                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 22 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALESSANDRA BALSER, Individually                  No. 14-55074
and on Behalf of All Others Similarly
Situated; RUTH KRESHA, Individually              D.C. No. 2:13-cv-05604-R-RZ
and on Behalf of All Others Similarly
Situated,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

 v.

THE HAIN CELESTIAL GROUP, INC.,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                      Argued and Submitted February 8, 2016
                               Pasadena, California

Before: BERZON, DAVIS**, and OWENS, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
      Plaintiffs Alessandra Balser and Ruth Kresha filed a putative class action

lawsuit against The Hain Celestial Group, Inc. (“Hain”), alleging that Hain’s use of

the word “Natural” on some of its products’ packaging is misleading because the

products contain synthetic ingredients. The district court dismissed the case

without leave to amend. We reverse and remand for further proceedings.

      1. Plaintiffs pleaded their claims with sufficient particularity to satisfy

Federal Rule of Civil Procedure 9(b). First, Plaintiffs adequately alleged “the who,

what, when, where, and how of the misconduct charged.” Kearns v. Ford Motor

Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (citation omitted). They provided a

definition of “natural,” and explained that “natural” means free of synthetic

ingredients. Plaintiffs also alleged Hain used the phrase “100% Vegetarian” on the

back of the products’ packaging, which, the complaint avers, means products

derived from plants. These allegations are sufficient plausibly to allege a

reasonable consumer’s understanding of “natural” as used on Hain’s packaging,

and so are adequate under California law. See Williams v. Gerber Prods. Co., 552

F.3d 934, 938-39 (9th Cir. 2008); Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295,

1304 (2011). Additionally, the complaint gives rise to the reasonable inference that




                                           2
Plaintiffs themselves believed the proffered definition of “natural.” See Cahill v.

Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

      Second, assuming without deciding that Rule 9(b) requires specific

allegations of reliance, Plaintiffs have satisfied the requirement. They alleged that

they viewed the “natural” labeling on certain Alba Botanica products and, because

of that labeling, paid a premium as compared to “products that do not purport to be

natural.” Had the products not claimed to be “natural,” Plaintiffs alleged, they

would not have paid a premium price for them. These allegations are sufficient

plausibly to allege reliance.

      Finally, Plaintiffs sufficiently pleaded how they were harmed by the

“natural” representation. Allegations that one paid more than one otherwise would

have because of a misrepresentation sufficiently allege economic injury. See Mazza

v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th Cir. 2012).

      2. Whether a business practice is deceptive, misleading, or unfair is

ordinarily a question of fact to be decided by a jury. Williams, 552 F.3d at 938-39.

As here, Williams involved claims of deceptive labeling. Plaintiffs challenged five

aspects of Gerber’s Fruit Juice Snacks packaging, including “the statement that

Fruit Juice Snacks was made with ‘fruit juice and other all natural ingredients.’” Id.




                                           3
at 939. We held that the statement “could easily be interpreted by consumers as a

claim that all the ingredients in the product were natural, which appears to be

false,” and so reversed dismissal of the complaint. Id. In this case, similarly, the

statements that the products were “natural” and “100% vegetarian” could be taken

as a claim that no synthetic chemicals were in the products, a claim the complaint

alleges, in detail, is false.

       Moreover, Williams is clear that an ingredient list does not correct, as a

matter of law, misrepresentations on the product’s label. Rather, the likely impact

of such a list on a reasonable consumer is a factual issue, not determinable on the

pleadings. Id. at 939-40. Given that holding, product information on a website also

cannot override as a matter of law any misimpressions created by the label.

Williams therefore requires reversal.

       3. Plaintiffs also argue that the district court abused its discretion by

denying them precertification discovery. We note that the schedule contemplated

by Central District of California Local Rule 23-3, when considered alongside

federal rules regarding status conferences and the timing of discovery, is quite

unrealistic in light of recent case law regarding the need to establish a sufficient

factual record at the class certification stage. See Wal-Mart Stores, Inc. v. Dukes,




                                           4
131 S. Ct. 2541, 2551 (2011); see also Barbara J. Rothstein & Thomas E.

Willging, Federal Judicial Center, Managing Class Action Litigation: A Pocket

Guide for Judges 9 (3d ed. 2010) (noting that local rules calling for specific time

limits on class certification should be ignored as inconsistent with federal rules and

obsolete).

      By minute order, the district court deferred consideration of the Plaintiffs’

motion for precertification discovery to a date after the Plaintiffs’ motion for class

certification was due, thereby implicitly denying the motion by rendering it moot.

We vacate that decision and remand to the district court for consideration of

whether precertification discovery is necessary, given Plaintiffs’ particular

document requests, updated requests, and recent case law.

      REVERSED and REMANDED.




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