Adam Victor, individually and on behalf of all others similarly situated v. R.c. Bigelow, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAM VICTOR, individually and on behalf
of all others similarly situated,
Plaintiff-Appellant,
v.
R.C. BIGELOW, INC.,
Defendant-Appellee.
No. 16-16639
D.C. No. 3:13-cv-02976-WHO
MEMORANDUM*
ALEX KHASIN, individually and on behalf
of all others similarly situated,
Plaintiff-Appellant,
v.
R.C. BIGELOW, INC.,
Defendant-Appellee.
No. 16-16641
D.C. No. 3:12-cv-02204-WHO
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted November 15, 2017
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: BERZON and FRIEDLAND, Circuit Judges, and SESSIONS,** District
Judge.
Adam Victor and Alex Khasin appeal the district court orders granting
summary judgment to Bigelow on their injunctive relief claims.1 The district court
concluded in these related cases that Victor and Khasin lacked Article III standing
to seek an injunction forcing Bigelow to conform its labels to Food and Drug
Administration requirements.
“Once a plaintiff has been wronged, he is entitled to injunctive relief only if
he can show that he faces a ‘real or immediate threat . . . that he will again be
wronged in a similar way.’” Munns v. Kerry, 782 F.3d 402, 411 (9th Cir. 2015)
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)) (internal quotation
marks omitted). The relevant testimony in the two cases is nearly identical,2 and
shows that Plaintiffs do not face such a threat of future harm. Victor and Khasin
** The Honorable William K. Sessions III, United States District Judge for the
District of Vermont, sitting by designation.
1 The litigation originally involved claims for restitution as well. The district
court granted Defendant summary judgment on those claims, and Plaintiffs only
appeal the summary judgment on their injunctive relief claims.
2 The similarity may not be a coincidence. Counsel for Victor and Khasin
repeatedly made the troubling suggestion at oral argument that their testimony
about their desire to buy Bigelow products may have been driven not by their true
intentions but rather by what he believed would be the answer most likely to cause
a court to hold that they had standing. We caution that coaching witnesses to offer
false testimony would be a serious violation of professional standards and could
amount to criminal conduct. See Cal. Penal Code § 127; Cal. R. Prof’l Conduct 5-
200(B).

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testified that, having discovered what they believed to be mislabeling on tea
packages, they will consider buying Bigelow tea again only if they receive an
injunction first. They will not consider purchasing even those teas with updated
packaging that they acknowledge is accurate and resolves their concerns. Because
they will not consider buying even properly labeled tea until they receive an
injunction, Victor and Khasin will not be harmed by wondering if the tea is still
mislabeled or by buying the tea without knowing if it is still mislabeled. Victor
and Khasin do not face a real or immediate risk of being harmed again in the same
manner and so lack Article III standing to seek injunctive relief.
AFFIRMED.

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