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Yeldo v. Musclepharm Corp.

United States District Court, E.D. Michigan, Southern Division

November 16, 2017

NICK YELDO, Plaintiff,
v.
MUSCLEPHARM CORP., Defendant.

          ORDER GRANTING DEFENDANT'S REQUEST FOR JUDICIAL NOTICE (DOC. 13) AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS (DOC. 12).

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Plaintiff Nick Yeldo, individually and on behalf of all others similarly situated, alleges that defendant MusclePharm Corp. utilizes misleading marketing practices to promote its Glutamine product. This matter is presently before the Court on defendant's request for judicial notice, (Doc. 13) and motion to dismiss, (Doc. 12). Oral argument was held on November 14, 2017. For the reasons stated below, defendant's motion is

         GRANTED IN PART AND DENIED IN PART.

         I. Background

         Defendant manufactures and sells dietary supplements and sports nutrition products. (Doc. 9 at PageID 174). Plaintiff purchased and consumed the dietary supplement MusclePharm Glutamine (the Product) marketed and sold by defendant throughout the four years preceding the filing of his complaint. (Doc. 9 at PageID 176). The Product's label and online advertisements indicate that it enhances muscle growth and recovery, supports rebuilding and recovery from the toughest workouts, reduces catabolism and supports an anabolic environment, aids in muscle growth, causes faster recovery, and helps consumers rehydrate, rebuild, and recover faster and more efficiently. (Doc. 9 at PageID 175).

         Glutamine[1] is a “naturally occurring, nonessential, neutral amino acid.” (Doc. 9 at PageID 176). “It is important as a constituent of proteins and as a means of nitrogen transport between tissues.” (Doc. 9 at PageID 177). Plaintiff alleges that many healthy people, including athletes and body builders, are under the impression that increased intake of glutamine has beneficial effects. (Id.). He concedes that Glutamine naturally found within the body plays a role in muscle growth, recovery, and immunity support, but alleges that “glutamine supplementation has been found to be completely ineffective at mimicking these physiological responses.” (Id.). In short, plaintiff alleges that “the ingestion of defendant's Product does absolutely nothing for the recovery from exercise, recovery of muscle tissue, enhancement of muscle or ability to decrease muscle wasting.” (Doc. 9 at PageID 178).

         Plaintiff bases his claims regarding the ineffectiveness of glutamine supplements on nine scientific studies. The first study showed that “glutamine failed to affect muscle protein kinetics of the test subjects.” (Doc. 9 at PageID 179, n. 2). In a second study, “glutamine was continuously infused” in “healthy humans” “for 2.5 hours at a rate corresponding to .4 grams/kg” and “revealed that glutamine provision did [not] stimulate muscle protein synthesis.” (Doc. 9 at PageID 179, n. 3).

         In a third study, researchers investigated the effect of glutamine supplementation on the plasma and muscle tissue glutamine concentrations of exercise-trained rates immediately and three hours after a single exercise session until exhaustion. (Doc. 9 at PageID 180, n. 4). During the final three weeks of the six-week study, one group of rats received a daily dose of glutamine. (Id.). While “[t]he plasma and muscle glutamine levels were higher than placebo during the post-exhaustive recovery period, ” the “increase had no effect on the exercise swim test to exhaustion performance, suggesting that elevations in plasma and muscle glutamine levels have no benefit on muscle performance.” (Id.).

         A fourth study investigated “the effect of oral glutamine supplementation combined with resistance training in young adults.” (Doc. 9 at PageID 180, n. 5). Subjects received either a placebo or glutamine during six weeks of resistance training. (Id.). “Results showed that muscle strength and torque, fat free mass, and urinary 3-methyl histidine (a marker of muscle protein degradation) all significantly increased with training, but were not different between the groups, ” suggesting “that L-glutamine supplementation during resistance training had no significant effect of muscle performance, body composition, or muscle protein degradation” in healthy young adults. (Id.).

         A fifth study examined “the effects of a combination of effervescent creatine, ribose, and glutamine on muscle strength, endurance, and body composition in resistance-trained men.” (Doc. 9 at PageID 180-81 n. 6). Subjects performed resistance training for eight weeks and received either a placebo or an experimental supplement containing creatine, glutamine, and ribose. (Id.).Both subject groups improved muscle strength, endurance, and fat-free mass. But the groups were not significantly different from one another, suggesting that the “supplement, which included glutamine was no more effective than [a] placebo in improving skeletal muscle adaptation to resistance training.” (Id.).

         A sixth study investigated the effects of creatine monohydrate and glutamine supplementation on body composition and performance measures. (Doc. 9 at PageID 181, n. 7.). Subjects engaged in an eight-week resistance training program and received either a placebo, creatine monohydrate (.3 grams/kg/day for one week and then .03 grams/kg/day for seven weeks), or the same dose of creatine in addition to 4 grams of glutamine per day. (Id.). The creatine and the creatine glutamine groups experienced body mass and fat-free mass increases at a greater rate than the placebo group as well as a greater improvement in the initial rate of muscle power production. (Id.). Plaintiff claims that “[t]hese results suggest that the creatine and creatine glutamine groups were equally effective in producing skeletal adaption to resistance training and that glutamine apparently had no preferential effect in augmenting the results.” (Id.).

         A seventh study examined if high-dose glutamine ingestion affected weightlifting performance. (Doc. 9 at PageID 181-82, n. 8). In “a double-blind, placebo-controlled, crossover study, resistance-trained men performed weightlifting exercise one hour after ingesting placebo . . . or glutamine (.3 g/kg).” (Id.). According to Plaintiffs, “[r]esults demonstrated no significant differences in weightlifting performance (maximal repetitions on the bench press and leg press exercises), indicating that the short-term ingestion of glutamine did not enhance weightlifting performance in resistance-trained men.” (Id.).

         An eighth study investigated “whether glutamine ingestion influenced acid-base balance and improved high-intensity exercise performance.” (Doc. 9 at PageID 182, n. 9). The “[r]esults showed that blood pH, bicarbonate, and lactate, along with time to fatigue, were not significant[ly] different between supplement conditions, indicating that the acute ingestion of L-Glutamine did not enhance either buffering potential or high-intensity exercise performance in trained males.” (Id.).

         Finally, in the ninth study, researchers examined “whether oral glutamine, alone or in combination with hyperoxia, influenced oxidative metabolism and cycle time-trial performance in men.” (Doc. 9 at PageID 182, n. 10). Subjects received either a placebo or a glutamine supplement one hour before completing a brief high-intensity time-trial. (Id.). The “[r]esults indicated no significant difference in pulmonary oxygen uptake during the exercise test, thereby indicating no effect of glutamine ingestion either alone or in combination with hyperoxia.” (Id.).

         Plaintiff claims that defendant's Product label and advertising are false and misleading, that he was in fact mislead by defendant's representations regarding the Product's efficacy, and that he would not have purchased the Product, or would not have paid as much for it, had he known the truth about the misrepresentations.

         Plaintiff seeks certification of two classes:

National Class: All persons in the United States who purchased the Product within the six years preceding the Complaint.
Michigan Subclass: All persons in the State of Michigan who purchased the Product within the six years preceding the Complaint.

         Plaintiff alleges breach of express warranty (Count I), negligent misrepresentation (Count III), fraud by uniform written misrepresentation and omission / fraudulent inducement (Count IV), and Unjust Enrichment (Count V) on behalf of the National Class, or alternatively, the Michigan Subclass. He alleges breach of implied warranties of merchantability and fitness (Count II) on behalf of the Implied Warranty Multi-State Class and Michigan Subclass. He also seeks injunctive relief (Count VI) on behalf of the National Class.

         II. Legal Standard

         A. Fed.R.Civ.P. 12(b)(6)

         A court confronted with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether the plaintiffs factual allegations present plausible claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007). “[N]aked assertions devoid of further factual enhancement” and “unadorned, the-defendant-unlawfully-harmed-me accusation[s]” are insufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain “detailed” factual allegations, but its “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true.” Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).

         B. ...


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