Hormel Foods Corp. unit Cytosport Inc. won its bid for immediate appeal of a decision granting class certification in a consumer suit alleging it falsely advertises its Muscle Milk protein products.

The U.S. Court of Appeals for the Ninth Circuit granted the company’s motion under Fed. R. Civ. P. 23(f), which permits interlocutory appeals of class certification decisions.

It’s uncommon for an appeals court to allow immediate review of a class certification decision.

Chayla Clay and others allege Cytosport overstates the protein content of Muscle Milk shake products and understates the fat content on protein powder products by using the word “lean” on their labels.

The U.S. District Court for the Southern District of California certified nationwide classes for claims under California consumer protection statutes. It also certified California, Florida, and Michigan subclasses.

Cytosport argues the district court improperly applied California’s consumer protection laws to the nationwide class. It also challenges the certification based on an expert witness’s unproved declaration that she could design a class-wide damages model. She hasn’t actually done so, the company says.

But the plaintiffs say the district court correctly found out-of-state consumers could assert rights under California Law. And the proposed damages model is capable of showing classwide damages, the amount of money plaintiffs allege they overpaid because of the marketing statements, they say.

Sommers Schwartz P.C., Barbat Mansour & Suciu PLLC, and Finkelstein & Krinsk LLP represented the plaintiffs. Faegre Baker Daniels LLP represented Cytosport.

The case is Clay v. Cytosport, Inc., 2018 BL 477217, 9th Cir., No. 18-80123, 12/21/18.