Kathleen Sonner , on behalf of herself and all others similarly situated v. Schwabe North America, Inc .; Nature’s Way Products , LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN S ONNER , on behalf of
herself and all others similarly
situated,
Plaintiff-Appellant,
v.
S CHWABE NORTH A MERICA, INC .;
NATURE’S W AY P RODUCTS , LLC,
Defendants-Appellees.
No. 17-55261
D.C. No.
5:15-cv-01358-
VAP-SP
OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted May 16, 2018
Pasadena, California
Filed December 26, 2018
Before: Kim McLane Wardlaw, Jacqueline H. Nguyen,
and John B. Owens, Circuit Judges.
Per Curiam Opinion

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SUMMARY*
False Advertising Claims
The panel reversed the district court’s summary
judgment in favor of sellers of two nutritional supplements
in a consumer class action alleging false advertising claims
under California’s Unfair Competition Law (“UCL”), and
the Consumers Legal Remedies Act (“CLRA”).
The panel clarified that UCL and CLRA claims are to be
analyzed in the same manner as any other claim, and the
usual summary judgment rules apply. The panel held that
under California law, the plaintiff has the burden of proving
by a preponderance of the evidence that a challenged
advertisement is false or misleading under the UCL and
CLRA. To defeat summary judgment, the plaintiff need
only produce evidence of a genuine dispute of material fact
that could satisfy the preponderance of the evidence burden
at trial. The panel further held that the plaintiff met her
burden by producing expert testimony and other scientific
data that the nutritional supplement had no more of an effect
on mental sharpness, memory, or concentration than a
placebo. The panel held that the district court erred by
requiring plaintiff to do more, and by elevating plaintiff’s
burden well beyond what is usually required to defeat
summary judgment. The panel remanded for further
proceedings.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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S ONNER V . S CHWABE NORTH A MERICA 3
COUNSEL
Leslie E. Hurst (argued), Paula R. Brown, Thomas J.
O’Reardon II, and Timothy G. Blood, Blood Hurst &
O’Reardon LLP, San Diego, California; Todd D. Carpenter,
Carlson Lynch Sweet Kilpela & Carpenter LLP, San Diego,
California; for Plaintiff-Appellant.
Michael P. Bryant (argued), Gordon & Rees LLP, San
Diego, California; Thomas R. Watson, and Kevin W.
Alexander, Gordon & Rees LLP, Los Angeles, California;
for Defendants-Appellees.
Jeffrey S. Jacobson, Kelley Drye & Warren LLP, New York,
New York, for Amicus Curiae Council for Responsible
Nutrition.
OPINION
PER CURIAM:
Kathleen Sonner filed a consumer class action against
the sellers of two Ginkgold nutritional supplements for
violations of California’s Unfair Competition Law, Cal. Bus.
& Prof. Code § 17200, et seq. (“UCL”), the Consumers
Legal Remedies Act, Cal. Civ. Code § 1750, et seq.
(“CLRA”), and breach of express warranty. Sonner alleges
that these products were falsely labeled as capable of
improving various cognitive functions when in fact they
provided no such benefits. Although she supported her
claims with expert opinion and other scientific evidence, the
district court granted summary judgment in favor of the
sellers because they produced contrary expert evidence.
District courts in our circuit appear to be split on the

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summary judgment standard that applies to false advertising
claims under California’s UCL and CLRA. Compare
Korolshteyn v. Costco Wholesale Corp., No. 3:15-cv-709-
CAB-RBB, 2017 WL 3622226, at *5–6, *12–13 (S.D. Cal.
Aug. 23, 2017) (holding that where the scientific evidence is
equivocal, summary judgment in favor of a defendant is
appropriate because the false labeling claims cannot be
literally false), with Farar v. Bayer AG, No. 14-cv-04601-
WHO, 2017 WL 5952876, at *17–18 (N.D. Cal. Nov. 15,
2017) (holding that where the plaintiffs’ expert testimony
supported their claim that the defendants’ products provide
no measurable benefit, and the defendants’ expert opined to
the contrary, “such conflicting evidence would merely create
a genuine issue of material fact inappropriate for summary
adjudication”). Today we clarify that UCL and CLRA
claims are to be analyzed in the same manner as any other
claim, and the usual summary judgment rules apply. We
reverse and remand.
I.
Schwabe North America, Inc. and Nature’s Way
Products (collectively, “Schwabe”) market and sell
nutritional supplements, including two products known as
“Ginkgold Advanced Ginkgo Extract” and “Ginkgold Max
Advanced Ginkgo Extract Max.” The labels on both
products tout benefits to “mental sharpness,” “memory,” and
“concentration.”
On July 7, 2015, Sonner filed a class action complaint
against Schwabe for violations of California’s UCL, CLRA,
and breach of express warranty.1 Sonner alleges that the
1 Sonner also asserted a claim under the Wisconsin Unfair Trade
Practices Act, which is not before us on appeal.

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S ONNER V . S CHWABE NORTH A MERICA 5
operative ingredient in both products, the EGb 761 variety
of Ginkgo biloba extract, does not actually have any of the
advertised cognitive benefits. On September 14, 2016,
Schwabe moved for summary judgment, supporting its
motion with expert testimony from Dr. Alan F. Shatzberg, as
well evidence from randomized controlled trials, that
Ginkgo biloba benefits cognitive function. In opposition,
Sonner produced expert testimony from Dr. Beth E. Snitz,
who analyzed several clinical studies and meta-analyses to
conclude that “Ginkgo biloba is no more effective than [a]
placebo for improving cognitive functioning or preventing
cognitive decline.” Sonner also proffered independent
reviews and meta-analyses, randomized controlled trials,
and a scientific review article to support her contention that
Ginkgo biloba does not benefit cognitive functions.
On February 2, 2017, the district court granted summary
judgment in favor of Schwabe. The district court
acknowledged that “both sides have produced expert
testimony and scientific research in support of their claims,”
but it nevertheless granted Schwabe summary judgment on
the ground that Sonner failed to critique the expert testimony
and each of the scientific studies proffered by Schwabe. The
district court reasoned that because Sonner fell short in
“challenging the methodology, structure, or independence of
[Schwabe’s] studies,” her evidence is “insufficient to allow
a reasonable juror to conclude that there is no scientific
support for [Schwabe’s] claims.” Sonner timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We
review the district court’s grant of summary judgment de
novo. Southland Sod Farms v. Stover Seed Co., 108 F.3d
1134, 1138 (9th Cir. 1997).

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III.
Summary judgment is appropriate only when “there is no
genuine dispute as to any material fact.” Fed. R. Civ. P.
56(a). “[T]he determination of whether a given factual
dispute requires submission to a jury must be guided by the
substantive evidentiary standards that apply to the case.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
To defeat summary judgment, the nonmoving party must
produce evidence of a genuine dispute of material fact that
could satisfy its burden at trial. See id. at 254–55; see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
Under California law, the plaintiff has the burden of
proving by a preponderance of the evidence that a
challenged advertisement is false or misleading under the
UCL and CLRA.2 See Paduano v. Am. Hondo Motor Co.,
169 Cal. App. 4th 1453, 1463, 1472, 1473 (2009); Nat’l
Council Against Health Fraud, Inc. v. King Bio Pharms.,
Inc., 107 Cal. App. 4th 1336, 1341–42 (2003). Therefore, to
defeat summary judgment, Sonner need only produce
evidence of a genuine dispute of material fact that could
satisfy the preponderance of the evidence burden at trial. See
Celotex, 477 U.S. at 322–23. Sonner easily met her burden
by producing expert testimony and other scientific data that
Ginkgo biloba has no more of an effect on mental sharpness,
memory, or concentration than a placebo. See Provenz v.
Miller, 102 F.3d 1478, 1490 (9th Cir. 1996) (“As a general
rule, summary judgment is inappropriate where an expert’s
testimony supports the non-moving party’s case.” (quoting
2 The UCL prohibits any “unfair, deceptive, untrue[,] or misleading
advertising.” Cal. Bus. & Prof. Code § 17200. The CLRA generally
prohibits “unfair methods of competition and unfair or deceptive acts or
practices.” Cal. Civ. Code § 1770.

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S ONNER V . S CHWABE NORTH A MERICA 7
In re Worlds of Wonder Sec. Litig., 35 F.3d 1407, 1425 (9th
Cir. 1994))). By requiring Sonner to do more—by not only
producing affirmative expert evidence of her own but also
“foreclos[ing] any possibility” that Schwabe’s products
provided the labeled benefits—the district court elevated
Sonner’s burden well beyond what is usually required to
defeat summary judgment. Again, a plaintiff need only
show a triable issue of material fact to proceed to trial, see
Fed. R. Civ. P. 56(a); Anderson, 477 U.S. at 255, not
foreclose any possibility of the defendant’s success on the
claims. At trial, undoubtedly each party will seek to
undermine the scientific bases underlying the opinion of the
opposing party’s expert. Those arguments, however, go to
the weight that the fact-finder should give to the evidence,
an inquiry that is not proper at the summary judgment stage.
Schwabe argues that a more exacting summary judgment
standard applies to false advertising claims brought under
the UCL and CLRA, relying on a Fourth Circuit decision, In
re GNC Corp., 789 F.3d 505 (4th Cir. 2015). The court in
that case affirmed the district court’s dismissal of the
plaintiffs’ UCL and other state false advertising claims for
failure to state a claim. In re GNC Corp., 789 F.3d at 518.
The court reasoned that because the plaintiffs did “not allege
that all scientists agree that [the products] are ineffective at
providing the promised [] benefits,” they failed to show as a
matter of law that the advertised claims are false. Id. at 515
(“When litigants concede that some reasonable and duly
qualified scientific experts agree with a scientific
proposition, they cannot also argue that the proposition is
‘literally false.’”). Some district courts in our circuit have
adopted similar reasoning in weighing competing expert
evidence in false advertising cases at the summary judgment
stage. See, e.g., Korolshteyn, 2017 WL 3622226, at *5–6,
*12–13; cf. Mullins v. Premier Nutrition Corp., 178 F. Supp.

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3d 867, 893–96 (N.D. Cal. 2016) (accepting In re GNC
Corp.’s standard for literal falsity claims, but denying
summary judgment because the plaintiff successfully
undermined the defendant’s supporting expert testimony and
scientific research). Other district courts in our circuit have
flatly disagreed. See, e.g., Racies v. Quincy Bioscience,
LLC, No. 15-cv-00292-HSG, 2017 WL 6418910, at *4 (N.D.
Cal. Dec. 15, 2017) (“The Court is not persuaded by In re
GNC or Korolshteyn, and does not believe the California
Supreme Court would adopt their reasoning.”); Farar,
2017 WL 5952876, at *17 (stating that conflicting expert
evidence “would merely create a genuine issue of material
fact inappropriate for summary adjudication”).
We are unpersuaded by the notion that a plaintiff must
not only produce affirmative evidence, but also fatally
undermine the defendant’s evidence, in order to proceed to
trial. “[A]bsolute certainty is not the evidentiary benchmark
in civil (or even criminal) litigation,” Hobbs v. Gerber
Prods. Co., No. 17 CV 3534, 2018 WL 3861571, at *7 (N.D.
Ill. Aug. 14, 2018), and it has never been the standard for
weighing conflicting evidence for purposes of summary
judgment. If the plaintiff’s evidence suggests that the
products do not work as advertised and the defendant’s
evidence suggests the opposite, there is a genuine dispute of
material fact for the fact-finder to decide. We see no reason
to diverge from the usual summary judgment rules for UCL
and CLRA claims.
Schwabe also argues that Sonner’s claims are essentially
“lack of substantiation” claims, which private plaintiffs are
prohibited from pursuing under California law. See King Bio
Pharms., Inc., 107 Cal. App. 4th at 1344. The district court
rejected this argument, and so do we. Sonner has the burden
of proof as to her claims, unlike a substantiation claim where

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the onus is on the defendant to substantiate the assertions in
its advertisements. See id. at 1340, 1343–46.
* * *
We therefore reverse the district court’s judgment in
favor of Schwabe as to the UCL and CLRA claims, as well
as the breach of express warranty claim that relies on the
same evidence.3 We remand for further proceedings.
REVERSED AND REMANDED.
3 Sonner’s unopposed request for judicial notice is GRANTED.

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