A bronze statue of Lady Justice holding scales is displayed indoors.
NEW YORK – A federal judge won’t derail a class action lawsuit against the maker of One A Day supplements, which was sued because the daily serving size is actually two.
Backed by a study showing consumer confusion, plaintiff lawyers at Bursor & Fisher fended off Bayer Corporation’s request to have their class action decertified. Bayer’s motion for judgment on absent class members was also denied last week by Judge Vincent Briccetti, of the Southern District of New York.
Bayer argued that some in the certified class of consumers might have read the two-a-day specification on the nutrition label and would lack standing to be compensated. Mini-trials to determine whether each class member was harmed would be both necessary and impossible, it said.
“However, Defendants have identified no authority – nor is the Court aware of any – suggesting absent class members lack standing if they paid a price premium but were not misled,” Briccetti wrote.
“Further, courts in this circuit have routinely held a customer is injured if they paid a price premium even if they did not rely on the deceptive statement.”
The case was filed in 2022 and alleges customers would not have paid as much as they did for One A Day gummies had they’d known they actually needed to eat two to receive full nutritional benefit.
Plaintiffs expert Robert Klein conducted research that concluded nearly 29% of those who saw a package with the One A Day brand name believed one gummy each day was enough. However, on packaging only with the VitaCraves brand name, less than 2% were confused.
A class was certified – a major boost for lawyers pushing the case – over Bayer’s objections. Citing cases against Whole Foods and others, Briccetti wrote that overpaying for a product is a “particularized and concrete injury” that establishes standing for a legal claim.
“Bayer placed an emphasis on the one pill per day message in other product lines and knew consumers were confused about two-pill dosing,” Briccetti wrote. “Yet, Bayer still did not prominently disclose the serving size on the product label, which a rational jury could tie to the charging of a price premium.”
Judge Kenneth Karas certified the class and concluded that all consumers would have the same injury and would not need to show they relied on the allegedly deceptive label when making their purchases.
The claims aren’t as complex as a wage-and-hours dispute, in which each worker would have to show the amount of time they weren’t paid, Briccetti wrote. Though Bayer argued individual questions from class members made certification improper, the judge refused to reverse it.
“In this Circuit, ascertainability does not require that class members can be identified without extensive and individualized fact-finding or mini trials,” he wrote. A status conference is scheduled for June 10.
