California and Delaware residents have filed a consumer-fraud lawsuit including allegations under the Racketeer Influenced and Corrupt Organizations Act (RICO) on behalf of a putative nationwide class of those who purchased dietary supplements containing Testofen, an herbal extract derived from fenugreek and advertised as a clinically proven “testosterone booster.” O’Toole v. Gencor Nutrients, Inc., No. 14-3754 (U.S. Dist. Ct., C.D. Cal., W. Div., filed May 15, 2014).
Citing research debunking claims that Testofen increases free testosterone levels and describing how the clinical tests conducted by the defendants failed to achieve statistical significance, the plaintiffs contend that they purchased more than 20 products sold in General Nutrition Corp. (GNC) stores relying on false representations made through a variety of media. Among the defendants are the founders and executive officers of the companies that make the products as well as GNC, which purportedly provides the “exclusive launch platform” for the supplements. The plaintiffs refer to the enterprise as “Testofenterprise” and allege that the defendants participated in it to defraud in violation of RICO thus causing economic injury to the class.
Seeking to certify a nationwide class, various product-related subclasses and a New York subclass, the plaintiffs also allege violations of California’s Consumers Legal Remedies Act, Unfair Competition Law and False Advertising Law; breach of express warranty and implied warranties of merchantability and fitness for a particular purpose; fraud; negligent misrepresentation; restitution; and violation of New York’s General Business Law. They request injunctive relief; compensatory, actual, punitive, and treble damages; attorney’s fees; and costs.