                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL J. OTTO, Individually, and on            No.    16-55394
Behalf of Other Members of the General
Public Similarly Situated,                       D.C. No.
                                                 5:12-cv-01411-SVW-DTB
              Plaintiff-Appellant,

 v.
                                                 MEMORANDUM*
ABBOTT LABORATORIES INC., DBA
Abbott Nutrition, a Delaware corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                    Argued and Submitted November 14, 2017
                              Pasadena, California

Before: KOZINSKI, HAWKINS, and PARKER,** Circuit Judges.



      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      **
         The Honorable Barrington D. Parker Jr., Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
      Michael J. Otto (“Otto”) appeals the Rule 12(b)(6) dismissal of his literal-falsity

claim under California law.1 He also attempts to appeal the class-certification rulings

regarding his deception-by-omission claim.

      We have jurisdiction to hear the Rule 12(b)(6) literal-falsity dismissal, but not

the class-certification rulings regarding Otto’s voluntary dismissal of his deception-

by-omission claim. See Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1707 (2017).

      The determination that Otto failed to state a claim for literal falsity was proper.

Viewed collectively and in full context, the sources cited by Otto reveal that Abbott’s

products do help rebuild strength naturally lost over time, at least for those with

normal vitamin-D levels. Otto has therefore failed to plausibly allege that Abbott’s

representations were literally false. See, e.g., Warren v. Fox Family Worldwide, Inc.,

328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e are not required to accept as true

conclusory allegations which are contradicted by documents referred to in the

complaint and [w]e do not . . . necessarily assume the truth of legal conclusions

merely because they are cast in the form of factual allegations.”) (citations and

quotation marks omitted); In re GNC Corp., 789 F.3d 505, 516 (4th Cir. 2015) (a



      1
        California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §
17200 et seq., California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code
§ 1750 et seq., and California’s False Advertising Law (“FAL”), Cal. Bus. & Prof.
Code § 17500 et seq.
                                           2
representation is not literally false under the UCL and the CLRA if “the scientific

evidence is equivocal”).

      DISMISSED IN PART AND AFFIRMED IN PART.




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