Mistrial lets the company off the hook for alleged unsupported brain-improvement claims

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The jury’s note gives the impression of a hastily scribbled plea for rescue, stuffed, perhaps, in a bottle and sent to sea, or tied snugly to the leg of a trained raven cast from a prison tower. “The jury is deadlocked,” it reads. “We cannot agree on the issues. How do you suggest we proceed. Further progress seems unlikely.”

Ok, perhaps we’re being a bit dramatic.

But in addition to the poor jurors, who sound, at the very least, “over it,” should we not scrounge up some sympathy for the folks at Quincy Bioscience?

Understand: We’re not endorsing their positions in the recent deadlocked trial that ended with the note above. We simply imagine that they must have been at their wits’ end before it was all over.

Tightrope

The dispute, which went to trial on Jan. 7 and locked up permanently a week later, was, after all, a bit of a bear.

Launched in California’s Northern District in 2015 by concerned consumer Phillip Racies, the initial complaint opened a class action that accused Quincy of misleading statements related to its brain health supplement Prevagen. According to Racies, Quincy claimed that its products were “clinically tested” to “improve memory” and “support healthy brain function, sharper mind, and clearer thinking,” and to improve memory within 90 days.

Racies held that those claims were hogwash.

The court certified Racies’ class in 2017, which was promptly appealed by Quincy before the Ninth Circuit, which shot down the company’s attempt to overturn in 2018. The class action went back to the district court, and finally reached trial early this year – a trial that left the jury begging for the sweet release of a mistrial.

The Takeaway

Quincy must have let loose a sigh of relief, especially given its previous record in Prevagen-related disputes.

Halfway through the Racies class action, the FTC launched its own suit against the company, taking issue with the rather abstruse mathematics that underlay its Prevagen improved-memory claims.

In that case, the Southern District of New York granted Quincy’s motion to dismiss, which was appealed to the Second Circuit, which reversed the District Court’s decision to dismiss the case.

For now, at least, the ultimate disposition of Prevagen’s claims is still unresolved. But it would be hard to argue that Quincy doesn’t find itself in a better position than it did only a few short months ago.