A Chicago federal judge has relied on a recent U.S. Supreme Court decision to gut a suit against the makers of a dietary supplement, who allegedly made bogus claims about its effectiveness, saying non-Illinois claimants can't participate in a suit in Illinois.

The Jan. 18 decision was laid down by Judge Harry Leinenweber of U.S. District Court for the Northern District of Illinois. The ruling went against Joshua DeBernardis, of Grayslake, in his putative class-action suit against NBTY and United States Nutrition, makers of the supplement Body Fortress 100 percent Glutamine Powder. NBTY is based in Ronkonkoma, N.Y., and United States Nutrition is in Bohemia, N.Y.

In rendering his decision, Leinenweber drew from the June 19, 2017, U.S. Supreme Court ruling in Bristol-Myers Squibb Co. v. Superior Court of California.

On Aug. 23, DeBernardis filed his suit against the companies, saying they made “false and misleading” claims about their dietary supplement, which they market as helping the body recover from heavy exercise.

DeBernardis cited studies to allege the supplement is worthless. He wants defendants to pay unspecified damages and his legal costs, as well to be prohibited from continuing to make the alleged false claims.

The suit has four counts, three of which involve claims by class members nationwide, with the other count involving only Illinois members.

The companies asked Judge Leinenweber to dismiss the nationwide counts, primarily on the ground the court has no jurisdiction to address those counts. In pressing their argument, the companies pointed to the Bristol-Myers Squibb ruling.

Leinenweber agreed with the companies' take on Bristol-Myers.

The Bristol-Myers case involved eight suits against New York-based Bristol-Myers, brought in California state court by 86 California residents and 592 residents of other states, alleging the company's drug Plavix injured their health. Bristol-Myers sold Plavix in California, but none of the out-of-state plaintiffs claimed they suffered harm in that state and no alleged conduct by the drug maker took place in California.

The California Supreme Court concluded that, although California lacked general jurisdiction, the state held specific jurisdiction, because Bristol-Myers had “extensive contacts” in California that warranted jurisdiction over the non-Californians' claims.

The matter went to the U.S. Supreme Court, with that body ruling 8-1 the out-of-state residents could not stake a claim in California, because there was little to link the case to California.

Leinenweber noted he believes “courts will apply Bristol-Myers Squibb to outlaw nationwide class actions in a form, such as in this case, where there is no general jurisdiction over the Defendants.”

As a consequence of Bristol-Myers, Leinenweber threw out the three counts filed by DeBernardis, in so far as they pertain to non-Illinois residents.

Leinenweber also dismissed DeBernardis' request to bar NBTY and United States Nutrition from continuing to make alleged false claims about their product.

“The Plaintiff makes no allegations of any potential future injury. Plaintiff would be hard pressed to argue that he is in danger of being fooled again by Defendants' products claim,” Leinenweber said.

DeBernardis is represented by Barbat, Mansour & Suciu, of Bloomfield Hills, Mich., and the Chicago firms of Siprut PC and Wexler Wallace LLP.

 NBTY and United States Nutrition are defended by Willenken, Wilson, Loh & Delgado, of San Francisco, and A & G Law, of Chicago.

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Siprut P.C. U.S. District Court for the Northern District of Illinois U.S. Supreme Court




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