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Hughes v. Ester C Co.

Hughes v. Ester C Co.

United States District Court for the Eastern District of New York

March 15, 2013, Decided; March 15, 2013, Filed

No 12-CV-0041 (JFB) (ETB)

Opinion

 [*447]  MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

Plaintiffs Patrick Hughes ("Hughes") and Nafise Nina Hodjat ("Hodjat") (collectively, "plaintiffs") bring this class action in diversity on behalf of themselves and others similarly situated against Ester-C Company (a subsidiary of NBTY, Inc.), NBTY, Inc., and NatureSmart LLC (collectively, "defendants" or "Ester-C Co."). Specifically, plaintiffs allege that defendants have deceptively marketed their products ("Ester-C products" or "products") from January 5, 2006 through to the present, and that such marketing has, inter alia: created a reasonable expectation in Ester-C consumers that the products are a form of immune system defense; deceptively represented Ester-C as a superior source of Vitamin C than other sources; and made misleading representations as to Ester-C's health benefits that are not supported by credible science.  [**2] (See First Am. Class Action Compl. ("FAC") ¶¶ 1, 2, 9, 10.) In particular, plaintiffs allege violations of Missouri's Merchandising Practices Act, Mo. Rev. Stat. § 407.010 (on behalf of Missouri class members); violations of California's Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq. ("CLRA"), California's False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq. ("FAL"), and California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. ("UCL") (on behalf of California class members); and violations under New York common law, including unjust enrichment, intentional misrepresentation, and negligent misrepresentation as to all class members. (Id. ¶¶ 40-97.)

 [*448]  Defendants move to dismiss the FAC on three grounds: (1) failure to state a claim pursuant to Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure; (2) failure to plead fraud with particularity pursuant to Rule 9(b) of the Federal Rules of Civil Procedure; and (3) failure to properly allege the elements of the common law torts of intentional misrepresentation, negligent misrepresentation, and unjust enrichment.

For the reasons stated herein, defendants' motion is denied in its entirety.

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930 F. Supp. 2d 439 *; 2013 U.S. Dist. LEXIS 36652 **; 2013 WL 1080533

PATRICK HUGHES AND NAFISE NINA HODJAT, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, VERSUS THE ESTER C COMPANY, NBTY, INC., AND NATURESMART LLC, Defendants.

Subsequent History: Summary judgment denied by, in part Hughes v. Ester C Co., 99 F. Supp. 3d 278, 2015 U.S. Dist. LEXIS 39770 (E.D.N.Y., Mar. 27, 2015)

Class certification denied by, Motion denied by Hughes v. Ester C Co., 317 F.R.D. 333, 2016 U.S. Dist. LEXIS 144918 (E.D.N.Y., Sept. 30, 2016)

Summary judgment granted by Hughes v. Ester C Co., 2018 U.S. Dist. LEXIS 151032 (E.D.N.Y., Sept. 4, 2018)

CORE TERMS

Ester-C, consumers, products, vitamin, representations, plaintiffs', deceptive, marketing, substantiation, labeling, defendants', misleading, allegations, false advertising, advertising, fraudulent, FTC, unfair, packaging, motion to dismiss, product label, misrepresentation, immune, purposes, pled, immune system, unjust enrichment, absorption, decrees, scientific evidence