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Johns v. Bayer Corp.

June 24, 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 Plaintiffs' Second Amended Complaint ("SAC"), and Defendants' motion to dismiss the SAC. For the reasons set forth below, Defendants' motion to strike is granted in part and denied in part, and Defendants' motion to dismiss is denied.


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. (SAC ¶ 1.) Plaintiffs David Johns and Marc Bordman filed a putative class action alleging that Defendants misrepresented on product packaging and in television commercials that one of the products' key ingredients, selenium, has the ability to reduce the risk of prostate cancer in men. (Id. at ¶ 2.) Plaintiff alleges that Defendants promoted the health benefits of selenium, but that selenium does not in fact prevent or reduce the risk of prostate cancer and may actually be harmful. (Id. at ¶¶ 14-22.) Plaintiffs cite to several scientific studies to support their claims that selenium does not promote prostate health and may increase the risk of diabetes. (Id. at ¶¶ 23-45.)

Plaintiff Johns purchased one bottle of Men's Health in July 2009 for approximately $8.00. (Id. at ¶ 50.) Plaintiff Bordman purchased several bottles of Men's 50 and paid retail price for each bottle. (Id. at ¶ 54.) Both Plaintiffs allege they learned of Defendants' claims regarding selenium through television commercials and the product packaging, and relied on those statements in making their purchasing decisions. (Id. at ¶¶ 51, 55.) Plaintiffs seek to bring a class action on behalf of "all persons in the United States or, alternatively, all California residents who until the date notice is disseminated purchased One a Day Men's 50 Advantage or One a Day Men's Health Formula." (Id. at ¶ 58.)

Plaintiffs allege claims for: (1) violation of California's Unfair Competition Law, California Business & Professions Code § 17200 ("UCL"), and (2) violation of the Consumers Legal Remedies Act, California Civil Code § 1750 ("CLRA"). Plaintiffs filed the SAC on March 11, 2010, after this Court granted in part Defendants' motion to strike and granted Defendants' motion to dismiss Plaintiffs' First Amended Complaint ("FAC"). (Docs. 21 & 22.) Defendants filed the instant motions on March 29, 2010. (Docs. 23 & 24.) Plaintiff filed an opposition to each motion, and Defendants filed a reply. (Docs. 27-30.)


A. Motion to Strike

1. Paragraphs 22-46

In the FAC, Plaintiffs' claims that selenium does not support prostate health and may in fact be harmful relied solely on allegations taken from a letter written by an interest group, the Center for Science in the Public Interest ("CSPI"). The Court struck Plaintiffs' allegations because Plaintiffs had failed to independently investigate the claims and could not simply lift the allegations from the CSPI letter. (Doc. 21 at 4-5.)

Defendants argue that the allegations in the SAC suffer the same deficiencies because paragraphs 22-46 of the SAC are taken directly from another complaint filed in a different district, McKinney v. Bayer Corp., Case No. 1:10-cv-00224 (N.D. Ohio 2010).*fn1 Plaintiffs concede they have used similar allegations to those in McKinney. (Syverson Decl. ¶ 5.) Nonetheless, Plaintiffs argue the Court should not strike the allegations because Plaintiffs have conducted their own independent factual investigation.

Attorneys have a non-delegable duty to make a reasonable inquiry into whether the factual contentions made in a complaint have evidentiary support. Fed. R. Civ. Pro. 11(b); In re Connectics, 542 F. Supp. 2d 996, 1005-06 (N.D. Cal. 2008). Here, Plaintiffs have made such an inquiry. The SAC is signed by attorney Patricia Syverson, who filed a declaration stating that she has reviewed publicly available information regarding the studies mentioned in the SAC in determining that there is a factual basis for the allegations. (Syverson Decl. ¶ 3.) Indeed, the SAC itself provides citations to the sources of Plaintiffs' information.

The cases cited by Defendants are distinguishable. In In re Connectics, 542 F. Supp. 2d at 1006, which this Court discussed in its previous Order, the court struck allegations lifted from an SEC complaint. There, however, the plaintiffs had not conducted an independent investigation and did not inform the court of any other sources of information on which they relied. Id. Here, Plaintiffs contend they have conducted an independent investigation and have provided the sources for publicly available information supporting their claims. In Geinko v. Padda, 2002 U.S. Dist. LEXIS 3316 (N.D. Ill. Feb. 26, 2002), in which the court warned that relying on other complaints would create a loophole in Rule 11 whereby "two plaintiffs could file separate actions each relying on the allegations in the other's complaint and both would state a claim for fraud," the court noted that the plaintiffs had failed to contact the attorneys in the other cases to discuss the claims. Here, Plaintiffs contacted the attorney in McKinney to discuss ...

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