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Dianne Gray v. Bayer Corporation

July 21, 2011

DIANNE GRAY, PLAINTIFF,
v.
BAYER CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Linares, District Judge.

NOT FOR PUBLICATION

OPINION

This matter comes before the Court by way of a motion to certify a class pursuant to Federal Rule of Civil Procedure 23 filed by Plaintiff on May 13, 2011.*fn1 The Court has considered the submissions of the parties in support of and in opposition to the present motion and decides the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, Plaintiff's motion is denied.

I. BACKGROUND

Defendants Bayer Corporation and Bayer Healthcare, LLC (collectively, "Bayer") develop and market "One-A-Day" vitamins. This case involves a particular One-A-Day vitamin, "One-A-Day WeightSmart," which Bayer indicates is "designed to provide nutrients to consumers watching their weight during diet and exercise." (Defs.' Class Cert. Opp'n Br. ["Defs.' Opp'n Br."] at 3.) Plaintiff alleges that the packaging of One-A-Day WeightSmart falsely claims that the vitamin enhances a user's metabolism by way of an ingredient called "EGCG." (Mem. of Law in Supp. of Pl.'s Mot. for Class Cert. ["Pl.'s Opening Br."] at 2.)

On September 22, 2008, Plaintiff Dianne Gray filed a Complaint against Bayer alleging claims based on unjust enrichment, intentional and negligent misrepresentation, and the New Jersey Consumer Fraud Act (NJCFA), N.J.S.A. 56:8-1, et seq., seeking to certify a class of purchasers of One-A-Day WeightSmart. On June 8, 2009, this Court dismissed Plaintiff Gray's unjust enrichment claims with prejudice and dismissed her other claims without prejudice. (Docket Entry No. 14.) On August 17, 2010, an Amended Complaint was filed alleging NJCFA claims and intentional and negligent misrepresentation claims against Bayer and substituting Plaintiff Gabriel Joseph Carrera for Ms. Gray as the putative class representative. (Docket Entry No. 53.) On May 13, 2011, Plaintiff Carrera filed the instant motion for class certification.

II. LEGAL STANDARD

"Class certification is proper only 'if the trial court is satisfied, after a rigorous analysis, that the prerequisites' of Rule 23 are met." In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 2008) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)); see Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). To meet the prerequisites of Rule 23, a plaintiff must establish both that the four requirements of Rule 23(a) have been met-numerosity, commonality, typicality, and adequacy-and that the requirements of Rule 23(b)(1), (2), or (3) have been met. Fed. R. Civ. P. 23; see also Hydrogen Peroxide, 552 F.3d at 309 n.6. The plaintiff bears the burden of proof by a preponderance of the evidence. Hydrogen Peroxide, 552 F.3d at 320. Here, Plaintiff moves for class certification under Rule 23(b)(3). Rule 23(b)(3) requires that a plaintiff establish "that the questions of law or fact common to the class members predominate over any questions affecting only individual members [ (predominance) ], and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy [ (superiority) ]." Fed. R. Civ. P. 23(b)(3); see also Hydrogen Peroxide, 552 F.3d at 310.

In analyzing whether the requirements of Rule 23 have been met, "the district court must make whatever factual and legal inquiries are necessary and must consider all relevant evidence and arguments presented by the parties." Hydrogen Peroxide, 552 F.3d at 307. This is true even if the class certification inquiry overlaps with the merits of the causes of action. Id. Additionally, if there is any doubt as to whether the Rule 23 requirements have been met, certification should be denied, regardless of the area of substantive law. Id. at 321 (discussing the 2003 Amendments to Rule 23).

III. DISCUSSION

Plaintiff moves to certify a nationwide class under Rule 23(b)(3) of "all consumers who purchased One-A-Day WeightSmart in the United States." (Pl.'s Opening Br. at 1.) Plaintiff argues that this nationwide class action should be governed by New Jersey law under the NJCFA. Plaintiff alternatively moves to certify a statewide class under Rule 23(b)(3) of all consumers who purchased One-A-Day WeightSmart in the State of Florida, asserting claims under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. Ann. 501.201, et seq. (Id. at 1 n.1.) The Court begins by examining Plaintiff's proposed nationwide class under the NJCFA.

A. Choice of Law

As Plaintiff's proposed nationwide class calls for the application of state law, the Court first looks to determine which state's law governs Plaintiff's claims. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-23 (1985) ("Prospective class members have a due process right to have their claims governed by the state law applicable to their dispute."). In the Third Circuit, a court "must apply an individualized choice of law analysis to each of plaintiff's claims." Georgine v. Amchem Products, Inc., 83 F.3d 610, 627 (3d Cir. 1996) (citing Phillips, 472 U.S. at 823). A federal court sitting in diversity jurisdiction must apply the forum state's choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Warriner v. Stanton, 475 F.3d 497, 499--500 (3d Cir. 2007). New Jersey's choice of law analysis is a two step process. First, a court must determine if an actual conflict of law exists. See P.V. ex rel. T.V. v. Camp Jaycee, 962 A.2d 453, 460 (N.J. 2008); Lebegern v. Forman, 471 F.3d 424, 430 (3d Cir. 2006). Once it has been determined that a conflict exists, the court must then determine which state has the "most significant relationship" to the claim at issue, as analyzed under the Restatement (Second) of Conflict of Laws. Camp Jaycee, 962 A.2d at 455. This test is applied "on an issue-by-issue basis" and "is qualitative, not quantitative." Id. at 460.

Courts applying New Jersey law hold that § 148 of the Second Restatement provides the relevant guidance as to which state has the "most significant relationship" to a plaintiff's fraud claims.*fn2 See, e.g., Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 462 (D.N.J. 2009); see also Nafar v. Hollywood Tanning Sys., Inc., 339 F. App'x 216, 221 (3d Cir. 2009) (unpublished). Section 148 provides:

(1) When the plaintiff has suffered pecuniary harm on account of his reliance on the defendant's false representations and when the plaintiff's action in reliance took place in the state where the false representations were made and received, the local law of this state determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

(2) When the plaintiff's action in reliance took place in whole or in part in a state other than that where the false representations were made, the forum will consider such of the following contacts, among others, as may be present in the particular case in determining the state which, with respect to the ...


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