A California federal judge has kept intact most of a proposed class action lawsuit accusing Wal-Mart Stores Inc. of exaggerating the effectiveness of a heart-health supplement by including misleading statements on the packaging. The court found the fraud allegations sufficiently detailed to pass muster. In largely denying Wal-Mart’s bid to jettison the amended complaint, U.S. District Judge Cynthia Bashant found that Plaintiff Thamar Cortina’s purchase of the coenzyme Q10 supplement Equate CoQ10 and the subsequent economic injury, based on her allegations that she would not have purchased the product without the misleading statements, are sufficient to establish standing.

Furthermore, the amended complaint gives a reasonably specific recitation of the facts of the purchase and includes facts supporting the fraud allegations, Judge Bashant said. The judge dismissed claims in the suit brought under Arkansas’ Deceptive Trade Practices Act with prejudice, saying Cortina could never allege any facts that would allow for a cause of action under the act for class members who never purchased the products in Arkansas, even though the retail behemoth is headquartered in the state.

Judge Bashant said that although Wal-Mart noted it isn’t required to adhere to standards set by the U.S. Pharmacopeial Convention, which Cortina’s amended complaint relies on to assert claims for breach of implied and express warranties, those standards could nevertheless prove to be useful further along in the litigation. She referenced in particular Cortina’s claims regarding allegedly inconsistently produced batches of Equate, saying USP testing could help provide evidence supporting the breach of implied or explicit warranties.

Judge Bashant refused to strike the national class allegations, finding they weren’t “redundant, immaterial, impertinent or scandalous” and that Wal-Mart’s motion was premature. She also declined to dismiss claims brought under the Magnuson-Moss Warranty Act relating to statements on the packaging that Equate is “clinical strength,” “high absorption” and offers “three times better absorption,” saying the allegations were more than legal conclusions in that they set verifiable and reasonable benchmarks. Cortina’s claim under the California Legal Remedies Act survived Wal-Mart’s motion to dismiss after Judge Bashant determined that she was not seeking damages for those claims and therefore wouldn’t have to provide notice at least 30 days in advance.

CoQ10 is a naturally occurring antioxidant produced in the heart, liver, kidneys and pancreas known to provide various benefits, including to the heart. The amount of CoQ10 produced by the body decreases over time due to aging, heart disease and some medications, according to the amended complaint.

The suit accuses Wal-Mart Inc. of deceptively advertising Equate CoQ10, specifically targeting statements on the product’s packaging. The complaint says the claims are misleading not only because the softgels fail to rupture in a timely enough manner for absorption, but also because Equate and Qunol are formulated differently and employ different technologies for increasing CoQ10 absorption. Cortina is seeking to represent a nationwide class of consumers who purchased Equate, along with a California subclass. Her suit includes claims under California consumer protection and product liability laws.

Source: Law360.com

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