SCOTT BISHOP V. 7-ELEVEN, INC., No. 14-15986 (9th Cir. 2016)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUN 07 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SCOTT BISHOP, individually and on behalf of all others similarly situated, No. 14-15986 D.C. No. 5:12-cv-02621-EJD Plaintiff - Appellant, MEMORANDUM* v. 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 7Eleven 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 2 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. 3

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