Johns v. Bayer Corp.
2012 U.S. Dist. LEXIS 13410
S.D. Cal.2012Background
- Plaintiffs Johns and Bordman seek to certify a California class for UCL and CLRA claims against Bayer related to Bayer’s One A Day Men’s Vitamins.
- Plaintiffs allege Bayer advertised prostate health benefits based on lycopene and selenium, charging a premium for these vitamins.
- Plaintiffs purchased OAD Men’s Health in 2009 and OAD Men’s 50+ in 2008, claiming reliance on the prostate health claim.
- Plaintiffs contend the market lacked credible scientific support for the prostate health benefit during the class period.
- Plaintiffs assert Men’s Vitamins and packaging repeatedly stated “support prostate health” and contained identical amounts of lycopene and selenium.
- The proposed class includes all California purchasers from the product’s California introduction until May 31, 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 23(b)(3) predominance | Common misrepresentation issues predominate. | Individual issues (reliance, materiality, timing, damages) predominate. | Common issues predominate; class certification granted. |
| Rule 23(a) adequacy/typicality | Pls and class share the same claims and marketing conduct. | Plaintiffs atypical/inadequate due to lack of injury type and defenses. | Typicality and adequacy satisfied; certification granted. |
| Standing to sue | Plaintiffs relied on advertising messaging and have Article III standing. | Standing may be lacking for claims tied to FDA claims not seen by plaintiffs. | Plaintiffs have standing under Article III, UCL, and CLRA. |
| Statutes of limitations and tolling | Class-wide tolling issues should be resolved class-wide. | Limitations defenses require individualized determinations. | Class-wide tolling and limitations issues appropriate for certification. |
| Wal-Mart Dukes impact | Dukes does not bar certification where defenses can be raised against individuals. | Dukes precludes certification when many class members have unique defenses. | Dukes does not bar certification; individualized defenses may be raised against claimants. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (class certification not barred by individualized defenses)
- Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) (merits relevant to Rule 23 factors; not a mini-trial)
- Wiener v. Dannon Co., Inc., 255 F.R.D. 658 (C.D. Cal. 2009) (class-wide relief possible with common misrepresentation)
- Mass. Mut. Life Ins. Co. v. Superior Court, 97 Cal. App. 4th 1282 (Cal. App. 2002) (statute of limitations tolling as class-wide issue)
- In re Tobacco II Cases, 46 Cal.4th 298 (Cal. 2009) (California UCL reliance standard; material misrepresentation)
- Godec v. Bayer Corp., 2011 WL 5513202 (N.D. Cal. 2011) (certification upheld; cited for class-wide issues)
- Williams v. Gerber Prods. Co., 552 F.3d 938 (9th Cir. 2008) (reasonable consumer standard for materiality under UCL)
- McKell v. Wash. Mut., Inc., 142 Cal.App.4th 1457 (Cal. App. 2006) (UCL standards for unlawful, unfair, or fraudulent conduct)