Willenken Firm Wins Summary Judgment

Spring 2015

In 2013, NBTY, Inc., the country's largest source of nutritional supplements, retained the Willenken Firm to defend it and two subsidiaries, MET-Rx Nutrition, Inc., and United States Nutrition, Inc., in a putative nationwide consumer class action where plaintiffs alleged NBTY falsely advertised L-Arginine supplements as increasing Nitric Oxide in the blood, improving cardiovascular function, and increasing lean muscle mass. Plaintiffs asserted claims for violations of California's Unfair Competition Law (UCL) and False Advertising Law (FAL) (Business & Professions Code§§ 17200, 17500 et seq.), the Consumers Legal Remedies Act (CLRA) (California Civil Code § 17 50 et seq.), as well as claims for breach of warranty and unjust enrichment.

After class and merits discovery, the firm filed a motion for summary judgment on all causes of action. In a blistering 52-page opinion, Defendants' motion was granted in its entirety. The firm had obtained several key admissions in Plaintiffs' depositions and, using those admissions, successfully argued Plaintiffs' claims failed for multiple reasons, including that Plaintiffs lacked standing, where no evidence existed that they actually relied on any allegedly misleading statements by Defendants.

The court also agreed Plaintiffs failed to present a triable issue of fact that Defendants could be held liable under the consumer protection statutes for alleged misrepresentations on the third-party retailer website where the Plaintiff~ purchased the subject products, without evidence that Defendants controlled the preparation or distribution of those statements.

Further, the court agreed Plaintiffs failed to present any evidence the alleged false advertisements were actually false and, alternatively, failed to show their claims were anything more than improper "lack of substantiation" claims. In California, private litigants cannot bring claims for violation of the UCL, FAL, or CLRA based on a lack of substantiation-only prosecuting authorities, not private plaintiffs, have the administrative power to request advertisers to substantiate advertising claims.

In addition to having judgment entered in their favor, Defendants were awarded their costs.