Seegert v. Rexall Sundown Inc.

California Consumer Remedies Act violation, Unfair competition, False advertising

Southern District of California

U.S. District Judge Roger T. Benitez

Amy Lally

Defense Lawyers: Sidley Austin LLP, Amy P. Lally, Adriane K. Peralta, Celia H. Spalding, Kara Lynn McCall; STratege Law LLP, Robert M. Traylor

Plaintiff's Lawyers: Blood Hurst & O'Reardon LLP, Thomas Joseph O'Reardon, II, Timothy G. Blood; Carlson Lynch LLP, Todd D. Carpenter, Edwin J. Kilpela

Amy P. Lally and her team successfully argued their client's product, Osteo Bi-Flex Triple Strength, didn't promise to reduce or improve joint pain.

The dietary supplement was advertised as a product that "helps strengthen joints while helping to maintain joint cartilage essential for comfortable joint movement," which the plaintiffs claimed was false in their class action.

However, U.S. District Judge Roger Benitez of the Southern District of California ruled the plaintiff's claims were preempted by the distinction between structure-function claims and disease claims in the dietary supplement industry.

"It immediately jumped out to me as a square peg, round hole situation and we were able to determine pretty early on that a very large, very robust body of scientific evidence existed to support the benefits of glucosamine on joint health," Lally said.

In other words, Osteo Bi-Flex Triple Strength did not have to go through the same pre-regulatory approval process as drugs required by the Food & Drug Administration.

Benitez ruled in April the product's advertised claim "would be a permissible structure/function claim, because it relates to maintaining normal function rather than treating joint pain."

Kara McCall

Lally and her team advocated to push the date of the summary judgment briefing to coincide with the class certification briefing after the close of discovery.

By doing so, she avoided a merry-go-round of having to go through a rule 23 briefing twice. Seegert v. Rexall Sundown Inc., 17-CV01243 (S.D. Cal., filed June 19, 2017).

The plaintiffs have appealed the case to the 9th U.S. Circuit Court of Appeals and the parties have continued briefing on it.

One of the plaintiffs' attorneys, Timothy G. Blood of Blood Hurst & O'Reardon LLP in San Diego, said one of the cases cited by Benitez in his ruling that pertained to similar claims was overturned by the 9th Circuit. Kroessler v. CVS Health Corporation, 19-55671 (9th Cir., filed June 12, 2019).

"The Kroessler case was overturned on appeal and we just don't see really any difference between the 9th Circuit's ruling and Kroessler and what the trial court did here," Blood said. "There really is no difference."

But Lally responded by noting Kroessler was about a motion to dismiss, a different procedural posture.

"So, the analysis that the court undertakes is whether the pleadings on their face state a cause of action and Seegert was on a motion for summary judgment, where the court isn't limited to looking at the pleadings and doesn't have to assume the facts to be favorable to the plaintiff," she said.

-- Arin Mikailian