Hughes v. Ester C Co.
930 F. Supp. 2d 439
E.D.N.Y2013Background
- Plaintiffs Hughes and Hodjat sue Ester-C Co., NBTY, Inc., and NatureSmart LLC in diversity for alleged nationwide false marketing of Ester-C products.
- Plaintiffs allege statements on packaging and website claim Ester-C provides immune support and superior vitamin C absorption, not supported by credible science.
- Claims span California CLRA, FAL, and UCL; Missouri MMPA; and New York unjust enrichment and misrepresentation, on behalf of respective state subclasses.
- Statements at issue include 'The Better Vitamin C,' '#1 Pharmacist Recommended Brand,' 'Immune Support,' 'Enhanced Absorption,' and '24 Hour Immune Support' among others.
- Plaintiffs also point to Ester-C’s website 'Ask An Expert' and retailers’ marketing (Amazon, Walmart, Sears) as further deceptive representations.
- Defendants move to dismiss, arguing lack of standing, lack of Rule 9(b) particularity, and failure to plead the required elements of the state-law torts; the court denies the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAC states fraud claims under state laws | Hughes and Hodjat plead misrepresentations and economic injury with particularity. | Plaintiffs lack substantiation and fail Rule 9(b) specificity. | Claims survive; facial plausibility and particularity adequate. |
| Whether the pleadings meet Rule 9(b) particularity for fraud claims | Plaintiffs identify speakers, places, times, statements, and reliance with supporting studies. | Lack of detail on specific products purchased and reliance; general lack of substantiation. | Rule 9(b) satisfied for California, Missouri, and New York fraud theories at this stage. |
| Whether state-law claims (CA CLRA/FAL/UCL, MO MMPA, NY unjust enrichment/int misrepresentation) are adequately pled | Allegations show misrepresentations about immune support and absorption; injury and causation shown. | Claims rely on lack of substantiation and improper reliance on broad marketing statements. | All asserted state-law claims survive review; sufficient pleading of elements at Rule 12(b)(6). |
Key Cases Cited
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) (Rule 9(b) applies to state consumer fraud claims)
- Gerber Prods. Co. v. Lyons, 552 F.3d 938 (9th Cir. 2008) (false advertising claims require likelihood of deception)
- Bober v. Glaxo Wellcome PLC, 246 F.3d 934 (7th Cir. 2001) (lack of substantiation claims cannot be sole basis for deception)
- Gredell v. Wyeth Labs, Inc., 367 Ill. App.3d 287, 854 N.E.2d 752 (2006) (substantiation necessary; absence does not prove deception)