5-Hour Energy Makers Seek Summary Judgment in False Advertising Class Action

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The makers of 5-Hour Energy are seeking to end a consolidated false advertising class action lawsuit in their favor, without going to trial.

At oral arguments this past Monday, defendants Innovation Ventures LLC, Living Essentials LLC, Manoj Bhargava and Bio Clinical Development Inc. urged U.S. District Judge Philip S. Gutierrez to grant their motion for summary judgment.

The defendants argued that evidence revealed in discovery destroys the plaintiffs’ claims that 5-Hour Energy is not effective.

Defendants also pointed out that, in deposition testimony, the plaintiffs admitted to purchasing 5-Hour Energy many times – around 1,300 times in one plaintiff’s case. The defendants argue that these repeated purchases defeat the plaintiff’s own claim that 5-Hour Energy is not effective.

“Anyone who consumes the Product would immediately discover whether it fails to provide the reasonably-expected results and immediately cease being a customer,” the defendants argue.

Consumers need only purchase and try the product one time to know whether it lives up to the representations on its label, the defendants say. Repeat purchasers like the plaintiffs have their experience of the product to rely on, they say, which extinguishes any reliance on the product’s advertising.

At this week’s hearing, Judge Gutierrez acknowledged the weight of the defendants’ argument.

But the plaintiff’s allegation that they had to make hundreds of purchases before they could discover they were being defrauded is still a question of fact that necessarily requires determination by a jury, the judge concluded.

Plaintiffs’ counsel argued that other factual issues still remain that would preclude resolving this case on summary judgment. Plaintiffs say the caffeine in 5-Hour Energy did not give them “energy” but only the illusion of having energy. Whether the product truly gave them energy and what the term “energy” means are both factual issues requiring determination by a jury, the plaintiffs argued.

Defense counsel also claimed the plaintiffs’ testimony was too vague to provide enough detail that would identify the alleged falsehood in 5-Hour Energy’s advertising.

But Judge Gutierrez pointed out that, at least in some states, plaintiffs need not establish that they relied on the allegedly false advertising but only that they were exposed to it.

The 5-Hour Energy litigation began with multiple false advertising class action lawsuits filed back in 2013. Plaintiffs took issue with 5-Hour Energy’s promises of “Hours of energy now – No crash later,” claiming the product wears off just as quickly as less expensive competitor products and leaves consumers with the same “crash.”

More plaintiffs filed their own claims, and in June 2013 nine separate 5-Hour Energy class action lawsuits were consolidated into a multidistrict litigation, transferring all actions in other districts to Judge Gutierrez’s court in California.

The judge pared down the litigable claims with orders of dismissal in September 2014 and again in January 2015.

The 5-Hour Energy False Advertising Class Action MDL 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.