DAVID R. HERNDON, Chief District Judge.
This matter is before the Court on plaintiff's motion for an order certifying this case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure (Doc. 54). Plaintiff is seeking an order granting class action status to a class comprised of California consumers who were allegedly harmed as a result of purchasing YAZ. Plaintiff is not alleging any physical injury from ingesting YAZ. Rather, plaintiff asserts that purchasing YAZ caused her to suffer an economic harm. Plaintiff contends that she selected YAZ as an oral contraceptive, as opposed to selecting an equally effective cheaper oral contraceptive, in reliance on one or more direct-to-consumer advertisements containing material omissions regarding the limitations and/or approved uses of YAZ.
Having considered the parties briefs and the relevant authority, the Court finds that plaintiff cannot meet all of the requirements of Rule 23. Accordingly, for the reasons discussed herein, the Court
Bayer markets and sells consumer health products and pharmaceutical products, including YAZ. YAZ is a member of a class of prescription medicines known as combined hormonal oral contraceptives ("COCs") which consist of estrogen and progestin (Doc. 56 p. 4). The estrogen in YAZ is ethinyl estradiol and the progestin is drospirenone (Doc. 56 p. 4).
The Food and Drug Administration ("FDA") approved YAZ as an oral contraceptive in March of 2006. Id. The FDA subsequently approved YAZ as a treatment for moderate acne vulgaris in women who choose to use an oral contraceptive and as a treatment for premenstrual dysphoric disorder ("PMDD") in women who choose to use an oral contraceptive. Id. To date, YAZ has not been approved for the treatment of premenstrual syndrome ("PMS") or premenstrual symptoms not severe enough to warrant a diagnosis of PMDD.
PMDD is a condition associated with severe emotional and physical problems that are closely linked to the menstrual cycle. PMDD and PMS share some common symptoms, such as depression, anxiety, tension, irritability, moodiness, headaches, and breast tenderness. PMDD is distinguished from PMS (and Premenstrual Symptoms) based on the number and the severity of symptoms experienced. Women with PMDD, suffer from a larger number of symptoms than women who have PMS or who experience premenstrual symptoms. In addition, the symptoms associated with PMDD are severe enough to markedly interfere with work, school, social activities and/or relationships.
PMDD affects a relatively small percentage of women (3%-8%)
For those women who require treatment for PMDD or PMS, doctors sometimes prescribe oral contraceptives to stop ovulation from occurring (Doc. 54-2, Exhibit H, p. 1581; Doc. 54-2, Exhibit K, p. 2; Doc. 54-2, Exhibit J, p. 2; Doc. 56-3 p. 12). Certain oral contraceptives, however, have shown mixed effectiveness and, in some instances, worsening of symptoms (Doc. 56-3 p. 12).
Plaintiff contends that "Not Gonna Take It" and "Balloons," two television commercials aired by the defendant during the class period, contained material omissions and/or misrepresentations.
In the first commercial, "Not Gonna Take It," women can be heard singing "We're Not Gonna Take It" while they kick, punch, and push words that describe symptoms such as "irritability," "moodiness," "bloating," and "feeling anxious" away from the screen (Doc. 54-2, Exhibit A). During the commercial, an announcer makes the following statements:
(Doc. 54-2 Exhibit A). This commercial was broadcast from August 20, 2007 to August 10, 2008 (Doc. 54-2, Exhibit C p. 12).
The second commercial, "Balloons," ran from May 20, 2008 to October 5, 2008 (Doc. 54-2, Exhibit D). Throughout the commercial, balloons with the words "irritability," "moodiness," "feeling anxious," "bloating," "fatigue," "muscle aches," and "headaches" can be seen while the song "Goodbye to You" plays in the background (Doc. 54-2, Exhibit D). In addition, an announcer makes the following statements:
Id.
A third direct-to-consumer television advertisement was broadcast during the class period (Doc. 56 pp. 6-7). This advertisement is known as "Three Women PMDD" and started airing in February 2007. The commercial involved three women discussing YAZ in a nightclub (Doc. 56-13). The advertisement expressly distinguished PMDD from PMS (doc. 56-13). One character in the commercial said: "I thought I had PMS, so I tracked my symptoms and my doctor told me, `That's not PMS, that's PMDD.'" (Doc. 56-13). Another character responded saying, "Unlike PMS, symptoms of PMDD are severe enough to actually interfere with your life." (Doc. 56-13). Plaintiff does not assert that this advertisement was deceptive.
On October 3, 2008, the FDA issued a warning letter to Bayer criticizing "Balloons" and "Not Gonna Take It" (Doc. 52-2). Both commercials were criticized on the ground that they did not distinguish clearly enough between PMDD and PMS
(Doc. 52-2). After receiving this warning letter, Bayer asserts that it embarked on a twenty million dollar corrective campaign (Doc. 56 p. 5).
Plaintiff asserts claims under California's fraudulent concealment statute codified at California Civil Code §§ 1709 and 1710; Consumer Legal Remedes Act ("CLRA"), codified at Cal. Civil Code § 1750, et seq.; False Advertising Law ("FAL"), codified at Cal. Civil Code § 17500, et seq.; and Unfair Competition Law ("UCL"),
Plaintiff contends, had the putative class members not been deceived by the allegedly fraudulent advertisements, they would have purchased an equally effective and cheaper oral contraceptive. Plaintiff theorizes that Bayer intentionally misled consumers because it did not want the market for YAZ to be limited to the relatively small subset of oral contraceptive users affected by PMDD (Doc. 54-1 pp. 3-10). Instead, plaintiff contends, Bayer decided to promote YAZ as an approved and effective treatment for conditions or symptoms that are estimated to affect a greater number of potential users, namely PMS, and/or premenstrual symptoms not severe enough to warrant a diagnosis of PMDD (Doc. 54-1 pp. 3-10). This alleged deception purportedly increased demand for YAZ and fostered an environment that allowed Bayer to create and sustain a falsely inflated price for YAZ (Doc. 54-1 pp. 3-10).
The original putative class, set forth in plaintiff's Second Amended Complaint and argued for in plaintiff's motion for class certification, included the following putative class members:
(Doc. 52 ¶ 58; Doc. 54; Doc. 54-1) (emphasis added). Bayer contends that the original proposed class is overly broad and not sufficiently definite or identifiable. In addition, Bayer argues that the plaintiff is not an adequate class representative, individual issues predominate, and the proposed class would be unmanageable (Doc. 56).
In her reply in support of class certification, plaintiff modified her original class definition and argues for certification of a revised class (Doc. 58). The following is the putative class definition the plaintiff is presently pursuing:
(Doc. 58 p. 2) (emphasis added).
The phrase "Defendant's Ads" is defined as including only the "Balloons" and "Not Gonna Take It" television advertisements (Doc. 70 p. 2). In this respect, the revised class is somewhat narrowed in that it only includes those women who were exposed to one or both of these television advertisements. However, the revised class is also expanded in that it is no longer restricted to women who "requested" a YAZ prescription and no longer excludes women who saw written literature before purchasing YAZ.
Plaintiff contends that the revised putative class definition addresses any issues identified by Bayer in response to her original class definition. She also contends that a recent slip opinion from the Southern District of California, Krueger v. Wyeth, Inc., No. 11-80814 (D.C. No. 3:03-cv-2496-JAH (S.D. Cal. March 29, 2011) (Houston, J.) (Doc. 58-2) ("Krueger"), which certified a class of California consumers, involves analogous legal and factual issues and "compels" this Court to grant class certification (Doc. 58 p. 2).
Bayer contends that the revised class definition still does not meet the burden of proof for class certification (Doc. 62) and that Krueger is distinguishable. The parties also dispute the requisite elements of plaintiff's claims, how to interpret the requisite elements of plaintiff's claims, and which (if any) of plaintiff's claims are subject to common proof.
The plaintiff and proposed class representative, Frances Burns, is a citizen of California. Ms. Burns is a "good friend" of and works with Aimee Lambert, the wife of Richard Lambert, one of the class attorneys (Doc. 56-2 pp. 4, 16, 21-26). Ms. Burns became involved in this litigation after having a conversation with Ms. Lambert (Doc. 56-2 pp. 21-24). During that conversation, Ms. Lambert told Ms. Burns about this litigation and informed her that her husband was having difficulty locating a suitable class representative (Doc. 56-2 pp. 21-24). At that time, Ms. Burns informed Ms. Lambert that she had taken YAZ during the period in question and that she recalled seeing the complained of commercials (Doc. 56-2 pp. 21-26). Ms. Burns then spoke with Mr. Lambert and his wife over the phone and arranged for a meeting (Doc. 56-2 pp. 24-26). Subsequently, Ms. Burns became the class representative. Ms. Burns testified that, independent of #2384 this lawsuit, she has become better friends with Ms. Lambert over the last six months (Doc. 56-2 p. 16).
Ms. Burns states that she has experienced and continues to experience at least one of the following premenstrual symptoms during her menstrual cycles: (1) irritability; (2) moodiness; (3) anxiousness; (4) fatigue; (6) headaches; and (7) increased appetite (Doc. 54-3 p. 1). Ms. Burns has never been diagnosed with PMDD (Doc. 54-3 p. 2).
Ms. Burns began taking oral contraceptives in 2000 and intermittently used them through 2007 (Doc. 56-2 pp. 34-45).
In January of 2008, Ms. Burns saw her healthcare provider and "talked about various contraceptive options" (Doc. 56-2 p. 5). Ms. Burns advised her healthcare provider that she did not like taking birth control pills and inquired about an intrauterine device (Doc. 56-2 p. 5).
In a sworn declaration in support of her motion for class certification, Ms. Burns states she selected YAZ, instead of a cheaper, equally effective oral contraceptive, "based on [her] reliance on Defendant's `Not Gonna Take It' and `Balloons' television advertisements, as after viewing said advertisements, [she] believed that YAZ was approved for, and/or proven effective in, curing, treating, and/or mitigating premenstrual symptoms and, would therefore, be effective in curing, treating and/or mitigating [her] premenstrual symptoms." (Doc. 54-3 p. 2 ¶ 5). In her plaintiff fact sheet disclosure, plaintiff states that she saw "Balloons" and "not Gonna Take It" prior to being prescribed YAZ (Doc. 56-17 p. 21). Further, in her plaintiff fact sheet, Ms. Burns states that she specifically recalled seeing the "Balloons" advertisement in the weeks preceding her appointment where she requested YAZ (Doc. 56-17 p. 21).
The "Balloons" commercial, however, did not air until May of 2008 (Doc. 54-2 Ex. D; Doc. 58 pp. 15-16). Ms. Burns requested her prescription for YAZ in January of 2008 (Doc. 54-3 pp. 1-2). Thus, Ms. Burns could not possibly have seen the "Balloons" advertisement prior to requesting a prescription for YAZ. In addition, Ms. Burns' deposition testimony indicates that she only viewed the "Not Gonna Take It" advertisement prior to requesting a prescription for YAZ (Doc. 56 pp. 15-16). Ms. Burns appears to concede as much in her reply in support of her motion for class certification (Doc. 58 p. 16).
After receiving a prescription for YAZ, Ms. Burns paid money to obtain the drug (Doc. 54-3 p. 2 ¶ 7). Ms. Burns states that during the period of time in which she was taking YAZ as her form of oral contraceptive (January 2008-August 2008), she did not realize any recognizable decrease, reduction, or other diminution in the number or severity of premenstrual symptoms she experienced (Doc. 54-3 p. 2 ¶ 8).
Plaintiff objects to certain evidence offered by defendant in opposition to plaintiff's motion for class certification and moves to strike the same (Doc. 58-4). First, plaintiff objects to defendant's reliance on Plaintiff Fact Sheets executed by California women who maintain a claim against the defendant for personal injuries resulting from their ingesting of YAZ. The Court does not consider this evidence in resolving plaintiff's motion for class certification. Accordingly, this portion of the motion is denied as moot.
Plaintiff also objects to defendant's reliance on four documents downloaded from the American College of Obstetricians and Gynecologists (ACOG) website (Exhibits Q, S, T, and U to Doc. 56). Defendant presents these articles to support its position that YAZ can be used to treat PMS and premenstrual symptoms and that there is not an appropriate class-wide comparator drug. Plaintiff contends that these articles cannot be tendered in lieu of expert testimony but cites to no controlling authority for this proposition. Plaintiff also contends that the articles are irrelevant, lack appropriate authentication, contain hearsay, and/or deny plaintiffs the opportunity to cross examine the authors of the articles or studies. Because the Federal Rules of Evidence apply at the class certification stage, plaintiff contends that these articles must be stricken. It is not clear why the other scientific material attached as exhibits to the parties' briefing would not be subject to the same objections. Nonetheless, the Court need not resolve whether Exhibits Q, S, T, and U to Doc. 56 must be stricken. These articles were not necessary to the Court's resolution of plaintiff's class certification motion.
Questions concerning controlling law are often misinterpreted and/or overlooked by counsel. Admittedly, such questions are particularly difficult in multidistrict litigation, which may involve parties from multiple states, the removal of cases from state to federal court, the transfer of cases between district courts, and issues of state and federal law. In the instant case, at times, the parties reference appropriate controlling authority. However, the parties spend an equal amount of time citing to opinions that have zero precedential value and/or decisions that are not controlling with regard to a district court sitting in Illinois. Such citation is generally made without any explanation as to why the Court should consider the non-controlling decisions (e.g., one might cite to decisions from appellate courts other than the Seventh Circuit because the Seventh Circuit has not addressed the matter in issue). Perhaps most vexing is how often both parties make arguments that are primarily, if not exclusively, supported by citation to district court opinions from across the country. The Court reminds the parties that such decisions have zero precedential value. Further, this Court has specific case management procedures relating to citation of federal trial courts:
The parties also spend a great deal of time citing to decisions that are not controlling as to a particular issue. For instance, a decision from the California Supreme Court does not govern whether a plaintiff has constitutional standing. That is a federal matter governed by Federal law. Moreover, with regard to federal issues that are intended to be geographically uniform, this Court is governed by the Seventh Circuit Court of Appeals — even with regard to cases transferred from a California District Court (though the Court certainly considers and respects decisions from other Appellate Courts when the Seventh Circuit has yet to address a particular issue).
The Court reminds counsel that it is important to identify appropriate controlling authority and to follow this Court's local rules. An argument that relies on the wrong authority is a wasted opportunity. The Court does not criticize parties for citing to persuasive authority when controlling authority is unavailable. However, citation to such persuasive authority should be followed by an appropriate explanation. Further, basing ones argument entirely on decisions with little or no precedential value is a risky litigation strategy — particularly when, sua sponte, the Court is able to locate on-point controlling case law.
With regard to questions of state law, when, as here, a case arises under a court's diversity jurisdiction and is transferred from the originating federal district court to the transferee federal district court, the transferee court applies the substantive law the originating court would have applied. See Chang v. Baxter Healthcare Corp., 599 F.3d 728, 732 (7th Cir. 2010) (When a diversity case is transferred from one federal district to another, the substantive law applied is that of the jurisdiction from which the case was transferred); International Marketing, Ltd. v. Archer-Daniels-Midland Company, Inc., 192 F.3d 724, 729 (7th Cir. 1999) (the transfer of a diversity case from one federal district court to another leaves the law "unaffected").
Thus, to determine the requisite elements of each cause of action asserted by the plaintiff, the Court applies California substantive law as declared by the state's legislature or highest court. See Home Valu, Inc. v. Pep Boys-Manny, Moe and Jack of Del., Inc., 213 F.3d 960, 963 (7th Cir. 2000). If California law is unclear, this court must predict how the Supreme Court of California would decide the question. Rodman Indus., Inc. v. G & S Mill, Inc., 145 F.3d 940, 942 (7th Cir. 1998). In reaching this conclusion, the Court is obliged to consider the holdings of state appellate courts, but it is not bound to follow them if it has good reasons to diverge from them. Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1301 (7th Cir.1995).
Although, as to questions of state law, the law of the transferor court continues to apply when a diversity case is transferred
Here, plaintiff seeks class certification under Federal Rule of Civil Procedure 23. Because Rule 23 is intended to apply uniformly throughout the territorial United States, it does not trigger the exception regarding application of the law of the transferor forum. Accordingly, in assessing whether plaintiff's state law claims are subject to certification under Rule 23, the Court applies Seventh Circuit law.
As a matter of law, district court opinions may properly be regarded as persuasive precedent but they are not binding on this Court. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir.1998) ("district court opinions are of little or no authoritative value"); Old Republic Ins. Co. v. Chuhak & Tecson, P.C., 84 F.3d 998, 1003 (7th Cir.1996) ("decisions by district judges do not have the force of precedent"); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) ("District court decisions have no weight as precedents, no authority.") United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 572 (7th Cir.1987) ("A single district court decision ... is not binding on the circuit, or even on other district judges in the same district").
As such, district court opinions have value only to the extent that the Court finds them persuasive on material issues in this case.
Krueger is a recent decision from the Southern District of California. In Krueger, the plaintiff alleged that the defendant engaged in a false advertising campaign which represented that its hormone replacement therapy drugs ("HRT") reduced the risk of cardiovascular disease, dementia, and Alzheimer's (Krueger, Doc. 58-2 p. 3). The defendant also allegedly represented that its HRT drugs did not cause breast cancer. Id. Subsequent studies revealed that the defendant's HRT drugs actually increased the risk for strokes, heart attacks, cardiovascular disease, breast cancer, Alzheimer's, and dementia. Id. The district court certified the following class:
Plaintiff contends that Krueger "compels" this Court to grant class certification (Doc. 58 p. 2). The Court agrees that there are similarities between Krueger and the instant case. However, Krueger does not "compel" this Court to grant certification. As noted above, district court decisions are not binding or controlling on this Court. Thus, Krueger, has no precedential value.
Plaintiff also claims it would be an "injustice" to have a California district court grant certification in a substantially similar case, while having this Court deny certification (Doc. 58 p. 2).
Finally, the Court has reviewed the Krueger decision and the arguments related thereto. The Court finds that the decision is distinguishable. The, drugs at issue in Krueger purportedly had the opposite effect of their advertised benefits; they actually increased the risk of developing serious life-threatening medical conditions. Representations or omissions of this nature would clearly be material to putative class members. Here, the subject of the allegedly fraudulent conduct — the product's efficacy or approval in treating certain symptoms — is significantly different than the subject of the allegedly fraudulent conduct at issue in Krueger — the product's serious health risks. Unlike the misrepresentations or omissions at issue in Krueger, the misrepresentations or omissions at issue here may not have been material to a number of class members. Instead, the issue of materiality varies from person to person, making a class-wide presumption as to materiality inappropriate.
In addition, the plaintiff's claims in Krueger were "based on uniform
Finally, in Krueger, valuation was not at issue. As the Krueger court explained, the plaintiff did not "contend that absent Wyeth's deceptions she would have purchased another, less risky product. Because there was no similar hormone therapy drug on the market during the class period, the choice offered to plaintiff and putative class members was to purchase Wyeth's HRT drugs or buy nothing." (Krueger, Doc. 58-2 p. 8). Accordingly, in Krueger there was "no need for an individualized assessment of the drug's value to each class member nor an individualized assessment of the proper comparator drug for each class member." Id. Here, plaintiff has put valuation at issue by alleging that, absent defendant's allegedly misleading advertising campaign, she would have purchased another equally effective and less expensive oral contraceptive.
There are two types of standing that must be considered by the Court: (1) constitutional or Article III standing and (2) statutory standing.
Statutory standing relates to legislatively-created causes of action. Generally, the statutory standing requirement asks whether a statute creating a private right of action authorizes a particular plaintiff to avail herself of that right of action (i.e. is the plaintiff within the class intended to be protected by the relevant statute). Kohen v. Pacific Ins. Management Co., LLC, 571 F.3d 672 (7th Cir. 2009). Whether plaintiff has standing to sue under the UCL,
Defendant contends the putative class includes members who did not sustain an actual injury, and thus lack Article III standing. As support for its position, defendant cites to a decision from the Eighth Circuit Court of Appeals and two district court opinions (one from the Central District of California and one from the District Court of Maine) (Doc. 56 p. 20). All three of these decisions purportedly denied class certification because the putative class members lacked Article III standing (Doc. 56 p. 20). Defendant offers no explanation as to why this Court should rely on these decisions and not on Seventh Circuit authority. Plaintiff counters, arguing that, pursuant to Seventh Circuit Authority, only the class representative is assessed for Article III standing (Doc. 58 p. 15).
The relevant Seventh Circuit authority indicates that questions of standing — both constitutional and statutory — are only applicable to the named plaintiff. See Kohen, 571 F.3d at 677-678 (putative class members are not assessed for standing);
Thus, in assessing standing, the Court considers whether the named plaintiff is properly before the Court, not whether the absent class members are properly before the Court. With respect to putative class members, the appropriate question is not whether they have standing to sue but whether the named plaintiff may assert their rights. Whether the named plaintiff may assert the rights of the putative class is determined by evaluating (1) whether the named plaintiff has standing and (2) whether the named plaintiff satisfies the Rule 23 criteria. See Kohen, 571 F.3d at 676-677; Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir. 2002).
Finally, the Court notes that in assessing whether a class is overly broad for purposes of class certification, it considers whether the putative class includes members who could not possibly have been injured by the defendant's conduct. Kohen, 571 F.3d at 677-678. Although this analysis (and other aspects of the Rule 23 evaluation) may implicate questions associated with standing, the Court does not engage in a separate standing analysis for each individual class member. See Id. at 676-677. See also Morlan, 298 F.3d at 616; Payton, 308 F.3d at 680.
Plaintiff argues that the California Supreme Court's decision in Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011) establishes that under the UCL and FAL, plaintiff and the putative class have standing to seek restitution (Doc. 58 p. 16).
As noted above, Article III standing is a federal question governed by federal law. Thus, to the extent the California Supreme Court addressed Article III standing in Kwikset, it would not be controlling here.
In 2004, Proposition 64 amended the standing requirements under the UCL and FAL so that a private plaintiff has standing to bring a UCL or FAL action if the plaintiff "has suffered injury in fact and has lost money or property as a result of the unfair competition." Cal. Bus. & Prof. §§ 17204, 17535.
The California Supreme Court went on to discuss the elements necessary to state a claim under the UCL and FAL and entitlement to restitution under the UCL and FAL. With respect to these issues, the court noted and discussed the following: (1) to state a claim under either statute all that is necessary is fraudulent conduct that was "likely to deceive"; (2) entitlement to restitution under either statute requires lost money or property which "may have been acquired" by means of the fraudulent conduct; and (3) restitution is available under either statute without individualized proof of deceit, reliance, or injury. These concepts are separate from and should not be confused with the statutes' standing requirements.
In Kwikset, the California Supreme Court again interpreted the statutory standing requirements for UCL and FAL actions. The court concluded that plaintiffs may meet the applicable statutory standing requirements ("injury in fact" and lost money or property "as a result of" the unlawful conduct) "by alleging that they would not have bought the product but for the misrepresentation [because] such an allegation establishes both causation and a sufficient economic injury — the extra money paid." Id. at 890-891.
The class representatives in Kwikset alleged they were deceived into buying the defendant's locksets by the false label "made in U.S.A." The California Appellate Court affirmed the sustaining of defendant's demurrer on the ground that the plaintiffs received what they paid for — locksets — and the fact that the locksets were not entirely American-made did not qualify as a loss of money or property under the UCL or FAL. Applying the standard stated above, the California Supreme Court rejected this theory and concluded that the class representatives had sufficiently alleged standing under the UCL and FAL.
The court went on to state that the statutes' requirements for establishing standing ("injury in fact" and "lost money or property as a result of the improper conduct") are "wholly distinct" from the statutes' requirements for establishing entitlement to restitution (lost money or property "which may have been acquired by means of" the improper conduct). Thus, the court explained, standing under the UCL and FAL is not dependent on whether the plaintiff is entitled to restitution. The court noted that this distinction is important for plaintiffs who have suffered a loss of money or property without any corresponding gain by the defendant (e.g., defendant's conduct diminished the value of plaintiff's home). This type of injury would not be sufficient to establish entitlement to restitution because nothing was "acquired" by the defendant. However, it would be sufficient for establishing standing and entitlement to injunctive relief. If standing to sue were dependent on eligibility for restitution, the court explained, "injunctive relief—the primary form of relief under the UCL—[would be] rendered dependent on the availability of a mere ancillary form of relief." Id. at 895. A result that is clearly not compatible with the statutes' purpose or plain language. Id.
Accordingly, Kwikset establishes that (1) overpayment as a result of defendant's allegedly fraudulent conduct is a sufficient economic injury for purposes of establishing standing under the UCL and FAL; and (2) ineligibility for restitution is not a basis for denying standing under the UCL or FAL. It does not establish that the requirements for stating a claim for restitutionary relief under the UCL and FAL are irrelevant or that they will always be subject to common proof.
Plaintiff alleges that she requested a prescription for YAZ, as opposed to requesting an oral contraceptive that was equally effective in preventing pregnancy but less-expensive, based on her reliance on the defendant's alleged omissions. In essence, plaintiff contends she paid an overcharge — more than she otherwise would have — because of the allegedly fraudulent advertising campaign. The contention that plaintiff paid an inflated price for YAZ is sufficient to confer Article III standing. See e.g., Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., supra, 528 U.S. at pp. 183-184, 120 S.Ct. 693 (economic harm is among the bases for injury in fact); Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 481 (7th Cir. 2002) (paying an inflated price is sufficient injury for Article III standing).
The alleged overcharge in conjunction with plaintiff's allegations pertaining to causation and reliance are sufficient to confer statutory standing under the relevant California statutes. See Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011) (plaintiffs who were deceived by a product's label into spending money to buy the product, and would not have bought it otherwise, have lost money or property within the meaning of the UCL, and thus have standing to sue);
A plaintiff seeking class certification has the burden of proving that the proposed class meets the requirements of Rule 23. Wal-Mart Stores v. Dukes, ___ U.S. ___, ___, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (plaintiff seeking class certification "must affirmatively demonstrate" her compliance with Rule 23). See also General Tele. Co. of S.W., 457 U.S. at 160-61; Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993) (failure by the movant to satisfy any one of Rule 23's elements precludes certification).
If the plaintiff satisfies these requirements, she must also meet one of the requirements of Rule 23(b). Here, plaintiff seeks class certification under Rule 23(b)(3). In order to succeed under Rule 23(b)(3), plaintiff must show that "questions of law or fact common to members of the class predominate over any questions affecting individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3).
Finally, although Rule 23 is silent on the matter, it implicitly requires that the plaintiff establish the existence of a definable class. Rosario v. Livaditis, 963 F.3d 1013, 1017 (7th Cir. 1992); Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981); Alliance to End Repression v. Rochford, 565 F.2d 975, 977-78 (7th Cir. 1977). A sufficiently definite class exists if the class is (1) ascertainable and (2) not overly broad. See Kohen v. Pacific Inv. Management Co. LLC, 571 F.3d 672, 676-679 (7th Cir. 2009); Oshana v. Coca-Cola Co., 472 F.3d 506, 513-515 (7th Cir. 2006); Alliance to End Repression, 565 F.2d at 977-978.
Plaintiff contends that, because the putative class is restricted to consumers who viewed "Balloons" and "Not Gonna Take It," the class is sufficiently definite. Plaintiff proposes that the Court adopt the "simple" two-step process utilized by the Southern District of California in Krueger (Doc. 73 pp. 3-5).
In Krueger, the court concluded that class membership could be determined by requiring absent class members to provide pharmacy records showing proof of purchase and asking absent class members to answer two "objective" questions: "(1) Did you hear a representation that [Wyeth's products] decreased cardiovascular disease, Alzheimers or dementia or did not increase breast cancer? (2) if so, from what source?" Krueger v. Wyeth, Inc., Order Denying Defendant's Motion for Reconsideration, (D.C. No. 3:03-cv-2496-JAH) (S.D. Cal. Doc. 122 p. 4) (S.D. Cal. Jul. 12, 2011) (Houston, J.). Plaintiff proposes that in the instant case, absent class members can initially be identified using pharmacy records (Doc. 73 pp. 3-4). Once class members have been identified on this basis, they can then be asked one question: "Did you see one of the Ads ["Balloons" or "Not Gonna Take It"] prior to making your purchase of YAZ?" Id. at p. 4.
The Court is not convinced that plaintiff's proposal is an appropriate or administratively feasible method of determining class membership in the instant case. During the class period, Bayer ran three television advertisements: (1) "Balloons," (2) "Not Gonna Take It," and (3) "Three Women PMDD." The "Three Women PMDD" advertisement expressly addressed one of the issues allegedly misrepresented in "Balloons" and "Not Gonna Take It" (distinguishing PMDD from PMS and other premenstrual symptoms not severe enough to warrant a diagnosis of PMDD). Plaintiff's proposal does not adequately address issues related to the "Three Women PMDD" advertisement, the role of the prescribing physician, and/or other literature pertaining to YAZ that was available during the class period.
In addition, there is no objective way to determine who saw the complained of television advertisements.
In light of the above, the Court is not convinced that a questionnaire containing the single question proposed by the plaintiff (or containing any group of questions) will afford adequate procedural protection to defendant. As described above, Ms. Burns originally claimed she was exposed to misrepresentations and omissions while viewing the "Balloons" commercial. However, her medical records and deposition testimony demonstrate that she did not view this commercial. Defendant is entitled to test the memory and credibility of each potential class member just as it did with Ms. Burns. Accordingly, determining class membership can only be accomplished through arduous individual inquiries pertaining to each unnamed class member.
The court finds, and defendant does not contest, that the Rule 23(a)(1) numerosity requirement is satisfied.
Federal Rule of Civil Procedure 23(a) "requires, among other things, that the claims or defenses of the representative party be typical of the claims or defenses of the class." Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (internal citation omitted). "Although the typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members, the requirement primarily directs the district court to focus on whether the named representatives' claims have the same essential characteristics as the claims of the class at large." Id. (internal citation omitted).
In the instant case, the Seventh Circuit's application of the typicality requirement in Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) ("Oshana") is instructive. In, Oshana the plaintiff alleged that the Coca-Cola Company deceived Fountain Diet Coke consumers by failing to disclose that fountain Diet Coke is not the same product as bottled Diet Coke (fountain Diet Coke is sweetened with saccharin and aspartame, bottled Diet Coke is sweetened only with aspartame). Id. at 509. The representative plaintiff claimed that she was deceived by Coca-Cola's alleged misrepresentations and/or omissions and suffered a resultant injury. The putative class included members who were not deceived (i.e. people who knew fountain Diet Coke contained saccharin and bought it anyway). The Seventh Circuit found that this difference undermined typicality. Id. at 514.
As is discussed later in this Order, plaintiff's CLRA and fraudulent concealment claims require a showing of reliance and the record does not warrant an inference of reliance as to the entire class. Thus, plaintiff's CLRA and fraudulent concealment claims are substantially similar to the ICFA claim at issue in Oshana. Here, plaintiff claims she was deceived by an allegedly fraudulent advertisement and suffered resultant harm. The putative class, however, necessarily includes women who took YAZ knowing it was not approved for the treatment of PMS or premenstrual symptoms.
Plaintiff's UCL and FAL claims do not require a showing of reliance. Rather, plaintiff must show that the fraudulent conduct was "likely to deceive" a reasonable consumer. This standard is subject to common proof if the actionable conduct was both uniform and material. Thus, materiality is a relevant factor in the Court's class certification analysis. In the instant case, plaintiff claims that she suffered from and sought treatment for premenstrual symptoms. The putative class, however, includes women who did not suffer from PMS or premenstrual symptoms, who did not require treatment for PMS or premenstrual symptoms, and/or who took oral contraceptives for the sole purpose of birth control. For these plaintiffs, the subject of the allegedly fraudulent advertisement campaign would not have been material. Plaintiff's claims are not typical of these putative class members.
Defendant argues the named plaintiff, Ms. Burns, is an inadequate representative due to her relationship with class counsel's wife. As discussed above, Ms. Burns works with and is a "good friend" of class counsel's wife (Doc. 56-2 p. 16; Doc. 56-2 p. 4). Further, independent of this lawsuit, Ms. Burns states that she has become better friends with class counsel's wife over the last six months (Doc. 56-2 p. 16).
As noted by the Seventh Circuit, "relatives [of class representatives], or business associates" of class representatives are likely too closely related to class representatives to act as class counsel and to adequately represent the interests of the class. Susman v. Lincoln American Corp., 561 F.2d 86, 95 (7th Cir. 1977). This inadequacy stems from the likelihood that a conflict of interest will exist when there is a close relationship between the class representative and class counsel. See Id. at 91, 95-96 ("fear as to the danger of champerty" exists when there is a "close relationship between the putative class representative and counsel"). The determination of inadequacy based on close relationships is on a case-by-case basis. Id. at 90.
In the instant case, the disputed relationship does not rise to the level of a familial relationship and Ms. Burns and class counsel are not direct business associates. Nonetheless, the close relationship between Ms. Burns and counsel's wife raises serious concerns as to Ms. Burns's adequacy to represent the instant class. Given that the potential recovery for plaintiffs is minimal compared to the potentially high amount of attorneys' fees that may be awarded, Ms. Burns may be more concerned with helping to maximize the monetary return of her "good friend" and co-worker (counsel's wife) than with her duty to zealously advocate on behalf of the class' interests. This is the type of situation that creates a conflict of interest. Considering this, the Court finds that Ms. Burns is not sufficiently independent of class counsel and does not satisfy the adequacy of representation prong.
The Seventh Circuit, in Simer v. Rios, 661 F.2d 655, 665 (7th Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982), explained the proper method of analyzing "predomination" questions under Rule 23(b)(3):
Id. at 672. To carry out this analysis, the Court must determine the substantive elements of plaintiff's claims, the proof necessary to establish those elements, and whether those elements may be tried in a common fashion. Id. See also Id. at 672-673. (resolution of the predominance question tends to focus on the form trial on the issues would take, with consideration of whether the action would be manageable). "[T]he predominance criterion is far more demanding [than Rule 23(a)'s commonality requirement]." Amchem Prods. V. Windsor, 521 U.S. 591, 623-34, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Although the presence of common issues may satisfy the commonality requirement, predominance is not present unless those common issues outweigh individual questions. Id.
Plaintiff contends, in light of the holding in Tobacco II, class certification may proceed once the named plaintiff establishes statutory standing. To the extent that plaintiff is suggesting the Court's class certification analysis begins and ends with the question of standing, she is mistaken. Standing and stating a claim for restitutionary relief are not interchangeable concepts. The California Supreme Court has clearly spoken on the question of standing under the UCL and FAL. See Section IV.C.2, supra. Focusing on Proposition 64's "as a result of" language, the court concluded that the representative plaintiff (and only the representative plaintiff) "proceeding on a claim of misrepresentation as the basis of his or her UCL action must demonstrate actual reliance on the allegedly deceptive or misleading statements." Tobacco II, 93 Cal. Rptr. 3d at 565. See also Id. at 580. Subsequently, the California Supreme Court revisited the issue of standing in UCL and FAL class actions and defined the type of economic injury necessary for purposes of establishing standing. See Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011). See also section IV.C.3., supra.
Proposition 64, Tobacco II, and Kwikset, did not alter or eliminate the substantive elements necessary to maintain a UCL or FAL claim or to establish entitlement to restitutionary relief. See Tobacco II, 207 P.3d at 30, 34-36, 38. See also In re Steroid Hormone Product Cases, 104 Cal.Rptr.3d 329, 340 (Cal. Ct. App. 2010) (Proposition 64 did not alter the substantive law governing UCL claims); Morgan v. AT & T Wireless Services, Inc., 99 Cal.Rptr.3d 768 (Cal. Ct. App. 2009) (with the exception of standing Proposition 64 did not alter the UCL's substantive provisions, and thus pre-Proposition 64 case law is applicable); Pfizer Inc. v. Superior Court, 105 Cal.Rptr.3d 795, 801-804 (although absent class members need not meet standing requirements, they still have to be entitled to restitution or injunctive relief in order to be included in the class). Nor did they eliminate the need to meet the federal requirements for class certification, including predominance.
In conducting its Rule 23(b)(3) analysis, the Court is concerned with the substantive elements necessary to maintain a claim and establish entitlement to restitutionary relief; not the elements necessary for establishing standing.
To state a claim under the UCL or FAL based on fraudulent conduct, a plaintiff has the burden of establishing that the complained of conduct was "likely to deceive" a reasonable consumer. Tobacco II, 207 P.3d at 29; Paduano v. American Honda Motor Co., Inc., 88 Cal.Rptr.3d 90, 127 (Cal. Ct. App. 2009); Bardin v. Daimlerchrysler Corp., 39 Cal.Rptr.3d 634, 647 (Cal. Ct. App. 2006); Lavie v. Procter & Gamble Co., 129 Cal.Rptr.2d 486, 494 (Cal. Ct. App. 2003).
A representative plaintiff is not required to establish that unnamed class members were actually deceived or confused by the allegedly misleading conduct. Fairbanks v. Farmers New World Life Ins. Co., 128 Cal.Rptr.3d 888, 903-904 (Cal. Ct. App. 2011). "Nonetheless, a class action cannot proceed for a fraudulent business practice under the UCL when it cannot be established that the defendant engaged in uniform conduct likely to mislead the entire class." Id. at 904. Specifically, a UCL class action may be denied where individual proof would be necessary to determine whether fraudulent representations were actually made to each class member and/or putative class members were not exposed to the same fraudulent representations. See Id. at 903-904; Knapp v. At & T Wireless Services, Inc. supra, 195 Cal. App. 4th at p. 944-945; Kaldenbach, supra, 178 Cal. App. 4th at p. 850.
In addition, class treatment may be inappropriate when class members were exposed to disparate information from various sources, regardless of uniform representations that were made. For example, in Fairbanks v. Farmers New World Life Ins. Co., 128 Cal.Rptr.3d 888 (Cal. Ct. App. 2011), the plaintiff brought a claim against the defendant insurer for violation of the UCL "in connection with [the insurer's] marketing and sale of universal life insurance policies." Id. at 891. In affirming the trial court's class certification denial, the appellate court acknowledged that the language in putative class members' life insurance policies was "indisputably amenable to common proof." However, the court went on to state it would be "impossible to consider the language of the policies without considering the information conveyed by the [insurer's] agents in the process of selling them." Id. at 564. Because the information conveyed varied from agent to agent, the appellate court concluded that uniformity was lacking and a presumption as to "likely to deceive" was not appropriate. See also Knapp v. AT & T Wireless Services, Inc., supra, 124 Cal.Rptr.3d 565 (individual issues prevailed when many of the class members may have received information explaining the allegedly concealed fact); Kaldenbach v. Mutual of Omaha Life Ins. Co., 100 Cal.Rptr.3d 637, 651-652 (Cal. Ct. App. 2009) (whether alleged misrepresentations were "likely to deceive" not subject to common proof where evidence indicated that insurance policies were sold by independent insurance agents who were not required to adhere to a scripted sales presentation). See also Stearns v. Ticketmaster Corp., 695 F.3d 1013, 1020 (9th Cir. 2011) (warning that predominance may be lacking in California UCL claims where no cohesion among class members exists "because they were exposed to quite disparate information from various representatives of the defendant.").
Finally, a UCL class action cannot proceed if the question of materiality is not subject to common proof. Id. at 906. A misrepresentation is "material" if "a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question." Id. Quoting Kwikset Corp. v. Superior Court 246 P.3d 877 (Cal. 2011).
In the instant case, plaintiff cannot establish conduct that was "likely to deceive" on a class-wide basis because uniformity is lacking and materiality is not subject to common proof.
Plaintiff contends that uniformity is present because putative class members were allegedly exposed to the same fraudulent advertisements (Doc. 58 pp. 22-24). However, as discussed in section V.B., supra, determining whether putative class members were actually exposed to the complained of advertisements will require individual plaintiff-specific inquiries. Plaintiff's uniformity argument is also problematic because it ignores the fact that YAZ is available only by prescription.
Finally, even assuming putative class members and their prescribing physicians were exposed to the same alleged misrepresentations or omissions, the varied information conveyed by each prescribing physician to putative class members prevents a finding of uniformity.
Considering the individual questions that will be necessary to establish actual exposure, the failure to establish that prescribing physicians were exposed to the same alleged misrepresentations or omissions, and the disparate information conveyed by prescribing physicians during the prescription drug process, the Court finds that uniformity is lacking and that the "likely to deceive" standard is not subject to common proof.
With regard to materiality, a number of patient-specific factors influence the decision to take and selection of an oral contraceptive. Further, in comparison to fraudulent advertising involving serious health risks or a product's legality, the subject of the allegedly false advertising campaign at issue in this case may not have been material to a large number of the putative class members. Without class-wide materiality, a presumption that the alleged misconduct was "likely to deceive" is not appropriate.
Although absent class members do not need to meet standing requirements in order for a class to be certified, they still have to be entitled to restitution or injunctive relief in order to be included in the class. Pfizer Inc. v. Superior Court, 105 Cal.Rptr.3d 795, 802-804 (Cal. Ct. App. 2010). Restitutionary relief is available "as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition." Tobacco II, 207 P.3d at p. 34; § 17203 (emphasis added).
In Tobacco II, the California Supreme Court considered the "may have been acquired" standard for the purpose of evaluating the scope and application of the "as a result of" standard in the UCL's standing requirement. The court found that the "may have been acquired" standard is "patently less stringent" than the "as a result of" standard. Tobacco II, 207 P.3d at 35. The court also explained that the less stringent "may have been acquired" standard "has led courts [including the California Supreme Court] repeatedly and consistently to hold that relief under the UCL is available without individualized proof of deception, reliance and injury."
Considering the above, it is evident that establishing entitlement to restitution under the UCL and FAL (1) requires something less than "as a result of" causation and (2) does not require a showing of reliance.
California Appellate Courts consistently hold that plaintiffs who were not exposed to the allegedly fraudulent business practice cannot meet the "may have been acquired" standard. See e.g., Pfizer, 105 Cal. Rptr. 3d at 804. See also e.g., Davis-Miller v. Automobile Club of Southern Ca., 134 Cal.Rptr.3d 551, 564-565 (Cal. Ct. App. 2011); Sevidal v. Target Corp., 117 Cal.Rptr.3d 66, 82-83 (Cal. Ct. App. 2010); Cohen v. DIRECTV, INC., SUPRA, 101 Cal.Rptr.3d 37, 47-48 (Cal. Ct. App. 2009). The basis for concluding that such plaintiffs cannot meet the "may have been acquired" standard is that "there is absolutely no likelihood they were deceived by the alleged false or misleading advertising or promotional campaign." Pfizer, Inc. v. Superior Court, 105 Cal.Rptr.3d 795, 804 (Cal. Ct. App. 2010).
California courts have held that "in order to obtain class wide restitution under the UCL, plaintiffs must establish not only a misrepresentation that was likely to deceive but the existence of a `measurable amount' of restitution supported by the evidence." In re Vioxx Cases 103 Cal.Rptr.3d 83, 100-101 (Cal. Ct. App. 2009) ("Vioxx") (emphasis added).
Defendant contends that the proper measure of restitution is the difference between what the plaintiff paid and the value of what the plaintiff received. Defendant further contends that establishing the value of what was received will require identification of a viable comparator drug. If defendant's proposed measure of restitution applies, establishing the existence of a measurable amount of restitution would require identification of a viable, less-expensive comparator drug or drugs for plaintiff and the putative class members. See Vioxx, 103 Cal. Rptr. 3d at 96, 100-101. Plaintiff contends that the proper measure of restitution is the full purchase price (what plaintiff refers to as "restitutionary disgorgement"). Under plaintiff's proposal, there is no need to value what was received; the mere purchase of YAZ by plaintiff and putative class members would sufficiently establish the existence of a measurable amount of restitution.
In the instant case, plaintiff alleges that she (and the putative class members) purchased YAZ instead of a cheaper equally effective oral contraceptive because of the allegedly deceptive advertising campaign. Plaintiff's allegations put valuation at issue. See In re Steroid Hormone Product Cases, 104 Cal.Rptr.3d 329, 340-341 (Cal. Ct. App. 2010) (noting that unlike Vioxx, where plaintiffs alleged they paid more for the product than it was worth, valuation was not in issue because plaintiffs alleged they would not have purchased the product at all had they known it contained illegal ingredients). See also Vioxx, 103 Cal. Rptr. 3d at 96, 100-101. Considering the plaintiff's allegations, the Court agrees that the proper measure of restitution would be the difference between what the plaintiff paid and the value of what the plaintiff received. See In re Steroid Hormone Product Cases, 104 Cal. Rptr. 3d at 340-341; Vioxx, 103 Cal. Rptr. 3d at 96, 100-101. See also Cortez v. Purolator Air Filtration Products Co., 999 P.2d 706, 713 (Cal. 2000) (describing restitution as "the return of the excess of what the plaintiff gave the defendant over the value of what the plaintiff received"); Colgan v. Leatherman Tool Group, Inc., 38 Cal.Rptr.3d 36, 58-63 (discussing restitution under the UCL and FAL) (Cal. Ct. App. 2006).
Here, establishing a value for YAZ will require identification of a viable comparator drug or drugs for the plaintiff and putative class members. To the extent that such valuation is necessary, plaintiff contends that any generic oral contraceptive will suffice. Plaintiff, however, does not bother to identify an appropriate generic oral contraceptive or to fully develop this argument.
For the reasons discussed above, individual issues predominate rendering class treatment inappropriate.
Plaintiff's fraudulent concealment claims and CLRA claims are substantially similar to her UCL and FAL claims. However, unlike the UCL and FAL, these claims require a showing of reliance.
Under California law, reliance may be inferred on a class wide basis when the allegations demonstrate that the alleged misrepresentations were both uniform and material. See Vioxx, 103 Cal. Rptr. 3d at 97-99 (causation may be #2434 inferred where representation was material); Mirkin v. Wasserman, 858 P.2d 568, 575 (Cal. 1993) ("What we did hold was that, when the same material misrepresentations have actually been communicated to each member of a class, an inference of reliance arises as to the entire class.") (emphasis in original); Vasquez v. Superior Court, 94 Cal.Rptr. 796 (Cal. 1971) (inference permitted upon showing of uniform material misrepresentation made directly to each class member). "A misrepresentation is judged to be `material' if `a reasonable [person] would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question.' ..." Engalla v. Permanente Medical Group, Inc., 15 Cal.4th 843, 977 (Cal. 1997). See also Mass. Mutual Life Ins., 119 Cal.Rptr.2d 190, 197 (Cal. Ct. App. 2002) ("A misrepresentation of fact is material if it induced the plaintiff to alter his position to his detriment. Stated in terms of reliance, materiality means that without the misrepresentation, the plaintiff would not have acted as he did."). "[I]f the issue of materiality or reliance is a matter that would vary from consumer to consumer, the issue is not subject to common proof, and the action is properly not certified as a class action." Vioxx, 103 Cal. Rptr. 3d at 93.
For the reasons discussed in section V.D.2.b.iii., supra, the requirement of uniformity is not met. In addition, for many of the same reasons discussed in section V.D.2.b.iii., supra, the record does not permit an inference of materiality as to the entire class. With regard to materiality, the Court finds two California Appellate Court decisions addressing CLRA claims to be instructive: (1) In re Vioxx Class Cases 103 Cal.Rptr.3d 83 (Cal. Ct. App. 2009) and (2) Brown v. Regents of University of California, 198 Cal.Rptr. 916 (Cal. Ct. App. 1984).
In Vioxx, the California Appellate Court found that CLRA claims relating to a failure to disclose risks associated with use of the prescription drug Vioxx were not subject to common proof because consumers differ in what they consider material.
In Brown, a class action was brought for fraud based on the claim that surgeons failed to disclose morbidity and mortality statistics for elective heart surgery. With regard to the question of materiality, the California Appellate Court held that class treatment was not appropriate considering (among other things) the wide variety of facts that influence a patient's decision to consent to surgery:
Brown, 198 Cal. Rptr. at 990.
Here, just as in Vioxx and Brown, a number of patient-specific factors influence the decision to select and take an oral contraceptive. Further, as defendants note, a number of consumers would have attached little or no weight to the allegedly fraudulent representations and omissions, including (1) women who did not suffer from PMS or premenstrual symptoms not severe enough to warrant a diagnosis of PMDD; (2) women who take an oral contraceptive for the sole purpose of birth control; (3) women who took YAZ based solely on their prescribing physician's independent medical judgment (notably plaintiff does not contend that the complained of advertisements deceived physicians); and (4) women who knew that YAZ was not approved for or proven effective in treating PMS or premenstrual symptoms not severe enough to warrant a diagnosis of PMDD. Considering the above, it is evident that materiality would differ from consumer to consumer and therefore an inference of reliance is not appropriate.
Without a presumption of reliance, plaintiff's CLRA and fraudulent concealment claims will require an individualized person-by-person evaluation of numerous issues including (1) whether the putative class members were exposed to accurate information and/or knew that YAZ was not approved for or proven effective in treating PMS or premenstrual symptoms severe enough to warrant a diagnosis of PMDD; (2) the potential class members' understanding of the complained of advertisements; and (3) the potential class members' medical history and reasons for taking YAZ.
Thus, in the instant case it is evident that individual issues predominate over common issues. See Clark v. Experian Information Solutions, Inc. 256 Fed. Appx. 818 (7th Cir. 2007);
A class is overly broad and should not be certified if it includes a great many persons who could not have been injured by the defendant's conduct. Kohen v. Pacific Inv. Management Co. LLC, 571 F.3d 672, 677-678 (7th Cir. 2009). When actual deception is required, class members who knew the truth could not have been injured by the defendant's conduct. See Oshana, 472 F.3d 506, 513-514. Here, the putative class indisputably includes women who did not rely on and were not deceived by the alleged omission. This includes women who (1) were told by their healthcare provider that YAZ was not indicated to treat PMS or pre-menstrual symptoms and (2) who were exposed to and understood YAZ literature or other advertisements stating that YAZ was not indicated to treat PMS or pre-menstrual symptoms. These women took YAZ even though it was not approved for or proven effective in treating PMS or pre-menstrual symptoms not severe enough to warrant a diagnosis of PMDD. Accordingly, with respect to plaintiff's CLRA and fraudulent concealment claims, the putative class is overly broad.
The putative class is also overly broad with regard to plaintiff's UCL and FAL claims. As discussed in section V.D.2.b.iv., supra, the putative class includes a great many women for whom the subject of the allegedly false advertising campaign was not material. Plaintiff contends that because a large percentage of women suffer from PMS or premenstrual symptoms, the alleged misrepresentations and/or omissions were necessarily material. However, the record indicates that a majority of women who suffer from PMS or premenstrual symptoms feel that their symptoms are relatively mild and do not require medical teatment. See section II.A., supra. This defeats the contention that a majority of putative class members would find representations pertaining to the treatment of PMS or premenstrual symptoms to be material.
Having considered the parties briefs and the relevant authority the Court finds that plaintiff cannot meet all of the requirements of Class Certification. Accordingly, for the reasons discussed herein, the Court
(Doc. 58 p. 8).
Kwikset, at 890. As an example, the Court explained that "[n]onkosher meat might taste and in every respect be nutritionally identical to kosher meat, but to an observant Jew who keeps kosher, the former would be worthless." Id.
