Melanie Barber v. Nestle USA, Inc. (9th Cir. 2018). · Go Syfert
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Melanie Barber
v.
Nestle USA, Inc.
16-55041.
Court of Appeals for the Ninth Circuit.
Jul 10, 2018.
Unpublished  |  Civil

FILED NOT FOR PUBLICATION JUL 10 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELANIE BARBER; ROBERT No. 16-55041 MALONE; ESTHER MALONE; R. GRACE RODRIGUEZ, on behalf of D.C. No. CV 15-1364 CJC themselves and all others similarly situated, MEMORANDUM* Plaintiffs-Appellants, v. NESTLE USA, INC., a Delaware Corporation; NESTLE PURINA PETCARE CO., A Missouri Corporation,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted December 7, 2017 Pasadena, California Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

Plaintiffs-Appellants Melanie Barber, Robert and Esther Malone, and R.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Grace Rodriguez (“Plaintiffs”) appeal the dismissal of their putative class action lawsuit against Defendants-Appellees Nestlé USA, Inc. and Nestlé Purina PetCare Co. (collectively, “Nestlé”).1 Nestlé is a marketer and distributor of canned and packaged seafood that sources some of its products from Thailand. The Bureau of International Labor Affairs of the United States Department of Labor recognizes that fish and shrimp products exported from Thailand may be the result of forced labor. Therefore, Nestlé’s supply chain may include forced labor, but the company does not disclose this on its labels. Plaintiffs argue that by not labeling its products, Nestlé misled purchasers and thereby violated California’s consumer protection laws. Specifically, Plaintiffs bring suit under (1) California Civil Code §§ 1750, et seq., the Consumers Legal Remedies Act (“CLRA”); (2) California’s Business & Professions Code §§ 17200, et seq., the Unfair Competition Law (“UCL”); and (3) California’s Business & Professions Code §§ 17500, et seq., the False Advertising Law (“FAL”). The district court dismissed all of Plaintiffs’ claims. We review de novo, Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013), and affirm.

[*2][*3]

(citations and internal quotation marks omitted). Plaintiffs claim that Nestlé is liable under all three of the varieties.

Nestlé is not liable under the unlawful prong because Plaintiffs did not state a claim under the CLRA. Likewise, Plaintiffs cannot state a claim under the fraudulent prong because Nestlé did not have a duty to disclose the forced labor. See Berryman v. Merit Prop. Mgmt., Inc., 62 Cal. Rptr. 3d 177, 188 (Ct. App. 2007). Finally, Plaintiffs cannot state a claim under the unfair prong pursuant to either of the California tests. See Hodsdon, 2018 WL 2473486 at *7–8. Therefore, Plaintiffs did not state a UCL claim.

[*4]

The judgment of the district court is

AFFIRMED.[4]

[*5]
1 Plaintiffs argue that Nestlé had a duty to disclose, on its labels, the existence of forced labor in its supply chain. Plaintiffs failed to allege that the existence of forced labor in the supply chain affects the seafood products’ central function. See Hodsdon, 2018 WL 2473486 at *6. Therefore, Nestle was under no duty to disclose. Id.2
2 We assume for the purposes of this appeal that the existence of forced labor in the supply chain is material to consumers. We do not reach whether Plaintiffs alleged that Nestlé had the requisite exclusivity of knowledge over the consumer.
3 The district court dismissed Plaintiffs’ claims on the ground that the California Transparency in Supply Chains Act of 2010, Cal. Civ. Code § 1714.43, created a safe harbor that bars Plaintiffs’s lawsuit. Because we affirm the district court on another ground, we do not reach this issue of whether the safe harbor doctrine applies.
4 Plaintiffs have an outstanding motion to certify a question to the California Supreme Court; however, the question is not outcome determinative. See Cal. R. of Court 8.548(a)(1) (“The [California] Supreme Court may decide a question of California law if . . . [t]he decision could determine the outcome of a matter pending in the requesting court.”). We therefore deny the motion to certify.