Federal Trade Commission et al v. Quincy Bioscience Holding Company, Inc. et al

Filing 457

ORDER: The parties' renewed motions under Rule SO(b) are denied. The Jury's March 11, 2024 verdict found with respect to the Challenged Statements concerning Prevagen as follows: and further set forth in this Order. The jury, having fo und two such violations of the New York General Business Law Sections 349 and 350, considered New York Executive Law 63(12). It found that law was violated by every one of the Challenged Statements. The jury's verdict followed its charge. It is fully supported by the evidence, which the jury evaluated with care, and will not be disturbed. Determinations of the Attorney General's remedies and the non-jury trial of the FTC's claims against Mark Underwood and the other defendants remain. (Signed by Judge Louis L. Stanton on 5/2/2024) (rro)

ORIGINAL
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FEDERAL TRADE COMMISSION and
THE PEOPLE OF THE STATE OF NEW
YORK , by LETITIA JAMES , Attorney
General of the State of New York ,
Plaintiffs ,

17 Civ . 124

(LLS )

ORDER

- against QUINCY BIOSCIENCE HOLDING
COMPANY , INC., a corporation ;
QUINCY BIOSCIENCE , LLC , a limited
liability company ;
PREVAGEN , INC ., a corporation
d/b/a/ SUGAR RIVER SUPPLEMENTS ;
QUINCY BIOSCIENCE
MANUFACTURING, LLC, a limited
liability company ; and
MARK UNDERWOOD , individually and as
an officer of QUINCY BIOSCIENCE
HOLDING COMPANY , INC. , QUINCY
BIOSCIENCE , LLC , AND PREVAGEN , INC .,
Defendants .

The parties '

renewed motions u nder Rule 5 0 (b ) are denied.

The Jury ' s March 11 , 2024 verdict found with respect to the
Challenged Statements concerning Prevagen as follows :
1. All the Challenged Statements lacked support by competent
and reliable scientific evidence ;
2 . All were consumer - oriented ;

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3. Each Statement was conveyed repeatedly or persistently,
and had the capacity or tendency to deceive, in violation
of New York Executive Law Section 63(12);
4. Two Challenged Statements (Prevagen reduces memory
problems with aging and that had been clinically shown )
were materially misleading, in violation of New York
General Business Law Sections 349 and 350;
5. The other six Challenged Statements 1 were not materially
misleading.
The trial record supports that verdict.
There was no evidence that any particular person was
actually deceived by any of the Challenged Statements.
The Quincy defendants challenge the jury's verdict on the
New York Executive Law claim, arguing that violations found for
all of the Challenged Statements cannot stand because the jury
did not find liability for all of the Challenged Statements on
the General Business Law claims.

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Those statements are: ( 1) Prevagen improves memory; ( 2 )
Prevagen is clinically shown to improve memory; (3) Prevagen
improves memory within 90 days; (4) Prevagen is clinically shown
to improve memory within 90 days; (5) Prevagen provides other
cognitive benefits, including but not limited to healthy brain
function, a sharper mind, and clearer thinking; and (6) Prevagen
is clinically shown to provide other cognitive benefits,
including but not limited to healthy brain function, a sharper
mind, and clearer thinking.
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The jury ' s charge stated :
If you do not find the Quincy Defendants liable for
New York General Business Law Sect i ons 349 and 350 ,
then you need not reach the Attorney General ' s charge
under New York Executive Law 63 (12) .
If however , you find that one or more of the Quincy
Defendants violated New York General Business Law
Sections 349 and 350 , then you will decide the New
York Executive Law Section 63 (12) charge . To find for
the New York Attorney General on its New York
Executive Law Section 63 (12) charge , you must
conclude that each of the following has been proven by
a preponderance of the evidence :
That the Challenged Statements were conveyed ,
(1)
either expressly or impliedly , in Quincy ' s
advertising ;
(2)
That the Challenged Statements were repeated or
persistent ; and
(3)
That the Challenged Statements had the capacity
or tendency to deceive the consumer .

The jury , having found two such violations of the New
York General Business Law Sections 349 and 350 , considered
New York Executive Law 63(12) . It found that law was
violated by every one of the Challenged Statements . The
jury ' s verdict followed its charge . It is fully supported
by the evidence , which the jury evaluated with care , and
will not be disturbed .
Determinations of the Attorney General ' s remedies and
the non - jury trial of the FTC ' s claims against Mark
Underwood and the other defendants remain.

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So ordered .
Dated :

New York , New York
May '' l, , 2024

LOUIS L . STANTON
U.S.D.J.

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