Ninth Circuit Dismisses Plaintiff’s Appeal of Summary Judgment For DTO Clients

In a false advertising class action in which DTO represented Costco Wholesale Corporation and The Nature’s Bounty, the United States of Appeals for the Ninth Circuit recently granted a motion to dismiss the appeal of DTO’s 2019 summary judgment win, ending the case and solidifying another DTO victory.

Class representative Tatiana Korolshteyn had alleged that the label on TruNature Gingko Biloba with Vinpocetine was misleading, challenging the labels’ claims the product would “support alertness and memory,” as well as “help with mental clarity and memory,” and “[help] maintain healthy blood flow to the brain and assist mental clarity and memory, especially occasional mild memory problems associated with aging.”

After the district court certified a class, DTO filed a motion for summary judgment on behalf of its clients. DTO argued Plaintiff’s false advertising claims were preempted under the Federal Food, Drug, and Cosmetic Act (FDCA) given the scientific evidence demonstrated they were substantiated as the FDCA requires. The district court granted this motion in 2019, which the Plaintiff appealed to the Ninth Circuit. Oral argument took place in January 2021 but, after a year, no decision had issued. In January 2022, Plaintiff moved to dismiss the appeal, which the Ninth Circuit granted, bringing an end to the longstanding lawsuit.

The DTO team consisted of William Delgado, Megan O’Neill, and Justin Goodwin.