Brooks v. It Works Mktg.

1

AILEEN BROOKS, on behalf of herself and all others similarly situated, Plaintiff, v. IT WORKS MARKETING, INC., et al., Defendants.

No. 1:21-cv-01341-DAD-BAK

United States District Court, E.D. California

June 21, 2022

ORDER DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION AND PROVISIONAL CLASS CERTIFICATION

(Doc. No. 22)

This matter is before the court on a motion for a preliminary injunction and provisional class certification filed on behalf of plaintiff Aileen Brooks. (Doc. No. 22.) Pursuant to General Order No. 617 addressing the public health emergency posed by the COVID-19 pandemic, the pending motion was taken under submission on the papers. (Doc. No. 23.) For the reasons explained below, the court will deny plaintiff's motion for a preliminary injunction and provisional class certification.

BACKGROUND

A. Factual Background

This putative class action arises from plaintiff Aileen Brooks' purchase of a weight loss product called Thermofight X^x (“Thermofight”) from defendants It Works Marketing, Inc. and It Works! Global Inc. (together, “It Works!”).

Plaintiff a Bakersfield resident, proceeds on her first amended class action complaint (“FAC”) against defendants It Works! and defendants Mark Pentecost, the It Works! founder and CEO, and Paul Nassif, a plastic surgeon and reality TV star who has developed and promoted products for It Works!. (Doc. No. 17.) In her FAC, plaintiff alleges that she purchased Thermofight from an independent distributor in reliance on defendants' representations that it was a safe and effective weight control product. (Id. at ¶¶ 77-78.) Despite alleging that she used Thermofight as directed, plaintiff claims it did not deliver on its advertised benefits or provide any results at all. (Id. at ¶¶ 79-81.) Moreover, plaintiff alleges that when making her initial purchase she was enrolled in an auto-shipment program without her knowledge which required a minimum of three purchases of Thermofight (one per month). (Id. at ¶¶ 200-02.) Plaintiff alleges that she was charged for two purchases of Thermofight before realizing that she had been enrolled in the auto-shipment program. (Id. at ¶ 204.) Although plaintiff was able to cancel future shipments over the phone, her request for a refund for the second shipment was denied. (Id. at ¶¶ 204-05.) Plaintiff alleges that these auto-billing practices constitute an unlawful “automatic renewal” prohibited under California law. (Id. at ¶ 206.) Plaintiff does not allege that she suffered any other injuries from using Thermofight.

Aside from her individual allegations, plaintiff is also suing on behalf of two putative classes and the general public. (Id. at ¶¶ 265-67, 297, 306, 310, 315.) As detailed in her FAC, plaintiff alleges that defendants, collectively, have defrauded the public by marketing, distributing, and selling a suite of “unapproved weight control drugs”^[1] through “an illegal multilevel marketing scam,” which uses “unlawful credit card repeat auto-billing practices.” (Id. at ¶ 3.) In addition, plaintiff claims that defendants' Terms of Use contract is unlawful because it contains several unconscionable provisions. (Id. at ¶¶ 219-39.) ///// /////

B. Procedural Background

After originally filing this lawsuit on September 3, 2021 (Doc. No. 1), plaintiff amended her complaint two months later, on November 8, 2021 (Doc. No. 17), asserting several violations of California consumer protection statutes. (Id. at ¶¶ 281-314.) Specifically, plaintiff asserts the following five claims against defendants in her operative FAC: (1) violation of the California Unfair Competition Law's (UCL) unlawful prong; (2) violation of the UCL's fraudulent prong; (3) violation of the UCL's unfair prong; (4) violation of California's False Advertising Law (FAL); and (5) violation of California's Consumer Legal Remedies Act (CLRA). (See id.)

In conjunction with these five claims, plaintiff seeks injunctive relief, including an order enjoining defendants from “continuing to conduct business through unlawful, unfair, and fraudulent acts and practices,” engaging in “deceptive and unlawful advertising practices,” and entering into contracts which allegedly contravene California law. (Id. at ¶¶ 301, 303, 307, 312.) Plaintiff also prays for several equitable remedies, including restitution, disgorgement, and orders enjoining defendants' allegedly “deceptive, unconscionable, and fraudulent practices” and requiring that they engage in a corrective advertising campaign. (Id. at ¶ 315.)

On December 21, 2021, over three and half months after initiating this lawsuit, plaintiff filed the pending motion. (Doc. No. 22.) In support of that motion, plaintiff filed four declarations with attached exhibits: (i) the declaration of plaintiff's counsel, Gregory S. Weston (Doc. No. 22-2); (ii) the declaration of Nathan Wong, a professor of medicine and epidemiology at University of California, Irvine's (UCI) School of Medicine and the director of UCI's heart disease prevention program (Doc. No. 22-3); (iii) the declaration of William M. London, a professor of public health at California State University, Los Angeles (Doc. No. 22-4); and (iv) the declaration of Robert L. FitzPatrick, a co-author of two books regarding multi-level marketing (MLM) and pyramid schemes (Doc. No. 22-5). Plaintiff, however, did not include a declaration of her own in support of the pending motion.

Defendants filed an opposition brief on January 18, 2022, arguing, among other things, that plaintiff cannot show that she is in imminent danger of suffering any irreparable injury. (Doc. No. 29 at 8.) Plaintiff filed her reply brief on January 25, 2022, contending that she has offered sufficient evidence of injury, that she seeks “public injunctive relief,” and that she has no adequate remedy at law. (Doc. No. 30 at 8-13.) In the proposed order filed with her pending motion, plaintiff details the “three forms of injunctive relief” requested in her motion: (1) enjoining defendants' advertising and sale of defendants four weight control products; (2) enjoining defendants' auto-billing practices; and (3) enjoining defendants' “use of exculpatory contract provisions which she contends are unlawful and unconscionable waivers of unwaivable rights.” (Doc. No. 22-6 at 2.)

C. Plaintiff's Evidence of Irreparable Harm

In her pending motion, plaintiff contends that she, the putative classes, and “the public” will suffer imminent and irreparable harm absent this court issuing preliminary injunctive relief. (Doc. No. 22-1 at 22-26.) Plaintiff alleges five such harms. First, plaintiff asserts that promoting “unapproved drugs” causes irreparable harm based on an FDA webpage where it generically lists harms from “unapproved drugs.”^[2] (Id. at 23-24.) She included copies of FDA enforcement letters sent to non-It Works! companies. (Doc. No. 22-2 at ¶¶ 9-12.) Second, plaintiff relies on the declarations from professor of epidemiology Nathan Wong, professor of public health William M. London, and author Robert L. FitzPatrick as support for additional alleged harms from “unapproved drugs.” (Doc. No. 22-1 at 24.) Professor Wong states in his declaration that a specific advertising claim made by defendants regarding Thermofight-i.e., it “[c]ontains a clinically proven weight-loss ingredient - an average of 31 pounds lost over 90 days!”-“lacks biologic plausibility” and that in his opinion,

Thermofight's advertising is misleading, deceptive, and likely to channel people who purchase the product in lieu of medically proven therapies for weight loss approved by the FDA. Besides the economic loss from the costs of such a therapy of questionable benefit, continued lack of sufficient weight loss may result in the continued chronic illnesses associated with obesity.

(Doc. No. 22-3 at ¶¶ 9-10, 26.) Professor Wong also attests that “[t]hese same issues apply to” defendants remaining weight control products. (Id. at ¶ 26.) Similarly, plaintiff highlights the following passage from public health professor London's declaration as evidence of the purported harm stemming from defendants' weight control products':

The amount of health harm from the kind of herbal/vitamin/mineral concoctions promoted by Defendants is largely unmeasured which means that extent of harm due to product use is unknown making it impossible to state with confidence that the amount of harm is small. Considering that none of the ingredients in the products the Defendants promote for weight loss have been shown to be efficacious in humans, the products must be viewed as potentially more harmful than beneficial.

(Doc. No. 22-4 at ¶ 10.) Author FitzPatrick's declaration, in contrast, concludes from his review of portions of the FAC, the It Works! website, and approximately 50 pages of Bates stamped documents that are not further identified in his declaration, that defendants' conduct has “serious, wide-ranging, and devasting non-economic and irreparable harms.” (Doc. No. 22-5 at ¶ 7.) Although FitzPatrick does not attest that It Works! is in fact an MLM scheme, he generally attests that MLM schemes can lead to the following injuries:

The greatest injury suffered by MLM victims are not economic. It is the blow to the soul, an injury that may be carried unhealed throughout life. It is a shock to self-esteem, trust and social capital. What makes the injury so damaging is the misuse of trusted relationship. When workplace, collegiality, friendships and family become settings for calculated deception and abuse, the fundamentals of life are altered. * * * The consequences to MLM victims of soul-injuries, for which MLM promoters have never been held accountable, may include divorces, alienation from family, lost friendships, incapacity to work, disillusionment, bankruptcies,

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