Under Ninth Circuit precedent, when a defendant brings a factual challenge to jurisdiction, the district court may resolve factual disputes so long as the jurisdictional and merits inquiries are not intertwined.  But where the jurisdictional and merits inquiries are intertwined, the court must treat the motion like a motion for summary judgment and “leave the resolution of material factual disputes to the trier of fact.”  The Ninth Circuit recently confirmed that the same rules apply to a factual challenge to Article III standing.

In Bowen v. Energizer Holdings, Inc., the plaintiff brought false advertising claims against a sunscreen manufacturer based on the sunscreen’s alleged contamination with benzene, a carcinogen.  Plaintiff alleged that she was injured by paying more for the sunscreen than she otherwise would have.  Defendants argued that the plaintiff lacked Article III standing because the level of benzene at issue—0.29 parts-per-million (ppm) or less—does not pose a health risk and introduced evidence in support, including non-binding FDA guidance.  The district court found the plaintiff lacked Article III standing after resolving a factual dispute about the safety of the sunscreen at issue.

The Ninth Circuit first held that where the jurisdictional and merits inquiries are intertwined, the court must apply the summary judgment standard and defer resolution of disputed facts to the factfinder.  The Ninth Circuit then held that disputes over the safety of sunscreen with 0.29 ppm was an intertwined standing and merits issue, so the district court erred by resolving the conflict.

Defendants should bear this standard in mind when considering Article III challenges and, to the extent possible, should attempt to frame standing challenges as distinct from the merits.