A California federal judge dismissed a false advertising class action against former Washington Redskins quarterback Joe Theismann and NAC Marketing Co., ruling that the purchasers of NAC’s prostate medication who alleged it was unsafe and ineffective already received refunds.
Plaintiffs Floyd Luman and Joel Amkraut, purchasers of NAC’s drug Super Beta Prostate, sued NAC and endorser Theismann for breach of warranties and false advertising, saying SBP didn’t safely and effectively treat the symptoms of BPH. But U.S. District Judge Kimberly J. Mueller granted the defendants’ motions to dismiss the amended complaint in its entirety, saying the court lacked subject matter jurisdiction because the plaintiffs’ injuries had already been redressed.
“Here, plaintiff Luman was made whole before he filed the original complaint. He received his refund on February 11, 2013, nearly two months before he filed the original complaint,” Judge Mueller wrote. “Plaintiff Amkraut’s claim is also moot. Amkraut also received a refund, but only after he joined in the first amended complaint.”
The order and judgment in favor of SBP spokesman Theismann and NAC brings an end to the false adverting lawsuit, brought in April by plaintiffs who sought to represent a class of SBP purchasers.
Luman first bought the nutritional supplement SBP for personal use in late 2012, and says he relied on advertisements featuring Theismann and “Dr. Zielinski,” a doctor who no longer practices medicine but appeared in the ads as an actor. Zielinski now claims, in his expert opinion as a lapsed doctor, that he would not recommend SBP for the treatment of BPH, according to court documents.
Similarly, Amkraut purchased SBP for personal use in early 2013 and relied on the advertisements. Neither plaintiff would have purchased SBP if they had “known the true facts concerning its safety, efficacy and failure to comply with FDA regulations,” according to the lawsuit.
Luman filed suit in April, calling the defendants’ marketing and promotion of SBP an “elaborate hoax” involving falsified endorsements and false claims that the product will treat the symptoms of BPH.
But on Feb. 11, 2013, well before Luman filed the original complaint, NAC had issued Luman a refund for all his SBP orders, including the purchase price and shipping costs. The plaintiffs used credit cards to purchase SBP, and NAC remitted the refunds to their credit cards, according to court records.
The case is Luman et al. v. Theismann et al., case number 2:13-cv-00656, in the U.S. District Court for the Eastern District of California.