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Johns v. Bayer Corp.

February 9, 2010


The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge


Pending before the Court are Defendants' motion to strike portions of Plaintiff's First Amended Complaint ("FAC"), and Defendants' motion to dismiss the FAC. Defendants also request judicial notice of several documents. For the reasons set forth below, Defendants' motion to strike is granted in part and denied in part, and Defendants' motion to dismiss is granted.


Defendants Bayer Corporation and Bayer Healthcare, LLC, manufacture, distribute, and sell One A Day Men's 50 Advantage ("Men's 50") and One A Day Men's Health Formula ("Men's Health") vitamin products. (FAC ¶ 1.) Plaintiff David Johns filed a putative class action alleging that Defendants misrepresented on product packaging, commercial advertisements, their website, and in other marketing materials and media, that one of the products' key ingredients, selenium, has "the ability to reduce the risk of prostate cancer in men." (Id. at ¶ 12.) Plaintiff alleges that Defendants promoted the health benefits of selenium based on "emerging evidence," but that selenium does not in fact prevent or reduce the risk of prostate cancer and may actually cause diabetes. (Id. at ¶ 20.)

Plaintiff alleges Defendant Bayer Corporation was sued by the federal government in 2007 for violations of the Federal Trade Commission Act ("FTCA") stemming from marketing of its One a Day Weightsmart product. (Id. at ¶ 18.) Plaintiff alleges Bayer settled the claim and entered into a Consent Decree, which prohibits Bayer from claiming a product will "cure, treat, or prevent any disease" unless such statement is supported by "competent and reliable scientific evidence." (Id. at ¶ 19.) Plaintiff further alleges that the Center for Science in the Public Interest ("CSPI") sent a letter to the Federal Trade Commission ("FTC") complaining about Bayer's statements regarding selenium. The CSPI letter cites to multiple scientific studies that found selenium does not reduce or prevent prostate cancer and can increase risk of diabetes. (Id. at ¶ 25.) The CSPI requested that the FTC take action against Bayer. (Id. at ¶ 21.)

Plaintiff alleges he purchased one bottle of Men's Health in July 2009 for approximately $8.00. (Id. at ¶ 37.) He alleges he read the information regarding selenium on the product packaging and relied on those statements in making his purchasing decision. (Id. at ¶ 38.) Plaintiff consumed the Men's Health vitamins. (Id. at ¶ 39.) Thereafter, Plaintiff alleges he learned that Defendants' statements regarding selenium were not supported by scientific studies and that selenium could lead to increased risk of diabetes. (Id. at ¶ 40.) Based upon these events, Plaintiff seeks to bring a class action on behalf of "all persons in the United States or, alternatively, all California residents who from and after September 3, 2005, purchased One a Day Men's 50 Advantage or One a Day Men's Health Formula." (Id. at ¶ 42.)

Plaintiff alleges claims for: (1) violation of California's Unfair Competition Law, California Business & Professions Code § 17200 ("UCL"), (2) violation of the Consumers Legal Remedies Act, California Civil Code § 1750 ("CLRA"), and (3) unjust enrichment. Plaintiff filed his FAC on October 16, 2009, (Doc. 10), and Defendants filed the instant motions on October 30, 2009. (Docs. 13 & 14.) Plaintiff filed an opposition to each motion (Docs. 15 & 16), and Defendants filed a reply. (Docs. 17 & 18.)


A. Judicial Notice

Judicial notice may be taken of facts "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). A court may take judicial notice of matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). A court may also consider documents on which a plaintiff's claims are based, but which are not attached to the complaint, without converting a Rule 12(b)(6)*fn1 motion into a motion for summary judgment. Id. In that instance, the authenticity of the documents must not be contested. Id.

Defendants request judicial notice of: 1) a Complaint filed in United States v. Bayer, Case No. 07-CV-00001 (D. N.J. 2007), 2) the resulting FTC Consent Decree, 3) a "Memorandum Opinion and Order on Defendant's Motion to Dismiss and Motion to Strike Portions of the First Amended Complaint," issued in Fraker v. Bayer Corp., Case No. 08-CV-1564 (E.D. Cal. Oct. 6, 2009), and 4) the product packaging for Bayer One-A-Day Men's Health Formula. (Def. Req. for Judicial Notice, Doc. 13-3.) The first three documents are a matter of public record. The fourth document, the packaging, serves as the basis for several of Plaintiff's allegations and Plaintiff does not contest its authenticity. Accordingly, Defendants' request for judicial notice is granted.

B. Motion to Strike

1. Legal Standard

Rule 12(f) provides that a court "may strike from a pleading...any redundant, immaterial, impertinent, or scandalous matter." A motion to strike "should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991). The Court may strike "requested relief ...

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