United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND DENYING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE: DKT. NOS.
William H. Orrick United States District Judge.
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
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
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. 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. ¶
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.
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].
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 ¶
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.
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
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.
Federal Rule of Civil Procedure 23
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).
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
(1) the class is so numerous that joinder of all members is
(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).
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.
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.
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).
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.
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).
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).
Motion for ...