A California federal district court recently denied a plaintiff’s second attempt to certify a class of Yakult consumers allegedly misled by Yakult’s packaging and advertising claims touting the health benefits of its yogurt, finding that the plaintiff’s attempt to “manufacture” standing once again fell short. Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. March 8, 2016).

Background. As we previously reported, Central District of California Judge Cormac J. Carney denied plaintiff Nicolas Torrent’s original motion for class certification, ruling that plaintiff lacked Article III standing to seek injunctive relief because he failed to allege he would purchase Yakult yogurts again, and therefore could not show sufficient likelihood of future harm. Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. Jan. 5, 2016). On March 8, 2016, Judge Carney again rejected the plaintiff’s motion for class certification, ruling that his newly alleged intent to buy Yakult in the future was nothing more than a barely disguised attempt to manufacture standing. Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. March 7, 2016).

Takeaway. Courts in the Ninth Circuit have reached inconsistent results regarding what a plaintiff must plead to demonstrate standing to sue for injunctive relief. Some, like the Yakult court, have held that a plaintiff who does not intend to purchase the challenged product again cannot suffer future harm and, as a result, lacks standing to pursue injunctive relief. See, e.g., Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-CV-05222-VC, 2014 WL 2451290, at *5 (N.D. Cal. June 2, 2014). Others have held that a misbranding plaintiff lacks standing because he or she cannot be duped by the same advertisement again. See, e.g.,Rahman v. Mott’s LLP, No. CV 13-3482-SI, 2014 WL 5282106, at *9 (N.D. Cal. Oct. 15, 2014). Some courts, however, have expressed the concern that false advertising might go unchallenged and have rejected both positions and sustained standing. See, e.g., Henderson v. Gruma Corp., No. CV 10-04173-AHM-AJWX, 2011 WL 1362188, at *7 (C.D. Cal. Apr. 11, 2011).

Courts are increasingly siding with Judge Carney in Yakult, finding that lack of intent to purchase precludes standing. Judge Carney’s current decision confirms that a plaintiff cannot avoid this result by simply amending the complaint to allege that he or she intends to purchase the challenged product; standing to sue cannot be manufactured.