Cardenas v. NBTY, Inc.
2012 U.S. Dist. LEXIS 63376
E.D. Cal.2012Background
- Plaintiff Liliana Cardenas, a California consumer, alleges Defendants NBTY Inc. and Rexall Sundown Inc. deceptively market Osteo Bi-Flex dietary supplements.
- Plaintiff claims she relied on labeling claims that Osteo Bi-Flex would improve mobility, renew cartilage, maintain healthy connective tissue, and improve joint comfort, and purchased Regular Strength accordingly.
- Defendants market eight Osteo Bi-Flex products through major retailers in California, with varying counts and prices, all asserted to provide joint benefits.
- Plaintiff contends there is no competent scientific evidence that the products’ ingredients (including glucosamine, chondroitin, 5-LOXIN Advanced/AKBA, and others) produce the claimed health benefits.
- Plaintiff alleges the advertisements and labels violate California’s CLRA and UCL and assert breach of express warranty, seeking damages, restitution, and injunctive relief.
- The court denied Defendants’ motion to dismiss after evaluating standing, pleading standards, and the sufficiency of Rule 9(b) allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue for unpurchased products | Cardenas has standing for the purchased Osteo Bi-Flex Regular Strength product. | Standing cannot extend to products not purchased or where ads were not viewed. | Plaintiff has standing for the purchased product; standing for non-purchased products to be addressed under Rule 23. |
| Whether CLRA/UCL claims sound in fraud requiring Rule 9(b) | Alleges elements of fraud in CLRA; claims rely on unsubstantiated health benefits. | Some claims merely lack substantiation; should be dismissed for pleading deficits. | CLRA claim must satisfy Rule 9(b); UCL claim also treated as sounding in fraud to the extent alleged. |
| Sufficiency of Rule 9(b) pleading for CLRA and UCL | Allegations specify misrepresentations and reliance with scienter and injury. | Allegations are vague about falsity and scienter; insufficient specificity. | Complaint pleads falsity and causation with specificity; satisfies Rule 9(b). |
| Adequacy of alleged health-benefit representations | Defendants’ claims about AKBA, glucosamine, and chondroitin lack competent evidence. | Advertising claims are adequately substantiated or not misleading as a matter of fact. | Plaintiff plausibly alleges the representations were false or misleading given lack of supporting scientific proof. |
| Pleading standards under 8(a) and admissible evidence on a motion to dismiss | Factual allegations, when accepted as true, support relief. | Pleading is deficient in some respects and should be dismissed with prejudice. | Court denies dismissal; allegations, taken as true, plausibly give rise to relief. |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must include plausible grounds for relief)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (two-step plausibility review for pleadings)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requires injury, causation, redressability)
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) (Rule 9(b) applies to fraud in CLRA/UCL claims)
- Engalla v. Permanente Med. Group, Inc., 15 Cal.4th 951 (Cal. 1997) (elements of fraud and justifiable reliance for California claims)
- Carideo v. Dell, Inc., 706 F. Supp. 2d 1122 (W.D. Wash. 2010) (standing/typicality considerations in class actions)
- Bruno v. Quten Research Inst., LLC, 280 F.R.D. 524 (C.D. Cal. 2011) (standing vs. typicality in claims for similar products)
- Hewlett-Packard Co. v. Superior Ct., 167 Cal.App.4th 87 (Cal. Ct. App. 2008) (class-wide claims across multiple models)