MICHAEL J. OTTO, Individually v. ABBOTT LABORATORIES INC., DBA Abbott Nutrition, a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. OTTO, Individually, and on
Behalf of Other Members of the General
Public Similarly Situated,
Plaintiff-Appellant,
v.
ABBOTT LABORATORIES INC., DBA
Abbott Nutrition, a Delaware corporation,
Defendant-Appellee.
No. 16-55394
D.C. No.
5:12-cv-01411-SVW-DTB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted November 14, 2017
Pasadena, California
Before: KOZINSKI, HAWKINS, and PARKER,** Circuit Judges.
FILED
DEC 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
** The Honorable Barrington D. Parker Jr., Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.

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Michael J. Otto (“Otto”) appeals the Rule 12(b)(6) dismissal of his literal-falsity
claim under California law.1 He also attempts to appeal the class-certification rulings
regarding his deception-by-omission claim.
We have jurisdiction to hear the Rule 12(b)(6) literal-falsity dismissal, but not
the class-certification rulings regarding Otto’s voluntary dismissal of his deception-
by-omission claim. See Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1707 (2017).
The determination that Otto failed to state a claim for literal falsity was proper.
Viewed collectively and in full context, the sources cited by Otto reveal that Abbott’s
products do help rebuild strength naturally lost over time, at least for those with
normal vitamin-D levels. Otto has therefore failed to plausibly allege that Abbott’s
representations were literally false. See, e.g., Warren v. Fox Family Worldwide, Inc.,
328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e are not required to accept as true
conclusory allegations which are contradicted by documents referred to in the
complaint and [w]e do not . . . necessarily assume the truth of legal conclusions
merely because they are cast in the form of factual allegations.”) (citations and
quotation marks omitted); In re GNC Corp., 789 F.3d 505, 516 (4th Cir. 2015) (a
1 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §
17200 et seq., California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code
§ 1750 et seq., and California’s False Advertising Law (“FAL”), Cal. Bus. & Prof.
Code § 17500 et seq.
2

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representation is not literally false under the UCL and the CLRA if “the scientific
evidence is equivocal”).
DISMISSED IN PART AND AFFIRMED IN PART.
3

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