Woodard v. Labrada, 2016
WL 3436434, No. 16-00189 (C.D. Cal. May 12, 2016)

Woodard brought a
putative class action alleging that various defendants (Media Defendants) misrepresented
the weight loss benefits of weight loss supplement products made by the
Manufacturing Defendants. Woodard alleged that Dr. Oz fraudulently promoted and
marketed the weight loss benefits of the products on his daytime television
show “The Doctor Oz Show.” Dr. Oz was allegedly “paid by Defendants Labrada,
Interhealth, and/or Naturex in exchange for promoting Green Coffee Bean
Extract, Garcinia Cambogia, and Raspberry Ketones on The Dr. Oz Show.”  Media defendants Zoco, Harpo, and Sony produce
The Doctor Oz Show and that Sony distributes the show. Woodard alleged that Dr.
Oz, Zoco, Harpo, and Sony were jointly liable for Dr. Oz’s misrepresentations.

The court found that
Woodard didn’t allege sufficient facts showing Zoco, Harpo, and Sony engaged in
a joint venture or civil conspiracy with Dr. Oz to fraudulently promote the products,
or that they were liable through an agency relationship or aiding and abetting.
However, the court declined to dismiss various consumer protection claims
against Dr. Oz.

The court briefly
dealt with the argument that Dr. Oz’s statements weren’t commercial speech,
because Dr. Oz didn’t propose a commercial transaction in any of his challenged
statements and repeatedly told viewers of his television show that he did not
promote or sell any of the Products. However, the complaint alleged that Dr. Oz
informed viewers of his show that specific brands of commercial weight loss
products were effective. Moreover, the Complaint alleged that Dr. Oz was paid by the
manufacturing defendants in exchange for promoting the products. That was
enough under Kasky v. Nike.

Although defendants
argued that California’s anti-SLAPP law applied, FRCP 56(d) overrode it for
discovery purposes.  Woodard was entitled
to discovery about the relationships between Dr. Oz, the other media
defendants, and the manufacturers, to determine whether the speech at issue was
in fact commercial speech.  The court
thus declined, at this point, to shift fees under the anti-SLAPP law.