Costco Customers Win Class Cert. in Ginkgo Biloba Labeling Lawsuit

A Costco TruNature Ginkgo Biloba class action lawsuit will proceed now that a federal judge in California has granted Class certification.

On Thursday, U.S. District Judge Cathy Ann Bencivengo certified a California-wide plaintiff Class representing consumers who purchased TruNature Gingko Biloba with Vinpocetine. The product is manufactured by defendant NBTY and sold at defendant Costco’s stores.

Judge Bencivengo determined that plaintiff Tatiana Korolshteyn raises issues common to the entire proposed Class, with classwide issues predominating over those unique to any individual Class Members.

Questions of whether TruNature Ginkgo Biloba provides benefits and whether the statements on the product’s label are material are the same for the entire Class, the judge said.

The judge rejected Costco’s challenge to Korolshteyn’s ability to represent the Class. Costco cited a Facebook conversation between Korolshteyn and her friend, which purportedly showed she was told Ginkgo Biloba was worthless before she actually took the supplement.

But Judge Bencivengo found that evidence does not undermine Korolshteyn’s credibility in a way that makes her an inadequate representative plaintiff. The judge said both the Facebook conversation and Korolshteyn’s deposition testimony are consistent with her theory that consumers rely on the defendants’ statements when deciding to purchase TruNature Gingko Biloba with Vinpocetine.

In the same order, Judge Bencivengo dismissed motions by both parties seeking to exclude each other’s expert declarations and testimony, finding that the issue of admissibility is not germane to the issue of Class certification.

Korolshteyn filed this Costco TruNature Ginkgo Biloba class action lawsuit in December 2014. She claims statements made by Costco and NBTY about the health benefits associated with TruNature Ginkgo Biloba extract are false and misleading.

Korolshteyn says the labeling for TruNature Ginkgo Biloba makes promises of enhanced mental function that run contrary to scientific evidence.

The label allegedly says TruNature Ginkgo Biloba promotes blood flow to the brain, improving alertness, memory, and mental clarity. But according to Korolshteyn, scientific studies show neither Ginkgo Biloba nor Vinpocetine provide any such benefits.

Still, Korolshteyn says she and Class Members reasonably relied on these statements when they purchased TruNature Ginkgo Biloba. She claims the statements violate California’s Unfair Competition Law and Consumer Legal Remedies Act.

Judge Bencivengo dismissed some of Korolshteyn’s claims in September 2016. The judge determined Korolshteyn does not have standing to pursue injunctive relief because she is not at risk for being similarly harmed in the future.

Korolshteyn came back with an amended complaint that also limited her proposed Class to only California residents.

As certified by Judge Bencivengo, the plaintiff Class will represent all California consumers who purchased TruNature Gingko Biloba with Vinpocetine from the beginning of the relevant statutory limitations period until the date that notice is sent out to Class Members. Korolshteyn will serve as Class representative.

She seeks an award of actual, statutory and punitive damages, restitution and disgorgement of related revenues, and reimbursement of court costs and attorneys’ fees.

Korolshteyn is represented by Patricia N. Syverson, Manfred P. Muecke and Elaine A. Ryan of Bonnett Fairbourn Friedman & Balint PC and Stewart M. Weltman of Siprut PC.

The Costco TruNature Ginkgo Biloba Class Action Lawsuit is Tatiana Korolshteyn v. Costco Wholesale Corp. and NBTY Inc., Case No. 3:15-cv-00709, in the U.S. District Court for the Southern District of California.