Thursday, April 23, 2026
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Panel: Class Properly Certified Despite Protest That Nearly All Members of It Are Uninjured
Ninth Circuit Says Consumers on Whose Behalf Suit Was Brought Are Alleged to Have Been Exposed to Misrepresentations on Label and, in Reliance, Paid Premium Price
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, has affirmed an order certifying a statewide class in a lawsuit against Bayer Healthcare LLC under California’s Consumers Legal Remedy Act, with the majority rejecting the defendant’s contention that the District Court erred because nearly every person on whose behalf the suit was brought is uninjured.
Judge Michael M. Anello of the Southern District of California certified two classes: persons who purchased one of four varieties of Bayer’s One a Day-brand “Natural Fruit Bites” in California and those who bought the chewable vitamins in New York. All three members of the panel approved certification of a class comprised of New York consumers, under a statute of that state.
Named plaintiff Deborah Bowling, of Riverside County, California, bought a bottle of the vitamins in Los Angeles County, while plaintiff Doniece Drake Aiello made her purchase of the product in Queens, New York where she resides. .
The majority’s memorandum opinion, signed by Circuit Judges Morgan Christen and Milan D. Smith Jr., says there is adequately pled an alleged injury to class members in both states in the form of purchasers having been exposed to a misrepresentation as to the product being “natural” and thus having willing paid a premium price. Circuit Judge Danielle J. Forrest argued in a partial dissent that requisites of the California law are not met.
Bowling and Drake contend that the product is not entirely “natural.” Bayer insists that it is 98% natural—the main ingredient being apples—and that “the only synthetic ingressions were the micronutrients” and its “research showed that consumers do not care about synthetic micronutrients.”
2022 Case Cited
Certification of a class is barred, the manufacturer argues in its opening brief on appeal, by the Ninth Circuit’s 2022 en banc decision in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC. Writing for the majority on that case, Judge Sandra S. Ikuta, now deceased, declared in a footnote, quoting an earlier decision:
“When ‘a class is defined so broadly as to include a great number of members who for some reason could not have been harmed by the defendant’s allegedly unlawful conduct, the class is defined too broadly to permit certification.’ ”
Bayer commented that the class in the action brought by Drake and Bowling “by far” exceeds a “great number” of uninjured persons, maintaining:
“[V]irtually all class members are uninjured, according to Plaintiffs’ own evidence. Plaintiffs claim that the word ‘Natural’ on the label for Bayer’s Natural Fruit Bites multi-vitamins was misleading. But Plaintiffs’ own expert testified repeatedly she had ‘no evidence’ the word ‘natural’ deceived any consumers as to the types of ingredients in the product.’…(emphasis added).”
The defendant pointed to Federal Rules of Civil Procedure, rule 23(b)(3), which conditions certification of a class on a finding that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” It said:
“Indeed, Plaintiffs adduced no evidence of classwide injury. A class cannot be certified when there is no evidence that the class was injured. Whatever Olean’s outer bounds may be, neither Rule 23(b)(3) nor the Constitution permits certification of classes composed virtually entirely of uninjured class members.”
False Labeling
The Ninth Circuit panel’s majority responded:
“We disagree. Plaintiffs’ theory is premised on the notion that all class members were exposed to an alleged misrepresentation on the label of the product they purchased. Accordingly, the injury in this case is that the putative classes paid ‘an inflated premium price’ for Bayer’s Natural Fruit Bites products. Under Plaintiffs’ theory of injury, the presence or absence of a price premium is an objective, reasonable consumer inquiry. Thus, either all class members were injured or they were not. Contrary to Bayer’s assertions, that is entirely consistent with this court’s reasoning in Olean.”
The judges said the question is whether the plaintiffs “can establish whether the putative classes in fact paid a premium price for the product,” observing:
“The answer to that question would necessarily apply classwide….That is all that Rule 23(b)(3) requires of Plaintiffs at this stage, and the district court did not abuse its discretion in holding the same.” They added:“Plaintiffs also met their burden with respect to typicality and adequacy. Both named Plaintiffs testified that they purchased Natural Fruit Bites products and did so because they believed them to be natural. At the class certification stage, the district court properly considered testimony consistent with Plaintiffs” theory of injury to determine that the interests of the named Plaintiffs aligned with the interests of each putative class.”
Forrest said in her partial dissent:
“I agree with the majority that the district court did not abuse its discretion in finding that common questions of law or fact predominate as to Plaintiffs” claim under the New York General Business law….But I disagree that common questions of law or fact predominate regarding Plaintiffs’ California Consumers Legal Remedy Act (CLRA) claim. Because Plaintiffs advance a price-premium injury theory to successfully bring a CLRA class claim they must demonstrate that all (or, perhaps, nearly all) members of the class relied on the alleged misrepresentation.”
She continued:
“Here, Defendant Bayer Healthcare LLC…can point to undisputed evidence that a substantial proportion of class members was not misled, rebutting the inference of reliance. .And because there is not classwide causation, neither is there classwide injury. Thus, the district court abused its discretion, and I would reverse certification of the California class.”
The jurist said that a survey produced by plaintiffs “may show that all class members suffered a factual injury in the sense that they were all charged a price premium and overpaid” but added that “because the CLRA requires reliance, only those class members who relied on the misrepresentation have suffered a legally cognizable injury.”
The case is Drake v. Bayer Healthcare LLC, 24-7158.
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