Sharifan v. Neogenis Labs, Inc.

Filing 27

MEMORANDUM AND RECOMMENDATIONS re 11 MOTION to Dismiss 7 Amended Complaint/Counterclaim/Crossclaim etc . Objections to M&R due by 8/16/2022(Signed by Magistrate Judge Andrew M Edison) Parties notified.(rcastro, 4)

Case 4:21-cv-01940 Document 27 Filed on 08/02/22 in TXSD Page 1 of 22
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ABDEE SHARIFAN on behalf of
himself and for all others similarly
situated,
Plaintiff.
VS.
NEOGENIS LABS, INC. D/B/A
HUMANN,
Defendant.

August 02, 2022
Nathan Ochsner, Clerk

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§ CIVIL ACTION NO. 4:21-cv-01940
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§

MEMORANDUM AND RECOMMENDATION
Before me is Defendant’s Motion to Dismiss Plaintiff’s First Amended
Complaint. See Dkt. 11. After considering the motion, the parties’ briefing, oral
argument, and the applicable law, I recommend the motion be GRANTED.
INTRODUCTION
Defendant Human Power of N Company (“HumanN”), formerly known as
NeoGenis Labs, Inc., markets functional foods and dietary supplements that
incorporate beetroot power and other ingredients under the brand name
“SuperBeets®.” HumanN’s product line includes its original SuperBeets Powder—
containing beetroot and fermented beetroot powder that is mixed with water—and
SuperBeets Soft Chews, a dietary supplement containing beetroot powder and
grape seed extract in a chewable form.
In June 2021, Plaintiff Abdee Sharifan (“Sharifan”) sued HumanN, on behalf
of himself and other similarly situated individuals, for violations of the Texas
Deceptive Trade Practices Act (“DTPA”) and common-law fraud. The general
thrust of Sharifan’s lawsuit is that HumanN falsely and deceptively marketed its
Soft Chews as if they contained the same formula as its SuperBeets Powder. More
specifically, Sharifan alleges HumanN advertised that its “Soft Chews had the exact

Case 4:21-cv-01940 Document 27 Filed on 08/02/22 in TXSD Page 2 of 22

same health benefits as the original Super[B]eets products” and that “[t]his
advertising convinced [him] to purchase the Super[B]eets Soft Chews.” Dkt. 7 at 9.
In support of his claims that HumanN deceptively marketed its Soft Chews,
Sharifan’s Amended Complaint includes images of HumanN’s purportedly
misleading advertisements and social media posts.
HumanN has moved to dismiss Sharifan’s Amended Complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). HumanN’s chief
argument is that the advertisements or communications Sharifan cites in his
Amended Complaint objectively demonstrate that no reasonable consumer would
believe its Soft Chews “contained the exact same formula and ingredients” as its
SuperBeets Powder. See Dkt. 11 at 9–10. Subsumed within this argument is
HumanN’s claim that Sharifan’s pleadings fail to satisfy Rule 9(b)’s heightened
pleading standard for claims grounded in fraud. HumanN also argues Sharifan has
failed to allege facts that demonstrate his reliance on HumanN’s alleged
misrepresentations was reasonable—an essential element for both DTPA and fraud
claims. See id. at 13–14.
In response, Sharifan argues that he is not required to identify the specific
advertisement(s) he relied upon or articulate exactly when or where he saw the
advertisement(s) to survive the motion-to-dismiss stage. Rather, under Rule
12(b)(6)’s deferential standard, Sharifan maintains it is sufficient that he has
alleged that “HumanN launched an extensive television and print advertising
campaign in which HumanN marketed the Super[B]eets Soft Chews as containing
the same formula as Super[B]eets [Powder]” and that he relied on those
advertisements. Dkt. 19 at 11. But even if he were required to specify the
advertisements upon which he relied, Sharifan insists that he has done so. See id.
at 13.
SHARIFAN’S OPERATIVE PLEADINGS
To contextualize my decision, it is important to understand how Sharifan
has framed his Amended Complaint. Sharifan essentially divides his allegations
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into three parts. He begins by describing, generally, HumanN’s development of its
SuperBeets products. See Dkt. 7 at 4–6. The second section concerns HumanN’s
marketing campaign for its new product line, which includes Soft Chews, and its
purported misrepresentations about those products. See id. at 6–9. Finally, in the
third section, Sharifan cursorily explains how HumanN supposedly duped him into
purchasing its Soft Chews. See id. at 9–10.
A.

HUMANN’S PRODUCT DEVELOPMENT
According to Sharifan, HumanN was at the forefront of the “beet root juice”

movement, beginning in 2009. See id. at 4. More specifically, Sharifan claims
HumanN “develop[ed] a specific fermentation process which allowed the use of
[beets] to deliver HumanN’s patented composition of matter containing both
nitrite and nitrate to deliver nitric oxide.” Id. Enhanced nitric oxide production,
Sharifan argues, can decrease muscle soreness, boost exercise performance, and
lower blood pressure. See id. at 5.
In 2013, HumanN launched Beet Elite, which targeted the “sports
performance market.” Id. After achieving some success, HumanN then developed
its SuperBeets Powder—which Sharifan intermittently refers to as the “original”
SuperBeets or simply “SuperBeets”—a product intended for the general public.1 To
promote its SuperBeets Powder, Sharifan claims that HumanN “heavily marketed
the fact that Super[B]eets used a special fermentation process to preserve nitric
oxide activity.” Id.
At some unspecified time thereafter, HumanN got into a royalty dispute with
the University of Texas Health Science Center over a licensing agreement
concerning Beet Elite and SuperBeets Powder.2 See id. at 5–6. To avoid paying

1

SuperBeets Powder is simply a one-half dose of Beet Elite. See Dkt. 7 at 5.

Though not clearly articulated, it appears that HumanN initially teamed up with Nathan
Bryan, a faculty member at the University of Texas Health Science Center at Houston, to
develop its original product line (i.e., Beet Elite and SuperBeets Powder). See Dkt. 7 at 4
(“HumanN was started in 2009 based on Nathan Bryan’s patented nitric oxide technology
licensed out of the University of Texas Health Science Center at Houston.”).

2

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royalties, Sharifan claims that HumanN launched a new product line “that did not
contain [S]uper[B]eets or the patented nitric oxide technology.” Id. at 6. This new
product line included SuperBeets Soft Chews. See id.
B.

HUMANN’S ADVERTISING CAMPAIGN FOR ITS SOFT CHEWS
According to Sharifan, HumanN named and marketed its new products “as

if they contained the exact same formula as the original Super[B]eets [Powder]”
and “enhanced nitric oxide” production. Id. Immediately following this allegation,
Sharifan includes examples of HumanN’s supposedly misleading advertisements
and social media posts. But, as explained below, the advertisements and posts
severely undermine Sharifan’s allegations.
Beginning with the advertisements, Sharifan uses an apples-to-oranges
comparison, juxtaposing an advertisement for the Original SuperBeets Crystals
(i.e., SuperBeets Powder) next to an advertisement announcing HumanN’s
rebranding of its Soft Chews as “Heart Chews”:3

Id. at 7. To the left is the advertisement for SuperBeets Powder, while the
rebranding advertisement is to the right. Sharifan asserts that “HumanN markets
the new products as if they contained the exact same [S]uper[B]eets and used the
exact same nitric oxide boosting formula as the original Super[B]eets.” Id. at 6.
Below is an enlarged image of the latter:


In February 2021, HumanN rebranded its Soft Chews as Heart Chews. See Dkt. 11 at 28
n.7. For purposes of consistency, I use “Soft Chews” throughout.
3

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Id. at 7.
When viewed in isolation, it’s plain as day that the tagline “New Look, Same
Amazing Benefits” does not so much as hint that HumanN claimed its Soft Chews
offered the same benefits as its SuperBeets Powder.4 See id. Rather, the
advertisement only proves that HumanN promoted its Heart Chews as having the


In his response to HumanN’s Motion to Dismiss, Sharifan elaborates on why he chose
to place the Soft Chews advertisement next to an advertisement for SuperBeets Powder,
explaining that he did so because the packaging is “virtually identical.” Dkt. 19 at 17 (“Both
products have the same names, both use the same fonts, and both use the same picture of
beets. The only difference is that the [Soft Chews] appear[] to be the chewable version.”).
4

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“Same Amazing Benefits” as its Soft Chews. Moreover, the Soft Chew’s packaging’s
left-hand corner prominently advertises its “Clinically Researched Grape Seed
Extract,” an ingredient not found in SuperBeets Powder. See id.
As for the social media posts—both of which are not dated—the first is from
an unidentified platform (presumably Facebook) where someone operating
HumanN’s social media account wrote:

Id. Even the most generous reading of this post does not imply that the two
products “are identical.” See id. (“HumanN tells consumers these new products are
identical to the original Super[B]eets formula.”). Instead, as demonstrated by the
products’ nutrition labels—which I discuss momentarily—the statement that both
products contain beetroot powder is not misleading.
Immediately following the message discussed above, Sharifan doubles
down, alleging that HumanN used its official Facebook page to tell consumers that
its “new products contain the exact same formula as the original Super[B]eets.”
Id. (emphasis added). Sharifan accompanies this allegation with an image of a
conversation over Facebook messenger that reads:
6

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Id. at 8.

7

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The person operating HumanN’s Facebook account then sent images of the
products’ respective nutrition labels:

See id. The top two nutrition labels are for SuperBeets Powder (original and black
cherry flavor), while the bottom nutrition label is for SuperBeets Soft Chews.
Because the ingredient lists are likely indecipherable, I’ve included a breakdown
below:
Product

Ingredients

SuperBeets Powder

Non-GMO Beetroot Powder, Non-GMO Beetroot
Powder (fermented), Natural Apple Flavor (or
Natural Black Cherry Flavor), Malic Acid,
Magnesium Ascorbate, Stevia Leaf Extract
Beet Root Powder, Enovita Grape Seed Extract (Vitis
vinifera), Tapioca Syrup, Raw Cane Sugar, Rice
Bran, Natural Flavors, Sunflower Lecithin,
Sunflower Oil, Malic Acid, Glycerin, Citric Acid,
Rebaudioside A (Stevia rebaudiana Leaf)

SuperBeets Soft
Chews

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As you can see, both products include beetroot powder, and the nutrition
labels plainly demonstrate that the products do not contain “the exact same
formula” and ingredients. Id. at 7.
C.

SHARIFAN’S RELIANCE ON HUMANN’S ADVERTISEMENTS
According to Sharifan, “[f]or years . . . [he] saw HumanN’s advertising for its

[S]uper[B]eets [Powder],” but “it was not until HumanN began heavily advertising
Super[B]eets Soft Chews in 2020 that [he] actually began purchasing HumanN’s
products.” Id. at 9. Specifically, advertisements claiming that HumanN’s “Soft
Chews had the exact same health benefits” and “contained the exact same
formula and ingredients as the original [S]uper[B]eets products” “convinced
Sharifan to purchase the Super[B]eets Soft Chews . . . . in late 2020 and early
2021.”5 Id. at 9–10. See also id. at 9 (“This advertising convinced Sharifan to
purchase the Super[B]eets Soft Chews because they contain nitric oxide.”).
Sharifan concludes that he “would not have purchased the Super[B]eets Soft
Chews if he had known the product did not contain the original [S]uper[B]eets
formula or did not contain nitric oxide.”6 Id. at 10.



Sharifan also alleges that he “ordered the nitric oxide testing strips sold by HumanN
because he was purposefully misled to believe that Super[B]eets Soft Chews contained
nitric oxide.” Dkt. 7 at 10. Tellingly, however, he does not claim that he used the testing
strips on himself, nor does he mention the results of any such test. See id. Although this
ultimately does not factor into my decision, one would assume Sharifan would highlight
the test results if they furthered his claim that the Soft Chews contain a knockoff beetroot
powder. See, e.g., id. at 6 (“HumanN’s new products used a cheap beet that did not contain
any detectable amounts of nitrite or nitrate. . . . HumanN even falsely claimed these new
products ‘activate nitric oxide’ when they actually contain no nitric oxide and do not
activate nitric oxide.”).
5

As an aside, neither product contains nitric oxide. Rather, beets are high in nitrates that
your body converts into nitric oxide. This discrepancy persists throughout Sharifan’s
briefing. See, e.g., Dkt. 7 at 9 (“This advertising convinced Sharifan to purchase
Super[B]eets Soft Chews because they contain nitric oxide.”); Dkt. 19 at 14 (“If
Super[B]eets Soft Chews contained the same beetroot powder that Super[B]eets [Powder]
has, then why does only Super[B]eets [Powder] have nitric oxide?”).
6

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LEGAL STANDARD
A.

RULE 12(b)(6)
Rule 12(b)(6) allows for the dismissal of a complaint for the “failure to state

a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). To survive a
motion to dismiss under Rule 12(b)(6), a plaintiff’s complaint must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
In deciding a Rule 12(b)(6) motion, I must “accept all well-pleaded facts as
true, drawing all reasonable inferences in the nonmoving party’s favor.” Benfield
v. Magee, 945 F.3d 333, 336 (5th Cir. 2019). I “do not, however, accept as true legal
conclusions, conclusory statements, or naked assertions devoid of further factual
enhancement.” Id. at 336–37 (cleaned up). Because a complaint must be liberally
construed in favor of the plaintiff, a motion to dismiss under Rule 12(b)(6) is
generally viewed with disfavor and is rarely granted. See Harrington v. State Farm
Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009).
B.

RULE 9(b)’S HEIGHTENED PLEADING STANDARD
When a plaintiff’s claims are grounded in fraud, the plaintiff must satisfy the

heightened pleading requirements of Rule 9(b), which provides: “In alleging fraud
or mistake, a party must state with particularity the circumstances constituting
fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s
mind may be alleged generally.” FED. R. CIV. P. 9(b). This heightened pleading
standard applies to the fraud and DTPA claims Sharifan asserts in this case. See
SHS Inv. v. Nationwide Mut. Ins. Co., 798 F. Supp. 2d 811, 815 (S.D. Tex. 2011)
(“causes of action arising under DTPA . . . or common law fraud must satisfy Rule
9(b)”).

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Rule 9(b)’s particularity requirement generally demands the complaint
identify the “who, what, when, where, and how” of the allegedly fraudulent content.
See United States ex rel. Williams v. Bell Helicopter Textron, Inc., 417 F.3d 450,
453 (5th Cir. 2005) (“At a minimum, this requires that a plaintiff set forth the who,
what, when, where, and how of the alleged fraud.” (cleaned up)). That is, a plaintiff
pleading fraud must “specify the statements contended to be fraudulent, identify
the speaker, state when and where the statements were made, and explain why the
statements were fraudulent.” Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302
F.3d 552, 564–65 (5th Cir. 2002) (quotations omitted). See Bennett v. Lindsey (In
re Lindsey, 733 F. App’x 190, 192 (5th Cir. 2018) (“At a minimum, these rules
require that a plaintiff allege the nature of the fraud, some details, a brief sketch of
how the fraudulent scheme operated, when and where it occurred, and the
participants.” (quotation omitted)).
“What constitutes particularity will necessarily differ with the facts of each
case.” Afshani v. Spirit SPE Portfolio 2006-1, L.L.C., No. 21-10137, 2022 WL
964201, at *3 (5th Cir. Mar. 30, 2022) (quotation omitted). Nonetheless, Rule 9(b)
sets a “high bar.” Colonial Oaks Assisted Living Lafayette, L.L.C. v. Hannie Dev.,
Inc., 972 F.3d 684, 694 (5th Cir. 2020). Naked assertions devoid of further factual
enhancement will not suffice. See In re Lindsey, 733 F. App’x at 192.
DISCUSSION
A.

SHARIFAN’S AMENDED COMPLAINT FAILS TO SATISFY RULE 9(b)’S
HEIGHTENED PLEADING STANDARD
This case turns on Rule 9(b)’s what, when, how, and—to a lesser extent—

where elements. Before jumping into my analysis, below is a quick recap of why
Sharifan alleges he purchased Soft Chews:
x “For years[,] Sharifan saw HumanN’s advertising for its
[S]uper[B]eets products including the original Super[B]eets with
nitric oxide”;

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x “[I]t was not until HumanN began heavily advertising Super[B]eets
Soft Chews in 2020 that Sharifan actually began purchasing HumanN
products”;
x “HumanN’s advertising of Super[B]eets Soft Chews claimed the Soft
Chews had the exact same health benefits as the original Super[B]eets
products”;
x “This advertising convinced Sharifan to purchase the Super[B]eets
Soft Chews because they contain nitric oxide”;
x “Sharifan purchased Super[B]eets Soft Chews believing the product
contained nitric oxide because of the advertising of HumanN claiming
the Super[B]eets Soft Chews contained the exact same formula and
ingredients as the original [S]uper[B]eets products, including nitric
oxide”; and
x “Sharifan would not have purchased Super[B]eets Soft Chews if he
had known the product did not contain the original [S]uper[B]eets
formula or did not contain nitric oxide.”
Dkt. 7 at 9–10. Notably missing is any mention of the representation(s) that
convinced Sherifan to purchase Soft Chews. Nor does Sharifan claim he relied
upon the example advertisements or social media posts included in his Amended
Complaint.
HumanN contends that Sharifan’s allegations do not contain nearly all the
requisite detail required under Rule 9(b). See Dkt. 11 at 25–26. Sharifan’s response
is a bit disjointed, but he principally argues that he is not “required to identify the
specific advertisements he relied on and articulate exactly when he saw the
advertisements.” Dkt. 19 at 5. Instead, he maintains that his Amended Complaint
sufficiently describes how “HumanN launched an extensive television and print
advertising campaign in which HumanN marketed the Super[B]eets Soft Chews as
containing the same formulation as Super[B]eets [Powder],” which convinced him
to purchase the Soft Chews. Id. at 11 (citing Dkt. 7, ¶¶ 23–24).
To begin, the term “advertising campaign” is nowhere to be found in
Sharifan’s Amended Complaint, though it repeatedly appears in his response to the
Motion to Dismiss. Nonetheless, I have scoured Sharifan’s Amended Complaint.

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When it comes to allegations concerning any type of advertisement for HumanN’s
“new products,” Sharifan alleges as follows:
x After a royalty dispute concerning SuperBeets Powder, “HumanN
created a new line of ‘Super[B]eet’ products that did not contain
[S]uper[B]eets or the patented nitric oxide technology”;
x “Despite the fact that these new products did not contain
[S]uper[B]eets and did not enhance nitric oxide in the body, they were
named and marketed as if they contained Super[B]eets and as if they
enhanced nitric oxide”;
x “HumanN named these [new] products, and then marketed these
[new] products, as if they contained the exact same formula a[s] the
original Super[B]eets”;
x “HumanN’s new products used a cheap beet that did not contain any
detectable amounts of nitrite or nitrate”;
x “HumanN knew these products do not contain Super[B]eets and do
not have any detectable amounts of nitrite or nitrate”;
x “Despite knowing this, HumanN marketed these products as if they
contained Super[B]eets and improved nitric oxide production once
consumed”; and
x “HumanN even falsely claimed these new products ‘activate nitric
oxide’ when they actually contain no nitric oxide and do not activate
nitric oxide.”
Dkt. 7 at 6.
Cutting to the chase, Sharifan’s vague mention of a nebulous advertising
campaign is of such a high level of generality that it fails to provide even the most
minimal context so that HumanN can identify the advertisement(s) at issue and
prepare its defense accordingly.7 Indeed, the only mention of when the advertising


See, e.g., Kearns v. Ford Motor Co., 567 F.3d 1120, 1125–26 (9th Cir. 2009) (dismissing
fraud claim under Rule 9(b) where plaintiff did not specify what the advertisements
stated, when he was exposed to the allegedly misleading advertisements, or which
advertisements he found material); Douglas v. Renola Equity Fund II, LLC, No. CIV.A.
13-6192, 2014 WL 1050851, at *6 (E.D. La. Mar. 14, 2014) (finding allegation that
defendant “utilized television and print advertisements to communicate
misrepresentations” failed to satisfy Rule 9(b) because it did not “state when the
advertisements appeared . . ., the frequency with which they ran, or what specifically was
7

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campaign took place is sometime “in 2020.” Id. at 9 (“it was not until HumanN
began heavily advertising Super[B]eets Soft Chews in 2020 that Sharifan actually
began purchasing HumanN’s products”). More importantly, Sharifan’s sweeping,
generalized allegations that HumanN effectively marketed its Soft Chews as if they
were identical to its SuperBeets Powder offer no particularity about the contents
of the false representations. Further, despite harping on the phrase “television and
print advertising campaign” in his response to HumanN’s Motion to Dismiss,
Sharifan’s Amended Complaint never mentions the medium in which the
advertisements appeared (e.g., television, print, internet, radio, etc.),8 nor does it
provide any details concerning the extent or frequency of circulation among
consumers.
Those issues aside, the advertisements and social media posts Sharifan has
included in his Amended Complaint belie the allegations that accompany them. If
anything, they prove the opposite. Indeed, Sharifan’s claim that HumanN’s social


said”); R & L Inv. Prop., LLC v. Hamm, No. 3:10-CV-00864-M, 2011 WL 2462102, at *4
(N.D. Tex. June 21, 2011) (dismissing claim that defendants marketed a property as
having a waste-water treatment permit because the plaintiff “fail[ed] to specify who made
the advertisement, when, and where”); Ryan v. Brookdale Int’l Sys., Inc., No. CIV.A. H06-01819, 2007 WL 3283655, at *7 (S.D. Tex. Nov. 6, 2007) (“Without knowing when an
advertisement ran, much less where it was seen or heard, a defendant may have little
ability to identify the particular advertisement and prepare its defense. Because [plaintiff]
failed to indicate when he observed the allegedly fraudulent statements with a level of
specificity that would provide notice to defendants, he fails to meet the requirements of
Rule 9(b).”); Johnson v. Metabolife Int’l, Inc., No. CIV.A.3:01-CV-2082-G, 2002 WL
32494514, at *3 (N.D. Tex. Oct. 23, 2002) (“[Plaintiff’s] repled deceit and fraud claim
identifies neither the time nor the place of these alleged misrepresentations. . . . Nor does
she allege the specific contents, context, or speaker of these advertisements. [Plaintiff]
has also failed to present any facts to support an inference of [defendant’s] alleged
fraudulent intent. Finally, [plaintiff] does not adequately show how any alleged
statements on behalf of [defendant] were actually fraudulent. Thus, the deceit and fraud
claim . . . lacks sufficient particularity to comply with Rule 9(b).”).
It’s safe to assume the social media posts are from the internet. But the Amended
Complaint’s only mention of a television advertisement concerns an infomercial for
SuperBeets Powder. See Dkt. 7 at 5 (“Super[B]eets [Powder] gained popularity . . . .
HumanN even filmed an infomercial describing the nitric oxide activity of beets and how
these performance enhancing vegetables could increase nitric oxide production.”).
8

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media posts “tell[] consumers these new products are identical to the original
Super[B]eets formula” is demonstrably false and confuted by the posts themselves.
See id. at 7–8. What’s more, the respective products’ nutrition labels prove beyond
doubt that the Soft Chews do not “contain[] the exact same formula and
ingredients as the original [S]uper[B]eets [Powder].” Id. at 10. Perplexingly,
Sharifan even acknowledges that the products contain different ingredients,
though he tries his best to downplay this unfortunate fact. See Dkt. 19 at 18 (“Other
than a few minor additional ingredients in the chews, the only difference between
the two is that one is a powder, and one is chewable.”).
As for the side-by-side advertisements, Sharifan changes his tune in
response to the Motion to Dismiss. Instead of arguing that “HumanN markets [Soft
Chews] as if they contained the exact same [S]uper[B]eets and used the exact same
nitric oxide boosting formula,” Dkt. 7 at 6, Sharifan now insists the two products’
packages are indiscernible:
HumanN claims that consumers should simply know that the heavily
advertised [SuperBeets Powder] contains completely different
nutritional qualities than the nearly identically packaged [Soft
Chews]. They are virtually identical. Both products have the same
names, both use the same fonts, and both use the same picture of
beets. The only difference is that the [Soft Chews] appear[] to be the
chewable version of the [SuperBeets Powder].
Dkt. 19 at 17.
Put bluntly—yes, anyone exercising a modicum of discretion would realize
the two products contain different ingredients. Cf. Kommer v. Bayer Consumer
Health, 252 F. Supp. 3d 304, 312 (S.D.N.Y. 2017) (“Assuming that a reasonable
consumer might ignore the evidence plainly before him attributes to consumers a
level of stupidity that the Court cannot countenance.” (quotation omitted)), aff’d
sub nom. Kommer v. Bayer Consumer Health, 710 F. App’x 43 (2d Cir. 2018).

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More importantly, Sharifan’s after-the-fact explanation does not somehow cure
the fact that Sharifan does not allege he was duped by the products’ packaging.9
While I agree that the products’ packaging is somewhat similar, it is not so
similar that a consumer would confuse the two products. As explained above, the
products’ ingredients are listed prominently on the back of their packaging.
Further, the Soft Chews’ packaging conspicuously advertises it contains “Clinically
Researched Grape Seed Extract” and promotes: (1) normal blood pressure; (2)
heart-healthy energy; and (3) blood flow. See Dkt. 7 at 7.10 Nowhere on the
SuperBeets Powder package does it make any of these claims.11 See id.
Given that Sharifan accuses HumanN of repeatedly misleading consumers
with claims that its Soft Chews are, for all intents and purposes, identical to its
SuperBeets Powder, it is difficult to fathom why he is not able to come forward with
more detailed facts.12 It is not as if the facts relating to the purported fraud are


“The Fifth Circuit . . . and other district courts within this circuit have either held or
strongly suggested that Rule 9(b)’s particularity requirement extends to allegations of
actual reliance.” In re BP P.L.C. Sec. Litig., No. 4:12-CV-1256, 2013 WL 6383968, at *39
(S.D. Tex. Dec. 5, 2013) (collecting cases). In other words, to surmount the hurdle of Rule
9(b), a plaintiff must “describe the circumstances of [his] reliance with particularity.” Id.
(cleaned up).
9

Sharifan includes a higher quality image of the Soft Chews’ packaging in his response.
See Dkt. 19 at 17.
10

The advertisement for SuperBeets Powder Sharifan juxtaposed next to the Soft Chews’
advertisement does claim that one serving “helps promote”: (1) nitric oxide production;
(2) improved natural energy and stamina; (3) healthy circulation; and (4) healthy blood
levels. See Dkt. 7 at 7. But even when generously comparing the Soft Chew’s packaging
with this unrelated advertisement, the two products objectively do not claim to offer “the
exact same health benefits.” Id.
11

Admittedly, there is caselaw outside this circuit that holds where a plaintiff alleges a
years-long fraudulent scheme, he need only plead representative examples and need not
detail each individual representation. See Goldberg v. Rush Univ. Med. Ctr., 929 F. Supp.
2d 807, 819 (N.D. Ill. 2013) (“A plaintiff who pleads a fraudulent scheme involving
numerous transactions over a period of years need not plead specifics with respect to
every instance of fraud, but he must at least provide representative examples.” (quotation
omitted)). But Sharifan has not even pleaded representative examples. As amply
explained, the advertisements and social media posts are not misleading. What’s
misleading is Sharifan’s description of them.
12

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peculiarly within the opposing party’s knowledge; this case centers around public
statements made as part of an “extensive” advertising campaign. Cf. U.S. ex rel.
Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 385 (5th Cir. 2003)
(“the pleading requirements of Rule 9(b) may be to some extent relaxed where, as
is arguably the case here, the facts relating to the alleged fraud are peculiarly within
the perpetrator’s knowledge”).
While I “must accept all well-pleaded factual allegations as true for the
purpose of a motion to dismiss, conclusory allegations and unwarranted
deductions of fact are not admitted as true, especially when such conclusions are
contradicted by facts disclosed by a document appended to the complaint.” Carter
v. Target Corp., 541 F. App’x 413, 417 (5th Cir. 2013) (cleaned up). Here, Sharifan’s
allegations are contradicted by the very advertisements and social media posts
upon which he attempts to build his house of cards. See Dkt. 19 at 13.
But even if I were to buy Sharifan’s argument that his laconic—not to
mention vague—discussion of HumanN’s advertising campaign satisfied Rule
9(b)’s who, what, where, and how elements, Sharifan’s claims still fail as he does
not identify when the fraudulent statements were made. Stated differently,
Sharifan is unable to point to a single advertisement or social media post
supporting his claim that HumanN’s Soft Chews contained the same formula as its
SuperBeets Powder.
On this point, Sharifan insists that he is not required to identify the specific
advertisements he relied on when he decided to purchase the Soft Chews and that
his nebulous mention of HumanN’s “television and print advertising campaign” is
enough to survive the motion-to-dismiss stage. See Dkt. 19 at 11. Sharifan’s
argument principally relies on a recent case out of the Corpus Christi Division—
Click v. General Motors LLC, No. 2:18-CV-455, 2020 WL 3118577 (S.D. Tex. Mar.
27, 2020).
In Click, a group of plaintiffs sued General Motors LLC (“GM”), alleging GM
“intentionally concealed and suppressed material facts related to defective CP4
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fuel injection pumps installed in [their] diesel-tank trucks.” Id. at *1. Regarding
the alleged fraud, the plaintiffs’ live pleadings cited to GM advertisements, press
releases, and brochures in which GM claimed that its diesel trucks had increased
fuel efficiency, “proven durability,” and an “advanced” diesel engine. Id. at *4.
None of the advertisements, however, mentioned that the vehicles were
incompatible with American diesel fuel. See id. Regarding Rule 9(b)’s who, what,
and where elements, the district court found it sufficient that the plaintiffs
identified “specific GM publications—which contradict[ed] or omit[ted]
information known to the company—on which [they] base[d] their claims.” Id. at
*5 (emphasis added).
Next, the district court found the allegations that the plaintiffs “saw GM’s
advertisements in the weeks and months prior to their purchases” and “relied on
these statements when they purchased their trucks,” coupled with the “pleadings[’]
reference [to] specific advertisements, press releases, and brochures issued by
GM” satisfied Rule 9(b)’s when element. Id. at *6 (emphasis added). Quoting a case
out of the Central District of California, the Click court went on to write: “Thus,
Defendant’s argument that Plaintiff must demonstrate which particular
advertisement induced him to purchase the [vehicle] is premature at the pleading
stage.” Id. (quoting True v. Am. Honda Motor Co., 520 F. Supp. 2d 1175, 1183 (C.D.
Cal. 2007)).
Sharifan seizes on the above-quoted language, arguing that he, too, is not
required to identify the particular advertisement(s) upon which he relied to survive
the motion-to-dismiss stage. But Sharifan’s strident attempt to bend the facts of
this case to fit Click’s reasoning is an unfortunate elevation of rhetoric over reason.
By my count, the Click plaintiffs’ live pleadings cited 13 different
advertisements or publications in which GM made material, affirmative
representations about its vehicles’ performance or quality. See Case No. 2:18-CV00455, Docket Entry No. 9 at 53–60. For example, one brochure referred to the
diesel engine as “[t]he crown jewel of the heavy-duty realm,” claiming it generated
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“more maximum horsepower and torque than ever before,” improved “highway
fuel economy by more than 11%,” and offered “up to 680 highway miles on a single
tank.” Id. at 55. The plaintiffs further claimed that they relied on GM’s false
representations or omissions (e.g., that its diesel engine was compatible with
American diesel fuel, durable, or reliable) when purchasing their vehicles and
would not have done so absent GM’s representations or omissions.
On that record, the Click court found it was not necessary for each plaintiff
to identify the particular advertisement on which he or she relied at the pleading
stage. Rather, the pleadings’ reference to “specific advertisements, press releases,
and brochures”—any one of which was arguably misleading—coupled with a
general averment that the plaintiffs relied on those or similar statements within
“the weeks and months prior to their purchases.” Click, 2020 WL 3118577, at *6.
In other words, those pleadings gave GM “fair notice of the plaintiffs’ claims,”
Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994), such that it
could “prepare an effective response and defense.” Campbell v. Tex. Tea
Reclamation, LLC, No. 3:20-CV-00090, 2021 WL 2211690, at *2 (S.D. Tex. May
6, 2021) (quotation omitted).
Comparing the pleadings in Click to those in this case is like comparing
Monet to a child’s finger paintings. While Sharifan may be correct that he need not
allege which particular advertisement induced him to purchase the Soft Chews at
the pleading stage, he cannot simply refer to an amorphous advertising campaign
and then claim that an unspecified advertisement—which he viewed at an
unspecified time—convinced him to purchase the Soft Chews. See generally
Corbett v. Pharmacare U.S., Inc., 544 F. Supp. 3d 996, 1007 (S.D. Cal. 2021)
(“Plaintiffs only allege when they purchased Defendant’s Products but fail to
specify when they saw and relied on the alleged misrepresentations or misleading
advertisements or labeling. Plaintiffs must identify a time period when they saw
the false advertisements.”). Otherwise, any plaintiff could file a lawsuit alleging the
most outlandish fraud claim, vaguely reference indeterminate advertisements,
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argue the advertisements are misleading and form the basis of said fraud claim—
similar to what Sharifan has done in this case—and survive the motion-to-dismiss
stage. This flies in the face of Rule 9(b)’s heightened pleading requirement. See
Garlough v. FCA US LLC, No. 2:20-CV-01879-JAM-AC, 2021 WL 1534205, at *6
(E.D. Cal. Apr. 19, 2021) (dismissing fraud-based claim where plaintiff did not
“specify what advertisements he saw, when or where he saw them, what specific
representations were made in them or how the[] representations were false”).
Moreover, a fraud-based claim is all but eviscerated when the plaintiff’s
complaint supplies examples of the supposed misrepresentations (e.g.,
advertisements), and those examples flat out contradict the complaint’s allegations
of fraud. See, e.g., Microsoft Corp. v. My Choice Software, LLC, No. C18-608 RAJ,
2018 WL 9662626, at *8 (W.D. Wash. Sept. 28, 2018) (dismissing false-advertising
claims brought under the Lanham Act where the advertisements cited in the
complaint directly contradicted allegations in the complaint). See also GFF Corp.
v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384–85 (10th Cir. 1997)
(explaining that while the court must generally accept all well-pleaded factual
allegations as true, the court need not accept factual allegations belied by
documents properly considered under Rule 12(b)(6)); Cicalese v. Univ. of Tex.
Med. Branch, 456 F. Supp. 3d 859, 866 (S.D. Tex. 2020) (“[A] court is not required
to strain to find inferences favorable to the plaintiff and is not to accept conclusory
allegations, unwarranted deductions, or legal conclusions.”).
Without belaboring the point, for the reasons discussed above, Sharifan’s
Amended Complaint falls well short of Rule 9(b)’s heightened pleading
requirement.
B.

LEAVE TO AMEND
Sharifan concludes his response to the motion to dismiss with a cursory

request for leave to amend his pleadings pursuant to Rule 15(a)(2). Although
district courts “should freely give leave [to amend] when justice so requires,” FED.
R. CIV. P. 15(a)(2), leave to amend is by no means automatic. See Avatar Expl., Inc.
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v. Chevron, U.S.A., Inc., 933 F.2d 314, 320 (5th Cir. 1991). As the Fifth Circuit has
explained on numerous occasions, the ultimate decision to grant or deny a motion
to amend rests within the sound discretion of the trial judge. See id. When
exercising its discretion to allow or deny leave to amend, the district court can
consider a number of factors, such as “the futility of amending, the party’s repeated
failure to cure deficiencies by previous amendments, undue delay, or bad faith.”
United States ex rel. Marcy v. Rowan Cos., 520 F.3d 384, 392 (5th Cir. 2008).
While the language of Rule 15(a)(2) evinces a bias in favor of granting leave to
amend, a district court need not grant a futile motion to amend. See Legate v.
Livingston, 822 F.3d 207, 211 (5th Cir. 2016).
Shortly after the lawsuit was filed, defense counsel met with Sharifan’s
counsel to discuss alleged deficiencies in Plaintiff’s Original Class Action
Complaint. See Dkt. 6 at 1. “While not agreeing that there [we]re deficiencies in the
initial Complaint as pled, counsel for Plaintiff stated that Plaintiff [would] file an
amended Complaint.” Id. Sharifan filed the First Amended Complaint on
September 10, 2021. See Dkt. 7. Then, in accordance with the Court’s procedures,
HumanN filed a pre-motion letter, requesting the opportunity to file a motion to
dismiss. See Dkt. 8. I held a pre-motion hearing at which time, according to my
minute entry from those proceedings, Sharifan’s counsel “stated that he did not
need to amend the complaint further.” Min. Entry dated Oct. 5, 2021. I am a tad
surprised that Sharifan’s counsel is now claiming that Sharifan should be
permitted to amend his complaint yet again.
Sharifan provides absolutely no basis or detail for the requested
amendment. In an ideal world, Sharifan would have provided me with a proposed
amended complaint to review. Nonetheless, his “failure to attach a copy of the
proposed complaint is not, on its own, fatal to a motion to amend.” Peña v. City of
Rio Grande City, 879 F.3d 613, 618 (5th Cir. 2018). What does, however, doom
Sharifan’s request to amend is his failure to apprise me of what additional facts he
would include in a Second Amended Complaint. “[A] bare bones motion to amend
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remains futile when it fails to apprise the district court of the facts that he would
plead in an amended complaint.’’ Edionwe v. Bailey, 860 F.3d 287, 295 (5th Cir.
2017) (cleaned up). Because Sharifan has failed to explain what facts would be
included in yet another amended pleading, his latest request to amend should be
denied as futile. See Rombough v. Bailey, 733 F. App’x 160, 165 (5th Cir. 2018)
(“[Plaintiff] failed to apprise the court of the facts she would plead in her amended
complaint; therefore the district court did not err when it denied her motion to
amend as futile.”).
CONCLUSION
For the above reasons, I recommend that the Court GRANT HumanN’s
Motion to Dismiss (Dkt. 11) and DISMISS Sharifan’s claims with prejudice to
refiling.
The Clerk shall provide copies of this Memorandum and Recommendation
to the respective parties who have 14 days from the receipt to file written objections
pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002–13.
Failure to file written objections within the time period mentioned shall bar an
aggrieved party from attacking the factual findings and legal conclusions on
appeal.
Signed on this 2nd day of August 2022.

_____________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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