Racies v. Quincy Bioscience, LLC

Filing 14

ORDER DENYING TRANSFER re: pldg. (7 in CAN/4:15-cv-00292, 15 in MDL No. 2783, 9 in NJ/2:17-cv-00784, 9 in NYE/2:17-cv-01091, 10 in NYS/1:17-cv-00124), ( 1 in MDL No. 2783) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 5/30/2017. Associated Cases: MDL No. 2783, CAN/4:15-cv-00292, NJ/2:17-cv-00784, NYE/2:17-cv-01091, NYS/1:17-cv-00124 (DP)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: PREVAGEN PRODUCTS MARKETING
AND SALES PRACTICES LITIGATION

MDL No. 2783

ORDER DENYING TRANSFER

Before the Panel:* Defendants Quincy Bioscience Holding Company, Inc., Quincy
Bioscience, LLC, Prevagen, Inc., Quincy Bioscience Manufacturing, LLC, Mark Underwood, and
Michael Beaman move to centralize four actions in the Southern District of New York. The actions,
which are listed on the attached Schedule A, are pending in the Northern District of California, the
District of New Jersey, the Eastern District of New York, and the Southern District of New York.
Plaintiffs in the Northern District of California Racies action and the Southern District of
New York Federal Trade Commission action oppose inclusion of their respective actions in the
proposed MDL. Plaintiffs in the District of New Jersey Vanderwerff and Eastern District of New
York Karathanos actions oppose centralization altogether.
On the basis of the papers filed and the hearing session held, we deny Defendants’ motion.
The four actions share factual issues arising from allegations that Defendants falsely and deceptively
marketed Prevagen, a dietary supplement,1 as improving memory and providing other cognitive
benefits. Centralization thus might, to some extent, eliminate duplicative discovery, avoid the
possibility of conflicting pretrial rulings, and result in limited efficiencies.
But there are only four actions in this litigation, and no tag-alongs. The small number of
actions suggests that cooperation and informal coordination by the involved courts and counsel
should be feasible. See In re: Crest Sensitivity Treatment & Prot. Toothpaste Mktg. & Sales
Practices Litig., 867 F. Supp. 2d 1348, 1348 (J.P.M.L. 2012) (denying centralization and listing
examples of mechanisms available to prevent redundant discovery). In this regard, we note that the
Vanderwerff and Karathanos plaintiffs have common counsel.
The advanced status of the Racies action also weighs against centralization. Racies has been
pending for over two years – since January 2015. Although the parties dispute the amount of
discovery that remains in Racies, there is no question that significant discovery has taken place,

*

1

jellyfish.

Judge Lewis A. Kaplan took no part in the decision of this matter.
Prevagen contains apoaequorin, a protein that reportedly was originally discovered in

-2especially as to plaintiff’s core “body chemistry” allegations (i.e., allegations that Prevagen, a
protein, is fully digested like any other protein and that even if a small amount were not fully
digested, the amount entering the bloodstream would be trivial at best and, even then, could not pass
the “blood brain barrier”). In contrast, the three other actions were filed only earlier this year. See,
e.g.,In re: Lifewatch, Inc., Tel. Consumer Prot. Act. (TCPA) Litig., 140 F. Supp. 3d 1342, 1343
(J.P.M.L. 2015) (denying centralization, in part because of the procedural disparity of the subject
actions).
Finally, the record leaves us unconvinced that the common factual issues are sufficiently
complex to warrant centralization. The website for Prevagen lists only a single clinical trial of the
supplement’s efficacy to date – the Madison Memory Study,2 a study sponsored by defendant Quincy
Bioscience, LLC, that compared the effects of apoaequorin (10 mg) versus placebo over time on the
outcomes of certain “CogState Research tests.” The report describing that study and its results is
only ten pages long. It is not apparent that expert discovery and Daubert motion practice in this
litigation will be particularly extensive or time-consuming.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Ellen Segal Huvelle
Catherine D. Perry

2

The website also has links to two safety studies.

Charles R. Breyer
R. David Proctor

IN RE: PREVAGEN PRODUCTS MARKETING
AND SALES PRACTICES LITIGATION

MDL No. 2783

SCHEDULE A

Northern District of California
RACIES v. QUINCY BIOSCIENCE, LLC, C.A. No. 4:15-00292
District of New Jersey
VANDERWERFF v. QUINCY BIOSCIENCE HOLDING COMPANY, INC., ET AL.,
C.A. No. 2:17-00784
Eastern District of New York
KARATHANOS v. QUINCY BIOSCIENCE HOLDING COMPANY, INC., ET AL.,
C.A. No. 2:17-01091
Southern District of New York
FEDERAL TRADE COMMISSION, ET AL. v. QUINCY BIOSCIENCE HOLDING
COMPANY, INC., ET AL., C.A. No. 1:17-00124