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Brownfield v. Bayer Corp.

July 2, 2009

NICHOLE BROWNFIELD, AN INDIVIDUAL; AND KIERA CHAMBERS, AN INDIVIDUAL, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
BAYER CORPORATION; BAYER HEALTHCARE PHARMACEUTICALS, INC.; BAYER PHARMACEUTICALS CORPORATION; BAYER HEALTHCARE, LLC; BAYER HEALTHCARE A.G.; BERLEX LABORATROIES, INC.; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANT BAYER HEALTHCARE PHARMACEUTICALS INC.'S MOTION TO DISMISS COMPLAINT

This matter comes before the Court on Defendant Bayer HealthCare Pharmaceuticals, Inc.'s ("Bayer") motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 Plaintiffs Nichole Brownfield and Kiera Chambers ("Plaintiffs") oppose the motion. For the reasons set forth below, Defendant's motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Bayer markets and sells consumer health products and pharmaceutical products, including YAZ(r). Plaintiffs' Complaint, Doc. # 1, ("Compl.") ¶ 14. YAZ(r) is a prescription medication, approved by the Food and Drug Administration ("FDA") for use as an oral contraceptive, as a treatment for symptoms of premenstrual dysphoric disorder ("PMDD") in women who use oral contraceptives, and for the treatment of moderate acne in women who use oral contraceptives. Compl., Ex. B. At issue in this case are specific television commercials presented by Bayer to members of the public with respect to YAZ(r). Compl. ¶ 21.

Plaintiffs allege the auditory statements, visuals, and images contained in the Ads do not express the limitations of YAZ(r) with regard to the treatment of those symptoms associated with Pre-menstrual Syndrome ("PMS") or the treatment of various forms and severities of acne. Id. ¶¶ 41-45. Specifically, Plaintiffs challenge two Ads entitled "Not Gonna Take It" and "Balloons." In the Ad "Not Gonna Take It" it states: "YAZ(r) is the only birth control proven to treat the emotional and physical premenstrual symptoms that are severe enough to impact your life. It can also help keep your skin clear." Id. ¶ 26. These verbal representations are accompanied by visual images of energetic women singing "We're Not Gonna Take It" as they kick, punch, and push words describing symptoms such as "IRRITABILITY," "MOODINESS," "BLOATING," and "FEELING ANXIOUS," away from the screen, followed by the claim "It's YAZ(r)! And there's no other birth control like it." The screen then displays a listing of symptoms including: irritability; increased appetite; moodiness; fatigue; feeling anxious; headaches; bloating; and muscle aches. Id. ¶ 32. Accompanying the list of symptoms is a statement on the screen which states, "YAZ(r) treats PMDD. Symptoms include: [list of symptoms]. PMDD is a mood disorder related to the menstrual cycle." Compl. Ex. B.

Similarly, the Ad entitled "Balloons" states that "YAZ(r) is the only birth control proven to treat the emotional and physical premenstrual symptoms that are severe enough to impact your life. And it also helps keep your skin clear." Id. ¶ 27. These verbal representations are accompanied by visual images of numerous balloons throughout the Ad with symptoms, such as "IRRITABILITY," "MOODINESS," "FEELING ANXIOUS," "BLOATING," "FATIGUE," "MUSCLE ACHES," "HEADACHES," "INCREASED APPETITE," and "ACNE." Id. ¶ 34. As the camera in the Ad follows the balloons upward and zooms in on balloons with words such as "IRRITABILITY" and "MOODINESS" the screen also displays at the bottom "PMDD is a mood disorder related to the menstrual cycle." The next screen states "YAZ(r) treats PMDD. Symptoms include [list of symptoms on balloons]. Symptoms occur regularly before a woman's menstrual cycle." Compl., Ex. D. Plaintiffs allege the aforementioned representations in the Ads are false and/or material misrepresentations which cause women to believe that YAZ(r) is approved to treat women with any severity of the symptoms presented, regardless of whether their symptoms are severe enough to constitute PMDD and that YAZ(r) treats all severities of acne when in fact, YAZ(r) does not. Id. ¶¶ 38-45.

On February 13, 2009, Plaintiffs filed the instant class action against Bayer. Doc. # 1. Plaintiffs' Complaint contains five causes of action: (1) negligent misrepresentation; (2) violation of the Consumers Legal Remedies Act (California Civil Code § 1750, et seq., or "CLRA") (3) violation of California Business and Professions Code § 17500, et seq. (False Advertising Law or "FAL"); (4) violation of California Business and Professions Code § 17200, et seq. (Unfair Competition Law or "UCL") and (5) unjust enrichment. In the instant motion, Bayer moves to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn2 Doc. # 8. Plaintiffs oppose the motion. Doc. 11.

II. OPINION

A. Legal Standard

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed. 2d 263 (1972). The Court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6, 83 S.Ct. 1461, 10 L.Ed. 2d 678 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.

Nevertheless, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed. 2d 723 (1983). Moreover, the Court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).

Ultimately, the Court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed. 2d 929 (2007). Only where a plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. "[A] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed. 2d 1 (2002) (quoting Hudson v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed. 2d 59 (1984)).

B. Standing

Bayer contends that Plaintiffs have failed to allege standing for their Unfair Competition, False Advertising, and Consumer Legal Remedies Act claims and thus, Plaintiffs' second, third and fourth causes of action should be dismissed. Plaintiffs argue their Complaint sufficiently alleges standing to assert claims under the UCL, FAL, and CLRA.

The issue of standing is a threshold determination of "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975); Steel Co. v. Citizens For A Better Env't, 523 U.S. 83, 118 (1998). Article III limits "the federal judicial power 'to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.'" Valley Forge Christian Coll. v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472 (1982) (quoting Flast v. Cohen, 392 ...


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