FILED
NOT FOR PUBLICATION
JUN 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT BISHOP, individually and on No. 14-15986
behalf of all others similarly situated,
D.C. No. 5:12-cv-02621-EJD
Plaintiff - Appellant,
v. MEMORANDUM*
7-ELEVEN, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Before: WARDLAW, PAEZ, and BEA, Circuit Judges.
Scott Bishop, a consumer of 7-Eleven brand potato chips, appeals the
dismissal of his second amended complaint (SAC) pursuant to Federal Rule of
Civil Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291, and we
reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court erred by concluding that the SAC failed to allege facts
sufficient to establish statutory standing under California’s unfair competition law,
Cal. Bus. & Prof. Code § 17200, et seq., false advertising law, Cal. Bus. & Prof.
Code § 17500, and Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq.
At this preliminary stage of the action, Bishop sufficiently alleged actual reliance,
which he was required to do under each of his theories because his claims sound in
fraud. See Kwikset Corp. v. Superior Court, 246 P.3d 877, 888 n.9 (Cal. 2011); In
re Tobacco II Cases, 207 P.3d 20, 39 n.17 (Cal. 2009). Bishop adequately alleged
that he relied on 7-Eleven’s potato chips’ front of package “0g trans fat” and “no
cholesterol” representations, and that he would not have purchased the chips had 7-
Eleven included on the front of the package the “See nutrition information for fat
content” disclosure required by the U.S. Food and Drug Administration. See 21
C.F.R. §§ 101.13(h)(1), 101.62(d)(i)(ii)(D); see also Reid v. Johnson & Johnson,
780 F.3d 952, 958 (9th Cir. 2015) (“[T]he reasonable consumer standard, unlike
the individual reliance requirement . . . , is not a standing requirement.”).
California’s consumer protection statutes render statements actionable which,
although not technically false, have a tendency to mislead consumers because the
statements fail to disclose or direct the consumer’s attention to other relevant
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information. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1162 (9th
Cir. 2012); Day v. AT&T Corp., 74 Cal. Rptr. 2d 55, 60 (Ct. App. 1998).
REVERSED.
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