Vemma Verve False Ad Class Action Moved to AZ Federal Court

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A class action lawsuit accusing beverage company Vemma Nutrition of misleadingly marketing its Vemma Verve energy drinks as “doctor formulated” was moved by a federal judge to the a federal court in the company’s home state of Arizona.

Lead plaintiff, New York state resident John Horanzy, filed the Vemma Verve class action lawsuit in a New York federal court. In his class action lawsuit, the plaintiff alleged that Vemma Nutrition made a number of false health claims about it’s products, including energy drink Vemma Mangosteem and Vemma Verve. The plaintiff claims that he purchased Vemma Verve products based on health claims made by the company, but the products failed to deliver the promised results.

Horanzy alleges in his energy drink class action lawsuit that Vemma made claims that its Vemma Verve energy drinks increase immune responses and improve overall health. Horanzy argues that a “consensus of published research” concludes these claims are false.

Vemma Nutrition asked the court to move the case to Arizona. Last week, U.S. District Court Judge David N. Hurd agreed with Vemma Nutrition and transferred the case to an Arizona federal court. Judge Hurd determined that the factors favoring removal of the class action to Arizona outweighed the plaintiff’s preference to try the case in the state of New York.

The judge also pointed out in his order that because Horanzy seeks to represent a nationwide class of Vemma consumers, the cases connection to New York state becomes more tenuous.

“New York would make perfect sense as a forum if [the plaintiff] sought only to vindicate personal claims related to the in-person purchase of Vemma’s products in New York,” said Judge Hurd in his order about the Vemma Verve class action lawsuit.

“But while he does seek to ultimately represent a subclass of those who made purchases in this state,” he continued, “the class action lawsuit focuses on Vemma’s fraudulent activity allegedly occurring nationwide.”

Judge Hurd noted that Vemma is an online retailer which sells products to customers who become members. Further, Vemma does not operate a traditional retail outlet in New York, nor does it have an office in the state. Instead, Vemma is operated out of Arizona. The judge reasoned that the court in Arizona would have more familiarity with the governing law and it would be more convenient for witnesses for the case to be tried in Arizona.

“Indeed, only the first factor in the transfer analysis — plaintiff’s choice of forum — truly weighs in his favor, while the remaining factors either favor transfer or are neutral between the parties,” Judge Hurd wrote. “On balance, and after considering all of the relevant factors, defendants have met their burden of showing transfer is warranted.”

Vemma has faced legal scrutiny in addition to this class action lawsuit. In 2013, a different class action lawsuit was filed alleging that the company was repeatedly billing consumers following online purchases of Vemma products. Additionally, the Federal Trade Commission filed a complaint over marketing claims made by the Vemma Verve energy drinks, including that they were “clinically studied” and “doctor formulated.” The FTC also contested the company’s claims that a “God’s Recipe” could cure attention deficit and hyperactivity disorders.

The lead plaintiff is represented by Yitzchak Kopel and Yeremey O. Krivoshey of Bursor & Fisher PA.

The Vemma Verve False Advertising Class Action Lawsuit is Horanzy v. Vemma Nutrition Company et al., Case No. 7:14-cv-01296, in U.S. District Court for the Northern District of New York.