United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
Waddoups United States District Judge
the court are Defendants' motions to dismiss pursuant to
Federal Rules of Procedure 9(b), 12(b)(1), and 12(b)(6) (Dkt.
Nos. 68, 69, & 70), and Plaintiff's motion to strike
or exclude evidence improperly submitted in Defendants'
motions (Dkt. No. 80). Defendants' motions assert that
the court lacks subject matter jurisdiction over each of the
individual defendants and over the warranty claims, except as
to Bremenn Research Labs; that Plaintiff has not pled a claim
upon which relief can be granted because she failed to plead
the fraud-based claims with particularity; and that Plaintiff
has not pled facts that, when accepted as true, satisfy the
elements of each of her claims. The court held oral argument
on the motions on May 18, 2017. Regarding Defendants'
motions, after careful consideration of the arguments the
parties set forth in their briefs and oral argument and for
the reasons set forth below, the court now GRANTS in part and
DENIES in part the standing motion and GRANTS Defendants'
other motions. Regarding Plaintiff's motion, the court
has taken it under advisement and excluded improper evidence
in reaching the conclusions herein.
Adelaide Spence brings this purported class-action lawsuit to
compensate damages she and other members of the purported
class suffered because of false and fraudulent advertising of
the dietary supplement Vysera-CLS. (Dkt. No. 64.) Plaintiff
contends that Defendants advertised a pill that would promote
significant weight loss through the malabsorption of calories
when Defendants knew that was scientifically impossible.
purchased Vysera-CLS on March 19, 2015 for $84.99 from a GNC
in New York after having reviewed advertisements on the
internet for the supplement. The advertisements she reviewed
claimed Vysera-CLS is a “miracle pill” and
“the amazing Cupcake Diet.” They further stated
that Vysera-CLS could help “reshape your entire body in
30 days” and promised that results would be achieved
“without requiring anybody to follow a low-calorie diet
or work out for hours every day!” She also contends
that the advertisements claimed the results are supported by
“groundbreaking research” published in the
British Journal of Nutrition, but that no such study
has been published. After taking Vysera-CLS as directed on
the product label, Plaintiff failed to lose any weight. She
relied upon the advertisements she saw and would not have
purchased the supplement if she had known that it was not
effective and “would not cause her to lose weight
without modifying her diet and without exercise.”
Plaintiff does not point to a specific advertisement that she
relied upon, but she does quote other print and web
advertisements for Vysera-CLS that claim the supplement can
reshape one's body within thirty days when the person
consumes 2000 to 2200 calories per day and without requiring
hours daily of exercise.
is produced and marketed by Bremenn Research Labs, LLC, a
subsidiary of Basic Research, LLC. Basic Research is a
multimillion-dollar nutraceutical company that
“develops, manufactures, promotes, markets,
distributes, and sells scores of cosmetics, nutritional
supplements, and dietary supplements” based in Salt
Lake City, Utah. The individual defendants were employees of
Basic Research and were involved in its subsidiary LLCs,
including Bremenn. Specifically, defendants Gay and
Friedlander directed the marketing of Basic Research's
products, including “labeling, advertising, and media
placement for Vysera-CLS and other dietary
supplements.” Defendant Strobel maintained a blog,
MyFreeDiet.com, where she posted advertising content for
Vysera-CLS. She also wrote advertisements that were published
in other locations.
Research, Gay, and Friedlander are subject to a permanent
injunction and Consent Decree with the Federal Trade
Commission, which prohibits them from marketing and selling
dietary supplements unless the claims regarding the
supplements are supported by “competent and reliable
scientific evidence.” On December 17, 2013, the
National Advertising Division of the Council of Better
Business Bureaus referred Vysera-CLS advertisements to the
FTC in light of the permanent injunction. Plaintiff makes no
claims that the FTC ever took any action against Defendants
related to Vysera-CLS.
supports her conclusion that the Vysera-CLS advertisements
were fraudulent by citing a 2003 study by the FTC that
concluded malabsorption of calories can only account for
approximately one-third of a pound of weight loss each week.
She also cites several studies discrediting the effectiveness
of P. vulgaris, which is listed as one of
Vysera-CLS's “proprietary weight control
component[s].” The studies date from 1982, 2004, 2011,
and 2014. Plaintiff does not contend that P.
vulgaris is the active ingredient or provide studies
discrediting other compounds at work in Vysera-CLS.
these and other representations, Plaintiff alleges
Defendants' conduct violated the Racketeer Influenced and
Corrupt Organizations Act, the Utah Pattern of Unlawful
Activity Act, the Magnuson-Moss Warranty Act, and the Utah
Consumer Sales Practices Act and constituted a breach of
express warranty and unjust enrichment. Defendants now seek
to have each claim dismissed.
first seek dismissal of each Individual Defendant from the
action under Federal Rule of Civil Procedure 12(b)(1),
claiming that the court lacks subject matter jurisdiction
over the Individual Defendants. (Dkt. No. 69.) Defendants
argue the court does not have jurisdiction because Plaintiff
lacks standing to pursue her claims when the Individual
Defendants did not cause her alleged injuries. The
jurisdiction of the federal courts extends only to such
actions that present a justiciable case or controversy. U.S.
Const. art. III, § 2; Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). For an action to
present a justiciable case or controversy, the plaintiff must
have standing to pursue it. Id. A plaintiff has
standing if she demonstrates (1) that she “suffered an
‘injury in fact'”; (2) that “a causal
connection [exists] between the injury and the conduct
complained of”; and (3) that it is
“‘likely, ' as opposed to merely
‘speculative, ' that the injury will be redressed
by a favorable decision.'” Id. at 560-61
(citations and internal quotation marks omitted). This burden
is not diminished here by the fact that Plaintiff purports to
bring a class action suit; she must show that she was
personally injured by these defendants and not simply that
some other, unidentified class members were injured.
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40
party invoking federal jurisdiction bears the burden of
establishing its existence.” Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 104 (1998). Because
the elements of standing “are not mere pleading
requirements but rather an indispensable part of the
plaintiff's case, each element must be supported in the
same way as any other matter on which the plaintiff bears the
burden of proof.” Lujan, 504 U.S. at 561.
“At the pleading stage, general factual allegations of
injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss we ‘presum[e] that
general allegations embrace those specific facts that are
necessary to support the claim.'” Id.
(quoting Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 889 (1990)) (alteration in the original); see
also Focus on the Family v. Pinellas Suncoast Transit
Auth., 344 F.3d 1263, 1273 (11th Cir. 2003) (concluding
that “the existence of record evidence of” the
defendant's “direct involvement” in the
conduct from which the plaintiff's injury arose was
sufficient to show causation for standing purposes). The
Tenth Circuit Court of Appeals has determined this amounts to
a “considerably” reduced burden. Petrella v.
Brownback, 697 F.3d 1285, 1292 (10th Cir. 2012); see
also Rothstein v. UBS AG, ...