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Johns et al v. Bayer Corporation

April 30, 2012

JOHNS ET AL.,
PLAINTIFFS,
v.
BAYER CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David H. Bartick United States Magistrate Judge

ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL FED. R. CIV. P. 30(b)(6) DEPOSITION OF BAYER REGARDING SALES AND EXPENSES [ECF No. 122]

On April 4, 2012, the Court held a Discovery Conference during which counsel for the parties advised the Court that they had come to an impasse with respect to certain subject matters contained in Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition of Bayer Regarding Sales and Expenses and Fed. R. Civ. P. 30(b)(2) Document Requests ("Deposition Notice"). The Court ordered that the parties each submit briefs setting forth their respective positions concerning the disputed Rule 30(b)(6) deposition subject matter areas. (ECF No. 118.) On April 16, 2012, the parties timely submitted their briefs. (ECF Nos. 122, 125.)*fn1 Based upon a careful review of the parties' papers and for the following reasons, Plaintiffs' motion to compel*fn2 is hereby GRANTED.

I.

BACKGROUND

David Johns and Marc Bordman (collectively, "Plaintiffs") bring this class action against Bayer Corporation and Bayer Healthcare, LLC (collectively, "Bayer") on behalf of themselves and a class certified by the Honorable Anthony J. Battaglia on February 3, 2012. Plaintiffs assert causes of action under California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, et seq., and Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, et seq.

Bayer sells the popular "One A Day" line of multivitamins. Plaintiffs challenge statements Bayer made about its One A Day Men's Health Formula and One A Day Men's 50 Advantage vitamins (collectively, "Men's Vitamins"). Specifically, Bayer's Men's Vitamins packaging and advertising states that taking Men's Vitamins daily would "support prostate health." Bayer asserted that its Men's Vitamins provided the prostate health benefit 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, the 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.

Bayer denies Plaintiffs' allegations that the prostate health representations contained in its Men's Vitamins packaging and advertising was not supported by competent and reliable scientific evidence. Bayer further denies Plaintiffs' allegations that Bayer charged a premium over other comparable multivitamins.

II.

DISCOVERY DISPUTE

Presently before the Court is a dispute between the parties concerning Plaintiffs' Deposition Notice. Specifically, Plaintiffs seek to take Bayer's deposition on various topics relating to the Men's Vitamins including Bayer's annual cost of goods sold; annual cost of selenium and lycopene; annual advertising, promotion, research and development expenses; and annual operating profits and gross margins. Plaintiffs' Deposition Notice also requests production of documents from Bayer on similar topics. Specifically, the parties disagree over the following:

Rule 30(b)(6) Subject Matters*fn3

1. The data kept and maintained in Bayer's ordinary course of business that relates to revenues, profits and/or loses [sic], cost of goods sold, profit margin, and retail pricing attributable to the sale of Bayer's Men's Health Formula and Bayer's One A Day Men's 50 Advantage throughout the relevant time period.

5. The annual cost of goods sold attributable to the sale of Bayer's Men's Health Formula in California throughout the relevant time period.

6. The annual cost of goods sold attributable to Bayer's One A Day Men's 50 Advantage in California throughout the relevant time period.

7. The annual cost of selenium attributable to Bayer's Men's Health Formula in California ...


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