IN RE: Testofen Marketing and Sales Practices Litigation

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: TESTOFEN MARKETING AND
SALES PRACTICES LITIGATION MDL No. 2612
ORDER DENYING TRANSFER
Before the Panel: Plaintiffs in one action in the Central District of California (Ryan) move
under 28 U.S.C. § 1407 to centralize this litigation in the District of Massachusetts. This litigation1
currently consists of two actions pending in two districts, as listed on Schedule A. The actions
involve marketing practices concerning nutritional supplements made with Testofen, a fenugreek
seed extract, and in particular, defendants’ representation that Testofen is clinically proven to boost
free testosterone levels.
Plaintiffs in the District of Massachusetts action (Camey) oppose centralization and,
alternatively, propose their district as the transferee court. All responding defendants also oppose2
centralization and, alternatively, propose the Central District of California where an earlier related
action was resolved.3
On the basis of the papers filed and the hearing session held, we conclude that centralization
will not serve the convenience of the parties and witnesses or further the just and efficient conduct
of the litigation. The two actions undoubtedly share some questions of fact concerning the efficacy
of nutritional supplements containing Testofen in boosting free testosterone levels. But the scope
of the two actions before the Panel are substantially different. Ryan alleges a broad scheme to
defraud consumers that encompasses 22 products and 17 defendants, and alleges that the GNC and
Gencor companies played substantial roles in the alleged misrepresentations. In contrast, Camey
involves three products in a single product line (Test X180) manufactured by one defendant, Force
The Ryan plaintiffs’ motion for centralization proposed the Northern District of California,1
where the action was originally filed, as the transferee district. On February 19, 2015, that court
transferred Ryan to the Central District of California under 28 U.S.C. § 1404(a). At oral argument,
movants argued for centralization in the District of Massachusetts.
Gencor Nutrients, Inc.; GE Nutrients, Inc.; Jith Veeravilli; General Nutrition Corporation;2
GNC Corporation; General Nutrition Centers, Inc.; S&G Properties, LLC; Direct Digital LLC; Force
Factor LLC; PharmaFreak Holdings Inc.; Prevention, LLC; and Dreambrands, Inc.
O’Toole v. Gencor Nutrients, Inc., No. 14-03754, Order at 2 (C.D. Cal. July 23, 2014),3
appeal docketed sub nom., Bitton v. Gencor Nutrients, Inc., No. 14-56381 (9th Cir. Aug. 22, 2014).
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Factor, LLC. On the record before the Panel, the limited overlap with respect to the marketing and
sales practices of defendant Force Factor does not warrant centralization.
Additionally, there are only two actions in this docket. “[W]here only a minimal number of
actions are involved, the proponent of centralization bears a heavier burden to demonstrate that
centralization is appropriate.” In re: Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373, 1374
(J.P.M.L. 2010). Plaintiffs have not met this higher burden. The sole common defendant, Force
Factor, LLC, is represented by the same counsel in both actions. Additionally, all responding parties
represent that informal coordination will be sufficient to prevent duplicative discovery and ensure
coordinated pretrial proceedings. In these circumstances, informal cooperation among the attorneys
and coordination between the involved courts is both practicable and preferable to centralization.
See In re: Adderall XR (Amphetamine/Dextroamphetamine) Mktg., Sales Practices and Antitrust
Litig., 968 F. Supp. 2d 1343, 1345 (J.P.M.L. 2013). Thus, we encourage the parties to employ
various alternatives to transfer which may minimize the potential for duplicative discovery and
inconsistent pretrial rulings. See, e.g., In re Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litig.,
446 F. Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex Litigation § 20.14 (4th ed.
2004).
IT IS THEREFORE ORDERED that the motion for centralization of the actions listed on
Schedule A is denied.
PANEL ON MULTIDISTRICT LITIGATION
Sarah S. Vance
Chair
Marjorie O. Rendell Charles R. Breyer
Lewis A. Kaplan Ellen Segal Huvelle
R. David Proctor Catherine D. Perry
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IN RE: TESTOFEN MARKETING AND
SALES PRACTICES LITIGATION MDL No. 2612
SCHEDULE A
Central District of California
RYAN, ET AL. v. GENCOR NUTRIENTS, INC., ET AL., C.A. No. 2:15-01209
District of Massachusetts
CAMEY, ET AL. v. FORCE FACTOR LLC, C.A. No. 1:14-14717
Case MDL No. 2612 Document 55 Filed 04/01/15 Page 3 of 3