Hughes v. Ester C Co.
| Decision Date | 04 September 2018 |
| Docket Number | 12-CV-0041 (PKC) (GRB) |
| Parties | Patrick HUGHES and Nafise Nina Hodjat, Plaintiffs, v. The ESTER C COMPANY, NCTY, Inc., and NatureSmart, LLC, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
George Volney Granade, II, Reese LLP, Kim Richman, Michael Robert Reese, Reese Richman LLP, New York, NY, Alvin C. Paulson, Kevin T. Hoerner, Becker, Paulson, Hoerner & Thompson, P.C., Belleville, IL, Jeffrey A. Leon, Pro Hac Vice, Quantum Legal LLC, Zachary A. Jacobs, Complex Litigation Group LLC, Highland Park, IL, Patrick J. Sheehan, Whatley Drake & Kallas LLC, Boston, MA, for Plaintiffs.
Michelle Waller Cohen, Steven Alan Zalesin, Jackson Taylor Kirklin, Jonah Moses Knobler, Patterson Belknap Webb & Tyler LLP, New York, NY, for Defendants.
On January 4, 2012, Plaintiffs Patrick Hughes and Nafise Nina Hodjat initiated this putative class action against Defendants The Ester C Company, NBTY, Inc. ("NBTY"), and NatureSmart LLC, alleging that Defendants' labeling of their "Ester-C" vitamin C
supplements as "The Better Vitamin C" is unlawful, deceptive, and misbranded. On September 30, 2016, the Court denied Plaintiffs' motion to certify a nationwide class, as well as California and Missouri subclasses. Pending before the Court is Defendants' motion for summary judgment as to Plaintiffs' individual claims. For the reasons set forth below, the Court grants Defendants' motion for summary judgment in its entirety and dismisses this action.
The Court presumes the parties' familiarity with the factual and procedural background of this case, which is detailed in the Court's prior orders resolving Defendants' motion to dismiss, Hughes v. Ester C Co., 930 F.Supp.2d 439 (E.D.N.Y. 2013),2 Defendants' partial motion for summary judgment, Hughes v. Ester C Co., 99 F.Supp.3d 278 (E.D.N.Y. 2015), Plaintiffs' class certification motion, Hughes v. Ester C Co., 317 F.R.D. 333 (E.D.N.Y. 2016), and Plaintiffs' motion for reconsideration of the denial of class certification, Hughes v. Ester C Co., 320 F.R.D. 337 (E.D.N.Y. 2017).
Briefly, the Ester-C dietary supplements at issue in this action (the "Products") contain a patented form of vitamin C
in the form of calcium ascorbate. (Defendants' 56.1 Statement ( ), Dkt. 163, ¶ 4.)3 According to Plaintiffs, misrepresentations in Ester-C's packaging and marketing create a reasonable expectation with purchasers that Ester-C provides a form of immune system defense that protects users from illnesses, and decreases one's likelihood of getting or remaining ill. There is no dispute that NBTY manufactures and sells dietary supplements under the trademark "Ester-C®", that Ester-C products are sold in various forms, including tablets, gummies, and powder, and that the suggested retail price for Ester-C has been as low as 7 cents per grain and as high as 75 cents per gram. (Defs.' 56.1 ¶¶ 1-7.) While evidence of the amount of damages in the forrn of a price premium is disputed by the parties, it is not disputed that the amount in controversy for that price premium, as to Plaintiff Hughes's and Plaintiff Hodjat's individual purchases of Ester-C products, does not amount to $75,000. (Compare Defs.' 56.1 ¶ 8 to Plaintiffs' ("Pl.") 56.1, Dkt. 170-1, ¶ 8 (Sealed).)5
Plaintiffs do not dispute that they have adduced no extrinsic evidence of how consumers actually interpret Ester-C's "immune support" representation in isolation. (Defs.' 56.1 ¶ 19.) Plaintiffs have produced no expert testimony or report concerning the immune benefits of vitamin C
or lack thereof, the ability or inability of vitamin C to treat or prevent the common cold or influenza virus, or the relative bioavailability or absorbability of Ester-C and other forms of vitamin C, such as ascorbic acid. (Id. at ¶ 29). Plaintiffs proffer only a webpage on the servers of Oregon State University6 and a journal article by Carol S. Johnston & Bing Luo,7 purportedly showing that vitamin C from Ester-C was not more "bioavailable" than simple ascorbic acid, and that there are conflicting studies as to whether Vitamin C enhances immune function.
Plaintiffs never testified that they saw or relied upon any of the purported implied disease claims on NBTY's website. Plaintiff Hughes testified that he had already made up his mind to purchase Ester-C when he entered the store on the date of his sole purchase. (Defs.' 56.1 ¶ 60, Hughes Dep. at 77:5-7.)
Defendants filed the instant motion for summary judgment on January 19, 2018. (Dkt. 161.) Plaintiffs filed their opposition, under seal, on February 26, 2018. In it, Plaintiffs withdrew their common law claims for intentional and negligent misrepresentation. (Pl. Opp. Brief, Dkt. 170, at 10, n. 7.) Defendants filed their Reply Memorandum Brief with the Court earlier, on January 19, 2018, noting Plaintiffs' withdrawal of these claims. (Dkt. 166.) Thus, the remaining claims in this action are Plaintiffs' individual claims,8 alleging: (1) as to Plaintiff Hodjat, violations of California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, False Advertising Law ("FAL"), Cal. Bus. and Prof. Code § 17500, et seq. , Unfair Competition Law ("UCL"), Cal. Bus. and Prof. Code § 17200, et seq. , and the California "Sherman Law", Cal. Health & Safety Code § 109875, et seq. ; (2) as to Plaintiff Hughes, violations of Missouri's Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. § 407.010 ; and (3) as to both Plaintiffs, a New York common law "unjust enrichment" claim.
Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. McClellan v. Smith , 439 F.3d 137, 144 (2d Cir. 2006). "To grant the motion, the court must determine that there is no genuine issue of material fact to be tried." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). A genuine factual issue exists where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The initial burden of "establishing the absence of any genuine issue of material fact" rests with the moving party. Zalaski v. City of Bridgeport Police Dep't , 613 F.3d 336, 340 (2d Cir. 2010). Once this burden is met, however, the burden shifts to the nonmoving party to put forward some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli v. City of N.Y. , 579 F.3d 160, 166-67 (2d Cir. 2009) ; see also Celotex Corp. , 477 U.S. at 322-23, 106 S.Ct. 2548. A mere "scintilla of evidence" in support of the nonmoving party is insufficient; "there must be evidence on which the jury could reasonably find for the [non-movant]." Hayut v. State Univ. of N.Y. , 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted; alterations in original). In other words, "[t]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese , 298 F.3d 156, 160 (2d Cir. 2002) (quotation omitted). In determining whether a genuine issue of fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc. , 542 F.3d 290, 309 (2d Cir. 2008).
However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson , 477 U.S. at 247-48, 106 S.Ct. 2505. "[What] is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). "Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
As a preliminary matter, the Court notes that because Plaintiffs' motion for class certification was denied and they are not asserting diversity jurisdiction under 28 U.S.C. 1332(a) (see Pl. Opp. Br., Dkt. 170 at ECF 17, n. 7), it is unclear whether the Court retains subject matter jurisdiction over this action. See Gagasoules v. MBF Leasing LLC , 286 F.R.D. 205, 209–10 (E.D.N.Y. 2012) (). Given the uncertainty on this issue in this Circuit,9 the Court declines to resolve Defendants' summary judgment motion on the basis of subject matter jurisdiction and instead decides the motion on the merits.
Plaintiffs allege that two categories of statements that have appeared in Ester-C's labeling constitute false advertising and misrepresentations that violate California and Missouri law: (1) statements about "immune support"; and (2) the slogan, "The Better Vitamin C
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