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David Johns, An Individual, and Marc Bordman, An Individual, On Behalf of v. Bayer Corporation

February 3, 2012

DAVID JOHNS, AN INDIVIDUAL, AND MARC BORDMAN, AN INDIVIDUAL, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
AND THE GENERAL PUBLIC,
PLAINTIFF,
v.
BAYER CORPORATION, AN INDIANA CORPORATION AND
BAYER HEALTHCARE, LLC, A DELAWARE LIMITED LIABILITY COMPANY,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION [Doc. 73]

Presently before the Court is Plaintiffs' Motion for Class Certification. (Doc. 73.) For the reasons set forth below, the Court GRANTS the motion.

I. BACKGROUND

David Johns and Marc Bordman ("Plaintiffs") seek to certify a California class for the Unfair Competition Law ("UCL")*fn1 and the Consumers Legal Remedies Act ("CLRA")*fn2 causes of action alleged in their Second Amended Class Action Complaint against Bayer Corporation and Bayer Healthcare, LLC ("Bayer" or "Defendants").

Bayer sells the popular "One A Day" ("OAD") line of multivitamins. Plaintiffs challenge statements Bayer made about its OAD Men's Health Formula and OAD Men's 50 Advantage vitamins (together, "Men's Vitamins"). Plaintiff Johns purchased OAD Men's Health in July 2009, and Plaintiff Bordman purchased OAD Men's 50 in 2008. Both cite the prostate health claim as a reason they purchased the products.

On the front, back, and sides of the Men's Vitamins' packages and in its advertising, Bayer stated that taking Men's Vitamins daily would "support prostate health." Bayer asserted that its Men's Vitamins provided the prostate health benefits because they contained the antioxidant lycopene and later, the trace mineral selenium.

Plaintiffs allege that for this promised material benefit, Bayer charged a price premium over other multivitamins, but that in truth, Men's Vitamins did not provide any prostate health benefits. In fact, according to Plaintiffs, recent clinical studies have shown that for some men, increased selenium consumption may increase their prostate cancer risk.

Plaintiffs claim that Bayer's decision to focus on the prostate health claim was a direct result of its market research into what would sell-not a decision based on a competent and reliable scientifically supported benefit to the consumer. Despite the promise of improved prostate health, Plaintiffs allege that throughout the class period, Bayer never had credible and reliable scientific support for the promise. Plaintiffs further claim that throughout the class period, both Men's Vitamins contained identical amounts of lycopene and selenium, and both came in packages that stated the multivitamins would "support prostate health."

The class Plaintiffs seek to have certified is defined as all persons who purchased the Men's Vitamins in the State of California, from the date the Men's Vitamins were first sold in California with "prostate health" claims to May 31, 2010.

II. LEGAL STANDARDS

Class Certification "The class action is 'an exception' to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (citation omitted). "Class action certifications to encourage compliance with consumer protection laws are 'desirable and should be encouraged.'" Ballard v. Equifax Check Serv., Inc. , 186 F.R.D. 589, 600 (E.D. Cal. 1999) (citations omitted); see Abels v. JBC Legal Grp. , 227 F.R.D. 541, 547 (N.D. Cal. 2005) (class action is superior when "[m]any plaintiffs may not know their rights are being violated") (citation omitted).

To obtain certification, a plaintiff bears the burden of proving that the class meets all four requirements of Rule 23(a)-numerosity, commonality, typicality, and adequacy- and falls within one of the three categories of Rule 23(b). Ellis , 657 F.3d at 979-80. This case involves Rule 23(b)(3), which authorizes certification when "questions of law or fact common to class members predominate over any questions affecting only individual class members," and "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

"[T]he merits of the class members' substantive claims are often highly relevant when determining whether to certify a class. More importantly, it is not correct to say a district court consider the merits to the extent that they overlap with class certification issues; rather, a district court must consider the merits if they overlap with Rule 23(a) requirements." Ellis , 657 F.3d.at 981. Nonetheless, the district court does not conduct a mini-trial to determine if the class "could actually prevail on the merits of their claims." Id. at 983 n.8; United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO v. ConocoPhillips Co. , 593 F.3d 802, 808 (9th Cir. 2010) (citation omitted) (court may inquire into substance of case to apply the Rule 23 factors, however, "[t]he court may not go so far . . . as to judge the validity of these claims."). When the court must determine the merits of an individual claim to determine who is a member of the class, then class treatment is not appropriate. Herrera v. LCS Fin. Servs. Corp. , 274 F.R.D. 666, 672-73 (N.D. Cal. 2011); 5 James W. Moore, Moore's Fed. Practice § 23.21[3][c] (2011).

"The amount of damages is invariably an individual question and does not defeat class action treatment." Blackie v. Barrack , 524 F.2d 891, 905 (9th Cir. 1975); Stearns v. TicketMaster Corp. , 655 F.3d 1013, 1026 (9th Cir. 2011) (citing Blackie in a case decided after Wal-Mart and Ellis decisions); In re Washington Mutual Mortgage-Backed Sec. Litig. , - F.R.D. -, 2011 WL 5027725, at *7 (W.D. Wash. Oct. 21, 2011) (same).

UCL and CLRA

Plaintiffs seek to certify their UCL and CLRA claims. "[T]he primary purpose of the unfair competition law . . . is to protect the public from unscrupulous business practices." Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 975 (1992). A business practice need only meet one of the three criteria ("unlawful," "unfair," or "fraudulent") to violate the UCL. McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457, 1471 (2006). The UCL similarly prohibits "unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code §17200. Advertising is broadly defined to include virtually any statement made in connection with the sale of goods or services, including statements and pictures on labels. See, e.g., Williams v. Gerber Prods. Co., 552 F.3d 934, 939 (9th Cir. 2008). Advertising that is likely to deceive the reasonable consumer violates the false advertising law. . at 938.

Similarly, a defendant is liable under the CLRA if it misrepresents that its goods possess certain characteristics, uses, or benefits that they do not have or advertises goods with the intent not to sell them as ...


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