On December 20, 2017, the Ninth Circuit refined the injunctive standing requirements in the misbranding context in Victor v. Bigelow and Khasin v. Bigelow (collectively, “Bigelow”), finding that injunctive standing is limited and requires a current intent to purchase challenged products in the future. See Victor v. Bigelow, No. 16-16639 (9th Cir. argued Nov. 15, 2017); Khasin v. Bigelow, No. 16-16641 (9th Cir. Argued Nov. 15, 2017).

These decisions demonstrate the Ninth Circuit’s evolving standards on injunctive relief since its last decision on the issue in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017). (See https://classdismissed.mofo.com/consumer-products/ninth-circuit-finds-lower-court-erred-in-flushing-flushable-wipes-false-advertising-claims/.) As we noted in our December 4, 2017 post on the case, the Ninth Circuit in Davidson found that the fact that a plaintiff now knows the “truth” of an allegedly false advertisement does not foreclose injunctive standing. In Bigelow, the Ninth Circuit threads the needle to carefully avoid conflict with this decision, thereby further defining the scope of injunctive standing.

We discuss the panel’s holding in Bigelow, as well as key takeaways, below.

Case Background. Plaintiffs Victor and Khasin both alleged that defendant R.C. Bigelow (“Bigelow”) mislabeled its black tea by including the phrase “healthful antioxidants” on its products’ labels. See Khasin v. R.C. Bigelow, Case No. 12-cv-02204-WHO, 2016 WL 4502500 (N.D. Cal. Aug. 29, 2016); Victor v. R.C. Bigelow, Case No. 13-cv-02976-WHO, 2016 WL 4502528 (N.D. Cal. Aug. 29, 2016). The district court granted summary judgment to Bigelow on plaintiffs’ injunctive relief claims, concluding that plaintiffs lacked Article III standing to seek an injunction preventing Bigelow from selling “mislabeled” tea.

Injunctive Relief Unavailable If No Intent to Purchase. In appealing the district courts’ orders, the plaintiffs relied heavily on Davidson, arguing that the decision means plaintiffs have injunctive standing the moment they allege a labeling is misleading, regardless of whether they intend to purchase products again in the future or if the company changes its labels. See https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012555 (Bigelow oral argument).

In an unpublished opinion, the three-judge panel — which included Judge Berzon, who had sat on the Davidson panel — disagreed with plaintiffs’ argument, holding that plaintiffs were not entitled to injunctive relief because they did not face a threat of future harm. While plaintiffs both stated that they would consider buying Bigelow tea again, they testified that they would only do so if they received an injunction first. Both also stated that they would not consider purchasing the tea with updated and accurate packaging. “Because they will not consider buying even properly labeled tea until they receive an injunction,” the panel reasoned, “[the plaintiffs] will not be harmed by wondering if the tea is still mislabeled or by buying the tea without knowing if it is still mislabeled.” The panel accordingly held that the plaintiffs “did 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.”

Takeaway. Davidson and Bigelow demonstrate that injunctive standing is not an “all or nothing” standard. Instead, whether a plaintiff has standing to pursue an injunction will depend largely on the facts, and particularly on a plaintiff’s deposition testimony. As the panel noted in Bigelow, this raises concerns that plaintiffs’ attorneys may attempt to influence deposition testimony to ensure their clients testify in accordance with the requirements for injunctive standing.

By highlighting testimony that does and does not satisfy these requirements — i.e., the “future intent to purchase and fear of mislabeling” that sufficed in Davidson versus the “intent to purchase only if an injunction is granted” that failed in Bigelow — the decisions also help define the contours of injunctive standing in the misbranding context, and put to rest disagreement in the Ninth Circuit as to the fundamentals of these standing requirements: knowledge that an advertisement is false does not foreclose standing, but a present intent to purchase — coupled with fear that the product will continue to be mislabeled — is required.