WHITE PLAINS, N.Y. (Legal Newsline) –- A putative class action lawsuit against the maker of Muscle Milk protein powder has been dismissed by a Southern District of New York judge.

Plaintiff Orlando Bautista alleged that he was surprised to find about one-third of the Muscle Milk protein powder container he bought from the California-based supplement manufacturer Cytosport was empty. According to his lawsuit, allegedly selling Muscle Milk protein powder with “nonfunctional slack-fill” violated New York state consumer fraud laws, fraud, negligent misrepresentation and unjust enrichment.

Lawrence I. Weinstein, partner and co-chair of the intellectual property litigation group and co-chair of the false advertising and trademark practice at Proskauer, told Legal Newsline that the judge'’s decision is one of several recent decisions granting motions to dismiss consumer class action false advertising cases, including at least one other slack-fill decision.

Judge Cathy Seibel's decision was based on U.S. Supreme Court and federal appellate court’s rules “holding that conclusory allegations in a complaint are not to be accepted as true on a motion to dismiss under Fed. R. Civ P. 8(a) and 9(b),” Weinstein said.

“When a complaint’'s allegations about a central element of a claim for relief –- here, that the empty space in a container of Muscle Milk has no functional purpose –- are wholly conclusory, the complaint must be dismissed,” Weinstein said. “In the Bautista v. Cytosport case decided by Judge Seibel, the complaint alleged that the empty space in the Muscle Milk containers was nonfunctional, but did not assert any specific fact that, if credited, would plausibly establish the truth of that assertion.”

The judge found that Bautista’'s assertion that the 30-percent empty space in the container was not used “to protect product - necessary for enclosing the product or because of settling -” was not supported by facts and the statement was provided in a conclusory fashion, according to court records.

Weinstein believes the judge’'s analysis of the case was correct, so he did not find the dismissal surprising.

“When the Supreme Court decided Bell Atlantic v. Twombly 10 years ago, and Ashcroft v. Iqbal two years later, it meant to prevent federal court dockets from being bogged down by civil lawsuits based only on conclusory allegations,” Weinstein said. “

Counsel for defendants in all class action false advertising cases,– not just slack-fill cases – should always ask themselves as they read a complaint whether the plaintiff is a percipient witness as to all the necessary allegations of the complaint, or has otherwise set forth in the complaint specific facts to support each element of each cause of action.”

Weinstein said the plaintiff did not have "any other basis for knowing the rationale for the defendant’s' decision to employ slack space in its Muscle Milk containers, and thus lacked a plausible basis to allege that the empty space was nonfunctional, and therefore deceptive. This is a relatively common defect in class action false advertising cases, and whenever it is present, defendants should rely heavily on this failing in motions to dismiss the complaint.”"

Though this slack-fill case was unsuccessful, Weinstein said other companies have decided to settle, including Proctor & Gamble and Starkist Tuna.

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