Newman v. Bayer Corp.

695 F.Supp.3d 469

Tanysha NEWMAN, individually and on behalf of all others similarly situated, Plaintiff, v. BAYER CORPORATION and Bayer Healthcare LLC, Defendants.

No. 22-CV-7087 (KMK)

United States District Court, S.D. New York

Signed September 28, 2023

Max S. Roberts, Esq., Bursor & Fisher P.A., New York, NY, Counsel for Plaintiff.

Eamon P. Joyce, Esq., Madeleine Joseph, Esq., Sidley Austin LLP, New York, NY & Washington D.C., Counsel for Defendants.

Katherine Yarger, Esq., Lehotsky Keller LLP, Aurora, CO, Counsel for Defendants.

OPINION & ORDER

KENNETH M. KARAS, United States District Judge:

Plaintiff Tanysha Newman ("Plaintiff") brings this putative class action against Bayer Corporation and Bayer Healthcare, LLC (collectively, "Bayer" or "Defendants"), alleging that the labeling on Defendants' "gummy" or "chewable" line of One A Day supplements is deceptive and misleading. (See generally Compl. (Dkt. No. 1).) Plaintiff brings claims for damages against Defendants for (1) common law breach of express warranty; (2) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301, et seq., (3) violations of §§ 349 and 350 of the New York General Business Law ("GBL"), N.Y. Gen. Bus. Law §§ 349, 350; and (4) common law fraud. (See id. ¶¶ 42-78.) Before the Court is Defendants' Motion To Dismiss the Complaint (the "Motion"). (See Not. of Mot. (Dkt. No. 19).) For the foregoing reasons, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are drawn from the Complaint and are assumed to be true for the purposes of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).

Defendant Bayer Corporation is an Indiana corporation and Defendant Bayer HealthCare LLC is a Delaware limited liability company, both with headquarters in Whippany, New Jersey. (Compl. ¶¶ 10-11.) Included in Defendants' product lines is a line of vitamin supplements under the "One A Day" brand. (See id. ¶ 1-2.) As relevant to the instant Action, "Defendants' claim behind their One A Day line of supplements is that consumers need only consume one supplement per day to get the full nutritional benefit." (Id. ¶ 1.) However, Plaintiff alleges that "[w]hile this may be true for Defendants' capsule supplements, it is not true for their 'gummies' or chewable line of One A Day supplements . . . which require the consumer to take two or more supplements per day to get the full nutritional benefit." (Id.; see also id. ¶ 27 (providing a representative image of a gummies bottle ingredient label).)

Plaintiff alleges that the Product's advertisements are false and misleading because, by labeling the chewables as "One A Day," consumers are "mislead into believing that they only need to take one Chewable per day to receive the full nutritional value when they actually have to take two or more," which means that the Product purchased by consumers "last[s] half as long as advertised." (Id. ¶ 2.) Specifically, Plaintiff alleges that the Product front label packaging "prominently advertise[s] the number of gummies contained in each bottle" which, when combined with the "One A Day" representation, "sends the message that the bottle will provide the full nutritional benefit for the same number of days as there are gummies in the bottle." (Id. ¶ 3; see also id. ¶¶ 20-23.)

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(Id. ¶ 19.) Moreover, Plaintiff alleges that Defendants "communicate[ ] the same substantive message throughout their advertising and marketing for the supplements, including on the bottle itself and on the front of the supplements' packaging" which means that consumers have been repeatedly "exposed" to this advertising message. (Id. ¶ 4; see also id. ¶ 29 (stating that "[t]his message has been made and repeated across a variety of media, including on Defendants' websites [and] in online promotional materials").) Plaintiff identifies eleven chewable supplement products distributed by Defendants that contain the alleged false and misleading marketing. (Id. ¶ 18.)

In or about December 2021, Plaintiff purchased two varieties of Defendants' chewable products: (1) One A Day Multi+ Hair, Skin & Nails and (2) One A Day Women's Key Vital Function VitaCraves from a Target, Walmart, and Dollar General in New York. (Id. ¶ 9.) Plaintiff alleges that she "relied on [the] representations and warranties in determining whether to purchase the Chewables" and reasonably believed that she only had to take one chewable per day to achieve the full nutritional value. (Id.) "Had [Plaintiff] known that, contrary to Defendants' representations, she needed to take two or more gummies to receive the nutritional value of the Chewables, [Plaintiff] either would not have purchased the Chewables or would have paid substantially less for them." (Id.)

B. Procedural History

Plaintiff filed her initial Complaint on August 19, 2022. (See Compl.) On September 29, 2022, Defendants filed a pre-motion letter in anticipation of filing a motion to dismiss the Complaint. (See Dkt. No. 14.) Following Plaintiff's response to Defendant's pre-motion letter, (see Dkt. No. 15), the Court held a pre-motion conference on November 14, 2022 and set a briefing schedule, (see Dkt. (minute entry for November 14, 2022); Order (Dkt. No. 18)).

Pursuant to the briefing schedule, Defendants filed the instant Motion on December 15, 2022. (See Not. of Mot.; Mem. of Law in Supp. of Mot. To Dismiss ("Defs' Mem.") (Dkt. No. 20); Decl. of Eamon P. Joyce in Supp. of Mot. ("Joyce Decl.") (Dkt. No. 21).) Plaintiff filed her Opposition on January 17, 2023, (see Mem. of Law in Opp'n to Mot. To Dismiss ("Pl.'s Mem.") (Dkt. No. 22)), and Defendants filed their Reply on January 31, 2023, (see Def's Reply Mem. of Law in Supp. of Mot. To Dismiss ("Defs' Reply") (Dkt. No. 23)). Defendants also filed a notice of supplemental authority on June 21, 2023. (See Dkt. No. 25.)

II. Discussion

A. Standard of Review

Defendants moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot.) The Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a Rule 12(b)(6) motion to dismiss, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (alteration and quotation marks omitted). Rather, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, 127 S.Ct. 1955, and a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face," id. at 570, 127 S.Ct. 1955, if a plaintiff has not "nudged [his] claim[ ] across the line from conceivable to plausible, the[ ] complaint must be dismissed," id.; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ("Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.' " (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678-79, 129 S.Ct. 1937. ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").

"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), and "draw all reasonable inferences in the plaintiff's favor," Division 1181, 9 F.4th at 95 (citation omitted). Additionally, "when ruling on a Rule 12(b)(6) motion to dismiss," district courts are directed to confine their consideration to "the complaint in its entirety, . . . documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (quotation marks omitted); see also Dashnau v. Unilever Mfg. (US), Inc., 529 F. Supp. 3d 235, 240 (S.D.N.Y. 2021) (same).

Finally, fraud claims—including common law fraud claims—are subject to the heightened pleading standard set forth in Rule 9(b). See Matana v. Merkin, 957 F. Supp. 2d 473, 484 (S.D.N.Y. 2013) ("[A] claim for common law fraud under New York law must satisfy the requirements of the heightened pleading standard under Federal Rule of Civil Procedure 9(b)." (collecting cases)). Rule 9(b) provides: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b). However, courts "must not mistake the relaxation of Rule 9(b)'s specificity requirement regarding condition of mind for a license to base claims of fraud on speculation and conclusory...