High Court to Take Up Class Certification in Sex Pill Fight

(CN) – The U.S. Supreme Court on Monday agreed to decide whether the Ninth Circuit correctly ordered certification of a class in a consumer challenge of Nutraceutical’s “Cobra Sexual Energy” pills.

Lead plaintiff Troy Lambert sued Nutraceutical, claiming the Cobra Sexual Energy dietary supplement violated the Food and Drug Administration’s aphrodisiac drug rule because it was advertised to increase sexual desire but had not been clinically tested. Lambert also said one of the supplement’s ingredients, yohimbe, can be dangerous for some people in certain doses but there was no warning label on the product.

A federal judge initially granted class certification based on the full refund damages model, which applies when a product is shown to be worthless. However, the judge in the case retired and Nutraceutical successfully lobbied the replacement judge to decertify the class due to Lambert’s failure to provide “the key evidence necessary to apply his classwide model for damages” and the actual average retail price of the supplement.

The judge later denied Lambert’s request for reconsideration, and Lambert filed a request to appeal with the Ninth Circuit. Nutraceutical challenged Lambert’s request as untimely; the Ninth Circuit panel rejected the argument by finding Lambert made his intention to appeal clear to the lower court during proceedings well before the deadline and had filed his petition with the appeals court within the 14-day limit after the denial was issued by the lower court.

Additionally, the appellate panel ruled the lower court incorrectly decertified the class because “uncertainty regarding class members’ damages does not prevent certification of a class as long as a valid method has been proposed for calculating those damages,” which Lambert had offered.

On Monday, the Supreme Court agreed to decide whether the Ninth Circuit’s decision was correct and – per its custom – did so without further comment.


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