NY judge denies part of fighter’s case tainted supplement manufacturer
District Court Judge Valerie Caproni: “A statement in an SEC filing is clearly not an ‘advertisement’ within the meaning of New York’s General Business Law, as it is directed at investors and regulators, not consumers.”
The dream of everyone in combat sports is to compete in Madison Square Garden, and all the more so the closer you live to MSG. Manhattan native and UFC welterweight Lyman Good was contracted to be part of the league’s epic return to New York at UFC 205 on November 12, 2016, but had a test flagged for the anabolic agent 1-androstenedione.
On October 24 Good was provisionally suspended and pulled from the fight with Belal Muhammad. In April USADA announced that Good had accepted a suspension of six months. Two years would have been the normal suspension, but USADA established that the failure was due to a tainted supplement, that did not list the steroid.
Good is fighting in the UFC again, and in a much needed step, he’s fighting back – the fighter has filed two suits against multiple companies charging false advertising, breach of express warranty, deceptive acts and practices, and assault and battery. The companies include Rich Gaspari, Gaspari Nutrition, Hi-Tech Pharmaceuticals, Jared Wheat, Vitamin Shoppe, Millennium Sport Technologies, and Matthew Masuda.
The suit contends that Good bought Anavite dietary supplements from a Vitamin Shoppe, with the belief that he was taking a multivitamin, but they instead contained the prohibited steroid, which is not listed on the label. Anavite is manufactured by Gaspari Nutrition.
Unfortunately, aNew York federal court judge has denied the false advertising claim, because rather than in advertising, the claims were made in filings with the U.S. Securities and Exchange Commission. Further, the judge denied a motion to amend the complaint to include a statement from a Vitamin Shoppe sales employee.
Jeffrey S. Edelstein has the story for Manatt.com.
Good alleged that it ran afoul of New York General Business Law Sections 349 and 350 by representing in a public filing with the SEC that it follows strict quality-assurance procedures and that it should be trusted as its products are safe and effective.
Section 350 of the New York General Business Law states that [f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful, but only applies to misrepresentations made in the context of an advertisement.
If a misrepresentation is made in the context of an advertisement, a plaintiff must show that the advertisement is ‘consumer-oriented’ to be actionable under General Business Law Section 350, the court added. ‘Consumer-oriented’ conduct is conduct that has ‘a broader impact on consumers at large’ and that could ‘potentially affect similarly situated consumers.’
Applying these definitions, District Court Judge Valerie Caproni dismissed the plaintiff’s false advertising claim.
A statement in an SEC filing is clearly not an ‘advertisement’ within the meaning of New York’s General Business Law, as it is directed at investors and regulators, not consumers, the court wrote. Plaintiff has made no showing that the filing was disseminated to potential purchasers of Vitamin Shoppe’s products, as New York law requires.
