In a significant ruling for consumer protection cases relying on survey evidence, the U.S. District Court for the Southern District of New York denied Bayer’s motion for partial summary judgment and class decertification in Newman v. Bayer Corporation. The decision allows the case to proceed on a certified class basis and reaffirms that well-designed consumer surveys can play a central role in establishing deception and injury under New York General Business Law § 349, a statute that broadly protects consumers from deceptive business practices.
At issue is Bayer’s “One A Day” labeling for gummy vitamins, which allegedly misleads consumers into believing a single gummy constitutes a full daily serving, when in reality, the stated serving size requires two gummies to be consumed. In support of class certification and opposition to summary judgment, the plaintiff relied on survey evidence designed and conducted by Applied Marketing Science, Inc. (AMS) Testifying Survey Expert Robert L. Klein, which demonstrated that a meaningful portion of consumers were misled by the “One A Day” labeling.
The court credited the plaintiff’s evidence showing that Bayer’s labeling could create consumer confusion and support a price premium theory of injury. Importantly, the court emphasized that such injury may be established on a class-wide basis, rejecting Bayer’s argument that individualized proof was required.
This decision underscores the growing judicial acceptance of rigorously designed survey research in consumer litigation, particularly where the survey is used to measure consumer understanding and support a price premium theory. The court’s analysis reinforces that:
- A well-executed survey can provide compelling, class-wide evidence of consumer confusion
- Price premium theories remain a legally valid path to establishing injury under § 349
- Defendants face a high bar in seeking summary judgment where credible survey evidence supports plaintiffs’ claims
For survey experts and class action attorneys, the ruling serves as a strong endorsement of survey-based methodologies, like those employed by Klein, and highlights their continued importance in complex consumer class actions.
AMS has been involved in dozens of class action studies where surveys have been used in support of class certification and settlement. To learn more about AMS Litigation Support services, surveys for class action litigation matters, or settlement report services, please contact Patty Yanes.