Ninth Circuit Confirms Plaintiffs Are Not Required To Undermine Defendant's Evidence To Withstand Summary Judgment In False Labeling Class Actions

The Ninth Circuit's recent decision in Sonner v. Schwabe N. Am., Inc. et al.,¹ resolves a split among district courts evaluating the standard that applies to false labeling claims brought under California's Unfair Competition Law and Consumers Legal Remedies Act on summary judgment. The Ninth Circuit confirmed that plaintiffs can survive summary judgment by supplying a conflicting expert report, invalidating a line of cases that required plaintiff's expert to also entirely undermine defendant's expert.

Plaintiff Sonner sued Schwabe North America, Inc., and Nature's Way Products, LLC, (collectively, "Schwabe") in a putative class action alleging that "Ginkgold Advanced Ginkgo Extract" and "Ginkgold Max Advanced Ginkgo Extract Max" were falsely labeled and that labels on both products touting benefits to "mental sharpness," "memory," and "concentration" were false. The plaintiff asserted that the operative ingredient in both products, the EGb 761 variety of Ginkgo