Willenken Firm Secures Voluntary Dismissal of Class Action

In 2014, NBTY, Inc., the country’s largest source of nutritional supplements, retained Willenken to defend its subsidiary, MET-Rx Nutrition, Inc., in a putative nationwide consumer class action where plaintiffs alleged MET-Rx falsely advertised a creatine supplement as containing creatine ethyl ester (CEE) when, in fact, the supplement did not contain CEE.

The plaintiff asserted claims for violations of California’s Unfair Competition Law (UCL) and False Advertising Law (FAL) (Business & Professions Code §§ 17200, 17500 et seq.), and the Consumers Legal Remedies Act (CLRA) (California Civil Code § 1750 et seq.). In his complaint, the plaintiff alleged the absence of CEE had been confirmed via laboratory testing.

The firm commenced its defense of the matter with a three-pronged attack. First, it attacked the nationwide class via demurrer, arguing that California statutes could not be asserted against a non-resident defendant on behalf of non-resident consumers.  Second, it attacked the merits of the lawsuit by quickly organizing and producing documents evidencing the ingredients in the challenged product, which conclusively established the product contained CEE as advertised. Third, it attacked the plaintiff’s testing by producing studies critical of the plaintiff’s methodology for testing the presence of CEE.

In light of the pending demurrer, the documents evidencing the presence of CEE, and the criticism of his testing methodology, the plaintiff beat a hasty retreat, and Willenken secured a dismissal of the lawsuit in exchange for a waiver of costs.