Nutrition Distribution, LLC v. Enhanced Athlete, Inc., 2:17-cv-02069

Background

Plaintiff Nutrition Distribution, LLC (d/b/a Athletic Xtreme) sells a competing supplement, Slim FX, and sues defendants (Enhanced Athlete, Gilmore Engineering, Scott Cavell, Charles Hughes) for false advertising under the Lanham Act and for RICO violations based on defendants’ manufacture and marketing of products containing 2,4‑Dinitrophenol (DNP).
Plaintiff alleges defendants market DNP as an ingestible fat‑loss supplement despite DNP’s dangerous health effects, and that defendants’ reintroduction of DNP into the market caused Plaintiff’s sales to decline.
Plaintiff sought emergency relief: first an ex parte TRO (denied for procedural defects) and then a preliminary injunction to enjoin defendants from producing, licensing, marketing, and selling DNP products or forming entities to do so.
Defendants (some unserved) opposed the preliminary injunction; counsel appeared for some defendants solely to oppose the motion.
The district court evaluated the Winter factors for preliminary injunctions but found the dispositive question was whether Plaintiff demonstrated irreparable harm.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Plaintiff has shown likely irreparable harm to obtain a preliminary injunction	DNP is dangerous to third‑party consumers and Plaintiff lost sales after DNP reentered market (38% drop), so irreparable harm exists	Harm to third parties is not substitute for Plaintiff's own irreparable injury; lost sales are compensable by money and Plaintiff’s evidence is speculative	Denied — Plaintiff failed to show it is likely to suffer irreparable harm
Whether risk to third parties (consumer safety) supports irreparable harm showing	The public‑safety risk from DNP supports injunction	Court cannot rely on third‑party harms in place of plaintiff’s own irreparable injury	Rejected for irreparable‑harm prong; may be considered under public‑interest factor but not to show plaintiff’s irreparable harm
Whether a presumption of irreparable harm applies in false‑advertising cases	Plaintiff contends courts may presume irreparable harm where advertising is materially deceptive	Defendants and the court note Supreme Court and Ninth Circuit authority reject categorical presumptions for injunctions	Court declined to apply a presumption of irreparable harm
Whether Plaintiff’s sales evidence establishes causation and non‑remediable injury	Keplinger declaration reports a 38% sales decrease after DNP reintroduction	Evidence does not show a causal link and monetary relief could redress sales losses	Court found evidence speculative and compensable by damages; insufficient for injunction

Key Cases Cited

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (articulates Winter four‑factor preliminary injunction test)
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (plaintiff must likely suffer irreparable harm to obtain preliminary injunction)
eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) (rejects categorical presumptions with respect to injunctive relief)
Leatherman Tool Group, Inc. v. Coast Cutlery Co., 823 F. Supp. 2d 1150 (D. Ore. 2011) (declines to presume irreparable harm in false‑advertising cases)
National Products, Inc. v. Gamber‑Johnson LLC, 734 F. Supp. 2d 1160 (W.D. Wash. 2010) (example of case applying a presumption of irreparable harm in advertising disputes)
Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997) (earlier Ninth Circuit case relied upon by courts presuming irreparable harm)

Outcome: The court denied Plaintiff’s motion for a preliminary injunction because Plaintiff did not demonstrate it is likely to suffer irreparable harm.