Northern California Record

Thursday, September 19, 2019

PEP Research's motion for attorneys' fees denied in case over drug marketing

Lawsuits

By Payton Kuhn | May 25, 2019


SAN DIEGO – A federal judge has denied a supplement company's motion for attorneys' fees after it was awarded summary judgment in a lawsuit over allegations of false and misleading advertising filed by a competitor.

Judge William Hayes of the U.S. District Court of the Southern District of California denied the motion filed by PEP Research, Brian Reynders and Fred Reynders on May 8, citing that the defendants had “not shown a preponderance that [the] plaintiff’s claims were frivolous or improperly motivated or objectively unreasonable based on the facts and law of this case."

Plaintiff Nutrition Distribution accused the defendants of falsely representing certain prescription-only drugs as “'research peptides and chemicals' that are 'not for human consumption.'" It alleged this marketing was misleading because the defendants marketed the drugs “for personal use and consumption." The ruling states the defendants are competitors of the plaintiff.

The plaintiffs had also accused the defendants of neglecting to inform consumers that the drugs are banned from sporting events and pose various health risks.

On Feb. 15, the court granted summary judgment in favor of the defendants.

"Plaintiff alleged that defendants violated the Lanham Act by advertising and selling products labeled 'not for human consumption' when those products were intended for human consumption," Hayes wrote. "Defendants prevailed on summary judgment by demonstrating a lack of evidence to support the Lanham Act claim, which shifted the burden to plaintiff to set forth evidence demonstrating a genuine issue of material fact—a burden plaintiff failed to carry."

In their request for attorneys’ fees regarding the February decision, the defendants asserted that “it was frivolous and unreasonable for [the] plaintiff to approach summary judgment without any evidence in support of the Lanham Act claim,” and that the defendants had purposely furthered litigation to increase the defendant’s legal costs.

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