VPX Meltdown Supplement Class Action Lawsuit Denied Certification

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A Florida federal judge has denied certification to a class action lawsuit against Vital Pharmaceuticals Inc. over allegations that the company falsely advertised its fat-burning supplement VPX Meltdown Fat Incinerator, due to management problems.

U.S. District Judge James Cohn said Monday that the VPX Meltdown supplement class action lawsuit filed by New York resident Adam Karhu presents too many administrative difficulties and the classes would be unmanageable.

“First, the court lacks a practical method of verifying membership in the proposed classes of Meltdown purchasers. No central record of Meltdown customers exists, and it is unlikely that each Meltdown purchaser since 2008 has retained a proof of purchase,” Cohn explained in his March 3 ruling.

The other problem Judge Cohn found with the proposed VPX Meltdown supplement class action lawsuit is that the nationwide Class would have Class Members from different states, which would each have their own requirements of “proof” for each member, depending on where they were from, the judge added.

“These legal permutations would render an eventual trial unwieldy, and would overshadow the common factual questions that otherwise unite the class members’ claims,” Cohn wrote. “Class treatment of this action is therefore inappropriate.”

Cohn also explained that the breach of express warranty claim under the Magnuson-Moss Warranty Act usually relies on elements of state warranty laws.

Karhu’s class action lawsuit against Vital, filed on April 3, 2013, alleged that its claim that the Meltdown formula would “burn fact” and help customers lose weight rapidly was false advertising.

“The applicable state warranty law in this action is the law of the state where each class member purchased Meltdown,” Cohn wrote. “Because warranty law differs from state to state, the legal issues peculiar to each state’s members of the nationwide class will likely predominate over common legal and factual questions, rendering . . . certification of the [Magnuson-Moss Warranty Act] claim inappropriate.”

The New York man was suing for both monetary and injunctive relief. Karhu’s charges against the supplement maker included breach of express warranty under the Magnuson-Moss Warranty Act, breach of express warranty, unjust enrichment, and violating the Florida Deceptive and Unfair Trade Practices Act. He had also charged Vital with violating New York General Business Law.

The VPX supplement class action lawsuit was for anyone who had purchased VPX Meltdown Fat Incinerator since April 4, 2008.

Karhu said that the class could be determined based on information obtained from Vital’s own sales data, but Cohn said that this wouldn’t work, since its product isn’t usually sold to customers directly but to distributors and retailers instead.

The judge explained that the supplement is not like a car or major appliance, in which purchasers are likely to keep receipts, and that even if they had retained their receipts that courts didn’t typically rely on such proofs to identify class members.

The plaintiff is represented by Barry L. Davis and Daniel Lever of Thornton Davis & Fein PA and by Scott A. Bursor and Yitchak Kopel of Bursor & Fishe PA.

The defendant is represented by in-house counsel Victoria N. Godwin.

The VPX Meltdown Fat Incinerator Class Action Lawsuit is Kahru v. Vital Pharmaceuticals Inc., Case No. 0:13-cv-60768, in the U.S. District Court for the Southern District of Florida.