Drake v. Bayer Healthcare LLC

── Drake v. Bayer Healthcare LLC ── Court: Court of Appeals for the Ninth Circuit Date: April 21, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DONIECE DRAKE; DEBORAH No. 24-7158 BOWLING, D.C. No. 3:22-cv-01085-MMA-JLB Plaintiffs - Appellees, MEMORANDUM* v. BAYER HEALTHCARE LLC, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding Argued and Submitted December 10, 2025 Pasadena, California Before: M. SMITH, CHRISTEN, and FORREST, Circuit Judges. Partial Dissent by JUDGE FORREST. Bayer Healthcare LLC (Bayer) appeals the district court’s order certifying California and New York classes bringing product mislabeling claims under the California Consumers Legal Remedy Act (CLRA), Cal. Civ. Code §§ 1750–1784, and the New York General Business Law (GBL), N.Y. Gen. Bus. Law, §§ 349, 350. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We have jurisdiction pursuant to 28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f). “We review the decision to certify a class . . . for an abuse of discretion.” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 663 (9th Cir. 2022) (en banc). “We review the district court’s determination of underlying legal questions de novo, and its determination of underlying factual questions for clear error.” Id. (citation omitted). Because the parties are familiar with the facts of this case, we do not recount them here except as necessary to provide context for our ruling. We affirm. 1. The district court did not abuse its discretion in finding that common questions of law or fact “predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). The CLRA makes “unlawful a variety of ‘unfair methods of competition and unfair or deceptive acts or practices’ used in the sale or lease of goods or services to a consumer.” Bower v. AT&T Mobility, LLC, 196 Cal. App. 4th 1545, 1556 (Cal. Ct. App. 2011) (quoting Cal. Civ. Code § 1770(a)). To state a CLRA claim, a plaintiff must show that the defendant engaged in deceptive conduct and that the deception caused the plaintiff harm. Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1022 (9th Cir. 2011); accord In re Vioxx Class Cases, 103 Cal. Rptr. 3d 83, 94 (Cal. Ct. App. 2009). Under the CLRA, a class may establish causation on a classwide basis by evidence of materiality: “If the trial court finds that material misrepresentations have been made to the entire class, an 2 24-7158 inference of reliance arises as to the class.” Noohi v. Johnson & Johnson Consumer Inc., 146 F.4th 854, 868 (9th Cir. 2025) (citation modified). The relevant sections of the GBL prohibit “[d]eceptive acts or practices in the conduct of any business, trade or commerce” or in the furnishing of any service and false advertising. Montera v. Premier Nutrition Corp., 111 F.4th 1018, 1028 (9th Cir. 2024) (alteration in original) (quoting N.Y. Gen. Bus. Law §§ 349, 350) (citation modified). To succeed on a claim under the relevant sections of the GBL, “the plaintiff must show that the defendant ‘engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as