Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Farar v. Bayer AG

United States District Court, N.D. California

November 15, 2017

ILANA FARAR, et al., Plaintiffs,
v.
BAYER AG, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE: DKT. NOS. 129, 136

          William H. Orrick United States District Judge.

         INTRODUCTION

         Plaintiffs Ilana Farar, Andrea Lopez, and Rosanne Cosgrove are consumers who purchased multivitamin products marketed by Bayer AG, Bayer Corporation, and Bayer Healthcare LLC (“Defendants” or “Bayer”). They allege that defendants' products contain false or misleading health claims relating to heart health, immunity, and physical energy, and bring suit under the consumer protection laws of California, New York, and Florida on behalf of themselves and four proposed classes. Plaintiffs now move for certification of their proposed classes, while defendants move for summary judgment. I GRANT plaintiffs' motion for class certification, except their request for a nationwide class, because they meet the requirements of Fed.R.Civ.P. 23, and DENY defendants' motion for summary judgment because material facts are in dispute. My reasoning follows.

         BACKGROUND

         I. Factual Background

         Defendants market more than twenty different multivitamins under their brand name, One A Day (“One A Day, ” “One A Day Products, ” or “Products”). See Second Amended Class Action Complaint (“SACAC”) ¶ 1 n.2 [Dkt. No. 58]. Defendants' products make various claims relating to health on their product packaging and in other marketing materials.

         Relevant to this lawsuit are three claims in particular relating to heart health, immunity, and physical energy. On the front of the product packaging for the Women's One A Day Formula, for example, it states: “Formulated to Support” “Hearth Health, ” as well as “Immunity” and “Physical Energy.” Id. ¶ 35. Several of defendants' One A Day Products include the claim that they “support heart health.” Id. ¶ 34.[1] In a television advertisement for One A Day Men's 50, a man swims across a pool with the words “Supports heart and eye health” prominently displayed over the footage, while a voice-over states that the product is “designed for men's health concerns as we age.” Id. ¶ 36. With respect to immunity support, defendants market the One A Day VitaCraves plus Immunity Support product in a magazine advertisement that states, “Immunity support in a gummy? Sweet.” Id. ¶ 53.[2] And similarly, with respect to physical energy, a television advertisement for One A Day VitaCraves with Energy Support shows a man performing gymnastics on a tight rope while a voice-over states, “[f]or those who want to enjoy their days, not just get through them: new One A Day VitaCraves with Energy Support. The only complete gummy multivitamin that supports energy and mental alertness.” Id. ¶ 72.[3]

         Named plaintiffs are three adult women who purchased defendants' Products. Ilana Farar is a resident of California, where she purchased the “One A Day Women's Supplement” from one or more retailers. SACAC ¶ 20. Andrea Lopez purchased the same Product in Florida, where she is a resident. Id. ¶ 21. Rosanne Cosgrove is a resident of New York, where she purchased the same Product. Id. ¶ 23. All three plaintiffs have stated that they read the aforementioned relevant health claims on the Product's label, saw defendants' marketing materials online, in print, or on television, and relied on those claims in purchasing the Product. Id. ¶¶ 19-21; Farar Decl. in Support of Pls.' Mot. for Class Cert. ¶¶ 7-8 [Dkt. No. 129-12]; Lopez Decl. in Support of Pls.' Mot. for Class Cert. ¶¶ 7-8 [Dkt. No. 129-13]; Cosgrove Decl. in Support of Pls.' Mot. for Class Cert. ¶¶ 7-8 [Dkt. No. 129-14].

         Plaintiffs challenge each of these claims because they do not affect or benefit the heart health, immunity, or physical energy levels of the average American (and the majority of consumers to whom Bayer markets its Products). See SACAC ¶¶ 8-10. Instead, plaintiffs contend that while some Americans may not meet the daily Recommended Dietary Allowance (“RDA”) for each vitamin or mineral through diet alone, most Americans do not suffer from any biochemical deficiency, and multivitamin supplementation in the absence of such a deficiency has no health benefit or effect. See Pls.' Opp. to MSJ at 10 [Dkt. No. 141]; Declaration of Dr. Edward R. Blonz (“Blonz Decl.”) [Dkt. No. 129-38]. Because studies support that multivitamin supplementation does not have any benefit to heart health, immunity, or physical energy, plaintiffs assert that defendants' three health claims are “false, misleading, and deceptive.” See SACAC ¶ 31.

         II. Procedural Background

         Plaintiffs bring suit as individuals as well as on behalf of a nationwide class and three statewide classes in California, Florida, and New York. They allege unlawful, unfair, and fraudulent business practices in violation of California's Unfair Competition Law (“UCL”) on behalf of Ms. Farar and the California class, unlawful and deceptive business practices in violation of California's Consumer Legal Remedies Act (“CLRA”) on behalf of Ms. Farar and the California class, false or misleading advertising in violation of California law on behalf of Ms. Farar and the California class, unfair or deceptive practices in violation of the Florida Deceptive and Unfair Trade Practices Act on behalf of Ms. Lopez and the Florida class, misleading advertising in violation of Florida Statute Section 817.41 on behalf of Ms. Lopez and the Florida class, deceptive acts and practices in violation of the New York General Business Law Section 349 on behalf of Ms. Cosgrove and the New York class, false advertising in violation of the New York General Business Law Section 350 on behalf of Ms. Cosgrove and the New York class, and unjust enrichment/quasi-contract on behalf of the nationwide class. They seek equitable relief, including an injunction enjoining defendants from making such claims, restitution, and/or disgorgement, as well as damages.

         Fact discovery closed on November 9, 2016. Plaintiffs filed their Motion for Class Certification [Dkt. No. 129] on January 11, 2017. In that motion, they seek certification of the following four classes:

Nationwide: All persons in the United States who purchased Bayer One A Day Supplements in the United States that contained one or more Claims from October 15, 2010 until the date of certification (“Class Period”).
California: All persons in California who purchased Bayer One A Day Supplements in California that contained one or more Claims during the Class Period.
Florida: All persons in Florida who purchased Bayer One A Day Supplements in Florida that contained one or more Claims during the Class Period.
New York: All persons in New York who purchased Bayer One A Day Supplements in New York that contained one or more Claims during the Class Period.

Pls.' Mot. for Class Cert. at 7-8. Defendants opposed that motion and contemporaneously filed a motion for summary judgment on March 24, 2017. See Defs.' Opp. to Pls.' Mot. for Class Cert. [Dkt. No. 135]; Defs' MSJ [Dkt. No. 136]. I heard argument on October 18, 2017.

         LEGAL STANDARD

         I. Federal Rule of Civil Procedure 23

         Federal Rule of Civil Procedure 23 governs class actions. “Before certifying a class, the trial court must conduct a rigorous analysis to determine whether the party seeking certification has met the prerequisites of Rule 23.” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (internal quotation marks omitted). The burden is on the party seeking certification to show, by a preponderance of the evidence, that the prerequisites have been met. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); Conn. Ret. Plans & Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011).

         Certification under Rule 23 is a two-step process. The party seeking certification must first satisfy the four threshold requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy. Specifically, Rule 23(a) requires a showing that:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). The party seeking certification must then establish that one of the three grounds for certification applies. See Fed. R. Civ. P. 23(b). Plaintiffs invoke both Rule 23(b)(2) and Rule 23(b)(3).

         A class action may proceed under Rule 23(b)(2) where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted--the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360 (internal quotation marks omitted). Rule 23(b)(2) “does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. (emphasis omitted). Nor “does [it] authorize class certification when each class member would be entitled to an individualized award of monetary damages.” Id.

         Rule 23(b)(3) provides that a class action may be maintained where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(2)(3). The matters pertinent to these findings include:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.

Id.

         In considering a motion for class certification, the substantive allegations of the complaint are accepted as true, but “the court need not accept conclusory or generic allegations regarding the suitability of the litigation for resolution through a class action.” Hanni v. Am. Airlines, Inc., No. 08-cv-00732-CW, 2010 WL 289297, at *8 (N.D. Cal. Jan. 15, 2010); see also Jordan v. Paul Fin., LLC, 285 F.R.D. 435, 447 (N.D. Cal.2012) (“[Courts] need not blindly rely on conclusory allegations which parrot Rule 23 requirements.”). Accordingly, “the court may consider supplemental evidentiary submissions of the parties.” Hanni, 2010 WL 289297, at *8; see also Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975).

         “A court's class-certification analysis . . . may entail some overlap with the merits of the plaintiff's underlying claim.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 465- 66 (2013) (internal quotation marks omitted). However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Id. at 466. “Merits questions may be considered to the extent--but only to the extent--that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id.

         II. Summary Judgment

         Summary judgment on a claim or defense is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to identify “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary judgment must then present affirmative evidence from which a jury could return a verdict in that party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986).

         On summary judgment, the Court draws all reasonable factual inferences in favor of the non-movant. Anderson, 477 U.S. at 255. In deciding a motion for summary judgment, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979).

         DISCUSSION

         I. Motion for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.