Judge Tosses Super Beta Prostate Class Action Lawsuit Over Bogus Ads

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Super Bowl quarterback Joe Theismann dodged the biggest danger since his playing days and injuries on Tuesday when a judge dismissed a class action lawsuit against him, ruling that the two plaintiffs could not pursue claims that the prostate supplement he endorses is unsafe and ineffective because they already received refunds for their purchases.

Super Beta Prostate is advertised as a natural supplement that alleviates the symptoms of benign prostate hyperplasia (“BPH”).

Theismann showed up on TV in commercials for Super Beta Prostate, made by NAC Marketing Co., where the sportscaster says he uses the prostate supplement and does not have to use the bathroom as frequently. Lead plaintiff Floyd Luman filed a false advertising class action lawsuit against Theismann and NAC in April 2013, alleging that the marketing claims are nothing but “an elaborate hoax.” A second plaintiff, Joel Amkraut, later joined the complaint.

In a ruling issued Feb. 4, federal Judge Kimberly J. Mueller noted that “a case is moot when ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation’ at issue.” In this case, Luman had already received a refund from NAC prior to filing the Super Beta Prostate class action lawsuit, and Amkraut received his refund the same day the class action was filed.

Since both men sought damages as restitution, the claims are not transitory, meaning that they had been redressed by the refunds. In addition, Judge Mueller could not “conclude that defendants’ litigation strategy has been to ‘pick off’ lead plaintiffs in class actions[,]” because Luman had received his refund prior to the lawsuit. Both men had sent letters to the defendants requesting a remedy for violations of California’s Consumer Legal Remedies Act.

As a result, NAC had satisfied their demands by choosing to “correct, repair, replace or otherwise rectify the goods alleged to be in violation,” which they were “required to send CLRA pre-suit letters only if they intended to seek monetary relief,” Judge Mueller said.

The Super Beta Prostate class action lawsuit had sought to obtain damages for California consumers who purchased Super Beta Prostate supplement products, citing a study that reportedly found that the principal ingredient does not affect the condition of benign prostate hyperplasia. In addition, the men said that the appearance of a paid actor named “Dr. Zielinski, M.D.” who endorsed the product made them think it was more useful than it was.

Claims beyond the CLRA included violations of the Magnuson Moss Warranty Act, California’s Unfair Competition Law and False Advertising Laws; breaches of express and implied warranties and unjust enrichment.

The plaintiffs are represented by class action lawyers L. Timothy Fisher, Sarah N. Westcot, Annick M. Persinger and Scott A. Bursor of Bursor & Fisher PA.

The Super Beta Prostate False Advertising Class Action Lawsuit is Floyd Luman, et al. v. Joe Theismann, et al., Case No. 13-cv-00656, in the U.S. District Court, Eastern District of California.