Quote:
Originally Posted by gabecamp
It was thrown out I do believe. The lawsuit was that bsn prods. didn't have cem3 creatine in them. The test they used was for cee(creatine ethyl ester), BSN prods. had cem3(creatine ester malate) which is completely diff.. So obv. they didn't find cee. The lawsuit was all just a bunch of **** a crappy supp. company did to try and promote thier own supps. Don't believe all the stupid crap you've heard, cause it is not true!!!!!
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ROBINSON, CALCAGNIE & ROBINSON
CALL, JENSEN & FERRELL
NOVEMBER 13th, 2008
FOR IMMEDIATE RELEASE
Contact: Mark Robinson, Esq. 949.720-1288
beachlawyer51@hotmail.com
Scott Ferrell, Esq. 949.717.3000
sferrell@calljensen.com
James Hardin, Esq. 949.717.3000
jhardin@calljensen.com
COURT CERTIFIES CLASS ACTION AGAINST SUPPLEMENT MAKER BSN
Company Accused of Massive Fraud In False Advertising Lawsuit
Orange County, California ?C A California Federal Judge has certified a nationwide and statewide class action against supplement maker Bio-Engineered Supplements & Nutrition, Inc. (??BSN??). The lawsuit alleges that BSN sold tens of thousands of bottles of its products Cellmass, Nitrix, and N.O.-Explode based upon false labels and false advertising. Specifically, the suit alleges that BSN falsely claims that its products contain a new form of creatine called ??Creatine Ethyl Ester Malate??, or ??CEM3.?? The suit claims that not only did BSN??s products not contain CEM3, but that CEM3 does not exist and is impossible to manufacture.
In certifying the class, U.S. District Judge James V. Selna concluded that the plaintiffs had ??provided sufficient evidence to demonstrate that they may be able to prove the false representations at trial.?? The Court further concluded that the evidence presented by the Plaintiffs show ??evidence of a wide-spread advertising campaign which claims that CEM3 is a superior form of creatine?? and that the same evidence ??tends to indicate that the representations were made.?? Finally, the Court ruled that ??Rivera has provided sufficient evidence that the products did not contain CEM3?? and that BSN improperly engaged in an ??underlying scheme of promoting CEM3 as a superior form of creatine?? to allow the case to proceed to trial as a class action.
The Court certified a class of both California consumers and nationwide consumers. The Court defined the ??nationwide fraud class?? to include ??All persons residing in the United States who, from November 6th 2003 to the date of certification, purchased any BSN product labeled as containing Creatine Ethyl Ester Malate?? or ??CEM3??, including but not limited to ??Cellmass??, ??Nitrix??, and N.O.-Xplode?? products.?? The class is believed to include over 100,000 members nationwide, and the Court further noted that plaintiffs claim that ??the plaintiffs each lost $50 or more?? as a result of the alleged fraud.
Finally, the Court appointed the law firms of Robinson, Calcagnie & Robinson (
www.orangecountylaw.com) and Call, Jensen & Ferrell (
www.calljensen.com) as counsel for the class. Collectively, the two firms have obtained verdicts and settlements of several billion dollars in recent years.
??I am sure the members of this newly certified class will appreciate Judge Selna's ruling. We still have a lot of work to do, but we are looking forward to proceeding to trial on behalf of the many consumers in the class who have been damaged??, stated class counsel Mark. Robinson. ??We??re obviously quite pleased with the Court??s decision??, added class counsel Scott J. Ferrell. ??BSN perpetrated a massive fraud on unwary consumers. By far, the most important aspect of the ruling is the ability to enjoin BSN from making these fraudulent claims. We also look forward to promptly notifying the class members and getting this case in front of a jury as soon as possible. Classwide damages could easily exceed $100 million.??
# # #
For more information about the Rivera lawsuit or to schedule an interview with class counsel, please call Denise Reigel at 949.717.3000 or e-mail her at
dreigel@calljensen.com.
Attachment: Order Granting Class Certification
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 07-1306 JVS (RNBx) Date November 13, 2008
Title Michael Rivera, et al. v. Bio Engineered Supplements & Nutrition, Inc., et al.
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 26
Present: The
Honorable
James V. Selna
Karla J. Tunis Not Present
Deputy Clerk Court Reporter
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Not Present Not Present
Proceedings: (In Chambers)
Order Granting Plaintiff??s Motion for Class Certification (Fld 2-1-08)
Order Denying Defendants?? Motion to Exclude the Expert Declarations
of Richard Chamberlin and Jonathan Vennerstrom (Fld 10-22-08)
Plaintiffs Michael Rivera et al. (??Rivera??) seek class certification pursuant to
Federal Rule of Civil Procedure 23. Defendants Bio-Engineered Supplements &
Nutrition, Inc. et al. (??BSN??) oppose the motion.
I. BACKGROUND
BSN develops, manufactures, and sells nutritional supplements. Rivera alleges that BSN has sold tens of thousands of bottles of Cellmass, Nitrix, and N.O.-Xplode based on false labels and false advertising. Rivera alleges that BSN has and continues to proclaim that its products contain a supposedly new and improved form of creatine called ??Creatine Ethyl Ester Malate?? or ??CEM3.?? Rivera claims that not only did the products not contain CEM3, but that CEM3 does not exist and is impossible to manufacture. Rivera requests that this Court (1) certify a nationwide Rule 23(b)(2) class for injunctive relief; (2) certify a nationwide Rule 23(b)(3) unjust enrichment class; (3) certify a nationwide fraud Rule 23(b)(3) class; (4) certify a California Unfair Competition Law (??UCL??) Rule 23(b)(3) class; (5) appoint Plaintiffs Michael Rivera and Dan Abell as representatives for the class; and (6) appoint Robinson, Calcagnie & Robinson and Call, Jensen & Ferrell as class counsel pursuant to Fed. R. Civ. P. 23(g). Rivera also seeks class certification under Rule 23(b)(2) and 23(b)(3) of a California class. (Not. of Mot. p. 2.) Case 8:07-cv-01306-JVS-RNB Document 180 Filed 11/13/2008 Page 1 of 26
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 07-1306 JVS (RNBx) Date November 13, 2008
Title Michael Rivera, et al. v. Bio Engineered Supplements & Nutrition, Inc., et al.
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 26
II. LEGAL STANDARD
All class actions in federal court must meet the following four prerequisites for class certification: (1) the class is so numerous that joinder of all embers is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).
In addition, a plaintiff must comply with one of three sets of conditions set forth in Rule 23(b). Under Rule 23(b)(1), a class may be maintained if there is either a risk of prejudice from separate actions establishing incompatible standards of conduct or judgments in individual lawsuits would adversely affect the rights of other members of the class. Under Rule 23(b)(2), a plaintiff may maintain a class where the defendant has acted in a manner applicable to the entire class, making injunctive or declaratory relief appropriate. Finally, under Rule 23(b)(3), a class may be maintained
where common questions of law and fact predominate over questions affecting individual members and where a class action is superior to other means to adjudicate the controversy. The decision to grant or deny class certification is within the trial court??s discretion. Yamamoto v. Omiya, 564 F.2d 1319, 1325 (9th Cir. 1977). In doing so, a trial court is only required to form a reasonable judgment. Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975). In this regard, ??[t]he court is bound to take the substantive allegations of the complaint as true, thus necessarily making the class
order speculative in the sense that the plaintiff may be altogether unable to prove his allegations.?? Id. The Court may require the parties to provide additional material from which the Court may make an informed judgment as to each requirement of class certification. Id.
III. DISCUSSION
Case 8:07-cv-01306-JVS-RNB Document 180 Filed 11/13/2008 Page 2 of 26
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 07-1306 JVS (RNBx) Date November 13, 2008
Title Michael Rivera, et al. v. Bio Engineered Supplements & Nutrition, Inc., et al.
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 26
A. Is a Nationwide Class Action Appropriate? Rivera requests that this Court certify a nationwide Rule 23(b)(3) unjust enrichment class, a nationwide Rule 23(b)(3) fraud class, and a nationwide Rule
23(b)(2) class. (Mot. p. 2.) 1. Fraud and Unjust Enrichment: the Application of California Law Rivera first argues that the Court should apply California law to the unjust enrichment and fraud claims pursuant to Rule 23(b)(3). (Mot. p. 23.) This Court disagrees. In Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985), the U.S. Supreme Court explained that the Due Process Clause and the Full Faith and Credit Clause require ??that for a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither
arbitrary nor fundamentally unfair.?? In the present case, Rivera has not alleged nor has it provided any evidence that California has significant contacts to the out-of-state claims asserted. The Supreme Court also found that a court ??must first determine whether [the relevant state] law conflicts in any material way with any other law which could apply. There can be no injury in applying [the state??s] law if it is not in conflict with that of any other jurisdiction connected to this suit.?? Id. at 816. ??A material conflict
must have a significant possible effect on the outcome of the trial to bring into play choice of law rules.?? Simon v. Philip Morris Inc., 124 F.Supp.2d 46, 71 (E.D.N.Y. 2000). This Court finds that there are material conflicts between the California law of unjust enrichment and fraud and the laws of the other states. For example, Rivera concedes that ??most states allow fraud where the defendant knew the statement was false or made it recklessly or with indifference to its truth while a small minority of states require actual knowledge.?? (Trial Plan, p. 3.) In addition, BSN correctly argues that there are further fine distinctions between states regarding the knowledge
Case 8:07-cv-01306-JVS-RNB Document 180 Filed 11/13/2008 Page 3 of 26
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 07-1306 JVS (RNBx) Date November 13, 2008
Title Michael Rivera, et al. v. Bio Engineered Supplements & Nutrition, Inc., et al.
When will we know if BSN contains CEM3 or not?
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