Margolin

I.

BACKGROUND

A. Margolin's Operative Complaint

In a second amended complaint, Margolin alleged that Vital manufactures,

markets and sells NO Shotgun, a creatine-based dietary supplement. According to

Margolin, creatine is a performance-enhancing substance that can increase strength and

power during high-intensity aerobic exercise. He alleged the target market for

NO Shotgun includes body builders, weight lifters, athletes and other consumers

conscious of health and fitness.

Margolin alleged Vital falsely claimed that NO Shotgun contained an esterified

form of creatine (creatine ethyl ester) that was superior to the common form (creatine

monohydrate) because the esterified form was better absorbed into the bloodstream and

delivered intact to muscle cells, where it could be transported across the muscle cell

membrane to " 'cause explosive muscle growth!' " Margolin also alleged Vital falsely

claimed that creatine ethyl ester, in combination with other ingredients in NO Shotgun,

increased muscle cell DNA and caused muscle cell hyperplasia. According to Margolin,

the scientific study that Vital cited to support its "outrageous and false claims" did…