Aileen Brooks v. It Works Marketing, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AILEEN BROOKS, on behalf of herself No. 1:21-cv-01341-DAD-BAK and all others similarly situated, 12 Plaintiff, 13 ORDER DENYING PLAINTIFF’S MOTION v. FOR A PRELIMINARY INJUNCTION AND 14 PROVISIONAL CLASS CERTIFICATION IT WORKS MARKETING, INC., et al., 15 (Doc. No. 22) Defendants. 16 17 18 This matter is before the court on a motion for a preliminary injunction and provisional 19 class certification filed on behalf of plaintiff Aileen Brooks. (Doc. No. 22.) Pursuant to General 20 Order No. 617 addressing the public health emergency posed by the COVID-19 pandemic, the 21 pending motion was taken under submission on the papers. (Doc. No. 23.) For the reasons 22 explained below, the court will deny plaintiff’s motion for a preliminary injunction and 23 provisional class certification. 24 BACKGROUND 25 A. Factual Background 26 This putative class action arises from plaintiff Aileen Brooks’ purchase of a weight loss 27 product called Thermofight Xx (“Thermofight”) from defendants It Works Marketing, Inc. and It 28 Works! Global Inc. (together, “It Works!”). 1 Plaintiff, a Bakersfield resident, proceeds on her first amended class action complaint 2 (“FAC”) against defendants It Works! and defendants Mark Pentecost, the It Works! founder and 3 CEO, and Paul Nassif, a plastic surgeon and reality TV star who has developed and promoted 4 products for It Works!. (Doc. No. 17.) In her FAC, plaintiff alleges that she purchased 5 Thermofight from an independent distributor in reliance on defendants’ representations that it was 6 a safe and effective weight control product. (Id. at ¶¶ 77–78.) Despite alleging that she used 7 Thermofight as directed, plaintiff claims it did not deliver on its advertised benefits or provide 8 any results at all. (Id. at ¶¶ 79–81.) Moreover, plaintiff alleges that when making her initial 9 purchase she was enrolled in an auto-shipment program without her knowledge, which required a 10 minimum of three purchases of Thermofight (one per month). (Id. at ¶¶ 200–02.) Plaintiff 11 alleges that she was charged for two purchases of Thermofight before realizing that she had been 12 enrolled in the auto-shipment program. (Id. at ¶ 204.) Although plaintiff was able to cancel 13 future shipments over the phone, her request for a refund for the second shipment was denied. 14 (Id. at ¶¶ 204–05.) Plaintiff alleges that these auto-billing practices constitute an unlawful 15 “automatic renewal” prohibited under California law. (Id. at ¶ 206.) Plaintiff does not allege that 16 she suffered any other injuries from using Thermofight. 17 Aside from her individual allegations, plaintiff is also suing on behalf of two putative 18 classes and the general public. (Id. at ¶¶ 265–67, 297, 306, 310, 315.) As detailed in her FAC, 19 plaintiff alleges that defendants, collectively, have defrauded the public by marketing, 20 distributing, and selling a suite of “unapproved weight control drugs”1 through “an illegal multi- 21 level marketing scam,” which uses “unlawful credit card repeat auto-billing practices.” (Id. at ¶ 22 3.) In addition, plaintiff claims that defendants’ Terms of Use contract is unlawful because it 23 contains several unconscionable provisions. (Id. at ¶¶ 219–39.) 24 ///// 25 ///// 26 1 Aside from Thermofight, the “suite of scam weight control drugs” allegedly includes, 27 Advanced Formula Fat Fighter (Fat Fighter), Slimming Gummies, and Carb Control Dual Action Complex (Carb Control). (Doc. No. 17 at ¶ 19.) Collectively, the court will refer to these four 28 products as the “weight control products.” 1 B. Procedural Background 2 After originally filing this lawsuit on September 3, 2021 (Doc. No. 1), plaintiff amended 3 her complaint two months later, on November 8, 2021 (Doc. No. 17), asserting several violations 4 of California consumer protection statutes. (Id. at ¶¶ 281–314.) Specifically, plaintiff asserts the 5 following five claims against defendants in her operative FAC: (1) violation of the California 6 Unfair Competition Law’s (UCL) unlawful prong; (2) violation of the UCL’s fraudulent prong; 7 (3) violation of the UCL’s unfair prong; (4) violation of California’s False Advertising Law 8 (FAL); and (5) violation of California’s Consumer Legal Remedies Act (CLRA). (See id.) 9 In conjunction with these five claims, plaintiff seeks injunctive relief, including an order 10 enjoining defendants from “continuing to conduct business through unlawful, unfair, and 11 fraudulent acts and practices,” engaging in “deceptive and unlawful advertising practices,” and 12 entering into contracts which allegedly contravene California law. (Id. at ¶¶ 301, 303, 307, 312.) 13 Plaintiff also prays for several equitable remedies, including restitution, disgorgement, and orders 14 enjoining defendants’ allegedly “deceptive, unconscionable, and fraudulent practices” and 15 requiring that they engage in a corrective advertising campaign. (Id. at ¶ 315.) 16 On December 21, 2021, over three and half months after initiating this lawsuit, plaintiff 17 filed the pending motion. (Doc. No. 22.) In support of that motion, plaintiff filed four 18 declarations with attached exhibits: (i) the declaration of plaintiff’s counsel, Gregory S. Weston 19 (Doc. No. 22-2); (ii) the declaration of Nathan Wong, a professor of medicine and epidemiology 20 at University of California, Irvine’s (UCI) School of Medicine and the director of UCI’s heart 21 disease prevention program (Doc. No. 22-3); (iii) the declaration of William M. London, a 22 professor of public health at California State University, Los Angeles (Doc. No. 22-4); and (iv) 23 the declaration of Robert L. FitzPatrick, a co-author of two books regarding multi-level marketing 24 (MLM) and pyramid schemes (Doc. No. 22-5). Plaintiff, however, did not include a declaration 25 of her own in support of the pending motion. 26 Defendants filed an opposition brief on January 18, 2022, arguing, among other things, 27 that plaintiff cannot show that she is in imminent danger of suffering any irreparable injury. 28 (Doc. No. 29 at 8.) Plaintiff filed her reply brief on January 25, 2022, contending that she has 1 offered sufficient evidence of injury, that she seeks “public injunctive relief,” and that she has no 2 adequate remedy at law. (Doc. No. 30 at 8–13.) In the proposed order filed with her pending 3 motion, plaintiff details the “three forms of injunctive relief” requested in her motion: (1) 4 enjoining defendants’ advertising and sale of defendants four weight control products; (2) 5 enjoining defendants’ auto-billing practices; and (3) enjoining defendants’ “use of exculpatory 6 contract provisions which she contends are unlawful and unconscionable waivers of unwaivable 7 rights.” (Doc. No. 22-6 at 2.) 8 C. Plaintiff’s Evidence of Irreparable Harm 9 In her pending motion, plaintiff contends that she, the putative classes, and “the public” 10 will suffer imminent and irreparable harm absent this court issuing preliminary injunctive relief. 11 (Doc. No. 22-1 at 22–26.) Plaintiff alleges five such harms. First, plaintiff asserts that promoting 12 “unapproved drugs” causes irreparable harm based on an FDA webpage where it generically lists 13 harms from “unapproved drugs.”2 (Id. at 23–24.) She included copies of FDA enforcement 14 letters sent to non-It Works! companies. (Doc. No. 22-2 at ¶¶ 9–12.) Second, plaintiff relies on 15 the declarations from professor of epidemiology Nathan Wong, professor of public health 16 William M. London, and author Robert L. FitzPatrick as support for additional alleged harms 17 from “unapproved drugs.” (Doc. No. 22-1 at 24.) Professor Wong states in his declaration that a 18 specific advertising claim made by defendants regarding Thermofight—i.e., it “[c]ontains a 19 clinically proven weight-loss ingredient – an average of 31 pounds lost over 90 days!”—“lacks 20 biologic plausibility” and that in his opinion, 21 22 2 The link in plaintiff’s brief can be found here: https://www.fda.gov/drugs/enforcement- activities-fda/unapproved-drugs-and-patient-harm. It provides that, 23 Unapproved drugs have many risks, including: 24 • unproven and untested drug formulations with excipients and other inactive ingredients that have not been reviewed by FDA 25 for safety • labels and prescribing information that has not been reviewed 26 by FDA for accuracy and completeness • unknown manufacturing processes 27 • unexpected and undocumented safety concerns due to lack of rigorous pre- and postmarket safety surveillance 28 • lack of evidence the drug is effective for its intended use 1 Thermofight’s advertising is misleading, deceptive, and likely to channel people who purchase the product in lieu of medically 2 proven therapies for weight loss approved by the FDA. Besides the economic loss from the costs of such a therapy of questionable 3 benefit, continued lack of sufficient weight loss may result in the continued chronic illnesses associated with obesity. 4 5 (Doc. No. 22-3 at ¶¶ 9–10, 26.) Professor Wong also attests that “[t]hese same issues apply to” 6 defendants remaining weight control products. (Id. at ¶ 26.) Similarly, plaintiff highlights the 7 following passage from public health professor London’s declaration as evidence of the purported 8 harm stemming from defendants’ weight control products’: 9 The amount of health harm from the kind of herbal/vitamin/mineral concoctions promoted by Defendants is largely unmeasured which 10 means that extent of harm due to product use is unknown making it impossible to state with confidence that the amount of harm is 11 small. Considering that none of the ingredients in the products the Defendants promote for weight loss have been shown to be 12 efficacious in humans, the products must be viewed as potentially more harmful than beneficial. 13 14 (Doc. No. 22-4 at ¶ 10.) Author FitzPatrick’s declaration, in contrast, concludes from his review 15 of portions of the FAC, the It Works! website, and approximately 50 pages of Bates stamped 16 documents that are not further identified in his declaration, that defendants’ conduct has “serious, 17 wide-ranging, and devasting non-economic and irreparable harms.” (Doc. No. 22-5 at ¶ 7.) 18 Although FitzPatrick does not attest that It Works! is in fact an MLM scheme, he generally attests 19 that MLM schemes can lead to the following injuries: 20 The greatest injury suffered by MLM victims are not economic. It is the blow to the soul, an injury that may be carried unhealed 21 throughout life. It is a shock to self-esteem, trust and social capital. What makes the injury so damaging is the misuse of trusted 22 relationship. When workplace, collegiality, friendships and family become settings for calculated deception and abuse, the 23 fundamentals of life are altered. * * * The consequences to MLM victims of soul-injuries, for which MLM promoters have never 24 been held accountable, may include divorces, alienation from family, lost friendships, incapacity to work, disillusionment, 25 bankruptcies, addictions and even suicides. 26 (Doc. No. 22-5 at ¶¶ 8–9, 12.) 27 ///// 28 ///// 1 Third, plaintiff argues in her moving papers, without citing to any declaration or evidence, 2 that “harm caused by hidden auto-billing agreements by [their] nature is irreparable” because it 3 leads to “frustration, hassle, and confusion.” (Doc. No. 22-1 at 25.) Fourth, plaintiff claims that 4 unconscionable and unlawful contract provisions, such as those allegedly employed by 5 defendants in their Terms of Use, “continue to cause irreparable harm to plaintiff” because 6 defendants’ filed a motion to compel arbitration in this action. (Id. at 25.) Fifth, and finally, 7 plaintiff generally contends that an injunction will prevent irreparable harm to the putative classes 8 and the general public’s right to a marketplace free of unapproved drugs, fraud, and unfair 9 competition. (Id.) 10 LEGAL STANDARD 11 “The proper legal standard for preliminary injunctive relief requires a party to demonstrate 12 ‘that [s]he is likely to succeed on the merits, that [s]he is likely to suffer irreparable harm in the 13 absence of preliminary relief, that the balance of equities tips in h[er] favor, and that an injunction 14 is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting 15 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. 16 Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that 17 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.’” (quoting 18 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). The Ninth Circuit has 19 also held that an “injunction is appropriate when a plaintiff demonstrates . . . that serious 20 questions going to the merits were raised and the balance of hardships tips sharply in the 21 plaintiff’s favor.” All. for the Wild Rockies, 632 F.3d at 1134–35 (quoting Lands Council v. 22 McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc), overruled on other grounds by Winter, 555 23 U.S. 7).3 The party seeking the injunction bears the burden of proof as to each of these elements. 24 Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); Caribbean Marine Servs. Co. 25 3 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale approach survives “when applied as part of the four-element Winter test.” All. for the Wild 26 Rockies, 632 F.3d at 1134. “That is, ‘serious questions going to the merits’ and a balance of 27 hardships that tips sharply toward the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the 28 injunction is in the public interest.” Id. at 1135. 1 v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable 2 injury sufficient to warrant granting a preliminary injunction.”). Finally, an injunction is “an 3 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 4 to such relief.” Winter, 555 U.S. at 22. 5 ANALYSIS 6 Plaintiff contends that she and the public will suffer irreparable harm absent this court 7 granting preliminary injunctive relief. (Doc. Nos. 22-1 at 23–26; 30 at 10–13.) 8 The phrase “irreparable harm” is a term of art, meaning a party has suffered a wrong 9 which cannot be adequately compensated by remedies available at law, such as monetary 10 damages. See eBay Inc. v. Merc Exchange, L.L.C., 547 U.S. 388, 391 (2006); see also E. Bay 11 Sanctuary Covenant v. Biden, 993 F.3d 640, 677 (9th Cir. 2021) (“Irreparable harm is ‘harm for 12 which there is no adequate legal remedy, such as an award for damages.’”); Los Angeles 13 Memorial Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980) 14 (“The possibility that adequate compensatory or other corrective relief will be available at a later 15 date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”) 16 (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). Although it is well established that 17 monetary injuries are generally not considered irreparable, Los Angeles Memorial Coliseum, 634 18 F.2d at 1202, certain “intangible injuries, such as damage to ongoing recruitment efforts and 19 goodwill, [can] qualify as irreparable harm.” Rent-A-Ctr., Inc. v. Canyon Television & Appliance 20 Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991); see also hiQ Labs, Inc. v. LinkedIn Corp., 31 21 F.4th 1180, 1188 (9th Cir. 2022) (finding evidence that business faced “‘threat of ‘extinction’ is 22 enough to establish irreparable harm, even when damages may be available and the amount of 23 direct financial harm is ascertainable”); Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 24 F.3d 832, 841 (9th Cir. 2001) (evidence of threatened loss of prospective customers or goodwill 25 supports an irreparable harm finding). 26 Following the Supreme Court’s decision in Winter, one moving a preliminary injunction 27 must show that irreparable harm is “likely” to occur. Ctr. for Food Safety, 636 F.3d at 1172; All. 28 for Wild Rockies, 632 F.3d at 1131. In this regard, a showing of a speculative injury, or mere 1 allegations of an imminent harm that would satisfy standing, are not sufficient to warrant a 2 preliminary injunction. See Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th 3 Cir. 1988); Goldie’s Bookstore, Inc. v. Superior Ct. of State of Cal., 739 F.2d 466, 472 (9th Cir. 4 1984). Rather, a plaintiff must demonstrate that she faces a real and immediate threat of an 5 irreparable harm. See Caribbean Marine, 844 F.2d at 674; Midgett v. Tri-Cnty. Metro. Transp. 6 Dist. of Oregon, 254 F.3d 846, 850–51 (9th Cir. 2001). Thus, because irreparable harm must be 7 demonstrated and not merely alleged, the granting of a preliminary injunction must be based on 8 evidence showing that irreparable harm is likely. See Herb Reed Enters., LLC v. Florida Entm’t 9 Mgmt., Inc., 736 F.3d 1239, 1249–51 & n.5 (9th Cir. 2013) (reversing the district court’s granting 10 of preliminary injunctive relief in a trademark infringement suit because its “analysis of 11 irreparable harm is cursory and conclusory, rather than being grounded in any evidence”). 12 The court concludes that plaintiff has not satisfied her burden of showing that she is likely 13 to face imminent irreparable harm absent preliminary injunctive relief. 14 Critically, plaintiff did not attest in a declaration, or provide other competent evidence, 15 showing that she faces any currently ongoing or future irreparable harm. The declarations that 16 plaintiff did file in support of her pending motion do not address any harm that plaintiff continues 17 to or will suffer. Instead, the declarations of Professors Wong and London and author FitzPatrick 18 only discuss possible harms that the public might face from defendants’ alleged weight control 19 products, MLM business model, and auto-billing practices. (See Doc. No. 22-3 at ¶¶ 9–10, 26; 20 22-4 at ¶ 10; 22-5 at ¶¶ 8–9, 12.) But these possible harms are speculative and are not specific to 21 plaintiff. For example, Professor Wong evaluates a single marketing claim that defendants made 22 regarding the Thermofight product and found that it is “misleading, deceptive, and likely to 23 channel people” to purchase Thermofight in lieu of medically proven weight loss therapies. 24 (Doc. No. 22-3 at ¶ 26) (emphasis added). Professor Wong further reasons that this “likely” 25 channeling away from effective weight loss therapies “may result in the continued chronic 26 illnesses associated with obesity.” (Id.) (emphasis added). Without any further evidence or 27 reasoning, Professor Wong also asserts that the “same issues apply to” all of defendants’ weight 28 control products. (Id.) Professor Wong does not declare that plaintiff continues to be channeled 1 away (or that she ever was) from more effective products by defendants or that she suffers from a 2 chronic illness. His opinion is merely a series of possible results, each contingent on the one that 3 came before it, that do not culminate in the showing of a clear concrete injury or harm. This 4 amounts to speculation, and it is insufficient to constitute a showing of a concrete irreparable 5 harm. See Caribbean Marine, 844 F.2d at 675–76 (finding that, where multiple contingencies 6 must occur before an injury becomes concrete, the injury is “too speculative to constitute an 7 irreparable harm justifying injunctive relief”). The assertions in plaintiff’s other supporting 8 declarations are also highly speculative. (See, e.g., Doc. No. 22-4 at ¶ 10 (Professor London 9 admitting that harm from defendants’ weight control products are “unmeasured” and “unknown” 10 and concluding that such “products must be viewed as potentially more harmful than beneficial,” 11 but not attesting that plaintiff suffered or will suffer any harms) (emphasis added); Doc. No. 22-5 12 at ¶¶ 8–9, 12 (author FitzPatrick discussing MLM schemes and concluding that they can cause a 13 “soul-injuries” that “may include divorces, alienation from family, lost friendships, incapacity to 14 work, disillusionment, bankruptcies, addictions and even suicides,” but notably not attesting that 15 plaintiff has suffered or will suffer any of these injuries herself) (emphasis added).) 16 Similarly, the other evidence relied upon by plaintiff is also insufficient to demonstrate 17 irreparable harm. For instance, plaintiff’s reference to an FDA webpage and enforcement letters 18 do not concern the weight loss products sold by defendants and thus do not constitute evidence 19 that defendants’ products share any of the generic risks listed by the FDA. See Caribbean 20 Marine, 844 F.2d at 675 (finding evidence of assault on foreign fishing vessels was “too remote 21 and speculative” to support concerned harms of increased liability from intentional torts on 22 American fishing vessels). Nor can plaintiff’s concern regarding the exculpatory contract 23 provisions in defendants’ Terms of Use, including its arbitration clause, constitute irreparable 24 harm because this court has already ruled that plaintiff is not bound by that contract. (See Doc. 25 No. 38.) Even if the court were to consider the allegations of plaintiff’s FAC (which are not 26 evidence), plaintiff has only alleged that she suffered a past monetary injury—i.e., defendants’ 27 allegedly unlawful auto-billing, which plaintiff was able to successfully cancel—and does not 28 claim that she suffered any other injury. (Doc. No. 17 at ¶ 205); see Goldie’s Bookstore, 739 1 F.2d at 471 (“Mere financial injury . . . will not constitute irreparable harm if adequate 2 compensatory relief will be available in the course of litigation.”). Nothing in the allegations of 3 the FAC suggests, nor does any of the evidence before the court show, that plaintiff faces 4 anything other than a past economic injury. 5 Moreover, plaintiff’s novel attempt to characterize her “‘substantive right’ to ‘protection 6 from fraud, deceit and unlawful conduct’” under California’s UCL as an “intangible [irreparable] 7 injury” is unpersuasive because the cases cited by plaintiff do not support that proposition. (Doc. 8 Nos. 22-1 at 26; 30 at 13) (quoting In re Tobacco II, 46 Cal. 4th 298, 324 (2009)). The California 9 Supreme Court in In re Tobacco II addressed statutory standing requirements under the UCL 10 when a plaintiff is seeking class certification following enactment of a voter-passed ballot 11 initiative. See 46 Cal. 4th at 324 (“Applying Proposition 64’s standing requirements to the class 12 representative but not the absent class members enlarges neither the substantive rights nor the 13 remedies of the class.”). That decision has no bearing on whether plaintiff’s “substantive right” 14 under California’s UCL amounts to an intangible injury for purposes of demonstrating irreparable 15 harm under the legal standard governing the issuance of preliminary injunctive relief in federal 16 court. Ultimately, plaintiff merely argues that a state court’s pronouncement of the general 17 protection afforded by California’s UCL is tantamount to a specific showing that an intangible 18 injury is ongoing in this case. The court rejects this argument because it is unsupported and 19 unpersuasive.4 Cf. A. O. v. Cuccinelli, 457 F. Supp. 3d 777, 795 (N.D. Cal. 2020) (finding that 20 Special Juvenile Immigrant (SIJ) status applicants who were denied SIJ status under the United 21 States Citizenship and Immigration Services’ (USCIS) new policy position resulted in intangible 22 irreparable harms including, ineligibility for SIJ benefits such as green cards and federally-funded 23 24 4 Plaintiff also contends that “the Ninth Circuit has affirmed a false advertising injunction” and found that it “conferred significant benefits on third parties and also vindicated plaintiffs’ right to 25 a ‘market free of false advertising.’” (Doc. No. 30 at 11) (citing TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011)). But the decision in TrafficSchool.com is 26 inapposite. In that case the Ninth Circuit merely discussed the incidental public benefits of the 27 granting of a permanent injunction, issued following a federal Lanham Act trial, as a basis for its finding that the district court abused its discretion in denying attorneys’ fees. See 28 TrafficSchool.com, 653 F.3d at 832. 1 education, possibility of removal from the United States, and fear arising from the uncertainty of 2 their SIJ applications). 3 At bottom, plaintiff cites no authority for the proposition that a general right of the public 4 to be protected from “fraud, deceit, and unlawful conduct” amounts to an irreparable harm for 5 purposes of determining whether preliminary injunctive relief should be granted.5 Cf. Zepeda v. 6 U.S. I.N.S., 753 F.2d 719, 727–28 & n.1 (9th Cir. 1983) (explaining that the scope of a 7 preliminary injunction is limited to the parties in the action). Nor has plaintiff explained how 8 issuing the injunctive relief she requests—which would dramatically upend defendants’ 9 business—is necessary to preserve the status quo before a trial on the merits in this action. See 10 id. at 728 n.1 (“A preliminary injunction can only be employed for the ‘limited purpose’ of 11 maintaining the status quo.”). In fact, plaintiff waited over three and a half months after filing 12 this lawsuit before bringing the pending motion, which also “weighs against a claim of irreparable 13 injury.” U.S. ex rel. Rogers v. Cnty. of Sacramento, No. 2:03-cv-01658-LKK-DAD, 2006 WL 14 192671, at *3 (E.D. Cal. Jan. 24, 2006) (citing Oakland Trib., Inc. v. Chron. Pub. Co., 762 F.2d 15 1374, 1377 (9th Cir. 1985)). In sum, based on the evidence before the court in support of the 16 pending motion, plaintiff has failed to make an adequate showing that she is likely to face 17 immediate and irreparable harm requiring the granting of preliminary injunctive relief to preserve 18 the status quo. See Jacobsen v. Katzer, 609 F. Supp. 2d 925, 937–38 (N.D. Cal. 2009) (“Because 19 [plaintiff] fails to meet the burden of presenting evidence of actual injury to support his claims of 20 irreparable injury and speculative losses, the Court cannot, on this record, grant a preliminary 21 injunction.”). 22 ///// 23 ///// 24 5 Plaintiff does cite one out-of-circuit decision in which a preliminary injunction was issued in a 25 government enforcement action involving false advertising of a weight loss drug. See United States v. Wilson Williams, Inc., 277 F.2d 535, 536 (2d Cir. 1960). The two-page per curiam 26 decision in that case found that the evidence presented “overwhelmingly established the 27 government’s claims” and showed “that the defendants had limited resources” to issue refunds to customers. Id. at 536–37. There is no comparable evidence of irreparable harm here and, even if 28 there were, Wilson Williams is not binding on this district court. 1 Aside from asserting that the evidence shows that there is imminent irreparable harm, 2 plaintiff also contends that because she is seeking “public injunctive relief,” there is ongoing 3 irreparable harm that warrants a preliminary injunction.6 (Doc. No. 30 at 8–14.) This argument 4 raises several difficult questions including whether the specific relief plaintiff is seeking 5 constitutes public injunctive relief, whether public injunctive relief is available on a preliminary 6 basis, or whether a request for public injunctive relief modifies the requirement that a plaintiff 7 must demonstrate irreparable harm to obtain such relief. However, the court need not address 8 these issues in resolving the pending motion because it finds that plaintiff lacks standing to seek 9 public injunctive relief.7 10 It is true, as plaintiff points out, the Ninth Circuit has held that “a previously deceived 11 consumer may have standing to seek an injunction against false advertising or labeling, even 12 though the consumer now knows or suspects that the advertising was false at the time of the 13 original purchase[.]” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018) 14 Nonetheless, one’s standing to do so depends on whether “the consumer may suffer an ‘actual 15 and imminent, not conjectural or hypothetical’ threat of future harm.” Id. In Davidson, the 16 plaintiff sued a manufacturer of personal cleansing wipes, alleging that the manufacturer falsely 17 advertised the wipes as “flushable” in violation of the UCL, FAL, and CLRA when they were not, 18 in fact, flushable. Id. at 961. Critical to the court’s holding that plaintiff had standing to seek 19 20 6 According to the Ninth Circuit’s interpretation of the California Supreme Court’s decision in McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017), public injunctive relief is “limited to forward- 21 looking injunctions that seek to prevent future violations of law for the benefit of the general public as a whole, as opposed to a particular class of persons, and that do so without the need to 22 consider the individual claims of any non-party.” Hodges v. Comcast Cable Commc’ns, LLC, 21 23 F.4th 535, 542–43 (9th Cir. 2021). “The paradigmatic example would be the sort of injunctive relief sought in McGill itself, where the plaintiff sought an injunction against the use of false 24 advertising to promote a credit protection plan.” Id. 25 7 As a result, the court need not address the non-binding district court decisions or inapplicable state court decisions cited in plaintiff’s moving and reply papers regarding the issue of public 26 injunctive relief. (See Doc. Nos. 22-1 at 24–26 (arguing a preliminary injunction will prevent 27 irreparable harm to the classes and the general public); 30 at 8–10 (arguing that plaintiff seeks public injunctive relief), 10–13 (arguing that seeking public injunctive relief establishes 28 irreparable harm). 1 public injunctive relief were allegations in the complaint that plaintiff 2 “continues to desire to purchase wipes that are suitable for disposal in a household toilet”; “would purchase truly flushable wipes 3 manufactured by [Kimberly–Clark] if it were possible”; “regularly visits stores . . . where [Kimberly–Clark’s] ‘flushable’ wipes are 4 sold”; and is continually presented with Kimberly–Clark’s flushable wipes packaging but has “no way of determining whether the 5 representation ‘flushable’ is in fact true.” 6 Id. at 970–71. Here, plaintiff does not assert any comparable allegations in her FAC such that she 7 continues to desire purchasing safe and effective weight loss products from defendants and would 8 in fact purchase such products in the future if they were available. Because plaintiff “does not 9 allege the threat of future harm that Davidson held is required for Article III standing in a case 10 seeking public injunctive relief,” plaintiff’s argument that there is ongoing irreparable harm to the 11 general public warranting the granting of a preliminary injunction necessarily fails. See Stover v. 12 Experian Holdings, Inc., 978 F.3d 1082, 1087 (9th Cir. 2020) (finding that the lack of allegations 13 comparable to those in Davidson meant plaintiff could not seek public injunctive relief and could 14 not invoke the “McGill rule” as a basis to invalidate an arbitration agreement). 15 Alternatively, plaintiff also argues that she is not required to make a showing of 16 irreparable harm when an injunction is sought to prevent a violation of a federal or a California 17 statute that specifically provides for injunctive relief. (Doc. No. 30 at 12 (citing cases).) 18 Plaintiff’s argument in this regard is unpersuasive for two reasons. First, after initially citing 19 Winter as setting the applicable legal standard governing the issuance of a preliminary injunction, 20 plaintiff suggests that California law controls as to the applicable legal standard. (See id. (citing 21 California Assn. of Dispensing Opticians v. Pearle Vision Ctr., Inc., 143 Cal. App. 3d 419, 434, 22 (1983)). But plaintiff is incorrect; federal law controls in that regard. See Masters v. Avanir 23 Pharms., Inc., 996 F. Supp. 2d 872, 879 n.3 (C.D. Cal. 2014) (“Because the standard for issuing a 24 preliminary injunction is procedural, a federal court is bound to apply the federal standard even if 25 the underlying claims arise under state substantive law.”). Second, although a violation of federal 26 law can lead to a presumption of irreparable harm, “courts must analyze each statute separately to 27 determine whether Congress intended to make ‘a major departure from the long tradition of 28 equity practice’ and create a statutory presumption or categorical rule for the issuance of 1 injunctive relief.” Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 981 n.2 (9th Cir. 2011) (quoting 2 eBay, 547 U.S. at 391–92)); see also Herb Reed, 736 F.3d at 1249 (finding that there is no 3 presumption of irreparable harm in a trademark infringement action when the plaintiff makes a 4 showing of a likelihood of success on the merits). 5 Assuming without deciding that the court can apply the framework under federal law to a 6 state statute, a close review of the text of the UCL, FAL, and CLRA does not reveal any 7 indication that they were intended to create a statutory presumption or categorical rule for issuing 8 injunctive relief when violations are established. Compare Cal. Bus. Prof. Code § 17203 (“The 9 court may make such orders or judgments . . . as may be necessary to prevent . . . unfair 10 competition[.]”), and id. § 17535 (“Any person, corporation, . . . which violates or proposes to 11 violate this chapter may be enjoined by any court of competent jurisdiction.”), and Cal. Civ. Code 12 § 1780(a)(2) (“Any consumer who suffers any damage as a result of . . . a method, act, or practice 13 declared [unlawful under the CLRA] may bring an action . . . [for] [a]n order enjoining the 14 methods, acts, or practices.”) with eBay, 547 U.S. at 391–93 (finding no indication in the Patent 15 Act that Congress intended courts to depart from normal four-factor test for permanent injunction 16 where statute provided that “injunctions ‘may’ issue”). 17 Accordingly, the court finds that plaintiff has not carried her burden of demonstrating that 18 she faces imminent irreparable harm. To the extent plaintiff argues that seeking public injunctive 19 relief could remedy this deficiency, it is irrelevant because plaintiff lacks standing to seek such 20 relief. Because plaintiff has not made the required showing of irreparable harm, a preliminary 21 injunction cannot issue. All. for the Wild Rockies, 632 F.3d at 1135 (describing that after Winter, 22 plaintiffs must make a showing on all four prongs of the preliminary injunction analysis.) As a 23 result, the court need not address plaintiffs’ showing with respect to her likelihood of success on 24 the merits, the balance of equities, and whether the granting of an injunction is in the public 25 interest. See Singleton v. Kernan, No. 3:16-cv-02462-BAS-NLS, 2017 WL 4922849, at *3 (S.D. 26 Cal. Oct. 31, 2017) (“Where a plaintiff fails to demonstrate a likelihood of irreparable harm 27 without preliminary relief, the court need not address the remaining elements of the preliminary 28 injunction standard.”), aff’d, 730 F. App’x 540 (9th Cir. 2018). 1 Because the court will deny plaintiff's request for preliminary injunctive relief, the court 2 | will also deny plaintiffs request to provisionally certify two putative classes without addressing 3 | Rule 23’s requirements. See Criswell v. Boudreaux, No. 1:20-cv-01048-DAD-SAB, 2020 WL 4 | 7646405, at *12—13 (E.D. Cal. Dec. 23, 2020) (denying a request for provisional class 5 | certification where a motion for a preliminary injunction was also denied). In doing so, the court 6 | does not suggest that plaintiff has failed to meet the Rule 23 class certification requirements with 7 | regard to the putative classes alleged in her FAC. 8 CONCLUSION 9 For the reasons explained above, plaintiff's motion for a preliminary injunction and 10 | provisional class certification (Doc. No. 22) is denied. 11 | IT IS SO ORDERED. a 2 Dated: _ June 21, 2022 J aL A 4 7 a 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15