Motion Filed To Consolidate Federal Prevagen Lawsuits For Pretrial Proceedings

A request has been filed with the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate all Prevagen lawsuits filed against the manufacturers over false advertising and fraud, seeking to transfer the claims to one U.S. District Judge for coordinated pretrial proceedings.

After a similar request was once rejected, defendants named in at least five different class action lawsuits have renewed the request, seeking to centralize the litigation for coordinate discovery and pretrial proceedings.

Prevagen was introduced in 2007, and is sold at pharmacies nationwide, including CVS, Walgreens, Rite-Aid and through Amazon. The lawsuits estimate Prevagen sales totaled $165 million from 2007 through mid-2015, alleging that 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.

There are currently five 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. Three of those claims are filed in the Southern District of New York.

Several defendants in those claims filed a motion to transfer (PDF) on December 18, asking the U.S. JPML to transfer the claims to the Southern District of New York, for handling as part of a federal MDL, or multidistrict litigation.

“Their transfer to one district court by the Panel would be more convenient for the parties, their counsel, and the witnesses likely to be called upon during discovery and at trial,” the defendants wrote. “Centralized pretrial proceedings would also conserve judicial resources and promote the just and efficient conduct of the litigations by avoiding duplicative discovery and conflicting rulings, especially about whether the plaintiffs have stated claims upon which relief may be granted and whether the claims (asserted on behalf of overlapping classes) are appropriate for class certification under Federal Rule of Civil Procedure 23.”

However, the JPML rejected a similar motion by the defendants filed in 2017. At the time, when there were only four complaints, and the JPML indicated there were too few cases to justify formal consolidated pretrial proceedings.

In addition, the JPML indicated then 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.

Defendants argue that this motion excludes a case that is fairly advanced, and expected to go to trial next week, and that the remaining five actions fit all of the requirements for consolidation, involve complex scientific questions and are complicated by their class action status.