Johns v. Bayer: Certifying Class and Affirming Presumption of Reliance by “Reasonable Consumer”

The U.S. District Court for California’s Southern District has issued yet another certification ruling that limits the holding of Dukes v. Wal-Mart and contributes to the growing body of post-Dukes commonality jurisprudence.  See Johns v. Bayer Corp., 09-cv-1935, 2012 U.S. Dist. LEXIS 13410 (S.D. Cal. Feb. 3, 2012) (order granting class certification motion) (available here).  Additionally, the Johns decision confirms the prevalent view that, in consumer class actions, reliance need not be established for each class member on an individual basis.  Rather, classwide reliance can be presumed where a reasonable consumer would be deceived by the at-issue misrepresentations.  Id.

Southern District Court Judge Anthony Battaglia granted certification of a class of California consumers who allegedly paid a higher price for Bayer’s “Men’s 50+ Advantage” and “Men’s Health Formula” vitamins in reliance on Bayer’s claim that the products “support prostate health.”  Id at *2-4.  The Johns plaintiffs allege that “in truth, the vitamins did not provide any prostate health benefits.  In fact, according to Plaintiffs, recent clinical studies have shown that for some men, increased selenium consumption may increase their prostate cancer risk.”  Id. at *3.

Bayer opposed class certification, principally by focusing on the heightened commonality requirement set forth in Dukes.  Id. at *6-14.  Specifically, Bayer argued that the commonality requirement could not be satisfied because there were individualized questions regarding the plaintiffs’ actual reliance on Bayer’s purported misrepresentations, the materiality and timing of Bayer’s health claims, and the amount of damages suffered.  Id.

However, the Johns court rejected Bayer’s arguments, invoking Ninth Circuit authority for the proposition that California consumer laws “take an objective approach of the reasonable consumer, not the particular consumer.”  Id. at *12-13 (citing Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)) (emphasis in original).  Thus, the key question is whether a reasonable consumer would have been misled by Bayer’s packaging, not whether each individual purchaser was misled.  Id. at *12-13.  In adopting the “reasonable consumer” standard and the presumption of classwide reliance, Johns is consistent with the emerging consensus among California’s federal courts.  See Wolph v. Acer, 272 F.R.D. 477 (N.D. Cal. Mar. 25, 2011) (class-wide reliance presumed from showing that misrepresentation is material to reasonable consumer).   

The Johns decision also addressed Dukes’ “due process” analysis and rejected Bayer’s argument that certification would deprive Bayer of the opportunity to raise defenses to individuals’ claims.  Echoing a similar decision against Bayer by an Ohio district court, the Johns court held that certification would not prevent Bayer from trying individualized defenses, and therefore Dukes did not bar certification.  Id. at *23 (discussing Godec v. Bayer Corp., 2011 LEXIS 131198, *7 (N.D. Ohio Nov. 11, 2011)).