Michael Tubbs v. AdvoCare International, L.P.
2:17-cv-04454
C.D. Cal.Sep 12, 2017Background
- Plaintiffs (Tubbs, Baker, Porras, Hall) filed a putative class action alleging AdvoCare’s “24‑Day Challenge” products (including Spark) were falsely advertised as providing energy, mental focus, and weight‑loss benefits that they do not deliver.
- Claims pleaded: UCL (§17200), False Advertising (§17500), breach of implied and express warranties (Cal. UCC), CLRA, and unjust enrichment; plaintiffs sought class relief and money damages.
- Defendant removed to federal court under CAFA, asserting minimal diversity, large putative class size, and an amount in controversy (after investigation) of up to $30 million; Plaintiffs moved to remand as untimely.
- Defendant moved to dismiss the first amended complaint principally on the ground that Plaintiffs allege only lack of substantiation (not falsity), which California law bars private litigants from suing on; also raised Fed. R. Civ. P. 9(b) and standing issues.
- Court took judicial notice of three public articles cited in the complaint (Nutrition Reviews, NY Times, EFSA) but found they only show lack of substantiation, not falsity or involvement of AdvoCare.
- Court denied remand (complaints were indeterminate on face as to CAFA amount) and granted defendant’s motion to dismiss for failure to plead falsity with sufficient factual particularity, while granting leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of removal under §1446(b) (remand) | Removal was untimely because defendant received the initial complaint/service April 26 and removed after 30 days | Initial/amended complaints were indeterminate as to CAFA amount; defendant could investigate and remove after discovering sufficient amount in controversy | Denied remand — complaints were indeterminate so §1446(b) clock not triggered; removal after investigation was timely |
| Whether pleading alleges falsity vs. mere lack of substantiation | Plaintiffs assert advertising is untrue and cite studies and personal non‑benefit experiences to support falsity | Plaintiffs plead only absence of scientific substantiation; private plaintiffs cannot sue solely for lack of substantiation under California law | Granted dismissal — claims rest on impermissible lack‑of‑substantiation theory and fail to allege specific falsity |
| Adequacy of cited studies/articles to plead falsity | The cited Nutrition Reviews, NYT, EFSA studies support that claims are false or unreliable | Those sources show only lack of evidence generally and do not test AdvoCare products specifically | Courts reject inapposite or inconclusive studies; these show lack of substantiation, not falsity, so insufficient |
| Sufficiency of plaintiffs’ personal experience allegations | Plaintiffs say they did not experience advertised benefits, which supports falsity | Anecdotal, vague statements (which products, dosing, timing, objective measures) are conclusory and insufficient to plead falsity plausibly | Personal anecdotes as pleaded were too vague; plaintiffs must plead more specific personal facts or convincing evidence to survive dismissal |
Key Cases Cited
- Kwan v. SanMedica Int’l, 854 F.3d 1088 (9th Cir. 2016) (private plaintiffs cannot enforce California substantiation requirements; must plead actual falsity)
- Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121 (9th Cir. 2013) (if pleading is indeterminate on removability, defendant may remove after investigation)
- Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136 (9th Cir. 2013) (removability determined from four corners; do not treat as strict dichotomy)
- Harris v. Bankers Life & Cas. Co., 425 F.3d 689 (9th Cir. 2005) (notice of removability is based on the pleadings, not subjective knowledge)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a plausible claim for relief)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (conclusory allegations insufficient; courts must identify well‑pleaded factual allegations)
- National Council Against Health Fraud v. King Bio Pharm., 107 Cal. App. 4th 1336 (Cal. Ct. App. 2003) (only prosecuting authorities may demand substantiation; private plaintiffs cannot base claims solely on lack of substantiation)