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In Re: GNC Corp. V., 4th Cir. (2015)
In Re: GNC Corp. V., 4th Cir. (2015)
No. 14-1724
In re:
GNC CORPORATION; TRIFLEX PRODUCTS MARKETING AND
SALES PRACTICES LITIGATION (NO. II)
------------------YVONNE BROWN; SHAWN HOWARD, on hehalf of themselves and all
others similarly situated; MICHAEL LERMA, On Behalf of
Themselves and All Others Similarly Situated; JEREMY GAATZ,
On Behalf of Themselves and All Others Similarly Situated;
ROBERT TOBACK; ROBERT CALVERT; THOMAS FLOWERS; JOHN J.
GROSS; JUSTIN M. GEORGE; LOUIS LASTRES, on behalf of
themselves and all others similarly situated,
Plaintiffs - Appellants,
v.
GNC CORPORATION, a Delaware Corporation; GNC HOLDINGS, INC.;
RITE AID CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:14-md-02491-JFM)
Argued:
Decided:
ARGUED: Robert Jeffrey Berg, DENLEA & CARTON LLP, White Plains,
New York, for Appellants.
Joseph R. Palmore, MORRISON &
FOERSTER, LLP, Washington, D.C., for Appellees.
ON BRIEF: E.
Duncan Getchell, Jr., Richmond, Virginia, Gordon W. Schmidt,
Courtney S. Schorr, MCGUIREWOODS, LLP, Pittsburgh, Pennsylvania,
for Appellees.
are
consumers
produced
and
who
sold
by
purchased
GNC
and
joint
Rite
health
Aid.
The
that
GNC
and
Rite
Aid
have
violated
Appellants
the
consumer
shown
effective
that
than
osteoarthritis.
glucosamine
a
and
placebo
in
chondroitin
treating
are
the
no
more
symptoms
of
adequately
marketing
plead
falsity
representations.
motion in full.
describe
the
the
The
of
the
allegedly
district
court
misleading
granted
the
of
duly
qualified
and
reasonable
I.
Michael Lerma, Jeremy Gaatz, Robert Toback, Robert Calvert,
Shawn
Howard,
Thomas
Flowers,
John
Gross,
and
Justin
George
Inc.
(collectively
GNC)
3
and
Rite
Aid
Corporation
(Rite Aid).
in
several
ineffective
as
Companies)
deceptive
they
marketed
violated
the
and
and
that
the
supplements
GNC
and
Rite
that
various
advertising,
misrepresenting
alleged
state
consumer
express
effectiveness
of
warranty
the
Aid
are
(the
protection,
statutes
supplements. 1
by
The
pretrial
a
leadership
proceedings.
structure
Plaintiffs
and
filed
counsel
Consolidated
Because this
GNC TriFlex; GNC TriFlex Fast-Acting; GNC TriFlex Sport; and GNC
TriFlex
Complete
compounds
glucosamine
(glucosamine
ingredients
(HA).
Vitapak.
and
All
of
hydrochloride
chondroitin).
Fast-Acting
and
products
and
They
methylsulfonyl-methane
TriFlex
the
(MSM)
TriFlex
contain
chondroitin
also
all
and
sulfate
contain
hyaluronic
Sport
also
the
the
acid
contain
extract,
extract.
hops
cones
extract,
and
Chinese
skullcap
root
J.A.
30, 18993.
also
The
product
label
for
TriFlex
Fast-Acting
12-week
multi-center,
randomized,
double-blind,
placebo
Fast-Acting
Blend
and
J.A. 193.
was
shown
to
improve
joint
Id.
5
joint
health
dietary
Glucosamine/Chondroitin;
Rite
Glucosamine/Chondroitin;
Rite
Advanced
Aid
Complex;
supplements:
Rite
Rite
Aid
Aid
Natural
Glucosamine
Glucosamine
Aid
Chondroitin
Chondroitin,
Triple
The Rite
of
the
Rite
chondroitin.
Aid
All
products
of
the
Glucosamine/Chondroitin
Glucosamine/Chondroitin
purportedly
except
Rite
contain
HA,
Natural
and
various
All
represent
either
that
Chinese
Aid
including
Rite
Aid
MSM,
and
root
the
herbs
glucosamine
skullcap
of
beneficial
products
and
also
contain
they
promote[]
joint
J.A. 195205.
did
not
contain
the
advertised
quantities
of
benefits, and that they would not have purchased the products
but for the Companies false advertising.
brings
Count
IV
under
Illinoiss
Consumer
Fraud
and
Vitapak
in
Florida
and
brings
Count
under
the
Florida
seq.
Acting
Calvert,
in
warranty
Ohio
under
an
and
Ohio
resident,
brings
Ohios
Count
UCC,
Ohio
purchased
VIII
for
Rev.
TriFlex
breach
Code
Ann.
of
Fast-
express
1302.26.
statute,
N.Y.
Gen.
Bus.
Law
350.
Flowers,
Gross, a New
resident,
Glucosamine/Chondroitin
under
purchased
in
Pennsylvanias
Pennsylvania
Unfair
Trade
and
Aid
brings
Practices
Natural
Count
and
XIII
Consumer
essence,
representations
Plaintiffs
made
on
allege
the
that
products
the
various
packaging
health
are
false
indicates
that
glucosamine
conclusion,
Plaintiffs
cite
and
chondroitin
J.A. 33.
number
of
do
not
In support of
peer-reviewed
are
ineffective
at
treating
the
symptoms
of
J.A. 23.
these
clinical
studies
to
be
appropriate
proxies
for
arthritic
ingredients.
and
Id. n.5.
non-arthritic
users
of
these
of arthritis.
in
about
the
the
effectiveness
products,
or
cite
of
any
the
herbal
studies
compounds
regarding
the
claim
under
Procedure.
Rule
12(b)(6)
of
the
Federal
Rules
of
Civil
The
court found that the plaintiffs had failed to plead that any
reasonable
expert
would
conclude
from
the
cited
[scientific]
studies that glucosamine and chondroitin are ineffective in nonarthritic consumers, and concluded that under all of the state
consumer protection laws at issue in this case, [i]f there are
experts
who
support
advertisements,
the
misleading . . . .
court
held
that
what
[the
Companies]
advertisements
J.A. 248.
are
say
not
in
false
their
and
manufacturer
cannot
be
liable
for
false
plead (in accordance with Rule 11) that any reasonable expert
would
conclude
chondroitin
from
do
consumers.
not
J.A.
the
cited
improve
249.
studies
joint
that
health
Plaintiffs
glucosamine
in
declined
and
non-arthritic
the
courts
We
have
jurisdiction
over
final
judgments
of
the
filing
their
appeal,
Plaintiffs
moved
for
Rules
of
Civil
Procedure,
arguing
that
the
district
Although we
10
held in United States v. Williams, 674 F.2d 310, 313 (4th Cir.
1982), that Rule 60 does not authorize motions for correction of
a mistake of law, the district court elected not to deny the
motion on this ground and instead responded to the substance of
the motion.
court
reiterated
the
reasons
stated
in
its
initial
order
is
inconclusive.
Plaintiffs
did
not
file
II.
As a threshold matter, we must determine whether we have
jurisdiction
September
to
Order.
consider
Rule
Plaintiffs
3
of
the
purported
Federal
appeal
Rules
of
of
the
Appellate
11
In a
They
now
contendwithout
the
benefit
of
authority,
of
Rule
of
the
Federal
Rules
of
Appellate
to
file
post-judgment
motion
with
the
district
court
12
filing
of
appeal.
the
Rule
60
motion
tolls
the
time
for
filing
an
and
then
consolidate
the
appeals.
Fed.
R.
App.
P.
III.
A.
We
dismissal,
review
de
novo
accepting
the
an
appeal
complaint
from
as
Rule
true
and
12(b)(6)
drawing
Summers v.
Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014).
Rule
complaint
contain
short
and
plain
statement
of
the
claim
Fed. R. Civ.
unadorned,
accusation.
the-defendant-unlawfully-harmed-me
Ashcroft
v.
Iqbal,
556
U.S.
662,
678
(2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To state a claim to relief that is plausible on its face, a
plaintiff must plead factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.
Id.
B.
In order to state a plausible claim for relief under all of
the state consumer protection statutes specified in the CAC,
Plaintiffs must plead facts from which we might infer that the
representations
deceptive,
or
made
on
the
misleading. 6
products
The
packaging
district
court
were
held
false,
that
1.
The district court held that [i]f there are experts who
support what [the Companies] say in their advertisements, the
15
J.A. 248.
J.A.
Plaintiffs)
15 U.S.C. 1125(a).
cannot
invoke
the
protections
of
the
Lanham
Ct.
1377,
1390
(2014),
the
considerable
body
of
federal
16
literally
true
but
nevertheless
misleading.
See,
e.g., Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134,
1139 (9th Cir. 1997); BASF Corp. v. Old World Trading Co., 41
F.3d 1081, 1089 (7th Cir. 1994); Castrol Inc. v. Pennzoil Co.,
987 F.2d 939, 943 (3d Cir. 1993); see also 44 Am. Jur. Proof of
Facts
3d
1,
plaintiff
(2015)
arguing
that
(collecting
a
cases).
representation
is
Lanham
misleading
Act
must
enough
for
representation
consumers.
court
to
determine
could
have
after
fact
misled
that
hypothetical
the
false,
we
assume
as
matter
of
If a representation
law
that
it
is
also
misleading.
In construing the diverse state statutes at issue here, we
apply
this
broadly
shared
understanding
of
the
difference
Every statute at
issue
representations.
here
Although
imposes
each
state
liability
supplies
for
its
17
misleading
own
test
for
determining
whether
true
statements
are
misleading, 8
statements
that
are
The
Plaintiffs
elected
to
plead
that
the
Companies
is
products
show
improve
that
health
syllogism:
joint
glucosamine
more
than
(i)
the
health;
and
Companies
(ii)
scientific
chondroitin
placebo
represent
would;
do
not
(iii)
that
evidence
improve
therefore,
the
will
joint
the
See, e.g., Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 155
(2002) ([A] plaintiff must allege that he was, in some manner,
deceived.); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 69
(1985) (asking whether the ad itself is misleading to the
average consumer); Guggenheimer v. Ginzburg, 43 N.Y.2d 268,
27273 (1977) (In weighing a statement's capacity, tendency or
effect in deceiving or misleading customers, we do not look to
the average customer but to the vast multitude which the
statutes were enacted to safeguard including the ignorant, the
unthinking and the credulous . . . .).
18
at
providing
the
promised
joint
health
benefits.
J.A.
33,
and
the
overwhelming
weight
of
high
qualified
scientific
chondroitin
are
experts
may
agree
ineffective,
some
that
glucosamine
reasonable
experts
and
disagree
relief
promised
by
the
Companies.
In
other
words,
Plaintiffs have
However, we
concede
experts
that
agree
some
reasonable
with
and
scientific
duly
When
qualified
proposition,
they
(in
which
case,
there
19
is
no
real
battle
of
the
scientific
opinion
representations
cannot
characterizing
the
Plaintiffs
highlight
be
(in
which
case
said
to
literally
dispute
the
as
CACs
be
battle
concession
difference
of
scientific
opinion
glucosamine
and
chondroitin
can
the
false).
of
the
that
exists
provide
challenged
the
as
By
experts,
reasonable
to
whether
advertised
joint
health benefits.
Plaintiffs also object that our holding today would permit
a manufacturer of the most dubious product to engage an expert
and then contend it was immune from a consumer fraud action.
Appellants Br. at 18.
no
reasonable
scientist
would
agree
with
the
challenged
Having
Civil
Procedure,
they
need
not
fear
that
the
defendants
20
448 F.3d 268, 278 (4th Cir. 2006) (noting that Rule 11(b) is
violated
only
when
party
has
no
factual
basis
for
an
259 F.3d 194, 199 (4th Cir. 2001) (quoting Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 588 (1993)).
Our holding today should not be interpreted as insulating
manufacturers
of
consumer fraud.
nutritional
supplements
from
liability
for
the
representations
misleading,
because
made
on
Plaintiffs
the
chose
Companies
not
to
products
include
are
such
If plaintiffs
failed
to
plead
that
the
representations
21
based
on
this
2.
The CAC is also defective because it fails to allege that
all of the ingredients contained in the products are incapable
of providing the represented benefits.
CAC
glucosamine
alleges
and
that
chondroitin,
according
MSM,
and
to
HA
most
do
not
the
products
ingredients.
cited
in
the
complaint
scientists,
provide
the
However, most
contain
additional
root
extract,
and
fish
oil.
All
of
the
Rite
Aid
Natural
ingredients.
Glucosamine/Chondroitin
also
contain
additional
10
J.A. 125.
The
herbal
compounds
that
ostensibly
contribute
to
joint
See Toback
the
efficacy
of
the
TriFlex
Vitapaks
multifarious
23
advertised,
above
the
added)); McCrary
v.
(OPx),
6402217,
2013
(dismissing
supplement
WL
claims
when
speculative
Elations
at
regarding
plaintiff
Co.,
*5
LLC,
(C.D.
the
level.
No.
Cal.
overall
provided
EDCV
no
(emphasis
130242
Apr.
24,
2013)
formulation
scientific
JGB
of
studies
overall
formulation
of
all
products
except
for
Rite
Aid
does
not
allege
that
the
products
ingredients
are
ineffective as marketed.
3.
The Companies also argue that the studies cited in the CAC
are
not
specific
enough
to
raise
any
plausible
inferences
We find this
line
with
of
reasoning
unpersuasive
and
inconsistent
notice
the
Companies
argue
that
because
the
scientific
J.A. 23 n.5.
the
studiesjoint
stiffness,
pain,
and
discomfortare
the
CAC
cites
one
study
that
concluded
For
that
J.A. 3738.
without
arthritis,
but
such
factual
dispute
is
not
the
Companies
argue
that
the
scientific
studies
did
products
not
or
ingredients.
assess
the
the
specific
synergistic
They
argue
formulations
effects
that
the
between
studies
used
the
are
in
the
products
inapplicable
this stage is limited to the plausibility of the CAC and not the
ultimate truth of its allegations: The applicability of a study
25
regarding
products
different
at
issue
motion-to-dismiss
dosages
is
not
stage.
of
the
same
susceptible
See
Quinn
to
v.
ingredients
to
the
resolution
at
the
Walgreen
Co.,
958
F.
Plaintiff's
also
v.
Jovel
i-Health,
claim
facially
Inc.,
No.
plausible.);
12-CV-5614
(JG),
2013
see
WL
We therefore decline
IV.
For the foregoing reasons, we hold that the CAC fails to
state a claim upon which relief can be granted.
The judgment of
26