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Supreme Court of the United States No. _________ ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- PHARMAVITE LLC, Petitioner, v. NOAH BRADACH, on behalf of himself and all others similarly situated, Respondent. --------------------------------- --------------------------------- On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit --------------------------------- --------------------------------- PETITION FOR WRIT OF CERTIORARI --------------------------------- --------------------------------- DANIEL J. CONNOLLY FAEGRE BAKER DANIELS LLP 2220 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 (612) 940-9453 [email protected] Counsel of Record for Petitioner ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i QUESTIONS PRESENTED 1. Is it a violation of the Supremacy Clause, U.S. CONST. art. VI, cl. 2, for a federal court to certify a class that includes class members asserting state law claims that are expressly preempted by federal statute, where the question of preemption cannot be determined for the class as a whole? 2. Is it a violation of the Supremacy Clause, U.S. CONST. art. VI, cl. 2, for a federal court to certify a class that includes class members asserting state law false labeling claims that are expressly preempted by fed- eral statute, if the federal court does not require indi- vidual inquiry into the interpretation of or reliance on the challenged label to determine whether each mem- ber’s claim is preempted? 3. To avoid violating the Supremacy Clause, U.S. CONST. art. VI, cl. 2, is it necessary to require inquiry into individual class members’ interpretation of or re- liance on a label statement alleged to be false under state law to determine whether each class member’s claims are expressly preempted by federal statute, even if the causation/reliance element of the state claims may be determined on a class-wide basis, with- out individual inquiry into each class member’s reli- ance on the challenged label? ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT The Petitioner is Pharmavite LLC, who was De- fendant-Appellee below. Pharmavite LLC is owned 100% by Otsuka America, Inc. Otsuka America, Inc. is owned 100% by Otsuka Pharmaceutical Co., Ltd., which is owned 100% by Otsuka Holdings Co., Ltd., a public company. The Respondent is Noah Bradach, who was Plain- tiff-Appellant below. Noah Bradach is an individual, and asserts claims on behalf of himself and others sim- ilarly situated. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED ................................ i PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT............................................ ii OPINIONS BELOW ............................................. 1 JURISDICTION ................................................... 1 STATUTORY AND REGULATORY PROVI- SIONS AT ISSUE ............................................. 2 STATEMENT OF THE CASE.............................. 6 REASONS FOR GRANTING THE PETITION ... 11 A. The Supremacy Clause precludes state law claims that are preempted by federal law ............................................................. 12 B. The Supremacy Clause of the U.S. Consti- tution does not permit individuals to re- cover on preempted claims merely because they are absent class members ................. 14 C. Class certification should not be permit- ted in federal court where the issue of preemption cannot be determined on a class-wide basis ......................................... 17 CONCLUSION ..................................................... 21 APPENDIX Appendix A Opinion, U.S. Court of Appeals for the Ninth Cir- cuit Entered May 17, 2018 ................................ App.1 iv TABLE OF CONTENTS – Continued Page Appendix B Order re Renewed Motion for Class Certifica- tion, U.S. District Court, Central District of California, Entered July 6, 2016 ...................... App.9 Appendix C Order re Plaintiff’s Response to Order to Show Cause, U.S. District Court, Central District of California, Entered August 25, 2016 .............. App.27 Appendix D Order re Pharmavite LLC’s Motion for Judg- ment on the Pleadings, U.S. District Court, Central District of California, Entered De- cember 22, 2015 ............................................... App.35 Appendix E Order denying Petitions for Rehearing, U.S. Court of Appeals for the Ninth Circuit En- tered July 10, 2018 .......................................... App.46 v TABLE OF AUTHORITIES Page FEDERAL CASES Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ....................................................................... 17 Cima v. WellPoint Health Networks, Inc., 250 F.R.D. 374 (S.D. Ill. 2008) ........................................ 20 Gallagher v. Bayer AG, 2015 WL 1056480 (N.D. Cal. Mar. 10, 2015) .................................................. 13 Gawry v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 942 (E.D. Ohio 2009) ............................ 20 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ..... 12, 14 Law v. General Motors Corp., 114 F.3d 908 (9th Cir. 1997) ................................................................. 12 Lazaroff v. Blue Cross & Blue Shield of Conn., Inc., 1989 U.S. Dist. LEXIS 19175, 1989 WL 235958 (D.Conn. Jan. 11, 1989) .............................. 20 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 119 L. Ed. 2d 157, 112 S. Ct. 2031 (1992)....... 12 Sellers v. Rushmore Loan Mgmt. Servs., LLC, 2017 U.S. Dist. LEXIS 203736 (M.D. Fla. Dec. 12, 2017) .................................................................. 19 Tait v. BSH Home Appliances Corp., 289 F.R.D. 466 (C.D. Cal. Dec. 20, 2012) ................................... 17 Turek v. General Mills, Inc., 662 F.3d 423 (7th Cir. 2011) ................................................................. 13 Ward v. United Airlines, Inc., 2016 U.S. Dist. LEXIS 38896 (N.D. Cal. Mar. 23, 2016) ............ 17, 18 vi TABLE OF AUTHORITIES – Continued Page STATE CASES In re Tobacco II Cases, 41 Cal. 4th 1257 63 Cal.Rptr.3d 418, 163 P.3d 106 (2007) ..................... 16 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ........................................................... 10, 15, 16 Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002), as modified (May 22, 2002) ................................... 10, 14 U.S. C ONSTITUTION U.S. C ONST. art. VI, cl. 2 .......................................... 2, 11 FEDERAL STATUTES 21 U.S.C. §§ 301-399 ............................................. 2, 4, 7 21 U.S.C. § 321(ff ) ......................................................... 3 21 U.S.C. § 343 ...................................................... 2, 3, 7 21 U.S.C. § 343(r)(6) .................................................. 4, 7 21 U.S.C. § 343(r)(6)(A) ................................................. 7 21 U.S.C. § 343(r)(6)(C) ................................................. 8 21 U.S.C. § 343-1(a)(2) .................................................. 2 21 U.S.C. § 343-1(a)(5) .................................................. 7 28 U.S.C. § 1254(1) ........................................................ 2 FEDERAL REGULATIONS 21 C.F.R. § 101.1(c)(4) ............................................... 3, 7 21 C.F.R. § 101.93 ......................................................... 4 vii TABLE OF AUTHORITIES – Continued Page 21 C.F.R. § 101.93(f ) ..................................................... 7 21 C.F.R. § 101.93(g)(2) ................................................. 7 65 FR 1000 .................................................................... 8 FEDERAL RULES FED. R. CIV. PROC. 23 ............................................ 15, 17 FED. R. CIV. PROC. 23(a) ................................................ 5 FED. R. CIV. PROC. 23(b)(3) ..................................... 5, 17 STATE STATUTES Cal. Bus. Prof. Code §§ 17200 et seq. ............................ 6 Cal. Civ. Code §§ 1750 et seq. ........................................ 6 1 OPINIONS BELOW The U.S. District Court for the Central District of California denied class certification by unpublished or- der entered on July 6, 2016. (Attached hereto as Ap- pendix B). The district court also dismissed Noah Bradach’s individual claims as preempted by unpublished order dated August 25, 2016. Although not the subject of this Petition, because this order is cited herein, it is at- tached hereto as Appendix C. In a decision that also is not the subject of this Pe- tition (but is cited herein), the district court denied a motion for judgment on the pleadings on December 22, 2015. (Attached hereto as Appendix D). The Ninth Circuit Court of Appeals reversed and remanded the class certification order and the order dismissing Bradach’s individual claims in an un- published opinion entered on May 17, 2018. (Attached hereto as Appendix A). The unpublished Order of the Ninth Circuit Court of Appeals denying the timely Petitions for Panel Re- hearing and for Rehearing En Banc was entered on July 10, 2018. (Attached hereto as Appendix E). --------------------------------- --------------------------------- JURISDICTION The Ninth Circuit Court of Appeals filed its opin- ion reversing the district court’s denial of class 2 certification on May 17, 2018 (Appendix A), and on July 10, 2018, filed its opinion denying the timely Pe- titions for Rehearing En Banc and Panel Rehearing (Appendix E).
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