UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICK PEARSON, FRANCISCO PADILLA, 

CECILIA LINARES, AUGUSTINA BLANCO, 

ABEL GONZALEZ, and RICHARD JENNINGS, 

On Behalf of Themselves and All Others 

Similarly Situated,

Plaintiffs,

vs.

NBTY, INC., a Delaware corporation; and 

REXALL SUNDOWN, INC., a Florida 

corporation; and TARGET CORPORATION, a 

Minnesota Corporation,

Defendants.

Case No.: 11 CV 07972

Judge James B. Zagel

DEFENDANTS NBTY, INC.’S AND REXALL SUNDOWN, INC.’S ANSWER

AND SEPARATE OR AFFIRMATIVE DEFENSES TO

PLAINTIFFS’ SECOND AMENDED COMPLAINT

Defendants NBTY, Inc. and Rexall Sundown, Inc. (collectively, “Defendants”), for their 

Answer and Separate or Affirmative Defenses to Plaintiffs’ Second Amended Complaint 

(“Complaint”), state as follows:

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NATURE OF ACTION

1. Defendants NBTY, Rexall, or their affiliates (collectively “Rexall”) manufacture, 

distribute, market, and sell joint health dietary supplements containing glucosamine under the 

following brands: Osteo Bi-Flex, Flex-a-min, American Health, Good N Natural, Knox, METRx, Nature’s Bounty, Natural Wealth, Physiologics, Rexall, Sundown, Sundown Naturals, 

Solgar, and Vitamin World (collectively, “Rexall Products”). In addition, Rexall manufactures 

joint health dietary supplements containing glucosamine sold under brand names of companies 

not affiliated with Rexall, including but not limited to Target Corporation’s Up & Up Triple 

Strength Glucosamine Chondroitin plus MSM and certain of Costco’s Kirkland Glucosamine 

products (collectively, “Private Label Products”). (The Rexall Products and the Private Label 

Products are collectively referred to herein as the “Covered Products.” The Covered Products 

are identified by name, date, and location of sale in Exhibit A hereto.)

ANSWER: Defendants admit that NBTY, Inc., Rexall Sundown, Inc., or their affiliates 

(“Rexall”) manufacture, distribute, market, and sell the joint health dietary supplements referred 

to in Paragraph 1 as the “Rexall Products.” Defendants also admit that Rexall manufactures the 

joint health dietary supplements referred to in Paragraph 1 as the “Private Label Products.” 

Defendants admit that the Complaint collectively refers to the “Rexall Products” and “Private 

Label Products” as the “Covered Products,” and admit that they manufactured or sold the 

Covered Products during certain time periods and in certain geographic locations. Defendants 

lack knowledge or information sufficient to form a belief as to whether the Covered Products are 

“identified by name, date, and location of sale in Exhibit A hereto” because no such exhibit was 

filed with the Complaint, and therefore deny the same.

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2. Each of the Covered Products bear the ingredient name glucosamine in bold, 

large letters, prominently on the front of each label. The primary purported active ingredient in 

each of the Covered Products is glucosamine. The front of the packages/labels for the Covered 

Products makes joint health representations – including, generally, that the Covered Products 

help rebuild cartilage or support renewal of cartilage, help maintain the structural integrity of 

joints, maintain healthy connective tissue, lubricate joints and maintain joint comfort, or support 

mobility and flexibility (collectively referred to as the “joint health benefit representations.) 

Some of the Covered Product labels also claim to provide improvements in joint comfort within 

seven days. Defendants prominently displayed these joint health benefit representations on the 

front of each of the Covered Product packages/labels, where consumers cannot miss the 

representations.

ANSWER: Defendants admit that the Covered Products contain, among other 

ingredients, glucosamine, and that the packages for the Covered Products typically identify the 

ingredient “Glucosamine” on the front label. Defendants also admit that some of the packages 

for the Covered Products have, at certain times, contained the statements “helps rebuild 

cartilage,” “supports renewal of cartilage,” “helps maintain the structural integrity of joints,” 

“helps maintain healthy connective tissue,” “helps lubricate joints and maintain joint comfort,” 

and “supports mobility and flexibility,” but Defendants otherwise deny Plaintiffs’ 

characterization of such statements. Defendants deny any and all remaining allegations 

contained in Paragraph 2 of the Complaint.

3. Defendants primarily market these Covered Products to, and they are purchased 

primarily by, persons suffering from osteoarthritis. Persons who experience joint ailments and 

persons who seek to prevent joint ailments also purchase these Covered Products.

ANSWER: Upon information and belief, Defendants are without knowledge as to why 

consumers purchase the Covered Products, and Defendants deny that they market the Covered 

Products to “persons suffering from osteoarthritis.” Defendants further state that the packages 

and labels for the Covered Products state that the product is “not intended to diagnose, treat, 

cure or prevent any disease.” Defendants deny any remaining allegations contained in 

Paragraph 3 of the Complaint.

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4. However, limitations accompany these taglines such that the take-away is that the 

Covered Products will provide these specific joint related benefits for all joints in the human 

body, for adults of all ages and for all manner and stages of joint related ailments.

ANSWER: The allegations of Paragraph 4 are vague and ambiguous and cannot be 

answered as phrased. Defendants, therefore, lack knowledge or information sufficient to form a 

belief as to the truth of the allegations in this Paragraph and, therefore, deny the same.

5. In truth, the Covered Products do not rebuild, renew, or maintain cartilage, 

lubricate joints or improve joint mobility or flexibility, and they do not provide joint comfort in 

as little as 7 days. Clinical cause and effect studies have found that the primary active ingredient 

in the Covered Products, glucosamine, is ineffective, taken alone or in combination with the 

second primary active ingredient in the Covered Products – chondroitin - or any of the other 

ingredients in the Covered Products, with regard to the purported joint health benefits 

represented on the Covered Products’ packaging and labeling. As a study sponsored by the 

National Institute of Health (“NIH”) concluded: “The analysis of the primary outcome measure

did not show that either [glucosamine or chondroitin], alone or in combination, was 

efficacious. . . .” Clegg, D., et al., Glucosamine, Chondroitin Sulfate, and the Two in 

Combination for Painful Knee Osteoarthritis, 354 New England J. of Med. 795, 806 (2006) 

(“2006 GAIT Study”). As a result, in addition to affirmatively misrepresenting the joint health 

benefits of their Covered Products, the failure of Defendants to disclose the facts regarding these 

studies also constitutes deception by omission or concealment. Thus, Defendants’ joint health 

benefit representations and omissions are false, misleading and reasonably likely to deceive the 

public.

ANSWER: Defendants admit that Clegg, et al., Glucosamine, Chondroitin Sulfate, and 

the Two in Combination for Painful Knee Osteoarthritis, was published in NEW ENGLAND 

JOURNAL OF MEDICINE in 2006. Defendants deny that Plaintiffs’ characterization of this study is 

complete or accurate. Defendants deny any and all remaining allegations contained in 

Paragraph 5 of the Complaint.

6. Despite the deceptive nature of Defendants’ representations, Defendants 

conveyed and continue to convey their uniform joint health benefit representations at the point 

of purchase on the front of their Products’ packages and labeling. The only reason that any 

consumer would purchase the Covered Products is to obtain joint health benefits, which the 

Covered Products do not provide.

ANSWER: Defendants deny the allegations contained in Paragraph 6 of the Complaint.

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7. As a result of Defendants’ deceptive representations, consumers - including 

Plaintiffs and other members of the proposed Class - have purchased a Covered Product that 

does not have the benefits advertised.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiffs’ alleged purchases or uses of the Covered Products, and therefore deny the same. 

Defendants deny any and all remaining allegations contained in Paragraph 7 of the Complaint.

8. Plaintiffs bring this action on behalf of themselves and all other similarly situated 

consumers in the United States, who purchased a Covered Product, to (1) halt the dissemination 

of these false and misleading representations, (2) correct the false and misleading perception it 

has created in the minds of consumers, and (3) obtain redress for those who have purchased the 

Covered Products. Plaintiffs allege violations of the Illinois Consumer Fraud Act, 815 Ill. Comp. 

Stat. 502/1, et seq., California’s Business and Professions Code § 17200 et. seq. and Civil Code 

§ 1750 et. seq., Massachusetts General Laws ch. 93A, et. seq., and similar laws of the other 

Class States.

ANSWER: Defendants admit that Plaintiffs purport to bring this action on behalf of 

themselves and other similarly situated “consumers in the United States” for alleged violations 

of the Illinois Consumer Fraud and Deceptive Business Practices Act, the California Business 

and Professionals Code, § 17200, California Civil Code § 1750, and chapter 93A of 

Massachusetts General Laws, but deny that Plaintiffs are entitled to any relief, deny that 

certification of a class for purposes of a trial would be appropriate, and deny that the proposed 

class definition is appropriate for purposes of a trial. Defendants deny any and all remaining 

allegations contained in Paragraph 8 of the Complaint.

JURISDICTION AND VENUE

9. This Court has original jurisdiction pursuant to 28 U.S.C. §1332(d)(2). The 

matter in controversy, exclusive of interest and costs, exceeds the sum or value of $5,000,000 

and is a class action in which there are in excess of 100 class members and the members of the 

Class are citizens of a state different from Defendants.

ANSWER: Defendants admit that, based on the allegations contained in the Complaint, 

this Court has jurisdiction over this action because the amount-in-controversy, as alleged in the 

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complaint, exceeds $5,000,000 and there are more than 100 putative class members. Defendants 

deny any and all remaining allegations contained in Paragraph 9 of the Complaint.

10. This Court has personal jurisdiction over Defendants because Defendants are 

authorized to do and do conduct business in Illinois. Defendants have marketed, promoted, 

distributed, and/or sold the Covered Products in Illinois, and Defendants have sufficient 

minimum contacts with this State and/or sufficiently avail themselves of the markets in this 

State through their promotion, sales, and/or marketing within this State to render the exercise of 

jurisdiction by this Court permissible.

ANSWER: Defendants admit that they are authorized to conduct business in this district 

and that they have marketed, promoted, advertised, and sold products in this district. 

Defendants further admit that, based on the allegations in the Complaint, this Court has personal 

jurisdiction over Defendants. Defendants deny any and all remaining allegations contained in 

Paragraph 10 of the Complaint.

11. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(a) and (b) because a 

substantial part of the events or omissions giving rise to Plaintiffs Nick Pearson, and Francisco 

Padilla’s claims occurred while they resided in this judicial district. Venue is also proper under 

18 U.S.C. § 1965(a) because Defendants transact substantial business in this District.

ANSWER: Defendants admit that, based on the allegations contained in the Complaint, 

venue in this judicial district appears to be proper. Defendants deny any and all remaining 

allegations contained in Paragraph 11 of the Complaint.

PARTIES

12. Plaintiff Nick Pearson resides in Cook County, Illinois. In or around June 2011, 

Plaintiff Pearson was exposed to and saw Defendant Target’s joint health benefit representations 

by reading the package/label of Target’s Up & Up Triple Strength Glucosamine Chondroitin 

plus MSM product at a Target store in Chicago, Illinois. After reading the label, Plaintiff 

Pearson purchased the Up & Up Triple Strength Glucosamine Chondroitin plus MSM product to 

relieve his joint pain and in so doing relied on every single one of the product’s joint health 

benefit representations. The Up & Up Triple Strength Glucosamine Chondroitin plus MSM 

product that Plaintiff purchased and took as directed did not have the joint health benefits as 

represented. As a result, Plaintiff Pearson suffered injury in fact and lost money.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiff Pearson’s alleged purchase or use of the Target Triple Strength Product, and therefore 

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deny the same. Defendants also deny that the Target Triple Strength Product “did not have the 

joint health benefits as represented” and that Plaintiff Pearson “suffered injury in fact and lost 

money.” Defendants further deny any remaining allegations contained in Paragraph 12 of the 

Complaint.

13. Plaintiff Cecilia Linares resides in Imperial, California. Towards the end of 2010, 

Plaintiff Linares was exposed to and saw Costco’s representations by reading the package/label 

of Costco’s Kirkland Glucosamine Chondroitin product at a Costco store in El Centro, 

California. After reading the label, Plaintiff Linares purchased the Kirkland Glucosamine 

Chondroitin product to relieve her joint pain and in so doing relied on every single one of the 

product’s joint health benefit representations. The Kirkland Glucosamine Chondroitin product 

that Plaintiff Linares purchased and took as directed did not have the joint health benefits as 

represented. As a result, Plaintiff Linares suffered injury in fact and lost money.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiff Linares’s alleged purchase or use of the “Kirkland Glucosamine Chondroitin product” 

(“Kirkland Product”), and therefore deny the same. Defendants deny that the Kirkland Product 

“did not have the joint health benefits as represented” and that Plaintiff Linares “suffered injury 

in fact and lost money.” Defendants deny any remaining allegations contained in Paragraph 13 

of the Complaint.

14. Plaintiff Abel Gonzalez resides in Canyon Lake, California. On or around 

January 2012, Plaintiff Gonzalez was exposed to and saw Costco’s representations by reading 

the package/label of Costco’s Kirkland Glucosamine with MSM label at a Costco store in Lake 

Elsinore, California. After reading the label, Plaintiff Gonzalez purchased the Kirkland 

Glucosamine with MSM product to improve the joint function and reduce the joint pain in his 

shoulders and in so doing relied on every single one of the product’s joint health benefit 

representations. The Kirkland Glucosamine with MSM product that Plaintiff Gonzalez 

purchased and took as directed did not have the joint health benefits as represented. As a result, 

Plaintiff Gonzalez suffered injury in fact and lost money.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiff Gonzalez’s alleged purchase or use of the “Kirkland Glucosamine with MSM product” 

(“Kirkland MSM Product”), and therefore deny the same. Defendants deny that the Kirkland 

MSM Product “did not have the joint health benefits as represented” and that Plaintiff Gonzalez 

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“suffered injury in fact and lost money.” Defendants deny any remaining allegations contained 

in Paragraph 14 of the Complaint.

15. Plaintiff Francisco Padilla resides in Cook County, Illinois. In late 2010, Plaintiff 

Padilla was exposed to and saw Defendant Rexall’s representations by reading the package/label 

of the Osteo Bi-Flex Triple Strength product at a Walgreens store in Chicago, Illinois. After 

reading the label, Plaintiff Padilla purchased the Osteo Bi-Flex Triple Strength product and 

relied on every single one of Defendant Rexall’s joint health benefit representations. The Osteo 

Bi-Flex Triple Strength product Plaintiff Padilla purchased and took as directed did not have the 

joint health benefits as represented. As a result, Plaintiff Padilla suffered injury in fact and lost 

money.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiff Padilla’s alleged purchase or use of the “Osteo Bi-Flex Triple Strength product” (“OBF 

Triple Strength Product”), and therefore deny the same. Defendants deny that the OBF Triple 

Strength Product “did not have the joint health benefits as represented” and that Plaintiff Padilla 

“suffered injury in fact and lost money.” Defendants deny any remaining allegations contained 

in Paragraph 15 of the Complaint.

16. In or around March 2011, Plaintiff Francisco Padilla was exposed to and saw 

Defendant Rexall’s representations by reading the package/label of the Flex-a-min Triple 

Strength with Hyaluronic Acid product at a Costco store in Chicago, Illinois. After reading the 

label, Plaintiff Padilla purchased the Flex-a-min Triple Strength with Hyaluronic Acid product 

and relied on every single one of the product’s joint health benefit representations. The Flex-amin Triple Strength with Hyaluronic Acid product Plaintiff Padilla purchased and took as 

directed did not have the joint health benefits as represented. As a result, Plaintiff Padilla 

suffered injury in fact and lost money.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiff Padilla’s alleged purchase or use of the “Flex-a-min Triple Strength with Hyaluronic 

Acid product” (“Flex-a-min Product”), and therefore deny the same. Defendants deny that the 

Flex-a-min Product “did not have the joint health benefits as represented” and that Plaintiff 

Padilla “suffered injury in fact and lost money.” Defendants deny any remaining allegations 

contained in Paragraph 16 of the Complaint.

17. Plaintiff Augustina Blanco resides in Moreno Valley, California. In or around 

February 2012, Plaintiff Blanco was exposed to and saw CVS Pharmacy’s representations by 

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reading the label of the CVS Triple Strength Glucosamine Chondroitin with MSM product at a 

CVS store in Moreno Valley, California. In reliance on the joint health benefit representations 

on the front of the label, Plaintiff purchased the CVS Triple Strength Glucosamine Chondroitin 

with MSM product. The CVS Triple Strength Glucosamine Chondroitin with MSM product 

Plaintiff Blanco purchased and took as directed did not have the joint health benefits as 

represented. As a result, Plaintiff Blanco suffered injury in fact and lost money.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiff Blanco’s alleged purchase or use of the “CVS Triple Strength Glucosamine 

Chondroitin with MSM product” (“CVS Triple Strength Product”), and therefore deny the same. 

Defendants deny that the CVS Triple Strength Product “did not have the joint health benefits as 

represented” and that Plaintiff Blanco “suffered injury in fact and lost money.” Defendants 

deny any remaining allegations contained in Paragraph 17 of the Complaint.

18. Plaintiff Richard Jennings resides in Oak Bluffs, Massachusetts. Beginning in 

approximately 1997, and continuing throughout the Class Period, Plaintiff Jennings was exposed 

to and saw Defendant Rexall’s representations by reading the label of the Osteo Bi-Flex 

products he purchased. He purchased Osteo Bi-Flex on a monthly basis, and consumed it on a 

daily basis. Most of the Osteo Bi-Flex he purchased was Osteo Bi-Flex Triple Strength. He 

purchased most of the Osteo Bi-Flex products from Wal-Mart or BJ’s Wholesale Club. In 

reliance on the joint health benefit representations on the packaging and marketing materials, 

Plaintiff Jennings purchased the Osteo Bi-Flex products. The Osteo Bi-Flex products Plaintiff 

Jennings purchased and took as directed did not have the joint health benefits as represented. As 

a result, Plaintiff Jennings suffered injury in fact and lost money.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiff Jennings’s alleged purchase or use of certain Osteo Bi-Flex products, and therefore 

deny the same. Defendants deny that the Osteo Bi-Flex products purchased by Plaintiff 

Jennings “did not have the joint health benefits as represented” and that Plaintiff Jennings 

“suffered injury in fact and lost money.” Defendants deny any remaining allegations contained 

in Paragraph 18 of the Complaint.

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19. Defendant NBTY, Inc. (“NBTY”) is a corporation organized and existing under 

the laws of the state of Delaware. NBTY’s headquarters is at 2100 Smithtown Ave., 

Ronkonkoma, New York 11779.

ANSWER: Defendants admit the allegations contained in Paragraph 19 of the 

Complaint.

20. Defendant Rexall Sundown, Inc. (“Rexall”) is a corporation organized and 

existing under the laws of the state of Florida. Defendant Rexall’s headquarters is at 2100 

Smithtown Ave., Ronkonkoma, New York 11779.

ANSWER: Defendants admit the allegations contained in Paragraph 20 of the 

Complaint.

21. Defendants NBTY and Rexall have manufactured, advertised, marketed, 

distributed, or sold the Covered Products to tens of thousands of consumers nationwide, 

including in Illinois.

ANSWER: Defendants admit that Rexall manufactures and distributes the Covered 

Products. Defendants admit that Rexall advertised, marketed, and sold some (but not all) of the 

Covered Products and that some (but not all) of the Covered Products are available nationwide, 

including in Illinois. Defendants deny any and all remaining allegations contained in Paragraph 

21 of the Complaint. 

22. Defendant Target Corporation is incorporated under the laws of the state of 

Minnesota. Defendant’s corporate headquarters is located at 1000 Nicollet Mall, Minneapolis, 

Minnesota 55403. Defendant Target markets and sells the Up & Up Glucosamine Product 

distributed by Defendants NBTY and Rexall to tens of thousands of consumers nationwide, 

including in Illinois.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

the allegations contained in Paragraph 22 of the Complaint, and therefore denies the same.

FACTUAL ALLEGATIONS

23. Throughout the Class Period, Defendants have manufactured, distributed, 

marketed, or sold the Covered Products.

ANSWER: Defendants admit that Rexall has manufactured and distributed the Covered 

Products during certain time periods and in certain geographic locations. Defendants also admit 

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that Rexall marketed and sold some (but not all) of the Covered Products. Defendants deny any 

and all remaining allegations contained in Paragraph 23 of the Complaint.

24. The Covered Products are sold online and in virtually every major food, drug, 

and mass retail outlet store in Illinois and throughout the United States, including, but not 

limited to: Wal-Mart, Costco Wholesale, Sam’s Club, Rite-Aid, Target, and Walgreens. The 

Covered Products are available in a variety of tablet count bottles (e.g., 30, 75, 80, 90, 120, 150, 

200), retailing for approximately $5-50 (depending upon tablet count). The following are 

exemplar screen shots of some of the Covered Products:

ANSWER: Defendants admit that certain (but not all) of the Covered Products are sold 

online and nationwide at various stores, including stores such as Wal-Mart, Costco Wholesale, 

Sam’s Club, Rite-Aid, Target, and Walgreens. Defendants further admit that the Covered 

Products come in different count bottles, with various retail prices, depending on product, size, 

store, and promotion, and are sold at various retailers. Defendants deny any remaining 

allegations contained in Paragraph 24 of the Complaint.

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25. Since each of the Products’ launches, Defendants have consistently conveyed the 

message to consumers throughout Illinois and the United States that the Products help to rebuild, 

renew or maintain cartilage, and improve joint mobility and flexibility, lubricate joints and 

maintain joint comfort simply by taking the recommended number of tablets each day. Some of 

the Products also claim to provide improvement in joint comfort within 7 days. They do not. 

Defendants’ joint health benefit representations and omissions are false, misleading and 

deceptive.

ANSWER: Defendants admit that the packages for some of the Covered Products have, 

at certain times, contained the statements “helps rebuild cartilage,” “helps renew cartilage,” 

“helps maintain cartilage,” “helps improve joint mobility,” “helps lubricate joints,” “helps 

maintain joint comfort,” and “shows improvement in joint comfort within 7 days,” but otherwise 

deny Plaintiffs’ characterization of such statements. Defendants deny any and all remaining 

allegations contained in Paragraph 25 of the Complaint, including that Defendants made any 

false, misleading, or deceptive representations.

26. The primary active ingredient in all of the Covered Products is glucosamine. The 

scientific evidence is that glucosamine, taken alone or in combination with chondroitin sulfate, 

does not provide the joint health benefits represented by Defendants.

ANSWER: Defendants admit that all of the Covered Products contain, among other 

ingredients, glucosamine. Defendants deny any and all remaining allegations contained in 

Paragraph 26 of the Complaint.

27. The second primary active ingredient in some of Defendants’ Products is 

chondroitin sulfate (e.g., Up & Up Triple Strength Glucosamine Chondroitin plus MSM, Osteo 

Bi-Flex Regular Strength, Kirkland Glucosamine Chondroitin). The scientific evidence is that 

chondroitin sulfate, alone or in combination with glucosamine, does not provide the joint health 

benefits represented by Defendants.

ANSWER: Defendants admit that some of the Covered Products, including those 

identified in Paragraph 27, contain, among other ingredients, chondroitin sulfate. Defendants 

deny any and all remaining allegations contained in Paragraph 27 of the Complaint.

28. In addition to these two primary active ingredients that Defendants prominently 

promote as being the primary active ingredients that provide the purported joint health benefits, 

some of the Covered Products also contain methylsulfonylmethane (“MSM”) (e.g., Up & Up 

Triple Strength Glucosamine Chondroitin plus MSM, Kirkland Glucosamine with MSM, Osteo 

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Bi-Flex Triple Strength). MSM is also not effective in providing the joint health benefits 

represented by Defendants, but in any event the focus of this action is on the uniform false and 

deceptive representations and omissions that Defendants make about glucosamine and 

chondroitin on the package labeling of each of their Glucosamine Products.

ANSWER: Defendants admit that some of the Covered Products, including those 

identified in Paragraph 28, contain methylsulfonylmethane (“MSM”), among other ingredients. 

Defendants deny any and all remaining allegations contained in Paragraph 28 of the Complaint.

29. Some of the Covered Products also contain other ingredients such as Hyaluronic 

Acid (e.g., Up & Up Triple Strength Glucosamine Chondroitin plus MSM), and Boswellia 

Serrata (“AKBA” or “Aflapin”) (e.g., Up & Up Triple Strength Glucosamine Chondroitin plus 

MSM, Osteo Bi-Flex One Per Day, certain Flex-a-min products). These minor ingredients are 

also not effective in providing the joint health benefits represented by Defendants, but in any 

event the focus of this action is on the uniform false and deceptive representations and 

omissions that Defendants make about glucosamine on the package labeling of each of the 

Covered Products.

ANSWER: Defendants admit that some of the Covered Products, including those 

identified in Paragraph 29, contain hyaluronic acid and an extract of Boswellia Serrata, among 

other ingredients. Defendants deny any and all remaining allegations contained in Paragraph 29 

of the Complaint.

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30. Even though numerous clinical studies have found that the two primary 

ingredients in the Covered Products, glucosamine and chondroitin, alone or in combination, are 

ineffective, Defendants continue to represent on the Covered Products’ packaging and labeling 

that they provide the joint health benefits for adults of all ages, without any limitation on which 

joints or what joint related ailments the Covered Products provide these joint health benefits. 

For example, exemplar front and side panels of the Osteo Bi-Flex Regular Strength and the Up 

& Up Glucosamine Chondroitin plus MSM product labels appear or have appeared in the past as 

follows:

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ANSWER: Defendants admit that Plaintiffs have accurately reproduced a portion of a 

package for Osteo Bi-Flex Regular Strength and the Up & Up Glucosamine Chondroitin plus 

MSM. Defendants lack knowledge or information sufficient to form a belief as to Plaintiffs’ 

allegation concerning unidentified “numerous clinical studies,” and therefore deny the same. 

Defendants deny any remaining allegations contained in Paragraph 30 of the Complaint.

31. Independent studies published at least as early as 2004, have found that 

glucosamine and chondroitin, alone or in combination, are not effective in providing the 

represented joint health benefits.

ANSWER: Defendants deny the allegations contained in Paragraph 31 of the 

Complaint, including the allegations contained in footnote 7 of the Complaint.

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32. For example, a 2004 study by McAlindon et al., entitled Effectiveness of 

Glucosamine For Symptoms of Knee Osteoarthritis: Results From and Internet-Based 

Randomized Double-Blind Controlled Trial, 117(9) Am. J. Med. 649-9 (Nov. 2004), concluded 

that glucosamine was no more effective than placebo in treating the symptoms of knee 

osteoarthritis – in short, it was ineffective.

ANSWER: Defendants admit that McAlindon, et al., Effectiveness of Glucosamine for

Symptoms of Knee Osteoarthritis: Results from an Internet-Based Randomized Double-Blind 

Controlled Trial, was published in THE AMERICAN JOURNAL OF MEDICINE in 2004. Defendants 

deny that Plaintiffs’ characterization of this study is complete or accurate. Defendants deny any 

and all remaining allegations contained in Paragraph 32 of the Complaint.

33. Also as early as 2004, studies confirmed there is a significant “placebo” effect 

with respect to glucosamine consumption. A 2004 study by Cibere et al, entitled Randomized, 

Double-Blind, Placebo-Controlled Glucosamine Discontinuation Trial In Knee Osteoarthritis, 

51(5) Arthritis Care & Research 738-45 (Oct. 15, 2004), studied users of glucosamine who 

claimed to have experienced at least moderate improvement after starting glucosamine. These 

patients were divided into two groups – one that continued using glucosamine and one that was 

given a placebo. For six months, the primary outcome observed was the proportion of disease 

flares in the glucosamine and placebo groups. A secondary outcome was the time to disease 

flare. The study results reflected that there were no differences in either the primary or 

secondary outcomes for glucosamine and placebo. The authors concluded that the study 

provided no evidence of symptomatic benefit from continued use of glucosamine – in other 

words, any prior perceived benefits were due to the placebo effect and not glucosamine.

ANSWER: Defendants admit that Cibere, et al., Randomized, Double-Blind, PlaceboControlled Glucosamine Discontinuation Trial in Knee Osteoarthritis, was published in 

ARTHRITIS & RHEUMATISM in 2004. Defendants deny that Plaintiffs’ characterization of this 

study is complete or accurate. Defendants deny any and all remaining allegations contained in 

Paragraph 33 of the Complaint.

34. In the 2006 Glucosamine Arthritis Intervention Trial (“GAIT”) Study, the study 

authors rigorously evaluated the effectiveness of glucosamine hydrochloride and chondroitin, 

alone and in combination, on osteoarthritis for six months. According to the study’s authors, 

“The analysis of the primary outcome measure did not show that either supplement, alone or in 

combination, was efficacious. . .” 2006 GAIT Study at 806. Subsequent GAIT studies in 2008 

and 2010 reported that glucosamine and chondroitin did not rebuild cartilage and were otherwise 

ineffective – even in patients with moderate to severe knee pain for which the 2006 reported 

results were inconclusive. See Sawitzke, A.D., et al., The Effect of Glucosamine and/or 

Chondroitin Sulfate on the Progression of Knee Osteoarthritis: A GAIT Report, 58(10) J. 

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Arthritis Rheum. 3183–91 (Oct. 2008); Sawitzke, A.D., Clinical Efficacy And Safety Of 

Glucosamine, Chondroitin Sulphate, Their Combination, Celecoxib Or Placebo Taken To 

Treat Osteoarthritis Of The Knee: 2-Year Results From GAIT, 69(8) Ann Rhem. Dis. 1459-

64 (Aug. 2010).

ANSWER: Defendants admit that Clegg, et al., Glucosamine, Chondroitin Sulfate, and 

the Two in Combination for Painful Knee Osteoarthritis, was published in NEW ENGLAND 

JOURNAL OF MEDICINE in 2006. Defendants deny that Plaintiffs’ characterization of this study is 

complete or accurate. Upon information and belief, Defendants admit that the referenced 2006 

study was funded by the National Center for Complementary & Alternative Medicine and the 

National Institute of Arthritis and Musculoskeletal and Skin Diseases. Defendants further admit 

that Sawitzke, et al., The Effect of Glucosamine and/or Chondroitin Sulfate on the Progression 

of Knee Osteoarthritis, was published in ARTHRITIS & RHEUMATISM in 2008, and that Sawitzke, 

et al., Clinical Efficacy and Safety of Glucosamine, Chondroitin Sulphate, Their Combination, 

Celecoxib or Placebo Taken to Treat Osteoarthritis of the Knee: 2-Year Results from GAIT, was 

published in ANNALS OF THE RHEUMATIC DISEASES in 2010. However, Defendants deny that 

Plaintiffs’ characterization of these studies is complete or accurate. Defendants also admit that 

Kwoh, et al., The Joints on Glucosamine (JOG) Study: A Randomized, Double-Blind, PlaceboControlled Trial to Assess the Structural Benefit of Glucosamine in Knee Osteoarthritis Based 

on 3T MRI, referenced in footnote 9 of the Complaint, was published in ARTHRITIS &

RHEUMATISM in 2009. Defendants deny that Plaintiffs’ characterization of this study is 

complete or accurate. Defendants deny any and all remaining allegations contained in 

Paragraph 34 of the Complaint.

35. The GAIT studies are consistent with the reported results of prior and subsequent 

studies. For example, the National Collaborating Centre for Chronic Conditions (“NCCCC”) 

reported “the evidence to support the efficacy of glucosamine hydrochloride as a symptom 

modifier is poor” and the “evidence for efficacy of chondroitin was less convincing.” NCCCC, 

Osteoarthritis National Clinical Guideline for Care and Management of Adults, Royal College 

of Physicians, London 2008. Consistent with its lack of efficacy findings, the NCCCC 

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Guideline did not recommend the use of glucosamine or chondroitin for treating osteoarthritis. 

Id. at 33. 

ANSWER: Defendants admit that OSTEOARTHRITIS: NATIONAL CLINICAL GUIDELINE 

FOR CARE AND MANAGEMENT OF ADULTS, by the National Collaborating Centre for Chronic 

Conditions, was published by the Royal College of Physicians in 2008. Defendants deny that 

Plaintiffs’ characterization of this publication is complete or accurate. Defendants deny any and 

all remaining allegations contained in Paragraph 35 of the Complaint.

36. A study by Rozendaal et al., entitled Effect of Glucosamine Sulfate on Hip 

Osteoarthritis, 148 Ann. of Intern. Med. 268-77 (2008) assessing the effectiveness of 

glucosamine on the symptoms and structural progression of hip osteoarthritis during 2 years of 

treatment, concluded that glucosamine was no better than placebo in reducing symptoms and 

progression of hip osteoarthritis.

ANSWER: Defendants admit that Rozendaal, et al., Effect of Glucosamine Sulfate on 

Hip Osteoarthritis, was published in ANNALS OF INTERNAL MEDICINE in 2008. Defendants deny 

that Plaintiffs’ characterization of this study is complete or accurate. Defendants deny any and 

all remaining allegations contained in Paragraph 36 of the Complaint.

37. In March 2009, Harvard Medical School published a study conclusively proving 

that the ingestion of glucosamine could not affect the growth of cartilage. The study took note of 

prior studies, which “cast considerable doubt” upon the value of glucosamine. The authors went 

on to conduct an independent study of subjects ingesting 1500 mg of glucosamine, and proved 

that only trace amounts of glucosamine entered the human serum, far below any amount that 

could possibly affect cartilage. Moreover, even those trace amounts were present only for a few 

hours after ingestion. The authors noted that a 1986 study had found no glucosamine in human 

plasma after ingestion of four times the usual 1500 mg of glucosamine chloride or sulphate. 

Silbert, Dietary Glucosamine Under Question, Glycobiology 19(6):564-567 (2009).

ANSWER: Defendants admit that Silbert, Dietary Glucosamine Under Question, was 

published in GLYCOBIOLOGY in 2009. Defendants deny that Plaintiffs’ characterization of this 

study is complete or accurate. Defendants deny any and all remaining allegations contained in 

Paragraph 37 of the Complaint.

38. In April 2009, the Journal of Orthopaedic Surgery published an article entitled, 

“Review Article: Glucosamine.” The article’s authors concluded that, based on their literature 

review, there was “little or no evidence” to suggest that glucosamine was superior to a placebo 

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even in slowing down cartilage deterioration, much less rebuilding it. Kirkham, et al., Review 

Article: Glucosamine, Journal of Orthopaedic Surgery, 17(1): 72-6 (2009).

ANSWER: Defendants admit that Kirkham, et al., Review Article: Glucosamine, was 

published in the JOURNAL OF ORTHOPAEDIC SURGERY in 2008. Defendants deny that Plaintiffs’ 

characterization of this review article is complete or accurate. Defendants deny any and all 

remaining allegations contained in Paragraph 38 of the Complaint.

39. A 2010 meta-analysis by Wandel et al. entitled Effects of Glucosamine, 

Chondroitin, Or Placebo In Patients With Osteoarthritis Of Hip Or Knee: Network MetaAnalysis, BMJ 341:c4675 (2010), examined prior studies involving glucosamine and 

chondroitin, alone or in combination, and whether they relieved the symptoms or progression of 

arthritis of the knee or hip. The study authors reported that glucosamine and chondroitin, alone 

or in combination, did not reduce joint pain or have an impact on the narrowing of joint space: 

“Our findings indicate that glucosamine, chondroitin, and their combination do not result in a 

relevant reduction of joint pain nor affect joint space narrowing compared with placebo.” Id. at 

8. The authors went as far to say, “We believe it unlikely that future trials will show a clinically 

relevant benefit of any of the evaluated preparations.” Id.

ANSWER: Defendants admit that Wandel, et al., Effects of Glucosamine, Chondroitin, 

or Placebo in Patients With Osteoarthritis of Hip or Knee: Network Meta-Analysis, was 

published in BMJ in 2010. Defendants deny that Plaintiffs’ characterization of this study is 

complete or accurate. Defendants deny any and all remaining allegations contained in 

Paragraph 39 of the Complaint.

40. In July 7, 2010, Wilkens et al., reported that there was no difference between 

placebo and glucosamine for the treatment of low back pain and lumbar osteoarthritis and that 

neither glucosamine nor placebo were effective in reducing pain related disability. The 

researchers also stated that, “Based on our results, it seems unwise to recommend glucosamine 

to all patients” with low back pain and lumbar osteoarthritis. Wilkens et al., Effect of 

Glucosamine on Pain-Related Disability in Patients With Chronic Low Back Pain and 

Degenerative Lumbar Osteoarthritis, 304(1) JAMA 45-52 (July 7, 2010).

ANSWER: Defendants admit that Wilkens, et al., Effect of Glucosamine on PainRelated Disability in Patients With Chronic Low Back Pain and Degenerative Lumbar 

Osteoarthritis, was published in the JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION in 

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2010. Defendants deny that Plaintiffs’ characterization of this study is complete or accurate. 

Defendants deny any and all remaining allegations contained in Paragraph 40 of the Complaint.

41. In 2011, Miller and Clegg, after surveying the clinical study history of 

glucosamine and chondroitin reported that, “The cost-effectiveness of these dietary supplements 

alone or in combination in the treatment of OA has not been demonstrated in North America.” 

Miller, K. and Clegg, D., Glucosamine and Chondroitin Sulfate, Rheum. Dis. Clin. N. Am. 37 

103-118 (2011) 

ANSWER: Defendants admit that Miller, K. and Clegg, D., Glucosamine and 

Chondroitin Sulfate, was published in RHEUMATIC DISEASE CLINICS OF NORTH AMERICA. 

Defendants deny that Plaintiffs’ characterization of this study is complete or accurate. 

Defendants deny any and all remaining allegations contained in Paragraph 41 of the Complaint.

42. Scientific studies also confirm that the other ingredients in the Covered Products 

are ineffective. For example, some of the Covered Products also contain methylsulfonylmethane 

(“MSM”), an organic sulfur compound found in fruits, corn, tomatoes, tea, coffee, and milk. 

Clinical cause and effect studies have found no causative link between MSM supplementation 

and joint renewal, rejuvenation, or joint comfort. See, e.g., S. Brien, et. al., Systematic Review 

of the Nutritional Supplements (DMSO) and methylsulfonylmethane (MSM) in the treatment of 

osteoarthritis (Apr. 17, 2008) (concluding that there is no “definitive evidence that MSM is 

superior to placebo in the treatment of mild to moderate OA of the knee”).

ANSWER: Defendants admit that some of the Covered Products contain MSM. 

Defendants further admit that Brien, et al., Systematic Review of the Nutritional Supplements 

Dimethyl Sulfoxide (DMSO) and Methylsulfonylmethane (MSM) in the Treatment of 

Osteoarthritis, was published in OSTEOARTHRITIS & CARTILAGE in 2008. Defendants deny that 

Plaintiffs’ characterization of this study is complete or accurate. Defendants deny any and all 

remaining allegations contained in Paragraph 42 of the Complaint.

43. Some of the Covered Products also contain hyaluronic acid, a component of 

synovial fluid found in the fluids of the eyes and joints. Clinical cause and effect studies have 

found that there is no causative link between hyaluronic acid supplementation, and joint renewal 

or rejuvenation, or joint comfort.

ANSWER: Defendants admit that some of the Covered Products contain hyaluronic 

acid. Defendants lack knowledge or information sufficient to form a belief as to Plaintiffs’ 

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allegation concerning unidentified “[c]linical cause and effect studies” and therefore deny the 

same. Defendants deny any and all remaining allegations contained in Paragraph 43 of the 

Complaint.

44. Some of the Covered Products also contain an extract of Boswellia Serrata the 

Defendants claim leads to improvement in joint comfort within 7 days. Boswellia Serrata 

supplementation does not provide joint renewal or rejuvenation and clinical evidence has shown 

that Boswellia Serrata in the amounts contained in the Covered Products cannot provide joint 

comfort.

ANSWER: Defendants admit that some of the Covered Products contain an extract of 

Boswellia Serrata and that the packaging for some of the Covered Products states that the 

product “shows improvement in joint comfort within 7 days.” Defendants lack knowledge or 

information sufficient to form a belief as to Plaintiffs’ allegation concerning unidentified 

“clinical evidence” and therefore deny the same. Defendants deny any and all remaining 

allegations contained in Paragraph 44 of the Complaint.

45. Some of the Covered Products also contain other ingredients such as vitamin D, 

vitamin C, manganese, boron and collagen. Clinical cause and effect studies have found that no 

causative link between these ingredients and joint renewal or rejuvenation or joint comfort.

ANSWER: Defendants admit that some of the Covered Products contain other 

ingredients, including vitamin D, vitamin C, manganese, boron, and collagen. Defendants lack 

knowledge or information sufficient to form a belief as to Plaintiffs’ allegation concerning 

unidentified “[c]linical cause and effect studies” and therefore deny the same. Defendants deny 

any and all remaining allegations contained in Paragraph 45 of the Complaint.

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46. Despite the existence of numerous clinical studies that found the ingredients in 

the Covered Products to be ineffective for the joint health benefits that they represent on the 

Covered Products’ package/labels, Defendants continue to unequivocally claim that their 

Covered Products are effective and provide these joint health benefits without limitation and 

thus for adults of all ages and for all manner and stages of joint related ailments. As the 

distributor of the Covered Products, Defendants possess specialized knowledge regarding the 

content and effects of the ingredients contained in the Covered Products and are in a superior 

position to learn of the effects—and has learned of the effects, or lack thereof— the Covered 

Products have on consumers.

ANSWER: Defendants deny the allegations contained in Paragraph 46 of the 

Complaint.

47. Specifically, from at least 1997, Defendants knew, but failed to disclose, that the 

Covered Products do not provide the joint health benefits represented and that well-conducted, 

clinical studies have found the ingredients in the Covered Products to be ineffective in providing 

the represented joint health benefits. Plaintiffs and Class members have been and will continue 

to be deceived or misled by Defendants’ deceptive joint health benefit representations. Plaintiffs 

purchased and consumed at least one of the Covered Products during the Class period and in 

doing so, read and considered the Covered Product’s label and marketing materials and based

their decision to purchase the Covered Product on the joint health benefit representations on the 

Covered Product packaging and marketing materials. Defendants’ joint health benefit 

representations and omissions were a material factor in influencing Plaintiffs’ decision to 

purchase and consume the Covered Products.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

Plaintiffs’ alleged purchases and uses of the Covered Products, and therefore deny the same. 

Defendants deny any and all remaining allegations contained in Paragraph 47 of the Complaint. 

48. The only purpose behind purchasing one of the Covered Products is to obtain 

some or all of the represented joint health benefits. There is no other reason for Plaintiffs and 

the Class to have purchased the Covered Products and Plaintiffs and the Class would not have 

purchased the Covered Products had they known Defendants’ joint health benefit statements 

were false and misleading and that clinical cause and effect studies have found the ingredients to 

be ineffective for the represented joint health benefits.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

the purchase decisions made by Plaintiffs and the proposed Class members, and therefore deny 

the same. Defendants deny any and all remaining allegations contained in Paragraph 48 of the 

Complaint.

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49. Plaintiffs and the Class members have been injured in fact in their purchases of 

these Covered Products in that they were deceived into purchasing Covered Products that do not 

perform for the only reason that they would have purchased these Covered Products – joint 

health benefits. As a result, Plaintiffs and the Class members have suffered economic damage in 

their purchases of these Covered Products.

ANSWER: Defendants deny the allegations contained in Paragraph 49 of the 

Complaint.

50. Defendants, by contrast, reaped profits from their false marketing and sale of 

these Covered Products.

ANSWER: Defendants deny the allegations contained in Paragraph 50 of the 

Complaint.

CLASS ALLEGATIONS

51. Plaintiffs bring this action on behalf of themselves and all other similarly situated 

Class members pursuant to Rule 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure 

and seek certification of the following Class:

Nationwide Class Action

All persons in the United States who, since January 1, 2005, purchased one or more of the 

Covered Products.

Excluded from the Class are (i) Defendants; (ii) retailers of the Covered 

Products; (iii) the parents, subsidiaries, affiliates, officers, and directors of 

(i) and (ii); and, (iv) those who purchased the Covered Products for the 

purpose of resale.

ANSWER: Defendants admit that Plaintiffs seek to be appointed as class 

representatives and purport to define the proposed class in Paragraph 51 of the Complaint. 

Defendants deny that certification of the putative class for anything other than settlement 

purposes is appropriate. 

52. Members of the Class are so numerous and geographically dispersed that joinder 

of all Class members is impracticable. Plaintiffs are informed and believe, and on that basis 

allege, that the proposed Class contains many tens of thousands of members. The precise 

number of Class members is unknown to Plaintiffs.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

the truth of the allegations in Paragraph 52 of the Complaint, and therefore deny the same.

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53. Common questions of law and fact exist as to all members of the Class and 

predominate over questions affecting only individual Class members. The common legal and 

factual questions include, but are not limited to, the following:

• Whether the representations or omissions discussed herein that Defendants made 

about the Covered Products were or are misleading, or likely to deceive;

• Whether Plaintiffs and the Class members were deceived in some manner by 

Defendants’ representations;

• Whether Defendants falsely represented that the Covered Products have benefits 

which they do not in fact have;

• Whether the alleged conduct constitutes violations of the laws asserted herein;

• Whether Plaintiffs and Class members have been injured and the proper measure 

of their losses as a result of those injuries;

• Whether Plaintiffs and Class members are entitled to an award of 

compensatory/actual damages; and

• Whether Plaintiffs and the Class are entitled to injunctive, declaratory or other 

equitable relief.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

the truth of the allegations in Paragraph 53 of the Complaint, and therefore deny the same. 

54. Plaintiffs’ claims are typical of the claims of the members of the Class because, 

inter alia, all Class members were injured through the uniform misconduct described above, 

including being subject to Defendants’ deceptive joint health benefit representations, which 

accompanied the label or packaging of the Covered Products. Plaintiffs are advancing the same 

claims and legal theories on behalf of themselves and all members of the Class.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

the truth of the allegations in Paragraph 54 of the Complaint, and therefore deny the same.. 

55. Plaintiffs will fairly and adequately represent and protect the interests of the 

members of the Class. Plaintiffs have retained counsel competent and experienced in both 

consumer protection and class litigation.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

the truth of the allegations in Paragraph 55 of the Complaint, and therefore deny the same.

56. A class action is superior to other available methods for the fair and efficient 

adjudication of this controversy. The expense and burden of individual litigation would make it 

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impracticable or impossible for proposed Class members to prosecute their claims individually. 

It would thus be virtually impossible for the members of the Class, on an individual basis, to 

obtain effective redress for the wrongs done to them. Furthermore, even if Class members could 

afford such individualized litigation, the court system could not. Individualized litigation would 

create the danger of inconsistent or contradictory judgments arising from the same set of facts. 

Individualized litigation would also increase the delay and expense to all parties and the court 

system from the issues raised by this action. By contrast, the class action device provides the 

benefits of adjudication of these issues in a single proceeding, economies of scale, and 

comprehensive supervision by a single court, and presents no unusual management difficulties 

under the circumstances here.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to 

the truth of the allegations in Paragraph 56 of the Complaint, and therefore deny the same.

57. In the alternative, the Class also may be certified because Defendants have acted 

or refused to act on grounds generally applicable to the Class thereby making appropriate final 

declaratory and/or injunctive relief with respect to the members of the Class as a whole.

ANSWER: Defendants deny the allegations contained in Paragraph 57 of the complaint, 

including all subparts, and further deny that class certification under Rule 23(b)(2) is 

appropriate.

58. Plaintiffs seeks preliminary and permanent injunctive and equitable relief on 

behalf of the entire Class, on grounds generally applicable to the entire Class, to enjoin and 

prevent Defendants from engaging in the acts described, and requiring Defendants to provide 

full restitution to Plaintiffs and Class members. Unless a Class is certified, Defendants will 

retain monies received as a result of their conduct that were taken from Plaintiffs and Class 

members. Unless a Class-wide injunction is issued, Defendants will continue to commit the 

violations alleged, and the members of the Class and the general public will continue to be 

misled.

ANSWER: Defendants deny any liability for any injury alleged in the Complaint, 

further deny that class certification is appropriate for any purpose other than settlement and deny 

that Plaintiffs are entitled to the relief or judgment sought in Paragraph 58 of the Complaint.

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COUNT I

Violation of the Illinois Consumer Fraud Act, the California Business and Professions Code 

and California Civil Code, the Massachusetts Unfair Trade Practices Act And The

Consumer Protection Laws of The 47 Other Class States And The District Of Columbia

59. Plaintiffs re-allege and incorporate by reference the allegations contained in the 

paragraphs above as if fully set forth herein.

ANSWER: Defendants fully incorporate by reference herein its responses to Paragraphs 

1 through 58 of the Complaint.

60. Plaintiffs bring this claim individually and on behalf of the Class.

ANSWER: Defendants admit that Plaintiffs purport to bring this action on behalf of 

themselves and the proposed Class.

61. In Illinois, the “Consumer Fraud and Deceptive Business Practices Act” 815 Ill. 

Comp. Stat. 502/1, et seq. (“the Act”), like California’s Business and Professions Code §17200 

et. seq., California’s Civil Code § 1750 et. seq., the Massachusetts Unfair Trade Practices Act, 

Mass. Gen. Laws. ch. 93A, et seq., and the consumer fraud acts/protection laws of the 47 other 

states and the District of Columbia, prohibits deceptive acts and practices in the sale of such 

products as the Covered Products.

ANSWER: Paragraph 61 states legal conclusions to which no response is required. To 

the extent a response is required, Defendants deny the allegations contained in Paragraph 61 to 

the extent they allege that Defendants engaged in deceptive acts and practices in the sale of the 

Covered Products or that they violated any of the statutes identified in Paragraph 61 of the 

Complaint. 

62. Plaintiffs and the Class were injured by Defendants’ deceptive 

misrepresentations, concealments and omissions and these misrepresentations, concealments 

and omissions were material and deceived Plaintiffs and the Class.

ANSWER: Defendants deny the allegations contained in Paragraph 62 of the 

Complaint.

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63. Defendants do business in Illinois, California and Massachusetts, sell and 

distribute their Covered Products in Illinois, California and Massachusetts, and engaged in 

deceptive acts and practices in connection with the sale of their Covered Products in Illinois, 

California and Massachusetts, and elsewhere in the United States.

ANSWER: Defendants admit that they do business in Illinois, California, and 

Massachusetts, but deny that they engaged in deceptive acts and practices in the sale of the 

Covered Products. Defendants deny any and all remaining allegations contained in Paragraph 

63 of the Complaint.

64. The Covered Products purchased by Plaintiffs and the Class were “consumer 

items” as that term is defined under the Act.

ANSWER: Paragraph 64 states legal conclusions to which no response is required. To 

the extent a response is required, Defendants lack knowledge or information sufficient to form a 

belief as to whether Plaintiffs or the Class purchased any Covered Products, and therefore deny 

the same. Defendants also deny that the phrase “consumer items” is defined in the Act. 

Defendants deny any and all remaining allegations contained in Paragraph 64 of the Complaint.

65. Defendants misrepresented and deceptively concealed, suppressed and/or omitted 

the material information known to Defendants as set forth above concerning Their Covered 

Products which has caused damage and injury to Plaintiffs and the Class.

ANSWER: Defendants deny the allegations contained in Paragraph 65 of the 

Complaint.

66. Defendants’ deceptive acts occurred in a course of conduct involving trade and 

commerce in Illinois and throughout the United States.

ANSWER: Defendants deny the allegations contained in Paragraph 66 of the 

Complaint.

67. Defendants’ deceptive acts proximately caused actual injury and damage to 

Plaintiffs and the Class.

ANSWER: Defendants deny the allegations contained in Paragraph 67 of the 

Complaint.

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68. Defendants intended Plaintiffs and all Class members to rely on their 

representations regarding the joint health benefits of their Covered Products.

ANSWER: Defendants deny the allegations contained in Paragraph 68 of the 

Complaint.

69. The conduct of the Defendants constituted a consumer fraud under the Illinois 

Consumer Fraud Act, the California Business and Professions Code, and the Massachusetts 

Unfair Trade Practices Act, and the consumer fraud acts/protection laws of the other 47 states 

and the District of Columbia.

ANSWER: Defendants deny the allegations contained in Paragraph 69 of the 

Complaint.

WHEREFORE, Plaintiffs and the Class pray as follows:

a. That the Court enter an order certifying this action as a nationwide class action;

b. That the Court enter an Order against Defendants awarding to Plaintiffs and the 

Class compensatory/actual damages;

c. That the Court enter an order granting declaratory and injunctive relief as 

permitted by law or equity, including enjoining Defendants from continuing the 

unlawful practices as set forth herein;

d. Attorneys’ fees, expert fees and costs; and

e. Such other and further relief as the Court deems just and proper.

ANSWER: Defendants deny any liability for any injury alleged in the Complaint and 

deny that Plaintiffs are entitled to the relief requested in the “Wherefore” clause following 

Paragraph 69 of the Complaint, including all subparts thereof.

SEPARATE OR ADDITIONAL DEFENSES

1. Defendants specifically reserve all separate or affirmative defenses that they 

may have against each putative class member. It is not necessary at this time for Defendants to 

delineate such defenses against the putative class members because no class has been certified 

and the putative class members are not parties to the litigation.

2. Plaintiffs’ Complaint, in whole or part, fails to state a claim upon which relief 

can be granted.

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3. Defendants deny that Plaintiffs, any member of the purported class, and/or any 

member of the general public, have suffered any injury or damage whatsoever, and further deny 

that Defendants are liable to any such persons for any injury or damage claimed or for any 

injury or damage whatsoever.

4. Plaintiffs’ claims, and those of the purported class, are barred, in whole or in 

part, because Defendants’ conduct is protected commercial speech and/or to the extent that the 

relief sought would violate the First Amendment’s protection thereof.

5. Defendants’ business practices are not “unlawful” within the meaning of 

California Business & Professions Code § 17200.

6. Defendants’ business practices are not “unfair” within the meaning of California 

Business & Professions Code § 17200, and the utility of such business practices outweighs any 

potential harm.

7. Defendants’ advertising is not unfair, deceptive, untrue or misleading within the 

meaning of California Business & Professions Code §§ 17200 and Civil Code 1750. Any 

statements made by Defendants were truthful and accurate and were not fraudulent or likely to 

mislead or deceive Plaintiffs or the purported class, or members of the general public.

8. The conduct alleged by Plaintiffs and the members of the purported class was 

not, and is not, in violation of the Consumer Legal Remedies Act, and therefore did not, and 

does not, violate California Business & Professions Code § 17200, et seq.

9. Defendants’ business practices are not “unfair” or “deceptive” within the 

meaning of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILL. COMP.

STAT. 505/1, et seq.

10. Defendants’ advertising is not unfair, deceptive, untrue or misleading within the 

meaning of Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILL. COMP.

STAT. 505/1, et seq. Any statements made by Defendants were truthful and accurate and were 

not fraudulent or likely to mislead or deceive Plaintiffs or the purported class, or members of 

the general public.

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11. The conduct alleged by Plaintiffs and the members of the purported class was 

not, and is not, in violation of the Illinois Consumer Fraud and Deceptive Business Practices

Act, 815 ILL. COMP. STAT. 505/1, et seq.

12. The matters challenged by the Complaint were neither known to Defendants to 

be, nor in the exercise of reasonable care should have been known to Defendants to be, untrue 

or misleading.

13. Defendants allege on information and belief that Plaintiffs and the members of 

the purported class have not sustained the required injury in fact and/or lost the requisite money 

or property necessary to confer standing pursuant to California Business and Professions Code 

§ 17200, et seq.

14. Defendants allege on information and belief that Plaintiffs and the members of 

the purported class have not sustained the required injury in fact and/or lost the requisite money 

or property necessary to confer standing pursuant to 815 ILL. COMP. STAT. 505/10a.

15. Plaintiffs’ claims, and those of the purported class, are barred, in whole or in 

part, because the state law safe harbors in California shield Defendants from liability for 

undertaking actions specifically authorized by federal or state regulatory bodies.

16. Plaintiffs’ claims, and those of the purported class, are barred, in whole or in 

part, because the state law safe harbors in Illinois shield Defendants from liability for 

undertaking actions specifically authorized by federal or state regulatory bodies.

17. Plaintiff’s claims are barred, in whole or in part, based on Mass. Gen. Law 

Chapter 93A, § 3, for “Exempted Transactions.”

18. Plaintiffs and some or all putative class members do not have standing to bring 

the claims asserted in the Complaint.

19. Some putative class members do not have standing and their claims are therefore 

barred, to the extent they are asserting claims based upon alleged misrepresentations to third 

persons, including others who purchased Defendants’ products, or retailers or distributors. 

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20. Plaintiffs’ causes of action are barred, in whole or in part, because the 

representations complained of, if any such representations were made, were not material and 

did not induce Plaintiffs to enter into the transaction.

21. Plaintiffs’ claims, and those of the purported class, are barred, in whole or in 

part, because Plaintiffs and/or the members of the purported class did not rely or reasonably 

rely on the alleged statements or conduct of Defendants. 

22. Plaintiffs’ claims, and those of the purported class, are barred, in whole or in 

part, by the voluntary payment doctrine because Plaintiffs and putative class members 

voluntarily paid for Defendants’ products about which they now complain with full knowledge 

of the facts and circumstances pursuant to which such amounts were paid.

23. Plaintiffs’ claims, and those of the purported class, are barred, in whole or in 

part, by the doctrine of accord and satisfaction to the extent that they sought and received a 

refund of their purchase price.

24. Plaintiffs’ claims, and those of the purported class, are barred, in whole or in 

part, by their failure to mitigate their damages.

25. Any liability found on the part of Defendants, and any damages awarded in 

favor of Plaintiffs and putative class members, are subject to the common law comparative 

fault rules of California, Illinois, Massachusetts and any other applicable state law, and 

Defendants cannot be liable for more than its proportionate share of any damages awarded. 

Further, pursuant to any applicable state law, any damages awarded to Plaintiffs and putative 

class members are subject to apportionment by the jury of the total fault of all participants in 

the incidents, including Plaintiffs and non-parties.

26. Defendants are entitled to any set-offs or reductions in liability from collateral 

sources available to Plaintiffs and putative class members, the value of refunds already 

provided, or a credit for previous payments.

27. Plaintiffs are not entitled to equitable relief because there is an adequate remedy 

at law. 

Case: 1:11-cv-07972 Document #: 84 Filed: 05/20/13 Page 31 of 34 PageID #:632
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28. Plaintiffs are not entitled to recovery because their damages, if any, are too 

speculative.

29. Plaintiffs’ claims, and those of the purported class, are barred, in whole or in 

part, by the applicable statutes of limitations or the doctrine of laches.

30. Defendants deny that plaintiffs could satisfy the requirements of Rule 23 if this 

case were not settled.

31. Defendants expressly reserve the right to amend this answer. In doing so, 

Defendants specifically reserve its Federal Rule of Civil Procedure 12(b) defenses.

32. By asserting these defenses, Defendants do not allege or admit that they have the 

burden of proof and/or the burden of persuasion with respect to any of these matters. 

Defendants specifically reserve all separate or additional defenses that they may have against 

the named Plaintiffs or putative class members. It is not necessary at this time for Defendants 

to delineate such defenses against the putative class members because no class has been 

certified and the putative class members are not parties to the litigation.

JURY DEMAND

Defendants demand a jury trial on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Defendants pray for judgment as follows:

1. This case no longer continue as a purported class action;

2. That Plaintiffs take nothing by way of the Complaint;

3. That Judgment be entered in favor of Defendants and against Plaintiffs and that 

the Complaint be dismissed with prejudice; 

4. That Defendants be awarded their costs of suit incurred in the defense of this 

action;

5. That Defendants be awarded, as allowed by law, their attorneys’ fees incurred in 

the defense of this action;

Case: 1:11-cv-07972 Document #: 84 Filed: 05/20/13 Page 32 of 34 PageID #:633
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6. For a jury trial on all issues so triable; and

7. For such other relief as this Court deems proper.

Dated: May 20, 2013 Respectfully submitted,

/s/Kara L. McCall

Kara L. McCall (ARDC No. 6272681)

kmccall@sidley.com

Michael W. Davis (ARDC No. 0591319)

mdavis@sidley.com

T. Robert Scarborough (ARDC No. 6217158)

tscarborough@sidley.com

SIDLEY AUSTIN LLP

One South Dearborn Street

Chicago, IL 60603

Tel: (312) 853-7000

Fax: (312) 853-7036

Attorneys for Defendants NBTY, Inc. and 

Rexall Sundown, Inc.

Case: 1:11-cv-07972 Document #: 84 Filed: 05/20/13 Page 33 of 34 PageID #:634
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CERTIFICATE OF SERVICE

I, Kara L. McCall, one of the attorneys for Defendants, certify that on the 20th of May, 

2013, I caused a copy of the foregoing DEFENDANTS NBTY, INC.’S AND REXALL 

SUNDOWN, INC.’S ANSWER AND SEPARATE OR AFFIRMATIVE DEFENSES TO 

PLAINTIFFS’ SECOND AMENDED COMPLAINT to be filed electronically with the Clerk 

of Court, to be served by operation of the Court’s electronic filing system to all counsel of 

record.

/s/Kara L. McCall 

Kara L. McCall

Case: 1:11-cv-07972 Document #: 84 Filed: 05/20/13 Page 34 of 34 PageID #:635