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Pattison v. Omnitrition International, Inc.

United States District Court, W.D. Washington, Seattle

March 23, 2018





         Before the court are: (1) Defendants Omnitrition International, Inc. ("Omnitrition"), Roger M. Daley, and Barbara Daley's ("the Daleys") (collectively, "the Omnitrition Defendants") motion to dismiss Plaintiff Deanna Pattison's complaint (Omnitrition MTD (Dkt. #10)); (2) Ms. Pattison's motion for relief from a deadline relating to the Omnitrition Defendants' motion to dismiss (Mot. for Relief (Dkt. #15)); and (3) Defendant Jennifer Van Vynck's motion to dismiss Ms. Pattison's complaint (Van Vynck MTD (Dkt. # 33)). The court has considered the motions, the parties' submissions in support of and in opposition to the motions, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court GRANTS the Omnitrition Defendants' motion to dismiss with leave to amend, GRANTS Ms. Van Vynck's motion to dismiss with leave to amend, and DENIES Ms. Pattison's motion for relief.


         Ms. Pattison brought this putative class action on July 25, 2017, against the Omnitrition Defendants, Ms. Van Vynck, and Does 1-100 unnamed Omnitrition Independent Marketing Associates ("IMA") (collectively, "Defendants"). (See FAC (Dkt. # 1-2).) She challenges Defendants' "illegal and deceptive practice of manufacturing, promoting, marketing, selling, and distributing" over-the-counter weight-loss products, called Omni Drops, which contains human chorionic gonadotropin ("hCG"), a hormone that has been prescribed to assist weight loss. (Id. ¶ 1.1.) Allegedly relying on Defendants' representations and advertisements that users will experience "significant and rapid weight loss, " Ms. Pattison purchased Omni Drops and was "misled into purchasing and paying for a product that is not as represented." (Id. ¶ 4.32.)

         Ms. Pattison lays out a brief history regarding the ineffectiveness of hCG as a treatment for obesity, asserting that as far back as 1962, scientific studies suggested that hCG intake may potentially be "more hazardous to the patient's health than continued //' obesity." (Id. ¶ 4.2; see also Id. ¶¶ 4.1-4.14.) In 2011, Ms. Pattison alleges that the FDA announced there was no evidence that hCG products are effective for weight loss. (Id. ¶¶ 4.9-4.13.) The FDA allegedly issued several warning letters to companies marketing hCG products for weight loss, although Omnitrition was not one of the companies receiving a warning letter. (Id. ¶¶ 4.10, 4.30.) The FDA also allegedly announced to consumers that over-the-counter products claiming to contain hCG are illegal. (Id. ¶¶ 4.9-4.13; id., Exs. A-C.) Ms. Pattison purports that by the end of 2011, the FDA and FTC advised consumers to "steer clear of over-the-counter and homeopathic hCG products as unproven and illegal." (Id. ¶ 4.28.)

         Ms. Pattison alleges that Defendants[2] introduced their hCG product Omni Drops to the market in January 2011. (Id. ¶ 4.15.) The complaint describes purported misrepresentations in three areas: (1) on the product label, (2) in training materials for Omitrition IMAs, who sell Omnitrition products, and (3) in Omnitrition marketing materials. First, the "original label" on Omni Drops bottles allegedly stated that "Omnitrition Official Homeopathic Weight Loss Drops" were "[a] fast and effective way to lose unwanted pounds and inches!" (Id. ¶ 4.16.) This label also allegedly contained a disclaimer that "this product is not intended to diagnose, treat, cure, or prevent any disease." (Id. ¶ 4.17.) Second, Defendants' training materials allegedly instructed agents to tell customers about the expected weight loss and to share testimonials of individuals experiencing weight loss. (Id. ¶¶ 4.24, 4.26.) Third, the complaint asserts that Defendants' advertisements portray Omni Drops as "safe and effective products that will result in rapid and safe weight loss of up to two pounds per day." (Id. ¶ 4.25.) By August 2011, the complaint alleges that Defendants reported a sales growth of 294%, largely attributable to the sales of Omni Drops. (Id. ¶ 4.27.)

         In response to the FDA and FTC advisements, Ms. Pattison asserts that Defendants altered their marketing at the end of 2011. (Id. ¶ 4.28.) Defendants allegedly "revamped their Omni Drops label" by removing the "Weight Loss Drops" designation and the hCG lettering. (Id. ¶ 4.29.) They also purportedly "required [their] agents to remove any photos or images of the Omni Drops product from marketing materials, websites, and social media platforms." (Id. ¶ 4.30.) As a result of these alleged misrepresentations and omissions, Ms. Pattison claims that she and other putative class members were misled into "paying for a product that is not as represented." (Id. ¶ 4.32.)

         Based on these allegations, Ms. Pattison brings five claims against Defendants: (1) violation of Washington's Consumer Protection Act ("CPA"), RCW ch. 19.86, by engaging in unfair and deceptive acts or practices (id. ¶¶ 6.1-6.5); (2) fraud in its marketing of Omni Drops (id. ¶¶ 6.7-6.15); (3) misrepresentation regarding Omni Drops (id. ¶¶ 6.16-6.19); (4) unjust enrichment through Defendants' wrongful conduct (id. ¶¶6.20-6.22); and (5) piercing the corporate veil as to Omnitrition and the Daleys (id. ¶¶ 6.23-6.28). In their two motions to dismiss, brought by the Omnitrition Defendants and Ms. Van Vynck respectively, Defendants seek to dismiss all claims. (See Omnitrition MTD; Van Vynck MTD.) After the Omnitrition Defendants' motion to dismiss was filed, Ms. Pattison submitted a motion for relief from the filing deadline associated with that motion, in which she argues that a dispositive motion should not be considered prior to class certification.[3] (See Mot. for Relief at 4-5.) The court now addresses these motions.

         III. ARGUMENT

         At the outset, the court addresses the issue raised by Ms. Pattison in her motion for relief: whether the court should consider Defendants' motions to dismiss before determining the class certification issue. The court then turns to the merits of Defendants' motions to dismiss.

         A. Ms. Pattison's Motion for Relief

         As noted above, the sole issue remaining in Ms. Pattison's motion for relief is whether the court may consider Defendants' dispositive motions at this time. (See Mot. for Relief at 4-5.) Ms. Pattison argues that "it makes little sense to consider a dispositive motion prior to class certification" and that the "normal practice in the Western District is that class certification motions are resolved followed by any dispositive motions." (See id.) The court disagrees.

         In fact, the opposite is true: District courts in the Ninth Circuit commonly resolve dispositive motions before turning to class certification. See, e.g., Boyle v. Madigan, 492 F.2d 1180, 1182 (9th Cir. 1974). In Boyle, the district court "proceeded directly to dismissal of the action" before making any determinations under Federal Rule of Civil Procedure 23(c)(1). Id. The Ninth Circuit held that "this is the proper course to follow where the named plaintiffs have failed to state a claim in themselves for the relief they seek." Id. That is, "[u]ntil [plaintiffs] can show themselves aggrieved in the sense that they are entitled to the relief sought, there is no occasion for the court to wrestle with the problems presented in considering whether the action may be maintained on behalf of the class." Id. Since Boyle, the Ninth Circuit has reiterated several times that "the district court need not inquire as to whether [a] meritless claim should form the basis of a class action."[4] Corbin v. Time WarnerEntm't-Advance/NewhouseP'ship, 821 F.3d 1069, 1085 (9th Cir. 2016) (listing cases).

         Thus, the court rejects Ms. Pattison's contention that the court should not consider Defendants' motions to dismiss simply because the court has not yet decided the class certification question. Accordingly, the court now turns to Defendants' two motions to dismiss.

         B. Defendants' ...

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