False advertising lawsuit wrongly dismissed; 9th U.S. Circuit panel rules in favor of Tauler Smith client

A 9th U.S. Circuit Court of Appeals panel handed client Nutrition Distribution LLC a major victory in its ongoing battle to prevent IronMag Labs LLC from its false advertising of its sports supplements containing Ostarine, a substance developed by pharma giant GTx to treat degenerative muscle diseases and cancers, announced Robert Tauler of Tauler Smith LLP in Los Angeles. The lawsuit alleges that IronMag Labs sells Ostarine without a prescription and markets Ostarine as a bodybuilding supplement, even though Ostarine is still in clinical trials. IronMag does not disclose to its customers that Ostarine has well known side effects.

Nutrition Distribution’s position was bolstered by an amicus curiae brief filed by GTx Inc., which said that Ostarine is being investigated as a new drug, is the subject of clinical trials, and, as such, cannot be sold in supplements.

Tauler Smith’s Lisa Zepeda made the successful appeal, arguing in part that “the FDA has made a clear statement that Defendants are selling their products illegally. Thus, even according to the district court’s own reasoning, Nutrition Distribution’s claims are not precluded.”

“We are pleased that the Ninth Circuit acknowledged GTx’s position that since Ostarine is the subject of publicly disclosed clinical trials, it cannot subsequently be marketed as a dietary supplement. It is important that the creators of drugs like Ostarine are able to protect their inventions and the integrity of the clinical trial process to ensure the safety of products,” Tauler said.

The decision was covered by the industry’s leading news source, Natural Products Insider.

  • This story spells out the issues involved in the lawsuit: https://tinyurl.com/FDAs-role
  • Coverage of the 9th Circuit judges’ decision to dismiss, with prejudice, a lower court’s ruling as “an abuse of discretion … due to a misapplication of the law.” https://tinyurl.com/primary-jurisdiction.
  • Watch the arguments made before the court here (Dec. 6, 2017).
  • Read the Jan. 24, 2018 ruling here.

Tauler Smith Obtains Five Figure Sanctions Award Against Opposing Counsel for Attorney Misconduct

Los Angeles, Nov. 15, 2017 — A Los Angeles Superior Court judge last month dispensed with one of the complaints against Pablo David Cienfuegos, attorney Mona Deldar, and their businesses, granting the defendants’ motion to completely dismiss that lawsuit, defense attorney Robert Tauler announced. In addition, the court imposed $11,460 in sanctions against a large regional law firm.

“The court agreed with our argument that filing a second complaint after the court had already dismissed one lawsuit on the same facts was an impermissible attempt to circumvent a court order,” explained Tauler, of Tauler Smith LLP in Los Angeles.

Plaintiffs Joubin Sedgh and Adinja LLC allege that the defendants and their businesses, Serfin Capital Secured High Yield Income Fund, Serfin Capital LLC, and Deldar Legal, defrauded them in the sale and transfer of property.

“The court’s ruling sends a message that litigants can’t be bullied,” stated Tauler. “Just because a party engages a big firm, does not mean that they will get favorable treatment in court.”

Tauler Smith LLP specializes in high-stakes commercial litigation representing both plaintiffs and defendants in a variety of areas, including: false advertising, business disputes, and unfair competition.

Westside Bar Association names Robert Tauler of Tauler Smith LLP “Attorney of the Year” for 2016

Robert Tauler, managing partner of law firm Tauler Smith LLP, has been named Westside Bar Association’s “Attorney of the Year” for 2016. The Westside Bar Association serves the greater Los Angeles area by connecting young attorneys through continuing education courses and mixers, according to its website.Westside Bar Association Attorney of the Year Rob Tauler

“I am honored to receive this recognition from my peers, and hope to drive our firm and clientele to future success,” said Tauler, a Los Angeles trial attorney specializing in civil trials. The award comes on the heels of a $10 million dollar jury verdict obtained on behalf of a client against a nutritional supplement manufacturer.

The Westside Bar Association Attorney of Year Award is given to attorneys that have have achieved exceptional results for their clients early in their careers. The award reception will be held at the Sofitel Hotel in Beverly Hills on August 24, 2016. You may RSVP at info(at)westsidebarassociation(dot)com

Tauler Smith Prevails on Motion to Dismiss False Advertising Lawsuit Against Supplement Manufacturer for Allegedly Selling Designer Drug Ostarine

The U.S. District Court will allow claims against supplement maker Custom Nutraceuticals LLC (“Custom”), JRM Nutrasciences and Jason Mancuso dba DNA Pharma proceed after denying defendants’ Motion to Dismiss in a ruling published on July 8. Custom was sued by competitor Nutrition Distribution in federal court on January 26, 2016 (Case 2:16-cv-00173-DGC). According to the First Amended Complaint, Defendants marketed the SARM “Ostarine” as “NOT FOR HUMAN CONSUMPTION” while simultaneously advertising and selling its product as a new miracle body building drug.”

Plaintiff Nutrition distribution alleged in Court papers that Defendants’ ability to market the bodybuilding drug Ostarine without disclosing its harmful side effects or disclosing that international anti-doping groups have banned the product had a harmful effect on the marketplace and potentially to individual consumers. Plaintiff, who sells its own line of bodybuilding supplements, further alleged “users of [Ostarine] have little incentive to use a natural product.”

Defendants filed a motion to dismiss claiming that the lawsuit should be dismissed or stayed due to the “primary jurisdiction doctrine” which provides that certain matters involving nutritional supplement regulations be under the exclusive purview of the Food and Drug Administration (“FDA”).

Desperate ManThe Court rejected Defendants’ theory, holding that “the Court need not consult the FDA to determine whether it is false and misleading to label a product as ‘not for human consumption’ while touting the benefits of such consumption…. Nor does the Court require the FDA’s expertise to determine whether it is false and misleading to market a product to competitive athletes while neglecting to mention that it has been banned by the World Anti-Doping Agency and the U.S. Anti-Doping Agency.” (Opinion at 3:13-16,23-26). The Court continued its analysis by observing “Plaintiff’s theories do not require the Court to determine whether Ostarine is a drug or whether Defendants’ sale of Ostarine violated the FDCA [“Food, Drug, and Cosmetic Act”]. Even if Defendants are lawfully marketing Ostarine as a nutritional supplement, their statements about the product may still be false and misleading.” (Opinion, 4:25-5:3).

Tauler Smith Obtains $10 Million Verdict Against Supplement Manufacturer

Daily Journal ArticleLOS ANGELES, CA – 12/18/2015 (PRESS RELEASE JET) — Commercial litigation firm Tauler Smith LLP obtained a $10.2 million jury verdict on behalf of plaintiff Ahmad Alkayali against Neocell Corporation, a nutritional supplement company, and its officers and directors (“Defendants”).  The dispute centered on the one-time manufacturer for Neocell Corporation, a company called Healthwise Nutraceuticals, Inc.  Defendants conspired to dissolve Healthwise and transfer its assets to NeoCell without informing or compensating Mr. Alkayali, despite his 72 percent interest in the company.

Mr. Alkayali was awarded $9.5 million in economic and non-economic damages in connection with claims of conversion and breach of fiduciary duty, as well as punitive damages amounting to $685,000.

“We are very happy that the jury awarded Mr. Alkayali the value of his interest in Healthwise, as well as emotional distress and punitive damages,” said lead attorney Robert Tauler, founding partner of Tauler Smith. “It was a very hard-fought and emotional month-long trial and the verdict is vindication for our efforts.”

The verdict underscores a slew of recent litigation involving nutritional supplements.  Tauler Smith has pursued several bodybuilding supplement companies for false advertising and unfair competition related to ingredients in their products.


Healthwise and Neocell were sister companies in adjoining rental space.  Healthwise manufactured the supplements, while Neocell marketed and sold the supplements.  Litigation concerning the ownership of NeoCell began in October 2008, during which Mr. Alkayali’s ownership right to NeoCell was extinguished and an injunction was issued barring him from entering the NeoCell premises, which was next door to the Healthwise facility. Although Mr. Alkayali was unable to manage the day-to-day affairs of Healthwise, he maintained his equity stake in the business. In August 2010, the defendants held a meeting where they dissolved Healthwise and transferred its assets to NeoCell, knowing that Mr. Alkayali would be unable to attend.

Read more: http://www.digitaljournal.com/pr/2782300#ixzz3v0I51vYu

Four Tauler Smith Attorneys Named to 2015 Super Lawyer list of Rising Stars

Four Tauler Smith attorneys were recently named to the 2015 Southern California Super Lawyers list of “Rising Stars,” a legal industry recognition only given to 2.5% of all lawyers in Los Angeles.  Firm Attorneys Robert Tauler, Gil Peles, Bryan Lazarski and Daniel Forouzan were given the honor.

Rising Star recognition is given to attorneys who are either 40 years old SL2015or younger or have been in practice for 10 years or less, and have attained high degrees of peer recognition and professional achievement.



Firm Partner Matt Smith Part of Team Obtaining U.S. Supreme Court Ruling in Favor of Immigrants

On June 8, 2015, the U.S. Supreme Court granted certiorari in the case of Madrigal-Barcenas v. Lynch(“Madrigal”), vacated the underlying decision of the Ninth Circuit Court of Appeals, and remanded the case for further consideration in light of the recent June 1, 2015 decision in the similar case of Mellouli v. Lynch (“Mellouli”).   Petitioner Madrigal-Barcenas can now return to the Ninth Circuit to seek a favorable disposition of his case based on the U.S. Supreme Court’s opinion in Mellouli.


Tauler Smith partner Matt Smith, while at his former firm McDermott Will & Emery, was part of the team advocating on behalf of Mr. Madrigal-Barcenas. The outcome of these Supreme Court rulings significantly advanced the due process protections for immigrants facing deportation or removal proceedings following very minor convictions under state law.


Mr. Madrigal-Barcenas, a 35-year-old citizen of Mexico, has lived as an SCOTUSimmigrant in the United States for over fifteen years. He supports his four young children (three of whom are U.S. citizens), his father (a U.S. citizen), and his mother (a legal permanent resident). During his first ten years in the United States, Mr. Madrigal-Barcenas remained free of any criminal convictions or arrests. But in January 2008, Mr. Madrigal-Barcenas was arrested and pleaded guilty to possession of drug paraphernalia, a misdemeanor under Nevada law. The “drug paraphernalia” Mr. Madrigal-Barcenas was charged with possessing was a glass pipe with “burnt residue,” but the charge and conviction did not specifically identify a controlled substance.


As a result of his conviction, the government initiated removal proceedings in an effort to send Mr. Madrigal-Barcenas back to Mexico. Mr. Madrigal-Barcenas fought to cancel the removal proceedings on the basis that his absence would cause hardship to his four young children and his aging parents. The government, however, argued that Mr. Madrigal-Barcenas’ misdemeanor drug paraphernalia conviction rendered him ineligible to seek cancellation of removal. The assigned Immigration Judge (IJ) agreed with the government, and the Board of Immigration Appeals (BIA) subsequently affirmed the IJ’s finding. When Mr. Madrigal-Barcenas initiated proceedings pro per in the Ninth Circuit Court of Appeals, McDermott was asked to handle the appeal through the court’s pro bono program.


After briefing and argument, the Ninth Circuit affirmed the BIA’s decision and concluded that Mr. Madrigal-Barcenas was ineligible for cancellation of removal. McDermott then filed a petition for writ of certiorari before the U.S. Supreme Court, arguing that under the plain text of Section 1182 of the Immigration and Nationality Act (INA), a drug paraphernalia conviction does not render a noncitizen ineligible for cancellation of removal unless it explicitly relates to a controlled substance listed in the federal Controlled Substances Act (CSA) – which Mr. Madrigal-Barcenas’ did not.


After McDermott filed its petition, the U.S. Supreme Court granted certiorari in Mellouli, an Eighth Circuit case that presented a similar statutory interpretation question under Section 1182, and held Madrigal in abeyance. Armed with the background legal research from theMadrigal case, McDermott’s pro bono team then filed an amicus brief in support of Mr. Mellouli as counsel for Heartland Alliance’s National Immigrant Justice Center (NIJC) and American Immigration Lawyers Association (AILA).


On June 1, 2015, the U.S. Supreme Court held, consistent with McDermott’s argument, that “to trigger removal under [the INA], the Government must connect an element of the alien’s conviction to a drug defined in [the CSA].” (Slip. Op. at 14.) In its opinion, the Court favorably cited the amicus brief McDermott filed on behalf of NIJC and AILA, which noted the differences in drug paraphernalia criminalization statutes on a state-by-state basis.


A week later, the Court granted certiorari in Mr. Madrigal-Barcenas’ case, vacating the Ninth Circuit’s decision and remanding with instructions to consider the decision in Mellouli. The McDermott team will now return to the Ninth Circuit and seek to persuade that court that Mr. Madrigal-Barcenas should be permitted to remain with his family in the United States.

Tauler Smith Wins Fourth Case in a Year After Voluntary Dismissal with Prejudice

Tauler Smith LLP won its fourth case in the last 12 months after Plaintiff BCG Attorney Search voluntarily dismissed its case with prejudice against firm client Lateral Link Group.  The Complaint sought damages for unfair competition and interference with contractual relations.  The voluntary dismissal came on the heels of the service of a motion for sanctions, asserting that Plaintiff’s complaint was frivolous and seeking attorneys fees and disciplinary charges.

Dismissal Obtained In Mass. State Court Against Massachusetts Law Firm Plaintiff

Tauler Smith recently obtained a complete dismissal of a lawsuit brought against a long time firm client in Massachusetts State Court. The lawsuit, brought by prominent New England Law firm BLA Schwartz, alleged that defendant Lateral Link Group, a leading placement firm,
had failed to perform under a oral contract for services.  The Court granted defendants motion to dismiss and awarded costs to defendant.

Attorneys Robert Tauler and Mark Dell’Orfano represented defendant Lateral Link Group.

A copy of the Court’s Order can be found here.

Claim against Firm Client Voluntarily Dismissed after Demurrer Sustained

The Plaintiff in an unfair competition lawsuit against firm client Lateral Link Group has voluntarily dismissed their claims after the Court sustained Defendant’s demurrer (motion to dismiss) to Plaintiff’s First Amended Complaint.  Plaintiff sought damages for unfair competition and interference with contractual relations, but the Court found that the claimslacked merit as pled.  The Court granted leave to amend, but Defendant’s voluntarily dismissed the case seven days later instead of amending their complaint.