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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

GARRET SHANK,

Plaintiff,

v.

PRESIDIO BRANDS, INC.,

Defendant.

Case No. 17-cv-00232-DMR 

ORDER ON MOTION TO DISMISS 

CLAIM FOR INJUNCTIVE RELIEF

Re: Dkt. No. 64

In this putative class action, Plaintiff Garret Shank alleges that Defendant Presidio Brands, 

Inc. (“Presidio”) engages in false, misleading, and deceptive marketing practices with respect to 

Presidio’s “Every Man Jack” line of men’s personal hygiene products. Presidio now moves 

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Shank’s claim for 

injunctive relief. [Docket No. 64.] This matter is appropriate for determination without oral 

argument. Civ. L.R. 7-1(b). For the following reasons, Presidio’s motion to dismiss is denied.

I. BACKGROUND

Shank filed this putative class action to challenge the labeling and advertising of Presidio’s 

Every Man Jack products. According to Shank, Presidio’s “advertising and labeling strategy 

focuses on claims that its Every Man Jack products are all-natural, naturally-derived, non-toxic, 

using only naturally-derived ingredients, and exceptionally safe for consumers.” [Docket No. 61 

(Second Amended Complaint, “SAC”) ¶ 2.] Presidio cultivates the products’ image “as a natural, 

plant-based, non-synthetic, healthy and eco-friendly brand through its wood-grain packaging, 

plant imagery . . . , and simplistic labeling,” as well as through its use of the statements 

“naturally,” “natural,” “naturally-derived,” and “only naturally derived” on its product labels, on 

its website, and in magazine advertisements and articles. Id. at ¶ 25. However, Shank alleges, the 

representation that the Every Man Jack products contain “‘only naturally-derived’ ingredients is 
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false, misleading, and deceptive,” because they actually contain “numerous ingredients that are 

artificially-engineered through multiple synthetic processes rendering the resulting ingredients and 

its components unnatural and not naturally-derived.” Id. at ¶ 26.

Shank asserts that Presidio’s conduct violates three California consumer protection 

statutes: 1) the Consumers Legal Remedies Act (“CLRA”), California Civil Code section 1750 et 

seq.; 2) the False Advertising Law (“FAL”), California Business & Professions Code section 

17500 et seq.; and 3) the Unfair Competition Law (“UCL”), California Business & Professions 

Code section 17200 et seq. Shank seeks to represent a nationwide class of similarly situated 

persons who purchased any Every Man Jack product “containing artificially-processed and 

synthetic ingredients and labeled or marketed as containing ‘only naturally derived ingredients.’” 

SAC ¶ 40.

Presidio previously moved to dismiss Shank’s first amended complaint. After the briefing 

was completed, the Ninth Circuit issued Davidson v. Kimberly-Clark Corp., 873 F.3d 1103, 1113 

(9th Cir. 2017), which resolves a district court split regarding consumers’ standing to pursue 

injunctive relief in false advertising cases. On January 23, 2018, the court granted in part and 

denied in part Presidio’s motion to dismiss the first amended complaint. Shank v. Presidio 

Brands, Inc., No. 17-cv-00232-DMR, 2018 WL 510169 (Jan. 23, 2018). In relevant part, the court 

dismissed the claim for injunctive relief with leave to amend, noting that Shank had conceded that 

the amended complaint did not contain sufficient factual allegations to establish standing to pursue 

injunctive relief under Davidson. Id. at *5-6. Shank timely filed his second amended complaint, 

and Presidio now moves to dismiss the claim for injunctive relief.

II. LEGAL STANDARDS

Presidio moves pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to 

dismiss Shank’s claim for injunctive relief on the ground that he lacks Article III standing to seek 

injunctive relief. Mot. 1. “The Article III case or controversy requirement limits federal courts’

subject matter jurisdiction by requiring, inter alia, that plaintiffs have standing and that claims be 

‘ripe’ for adjudication.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121 (9th 

Cir. 2010). “Standing addresses whether the plaintiff is the proper party to bring the matter to the 
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court for adjudication.” Id. at 1122 (citation omitted). As it pertains to a federal court’s subject 

matter jurisdiction, standing is properly raised in a motion to dismiss pursuant to Rule 12(b)(1), 

not Rule 12(b)(6). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The party opposing the 

motion bears the burden of establishing subject matter jurisdiction, see Chandler, 598 F.3d at 

1122, and when reviewing “a motion to dismiss for lack of standing, a district court must accept as 

true all material allegations in the complaint, and must construe the complaint in the nonmovant’s 

favor.” Id. at 1121. 

III. DISCUSSION

Presidio argues that Shank’s amended claim for injunctive relief remains deficient. In 

essence, Presidio contends that Shank cannot plausibly allege a likelihood of future injury because 

if he wants to purchase a Presidio product with an “all natural” label in the future, Shank need 

only read the product’s ingredients list on the spot to confirm whether or not the label 

misrepresents the product’s contents. Presidio asserts that these facts distinguish the 

circumstances in this case from those addressed in Davidson. 

A plaintiff must demonstrate standing “separately for each form of relief sought.” Friends 

of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000). A plaintiff seeking 

injunctive relief must demonstrate a “real or immediate threat that they will be wronged again—a 

likelihood of substantial and immediate irreparable injury.” City of Los Angeles v. Lyons, 461 

U.S. 95, 111 (1982) (quotation omitted). “[T]he injury or threat of injury must be both ‘real and 

immediate,’ not ‘conjectural’ or ‘hypothetical.’” Id. at 102 (citations omitted). “Past exposure to 

illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . 

if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 

495-96 (1974). Further, a named plaintiff must show that he or she is subject to a likelihood of 

future injury. “Any injury unnamed members of this proposed class may have suffered is simply 

irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they 

seek.” Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999).

In Davidson, the Ninth Circuit examined a district court split regarding “to what extent a 

previously deceived consumer who brings a false advertising claim can allege that her inability to 
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rely on the advertising in the future is an injury sufficient to grant her Article III standing to seek 

injunctive relief.” The court resolved the issue “in favor of plaintiffs seeking injunctive relief.” 

873 F.3d at 1113, 1115. In Davidson, the plaintiff brought FAL, CLRA, UCL, and fraud claims 

against the manufacturer of pre-moistened wipes. The manufacturer labeled and marketed the 

wipes as “flushable,” meaning “suitable for being flushed [down a toilet],” and the plaintiff paid a 

premium for the flushable wipes, as compared to non-flushable wipes. Id. at 1107, 1110. The 

plaintiff later learned that the products were not truly flushable. Id. at 1108. The district court 

dismissed the injunctive relief claim, finding that the plaintiff lacked standing because she had no 

intention of purchasing the same product in the future and therefore had no risk of future injury. 

Id. at 1109, 1112.

The Ninth Circuit reversed, finding that the plaintiff had “properly alleged that she faces a 

threat of imminent or actual harm by not being able to rely on [the defendant’s] labels in the 

future, and that this harm is sufficient to confer standing to seek injunctive relief.” Id. at 1113. 

Davidson held that plaintiffs in consumer false advertising cases have standing to pursue 

injunctive relief in at least two circumstances:

In some cases, the threat of future harm may be the consumer’s 

plausible allegations that she will be unable to rely on the product’s 

advertising or labeling in the future, and so will not purchase the 

product although she would like to. In other cases, the threat of 

future harm may be the consumer’s plausible allegations that she 

might purchase the product in the future, despite the fact it was once 

marred by false advertising or labeling, as she may reasonably, but 

incorrectly, assume the product was improved.

Id. at 1115 (citations omitted). The plaintiff in Davidson alleged that she continued to desire to 

purchase wipes suitable for disposal in a toilet, that she would purchase “truly flushable wipes” 

manufactured by the defendant if it were possible, and that she was continually presented with the 

defendant’s flushable wipes packaging, but had “no way of determining whether the 

representation ‘flushable’ [was] in fact true.” Id. at 1116. The Ninth Circuit found these 

allegations sufficient for standing purposes:

We therefore hold that Davidson’s allegation that she has no way of 

determining whether the representation “flushable” is in fact true 

when she regularly visits stores . . . where Defendants’ “flushable” 

wipes are sold constitutes a threatened injury [that is] certainly 

impending, thereby establishing Article III standing to assert a claim 

for injunctive relief.
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Id. (citation and internal quotation marks omitted).

Here, Shank has added allegations relevant to his claim for injunctive relief. He asserts 

that he would like to buy Presidio’s accused products in the future if they were reformulated to 

contain all-natural ingredients, but he would be “hesitant to rely” on Presidio’s labeling due to the 

misrepresentations that Shank is challenging in this case: 

Plaintiff would like to purchase [Every Man Jack] Products in the 

future if the products are reformulated so that they no longer contain 

unnatural, synthetic, or non-naturally derived ingredients, but has no 

way of knowing whether the reformulation would, in fact, actually 

contain no unnatural, synthetic, or non-naturally derived ingredients 

and would be hesitant to rely on the EMJ Products’ labels in the 

future due to the misrepresentations contained herein.

SAC ¶ 15.

Presidio argues that these allegations are insufficient to confer standing to seek injunctive 

relief because Shank fails to sufficiently allege a likelihood of future injury under Davidson. 

According to Presidio, Shank’s allegations are not comparable to those in Davidson because 

Shank does not allege an “inability to determine at the point of purchase whether the Products are 

not what Plaintiff wants.” Mot. 4-5. Presidio contends that the plaintiff in Davidson established 

standing for her injunctive relief claim because if she wanted to buy flushable wipes in the future, 

she would not have the ready means to verify whether the wipes were actually flushable. By 

contrast, according to Presidio, Shank “faces no risk of repeated injury from being misled,”

because he can simply look at the product’s ingredients list and “easily determine at the time of 

purchase if the same allegedly offensive ingredients are still present.” Id. at 5. 

Presidio’s position is not persuasive. In Davidson, the Ninth Circuit determined that a 

plaintiff may seek injunctive relief because “she faces a threat of imminent or actual harm by not 

being able to rely on [a defendant’s] labels in the future, and that this harm is sufficient to confer 

standing to seek injunctive relief.” 873 F.3d at 1113. In reaching this decision, the Ninth Circuit 

rejected the reasoning expressed by a number of courts that a “previously-deceived-but-nowenlightened plaintiff simply does not have standing under Article III to ask a federal court to grant 

an injunction.” Id. at 1114 (quoting Machlan v. Proctor & Gamble Co., 77 F. Supp. 3d 954, 960 

(N.D. Cal. 2015)). Davidson did not address the exact defense argument presented here —
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namely, that Shank lacks standing for injunctive relief because if he wants to purchase the product 

in the future, he will be able to confirm whether Presidio’s label is misleading by checking it 

against the list of ingredients on the product. Nevertheless, Davidson’s favorable citation to two 

decisions suggests that the Ninth Circuit would reject Presidio’s reasoning. 

First, Davidson cites Lilly v. Jamba Juice Co., No. 13-cv-02998-JST, 2015 WL 1248027 

(N.D. Cal. Mar. 18, 2015) to illustrate its holding that the threat of future harm may be established 

if a consumer plausibly alleges that she wants to purchase the product in the future, but will be 

unable to rely on the product’s labeling. Davidson, 873 F.3d at 1115. In Lilly, the court explained 

the nature of the consumer injury in such circumstances as follows: 

When a consumer discovers that a representation about a product is 

false, she doesn’t know that another, later representation by the 

same manufacturer is also false. She just doesn’t know whether or 

not it’s true. A material representation injures the consumer not only 

when it is untrue, but also when it is unclear whether or not it is 

true.

Lilly, 2015 WL 1248027, at *3 (emphasis in original). 

More importantly, Davidson discusses Ries v. Arizona Beverages USA LLC, 287 F.R.D. 

523, 527 (N.D. Cal. 2012). Davidson, 873 F.3d at 1114-1115. The circumstances in Ries are 

factually comparable to those raised here. In Ries, the plaintiffs alleged that the defendants falsely 

advertised their “AriZona Iced tea” beverages as “All Natural” and “100% Natural,” even though 

the products contained high fructose corn syrup and citric acid. For example, plaintiff Ries had 

purchased an accused beverage based on its “all natural” labeling. After taking a sip, she looked 

at the ingredients and noticed that the product contained high fructose corn syrup. She felt 

deceived by the “all natural” labeling, and consequently discarded the rest of the drink. 287

F.R.D. at 527. The defendants in Ries argued that the plaintiffs lacked standing to pursue 

injunctive relief because there was no threat of future harm since they were aware of the contents 

of the beverages and could no longer be deceived. Id. at 533. The court rejected this argument, 

emphasizing that a defendant’s false representation about a product can lead to a consumer’s 

reluctance to rely on the defendant’s labeling in the future: 

Plaintiffs request to be relieved from false advertising by defendants 
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in the future, and the fact that they discovered the supposed

deception some years ago does not render the advertising any more 

truthful. Should plaintiffs encounter the denomination “All Natural” 

on an AriZona beverage at the grocery store today, they could not 

rely on that representation with any confidence. This is the harm 

California’s consumer protection statutes are designed to redress.

Id. In Ries, the plaintiff simply could search for the words “high fructose corn syrup” on the 

bottle’s ingredients list during any future contemplated beverage purchase, presenting an even 

more compelling illustration of the point which Presidio pursues here. Davidson’s adoption of the 

analysis in Ries strongly suggests that the Ninth Circuit would reject Presidio’s reasoning that a 

plaintiff cannot establish standing for injunctive relief if she can check whether she is being lied to 

by examining the fine print on a product label. 

Ries went on to note that “were the Court to accept the suggestion that plaintiffs’ mere

recognition of the alleged deception operates to defeat standing for an injunction, then injunctive 

relief would never be available in false advertising cases, a wholly unrealistic result.” 287 F.R.D. 

at 533. Likewise, although the Davidson court was careful to point out that its conclusion “is not 

based on this consideration,” the Ninth Circuit observed that “[w]ere injunctive relief unavailable 

to a consumer who learns after purchasing a product that the product’s label is false, California’s 

consumer protection laws would be effectively gutted.” Davidson, 873 F.3d at 1115-1116.

In addition to Davidson’s favorable reliance on Ries and Lilly, the Ninth Circuit provided 

other important guidance on this issue in an earlier case where it held that “reasonable consumers” 

should not “be expected to look beyond misleading representations on the front of [packaging] to 

discover the truth from the ingredient list in small print on the side of the [packaging].” Williams 

v. Gerber Prods. Co., 552 F.3d 934, 939 (9th Cir. 2008). The court went on to state that “[w]e do 

not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and 

then rely on the ingredient list to correct those misinterpretations and provide a shield for liability 

for the deception.” Id. 

Shank alleges that he would like to purchase Presidio’s products in the future, but that he 

“would be hesitant to rely on the [Every Man Jack] Products’ labels in the future” due to the 

present alleged misrepresentations on the labels. SAC ¶ 15. These allegations are sufficient as a 

matter of pleading to confer standing to seek injunctive relief, because Shank alleges that he will 
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not be able to trust Presidio’s claims about Every Man Jack products. See Davidson, 873 F.3d at 

1115. Shank’s ability to read the products’ ingredients does not render Presidio’s allegedly false 

advertising that the products contain “only naturally-derived” ingredients “any more truthful.” See

Ries, 287 F.R.D. at 533. The court concludes that Shank has sufficiently alleged standing to seek 

injunctive relief.

Presidio points to a post-Davidson decision to support its position, but it is distinguishable. 

In Fernandez v. Atkins Nutritionals, Inc., No. 3:17-cv-01628-GPC-WVG, 2018 WL 280028, at *1 

(S.D. Cal. Jan. 3, 2018), the plaintiff alleged that the defendant “misleadingly label[ed] its snack 

products with regard to their ‘net’ carbohydrate content.” The defendant’s product labels included

“net carb” calculations for the snack products, and its website provided the basis for the net carb 

calculation, which was “the total carbohydrate content of the food minus the fiber content and 

sugar alcohols.” Id. The defendant’s website provided information about why it did not count the 

“carbohydrates in fiber, glycerine, and sugar alcohols” in the net carb calculation, and suggested 

that the calculation was “based on ‘science.’” Id. The plaintiff alleged that the net carb 

calculations listed on the products’ labels were misleading because the defendant’s method of 

calculating net carbs conflicted with the method that its founder had previously “espoused . . . in 

his books,” whereby “only fiber should be deducted from the calculation of net carbohydrates, not 

sugar alcohols.” Id. The plaintiff also alleged that the defendant’s method of calculating net carbs 

conflicted with “authoritative scientific research on sugar alcohols.” Id.

The court dismissed the plaintiff’s claim for injunctive relief where she “[did] not allege 

that she wishes to purchase [the defendant’s] products anymore” and “admit[ted] that she now has 

knowledge that enables her to make an appropriate choice with respect to [the defendant’s] 

products”—i.e., she “now knows how Atkins goes about calculating its net carb claims.” Id. at 

*14-15. Importantly, the Fernandez plaintiff did not state that she maintains a desire to purchase 

the accused products in the future. This alone is fatal to an injunctive relief claim under Davidson. 

See Davidson, 873 F.3d at 1115. By contrast, Shank alleges that he would like to purchase Every 

Man Jack products but “has no way of knowing whether [a] reformulation would . . . actually 

contain no unnatural, synthetic, or non-naturally derived ingredients” and that he “would be 
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hesitant to rely on the [Every Man Jack] Products’ labels in the future.” SAC ¶ 15. To the extent 

that Fernandez can be read to support the proposition that a consumer cannot be deceived by 

future mislabeling if the consumer has ready access to information to test the veracity of the 

representation, this court respectfully disagrees with that reasoning.

IV. CONCLUSION

For the foregoing reasons, Presidio’s motion to dismiss Shank’s claim for injunctive relief 

is denied.

IT IS SO ORDERED.

Dated: April 25, 2018

______________________________________

Donna M. Ryu

United States Magistrate Judge

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORN

I

A

IT IS SO ORDERED

Judge Donna M. Ryu