                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 7 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TATIANA KOROLSHTEYN, on behalf of               No.    17-56435
herself and all others similarly situated,
                                                D.C. No. 3:15-cv-00709-CAB
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

COSTCO WHOLESALE CORPORATION
and NBTY, INC.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                     Argued and Submitted November 9, 2018
                     Submission Vacated November 13, 2018
                         Resubmitted February 20, 2019
                                Portland, Oregon

Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,** District Judge.

      Tatiana Korolshteyn and other putative class action plaintiffs appeal an

adverse summary judgment entered by the district court in favor of Costco


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
Wholesale Corporation and NBTY and a denial of Daubert motions in a diversity

class action. The class alleges that appellees violated California’s Unfair

Competition Law (“UCL”) and Consumer Legal Remedies Act (“CLRA”) by

falsely advertising the benefits of TruNature Ginkgo Biloba with Vinpocetine.

Both parties had introduced expert testimony supporting their respective claims

and the district court denied appellants’ Daubert motions to exclude the testimony

of three of the appellees’ expert witnesses. We have jurisdiction under 28 U.S.C.

§ 1291. We review summary judgment de novo. See Edwards v. Wells Fargo &

Co., 606 F.3d 555, 557 (9th Cir. 2010). We review a district court’s admission of

scientific evidence for abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S.

136, 146 (1997). Because the district court did not have the benefit of a recently

released decision of our court, we reverse the district court’s grant of summary

judgment, affirm the denial of the Daubert motions, and remand for further

proceedings.1

      Based on the recently released opinion, the district court erred in granting

summary judgment by failing to apply the appropriate substantive evidentiary

standard of a preponderance to claims brought under California’s consumer


1
 The motion to file and request to extend time for filing an Amicus Curiae by the
Consumer Attorneys of California in support of appellants is denied as moot
following the panel’s reversal of summary judgment and the Court’s recent
decision in Sonner v. Schwabe N. Am., Inc., 911 F.3d 989 (9th Cir. 2018)
confirming the appropriate standard of proof in UCL and CLRA claims.

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protection laws. See Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir.

2018). The appropriate evidentiary standard must be applied in determining

whether a factual dispute must be submitted to a jury. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). The district court applied a tougher,

conclusive standard, holding that the existence of scientific studies supporting the

alleged benefits of the product precluded the appellants from conclusively proving

falsity in the appellees’ product labeling. We therefore remand so that the district

court may apply the newly clarified standard. See Sonner at 992.

      The district court did not abuse its discretion in denying appellants’ Daubert

motions and admitting the testimony of appellees’ expert witnesses. Concerns

regarding the admission of “shaky” evidence are resolved through the trial process

through “[v]igorous cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof.” Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579, 596 (1993). We affirm the district court’s denial of appellants’

Daubert motions.

      REVERSED IN PART, AFFIRMED IN PART, and REMANDED.

      Each party shall bear its own costs on appeal.




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