Used with permission from Microsoft.

On February 3, 2012, another court distinguished the Supreme Court’s holding in Wal-Mart Stores, Inc. v Dukes, 131 S. Ct.2541 (2011).  In Johns  v. Bayer Corp. et al.,  2012 WL 368032 (S.D. Cal.) the District Court for the Southern District of California certified a class a class of consumers who purchased bottles of Bayer’s “Men’s 50+ Advantage” and “Men’s Health Formula” vitamins in California. The product’s packaging claimed that taking the vitamins each day would “support prostate help.” The plaintiffs alleged that the statement was not based on scientific evidence and that the statement violated the state’s Unfair Competition Law and Consumers Legal Remedies Act.

The Court considered class certification under Rule 23(a) and (b) of the Federal Rules of Civil Procedure. It took only a few short paragraphs for the Court to determine that plaintiffs had satisfied Rule 23(a)’s numerosity, commonality, typicality and adequacy requirements. As to the typicality and adequacy requirements, the Court held that  plaintiffs satisfied requirements of Rule 23(a) because the Men’s Vitamin packages purchased by plaintiffs and class members all prominently and repeatedly featured the
identical prostate health claims and thus plaintiffs and the class were all exposed to the
same misrepresentations on the packages and advertisements

The Court then turned its attention to the central issue in the case: whether the plaintiffs had met the requirements of Rule 23(b)(3), which requires that “questions of law or fact common to class members predominate over any questions affected only individual class members” and that a class action is the best method for adjudicating the dispute. Bayer argued that the class should not be certified because individual questions predominated over questions that were common to the class.  It argued that individual claims would differ according to plaintiffs’ actual reliance on the prostate-health statement, the statement’s materiality and timing, and the amount of damages suffered.

The Court noted that class-action suits play an important role in enforcing California’s consumer protection laws, and that the laws “take an objective approach of the reasonable consumer” rather than focusing on “the particular consumer.” Citing Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008).  Since each member of the class had purchased the vitamins and had been exposed to the packaging, the common question in the case was whether a reasonable consumer would have been misled by Bayer’s packaging—not whether the particular individual plaintiffs had been misled.

As to the second prong of Rule 23(b)(3), the Court held that a class-action suit would be
the most efficient means to adjudicate the plaintiffs’ claims of false and misleading advertising, particularly where the damages suffered by each plaintiff were small. Finally, the Court rejected Bayer’s argument that the Supreme Court’s holding in Wal-Mart v. Dukes barred certification because Bayer would be deprived of the opportunity to raise defenses to individuals’ claims. See 131 S. Ct. 2541 (2011). Bayer had made the same argument in the Northern District of Ohio in Godec v. Bayer Corp. in a case involving similar claims. See 2011 WL 5513202 (2011). The California Court borrowed the Ohio court’s reasoning and stated that “to the extent Bayer has individualized defenses, it is free to try those defenses against individual claimants” and therefore held that Dukes did not bar class certification.  Quoting Godec, 2011 WL 5513202, at *7.

Nicholas Turner is a third year law student at New York Law School. He is a Notes & Comments editor of Law Review and a John Marshall Harlan Scholar. Mr. Turner came in second in the 2011 ABA Torts, Insurance, and Compensation Law Section Writing contest. He was a 2011 Review Editor of the school’s Global Human Rights Bulletin. Mr. Turner is proficient in French.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.