[00:00:04] Speaker 00:
The next case is Kenny versus Fruit of the Earth.

[00:00:35] Speaker 00:
When you're ready, counsel.

[00:00:46] Speaker 01:
Good morning.

[00:00:46] Speaker 01:
May it please the court, Glenn Danis for plaintiff Kenny.

[00:00:51] Speaker 01:
So the district court's order here and judgment should be reversed for several reasons on its finding that there was no standing to seek injunctive relief.

[00:01:03] Speaker 01:
Number one, there was sufficient evidence here to show that Davidson, this court's President Davidson, was satisfied.

[00:01:13] Speaker 01:
Number two, the ingredient list here is no defense.

[00:01:18] Speaker 01:
It would not have mattered if Ms.

[00:01:21] Speaker 01:
Kenney had looked at the

[00:01:24] Speaker 01:
at the ingredient list.

[00:01:25] Speaker 01:
And this was something, this was essentially the only piece of evidence that the court actually cited from the deposition testimony.

[00:01:31] Speaker 03:
Well, we're talking about the future, right?

[00:01:34] Speaker 03:
Because this is injunctive relief.

[00:01:36] Speaker 03:
If Miss Kenney had testified in her deposition that, oh, now that I see that there's an active chemical ingredient in this thing, I would never be fooled again, she would not have standing to seek injunctive relief, would she?

[00:01:49] Speaker 01:
Correct.

[00:01:50] Speaker 01:
That's correct.

[00:01:50] Speaker 03:
So it's because she testified that,

[00:01:53] Speaker 03:
I'd make the same problem again.

[00:01:59] Speaker 03:
I'm inclined to think you may be right that that gets you past summary judgment, but this is a case before ... You don't get a jury in this case because you're only seeking injunctive relief.

[00:02:11] Speaker 03:
You really want to go back to the same judge and ask him whether he believes her?

[00:02:16] Speaker 03:
Can he find as a matter of fact that he doesn't believe her testimony?

[00:02:20] Speaker 03:
and then you lose.

[00:02:23] Speaker 01:
Your honor is correct and I think that that's right.

[00:02:27] Speaker 01:
I didn't take it to mean or the district court ordered to mean that he didn't believe her necessarily.

[00:02:35] Speaker 01:
I took it to mean that he was kind of faulting her for not having looked at the back.

[00:02:41] Speaker 03:
Right and we have a case that says alleging

[00:02:45] Speaker 03:
the back doesn't fix the problem is enough.

[00:02:48] Speaker 03:
And I think it probably follows that if somebody says what the allegation was in their deposition and swears to it, that's enough to get past summary judgment.

[00:02:57] Speaker 03:
But you do agree with me that if we send it back, the trier of fact will be the judge.

[00:03:03] Speaker 03:
And he can decide that she doesn't face any problems.

[00:03:07] Speaker 01:
I think that's right, Your Honor, and we would be happy to... But hasn't he done that already?

[00:03:11] Speaker 03:
That's my question.

[00:03:13] Speaker 00:
Hasn't he done that already by saying that, well, if you look at it, you can tell, right?

[00:03:17] Speaker 00:
Fooled once, now you've learned the lesson and you're not going to be fooled again.

[00:03:22] Speaker 00:
So he's already engaging in that weighing analysis.

[00:03:26] Speaker 01:
Yeah, I think that that's right.

[00:03:27] Speaker 01:
But I think that's where this court comes in.

[00:03:29] Speaker 01:
So what I would ask the court is to, on remand, to suggest that if the district court's rationale were that she's wrong and she has no standing because she didn't look at the back, that as a matter of law, that that's insufficient.

[00:03:49] Speaker 01:
That would be insufficient under

[00:03:51] Speaker 00:
Williams versus Gerber it would be I don't think I don't think the case law stands for any blanket proposition It's still like fact specific and on these facts she made She declared that that reading it she couldn't tell the district courts like well, it's it's a zinc only issue you can tell Yeah, but therefore there's no standing.

[00:04:13] Speaker 00:
I'm not sure remain.

[00:04:14] Speaker 00:
What are we remanding to do?

[00:04:16] Speaker 00:
I

[00:04:16] Speaker 01:
Well, I think it would be a remand to say if the district court's ruling was that she lacked standing because she lacked diligence, that she didn't take the step of turning the package around, that that's inconsistent with this court's law.

[00:04:35] Speaker 01:
It's inconsistent with Gerber.

[00:04:37] Speaker 01:
It's inconsistent with Whiteside, a published decision just from this summer, which, again, clarified the issue that the onus is not on the consumer.

[00:04:46] Speaker 01:
to turn the package around and inspect the fine print when there is a front of the label clear.

[00:04:52] Speaker 03:
But this is a little bit different.

[00:04:54] Speaker 03:
Everybody agrees she's now, even though not back then, she's not suing for damages anymore.

[00:05:01] Speaker 03:
She's just suing for injunctive relief, that she's now seen the back of the package.

[00:05:05] Speaker 03:
It was shown to her in the deposition.

[00:05:08] Speaker 03:
And it said, see, it says there's an active chemical ingredient here.

[00:05:11] Speaker 03:
Would that affect your decision to buy this in the future?

[00:05:14] Speaker 03:
And she says, no.

[00:05:16] Speaker 03:
And it's pretty clear to me the judge doesn't buy that.

[00:05:20] Speaker 03:
And so your legal theory may be correct.

[00:05:23] Speaker 03:
But what additional evidence would be in front of the judge on remand that might lead him to a different conclusion than the one he reached this time?

[00:05:33] Speaker 01:
You are.

[00:05:33] Speaker 01:
Well, one, you know, I think rather important and compelling piece of evidence would be the survey evidence.

[00:05:39] Speaker 01:
There was a survey here that was submitted that the district court did not touch at all, which showed that her, that the way she behaved was not idiosyncratic in any way.

[00:05:49] Speaker 03:
The way she behaved in the past, the question that's now, this case now is a different case than the way it started.

[00:05:57] Speaker 03:
The case is now limited to the question of whether or not your single client

[00:06:03] Speaker 03:
would be fooled again in the future, in effect, by the label clear zinc on the front.

[00:06:10] Speaker 03:
And we now know that she knows something she didn't know in the past.

[00:06:15] Speaker 03:
She now knows there's something under her label.

[00:06:18] Speaker 01:
But Your Honor, respectfully, her testimony was not

[00:06:21] Speaker 01:
was exactly not, yes, now I understand, now I know.

[00:06:26] Speaker 03:
No, I agree.

[00:06:26] Speaker 03:
And that may get you past summary judgment.

[00:06:28] Speaker 03:
I mean, I don't know.

[00:06:30] Speaker 03:
But Judge Winn said in the last case, this may be a really weak case that deserves to survive summary judgment.

[00:06:38] Speaker 03:
You may have a really weak case that deserves to survive summary judgment, too.

[00:06:42] Speaker 03:
But my difficulty in this case is that the ultimate finder of fact is the judge.

[00:06:48] Speaker 03:
And he's entitled to find jurisdictional facts, even if they're intertwined with the merits, based on the record.

[00:06:56] Speaker 03:
And so, hasn't he already, I guess my question is, hasn't he already found that your client doesn't really suffer an injury, doesn't suffer the possibility of an injury in the future from this mislabeling?

[00:07:11] Speaker 01:
Again, I don't think that the judge has found that as a factual issue.

[00:07:15] Speaker 01:
The judge said nothing in his order, I'm sorry, in her order regarding- I'm sorry, I did the same thing.

[00:07:22] Speaker 01:
The judge said nothing in her order regarding credibility or belief or the fact that he thinks that now, really, even though she says otherwise, she really wouldn't be fooled in the future.

[00:07:36] Speaker 01:
The district court's only statement regarding the actual evidence was that she didn't look at the back.

[00:07:44] Speaker 02:
But counsel, the whole, excuse me, I didn't mean to interrupt you.

[00:07:47] Speaker 02:
The whole basis of your complaint is that she now knows she was

[00:07:54] Speaker 02:
duped, okay?

[00:07:56] Speaker 02:
Now, how can she possibly say, going back, that she would be duped again?

[00:08:05] Speaker 02:
Is that it?

[00:08:07] Speaker 02:
Does she have one of these mental conditions where she now forgets everything that she knew before and she has to look at it anew?

[00:08:16] Speaker 02:
This is like Groundhog Day for sunscreen.

[00:08:20] Speaker 01:
Yeah, well, Your Honor, I would point to the Gasser case that we cited in our briefing, Gasser v. Kiss My Face.

[00:08:27] Speaker 01:
It talks about the fact that for purposes of determining standing to seek injunctive relief under California's consumer protection statutes, companies that are using complicated chemicals often substitute one for another.

[00:08:41] Speaker 01:
It could be that now they're using octechrylene.

[00:08:44] Speaker 01:
uh... and it could be in the future they're using uh... your spec here but we have to decide this case on the record not on some speculation as to what they might do in the future but uh... but your honor i i think that this is no evidence that they've changed their formula in the record that i know of the inquiry here is by definition a speculative one what we're asking is whether in some hypothetical future time

[00:09:10] Speaker 01:
Uh, she might have, uh, she might be fooled.

[00:09:13] Speaker 02:
No, it isn't speculative because she already knows what the ingredients are because your whole suit is based on what the ingredients are versus what you claim the front package.

[00:09:30] Speaker 02:
implied.

[00:09:31] Speaker 02:
So, I mean, I'm just, I'm right where Judge Hurwitz is.

[00:09:38] Speaker 02:
I'm having a very hard time figuring out where you're going from here.

[00:09:43] Speaker 01:
Well, Your Honor, where we're going from here is to seek, to try and seek an injunction that makes either the defendant change the formula of its product or

[00:09:56] Speaker 01:
have truthful advertising.

[00:09:57] Speaker 02:
But when you get down to the district court, you have to show that your single client would be harmed or you don't get an injunction.

[00:10:09] Speaker 02:
And she can't show that to my knowledge from the record because she doesn't have a blank slate to work with.

[00:10:20] Speaker 02:
She is operating with the knowledge

[00:10:23] Speaker 02:
that this product with this labeling, just as it stands, because that's what's before us, is, in her view, incorrect.

[00:10:35] Speaker 02:
So she isn't going to go, I mean, unless somewhere in the record she says, well, I'm just going to go back in there and buy it again.

[00:10:43] Speaker 02:
just exactly the way it is and because I want to buy it again and I want to maybe file another lawsuit.

[00:10:52] Speaker 02:
I don't know.

[00:10:53] Speaker 02:
I mean, just having a hard time with this.

[00:10:55] Speaker 01:
Well, I take your honor's point and I think that here

[00:11:01] Speaker 01:
there is record evidence that she would like to buy the product again and would buy the product again if she could be sure that what she was buying didn't have chemical UV filters in it.

[00:11:13] Speaker 03:
Let me ask you, this case is strange procedurally because you've dropped all your class allegations, you've dropped all your damage allegations, and Davidson, what Judge Berzon wrote in the case, and it seemed to make sense to me, is you can't let

[00:11:29] Speaker 03:
the case get mooted out by the fact that the named plaintiff was fooled, because the rest of the class is still out there.

[00:11:37] Speaker 03:
As long as the named plaintiff makes an allegation that I might be fooled again in the future, we're going to keep these alive, because otherwise the consumer protection notion of these statutes goes away.

[00:11:50] Speaker 03:
The difficulty in your case is it's just your client.

[00:11:52] Speaker 03:
And so, is it believable that your client, I mean, if there are many sunscreens on the market, that your client would go by this particular one, by this particular manufacturer, once having bought a lawsuit saying, I was fooled into buying it because it was mislabeled.

[00:12:12] Speaker 03:
That's, I mean, I'm having difficulty believing that as a matter of fact, even though she says it.

[00:12:19] Speaker 01:
I understand, Your Honor.

[00:12:22] Speaker 01:
I would make two points to that.

[00:12:23] Speaker 01:
One would be, as this court in Davidson noted in Lilly versus, I believe it was Lilly versus Jamba Juice, just being unsure in the future is a sufficient

[00:12:36] Speaker 00:
Let me ask you this because I think we're all struggling with the same issues.

[00:12:41] Speaker 00:
Let me have you go right to the district court's analysis because the district court did grapple with Davidson and saw a distinction there because you can't tell whether the wipes are truly flushable or not until you buy them and do it.

[00:12:55] Speaker 00:
But, and so I'm going now to line 14 of ER 8, where the district court says, but unlike the Davidson matter, because Kenny can definitively determine whether defendant sunscreen contains non-zinc ingredients prior to purchase, I'm paraphrasing, Kenny faces no future imminent threat of being deceived again.

[00:13:15] Speaker 00:
And she can do that by simply looking at the

[00:13:18] Speaker 00:
label.

[00:13:18] Speaker 00:
I don't see an error in that.

[00:13:20] Speaker 00:
And that's what we were talking about, like the court had already looked at her document, weighed it and said, okay, well, you got fooled once and now you're not going to get fooled again.

[00:13:29] Speaker 00:
You can just simply look at it and tell.

[00:13:31] Speaker 01:
Well, I think that, again, that comes back to this idea that the onus is on a consumer to understand the difference between mineral and chemical UV compounds, like the district court said.

[00:13:44] Speaker 00:
Well, that was before she was fooled, but now operating with full knowledge, is she going to get fooled again if she looks at the label?

[00:13:52] Speaker 01:
Well, I think she certainly might, or at least it's enough to meet the Article 3 inquiry that this court set out in Davidson to say that she'd like to

[00:14:01] Speaker 01:
But can't be short, that's sufficient, that's where the bar is.

[00:14:04] Speaker 01:
And I just wanted to say one thing before I end to respond to Judge Hurwitz, which was that even though it's a single plaintiff case, she's seeking public injunctive relief under the UCL.

[00:14:15] Speaker 01:
Public injunctions under California's consumer protection statutes, even in a single plaintiff case with no class allegations.

[00:14:22] Speaker 01:
Involve sort of public rights they involve more than simply the rights of the name plaintiff And that would be the California Supreme Court case and McGill versus Citibank.

[00:14:32] Speaker 00:
Would you like to save the rest of your time?

[00:14:33] Speaker 01:
I would thank you your honor

[00:14:51] Speaker 04:
Morning, your honors, and may it please the court.

[00:14:53] Speaker 04:
I'm Rick Shackelford of Greenbrook Troward for the appellees.

[00:14:57] Speaker 04:
I would be remiss if I did not introduce my colleague, Hannah Shanks-Parkin, who's done much of the heavy lifting throughout this case and has been invaluable.

[00:15:07] Speaker 04:
The district court's order should be affirmed because, simply put, the district court got it right.

[00:15:12] Speaker 04:
With the benefit of evidence not relying on artful pleadings,

[00:15:17] Speaker 04:
It was clear that Appellant could not be fooled again by the clear zinc lotion sunscreen product at issue.

[00:15:24] Speaker 03:
That may be clear as a matter of logic.

[00:15:30] Speaker 03:
But we're dealing here with a procedural case.

[00:15:38] Speaker 03:
We're clear after Davidson that this allegation is sufficient.

[00:15:44] Speaker 04:
which is why we didn't move to this at the pleading stage.

[00:15:46] Speaker 03:
Okay, no, I understand.

[00:15:47] Speaker 03:
And so now when we get, it seems to me that as a matter of rule 56 law and Sellatex, what Sellatex says is, look, your allegation doesn't work.

[00:15:56] Speaker 03:
You must come forth with evidence at the summary judgment stage to show that your allegation is true, where it creates an issue of fact.

[00:16:04] Speaker 03:
And she does.

[00:16:05] Speaker 03:
She says in her deposition, completely unbelievable to me, but I'm not a trier of fact.

[00:16:11] Speaker 03:
I'd buy it again without even knowing what I know now.

[00:16:15] Speaker 03:
So I saw there could be this problem in the future.

[00:16:19] Speaker 03:
And the judge nonetheless grants summary judgment.

[00:16:23] Speaker 03:
My difficulty is a procedural one, which shouldn't the judge have said, no, you get past summary judgment.

[00:16:29] Speaker 03:
But now I'm the fact finder, and I don't believe you.

[00:16:32] Speaker 03:
Is this case missing a stage?

[00:16:35] Speaker 04:
I don't think so.

[00:16:36] Speaker 04:
I think you've asked a two-part question.

[00:16:39] Speaker 04:
I think the second part, couldn't she just say, I'm not buying it?

[00:16:42] Speaker 04:
I agree with you.

[00:16:43] Speaker 04:
I think that the Ninth Circuit just recently decided, I believe in this case, dealing with the ability to get into jurisdictional fact-finding would come out my way.

[00:16:53] Speaker 04:
But I'm going to go different.

[00:16:54] Speaker 04:
But she can't say she's not buying it at summary judgment, can she?

[00:16:57] Speaker 04:
No, and here's why.

[00:17:00] Speaker 04:
And this is what makes the case different from Davidson.

[00:17:04] Speaker 04:
Davidson said, I want a truly flushable wipe.

[00:17:09] Speaker 04:
And I can't tell by looking at the label and you'll recall the pleading in that case.

[00:17:13] Speaker 04:
She studied the label and she still couldn't figure it out.

[00:17:17] Speaker 04:
The appellant here, Ms.

[00:17:18] Speaker 04:
Kenny, she's not in the market for my product.

[00:17:23] Speaker 04:
She wants a product that only has zinc.

[00:17:27] Speaker 04:
That's what she wants to buy.

[00:17:30] Speaker 04:
My product is not that product.

[00:17:32] Speaker 04:
And if you apply the level of scrutiny that Davidson did to the label, she would find there's something in there besides zinc.

[00:17:43] Speaker 04:
So the product that she's in the market for is zinc only.

[00:17:48] Speaker 04:
And she sees from the label that this is zinc plus something.

[00:17:54] Speaker 04:
She's not in the market for my product.

[00:17:57] Speaker 04:
So she can't say, I want to buy your product again.

[00:18:00] Speaker 00:
But she argues she would like to buy it again.

[00:18:03] Speaker 00:
She would like to buy a product that's only zinc.

[00:18:06] Speaker 00:
Well, she would like to buy the same product again.

[00:18:10] Speaker 00:
No.

[00:18:10] Speaker 00:
But she can't tell.

[00:18:11] Speaker 00:
And this is the part where I think the district court did engage in some determination by looking at her declarations like, well, you now know that this product is not a zinc-only product.

[00:18:24] Speaker 00:
So how could you be fooled again in the future?

[00:18:27] Speaker 04:
you know that this product is not the one you're in the market for.

[00:18:31] Speaker 04:
And this is, it may be a subtle distinction over a $4 issue, but we make these kinds of subtle distinctions all the time.

[00:18:39] Speaker 04:
She said, I would like to buy your product if it were what I wanted.

[00:18:43] Speaker 04:
That if is a really big problem for her.

[00:18:47] Speaker 04:
I would like to buy your product if it were a different product.

[00:18:51] Speaker 04:
And there was a suggestion here that there was an aspect of injunctive relief that would require us to reformulate the product.

[00:18:57] Speaker 04:
Well, the district court correctly found that there's no legal obligation that the district court could impose for us to reformulate the product.

[00:19:05] Speaker 04:
So you can't have an injunction that requires us to make a product that she would like to buy.

[00:19:10] Speaker 04:
It's a different product.

[00:19:12] Speaker 04:
And that's where I get at the summary judgment issue.

[00:19:15] Speaker 04:
I don't think she knows the district court necessarily resolved credibility issues.

[00:19:20] Speaker 04:
I certainly think you could view it that way.

[00:19:23] Speaker 04:
And Judge Hurwitz, I completely agree with you that if it were to go back, it's a very short proceeding.

[00:19:29] Speaker 04:
But I think

[00:19:31] Speaker 04:
the district court fully credited Ms.

[00:19:35] Speaker 04:
Kenny's testimony when she said, I want a zinc-only product.

[00:19:42] Speaker 03:
Well, she said more, though.

[00:19:43] Speaker 03:
She said,

[00:19:44] Speaker 03:
Your side, I don't know who tried the case, showed her the back and said, now that you know this has an active chemical ingredient, you wouldn't be fooled again, would you, or words like that to that effect?

[00:19:56] Speaker 03:
And she said, oh, yeah, I would.

[00:20:00] Speaker 00:
And I guess the issue with this how?

[00:20:00] Speaker 03:
I'd buy it based on the clear.

[00:20:02] Speaker 03:
And I find that unbelievable, but this is at the summary judgment stage, not at the credibility stage.

[00:20:10] Speaker 04:
But again, which is it?

[00:20:12] Speaker 04:
I want and I think the court can look at all of the facts before her at summary judgment and again define what is the product that you really wanted to buy and can you tell, unlike the flushable wipes,

[00:20:26] Speaker 04:
Can you tell this is not the product that you're in the market for?

[00:20:30] Speaker 02:
Well, you know, we do have doctrines that talk about, you know, we know that there has to be a genuine issue of material fact.

[00:20:41] Speaker 02:
And we have doctrines that go to the proposition that if somebody makes a fantastical claim, the court has the right to disregard that fantastical claim.

[00:20:55] Speaker 02:
Would you describe her comment that, well, yeah, I know I only want a zinc one, but I'm going to go back and I might get fooled again even though I now know that it's not only zinc?

[00:21:11] Speaker 02:
Does that fall within that purview?

[00:21:14] Speaker 04:
I believe it does.

[00:21:16] Speaker 04:
And I think that may be why the panel is having the same kind of issue with the district court is like, are we really going to have a trial over this?

[00:21:25] Speaker 02:
I don't think he'd have it be well.

[00:21:26] Speaker 04:
Something that's that obvious, because it is obvious.

[00:21:29] Speaker 04:
And I think what has been argued to your honors, especially in the briefing,

[00:21:36] Speaker 04:
is really an incorrect exposition of the law because how the appellant prevails and gets to go back to the district court is by persuading you that at summary judgment, the court wasn't able to turn the bottle around and look at the back, that you don't get the full label.

[00:21:54] Speaker 04:
What you've heard is a long exposition that no Williams against Gerber says, you only get to look at the front, you can't take it away on the back.

[00:22:06] Speaker 04:
this court decided in Whiteside, which was also decided to your honors, is that Gerber and the state law corollary Brady, the one-a-day vitamins case.

[00:22:18] Speaker 04:
The front of the label may get you past the pleadings, but it doesn't serve you well at summary judgment, because the fact finder gets to turn the thing around and look at the entire label, see what it says.

[00:22:27] Speaker 03:
Would it make a difference if this were a class action?

[00:22:30] Speaker 03:
See, it seems to me one of the teachings of Davidson is that

[00:22:34] Speaker 03:
You can't boot out the class action because the plaintiff has now once been fooled.

[00:22:40] Speaker 03:
Right.

[00:22:40] Speaker 03:
And so what I'm having some difficulty, they argue this public injunction issue, but I'm having some difficulty is that if this were really a class action, we wouldn't say, well, we have to dismiss it because the plaintiff no longer has standing because she's been fooled already.

[00:22:57] Speaker 03:
We'll have to find somebody else who won't be fooled who already knows that it's on the back of it.

[00:23:03] Speaker 03:
The difficulty with this case, it seems to me, is that it's in this strange procedural body.

[00:23:09] Speaker 04:
Well, and I think that's why Davidson is a poor fit, because both it was a class action and it was at the pleading stage.

[00:23:18] Speaker 03:
Doesn't Davidson suggest that if the person said you put on evidence of what was in the pleadings at the summary judgment stage, then you would get past summary judgment?

[00:23:29] Speaker 03:
So if the plaintiff in Davidson said precisely what the pleadings say in her deposition, said in her deposition, she would get past summary judgment, wouldn't she?

[00:23:39] Speaker 03:
Perhaps.

[00:23:42] Speaker 03:
So why is your case different?

[00:23:45] Speaker 04:
I go back to what was she in the market for.

[00:23:50] Speaker 04:
And again, that to me is the distinction with Davidson.

[00:23:53] Speaker 04:
She wanted something that was a truly disposable wipe.

[00:23:57] Speaker 04:
And try as she might, looking at the entire label, studying it back, forward, sideways, and inside out.

[00:24:03] Speaker 04:
she had to buy the product in order to test the label claim.

[00:24:07] Speaker 03:
But she also knew at this point, she now knows after at least the pleading stage, that this product, the one she set out to buy, is not a disposable one.

[00:24:18] Speaker 03:
So she's never going to buy it again, is she?

[00:24:24] Speaker 04:
In Davidson, yes, because she can't tell without buying it.

[00:24:28] Speaker 04:
In this case, no.

[00:24:29] Speaker 03:
She can tell because she did buy it and discovered it wasn't a disposable wipe.

[00:24:36] Speaker 03:
Now, we're at the pleading stage.

[00:24:37] Speaker 03:
I understand.

[00:24:38] Speaker 03:
That's why I'm saying you're thinking that she fails at summary judgment.

[00:24:42] Speaker 03:
Davidson is just a pleading case, and that at summary judgment, you must do more than simply put on evidence that your pleading is accurate.

[00:24:49] Speaker 04:
Well, here was one of the problems in Davidson.

[00:24:51] Speaker 04:
And this is what, looking forward, I think the court may have gotten a little bit over its skis and saying, she can't tell.

[00:24:57] Speaker 04:
Maybe the product has been changed.

[00:25:00] Speaker 04:
Well, my product's not like that.

[00:25:02] Speaker 04:
It's an over-the-counter drug.

[00:25:04] Speaker 04:
If I change the formula, I have to change the label.

[00:25:07] Speaker 04:
If I change the ingredients, I have to change the label.

[00:25:11] Speaker 04:
If I change the label or I make a different product, we have a different case.

[00:25:18] Speaker 04:
All right, and that was, I think, what makes this so much different from Davidson is that if you applied, if the court were to say a plaintiff must apply the level of scrutiny that Davidson pled she had, there's no, I don't think this case even survives the pleadings.

[00:25:39] Speaker 04:
And I know that the district courts have struggled with trying to find cases that fall on either side of the Davidson line, the can you be fooled again?

[00:25:50] Speaker 04:
Is it impossible to tell?

[00:25:53] Speaker 04:
And there are a number of decisions that have come down after Davidson's where trials courts have said applying the impossible to tell standard.

[00:26:02] Speaker 04:
What does the label tell you?

[00:26:04] Speaker 04:
If the label tells you,

[00:26:06] Speaker 04:
It has zinc plus octocrylene in it, then you know it's not a zinc-only product and this is not the product for you.

[00:26:18] Speaker 04:
The one thing about the McGill against Citibank case, it might be a fine argument if we were in state court, but we're not.

[00:26:30] Speaker 04:
There has to be an injury.

[00:26:31] Speaker 04:
In fact, you have to have an imminent threat of future harm to you, Ms.

[00:26:37] Speaker 04:
Kenney, not to the public.

[00:26:40] Speaker 04:
So the argument about the public versus private injunction, I don't think washes in this court.

[00:26:46] Speaker 04:
I think it would be fine if we were downtown in the Reagan building arguing to a state court of appeals.

[00:26:52] Speaker 04:
But there was no error here in the district court's determination that

[00:26:58] Speaker 04:
Ms.

[00:26:59] Speaker 04:
Kenny or anyone else looking at this label to try to find out is this a zinc only product can't be fooled again because it's plain from the label it's zinc plus something and that's not what you're looking for.

[00:27:17] Speaker 04:
I find myself in that rarest and most uncomfortable position for a lawyer of having time left on the clock, and I have nothing to add unless your honors have more questions for me.

[00:27:26] Speaker 00:
Just because you've got the time, it doesn't mean you need to use it.

[00:27:28] Speaker 04:
I'm happy to surrender it unless I can enlighten the court further.

[00:27:31] Speaker 03:
Put it in your pocket if you're ever in front of the three of us again.

[00:27:34] Speaker 04:
Save it for next time?

[00:27:36] Speaker 04:
Thank you, your honor.

[00:27:37] Speaker 00:
We'll give it to you for the next case.

[00:27:38] Speaker 00:
Thank you, counsel.

[00:27:46] Speaker 01:
Just a few points in rebuttal here.

[00:27:49] Speaker 01:
So as this court, even though we are in fact in federal court and the court is sitting in diversity, this court in Davis did note the fact that it would gut

[00:28:03] Speaker 01:
California Consumer Protection Law, which under the UCL and CLRA injunctive relief provisions is intended for cases just like this, to say that because there's been someone was fooled, the consumer was fooled,

[00:28:19] Speaker 01:
there's therefore no future, there's no ability to seek public injunction to actually fix the problem.

[00:28:26] Speaker 02:
I mean, this court mentioned that specifically in Davidson, and I think- But the public injunction has to be predicated not on some unnamed person somewhere out in the state of California who might look at this at some point in the future, two years from now.

[00:28:44] Speaker 02:
It has to be predicated on what is in this case before this

[00:28:50] Speaker 01:
Yeah, that's correct, Your Honor.

[00:28:53] Speaker 01:
And for the merits to actually get the injunction, I agree that we would have to prove up the fact that there is, in fact, deception.

[00:29:00] Speaker 01:
And to Judge Hurwitz's point earlier, I think we submitted evidence of that.

[00:29:05] Speaker 01:
We submitted survey evidence.

[00:29:07] Speaker 01:
We had deposition testimony that was consistent with it.

[00:29:10] Speaker 01:
And we would need to persuade the district court on remand that, in fact, we're entitled to an injunction because the consumers or the consuming public is likely to be misled.

[00:29:21] Speaker 03:
No, no.

[00:29:21] Speaker 03:
On remand, you would have to persuade the district court that your client would be liable to suffer this article.

[00:29:28] Speaker 01:
That's right.

[00:29:28] Speaker 03:
Not the consuming public at large, because she has to have Article III standing on her own.

[00:29:34] Speaker 03:
And that's right.

[00:29:36] Speaker 03:
So I understand you want to remand, but I'm not agreeing with your notion that on remand, this turns into whether other unnamed people that might be covered by the survey.

[00:29:48] Speaker 03:
This turns into whether your client, having already bought a lawsuit because she didn't like this product, would go buy it again.

[00:29:55] Speaker 01:
Yes, that's absolutely right.

[00:29:58] Speaker 03:
And that's my difficulty.

[00:29:59] Speaker 03:
And I think the one that Judge Ezra raises, is that believable?

[00:30:04] Speaker 00:
I think it is your honor she didn't say what else is the district court going to say other than what the district court already said when contemplating future purchases she now knows she can simply examine the back label when the when the district court say that same thing again.

[00:30:19] Speaker 01:
It might, unless your honor were to say on on remand that we have case law in this in this circuit that says that front label misleading statements do not are not ameliorated by back label fine print clarifications.

[00:30:35] Speaker 01:
So as a matter of law, it can't be that the onus is on her.

[00:30:40] Speaker 01:
in order to ferret out what the truth is about a product, particularly one that deals in complex chemical ingredients.

[00:30:47] Speaker 01:
That's simply not the law of the circuit.

[00:30:49] Speaker 02:
Well, one of the issues is that the case that you cite for that proposition was on different facts.

[00:30:56] Speaker 02:
And that's been argued.

[00:30:57] Speaker 02:
That's something we have to wrestle with.

[00:30:59] Speaker 01:
That's correct, Your Honor.

[00:31:01] Speaker 00:
In a theoretical world, you're right about that general proposition, but we're talking about this case where she's saying, okay, well, I didn't look at it, but the district court said, okay, now you go ahead and look at it.

[00:31:13] Speaker 00:
You can tell.

[00:31:14] Speaker 00:
You don't disagree with that, though, that had she looked at it, she would be able to tell now, knowing what she has, with the knowledge that she currently has, right?

[00:31:22] Speaker 01:
I do disagree with that.

[00:31:24] Speaker 01:
She said in her deposition testimony,

[00:31:27] Speaker 01:
And 75% of those surveyed said similarly that looking at the back and the front, she does not understand that there are not chemical UV components in it, or that it's not simply zinc.

[00:31:44] Speaker 01:
She did testify to that.

[00:31:45] Speaker 01:
Now, whether that's believable when probed to trial, I suppose, is a different issue.

[00:31:52] Speaker 02:
If that is true, then it would have been true for the front also, and you wouldn't even have a case.

[00:31:58] Speaker 02:
I'm sorry, Your Honor.

[00:32:00] Speaker 02:
If she looks at the back and it says zinc plus these other two chemicals, right, you're saying, well, she's going to read that and she's going to be confused, right?

[00:32:12] Speaker 02:
Your whole case is predicated on the fact that she looked at the front and

[00:32:18] Speaker 02:
That's why she was confused, because it only said zinc.

[00:32:21] Speaker 02:
But if it said zinc and the other two chemicals, then your case would be very different.

[00:32:25] Speaker 02:
It would be that the front label was misleading.

[00:32:29] Speaker 02:
But the front label wouldn't have been misleading.

[00:32:32] Speaker 02:
Because if she reads the back and it says exactly the same as the front, you don't have a case.

[00:32:42] Speaker 02:
And the front and the back,

[00:32:44] Speaker 02:
I'm having a very hard time here trying to figure out how she would read the back and still be confused if that language was on the front in readable type.

[00:33:02] Speaker 02:
Would she still be confused?

[00:33:04] Speaker 01:
And your position is, yes, she would still be confused?

[00:33:08] Speaker 01:
I think she might be, as a matter of fact, still confused.

[00:33:14] Speaker 01:
But the law of this circuit would not give her a remedy.

[00:33:17] Speaker 01:
Because the law of this circuit would say, if it's right there on the front, that it includes things other than zinc, then that's different than it being in the fine print on the back.

[00:33:25] Speaker 02:
But counsel, I'm going to take you one step further.

[00:33:28] Speaker 02:
if she wouldn't, if you acknowledge now that she wouldn't be confused if it said it on the front, why is she confused if it says it on the back?

[00:33:38] Speaker 02:
I'm having a very hard time understand, I mean, was one in a language that's different, or is?

[00:33:47] Speaker 01:
Well, I mean, I think that

[00:33:49] Speaker 01:
both the case law and her testimony shows that the language of these complex chemical names is essentially a different language.

[00:33:59] Speaker 02:
She's already agreed that if it was on the front, she wouldn't have a lawsuit.

[00:34:05] Speaker 01:
As a matter of law, I think.

[00:34:07] Speaker 01:
As a matter of law, not as a matter of fact.

[00:34:10] Speaker 01:
I think the court might say you may not understand if it said on the front label

[00:34:15] Speaker 01:
This is a zinc and octechrylene product.

[00:34:18] Speaker 01:
She may not know what octechrylene is, but the law would say it's right there on the front.

[00:34:24] Speaker 02:
We're way over, and I'm taking my colleague's time here, and we've got another case.

[00:34:30] Speaker 02:
But I'm still having a very hard time distinguishing those two situations.

[00:34:35] Speaker 00:
Thank you for your argument, counsel.

[00:34:37] Speaker 00:
Understood.

[00:34:37] Speaker 00:
Thank you very much.

[00:34:38] Speaker 00:
Thank you to both sides.

[00:34:39] Speaker 00:
The matter is submitted.