-POR Johns et al v. Bayer Corporation et al, No. 3:2009cv01935 - Document 105 (S.D. Cal. 2012)
Court Description: ORDER granting Plaintiffs' 73 Motion for Class Certification. Signed by Judge Anthony J. Battaglia on 2/3/12. (cge)
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-POR Johns et al v. Bayer Corporation et al Doc. 105 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 ) ) ) ) ) ) Plaintiff, ) v. ) ) BAYER CORPORATION, an Indiana Corporation and BAYER HEALTHCARE, ) LLC, a Delaware Limited Liability Company, ) ) ) Defendants. ) DAVID JOHNS, an Individual, and MARC BORDMAN, an Individual, on Behalf of Themselves and All Others Similarly Situated and the General Public, Civil No.09cv1935 AJB (POR) ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [Doc. 73] Presently before the Court is Plaintiffs’ Motion for Class Certification. (Doc. 73.) For the reasons set forth below, the Court GRANTS the motion. 20 I. 21 BACKGROUND 22 David Johns and Marc Bordman (“Plaintiffs”) seek to certify a California class for the Unfair 23 Competition Law (“UCL”)1 and the Consumers Legal Remedies Act (“CLRA”)2 causes of action 24 alleged in their Second Amended Class Action Complaint against Bayer Corporation and Bayer 25 Healthcare, LLC (“Bayer” or “Defendants”). 26 27 1 Cal. Bus. & Prof. Code § 17200, et seq. 2 Cal. Civ. Code § 1750, et seq. 28 1 09cv1935 Dockets.Justia.com 1 Bayer sells the popular “One A Day” (“OAD”) line of multivitamins. Plaintiffs challenge 2 statements Bayer made about its OAD Men’s Health Formula and OAD Men’s 50+ Advantage vitamins 3 (together, “Men’s Vitamins”). Plaintiff Johns purchased OAD Men’s Health in July 2009, and Plaintiff 4 Bordman purchased OAD Men’s 50+ in 2008. Both cite the prostate health claim as a reason they 5 purchased the products. 6 On the front, back, and sides of the Men’s Vitamins’ packages and in its advertising, Bayer 7 stated that taking Men’s Vitamins daily would “support prostate health.” Bayer asserted that its Men’s 8 Vitamins provided the prostate health benefits because they contained the antioxidant lycopene and 9 later, the trace mineral selenium. 10 Plaintiffs allege that for this promised material benefit, Bayer charged a price premium over 11 other multivitamins, but that in truth, Men’s Vitamins did not provide any prostate health benefits. In 12 fact, according to Plaintiffs, recent clinical studies have shown that for some men, increased selenium 13 consumption may increase their prostate cancer risk. 14 Plaintiffs claim that Bayer’s decision to focus on the prostate health claim was a direct result of 15 its market research into what would sell—not a decision based on a competent and reliable scientifically 16 supported benefit to the consumer. Despite the promise of improved prostate health, Plaintiffs allege that 17 throughout the class period, Bayer never had credible and reliable scientific support for the promise. 18 Plaintiffs further claim that throughout the class period, both Men’s Vitamins contained identical 19 amounts of lycopene and selenium, and both came in packages that stated the multivitamins would 20 “support prostate health.” 21 The class Plaintiffs seek to have certified is defined as all persons who purchased the Men’s 22 Vitamins in the State of California, from the date the Men’s Vitamins were first sold in California with 23 “prostate health” claims to May 31, 2010. 24 II. 25 LEGAL STANDARDS 26 27 28 A. Class Certification “The class action is ‘an exception’ to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 2 09cv1935 1 (2011) (citation omitted). “Class action certifications to encourage compliance with consumer 2 protection laws are ‘desirable and should be encouraged.’” Ballard v. Equifax Check Serv., Inc., 3 186 F.R.D. 589, 600 (E.D. Cal. 1999) (citations omitted); see Abels v. JBC Legal Grp., 227 4 F.R.D. 541, 547 (N.D. Cal. 2005) (class action is superior when “[m]any plaintiffs may not 5 know their rights are being violated”) (citation omitted). 6 To obtain certification, a plaintiff bears the burden of proving that the class meets all four 7 requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy—and falls 8 within one of the three categories of Rule 23(b). Ellis, 657 F.3d at 979-80. This case involves 9 Rule 23(b)(3), which authorizes certification when “questions of law or fact common to class 10 members predominate over any questions affecting only individual class members,” and “a class 11 action is superior to other available methods for fairly and efficiently adjudicating the contro- 12 versy.” Fed. R. Civ. P. 23(b)(3). 13 “[T]he merits of the class members’ substantive claims are often highly relevant when 14 determining whether to certify a class. More importantly, it is not correct to say a district court 15 may consider the merits to the extent that they overlap with class certification issues; rather, a 16 district court must consider the merits if they overlap with Rule 23(a) requirements.” Ellis, 657 17 F.3d.at 981. Nonetheless, the district court does not conduct a mini-trial to determine if the class 18 “could actually prevail on the merits of their claims.” Id. at 983 n.8; United Steel, Paper & 19 Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO v. 20 ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010) (citation omitted) (court may inquire into 21 substance of case to apply the Rule 23 factors, however, “[t]he court may not go so far . . . as to 22 judge the validity of these claims.”). When the court must determine the merits of an individual 23 claim to determine who is a member of the class, then class treatment is not appropriate. 24 Herrera v. LCS Fin. Servs. Corp., 274 F.R.D. 666, 672-73 (N.D. Cal. 2011); 5 James W. Moore, 25 Moore’s Fed. Practice § 23.21[3][c] (2011). 26 “The amount of damages is invariably an individual question and does not defeat class 27 action treatment.” Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975); Stearns v. 28 TicketMaster Corp., 655 F.3d 1013, 1026 (9th Cir. 2011) (citing Blackie in a case decided after 3 09cv1935 1 the Wal-Mart and Ellis decisions); In re Washington Mutual Mortgage-Backed Sec. Litig., — 2 F.R.D. —, 2011 WL 5027725, at *7 (W.D. Wash. Oct. 21, 2011) (same). 3 B. UCL and CLRA Plaintiffs seek to certify their UCL and CLRA claims. “[T]he primary purpose of the unfair 4 5 competition law . . . is to protect the public from unscrupulous business practices.” Consumers Union of 6 U.S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 975 (1992). A business practice need only 7 meet one of the three criteria (“unlawful,” “unfair,” or “fraudulent”) to violate the UCL. McKell v. 8 Wash. Mut., Inc., 142 Cal. App. 4th 1457, 1471 (2006). The UCL similarly prohibits “unfair, deceptive, 9 untrue or misleading advertising.” Cal. Bus. & Prof. Code §17200. Advertising is broadly defined to 10 include virtually any statement made in connection with the sale of goods or services, including 11 statements and pictures on labels. See, e.g., Williams v. Gerber Prods. Co., 552 F.3d 934, 939 (9th Cir. 12 2008). Advertising that is likely to deceive the reasonable consumer violates the false advertising law. 13 Id. at 938. Similarly, a defendant is liable under the CLRA if it misrepresents that its goods possess certain 14 15 characteristics, uses, or benefits that they do not have or advertises goods with the intent not to sell them 16 as advertised. Cal. Civ. Code § 1770(a)(5), (7), (9) and (16). 17 III. 18 DISCUSSION 19 As explained below, the Court finds that Plaintiffs have satisfied the standards set forth in Rule 20 23(a) and Rule 23(b)(3). The Court also addresses Bayer’s separate arguments regarding standing, the 21 applicable statutes of limitations, and the effect of Wal-Mart Stores, Inc. v. Dukes.3 22 A. 23 24 Rule 23(a) Rule 23(a) enumerates four prerequisites for class certification, referred to as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. 25 26 27 28 3 Bayer also separately filed objections to Plaintiffs’ motion for class certification, requesting that the Court strike certain exhibits and corresponding citations. (Doc. 80.) The Court disfavors separately filed objections, and in any event, Plaintiffs point out that the objections either lack merit or have no bearing on class certification. For example, some objections relate to the veracity of scientific studies, which goes to the merits of the case, not the issues presently before the Court. The Court therefore overrules Bayer’s objections. 4 09cv1935 1 1. Numerosity 2 Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is 3 impracticable.” Here, it clearly would be difficult or inconvenient to join all members of the proposed 4 class. Between 2005 and 2009, Bayer’s national net sales of Men’s Health totaled in excess of $189 5 million, and between 2007 and 2009, its national net sales of Men’s 50+ totaled in excess of $39 6 million. Given these numbers, it is reasonable to assume a sufficient number of individuals purchased 7 the Men’s Vitamin’s in California to satisfy this requirement. See Charlebois v. Angels Baseball, LP, 8 2011 WL 2610122, at *4 (C.D. Cal. June 30, 2011) (“Where the exact size of the class is unknown but 9 general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied.”). 10 2. Commonality 11 Rule 23(a)(2) requires questions of law or fact common to the class. According to Plaintiffs, 12 common issues include whether Bayer’s advertising of the Men’s Vitamins was deceptive and likely to 13 deceive the public. See Wiener v. Dannon Co., Inc., 255 F.R.D. 658, 664-65 (C.D. Cal. 2009) (“The 14 proposed class members clearly share common legal issues regarding [Defendant’s] alleged deception 15 and misrepresentations in its advertising and promotion of the Products.”). 16 Bayer contends that commonality fails because individual issues predominate over common 17 issues. Because this argument overlaps with the Rule 23(b)(3) predominance analysis, the Court 18 addresses it below, concluding that Plaintiffs have demonstrated both commonality and predominance. 19 3. Typicality and Adequacy 20 Typicality requires that the claims or defenses of the representative parties be typical of the 21 claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). Adequacy of representation requires that the 22 representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23 23(a)(4). Adequacy is satisfied where (i) counsel for the class is qualified and competent to vigorously 24 prosecute the action, and (ii) the interests of the proposed class representatives are not antagonistic to 25 the interests of the class. 26 Here, Plaintiffs claim typicality is met because they and the proposed class assert exactly the 27 same claim, arising from the same course of conduct—Bayer’s marketing campaign. Likewise, Plaintiffs 28 claim adequacy is met because their interests and class members’ interests are fully aligned in determin5 09cv1935 1 ing whether Bayer’s advertisements of the Men’s Vitamins were likely to deceive a reasonable 2 consumer. There is also no apparent conflict regarding Plaintiffs’ counsel. Bayer argues that Johns and Bordman are atypical and inadequate. According to Bayer, since 3 4 Plaintiffs do not allege suffering physical harm, they cannot be typical of class members who did. 5 However, the class does not include claims for personal injury; rather, it is about point-of-purchase loss. 6 Plaintiffs and class members were allegedly injured when they paid money to purchase the Men’s 7 Vitamins. Bayer also claims Plaintiffs are subject to unique defenses regarding lack of reliance, 8 credibility, proof of injury, or damages. They also failed to read the FDA disclaimer, lack retail receipts 9 for their purchases, and testified that reasons in addition to Bayer’s advertising caused them to buy the 10 Men’s Vitamins. But as Plaintiffs note, if anything, these factors may make them more typical (not less) 11 of other class members. Additionally, the Men’s Vitamin packages purchased by Plaintiffs and all class 12 members prominently and repeatedly featured the identical “supports prostate health” claim. Plaintiffs 13 and class members thus were all exposed to the same alleged misrepresentations on the packages and 14 advertisements. The Court therefore finds that Plaintiffs have satisfied both the typicality and adequacy 15 requirements. 16 B. 17 Rule 23(b)(3) In addition to the prerequisites set forth in Rule 23(a), a class must be maintainable under Rule 18 23(b). Under Rule 23(b)(3), certification is appropriate if: (i) questions of law or fact common to the 19 members of the class predominate over any questions affecting only individual members; and (ii) a class 20 action is superior to other available methods for the fair and efficient adjudication of the controversy. 21 Fed. R. Civ. P. 23(b)(3). 22 1. Predominance 23 The Court agrees with Plaintiffs that common questions predominate over individual questions. 24 Specifically, the predominating common issues include whether Bayer misrepresented that the Men’s 25 Vitamins “support prostate health” and whether the misrepresentations were likely to deceive a 26 reasonable consumer. As Plaintiffs note, these predominant questions are binary—advertisements were 27 either misleading or not, and Bayer’s prostate health claim is either true or false. Plaintiffs claim each of 28 6 09cv1935 1 these predominating common questions is capable of class-wide resolution using class-wide evidence, 2 and will generate common answers to the primary questions presented in this lawsuit. Importantly, California consumer protection laws take an objective approach of the reasonable 3 4 consumer, not the particular consumer. Williams, 552 F.3d at 938; see also Yokayama v. Midland 5 National Life Ins. Co., 594 F.3d 1087, 1089, 1094 (9th Cir. 2010) (“[T]here is no reason to look at the 6 circumstances of each individual purchase in this case, because the allegations of the complaint are 7 narrowly focused on allegedly deceptive provisions of Midland’s own marketing brochures, and the 8 fact-finder need only determine whether those brochures were capable of misleading a reasonable 9 consumer.”). Moreover, class reliance can be presumed under both the UCL and CLRA, although the 10 latter requires that a material misrepresentation was made to the class.4 11 Bayer argues that individual issues predominate over common issues because the key factors of 12 reliance, materiality, timing, and damages are all individual issues. The Court addresses each argument 13 in turn. a. 14 15 Reliance Bayer contends that reliance cannot be presumed, since the reason for purchasing the Men’s 16 Vitamins is an individual issue, and exposure to advertising would vary by consumer depending on the 17 mix of television, radio, or print advertisements each consumer may have viewed. But at a minimum, 18 everyone who purchased the Men’s Vitamins would have been exposed to the prostate claim that 19 appeared on every package from 2002 to 2009. This is the predominant issue, not whether or not 20 consumers also saw television or print advertisements. In the Court’s view, this fact also distinguishes 21 22 23 24 25 26 27 28 4 “[R]elief under the UCL is available without individualized proof of deception, reliance and injury.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011) (quoting In re Tobacco II Cases, 46 Cal. 4th 298, 320 (2009)) (emphasis added). Likewise, under the CLRA, “[c]ausation on a class-wide basis may be established by materiality.” Stearns, 655 F.3d at 1022 (quoting In re Vioxx Class Cases, 180 Cal. App. 4th 116, 129 (2009)). “If the trial court finds that material misrepresentations have been made to the entire class, an inference of reliance [under the CLRA] arises as to the class.” Id. (emphasis added); see also Vasquez, 4 Cal. 3d at 814 (“It is sufficient for our present purposes to hold that if the trial court finds material misrepresentations were made to the class members, at least an inference of reliance would arise as to the entire class.”); Mass Mutual Life Ins. Co. v. Superior Court, 97 Cal. App. 4th 1282, 1292-93 (2002) (holding that causation could be satisfied if the record permits an “inference of common reliance” to the class where the information “would have been material to any reasonable person” purchasing the insurance policy) (emphasis added). 7 09cv1935 1 the cases relied upon by Bayer, which denied certification because not every class member was exposed 2 to the misrepresentation.5 3 Moreover, when plaintiffs are exposed to a common advertising campaign, common issues 4 predominate. See, e.g., In re Ferrero Litig., No. 11–205, 2011 U.S. Dist. LEXIS 131533, at *16-17 (S.D. 5 Cal. Nov. 15, 2011) (predominance satisfied where class members had “common contention” that 6 defendant “made a material misrepresentation regarding the nutritious benefits of Nutella® that violated 7 the UCL, FAL and the CLRA” and “any injury suffered by a class member in this case stems from 8 Defendant's common advertising campaign of Nutella®”); Gonzalez, 247 F.R.D. at 724 (permitting “an 9 inference of common reliance when the allegations demonstrate that a single, material misrepresentation 10 was directly made to each class member”). Accordingly, the Court is not convinced by Bayer’s 11 argument that reliance is an individual issue and cannot be presumed. b. 12 13 Materiality Bayer claims the related issue of materiality also involves individual inquiries, since people buy 14 multivitamins for a variety of reasons, many of which have nothing to do with prostate health benefits. 15 But as noted above, California’s consumer protection laws evaluate materiality under a reasonable 16 person standard, not on an individualized basis. Given that the prostate health language appeared on four 17 panels of every package of Men’s Vitamins, it very well could have been material to a reasonable 18 19 20 21 22 23 24 25 26 27 28 5 See, e.g., Mazza v. American Honda Motor Co., Inc., --- F.3d ---, 2012 WL 89176 (9th Cir. 2012) (holding that where many class members never saw the allegedly misleading advertisements prior to purchase, a classwide presumption of reliance was inappropriate); Gonzalez v. Proctor & Gamble Co., 247 F.R.D. 616, 624-25 (S.D. Cal. 2007) (denying certification because the class of consumers “may have seen all, some, or none of the advertisements that form the basis of Plaintiff’s suit,” which does not allow for an inference of reliance) (emphasis added); Campion v. Old Republic Home Prot. Co., 272 F.R.D. 517, 536 (S.D. Cal. 2011) (same); Sevidal v. Target Corp., 189 Cal. App. 4th 905, 926 (2010) (denying certification of UCL claim where majority of class members did not see allegedly false representation). Here, by contrast, all class members necessarily saw Bayer’s prostate claim, since it appeared prominently on the packaging itself. 8 09cv1935 1 person.6 However, that is a question of fact to be determined at a later stage. Bayer’s argument is not 2 sufficient to defeat class certification. c. 3 4 Timing Bayer further argues that each challenged representation must be evaluated at the time of 5 purchase. According to Bayer, the relevant science regarding the benefits of selenium and/or lycopene 6 was in flux during the class period, and the challenged statements must be evaluated in the context of 7 scientific evidence available at the time each class member purchased Men’s Vitamins. However, this 8 argument goes toward the merits of the case (i.e., whether the scientific evidence substantiated Bayer’s 9 claims during the class period), not class certification. See Godec v. Bayer Corp., 2011 WL 5513202, at 10 *5 (stating that “whether Bayer [] delivered a product that did not conform to its description, is a 11 scientific question common to the class members”). d. 12 13 Damages Finally, Bayer asserts that individual issues predominate regarding damages. However, the 14 determination of relief does not defeat predominance. As noted above, the amount of damages is often 15 an individual question and does not defeat class action certification. Blackie v. Barack, 524 F.2d 891, 16 905 (9th Cir. 1975).7 For example, in Wiener, the court found that the actual damages for plaintiff’s 17 CLRA claim “can be calculated by subtracting the value of the product without the claimed health 18 benefit, a uniform value to be determined based on the evidence presented at trial, from the price the 19 20 21 22 23 24 25 26 27 28 6 The Court notes that the “prostate health” claim appeared very prominently on the Men’s Vitamins packaging. In the images Bayer provided to the Court at the hearing, the prostate claim was frequently listed first among purported benefits, and in more than one instance, the packaging stated prominently that the product contained “five times the amount of Selenium in Centrum® or Centrum® Silver® .” See, e.g., OAD Men’s Health Formula: Top of Package (2006); OAD Men’s 50+ Advantage: Top Front Panel (2007). This supports Plaintiffs’ contention that the prostate health claim was the “reason to believe” the product offered something its competitors did not. This in turn undercuts Bayer’s argument that it was just one of many different claims made on the packaging and seems to weigh in favor of its materiality. 7 Thus, “[i]ndividual damage issues should not, except in extraordinary situations, have any adverse effect on the propriety of aggregate class judgments as a proper means for determining the defendant’s liability to the class.” 6 A. Conte & H. Newberg, Newberg on Class Actions, §10:2 (4th ed. 2002). “Where, as here, common questions predominate regarding liability, the courts generally find the predominance requirement to be satisfied even if individual damages issues remain.” Smilow v. SW Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003). 9 09cv1935 1 particular class member is able to prove he or she paid.” Wiener, 255 F.R.D. at 670 (citing Colgan v. 2 Leatherman Tool Group, Inc., 38 Cal. Rptr. 3d 36, 42-43 (Cal. Ct. App. 2006). Accordingly, Bayer’s various arguments regarding predominance are not sufficient to defeat 3 4 certification. The Court concludes that common questions predominate over individual questions. 5 2. Superiority 6 The Court also agrees with Plaintiffs that a class action is superior to other available methods of 7 adjudicating these issues. Judicial economy weighs in favor of a class action where, as here, liability 8 turns on whether advertisements were false or misleading. Likewise, it would be economically 9 infeasible for class members to pursue their claims individually, since the expense of litigating the 10 scientific adequacy of Bayer’s claims would be exponentially larger than the small amount in contro- 11 versy for each individual consumer (less than $10 per purchase). See, e.g., Wiener, 255 F.R.D. at 671. It 12 is far more efficient to resolve the common questions regarding materiality, scientific substantiation, and 13 statutes of limitations in a single proceeding rather than to have individual courts separately hear these 14 issues. The Court therefore concludes that Plaintiffs have met all the requirements of Rule 23(b)(3), as 15 16 well as Rule 23(a). 17 C. 18 Standing Bayer makes a separate argument that neither named Plaintiff has standing to sue. Bayer claims 19 there were two distinct types of prostate health claims: (1) the Qualified Health Claim, which is 20 language proposed by the FDA that appeared on some Men’s Vitamins, noting that the FDA had 21 determined the correlation between selenium and reduced cancer risk was not conclusive; and (2) the 22 Structure/Function Claim, which is the language that the product “supports prostate health.” 23 Bayer claims Plaintiffs Johns and Bordman lack standing to assert claims on the Qualified 24 Health Claim because they never saw it prior to purchase, and so it could not have caused them injury. 25 However, the Court does not see how this claim is relevant. The advertising claim—the message 26 conveyed by the labeling and advertisements—is at issue here, not FDA regulations. Plaintiffs assert 27 that they can demonstrate on a class-wide basis that Bayer conveyed a deceptive advertising message on 28 its labeling and in its other advertisements. It is this overall message conveyed that matters. Because 10 09cv1935 1 both Plaintiffs allegedly purchased the Men’s Vitamins in reliance on the promised prostate health 2 benefit, they have standing under Article III, the UCL, and the CLRA. 3 D. Statutes of Limitation 4 Bayer also argues that certain class members’ claims are time-barred. The applicable statutes of 5 limitation are three years under the CLRA and four years under the UCL, yet Plaintiffs seek to certify a 6 class dating back to 2002. However, Plaintiffs contend that both the legal question governing tolling of a 7 statute of limitations and the factual question of whether the statute was tolled present class issues that 8 compel certification, rather than defeat it. Under the UCL and CLRA, whether the class properly 9 includes consumers who purchased before the applicable statutes of limitation is a merits-based, 10 classwide issue. See Mass Mutual Life Ins. Co. v. Superior Court, 97 Cal. App. 4th 1282, 1295 (2002) 11 (noting that “the respective statutes of limitation [for UCL and CLRA claims], will probably run from 12 the time a reasonable person would have discovered the basis for a claim”). Accordingly, the court in 13 Mass Mutual “reject[ed] Mass Mutual’s contention that its statute of limitations defenses will require 14 individual determinations of fact.” Id. Likewise, Bayer’s argument is insufficient to defeat class 15 certification. 16 E. 17 Wal-Mart Stores, Inc. v. Dukes As a final argument, Bayer claims the recent Dukes case prohibits certification because Bayer 18 would be deprived of its right to prove defenses to individuals’ claims. See 131 S. Ct. at 2561. For 19 example, Bayer claims the proposed class includes purchasers who are not entitled to recover because 20 they did not place any credence on the prostate health claim—perhaps because they were aware of 21 conflicting scientific studies. However, the Godec court rejected this same argument when it granted 22 certification, stating that “to the extent Bayer has individualized defenses, it is free to try those defenses 23 against individual claimants.” 2011 WL 5513202, at * 7 (also noting that “Bayer gives itself too little 24 credit; the overwhelming majority of consumers probably trusted Bayer—a well-known company—and 25 believed that there was some prostate-health benefit from taking the vitamins”). The Court agrees that 26 Bayer would not be deprived of its right to try individualized defenses, and therefore Dukes does not bar 27 certification. 28 11 09cv1935 1 IV. 2 CONCLUSION 3 4 For the reasons set forth above, the Court GRANTS Plaintiffs’ Motion for Class Certification. IT IS SO ORDERED. 5 6 7 8 DATED: February 3, 2012 Hon. Anthony J. Battaglia U.S. District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\9cv1935 Class Cert Order.wpd 09cv1935
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