In an unpublished decision, a California appeals court has determined that Innovation Ventures, LLC, the parent company which makes 5-Hour Energy®, may proceed with a malicious prosecution action against Howard Rubinstein and other consumer-fraud attorneys in connection with a putative class action filed against the company in 2010 on behalf of a woman, Vi Nguyen, whose claims about the product apparently changed during her deposition, leading to the suit’s voluntary dismissal with prejudice. Innovation Ventures, LLC v. Rubinstein, No. G046242 (Cal. Ct. App., 4th Dist., decided November 29, 2012) (unpublished).

The court noted that the underlying consumer-fraud complaint referred in a number of places to the named plaintiff as “he” and that the named plaintiff did not believe she had ever seen the complaint or she would have corrected these references. She also apparently had never seen the attorneys of record “and had just met Rubinstein the day before her deposition.” The court found that the underlying litigation was without merit, based on discrepancies in the evidence and the lawsuit’s voluntary dismissal before a second round of depositions. The court also found that Innovation satisfied its prima facie case as to malice citing, among other matters, its counsel’s declaration in opposition to the anti-SLAPP motions filed by Nguyen and her attorneys.

The declaration “described a telephone conversation in which Rubinstein ‘offered to sell “protection” to Innovation unrelated to the merits of the claims he and Hewell intended to pursue on . . . Nguyen’s behalf. Specifically, . . . Rubinstein represented that Innovation’s . . . payment would vary based on the level of “protection” against his lawsuits that Innovation . . . desired to obtain. He said that the geographic scope of his promise to desist from filing lawsuits and the coverage of Innovation[’s] . . . product line would depend on how much Innovation . . . was willing to pay him.’”

The court dismissed the malicious prosecution claims filed against Nguyen, finding insufficient evidence of malice on her part.