Cook v. Gen. Nutrition Corp.

DOUG COOK et al., Plaintiffs, v. GENERAL NUTRITION CORPORATION, Defendant.

Civil Action No. 17-135

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

September 29, 2017

Hon. Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

Pending before the Court in this matter is Defendant's Motion to Dismiss Plaintiffs' First Amended Complaint and supporting brief and declaration, (Docket Nos. 27, 28, 29); Plaintiffs' brief in opposition, (Docket No. 36); Defendant's reply, (Docket No. 41); and Plaintiffs' Notice of Entry of Order, (Docket No. 58). Also pending before the Court is Plaintiffs' Motion for Reconsideration of the Court's Order granting Defendant's motion to compel arbitration and supporting brief and declaration, (Docket Nos. 50, 51, 52); Defendant's brief in opposition, (Docket No. 54), and Plaintiffs' reply, (Docket No. 57). For the following reasons, Defendant's Motion to Dismiss Plaintiffs' First Amended Complaint, (Docket No. 27), is GRANTED; Plaintiffs' First Amended Complaint is DISMISSED, with prejudice; and Plaintiff's Motion for Reconsideration, (Docket No. 50), is DENIED.

II. Factual Background

A. Factual Background

This class action arises from Defendant's Gold Card Program. The following facts are alleged in the First Amended Complaint, which the Court will accept as true for the sole purpose of deciding the pending motion.¹

Defendant, which is one of the world's largest specialty retailers of health, wellness, and performance products, regularly and continuously offered paid membership programs for its participant-customers that were called the "Gold Card Program" and/or the "Member Price Program." (Docket No. 23 at ¶¶ 1-2, 16). Defendant's customers paid a $15.00 annual membership fee to participate in Defendant's Gold Card Program, through which they received benefits for a period of one year from the date of payment. (Id. at ¶¶ 2, 16). Defendant advertised and described the benefits of membership in its Member Price Program as follows:

* Save up to 50% Every Day[]

* Save at GNC.com and Any GNC Store in America

* New, Unbeatable Low Prices on Store Puchases[]

* Simplified Pricing Makes Shopping Easier

* More Savings. Every Day. Any Time You Shop!

(Id. at ¶ 18). Defendant collected $15.00 annual membership fees from the Gold Card members for many years and throughout 2015 and 2016, selling one and two year-memberships. (Id. at ¶¶ 3, 16). Defendant touted that the Gold Card Program was "a big deal" and had nearly seven million members. (Id. at ¶ 17). In 2015, the Gold Card members accounted for 79% of Defendant's company owned retail sales, and they spent approximately two times more than Defendant's other customers. (Id.).

The terms and conditions of the Gold Card Program specify that the membership lasts for one year from the date of purchase and that the members receive discounts on eligible purchases. (Id. at ¶ 19). Specifically, the terms and conditions provide:

Terms and Conditions

The following Terms and Conditions govern membership in GNC's Member Price Program ("the Program"), a loyalty program brought to you by General Nutrition Corporation. Purchase or use of a membership in the Program (a "Membership") at any time binds the purchaser or user to the Terms set forth herein.

Benefits

A Membership entitles members to the following benefits:

Up to fifty percent (50%) off eligible purchases made at GNC retail stores every day for one year. Some exclusions may apply. By purchasing a Membership, you agree to the Terms and Conditions of the Program.

Additional benefits may apply. Full details are available at GNC.com. Benefits may be altered at any time with or without notice. Benefits may not be available for immediate use.

Benefits are not applicable to purchases of GNC Gift Cards, shipping and handling expenses or purchase or renewal of a Membership. Membership benefits cannot be combined with any discount or other benefits unless otherwise stated. Reimbursements will not be issued retroactively for purchases made without a Membership.

International members in the U.S. may call 877-GNC-4700 for questions regarding their benefits.

Membership

Membership fee is $15.00 unless otherwise stated. GNC reserves the right to alter the fee at any time, but changes will apply only to new or renewed memberships. Membership fee is non-refundable. GNC is not responsible for lost or stolen Membership cards.

Duration of Membership is one (1) year from the date of purchase. At the time of expiration, Membership may be renewed at the user's discretion. Membership fee is due at the time of renewal unless otherwise stated. Membership is not transferable.

Changes to the Terms

GNC reserves the right to change the Terms at any time with or without prior notice or consent. Any change shall take effect thirty (30) days from the date of posting to GNC.com. A copy of the Terms may be obtained any time online at GNC.com.

Fraud, Misuse or Abuse

In cases of fraud, misuse or abuse of a Membership and associated benefits, GNC reserves the right to take appropriate administrative and/or legal action. This includes, but is not limited to, Membership forfeiture without credit, suspension of benefits associated with Membership and closure of the Membership account.

Member Communications and Privacy

Respecting member privacy is a high priority for GNC. GNC expects members to maintain accurate and up-to-date information in connection with the Program. Such information includes, but is not limited to, name, address, email address and telephone number. This information will be used to notify you of necessary Program administrative announcements and may also be used to send you advertisements, product or service recommendations and other communications, in accordance with the GNC Privacy Statement. Acceptance of the Terms also implies acceptance of the GNC Privacy Statement. A copy of the GNC Privacy Statement may be obtained at any time online at GNC.com.

In accordance with the GNC Privacy Statement, member account access and information on how to update your account and communications preferences can be obtained by writing to:

GNC Customer Resources

info@gnc.com

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY AGREE THAT PARTICIPATION IN THE PROGRAM IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

GNC AND ITS PARENTS, AFFILIATES (AND THEIR FRANCHISEES AND LICENSEES) AND SUBSIDIARIES (COLLECTIVELY, "AFFILIATES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A

PARTICULAR PURPOSE AND NON-INFRINGEMENT. GNC AND ITS AFFILIATES MAKE NO WARRANTY, EXPRESS OR IMPLIED, THAT THE PROGRAM OR ANY SERVICES, PRODUCTS, OR INFORMATION OBTAINED ON OR THROUGH THE PROGRAM WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES GNC OR ITS AFFILIATES MAKE ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROGRAM OR ANY SERVICES, PRODUCTS OR INFORMATION OBTAINED ON OR THROUGH THE PROGRAM OR AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY THEREOF. GNC MAKES NO COMMITMENT TO UPDATE OR CORRECT ANY INFORMATION THAT APPEARS ON MEMBERSHIP MATERIALS.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR INFORMATION SOUGHT AND OBTAINED REGARDING THE PROGRAM IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE OR NONUSE OF SUCH INFORMATION WITHOUT LIMITATION. GNC AND ITS AFFILIATES MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GNC OR THROUGH OR FROM ANY SERVICE OR PRODUCT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

YOU AGREE THAT GNC AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE PROGRAM OR ANY SERVICES, PRODUCTS OR INFORMATION OBTAINED THROUGH THE PROGRAM, EVEN IF GNC OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FROM:

PERSONAL INJURY, COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PROGRAM AND/OR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE LOSSES.

YOU FURTHER AGREE THAT GNC AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF THE PROGRAM, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Applicable Law; Jurisdiction

Any claim relating to the Program, our Terms, and the relationship between you and us shall be governed by the laws of the United States and the Commonwealth of Pennsylvania without regard to its conflict of law provisions. You and GNC agree to submit to the personal and exclusive jurisdiction of the courts located within the Commonwealth of Pennsylvania.

General

These Terms and the GNC Privacy Statement constitute the entire agreement between you and GNC with respect to the Program; provided, however, that certain provisions of these Terms may be superseded by expressly designated legal notices or Terms which may be located elsewhere. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision by us. If any provision of these Terms if found by a court of competent

...