Case :-cv-00-spl Document Filed 0// Page of 0 0 Daniel L. Miranda, Esq. SBN 0 MIRANDA LAW FIRM E. Ray Road, Suite #0 Gilbert, AZ Tel: (0) - dan@mirandalawpc.com Robert Tauler, Esq. SBN, (pro hac vice forthcoming) Tauler Smith LLP 0 Santa Monica Boulevard # Los Angeles, California 00-0 Telephone: (0) 0- rtauler@taulersmith.com Attorneys for Plaintiff Nutrition Distribution, LLC NUTRITION DISTRIBUTION LLC, an Arizona limited liability company, v. Plaintiff, NUTRACLIPSE, INC., a North Carolina corporation, and DOES through 0, inclusive, Defendants. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. COMPLAINT FOR FALSE ADVERTISING IN VIOLATION OF THE LANHAM ACT (a)()(b) [DEMAND FOR A JURY TRIAL] Plaintiff Nutrition Distribution, LLC, dba Athletic Xtreme ( ND or Plaintiff ), by and through its undersigned attorneys, submits this Complaint against defendant NutraClipse, Inc. ( NutraClipse or Defendant ), and in support thereof, avers as follows: INTRODUCTION. Defendant NutraClipse is a manufacturer and online retailer of purported dietary supplements, which claims to deliver top-quality supplements to everyone,
Case :-cv-00-spl Document Filed 0// Page of 0 0 from people seeking casual fitness and health goals, to the elite athlete. On its website, NutraClipse represents to consumers that its products contain only premium ingredients, which have been third party tested and assayed, to ensure both the purity and the quality our athletes demand. Furthermore, NutraClipse claims to be the name you can trust with all of your fitness goals.. This lawsuit arises out of NutraClipse s false and misleading advertising in connection with its new product ThermoBombs. Defendant falsely advertises, labels, and sells ThermoBombs as a dietary supplement, claiming that its product is a Super Thermogenic, Body Recomposition Agent. NutraClipse falsely represents to consumers that ThermoBombs uses only the highest quality ingredients that have passed through our vigorous high standards. Moreover, NutraClipse promises consumers numerous purported health and physical benefits from using this product, including improved mental focus, appetite suppression, and potent energy and the ability to mobilize stubborn body fat from the toughest regions of the body.. Contrary to NutraClipse s representations, ThermoBombs contains methylsynephrine as an ingredient. Methylsynephrine is also called, among other names, Oxilofrine and p-hydroxyephedrine (hereinafter referred to as methylsynephrine ).. Methylsynephrine is a stimulant drug and an amphetamine chemically related to ephedrine and synephrine. Critically, methylsynephrine is not a dietary ingredient and is not lawfully included in any dietary supplement. Indeed, by letter dated March, 0, the United States Food and Drug Administration ( FDA ) specifically informed seven companies, including NutraClipse, that methylsynephrine is not a dietary ingredient and that labeling a product containing methylsynephrine as a dietary supplement is false and misleading, among other things. Thus, NutraClipse has engaged in false and misleading advertising by including the ingredient methylsynephrine in ThermoBombs and by marketing, labeling, and offering for sale ThermoBombs as a dietary supplement.
Case :-cv-00-spl Document Filed 0// Page of 0 0. NutraClipse s conduct in falsely advertising ThermoBombs as a dietary supplement is particularly egregious because methylsynephrine is specifically prohibited for use in sporting events by the World Anti-Doping Agency, the international group in charge of fighting the use of drugs in sports. Indeed, there have been several publicized cases of athletes who have been suspended because they tested positive for this substance. Despite the foregoing, Defendant continues to advertise, label and offer for sale ThermoBombs as a dietary supplement, specifically targeting the elite athlete by claiming that Defendant ensures both the purity and the quality our athletes demand. Clearly, a banned substance is not a pure or quality product, and Defendant s statements and advertisements are false and misleading for this reason alone.. Moreover, medical experts have opined that high doses of methylsynephrine may over-stimulate the heart, increase blood pressure, and may lead to much more serious heart problems. In light of these health consequences, methylsynephrine may be substantially more harmful in combination with intense physical exercise. However, NutraClipse fails to disclose any of these serious health and safety risks to consumers, despite the fact that Nutraclipse specifically markets ThermoBombs to athletes and fitness enthusiasts.. NutraClipse has knowingly and materially participated in a false and misleading advertising campaign to promote and sell its product, ThermoBombs. Defendant s continuing false, misleading, illegal and deceptive practices have violated the Lanham Act and have unjustly enriched Defendant at the expense of Plaintiff, and have caused Plaintiff extensive and irreparable harm, including but not limited to, loss of revenue, disparagement and loss of goodwill.. Among other things, this action seeks to enjoin NutraClipse from the marketing and sale of any and all products containing methylsynephrine, as Defendant is illegally and falsely marketing such products in violation of the Lanham Act.
Case :-cv-00-spl Document Filed 0// Page of 0 0 JURISDICTION AND VENUE. This Court has subject matter jurisdiction over this action pursuant to U.S.C. and U.S.C. (federal question jurisdiction) and U.S.C. (diversity jurisdiction) because Plaintiff asserts causes of action arising under federal law and the parties are citizens of different states and the controversy exceeds the value of $,000. 0. This Court has personal jurisdiction over NutraClipse because Defendant has, directly or through its intermediaries (including distributors, retailers, and others), developed, licensed, manufactured, shipped, distributed, offered for sale, sold and advertised its supplement products in the United States, the State of Arizona and this district, including but not limited to, its products containing methylsynephrine, such as ThermoBombs. Defendant has purposefully and voluntarily placed these products into the stream of commerce with the expectation that they will be purchased in this district.. Venue is proper in this judicial district pursuant to U.S.C. (b)() because a substantial part of the events or omissions which gave rise to the claim occurred in this district. See Rowpar Pharm., Inc. v. Lornamead, Inc., 0 WL 0 (D. Ariz. Oct., 0) (finding venue in Arizona proper). Alternatively, venue is proper in this judicial district pursuant to U.S.C. (b)(). PARTIES. Plaintiff is an Arizona limited liability company, which lists as its principal place of business: N. th Pl., Phoenix, Arizona, 0.. Defendant is a North Carolina corporation, which lists as its corporate and principal office: Williams Place, Sims, North Carolina, 0.. Plaintiff is ignorant of the true names and capacities of defendants sued herein as Does -0, inclusive, and therefore sued these defendants by such fictitious names. Plaintiff will amend this Complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each of these fictitiously named defendants is responsible in some manner for the occurrences herein
Case :-cv-00-spl Document Filed 0// Page of 0 0 alleged, and that Plaintiff s injuries as herein alleged were proximately caused by the aforementioned defendants. FACTUAL ALLEGATIONS. The nutritional supplement industry is one of the fastest growing and most lucrative in the United States. A recent Forbes article estimates that nutritional supplement sales accounted for $ billion in revenue in 0 and predicts this number to grow to $0 billion within ten years. The growth and size of the nutritional supplement market and the relatively low barriers to entry provide perverse incentives for unfair competition prohibited by the Lanham Act and other illegal activity. Plaintiff Nutrition Distribution & Slim FX. Plaintiff is a cutting edge sports supplement manufacturer and marketer. From its inception, Plaintiff was a leader in the nutritional supplement market, specifically for bodybuilding.. Plaintiff has products in several categories of bodybuilding products, including pre-workouts, muscle-gainers, fat burners, and male performance enhancement.. Around 00, Plaintiff began developing a new product in the muscle-gainer sub-market of the nutritional supplement world.. After devoting its resources for over a year on product development and testing, Plaintiff introduced Slim FX. Defendant NutraClipse And ThermoBombs 0. Defendant NutraClipse is a competing nutritional supplement company in North Carolina.. On its website, NutraClipse claims to deliver top-quality supplements to everyone, from people seeking casual fitness and health goals, to the elite athlete. Defendant also represents to consumers that its products contain only premium ingredients, which have been third party tested and assayed, to ensure both the purity and the quality our athletes demand. Furthermore, NutraClipse claims to be the name you can trust with all of your fitness goals.
Case :-cv-00-spl Document Filed 0// Page of 0 0. Among other products, NutraClipse manufactures, advertises and offers for sale a dietary supplement called ThermoBombs. This product contains the ingredient methylsynephrine, which is a stimulant drug. Methylsynephrine is not a dietary ingredient and is not lawfully included in any dietary supplement.. By letter dated March, 0, the FDA specifically informed seven supplement companies, including NutraClipse, that methylsynephrine is not a dietary ingredient and that labeling a product containing methylsynephrine as a dietary supplement is false and misleading, among other things. Thus, NutraClipse has engaged in false and misleading advertising by including the ingredient methylsynephrine in ThermoBombs and by marketing, labeling, and offering for sale ThermoBombs as a dietary supplement.. Moreover, methylsynephrine is specifically prohibited for use in sporting events by the World Anti-Doping Agency, among other organizations. Indeed, there have been several publicized cases of athletes who have been suspended because they tested positive for this substance.. Furthermore, there is medical evidence that high doses of methylsynephrine may over-stimulate the heart, increase blood pressure, and may lead to much more serious heart problems. Given these health consequences, methylsynephrine may be substantially more harmful in combination with intense physical exercise. NutraClipse, however, fails to disclose any of these serious health and safety risks to consumers, despite the fact that Nutraclipse specifically targets athletes and fitness enthusiasts.. Nutraclipse has falsely marketed and advertised ThermoBombs, giving consumers a false sense of security regarding its safety. In reality, NutraClipse knew, or should have known, that its product poses serious health and safety risks to consumers.. Defendant s false and misleading advertising is harmful to the dietary supplement industry as a whole and to individual consumers. NutraClipse has created an illegitimate marketplace of consumers seeking to enhance their physical performance and physiques, but who are not informed (or misinformed) of the serious dangers of using
Case :-cv-00-spl Document Filed 0// Page of 0 0 ThermoBombs and methylsynephrine. Users of Defendant s ThermoBombs have little incentive to use a natural product like Slim FX until they are harmed or the product is taken off the shelves. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (False Advertising in Violation of Section (a)()(b) of the Lanham Act). Plaintiff incorporates the allegations contained in the foregoing paragraphs as though fully set forth herein in their entirety.. Defendant has purposely made false and misleading descriptions of fact concerning the nature, characteristics, and qualities of its products, such as misrepresenting that ThermoBombs is a dietary supplement. Contrary to Defendant s representations, this product contains methylsynephrine. Methylsynephrine is a stimulant drug it is not a dietary ingredient and is not lawfully included in any dietary supplement. 0. By letter dated March, 0, the FDA specifically informed seven supplement companies, including NutraClipse, that methylsynephrine is not a dietary ingredient and that labeling a product containing methylsynephrine as a dietary supplement is false and misleading, among other things. Thus, NutraClipse has engaged in false and misleading advertising by including the ingredient methylsynephrine in ThermoBombs and by marketing, labeling, and offering for sale ThermoBombs as a dietary supplement.. Moreover, methylsynephrine is specifically prohibited for use in sporting events by the World Anti-Doping Agency, among other organizations. Indeed, there have been several publicized cases of athletes who have been suspended because they tested positive for this substance. Despite the foregoing, Defendant continues to advertise, label and offer for sale ThermoBombs as a dietary supplement, specifically targeting the elite athlete by claiming that Defendant ensures both the purity and the quality our athletes demand. Clearly, a banned substance is not a pure or quality ingredient, and
Case :-cv-00-spl Document Filed 0// Page of 0 0 Defendant s statements and advertisements are false and misleading for this additional reason.. Moreover, medical experts have opined that high doses of methylsynephrine may over-stimulate the heart, increase blood pressure, and may even lead to much more serious heart problems. In light of these health consequences, methylsynephrine may be substantially more harmful in combination with intense physical exercise. However, NutraClipse fails to disclose any of these serious health and safety risks to consumers, despite the fact that Nutraclipse specifically markets ThermoBombs to athletes and fitness enthusiasts.. The use of such falsely marketed substances has the tendency to deceive a substantial segment of the public and consumers, including those in this district, into believing that they are purchasing a product with different characteristics.. The deception is material because it is likely to influence a consumer s purchasing decisions, especially if the consumer is concerned about the consequences of taking steroids or illegal substances (like many competitive athletes).. Defendant has introduced its false and misleading statements into interstate commerce via marketing and advertising on various websites and shipment of its products into interstate commerce containing false and misleading advertising.. Plaintiff has suffered both an ascertainable economic loss of money and reputational injury by the diversion of business from Plaintiff to Defendant and the loss of goodwill in Plaintiff s products. Specifically, consumers of ThermoBombs who are uninformed of the health and safety risks of using methylsynephrine have little or no incentive to use other supplements without methylsynephrine, such as Slim FX, until they are injured or these harmful products are removed from the marketplace. Indeed, Defendant s misconduct is harmful to the industry as a whole, and has the tendency to disparage Plaintiff s products and goodwill.. Defendant s actions, as described above, constitute false and misleading descriptions and misrepresentations of fact in commerce that, in commercial advertising
Case :-cv-00-spl Document Filed 0// Page of 0 0 and promotion, misrepresent the nature, characteristics and qualities of Defendant s products in violation of Section (a)()(b) of the Lanham Act. DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury. PRAYER Wherefore, Plaintiff Nutrition Distribution LLC prays for judgment against Defendant as follows:. For preliminary and permanent injunctive relief enjoining Defendant from producing, licensing, marketing and selling any product containing any SARMs, including, without limitation, the SARMs Products;. For an award of compensatory damages to be proven at trial in accordance with U.S.C. ;. For an award of any and all of Defendant s profits arising from the foregoing acts in accordance with U.S.C. and other applicable laws;. For restitution of Defendant s ill-gotten gains;. For treble damages in accordance with U.S.C. ;. For punitive damages;. For costs and attorneys fees; and. Any other relief the Court may deem appropriate. RESPECTFULLY submitted this day of April, 0. MIRANDA LAW FIRM By: s/ Daniel L. Miranda Attorneys for Plaintiff