Consumers who claim Cytosport Inc. engaged in deceptive sales practices regarding the ingredients in its Muscle Milk products have asked a California federal court to dismiss Cytosport’s affirmative defenses. In a reversal of the usual roles, the consumers are relying on arguments that are usually used by defendants against plaintiffs to get cases dismissed.

As described in a prior post, the lawsuit accuses the company of overstating the nutritional benefits of Muscle Milk products on the protein supplements’ labels and in advertisements. Sommers Schwartz’s Lance Young is part of a team of attorneys representing users of the products who claim Cytosport (now owned by Hormel Foods Corp.) violated state and federal laws by misleading them about the presence of certain muscle-building ingredients in the products.

In response to the consumers’ claims, Cytosport filed affirmative defenses arguing that they were not actually injured, nor was its advertising misleading because Muscle Milk and other drinks do have the amount of protein indicated on the product labels. The consumers recently filed a motion asking the court to strike these defenses for failing to state a single supporting fact or legal basis, as required by case law. They also contend that most of the company’s defenses — essentially, “we didn’t do it” — are not actually affirmative defenses. The motion asks the court to enter judgment on these defenses in the consumers’ favor as a matter of law.

The consumers also anticipate filing a motion to certify the matter as a class action, allowing them to consolidate the claims of all users who were similarly harmed by Cytosport’s alleged wrongdoing.

The proposed class action is not the first time Cytosport has faced litigation over its marketing. In 2013, the company agreed to a $5.3 million settlement over allegations that it understated the fat content in its drink products.

If you believe that a food manufacturer or other company caused you harm by falsely advertising the nature of its products, the attorneys in Sommers Schwartz’s Complex Litigation Group are ready to discuss your situation — please contact us today.

Rod Johnston

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Rod Johnston

Rod Johnston is a member of the Complex Litigation Group, participating in the firm’s direct and class action litigation on behalf of those harmed as a result of wage and overtime violations and consumer fraud.

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