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District Court Judge Barry Ted Moskowitz offered a light at the end of the tunnel Monday for plaintiffs in a class action lawsuit over Hydroxycut weight-loss products by refusing to pare certain claims from an amended complaint, but will require more information before allowing the case to proceed against retailers including BJ’s Wholesale Club, CVS, GNC, KMart and others.
The Jan. 27 ruling comes nearly two months after Judge Moskowitz denied final approval of a $25.3 million Hydroxycut class action settlement over concerns the cy pres distribution (charity donation) did not satisfy the standards for cy pres relief set forth by the Ninth Circuit Court of Appeals. In light of the ruling, the defendants decided to proceed with previous motions to dismiss the class action lawsuit, which were filed before the settlement agreement was reached.
In the second amended complaint, consumers alleged that retail stores advertised Hydroxycut products in a way that misled customers about the safety efficacy of Hydroxycut, but of particular issue for Judge Moskowitz was that they were sounded in fraud. This leads to a heightened standard for plaintiffs, he decided. According to a Ninth Circuit Court of Appeals ruling cited in the Jan. 27 order, plaintiffs must be able to “allege with specificity the circumstances” that lead to “alleged misrepresentations.”
Currently, the plaintiffs have not done so, the judge wrote. While they say that they relied on the packaging of the weight loss products to make their purchasing decision, that is not considered under the control of a retailer because it would constitute “secondary liability” that is not permitted by the statutes cited in the case.
Further, “[p]laintiffs’ failure to specify which advertisements Plaintiffs were exposed to prior to purchase is fatal to their consumer protection claims because Plaintiffs must allege that each Retailer Defendant made, adopted, or controlled representations that Plaintiffs heard or saw prior to purchasing the products.” Customers would need to specify specific advertising by the retailers like CVS and GNC for Hydroxycut that went above and beyond simply showing the product.
However, the consumers are allowed to amend the Hydroxycut class action lawsuit with any evidence of retailer-controlled advertising that would help support their claims of misrepresentations that touted false claims. In addition, the judge refused to pare down the class action because of reliance on certain state statutes that proscribe class actions: he read recent precedents as allowing individual plaintiffs to join already extant class action lawsuits although they could not start them themselves.
The plaintiffs are seeking to represent all U.S. consumers who purchased the following Hydroxycut products between May 9, 2006 and May 1, 2009:
- Hydroxycut Regular Rapid Release Caplets
- Hydroxycut Hardcore Liquid Caplets
- Hydroxycut Regular Drink Packets
- Hydroxycut Hardcore Drink Packets (Ignition Stix)
- Hydroxycut Liquid Shots
- Hydroxycut Max Aqua Shed
- Hydroxycut Carb Control
- Hydroxycut Caffeine-Free Rapid Release Caplets
- Hydroxycut Max Liquid Caplets
- Hydroxycut Caffeine-Free Drink Packets
- Hydroxycut Max Drink Packets
- Hydroxycut Hardcore RTDs (Ready-to-Drink)
- Hydroxycut 24
- Hydroxycut Natural
Plaintiffs are represented by class action attorneys Timothy G. Blood, Leslie E. Hurst and Thomas J. O’Reardon II of Blood Hurst & O’Reardon LLP and Andrew S. Friedman, Elaine A. Ryan and Patricia N. Syverson of Bonnett Fairbourn Friedman & Balint PC.
The Hydroxycut False Advertising Class Action Lawsuits are centralized as In Re: Hydroxycut Marketing and Sales Practices Litigation, MDL No. 2087, U.S. District Court, Southern District of California.
UPDATE: A revised Hydroxycut class action settlement has been reached, according to court documents filed on April 21, 2014.
UPDATE 2: Instructions on how to file a claim for the Hydroxycut weight loss supplement class action settlement are now available! Click here or visit www.DietSupplementSettlement.com for details.
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6 thoughts onHydroxycut Class Action Lawsuit Needs More Clarification, Judge Says
UPDATE: Instructions on how to file a claim for the Hydroxycut weight loss supplement class action settlement are now available! Click here or visit http://www.DietSupplementSettlement.com for details.
A revised Hydroxycut class action settlement has been reached, according to court documents filed on April 21, 2014: http://topclassactions.com/lawsuit-settlements/lawsuit-news/24698-revised-14m-hydroxycut-false-ad-class-action-settlement-reached/
I used Hydroxycut off and on for about 5 years and stayed within 5 lbs of my original weight the whole time
I have been using Hydroxycut for years.
I have used Hydroxycut for about 6 months to a year
I used Hydrosxcut for like 2 years.