Michael Bitton v. Gencor Nutrientes, Inc.

MEMORANDUM

Michael Bitton, Brian O’Toole, and Robert Sokolove (collectively, “Plaintiffs”) appeal the dismissal with prejudice of their putative class action complaint against Gencor Nutrients, Inc., and GE Nutrients, Inc. (“Gencor”); Direct Digital, LLC, Tru-derma, LLC, and Force Factor, LLC, (‘Wholesalers’’); General Nutrition Corporation and related entities (“GNC”); and several executives of the named corporate entities (together with the corporate entities, “Defendants”). Gencor manufactures Testofen—an extract of the herb fenu-greek. The Wholesalers and GNC manufacture nutritional supplements containing Testofen, which GNC sells to the public. We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, reverse in part, vacate in part, and remand.

1. Gencor claimed that a “double-blind, randomized, placebo-controlled human clinical study” established “statistically significant results” showing increases in “free testosterone” in study -participants who took Testofen. Plaintiffs allege that they purchased Testofen products in reliance on this representation, which they allege is false. Although Plaintiffs- concede that Gencor conducted a clinical trial, the complaint…