United States Ninth Circuit

In a class action alleging deceptive marketing of a food product for toddlers, dismissal of the suit is reversed where: 1) deficiencies in appellants' opening brief do not warrant dismissal since the claim has merit; 2) appellants have stated a claim and could plausibly prove that a reasonable consumer would be deceived by the product's packaging; and 3) the district court erred in concluding, without considering any evidence beyond the packaging itself, that appellants' complaint failed to state a viable claim. (Amended opinion)

Appellate Information

• Argued 02/07/2008
• Decided 12/22/2008
• Published 12/22/2008

Judges

• Before:  HARRY PREGERSON, GLENN L. ARCHER, JR., and KIM McLANE WARDLAW, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Harold M. Hewell, Hewell Law Firm, APC, San Diego, CA, for the plaintiffs-appellants.


• For Appellees:
  
• Bryan Merryman, Francisco Cabada, White & Case LLP, Los Angeles, CA, for the defendant-appellee.