JPML Refuses To Consolidate Prevagen Lawsuits Over Fraud Claims

A panel of federal judges has rejected a request to centralize all lawsuits over Prevagen marketing claims, which allege that the manufacturer of the memory enhancement supplement engaged in fraudulent and misleading advertising, indicating that there are currently too few cases to justify formal consolidated pretrial proceedings.

There are currently about four Prevagen lawsuits pending in separate U.S. District Courts nationwide, each raising similar allegations that the dietary supplement, which can cost up to $69 per bottle, is a fraud.

In addition to lawsuits by a number of consumers, the New York Attorney General Eric T. Schneiderman and the Federal Trade Commission have also filed similar complaints against the manufacturers; Quincy Bioscience and Prevagen Inc.

Following oral arguments heard on May 30, the U.S. Judicial Panel on Multidistrict Litigation (JPML) denied a request filed by the manufacturer and other defendants to transfer all cases to one judge in the Southern District of New York. Although the defendants claimed that such centralization is necessary to reduce duplicate discovery, avoid contradictory pretrial rulings and to serve the convenience of the parties, witnesses and the courts, the panel disagreed.

In an order denying transfer (PDF), which was issued on May 30, the JPML indicates that informal coordination by the courts and counsel involved should be feasible. In addition to the small number of claims pending, the panel also noted that at least one of the claims is more than two years old, and plaintiffs have common counsel in at least two of the cases.

In addition, the JPML indicated that the claims presented in the Prevagen lawsuits are not sufficiently complex to require formal coordination as part of a federal MDL, or multidistrict litigation.

“The website for Prevagen lists only a single clinical trial of the supplement’s efficacy to date – the Madison Memory Study, a study sponsored by defendant Quincy Bioscience, LLC, that compared the effects of apoaequorin (10 mg) versus placebo over time on the outcomes of certain ‘CogState Research tests,’” the panel wrote. “The report describing that study and its results is only ten pages long.”

Plaintiffs in the older lawsuit, as well as the FTC opposed centralization.

Prevagen went on sale in 2007, and is sold at pharmacies nationwide, including CVS, Walgreens, Rite-Aid and through Amazon. The lawsuit estimates that Prevagen sales totaled $165 million from 2007 through mid-2015.

According to allegations raised in the complaint filed by the New York Attorney General and the FTC, print advertisements, television commercials and other marketing techniques used by the makers of the dietary supplement were intentionally misleading.

At issue is the Madison Memory Study, which involved 218 subjects who took either 10 milligrams of Prevagen or a placebo, and were assessed on nine computerized cognitive tasks. According to the lawsuits, the results failed to show a statistically significant improvement over the use of a placebo on any of those tasks.

The FTC lawsuit indicates that upon failing to get results, the researchers “conducted more than 30 post hoc analyses” trying to find subgroups in each of the nine tasks that could be used to show some improvement. Even then, they failed to find statistically significant memory improvements without taking very isolated subgroups’ results, the lawsuit states.

The JPML’s ruling means that the cases will continue to proceed as individual lawsuits.