This week, Judge Seibel dismissed a putative class action against the makers of Muscle Milk and other protein powder products. The plaintiff alleged that the products were mislabeled under the Food, Drug, and Cosmetic Act, as they contained unnecessary empty space (or “slack fill”) that represented up to 30% of the container’s volume.

Judge Seibel found that these allegations alone – without further factual support – were not sufficient to survive a motion to dismiss:

Plaintiff states . . . that the 30% empty space was not used “to protect product, necessary for enclosing the product, or because of settling.” But he provides no facts rendering that conclusion plausible.

. . . .

The pleading here would have survived under the “no set of facts” standard originating in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), but that standard has “earned its retirement,” Twombly, 550 U.S. at 563. It has been replaced by the requirement that “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

It may be challenging for a plaintiff to present such facts before discovery, but where a claim is valid it is not impossible; for example, experts in the relevant field can be consulted or comparisons to similar products can be made. In any event, the law is clear that “the doors of discovery” are not unlocked “for a plaintiff armed with nothing more than conclusions.”