Federal Trade Commission et al v. Quincy Bioscience Holding Company, Inc. et al
| Federal Trade Commission and People of The State of New York |
| Quincy Bioscience Holding Company, Inc., Quincy Bioscience, LLC, Prevagen, Inc., Quincy Bioscience Manufacturing, LLC, Mark Underwood and Michael Beaman |
| 1:2017cv00124 |
| January 9, 2017 |
| U.S. District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Louis L. Stanton |
| Other Statutory Actions |
| 15 U.S.C. ยง 45 |
| None |
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The following documents for this case are available for you to view or download:
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Filing
513
MEMORANDUM AND JUDGMENT: The full, fair and proper determination of this action is that the defendants must immediately remove all the above statements (and any others similar to them) from use in connection with any and all forms of promotion of Pre vagen, and cease their use in the promotion of Prevagen in any way. Defendants' personnel must be clearly informed that no challenged statement may be made in a communication about Prevagen's performance, or in any situation in which it might be relied on. So Ordered. (Signed by Judge Louis L. Stanton on 11/18/2024) (sgz)
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Filing
501
ORDER denying 495 Motion to Stay: At the present junction, with the prospect of entering a final and appealable judgment in sight, there is no sensible argument for a § 1292(b) application, and the motion for an order endorsing an application under 28 U.S.C. § 1292(b) is denied. (Signed by Judge Louis L. Stanton on 9/25/2024) (ml)
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Filing
493
ORDER: Therefore, the jury's factual findings regarding the eight Challenged Statements, which are supported by the record at trial, are binding on this Court's determination of the Quincy defendants' liability under Sections 5 and 1 2 of the FTC Act. Applying the jury's factual determinations, which are determinative of the Quincy defendants' liability under Sections 5 and 12 of the FTC Act, the Court finds that the Quincy defendants acted as a common enterprise and ar e liable for the statements "Prevagen reduces memory problems associated with aging" and "Prevagen is clinically shown to reduce memory problems associated with aging" under the FTC Act Sections 5 and 12. So Ordered. (Signed by Judge Louis L. Stanton on 8/29/2024) (sgz)
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Filing
491
ORDER: The jury's verdict, finding the Quincy defendants' Challenged Statements had the capacity or tendency to deceive under NY Exec. Law 63(12), is upheld. (Signed by Judge Louis L. Stanton on 8/20/2024) (ml)
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Filing
481
ORDER RE: RECONSIDERATION: denying 449 Motion for Judgment as a Matter of Law; denying 460 Motion for Reconsideration re 449 MOTION for Judgment as a Matter of Law [Renewed]: Defendants' applications for a retroactive alteration of this Court's denial of summary judgment, and entry now of judgment NOV for the defendants, are denied. (Signed by Judge Louis L. Stanton on 7/10/2024) (ml)
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Filing
476
ORDER: Because Mark Underwood was not a defendant in the jury trial of the New York Attorney General's claims, the Court strikes his name from the jury verdict sheet. (Signed by Judge Louis L. Stanton on 6/18/2024) (rro)
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Filing
457
ORDER: The parties' renewed motions under Rule SO(b) are denied. The Jury's March 11, 2024 verdict found with respect to the Challenged Statements concerning Prevagen as follows: and further set forth in this Order. The jury, having fo und two such violations of the New York General Business Law Sections 349 and 350, considered New York Executive Law 63(12). It found that law was violated by every one of the Challenged Statements. The jury's verdict followed its charge. It is fully supported by the evidence, which the jury evaluated with care, and will not be disturbed. Determinations of the Attorney General's remedies and the non-jury trial of the FTC's claims against Mark Underwood and the other defendants remain. (Signed by Judge Louis L. Stanton on 5/2/2024) (rro)
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Filing
396
ORDER: Plaintiffs' requests in their January 12, 2024 letter are resolved as follows: (1) The requests to compel updated responses to plaintiffs' interrogatories numbers 6 and 20 are denied. If the jury finds defendants liable in this act ion, plaintiffs may renew those requests prior to the remedy phase of this action. (2) The request to compel updated financial records isgranted as it may be relevant to issues before the jury, including the establishment of a common enterprise. (Signed by Judge Louis L. Stanton on 1/26/2024) (rro)
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Filing
393
ORDER: The parties shall submit proposed verdict forms by January 31, 2024. (Signed by Judge Louis L. Stanton on 1/22/2024) (rro)
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Filing
379
ORDER granting 342 Motion in Limine; granting 345 Motion in Limine; denying as moot 348 Motion in Limine; denying 351 Motion in Limine; granting 361 Motion in Limine. Motion in Limine No. 1: The motion is granted. Defendants shall no t argue that evidence of consumer perception is required. Motion in Limine No. 2 : The motion is granted. Defendants shall not argue that plaintiffs were required to put forth affirmative scientific or clinical research. However, it is a fair questi on to ask an expert the basis for his or her expert opinion or if his or her expert opinion assumes some fact which is unproved. Motion in Limine No. 3 : The motion to exclude Dr. Kurzer ' s testimony is denied. Dr. Kurzer ' s testimony is relevant to issues in the case, including the quality of the scientificliterature as support for the Prevagen claims, such asreports on the effect of Vitamin D. Motion in Limine No. 4: The decision on the motion toexclude evidence and argument relat ing to the FTC Guidanceis reserved for trial and will concern specific testimony.The document will not be admissible as evidence of what thelaw is but may be admissible for other purposes. Motion in Limine No. 5: Rulings on defendants ' expert witnesses ' testimony are reserved for trial and will concern specific testimony. Motion in Limine No. 6 : The decision on the motion to exclude any testimony and argument regarding good faith is reserved for trial. The defense of good faith sh ould not be presented to the jury. However, good faith may be alluded to in the history of the development of Prevagen. Objections to specific testimony regarding good faith will be ruled on at trial. Motion in Limine No. 7 : The decision on the moti on to exclude any testimony and arguments regarding advice of counsel is reserved for trial. The defense of advice of counsel should not be presented to the jury. However, testimony regarding attorneys may be alluded to in the history of Prevagen � 39; s development. Objections to specific testimony regarding the advice of counsel will be ruled on at trial. Motion in Limine No. 8 : Rulings on the evidence of the research and advertising practices of other companies are reserved for trial and w ill concern specific testimony. Motion in Limine No. 9 : Rulings on references to Aduhelm are reserved for trial and will concern specific testimony Motion in Limine No. 10: The motion to exclude reference to private litigation regarding the advert ising of Prevagen, including the Collins settlement, is granted. The disclaimers may be discussed without disclosing their source. Motion in Limine No. 11 : The motion to exclude mention of the monetary relief sought by the New York Attorney General is granted. Motion in Limine No. 1: The parties have agreed to not introduce evidence of or elicit testimony relating to the FDA Warning Letter, so the motion is denied as moot. Failing that resolution, decision on the motion is reserved for trial . Motion in Limine No. 2: Decision on the motion to prevent plaintiffs or their experts from characterizing the Madison memory study analyses as "post hoc" is reserved for trial. Disputes regarding the meaning of that label may be more ad equately addressed on cross examination. Motion in Limine No. 3: Underwood ' s ownership interest and financial relationship to the corporate defendants and financial interest in the outcome of trial are all admissible. Plaintiffs shall not ask about personal finances, net worth, or wealth beyond his involvement with the corporate defendants. Cross Motion in Limine No.1 : Prevagen sales data is immaterial to the liability phase and is accordingly excluded under Rule 403. It may be admissible in the potential damages phase, which will be decided and is reserved until then.. (Signed by Judge Louis L. Stanton on 1/8/2024) (rro)
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Filing
332
OPINION & ORDER re: 235 LETTER MOTION to Seal addressed to Judge Louis L. Stanton from Kate Matuschak dated May 6, 2022 filed by People of The State of New York, 253 LETTER MOTION to Seal addressed to Judge Louis L. Stanton from Annette Soberats and Kate Matuschak dated 6/16/22 filed by Federal Trade Commission, 248 LETTER MOTION to Seal addressed to Judge Louis L. Stanton from Kate Matuschak dated May 20, 2022. filed by People of The State of New York. The NYAG states that the documents should be sealed because they contain information that was designated "Confidential" under a Protective Order agreed to by both parties. Documents submitted in connection with a motion f or summary judgment are "judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment" and "should not remain under seal absent the most compelling reasons." Lugosch v. Pyr amid Co. of Onondaga, 435 F.3d 110, 119, 121 (2d Cir. 2006). "Sealing of the documents may be justified only with specific, on-the-record findings that sealing is necessary to preserve higher values and only if the sealing order is narrowly tail ored to achieve that aim." Id. at 124. The existence of a protective order is not a compelling reason to justify sealing judicial documents. Id. at 126. Without specific reasons why each individual request should be sealed, the motions to seal are denied. So ordered. (Signed by Judge Louis L. Stanton on 3/7/2023) (vfr)
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Filing
331
OPINION AND ORDER re: 306 MOTION in Limine to Exclude Plaintiffs' Experts. filed by Quincy Bioscience, LLC, Prevagen, Inc., Quincy Bioscience Holding Company, Inc., Quincy Bioscience Manufacturing, LLC, 303 MOTION in Limine to Exclude the Testimony of Defendants' Experts: Drs. David Schwartz, David Katz, Lee-Jen Wei, Mindy Kurzer, Richard Goodman, and David Gortler. filed by Federal Trade Commission, 220 MOTION for Summary Judgment . filed by Quincy Bioscience, LLC, Prevagen, Inc., Quincy Bioscience Holding Company, Inc., Quincy Bioscience Manufacturing, LLC.Following discovery regarding the defendants' development of Prevagen, defendants move for summary judgmen t. For the following reasons, defendants' motion for summary judgment is denied. Defendants also move to exclude the testimony, in whole or in part, of plaintiffs' experts, Ors. Sano, Wittes, Berg, and Malaspina. Dkt. No. 306. For the fol lowing reasons, defendants' motion is denied in part, and reserved in part. Plaintiffs move to exclude the testimony, in whole or in part, of defendants' experts: Ors. David Schwartz, David Katz, Lee-Jen Wi, Mindy Kurzer, Richard Goodman, and David Gortler. 0kt. No. 303. For the following reasons, plaintiffs' motion is granted in part, and reserved in part and further set forth in this Order. (Signed by Judge Louis L. Stanton on 12/19/2022) (rro)
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Filing
330
ORDER GRANTING MOTION TO WITHDRAW AS AN ATTORNEY PRO HAC VICE: IT IS HEREBY ORDERED that the Withdrawal of Bryan L. Mosca's admission to practice Pro Hae Vice in the above captioned case in the United States District Court for the Southern District of New York is Granted. Attorney Bryan L. Mosca terminated. (Signed by Judge Louis L. Stanton on 12/8/2022) (rro)
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Filing
291
ORDER with respect to 219 Letter Motion to Seal; with respect to 263 Letter Motion to Seal: After a personal review of the documents submitted in support of defendants' summary judgment motions, whose portions defendants seek to file under seal (Dkt. Nos. 263 and 219), which plaintiffs oppose (Dkt. Nos. 252 and 275), I find that only the Exhibits attached to Exhibit 5 to the de Leeuw Declaration (Exhibits A through F, analyzing sales) may remain under seal intheir entirety. The other Exhibits to the de Leeuw, Underwood and Graham Declarations do not warrant redaction or sealing under the standard set forth in Lugosch v. Pyramid Co. of Onondaga, 435 F. 3d 110 (2d Cir. 2006). (Signed by Judge Louis L. Stanton on 8/24/2022) (ml)
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Filing
287
ORDER: Accordingly, both parties have leave to file their proposedDaubert motions. (Signed by Judge Louis L. Stanton on 7/22/2022) (ml)
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Filing
274
ORDER granting 273 Letter Motion for Extension of Time to File Response/Reply re 273 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Louis L. Stanton from Geoffrey W. Castello and Michael B. de Leeu w dated July 7, 2022. LETTER MOTION to Seal addressed to Judge Louis L. Stanton from Geoffrey W. Castello and Michael B. de Leeuw dated July 7, 2022. ( Replies due by 7/11/2022.); terminating 273 Letter Motion to Seal. Granted.. (Signed by Judge Louis L. Stanton on 7/7/2022) (rro)
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Filing
272
OPINION & ORDER granting 210 Motion for Partial Summary Judgment; terminating 243 Motion for Oral Argument; denying 247 Motion for Partial Summary Judgment; terminating 251 Motion for Oral Argument: The Court lacks jurisdiction over the NYAG's claims against Mr. Underwood individually, and those claims are therefore dismissed. (Signed by Judge Louis L. Stanton on 7/5/2022) (ml)
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Filing
192
ORDER FOR PRE-TRIAL SUBMISSIONS: THE COURT HEREBY ORDERS the Parties to complete their pre-trial negotiations and submissions as follows: 1. On February 3, 2022, Plaintiffs shall serve on Defendants a set of proposed findings of ultimate fact, w ithout evidentiary detail, which would be sufficient to sustain a judgment for Plaintiffs if these facts were ultimately found to be true. 2. On March 3, 2022, Defendants shall inform Plaintiffs which of Plaintiffs' proposed findings are co ntested and which are not. Disagreements should be based on substance only, not on the form or wording of any proposed finding. On the same date, Defendants shall serve on Plaintiffs proposed counter-findings of ultimate fact with respect to the contested finding, as further set forth herein. 3. On March 24, 2022, Plaintiffs shall inform Defendants which of Defendants' proposed findings are contested and which are not contested. With respect to those which Plaintiffs contest, Defe ndants shall list the evidentiary sources which support their contentions by April 7, 2022. On March 24, 2022 Plaintiffs must also support each of the initially proposed findings which Defendants dispute with an evidentiary source, citing the sour ce which supports each proposed finding immediately after it. On March 24, 2022, Plaintiffs shall also add reply counter-findings to Defendants' new contentions, with appropriate evidentiary support. 4. On or before April 21, 2022, the P arties shall exchange proposed trial exhibit lists. 5. On or before May 5, 2022, the Parties shall exchange objections to their proposed trial exhibits lists. 6. On or before May 12, 2022, the Parties shall meet and confer regarding their obje ctions to the proposed trial exhibits. 7. On June 3, 2022, the Parties shall sign and file a single consolidated Pre-Trial Order. The Pre-Trial Order shall include, as further set forth herein. 8. On or before June 3, 2022, any Party who intends to use expert witnesses to support disputed findings shall file a sworn statement, executed by the expert witness, summarizing his or her education and professional background and his or her direct testimony. References to any documents or sourc es on which the expert will rely must also be included. 9. On June 3, 2022, the Parties shall also file: (1) trial briefs on contested issue(s) of law; (2) proposed jury charges; (3) proposed voir dire questions; and (4) a list of individuals, companies, or other witnesses that ma appear as witnesses or otherwise be referred to during the trial. Trial briefs should also identify and address any evidentiary issue(s) likely to arise at trial. Briefs should be concise, declaratory statemen ts of the law without unnecessary detail or recitation of facts. Each statement of law must be supported by citation to appropriate authority. SO ORDERED, this 23rd day of November, 2021. ( Brief due by 6/3/2022., Pretrial Order due by 6/3/2022.) (Signed by Judge Louis L. Stanton on 11/23/2021) (vfr)
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Filing
184
ORDER: As agreed by all parties at the pre-motion conference before the Court at 2:30 PM on September 17, 2021, the FTC's claim for monetary relief is dismissed, without prejudice and with leave to renew and to seek such relief if the applicable law, as set forth in AMG Capital Mgmt., LLC v. Federal TradeCommission, 141 S. Ct. 1341 (2021), were to be changed to allow such a recovery. (Signed by Judge Louis L. Stanton on 9/17/2021) (ml)
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Filing
170
OPINION & ORDER: That Defendants' demand for a jury trial is granted. (Signed by Judge Louis L. Stanton on 4/26/2021) (ml)
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Filing
164
ORDER: My rulings on the objections made during the deposition of the FTC's 30(b)(6) designee are as follows; as further set forth herein. Defendants' request to compel plaintiff to provide another 30(b) (6) witness is denied. It does no t appear that Ms. Rosso was unprepared to testify or was intentionally evasive. Defendants may serve additional interrogatories to discover any outstanding information to which the Court previously found it was entitled. (Signed by Judge Louis L. Stanton on 3/9/2021) (nb)
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Filing
148
ORDER: terminating 134 Letter Motion for Local Rule 37.2 Conference; terminating 135 Letter Motion for Local Rule 37.2 Conference; granting 143 Letter Motion for Local Rule 37.2 Conference. The parties ' requests are resolved as follows : Accordingly, plaintiffs' motion for a protective order,barring the Rule 30(b) (6) depositions of the NYAG and the FTC, is granted. If the supplemental written responses required by this Order prove inadequate, defendants may reopen their request for supplementary 30(b) (6) deposition topics. And as set forth herein. SO ORDERED.. (Signed by Judge Louis L. Stanton on 12/03/2020) (ama)
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Filing
127
OPINION & ORDER that the objections made at the Lerner depositions on August 6and 7 are sustained. The FTC's April 10, 2020 motion to compel production of documents identified in the Dec. 11, 2019 GES subpoena is denied, and the subpoena is quashed. (Signed by Judge Louis L. Stanton on 9/9/2020) (ml)
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Filing
108
ORDER granting 107 Letter Motion to Adjourn Conference. So Ordered. August 7, 2020 at 2:30 p.m. (Status Conference set for 8/7/2020 at 02:30 PM before Judge Louis L. Stanton.) (Signed by Judge Louis L. Stanton on 5/5/2020) (rro)
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Filing
99
OPINION & ORDER granting in part and denying in part 86 Motion to Strike eight affirmative defenses from defendants' answers: Plaintiffs' motion to strike defendants' affirmative defenses (Dkt. No. 86) is granted in part and denied in part. The motion to strike the defenses of failure to state a claim (Defendants' First Defenses), laches and waiver (Quincy's Second and Underwood's Third Defenses), validity of the FTC quorum (Quincy's Fifth and Underwood 9;s Sixth Defenses), primary jurisdiction of the FDA (Defendants' Thirteenth Defenses), and the right to raise additional defenses (Quincy's Seventeenth Defense and Underwood's Preamble to Defenses) is granted. The motion to strike the defenses of protected commercial speech (Quincy's Sixth and Underwood's Seventh Defenses), good faith (Defendants' Tenth Defenses), and NYGBL claims (Defendants' Fifteenth Defenses) is denied. Defendants' request for leave to file an amended answer with additional factual allegations is denied because amendment of the stricken defenses would be futile. (Signed by Judge Louis L. Stanton on 3/2/2020) (ml)
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Filing
95
STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIAL AND SENSITIVE PERSONAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. (Signed by Judge Louis L. Stanton on 2/11/2020) (rro)
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Filing
45
OPINION AND ORDER granting 33 Motion to Dismiss; granting 36 Motion to Dismiss: The motions to dismiss (Dkt. Nos. 33, 36) are granted as to the federal law claims, and plaintiffs' state law claims are dismissed without prejudice. (Signed by Judge Louis L. Stanton on 9/28/2017) (ml)
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