Judge Trims 5-Hour Energy False Ad. Class Action

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A false advertising class action lawsuit filed against the makers of 5-Hour Energy has had more allegations tossed by a California federal judge, after the plaintiffs filed an amended class action lawsuit.

U.S. District Judge Philip S. Gutierrez has dismissed the fraud allegations against makers of the energy drink, Innovation Ventures LLC and Living Essentials LLC, related to the 5-Hour Energy television ads and state breach of warranty claims, but he kept other warranty claims.

Judge Gutierrez had already dismissed most of the claims in the 5-Hour Energy multidistrict litigation, or MDL, in September 2014 including the alleged violations of California’s Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act. Some state breach of warranty and implied warranty claims were also dismissed.

Innovation Ventures told Judge Gutierrez that the plaintiffs had not proven that they read or heard the 5-Hour Energy advertisements at issue in the false advertising class action lawsuit.

Even though the plaintiffs filed an amended complaint to clarify some of these issues Judge Gutierrez had laid out in his September ruling, the California federal judge said that the amended complaint still lacked specificity about which of the 5-Hour Energy statements in the TV advertisements they had used to make their decision to purchase the energy drink.

“Alleging that plaintiffs ‘saw some of all of these television advertisements’ does not satisfy the pleading requirements under Rule 9(b) because it does not give defendants information about what specific statements plaintiffs’ relied on to their detriment,” Judge Gutierrez wrote.

“Further, the allegations made regarding each plaintiff that they saw ‘numerous advertisements, including on television’ is also too vague under Rule 9(b),” he added concerning the 5-Hour Energy class action lawsuits.

The plaintiffs allege in their 5-Hour Energy class action lawsuit that the energy drink makers deceived customers about the amount of caffeine in the beverage, which they claim accounts for a large percentage of the energy and focus benefits experienced from the drink.

Judge Gutierrez also dismissed breach of express warranty charges under both New York and Pennsylvania law, but did not give the plaintiffs leave to amend these claims, saying that the plaintiffs were supposed to give the 5-Hour Energy drink makers more pre-litigation notice of their complaints. The breach of implied warranty allegations asserted base on Pennsylvania law were also dismissed for the same reason.

The 5-Hour Energy MDL will continue primarily because the plaintiffs’ claims do pass according to the Magnuson-Moss Warranty Act, the California federal judge said, and the amount at issue — that the plaintiffs claim they bought multi-packs of 5-Hour Energy beverage products, which were more than $5 and the individual claims are more than $25.

The 5-Hour Energy makers were hit with several false advertising class action lawsuits in March 2013 alleging that the claim that the energy drink gives energy with “no crash,” downplaying the amount of caffeine in the energy drink.

The 5-Hour Energy class action lawsuits were consolidated into an MDL in June 2013.

The putative class is represented by Bursor & Fisher PA, Faruqi & Faruqi LLP, and Geragos & Geragos APC.

The defendants are represented by Gerald E. Hawxhurst and Daryl M. Crone of Crone Hawxhurst LLP.

The 5-Hour Energy False Advertising Class Action Lawsuit is In Re: 5-Hour Energy Marketing and Sales Practices Litigation, Case No. 2:13-ml-02438 in the U.S. District Court for the Central District of California.

UPDATE: On Jan. 23, 2017, the makers of 5-Hour Energy asked a federal judge to end a consolidated false advertising class action lawsuit in their favor, without going to trial. The defendants argued that evidence revealed in discovery destroys the plaintiffs’ claims that 5-Hour Energy is not effective.