 24 diabetes/prediabetes.” (Id. ¶ 51.) Taken together, Plaintiffs allege, the label statements “convey a 25 clear and unmistakable message: if you are concerned about diabetes, this product will benefit you 26 by acting on the underlying biological deficiency that defines diabetes by controlling your blood 27 glucose levels.” (Id. ¶ 52.) 1 California’s Unfair Competition Law (“UCL”), California’s False Advertising Law (“FAL”), and 2 California’s Consumer Legal Remedies Act (“CLRA”). Mr. Owen, on behalf of a proposed 3 nationwide class or in the alternative, a proposed New Jersey subclass, alleges a violation of the 4 New Jersey Consumer Fraud Act. Plaintiffs also allege unjust enrichment and breach of express 5 and implied warranties. 6 DISCUSSION 7 Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the movant 8 shows that there is no genuine dispute as to any material fact and the movant is entitled to 9 judgment as a matter of law.” The moving party bears the initial burden of demonstrating the lack 10 of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he 11 burden then moves to the opposing party, who must present significant probative evidence tending 12 to support its claim.” Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 13 1991) (cleaned up). 14 In ruling on a motion for summary judgment, the Court must “view the evidence presented 15 through the prism of the substantive evidentiary burden.” Anderson v. Liberty Lobby, Inc., 477 16 U.S. 242, 254 (1986). The evidence of the non-movant is to be believed, and all justifiable 17 inferences are to be drawn in the non-movant’s favor. Id. at 255. “Credibility determinations, the 18 weighing of the evidence, and the drawing of legitimate inferences from the facts are jury 19 functions, not those of a judge . . . ruling on a motion for summary judgment.” Id. 20 I. EVIDENTIARY OBJECTIONS 21 At the outset, the Court addresses Plaintiffs’ evidentiary objections. First, Plaintiffs object 22 to Exhibit 9,4 a “printout from the Internet Archive’s Wayback Machine,” on the ground the 23 declarant has no personal knowledge of the webpage at issue. (Dkt. No. 88-3 at 14.) As the Court 24 does not rely on Exhibit 9 in reaching its conclusion, the Court declines to consider the objection. 25 Plaintiffs also object to Exhibits 9-15, “documents regarding clinical trials,” on the ground 26 the declarant—an attorney at the law firm representing Defendant—has “no personal knowledge 27 1 of these trials” and further, the studies represent “improper expert opinion” when offered by the 2 declarant. (Id.) Plaintiffs’ objections are overruled. At the summary judgment stage, the 3 evidence “does not yet need to be in a form that would be admissible at trial.” Norse v. City of 4 Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). So, the Court “do[es] not focus on the 5 admissibility of the evidence’s form” but instead “the admissibility of its contents.” Fraser v. 6 Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Through the studies, Defendant “set out facts that 7 it will be able to prove through admissible evidence” such as testimony from a Nestlé company 8 representative involved in the clinical trials or testimony from an expert witness. See Norse, 629 9 F.3d at 973. 10 II. NAMED PLAINTIFFS’ INJURY 11 Defendant moves for summary judgment on the ground “Plaintiffs cannot establish either 12 deception or a resulting injury based on the Boost labeling because their own sworn testimony 13 makes clear that, contrary to the allegations in their complaint, they were neither deceived nor 14 harmed by those labels.” (Dkt. No. 83 at 21.) 15 The UCL, FAL, and CLRA each require a plaintiff to establish statutory standing.5 See 16 Cal. Bus. & Prof. Code §§ 17204, 17535; Cal. Civ. Code § 1780(a). To do so, a plaintiff must 17 “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., 18 economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the 19 unfair business practice or false advertising that is the gravamen of the claim.” Kwikset Corp. v. 20 Superior Ct., 51 Cal. 4th 310, 322 (2011). “To prove the second element of causation, the plaintiff 21 must show that she actually relied on the allegedly deceptive or misleading statements and that it 22 was an immediate cause of her injury.” Shaeffer v. Califia Farms, LLC, 44 Cal. App. 5th 1125, 23 5 Courts have “considered the standing requirements under [the CLRA, UCL, and FAL] together.” 24 Veera v. Banana Republic, LLC, 6 Cal. App. 5th 907, 916 (2016); see also Hinojos v. Kohl’s 25 Corp., 718 F.3d 1098, 1108 (9th Cir. 2013) (“[A]ny plaintiff who has standing under the UCL’s and FAL’s ‘lost money or property’ requirement will, a fortiori, have suffered ‘any damage’ for 26 purposes of establishing CLRA standing.”). As no party argues standing should be analyzed separately for each statute, the Court analyzes the California claims together. Moreover, while 27 Mr. Owen alleges violations of New Jersey law, the parties agreed at oral argument that the Court 1 1137 (2020) (quoting Kwikset, 51 Cal. 4th at 326-27) (cleaned up). “A consumer who relies on a 2 product label and challenges a misrepresentation contained therein can satisfy the standing 3 requirement” by establishing “that he or she would not have bought the product but for the 4 misrepresentation.” Kwikset, 51 Cal. 4th at 330. 5 A. Sandra George 6 Defendant argues Ms. George cannot establish a viable claim for deception because (1) she 7 continued to purchase Boost Glucose Control for years after filing suit, and (2) the product’s 8 impact on her blood sugar levels comported with her understanding of the label statements. 9 Defendant’s first argument is dispositive. It is undisputed Ms. George continued buying 10 Boost Glucose Control after the lawsuit was filed. (Dkt. No. 84-6 at 31.) Ms. George filed suit in 11 December 2021. (Dkt. No. 1.) She bought and consumed Boost Glucose Control through 12 approximately February 2024. (Dkt. No. 84-6 at 31.) At that point, having retired, “price ha[d] 13 become more important” so Ms. George sought out “something that’s lower in price.” (Id. at 33.) 14 As other courts have found, a plaintiff continuing to purchase the challenged product after learning 15 of the alleged deception fatally undermines their claim they were deceived by the product. See, 16 e.g., Doe v. SuccessfulMatch.com, 70 F. Supp. 3d 1066, 1082 (N.D. Cal. 2014) (on a motion to 17 dismiss, observing if “Plaintiffs purchased or continued to purchase Defendant’s services after 18 discovering Defendant’s allegedly fraudulent conduct, then Plaintiffs may have no claim under 19 either the UCL or the CLRA”); Red v. Kraft Foods, Inc., No. CV 10-1028-GW AGRX, 2011 WL 20 4599833, at *12 (C.D. Cal. Sept. 29, 2011) (on a motion for class certification, noting if the named 21 plaintiffs “continued to purchase” the challenged products after “th[e] lawsuit was filed” and “they 22 had knowledge that the representations on the packages were false or misleading,” then the named 23 plaintiffs “have almost certainly destroyed the ability of the class to ever establish reliance and/or 24 materiality of the alleged misrepresentations”). Here, too, that Ms. George bought Boost Glucose 25 Control after learning about the allegedly deceptive statements demonstrates as a matter of law she 26 did not rely on the challenged statements or else did not find them material and therefore suffered 27 1 no injury. Plaintiffs’ opposition ignores this dispositive issue.6 So, the Court GRANTS summary 2 judgment in favor of Defendant as to Ms. George. 3 B. Bruce Horti 4 Defendant raises three arguments as to Mr. Horti. First, Defendant argues Plaintiffs failed 5 to establish Mr. Horti looked at the labels, so Plaintiffs are precluded from arguing he was 6 deceived by the labels. In support of this argument, Defendant cites the following deposition 7 testimony: 8 Q: Can you ever recall at any time ever looking at the label on BOOST Glucose Control. 9 A: Again, I’d be sort of speculating. I don’t know, particularly on BOOST Glucose Control, if I looked at the label. 10 I’m not sure. Q. Is it your typical practice to look at a label on a food before you 11 buy it or not? A. Not always. 12 13 (Dkt. No. 84-7 at 19-20.) As an initial matter, it is not clear as a matter of law what is meant by 14 “label” in this exchange, as drawing all reasonable inferences in Plaintiffs’ favor, “label” could 15 also refer to a nutrition label. 16 Moreover, Plaintiffs identify evidence creating a genuine dispute of fact as to whether Mr. 17 Horti saw two of the challenged representations on the Boost Glucose Control label. First, a 18 reasonable trier of fact could find Mr. Horti saw the name of the product, Boost Glucose Control, 19 when he purchased it: Mr. Horti testified the product “said glucose control” so he “thought, well, 20 it’s supposed to control my glucose, it’s supposed to be better for me.” (Dkt. No. 89-7 at 15; see 21 also id. at 16 (“I thought BOOST was a good name and I thought that being glucose control would 22 be good for me.”) (emphasis added); id. at 28 (stating he thought the product would “control [his] 23 glucose.”).) Second, a reasonable trier of fact could find Mr. Horti saw “designed for people with 24 diabetes” on the label when he purchased the product. When asked “What did you think was in 25 there that was better for you?” Mr. Horti testified “Yeah, I didn’t really recall reading the 26 27 6 At oral argument, Plaintiffs asserted the opposition addresses the fact Ms. George continued to 1 instructions or the directions . . . . Just assumed it would – says it’s for diabetics, probably [sic] 2 better for me.” (Dkt. No. 89-7 at 14 (emphasis added); id. at 15 (“You know, it says it’s for 3 diabetics. It specifically said at the top it’s better for diabetics.”).) But, as Plaintiffs present no 4 evidence Mr. Horti saw or relied on the other statement Plaintiffs challenge—“helps manage blood 5 sugar”—Mr. Horti cannot challenge this representation. See Wilson v. Frito-Lay N. Am., Inc., 260 6 F. Supp. 3d 1202, 1212 (N.D. Cal. 2017) (concluding the plaintiff “abandoned his challenge” to 7 the label statements he said during his deposition he was not challenging). 8 Defendant also moves for summary judgment on the ground Mr. Horti “was not deceived, 9 as he understood exactly what the Boost drinks would do to his blood sugar before he drank 10 them.” (Dkt. No. 83 at 24.) Mr. Horti testified he “expect[ed] [Boost Glucose Control] to have 11 benefits for somebody with diabetes” meaning “less of a spike in [his] insulin.” (Dkt. No. 84-7 at 12 22.) Defendant presented undisputed evidence that Boost Glucose Control produces a lower and 13 more gradual rise in blood sugar levels when compared to Boost Original. (Dkt. No. 84-14 at 5- 14 7.) Mr. Horti also testified he expected the product to have an ingredient such as chromium that is 15 “supposed to have a benefit for diabetics.” (Id. at 9.) While Plaintiffs dispute the benefit of 16 chromium, (Dkt. No. 88-3 at 26-27), they do not dispute the presence of chromium in Boost 17 Glucose Control. (Dkt. No. 84-1 at 8 (“Boost Glucose Control has . . . vitamins and minerals, 18 including chromium, which is important for blood glucose metabolism.”).) 19 So, the burden shifts to Plaintiffs to identify evidence creating a genuine dispute as to 20 whether Mr. Horti was deceived. Plaintiffs have met their burden. At his deposition, Mr. Horti 21 testified he expected benefits beyond “just . . . the sugar level”: 22 Q: So . . . what do you want from the product? A: Well, again, for it to control my glucose. 23 . . . Q: You said you wanted the product to control your glucose? 24 A: Uh-huh. Q: And I’m asking how you wanted it to do that? 25 A: Well, again, that’s sort of based on, you know, a symptom that would be discernible, you know. And I think you mentioned earlier 26 something about if it would just eliminate diabetes altogether, that might be a miracle product . . . so I don’t expect it to do that. 27 But you’d expect it to have some impact. But that might be based on 1 (Dkt. No. 89-7 at 28-29.) In addition, when asked “What do you think BOOST Glucose Control 2 does?” Mr. Horti responded, “Supposed to help, you know, improve my blood sugar and then 3 possibly do other things for me.” (Dkt. No. 84-7 at 25.) From this evidence, a reasonable trier of 4 fact could find Mr. Horti interpreted “Boost Glucose Control” and “designed for people with 5 diabetes” to mean the product would be more than a low-sugar drink that produces a lower rise in 6 blood sugar levels than Boost Original. A reasonable trier of fact could find Mr. Horti understood 7 these challenged representations to mean the product would “control [his] glucose” and “improve 8 [his] blood sugar.” (Id.) Or, as alleged in the complaint, that Boost Glucose Control would “have 9 some affirmatively therapeutic impact on [his] blood glucose levels.” (Dkt. No. 59 ¶ 5.) To the 10 extent Mr. Horti’s deposition testimony contains inconsistent statements about the benefits he 11 expected from Boost Glucose Control, the Court draws all inferences in Plaintiffs’ favor. 12 Third, Defendant argues Mr. Horti cannot state a claim for deception because he “ignored 13 key context” on the label. (Dkt. No. 83 at 25.) Specifically, Defendant contends Mr. Horti 14 ignored “the clearly disclosed amount of sugar on the front of the label and the diamond-shaped 15 asterisk next to the phrase ‘helps manage blood sugar,’ which corresponded to a back-label 16 statement that the drinks are ‘clinically shown to produce a lower blood sugar response vs. a 17 standard nutritional drink in people with type 2 diabetes. Not a substitute for medication.’” (Dkt. 18 No. 83 at 25.) Essentially, Defendant argues there was no misrepresentation as a matter of law 19 because the challenged representations—when viewed in conjunction with other statements on the 20 label—cannot be interpreted to mean the product affirmatively improves and/or controls blood 21 sugar. See Judicial Council Of California Civil Jury Instruction 4700 (citing Cal. Civ. Code § 22 1770(a)(5)) (for a CLRA claim, the plaintiff must prove the defendant represented the product 23 “had characteristics, uses, or benefits that it did not have”). 24 The summary judgment record does not support Defendant’s argument. As the Ninth 25 Circuit found at the motion to dismiss stage, a reasonable consumer could understand the labels’ 26 representations “to indicate that the product will have a positive effect on diabetes and blood sugar 27 levels.” Horti v. Nestle Healthcare Nutrition, Inc., No. 22-16832, 2023 WL 8613601, at *1 (9th 1 presented evidence Mr. Horti did interpret “Boost Glucose Control” and “designed for people with 2 diabetes” to mean the product would have a positive effect on his blood sugar levels. And 3 drawing all inferences in Plaintiffs’ favor, a reasonable trier of fact could find the label is 4 misleading even though it discloses the four grams of sugar because a product could contain sugar 5 and have a therapeutic effect on glucose levels. So, there is a dispute of fact as to whether the 6 challenged representations—when viewed alongside the other statements on the label—are 7 misleading. Put another way, having found a genuine dispute of fact as to whether Mr. Horti was 8 personally deceived, the Court will not rule as a matter of law that Mr. Horti could not have been 9 deceived because the label was not misleading. Especially when Defendant did not move for 10 summary judgment on this ground. (Dkt. No. 92 at 6 (“But this motion is not about what other 11 consumers or Nestlé might think. It is about what the named Plaintiffs themselves thought of the 12 Boost labels, and whether they were deceived.”); id. (“Nestlé seeks summary judgment based on 13 named Plaintiffs’ own individual experiences.”).) 14 So, the Court DENIES Defendant’s motion for summary judgment as to Mr. Horti. 15 However, because there is no evidence Mr. Horti saw “helps manage blood sugar” on the label 16 when be bought it, Mr. Horti is limited to challenging the “Boost Glucose Control” and “designed 17 for people with diabetes” representations. 18 C. Steven Owen 19 Defendant contends Mr. Owen “cannot maintain a claim of deception” because he 20 “ignor[ed] prominent, front-label information.” (Dkt. No. 83 at 25.) Defendant highlights Mr. 21 Owen’s testimony that he looked at “[j]ust the name” on the label: 22 Q. Did you take time to look into the product before you bought it? A. No. 23 Q. Did you look at any other similar products? A. No. 24 Q. Did you look at the nutrient facts? A. No. 25 Q. Did you look at anything else on the label other than just the name? A. Just the name. 26 (Dkt. No. 84-8 at 15.) Mr. Owen later reiterated this sentiment. (Dkt. No. 84-8 at 25 “Q: Did you 27 look at this ingredient list either before or after buying the BOOST drinks? A: No. Q: Did you 1 look at the nutrition facts before or after buying the BOOST drinks? A: No.”).) 2 Plaintiffs do not create a genuine dispute of fact as to whether Mr. Owen saw anything 3 other than the name of the product when he purchased it. Plaintiffs point to the following 4 testimony: 5 Q: Do you recall looking at the labels of BOOST Glucose Control? A: Just the ones I bought. 6 Q: Did you look at the actual bottles that you purchased or just pictures of the labels? 7 A: Just pictures and what it said. 8 (Dkt. No. 89-8 at 13.) That Mr. Owen “look[ed] at the labels” is consistent with his testimony that 9 he did not “look at anything else on the label other than just the name.” (Dkt. No. 84-8 at 15.) 10 Plaintiffs also refer to the following testimony: 11 Q: So what statements on the BOOST labels do you think are misleading? 12 A: It says controls sugar. 13 (Dkt. No. 89-8 at 20.) But this testimony does not establish Mr. Owen saw the phrases “helps 14 manage blood sugar” and/or “designed for people with diabetes” before purchasing the product. 15 And given Mr. Owen’s unambiguous testimony he viewed “[j]ust the name” of the product before 16 purchasing it, it would be unreasonable to infer Mr. Owen saw either statement based on the above 17 testimony Plaintiffs identified. So, Mr. Owen’s claim is limited to the name of the product. 18 Next, Defendant argues Mr. Owen has no false advertising claim because he “view[ed] 19 three words (Boost Glucose Control) in isolation and blind[ed] himself to all context.” (Dkt. No. 20 83 at 26.) Specifically, Defendant contends Mr. Owen ignored the following statements: 21 • The phrase “helps manage blood sugar ♦” on the front label, along 22 with the corresponding back-label statement that “ ♦ BOOST GLUCOSE CONTROL Balanced Nutritional Drink is clinically 23 shown to produce a lower blood sugar response vs. a standard nutritional drink in people with type 2 diabetes. Not a substitute 24 for medication”; • The front-label, bold-font statements indicating that each drink 25 contains four grams of sugar; • The back-label nutrition facts panel, which reiterated the front-of- 26 package statement and showed exactly how much sugar and how many calories are in each drink; and 27 • The product information on the Amazon page where he bought 1 (Dkt. No. 83 at 25 (citing Dkt. No. 84-9).) But, as discussed with respect to Mr. Horti’s claim, 2 Defendant did not move for summary judgment on the ground its label is not misleading as a 3 matter of law given the other statements on it. Defendant’s motion is based on “what the named 4 Plaintiffs themselves thought of the Boost labels, and whether they were deceived.” (Dkt. No. 92 5 at 6.) And there is evidence that Mr. Owen himself was deceived by the “Boost Glucose Control” 6 representation. Mr. Owen testified he understood the product would “control blood glucose 7 levels” by “keeping them the same.” (Dkt. No. 89-8 at 24.) Mr. Owen also testified he thinks 8 Defendant owes him a refund because Defendant “misrepresented the drink” by saying “it would 9 control sugar and it didn’t.” (Dkt. No. 89-8 at 10, 12.) From this testimony, a reasonable trier of 10 fact could find Mr. Owen was deceived by the label. 11 The Court is also unpersuaded by Defendant’s argument that “Mr. Owen cannot establish 12 deception or injury because his theory is not consistent with his lawyer’s theory in this case.” 13 (Dkt. No. 83 at 26.) The theory alleged in the complaint—that consumers understood the Product 14 to “affirmatively do something to control blood sugar” —is consistent with Mr. Owen’s belief that 15 Boost Glucose Control “would control sugar and it didn’t.” (Dkt. No. 59 ¶ 50; Dkt. No. 89-8 at 16 12.) 17 So, the Court DENIES Defendant’s summary judgment motion as to Mr. Owen. But 18 because it is undisputed Mr. Owen looked at just the name of the product before purchasing it, Mr. 19 Owen is limited to challenging the “Boost Glucose Control” representation.7 20 III. INJUNCTIVE RELIEF 21 Defendant contends “Plaintiffs’ claims for injunctive relief fall flat because all three 22 Plaintiffs admit they have no plans to buy Boost again in the future.” (Dkt. No. 83 at 29.) 23 “Plaintiffs concede judgment on the Injunctive Relief claims.” (Dkt. No. 88-3 at 29 n.1.) So, the 24 Court GRANTS Defendant’s summary judgment motion as to Plaintiffs’ request for injunctive 25 relief. 26 27 7 At oral argument, the parties agreed if the Court finds there are genuine disputes of fact as to IV. SEALING MOTION 1 Plaintiffs filed an administrative sealing motion. (Dkt. No. 88.) Defendant, as the 2 designating party, filed a statement in support of sealing Docket Nos. 88-4 and 88-5 and portions 3 of the opposition brief. Defendant contends “[t]he deposition transcripts of the two Nestlé’s 4 corporate designees contain confidential company information about (1) market research and 5 advertising strategies and (2) scientific studies and claims substantiation.” (Dkt. No. 91 at 3.) 6 Defendant contends “[b]oth categories of information, if released, would cause competitive harm 7 to Nestlé.” (Id.) 8 Because Defendant has articulated “compelling reasons” sufficient to outweigh the 9 public’s interest in disclosure, Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th 10 Cir. 2006), the Court GRANTS the motion to seal Exhibits B and D to the Declaration of Trenton 11 Kashima and the corresponding information in Plaintiffs’ opposition. The documents convey 12 marketing and advertising strategies, internal testing procedures, and Defendant’s substantiation 13 processes. As other courts have recognized, disclosure of such information risks competitive 14 harm. See, e.g., Bauer Bros. LLC v. Nike, Inc., No. 09CV500-WQH-BGS, 2012 WL 1899838, at 15 *2 (S.D. Cal. May 24, 2012) (“[P]ublic disclosure of . . . confidential business materials, including 16 marketing strategies . . . , could result in improper use by business competitors.”); Lawson v. 17 Grubhub, Inc., No. 15-CV-05128-JSC, 2017 WL 2951608, at *9 (N.D. Cal. July 10, 2017) 18 (quoting Nixon v. Warner Comm’ns, Inc., 435 U.S. 589, 598 (1978)) (stating “sources of business 19 information that might harm a litigant’s competitive strategy may also give rise to a compelling 20 reason to seal”); Monster, Inc. v. Dolby Lab’ys Licensing Corp., No. 12-CV-2488 YGR, 2013 WL 21 163774, at *2 (N.D. Cal. Jan. 15, 2013) (finding compelling reasons to seal a party’s “testing 22 requirements and internal testing procedures for prototypes”). 23 CONCLUSION 24 For the reasons above, the Court GRANTS in part and DENIES in part Defendant’s 25 motion for summary judgment. The Court GRANTS Defendant’s motion for summary judgment 26 as to Ms. George’s claims and Plaintiffs’ claims for injunctive relief. The Court DENIES 27 Defendant’s motion for summary judgment as to Mr. Horti and Mr. Owen, although they are 1 limited in the representations they can challenge. 2 The Court sets a further Case Management Conference for Tuesday, May 27 at 2:00 p.m. 3 via Zoom video. An updated statement is due by May 20, 2025. The statement should address the 4 || parties’ proposed schedule for class certification briefing. 5 This Order disposes of Docket Nos. 83 and 88. 6 IT IS SO ORDERED. 7 Dated: April 18, 2025 g ne JAGQUELINE SCOTT CORL 9 United States District Judge 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28