LOUISVILLE, Ky. (Legal Newsline) – Two Louisville-based companies which produce and market PRIME Energy Drink are seeking to dismiss class action litigation brought by a California woman whose 10-year-old son consumed the product and allegedly suffered adverse health effects.
T.K. (individually and in her capacity as parent and legal guardian of John Doe, on behalf of themselves and all others similarly-situated) of Los Angeles, Calif. first filed suit in the U.S. District Court for the Western District of Kentucky on Sept. 12 versus PRIME Hydration, LLC and Congo Brands, LLC of Louisville, Ky., Logan Paul of Dorado, Puerto Rico and Olajide Olayinka Williams Olatunji, of London, England.
The plaintiff claimed in her class action suit that her 10-year-old son consumed PRIME Energy drink on multiple occasions, and that he was induced by the defendants to believe the drink was a healthy electrolyte beverage without caffeine.
She alleged after continuing to buy the drink for her son, she began to notice his mood swings and sleep issues due to the high caffeine content. The plaintiff further claimed that Paul – a social media influencer and professional wrestler with World Wrestling Entertainment – and Olatunji – a rap music artist and social media personality known as “KSI” – falsely marketed the drink to target teenagers and youth with health-conscious benefits, when the drinks can actually cause adverse health effects.
Paul and Olatunji co-founded the PRIME Energy Drink product and brand.
She alleged the defendants use fun photos, colorful packaging, sweet flavorings and sports arena advertising to misleadingly market the drink as healthy, in an effort to increase their profits.
UPDATE
The PRIME Hydration, LLC and Congo Brands, LLC defendants filed a motion to dismiss the case on Nov. 15, arguing that the plaintiff disregarded the warning label on the energy drink noting its high caffeine content and that it is not recommended for use by those under the age of 18 years old.
“Each of plaintiff’s claims fail for several reasons, but at its core, plaintiff’s complaint fails because defendants clearly disclosed the amount of caffeine in the PRIME Energy beverages and clearly warned consumers that the PRIME Energy beverages were ‘NOT RECOMMENDED FOR CHILDREN UNDER 18 YEARS OF AGE.’ Given this disclosure, plaintiff cannot allege: A material misrepresentation or omission, that she was damaged, or that any damages were caused by defendants’ actions,” per the dismissal motion.
The motion continued that the complaint failed to show violations of the various statutes that the defendants’ alleged conduct had supposedly violated.
“Plaintiff’s claims each also fail for additional reasons. Plaintiff’s fraud claims each fail as they: (1) Fail to allege a material omission or misrepresentation with sufficient particularity under Federal Rule of Civil Procedure 9(b); (2) Fail to allege damages; and (3) Fail to allege that any damages were caused by a misrepresentation made to plaintiff or that plaintiff viewed. Plaintiff’s claim for a violation of the California Unfair Competition Law fails for the additional reason that UCL claims are purely equitable and when, as here, plaintiff does not allege facts showing that legal remedies are inadequate to correct past harms, claims for equitable relief under the UCL should be dismissed,” the motion said.
“Plaintiff’s claim for a violation of the Kentucky Consumer Protection Act fails because TK is not in privity with defendants, as is required to maintain an action under the KCPA. Because plaintiff’s claim for unjust enrichment is based on fraud, it is also subject to the pleading requirements embodied in Rule 9(b) – and because unjust enrichment claims are equitable, it fails as plaintiff has failed to allege facts showing that legal remedies are inadequate to correct past harms. Finally, plaintiff’s claim for public nuisance fails because: (1) Public nuisance law does not apply to the sale of lawful products; and (2) Plaintiff’s alleged nuisance does not affect the public at large – as is necessary to support a claim of public nuisance.”
For counts of violating the California Consumers Legal Remedies Act, the California False Advertising Law, the California Unfair Competition Law, the Kentucky Consumer Protection Act, common law fraud, unjust enrichment, public nuisance, the plaintiff is seeking the following relief:
• An order certifying that the action may be maintained as a class action;
• An order enjoining the defendants from pursuing the policies, acts and practices complained of herein and requiring the defendants to pay restitution to plaintiffs and all members of the class in an amount to be determined at trial;
• Actual damages;
• Punitive damages;
• Pre-judgment interest from the date of filing this suit;
• Reasonable attorney’s fees;
• Costs of this suit; and
• Such other and further relief as the Court may deem necessary or appropriate.
The plaintiff is represented by Edward W. Ciolko and Jennifer Sarah Czeisler of Sterlington Law in New York, N.Y., James M. Evangelista of Evangelista Worley in Atlanta, Ga. and J. Chris Sanders of Bahe Cook Cantley & Nefzger in Louisville, Ky.
Defendants PRIME Hydration and Congo Brands are represented by D. Christopher Robinson and Jason Renzelmann of Frost Brown Todd, in Louisville, Ky.
U.S. District Court for the Western District of Kentucky, Louisville Division case 3:23-cv-00476
From Legal Newsline: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com