Yeldo v. Musclepharm Corporation, a Nevada Corporation
ORDER granting defendant's request for judicial notice 13 and granting in part and denying in part 12 defendant's Motion to Dismiss. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-11011
HON. GEORGE CARAM STEEH
ORDER GRANTING DEFENDANT’S REQUEST FOR JUDICIAL
NOTICE (DOC. 13) AND GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO DISMISS (DOC. 12)
Plaintiff Nick Yeldo, individually and on behalf of all others similarly
situated, alleges that defendant MusclePharm Corp. utilizes misleading
marketing practices to promote its Glutamine product. This matter is
presently before the Court on defendant’s request for judicial notice, (Doc.
13) and motion to dismiss, (Doc. 12). Oral argument was held on
November 14, 2017. For the reasons stated below, defendant’s motion is
GRANTED IN PART AND DENIED IN PART.
Defendant manufactures and sells dietary supplements and sports
nutrition products. (Doc. 9 at PageID 174). Plaintiff purchased and
consumed the dietary supplement MusclePharm Glutamine (the Product)
marketed and sold by defendant throughout the four years preceding the
filing of his complaint. (Doc. 9 at PageID 176). The Product’s label and
online advertisements indicate that it enhances muscle growth and
recovery, supports rebuilding and recovery from the toughest workouts,
reduces catabolism and supports an anabolic environment, aids in muscle
growth, causes faster recovery, and helps consumers rehydrate, rebuild,
and recover faster and more efficiently. (Doc. 9 at PageID 175).
Glutamine1 is a “naturally occurring, nonessential, neutral amino
acid.” (Doc. 9 at PageID 176). “It is important as a constituent of proteins
and as a means of nitrogen transport between tissues.” (Doc. 9 at PageID
177). Plaintiff alleges that many healthy people, including athletes and body
builders, are under the impression that increased intake of glutamine has
beneficial effects. (Id.). He concedes that Glutamine naturally found within
the body plays a role in muscle growth, recovery, and immunity support,
but alleges that “glutamine supplementation has been found to be
completely ineffective at mimicking these physiological responses.” (Id.). In
short, plaintiff alleges that “the ingestion of defendant’s Product does
absolutely nothing for the recovery from exercise, recovery of muscle
Glutamine is also referred to as L-Glutamine.
tissue, enhancement of muscle or ability to decrease muscle wasting.”
(Doc. 9 at PageID 178).
Plaintiff bases his claims regarding the ineffectiveness of glutamine
supplements on nine scientific studies. The first study showed that
“glutamine failed to affect muscle protein kinetics of the test subjects.”
(Doc. 9 at PageID 179, n. 2). In a second study, “glutamine was
continuously infused” in “healthy humans” “for 2.5 hours at a rate
corresponding to .4 grams/kg” and “revealed that glutamine provision did
[not] stimulate muscle protein synthesis.” (Doc. 9 at PageID 179, n. 3).
In a third study, researchers investigated the effect of glutamine
supplementation on the plasma and muscle tissue glutamine
concentrations of exercise-trained rates immediately and three hours after
a single exercise session until exhaustion. (Doc. 9 at PageID 180, n. 4).
During the final three weeks of the six-week study, one group of rats
received a daily dose of glutamine. (Id.). While “[t]he plasma and muscle
glutamine levels were higher than placebo during the post-exhaustive
recovery period,” the “increase had no effect on the exercise swim test to
exhaustion performance, suggesting that elevations in plasma and muscle
glutamine levels have no benefit on muscle performance.” (Id.).
A fourth study investigated “the effect of oral glutamine
supplementation combined with resistance training in young adults.” (Doc.
9 at PageID 180, n. 5). Subjects received either a placebo or glutamine
during six weeks of resistance training. (Id.). “Results showed that muscle
strength and torque, fat free mass, and urinary 3-methyl histidine (a marker
of muscle protein degradation) all significantly increased with training, but
were not different between the groups,” suggesting “that L-glutamine
supplementation during resistance training had no significant effect of
muscle performance, body composition, or muscle protein degradation” in
healthy young adults. (Id.).
A fifth study examined “the effects of a combination of effervescent
creatine, ribose, and glutamine on muscle strength, endurance, and body
composition in resistance-trained men.” (Doc. 9 at PageID 180-81 n. 6).
Subjects performed resistance training for eight weeks and received either
a placebo or an experimental supplement containing creatine, glutamine,
and ribose. (Id.).Both subject groups improved muscle strength, endurance,
and fat-free mass. But the groups were not significantly different from one
another, suggesting that the “supplement, which included glutamine was no
more effective than [a] placebo in improving skeletal muscle adaptation to
resistance training.” (Id.).
A sixth study investigated the effects of creatine monohydrate and
glutamine supplementation on body composition and performance
measures. (Doc. 9 at PageID 181, n. 7.). Subjects engaged in an eightweek resistance training program and received either a placebo, creatine
monohydrate (.3 grams/kg/day for one week and then .03 grams/kg/day for
seven weeks), or the same dose of creatine in addition to 4 grams of
glutamine per day. (Id.). The creatine and the creatine + glutamine groups
experienced body mass and fat-free mass increases at a greater rate than
the placebo group as well as a greater improvement in the initial rate of
muscle power production. (Id.). Plaintiff claims that “[t]hese results suggest
that the creatine and creatine + glutamine groups were equally effective in
producing skeletal adaption to resistance training and that glutamine
apparently had no preferential effect in augmenting the results.” (Id.).
A seventh study examined if high-dose glutamine ingestion affected
weightlifting performance. (Doc. 9 at PageID 181-82, n. 8). In “a doubleblind, placebo-controlled, crossover study, resistance-trained men
performed weightlifting exercise one hour after ingesting placebo . . . or
glutamine (.3 g/kg).” (Id.). According to Plaintiffs, “[r]esults demonstrated no
significant differences in weightlifting performance (maximal repetitions on
the bench press and leg press exercises), indicating that the short-term
ingestion of glutamine did not enhance weightlifting performance in
resistance-trained men.” (Id.).
An eighth study investigated “whether glutamine ingestion influenced
acid-base balance and improved high-intensity exercise performance.”
(Doc. 9 at PageID 182, n. 9). The “[r]esults showed that blood pH,
bicarbonate, and lactate, along with time to fatigue, were not significant[ly]
different between supplement conditions, indicating that the acute ingestion
of L-Glutamine did not enhance either buffering potential or high-intensity
exercise performance in trained males.” (Id.).
Finally, in the ninth study, researchers examined “whether oral
glutamine, alone or in combination with hyperoxia, influenced oxidative
metabolism and cycle time-trial performance in men.” (Doc. 9 at PageID
182, n. 10). Subjects received either a placebo or a glutamine supplement
one hour before completing a brief high-intensity time-trial. (Id.). The
“[r]esults indicated no significant difference in pulmonary oxygen uptake
during the exercise test, thereby indicating no effect of glutamine ingestion
either alone or in combination with hyperoxia.” (Id.).
Plaintiff claims that defendant’s Product label and advertising are
false and misleading, that he was in fact mislead by defendant’s
representations regarding the Product’s efficacy, and that he would not
have purchased the Product, or would not have paid as much for it, had he
known the truth about the misrepresentations.
Plaintiff seeks certification of two classes:
National Class: All persons in the United States who purchased the
Product within the six years preceding the Complaint.
Michigan Subclass: All persons in the State of Michigan who
purchased the Product within the six years preceding the Complaint.
Plaintiff alleges breach of express warranty (Count I), negligent
misrepresentation (Count III), fraud by uniform written misrepresentation
and omission / fraudulent inducement (Count IV), and Unjust Enrichment
(Count V) on behalf of the National Class, or alternatively, the Michigan
Subclass. He alleges breach of implied warranties of merchantability and
fitness (Count II) on behalf of the Implied Warranty Multi-State Class and
Michigan Subclass. He also seeks injunctive relief (Count VI) on behalf of
the National Class.
II. Legal Standard
A. Fed. R. Civ. P. 12(b)(6)
A court confronted with a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) must construe the complaint in favor of the
plaintiff, accept the allegations of the complaint as true, and determine
whether the plaintiff's factual allegations present plausible claims. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007). “[N]aked
assertions devoid of further factual enhancement” and “unadorned, thedefendant-unlawfully-harmed-me accusation[s]” are insufficient to “state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The complaint need not contain “detailed” factual allegations,
but its “factual allegations must be enough to raise a right to relief above
the speculative level on the assumption that all of the allegations in the
complaint are true.” Ass’n of Cleveland Fire Fighters v. City of Cleveland,
502 F.3d 545, 548 (6th Cir. 2007).
B. Fed. R. Civ. P. 9(b)
For a claim involving fraud, it is not sufficient for a plaintiff to plead
general facts that render the claim plausible. Rather, “a party must state
with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b).
This means that a plaintiff must “allege the time, place, and content of the
alleged misrepresentations [or omissions] on which he or she relied; the
fraudulent scheme; the fraudulent intent of the defendants; and the injury
resulting from the fraud.” Sanderson v. HCA-The Healthcare Co., 447 F.3d
873, 877 (6th Cir. 2006) (quoting Yuhasz v. Brush Wellman, Inc., 341 F.3d
559, 563 (6th Cir. 2003)) (internal quotation marks omitted); see also
Republic Bank & Trust Co. v. Bear Stearns & Co. Inc., 683 F.3d 239, 25556 (6th Cir. 2012).
A. Consideration of Documents Not Attached to the Amended
In its Request for Judicial Notice, (Doc. 13), defendant asks the Court
to consider nine documents while evaluating its Motion to Dismiss; an order
filed in the United States District Court for the Southern District of
California, (Doc. 13-2) an image of the Product’s complete label, (Doc. 133), and seven scientific studies cited in the Amended Complaint, (Doc. 134, 13-5, 13-6, 13-7, 13-8, 13-9, 13-10). Defendant cites to Fed. R. Evid.
201(b) as well as case law on the incorporation by reference doctrine.
Plaintiff did not file an opposition to this request.
Pursuant to Federal Rule of Evidence 201, “[t]he court may judicially
notice a fact that is not subject to reasonable dispute because it . . . can be
accurately and readily determined from sources whose accuracy cannot
reasonably be questions.” Fed. R. Evid. 201(b)(2). “Courts addressing
motions to dismiss product-labeling claims routinely take judicial notice of
images of the product packaging.” Sandoval v. PharmaCare US, Inc., 145
F. Supp. 3d 986, 992 (S.D. Cal. 2015). Courts may also “take judicial notice
of public record, including judicial opinions. Murray v. Elations Co., No. 13-9-
CV-02357-BAS WVG, 2014 WL 3849911, at *4 (S.D. Cal. Aug. 4, 2014)
(citing Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001)). The
Court shall, therefore, take judicial notice of the September 26, 2016 Order
in Dabish v. MusclePharm Corp., No. 3:15-CV-02848-CAB-RBB (S. D.
Cal.), (Doc. 13-2), and the Product label, (Doc. 13-3).
“[A]s a general rule, matters outside the pleadings may not be
considered in ruling on a 12(b)(6) motion to dismiss unless the motion is
converted to one for summary judgment under Fed. R. Civ. P. 56.” Jackson
v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999) (quoting Weiner v.
Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997)) (abrogated on other grounds
by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). However, “when a
document is referred to in the pleadings and is integral to the claims, it may
be considered without converting a motion to dismiss into one for summary
judgment.” Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327,
335–36 (6th Cir. 2007). The nine scientific studies referenced in the
Amended Complaint are integral to plaintiff’s claims. The Court shall
consider all nine of these documents, not simply the seven attached to
The Amended Complaint cites nine studies in footnotes 2-10. Defendant’s request includes the studies
referenced in footnotes 2-8.
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B. Plaintiff has Alleged a Plausibly False Statement
The Amended Complaint cites nine studies to support plaintiff’s
allegation that the Product’s representations are false and misleading.
Defendant argues that these studies fail to support plaintiff’s claims
because there is no match between the studies and the Product and its
Defendant asserts that plaintiff must plead the existence of a study
that tests the combination of ingredients used in a given product. This
premise is correct as it pertains to the active ingredients within a product.
See e.g., Otto v. Abbott Labs., Inc., No. CV 12-1411-SVW(DTB), 2013 WL
12132064 (C.D. Cal. Mar. 15, 2013); Padilla v. Costco Wholesale Corp.,
No. 11 C 7686, 2013 WL 195769 (N.D. Ill. Jan. 16, 2013); Eckler v. WalMart Stores, Inc., No. 12-CV-727-LAB-MDD, 2012 WL 5382218 (S.D. Cal.
Nov. 1, 2012). For example, in Padilla, the plaintiff relied on scientific
studies to illustrate misleading representations of a product containing
Glucosamine and MSM. 2013 WL 195769, at *1. But none of the studies
assessed the effectiveness of the combination of “Glucosamine and MSM.”
Id. at *3 (emphasis in original). The court dismissed the plaintiff’s case
because the studies did not illustrate that the combination of the product’s
active ingredients failed to comport with the defendant’s representations.
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Id. at *4. In Otto, a motion to dismiss was granted where the plaintiff relied
on scientific studies addressing the effects of only one of the product’s
active ingredients. 2013 WL 12132064, at *4. The court stated that “the fact
that [one ingredient] alone might not affect healthy individuals [as
represented] does not logically imply that the Product’s specific
combination of ingredients is similarly ineffectual.” Id. In Eckler, the
challenged product contained several active ingredients. 2012 WL
5382218, at *6. The court clarified that, rather than studies independently
addressing each active ingredient, the representations concerned the
product’s “overall formulation.” Id. The plaintiff did not refer to a study that
tested this formulation. Id. The court, therefore, recognized that the cited
studies did not support the plaintiff’s alleged misrepresentation and left no
facts from which to infer that the defendant was liable for false advertising.
Id. See also Murray, 2014 WL 3849911, at *8 (granting the motion to
dismiss because “[n]one of the studies cited in the Complaint test [the
product] or the same combination of ingredients found in [the product], and
therefore do not bear on the truthfulness of the presentations as to [the
Defendant also relies on Dabish v. MusclePharm Corp., No. 3:15-CV02848-CAB-RBB (S. D. Cal. Sept. 26, 2016). (Doc. 13-2). There, the First
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Amended Complaint failed to state a claim because it did not allege studies
demonstrating that the Product representations were false. (Doc. 13-2 at
PageID 268). The alleged misrepresentations were grouped in categories.
(Id.). First, the plaintiff attempted to illustrate misrepresentations regarding
the benefits of Creatine Nitrate. Doc. 13-2 at PageID 269). The plaintiff
claimed that it was not known whether the substance conferred any health
benefits and relied on studies assessing the substance’s safety, not its
efficacy. (Id.). The cited studies regarding efficacy tested a different
substance – Creatine Monohydrate. (Id.). The court dismissed the plaintiff’s
claims because none the studies demonstrated falsity of statements
regarding Creatine Nitrate’s efficacy. (Doc. 13-2 at PageID 269-70).
Second, the plaintiff challenged representations regarding “a loading
phase.” (Doc. 13-2 at PageID 270-71). The plaintiff cited studies suggesting
one of the product’s ingredients did not offer the advertised benefit. (Id.).
The court dismissed this claim because the challenged products contained
numerous ingredients and none of the studies tested these formulations.
(Doc. 13-2 at PageID 271). Finally, the plaintiff alleged misrepresentations
regarding the benefits of Arginine Nitrate. (Id.). The plaintiff again relied on
a study that assessed only one of the products’ ingredients. (Id.). The court
dismissed the claims because that study did not support allegations that
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representations regarding the combination of ingredients in the products
were false. (Id.).
These cases are distinguishable because the Product at issue here
does not rely on a combination of active ingredients, but rather, only one;
Glutamine. This case, therefore, is more similar to Wagner v. Gen. Nutrition
Corp., No. 16-CV-10961, 2017 WL 3070772 (N.D. Ill. July 19, 2017).
In Wagner, the plaintiff purchased a “Pro Performance L-Glutamine
Powder 5000 dietary supplement.” Id. at *1. The plaintiff claimed that the
defendant’s labeling of the products was misleading, he was in fact misled
by representations regarding the products’ efficacy, and he would not have
purchased the products had he known they did not provide the advertised
benefits because ingestion of the product “does absolutely nothing for the
recovery from exercise, recovery of muscle tissue or ability to decrease
muscle wasting.” Id. at *1, 3. The plaintiff supported his claims by citing the
same nine scientific studies referenced in the Amended Complaint in the
present case. Id. at *2. The court reviewed these studies and determined
that they “support the proposition that glutamine supplementation has no
effect on muscle performance or strength, muscle growth, recovery, or
performance during exercise.” Id. at *7. “Taking the allegations in the
[complaint] as true,” the court found that the plaintiff had “adequately
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alleged that glutamine supplements do not improve recovery, muscle
function, or muscle wasting” and therefore “adequately alleged that the
Products’ labels contain false information.” Id. The court further rejected the
defendant’s argument that the plaintiff could not rely on the studies
“because they do not invoke the Products, their specific dosages, and their
methods of ingestion.” Id. The court reasoned that the plaintiff’s “allegations
boil down to a claim that glutamine in supplement form does not have the
benefits listed on the Products’ labels” and, as alleged, “the studies support
this claim.” Id. Finally, the court distinguished Padilla and Eckler, noting that
“the studies at issue concern the only active ingredient in the Products (at
least according to Plaintiff’s allegations) and they implicate glutamine’s
efficacy with respect to the claims on the Products’ labels. Id.
As in Wagner, the Court finds that the studies cited in the Amended
Complaint support plaintiff’s allegation that glutamine supplements do not
have the benefits claimed on the Product’s labels and advertisements. The
studies assess the efficacy of glutamine. The Amended Complaint pleads
that the Product contains glutamine. It does not indicate that the Product
contains any additional active ingredients. It further pleads that glutamine
does not improve the efficacy of muscle growth, recovery, rebuilding, or
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function. Viewing the allegations in the light most favorable to plaintiff, his
allegations are sufficient.
Defendant argues that Wagner is distinguishable because, unlike the
defendant in Wagner, here it contends that some of the studies support the
Product’s representations. Defendant argues that this distinction makes this
case more similar to In re GNC Corp., 789 F.3d 505 (4th Cir. 2015). In
GNC Corp., the plaintiff relied on studies to argue misrepresentations, but
the complaint did not allege a scientific consensus. Id. at 515. Instead, the
plaintiff conceded that although most experts thought that the challenged
ingredients are ineffective, some reasonable experts disagreed and thought
they could provide the relief the defendant promised. Id. The court
reasoned that the complaint alleged scientific evidence regarding the
efficacy of these ingredients and therefore failed to allege that the
challenged representations are literally false. Id.
But, unlike GNC Corp., plaintiff’s Amended Complaint does not
concede that any scientists find glutamine effective. Moreover, defendant’s
argument that the studies support the product representations fails.
Defendant cherry-picks sentences from the papers’ introduction sections,
which summarize the findings of other studies or hypothesize conditions
where supplemental glutamine may create the represented effects. (Doc.
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12 at PageID 224). The conclusions, however, support plaintiff’s argument.
Plaintiff has, therefore, stated a claim upon which relief may be granted. It
is not clear whether defendant asks the Court to weigh the merits of these
scientific findings to determine which is most credible. The Court declines
any such request as it is premature in a motion to dismiss. Cf. Eckler, 2012
WL 5382218 at *6 (assessing studies cited in a complaint when evaluating
a motion to dismiss, not to weigh the merits of those studies, but rather to
ensure that they support a plaintiff’s claims such that there are facts from
which to infer that a defendant is liable for false advertising.).
The Court also rejects defendant’s argument that plaintiff’s claims fail
because he did not plead his experience using the Product in more detail.
Plaintiff does not need to more specifically allege how and when he
consumed the Product or whether he experienced the advertised benefits.
He alleged that he purchased and consumed the Product, (Doc. 9 at
PageID 176), and either would not have done so or would not have paid as
much for the Product if he knew defendant’s representations were false.
This monetary harm is sufficient. See Padilla, 2012 WL 195769, at *3.
Finally, defendant asserts that plaintiff’s claims for breach of express
and implied contract, Counts I and II, fail because plaintiff has not pleaded
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facts showing the Product’s label and advertising were false. For the
reasons stated above, this argument fails.
C. Count III is Barred by the Economic Loss Doctrine
Defendant argues that plaintiff’s negligent misrepresentation claim is
barred by the economic loss doctrine. The economic loss doctrine is
judicially created and derived from the Uniform Commercial Code. Quest
Diagnostics, Inc. v. MCI WorldCom, Inc., 656 N.W.2d 858, 861 (Mich. Ct.
App. 2002). It “bars all tort remedies where the suit is between an
aggrieved buyer and a nonperformance seller, the injury consists of
damage to the goods themselves, and the only losses alleged are
economic.” Sullivan Indus., Inc. v. Double Seal Glass Co., Inc., 480 N.W.2d
623, 627 (Mich. Ct. App. 1991); Neilbarger v. Universal Cooperatives, Inc.,
486 N.W.2d 612, 615 (Mich. 1992).
Plaintiff argues that his claim fits into an exception to the economic
loss doctrine. In Huron Tool & Eng'g Co. v. Precision Consulting Servs.,
Inc., 532 N.W.2d 541 (1995), the Michigan Court of Appeals ruled that
Neilbarger addressed the doctrine’s application to nonintentional torts. Id.
at 543. The court recognized an exception for the intentional tort of fraud in
the inducement. Id. at 545. But the court clarified that a plaintiff may only
pursue a claim for fraud in the inducement extraneous to the alleged
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breach of contract,” while “misrepresentations relat[ing] to the breaching
party’s performance of the contract [ ] do not give rise to an independent
cause of action in tort.” Id. at 545-56. The plaintiff in Huron sued a
consulting service for breach of contract, breach of warranty, fraud, and
misrepresentation, alleging that it supplied defective software. Id. at 543.
The parties’ sales contract provided that the defendant would provide the
software “system’s design, programming, training, and installation
services.” Id. The court found that, although plaintiff alleged fraud in the
inducement, the doctrine’s exception did not apply. The court reasoned that
the “fraudulent representations alleged by plaintiff concern the quality and
the characteristics of the software system sold by defendants.” Id. at 546.
The court found that “[t]hese representations are indistinguishable from the
terms of the contract and the warranty that plaintiff alleges were breached.”
Id. As such, the plaintiff’s allegations “are not extraneous to the contractual
dispute” and the plaintiff “is restricted to its contractual remedies under the
Plaintiff’s claim is based on the character of the Product. He alleges
that defendant represented that it would provide a product with certain
benefits, but the Product plaintiff purchased could not provide these
benefits. The essence of plaintiff’s claim is that the Product lacked the
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character for which plaintiff bargained. As such, Count III is not extraneous
to the contractual dispute, but interwoven with the breach of contract and,
therefore, barred by the economic loss doctrine and will be dismissed. See
e.g., TIBCO Software, Inc. v. Gordon Food Serv., Inc., No. 1:03-CV-25,
2003 WL 21683850, at *5 (W.D. Mich. July 3, 2003).
D. Plaintiff Has Stated a Claim for Unjust Enrichment
Defendant argues that plaintiff’s unjust enrichment claim, Count V,
fails for two reasons. First, defendant asserts that this claim is predicated
on the same allegations of false advertising, and therefore, fails along with
the warranty and fraud claims. For the reasons state above, plaintiff has
stated warranty and fraud claims upon which relief can be granted. As
such, this argument does not defeat plaintiff’s unjust enrichment claim.
Second, defendant argues that plaintiff’s claim fails because he does
not specify why he did not receive the Product’s advertised benefits. “The
elements of a claim for unjust enrichment are (1) receipt of a benefit by the
defendant from the plaintiff, and (2) an inequity resulting to plaintiff from
defendant’s retention of the benefit.” Bellevue Ventures, Inc. v. MorangKelly Inv., Inc., 836 N.W.2d 898, 901 (2013) (citing Dumas v. Auto Club Ins.
Ass'n, 473 N.W.2d 652, 663 (1991)). Defendant received a financial benefit
when plaintiff purchased the product. Plaintiff alleges inequity because
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defendant retains this benefit while plaintiff cannot realize the represented
benefits of the Product. As stated above, plaintiff does not need to specify
that he ingested the product. Financial injury is sufficient. Taken in the light
most favorable to plaintiff, he has sufficiently stated a claim upon which
relief can be granted.
E. Plaintiff Has Standing to Seek Injunctive Relief
“[A] plaintiff must demonstrate standing separately for each form of
relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000). Standing has three elements:
First, the plaintiff must have suffered an “injury in
fact”—an invasion of a legally protected interest
which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection
between the injury and the conduct complained of—
the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the
independent action of some third party not before
the court. Third, it must be likely, as opposed to
merely speculative, that the injury will be redressed
by a favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations
omitted). “When seeking declaratory and injunctive relief, a plaintiff must
show actual present harm or a significant possibility of future harm in order
to demonstrate the need for pre-enforcement review.” Nat'l Rifle Ass'n of
Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997)
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Defendant argues that, in false advertising cases, there is no chance
of future harm because plaintiff will not purchase the Product at issue
again. Defendant relies on Johnson v. Jos. A. Bank Clothiers, Inc., No.
2:13-CV-756, 2015 WL 12698066 (S.D. Ohio June 9, 2015). In Johnson,
the plaintiffs alleged that defendant falsely advertised regular prices such
that the price they paid was vastly inflated above the true regular market
price regularly paid by consumers at defendants’ stores. Id. at *1. The
Amended Complaint specifically stated that the plaintiffs “considered the
[allegedly inflated] ‘regular price’ of the suits in making their purchasing
decision and would not have engaged in the transaction but for the
misrepresented ‘regular price.’” Id. at *4. The court ruled that, “[i]n light of
this litigation and plaintiffs’ specific allegations, it simply cannot be said that
these plaintiffs will in the future once again rely on the alleged
misrepresentation in defendant’s advertisements in their purchase of
defendant’s suits.” Id. “Plaintiffs do not allege – or even argue – that they
are likely to purchase defendant’s suits again or that they are likely to suffer
future harm as a result of defendant’s advertising practices.” Id. The court
stated that “future injunctive relief sought by plaintiffs will not redress any
injury allegedly suffered by plaintiffs in the past or that is likely to be
suffered by plaintiffs in the future.” Id. Accordingly, the Court concluded
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“that plaintiffs lack Article III standing to seek injunctive relief in this Court.”
Similarly, in Neuman v. L'Oreal USA S/D, Inc., No. 1:14-CV-01615,
2014 WL 5149288 (N.D. Ohio Oct. 14, 2014), the court ruled that a plaintiff
does not have standing to seek an injunction against allegedly deceptive
advertising when they do not plan to purchase the product in question
again. Id. at *2. The court examined a variety of cases, noting that
some courts - especially but not exclusively district
courts in California - have concluded that
consumers who purchase a product in reliance on
false advertising have standing to seek to enjoin the
false advertising even if they do not plan to
purchase the product again. These courts generally
reason that if such plaintiffs lacked standing, then
state consumer protection law could frequently not
be enforced with injunctions in federal court.
Id. The court ultimately rejected this approach. It reasoned that “[t]he result
that a plaintiff who suffers no risk of future injury cannot obtain an injunction
furthers the purpose of the Article III standing inquiry - to ensure that there
is a live case or controversy between the parties.” Id. See also Rikos v.
Procter & Gamble Co., No. 1:11-CV-226, 2013 WL 360330, at *3-4 (S.D.
Ohio Jan. 30, 2013).
In contrast, plaintiff urges the court to find that he has standing
despite abandoning the Product upon discovery that it had been
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deceptively labeled and advertised. Plaintiff relies on Leiner v. Johnson &
Johnson Consumer Companies, Inc., 215 F. Supp. 3d 670, 672 (N.D. Ill.
2016). In Leiner, the court noted that:
courts have split on whether a plaintiff who, having
unveiled the defendant’s deception, is unlikely to
purchase (or affirmatively disavows the intent to
purchase) the defendant’s product in the future
nevertheless maintains standing to pursue
injunctive relief under state consumer protection
statutes. The better view, however, and the one
consistent with Arreola [v. Godinez, 546 F.3d 788
(7th Cir. 2008)], is the one taken by courts that have
declined to hold that plaintiffs lacked standing based
on the fact that they abandoned the product upon
their discovery that it had been deceptively labeled
or advertised. These courts acknowledged the
public policy conundrum inherent in the contrary
view: the injunctive provisions of consumer
protection statues . . . could never be invoked to
enjoin deceptive practices if the complaining
consumer’s standing dissipated the moment she
discovered the alleged deception and could no
longer be fooled.
Id. at *672-73.
The Court is not bound by any of these cases. But, after evaluating
each approach, the public policy concerns, and interests of additional
consumers, both within and outside the proposed class, who are presently
unaware of the alleged misrepresentation, the Court agrees with the
reasoning in Leiner and concludes that plaintiff has Article III standing to
seek injunctive relief.
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F. Plaintiff’s Claims are not Preempted by the FDCA
Defendant argues that plaintiff’s claims are preempted by the Federal
Food, Drug and Cosmetic Act (FDCA). A common law cause of action for
false or misleading product labeling is preempted by the FDCA “if it seeks
to impose labeling or other requirements that are not identical to the
requirements imposed by [21 U.S.C.] § 343(q), § 343(r), and the
implementing regulations for those provisions.” Gubala v. CVS Pharmacy,
Inc., No. 14 C 9039, 2016 WL 1019794, at *4 (N.D. Ill. Mar. 15, 2016).
‘Not identical to'...means that the State requirement
directly or indirectly imposes obligations or contains
provisions concerning the composition or labeling of
food, or concerning a food container, that: (i) Are
not imposed by or contained in the applicable
provision (including any implementing regulation) of
section 401 or 403 of the act; or (ii) Differ from those
specifically imposed by or contained in the
applicable provision (including any implementing
regulation) of section 401 or 403 of the act.
21 C.F.R. § 100.1(c)(4). “Claims under state law that parallel the FDCA’s
requirements, however, are not preempted.” Gubala, 2016 WL 1019794, at
*4 (citing Turek v. Gen. Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011)). “The
state thus can impose the identical requirement or requirements, and by
doing so be enabled, because of the narrow scope of the preemption
provision in the Nutrition Labeling and Education Act, to enforce a violation
of the Act as a violation of state law.” Turek, 662 F.3d at 426. Plaintiff’s
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claims must, therefore, violate the FDCA to escape express preemption
and “be premised on ‘the type of conduct that would traditionally give rise to
liability under state law — and that would give rise to liability under state
law even if the FDCA had never been enacted.’” Gubala, 2016 WL
1019794, at *4 (quoting Riley v. Cordis Corp., 625 F. Supp. 2d 769, 777 (D.
The Amended Complaint alleges that “[d]efendant’s deceptive
statements violate 21 U.S.C. § 343(a)(1), which deems food misbranded
when the label contains a statement that is ‘false or misleading in any
particular.’” (Doc. 9 at PageID 183). Plaintiff’s claims under state law,
alleging “false and misleading” labels and advertising, parallel the FDCA’s
requirements. Further, the claims are premised on conduct that would give
rise to liability under Michigan common law even if the FDCA had never
been enacted. Therefore, plaintiff’s claims are not preempted by the FDCA.
G. Plaintiff’s Claims are not Barred by the Doctrine of Primary
Finally, defendant argues that the doctrine of primary jurisdiction bars
plaintiff’s claims. The doctrine “is concerned with promoting proper
relationships between the courts and administrative agencies charged with
particular regulatory duties.” Nader v. Allegheny Airlines, Inc., 426 U.S.
290, 303 (1976). “The doctrine is properly invoked when enforcement of a
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claim in court would require resolution of issues that have already been
placed within the special competence of an administrative body.” Kiefer v.
Paging Network, Inc., 50 F. Supp. 2d 681, 683 (E.D. Mich. 1999). The
doctrine is to be applied
in cases raising issues of fact not within the
conventional experience of judges or cases
requiring the exercise of administrative discretion,
agencies created by Congress for regulating the
subject matter should not be passed over ....
Uniformity and consistency in the regulation of
business entrusted to a particular agency are
secured, and the limited functions of review by the
judiciary are more rationally exercised, by
preliminary resort for ascertaining and interpreting
the circumstances underlying legal issues to
agencies that are better equipped than courts by
specialization, by insight gained through
experience, and by more flexible procedure.
Far East Conference v. United States, 342 U.S. 570, 574–75 (1952).
The doctrine of primary jurisdiction is not applicable here. Plaintiff’s
claims are premised on allegations that defendant is making false and
misleading representations about its Product. “Determining whether
labeling and advertising are false or deceptive under consumer protection
laws is not an issue outside ‘the conventional experience of judges.” United
States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956). Thus, analyzing
plaintiff’s claims does not infringe on the proper relationship between the
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courts and the FDA. See also Bruaner v. MusclePharm Corp., No.
CV148869FMOAGRX, 2015 WL 4747941, at *4-5 (C.D. Cal. Aug. 11,
2015) (ruling that “application of the primary jurisdiction doctrine is not
warranted” where plaintiff alleged that defendant MusclePharm
misrepresented the contents of its product); Jasper v. MusclePharm Corp.,
No. 14-CV-02881-CMA-MJW, 2015 WL 2375945, at *4 (D. Colo. May 15,
For the reasons stated above, defendants’ request for judicial notice,
(Doc. 13), is GRANTED and defendant’s motion to dismiss, (Doc. 12), is
GRANTED IN PART AND DENIED IN PART.
IT HEREBY ORDERED that Counts III be DISMISSED.
IT IS SO ORDERED.
Dated: November 16, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 16, 2017, by electronic and/or ordinary mail.
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