Here's another wonderful opinion by Justice Bedsworth.
On the merits, he's very clear that he's going out on a limb. He knows that two federal cases have dismissed the exact claims at issue here at the pleading stage. But he thinks those cases are wrong.
And his opinion does an exceptionally fine job of explaining why.
I'll forthrightly concede that I'm a member of this putative class, which involves Bayer's "One-A-Day" gummy vitamins. Notice that the very name says "One-A-Day". But you've got to read the exceptionally small fine print to learn that "one-a-day" actually means "you gotta take two".
Hence the lawsuit. Hence the Court of Appeal's reversal of the trial court's dismissal of the suit.
While we're in the habit of forthright admissions, let me make another. I take two. 'Cause I read the thing and know you're supposed to. Plus, what's the harm? It's not like I'm taking 100 a day. I figure I can use the extra vitamins anyway. And I can probably afford the "double dose" -- even on a mere professor's salary -- anyway, on the off chance I'm actually taking more.
But Justice Bedsworth nonetheless seems right to me. That some people might be like me doesn't necessarily mean that others don't rely on the label and, indeed, take on a day. At the pleading stage, to be sure, I find it eminently plausible that some people are indeed confused by (and/or rely on) the prominent name and label "One-A-Day".
Now, given that different people may react differently, I do wonder whether Justice Bedsworth's opinion might serve to revive the case only to eventually kill it. Because if he's right that people are different, then maybe this case can't be a class action. I'm confident that Bayer's lawyers are going to use this reasoning at length in opposition to a motion to certify. And if it isn't a class action, it's not anything at all; no one's going to sue individually over the $10 (or whatever) they lost on these things.
But, admittedly, that's for another day. And on my end, I'm loathe to let companies get away with false advertising that effectively deceives a segment of the public merely because other members of the public smartly read the fine print. But that might just be me. People have strong views pro and con in this regard about class actions.
In any event, for now, the case survives. And stands for the proposition that you can't call something one a day when you actually gotta double it up.
