Cobra Sexual Energy Maker Fights Cert. Bid in Supplement Class Action

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UPDATE 2: On Oct. 23, 2020, a group of California consumers started seeking approval of a $100,000 settlement that would end a lawsuit claiming Nutraceutical Corp. used false promises of increased virility for men in advertising its “Cobra Sexual Energy” supplement.

UPDATE: On Jan. 8, 2020, a plaintiff alleging that Cobra Sexual Energy supplements are falsely advertised was able to get his proposed Class re-certified by a California federal judge.

Last week, Nutraceutical Corp. asked the U.S. 9th Circuit Court of Appeals to uphold the decertification of a class action lawsuit that alleges the Cobra Sexual Energy herbal supplement doesn’t work as advertised.

According to court documents, the Cobra Sexual Energy class action lawsuit was decertified by the district court on Feb. 20, 2015. Plaintiff Troy Lambert subsequently filed a motion for reconsideration a few weeks later, but his motion was denied in June 2015.

On Sept. 16, 2015, the 9th Circuit granted Lambert’s petition to appeal the district court’s decertification order. On Feb. 25, Nutraceutical urged the appellate court to affirm the decertification order.

Lambert initially filed the Cobra Sexual Energy class action lawsuit against Nutraceutical in August 2013, accusing the supplement maker of violating California’s false advertising and unfair competition laws. He sought to certify a Class of consumers who purchased the Cobra Sexual Energy supplement in California. A court certified the Class in July 2014.

“Relying on a number of Lambert’s representations about what he would be able to prove in discovery, the district court certified the class on July 14, 2014,” Nutraceutical argues in its request to affirm decertification of the supplement class action lawsuit.

“For example, in his motion for class certification, Lambert promised to ‘use expert testimony, such as a consumer survey expert’ to establish class commonality,” the supplement maker continues. “Yet he never retained a single expert. Similarly, Lambert promised he would prove his sole damages theory by using ‘an average retail price.’ … Yet after months of opportunity during discovery, he failed to obtain any evidence whatsoever of Cobra’s average retail price.”

Nutraceutical argues that the district court repeatedly denied Lambert’s request for reconsideration because he failed to provide new evidence or identify a law that had not been previously presented to the court.

Nutraceutical also argues that Lambert’s petition is time-barred because he did not file the petition within 14 days after the court entered the decertification order. The supplement company argues that “there is no doubt that Lambert missed this deadline.”

Lambert argues that his appeal was filed in a timely manner because he filed it within 14 days of the judge’s order denying his motion for reconsideration of the decertification order. Nutraceuticals disputes this justification, however.

“As every circuit to consider the question has held, an order that leaves class action status unchanged from a prior court order is not an order granting or denying class certification … and cannot open a new window for filing a … petition,” Nutraceutical argues.

“The logic behind these holdings is clear and compelling: If a petitioner were able to style his motion for reconsideration as a motion for certification under the rules, then the 14-day time limit … would have no effect.”

Lambert is represented by Ronald A. Marron and Beatrice Skye Resendes of the Law Offices of Ronald A. Marron and Gregory Weston of The Weston Firm.

The Cobra Sexual Energy Class Action Lawsuit is Troy Lambert v. Nutraceutical Corp., Case No. 15-56423, in the U.S. 9th Circuit Court of Appeals.