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Posted: October 3, 2014

Class Certification Denied for Failure to Submit Evidence Showing Numerosity

On September 5, 2014, Justice Bransten of the New York County Commercial Division issued a decision in Egan v. Telomerase Activation Sciences, Inc., 2014 NY Slip Op. 32416(U), denying a motion for class certification.

In Egan, “a putative class action, asserting deceptive acts and practices in the marketing of TA-65, a nutraceutical dietary supplement promoted for the treatment of aging,” the court granted reconsideration of its denial of class certification and on reconsideration denied class certification for several reasons, including finding that the plaintiffs had not submitted sufficient evidence to establish that they met the numerosity requirement for class certification, explaining:

Under CPLR § 901 (a)(1), the class must be so numerous that the joinder of all members as actual parties would be impracticable. There is no bright-line test governing this numerosity requirement.

Here, Plaintiffs allege that the potential class numbers over 10,000 people, citing to the deposition testimony of TA Sciences consultant Weiman Liu. Liu testified that he “believed” that there were over 10,000 customers taking TA-65 and that this belief was not based on any documents he had seen regarding customer numbers but instead upon revenue. Defendants do not challenge whether a class of 10,000 in and of itself satisfies the numerosity requirement. Instead, Defendants argue that Plaintiffs failed to provide evidence, aside from the statement of Mr. Liu, that any members of the proposed class, let alone 10,000, purchased TA-65 in New York State. The Court agrees.

Plaintiffs have failed to meet their burden to establish the evidentiary basis for satisfaction of the numerosity requirement. The Liu deposition testimony itself falls short of the mark. The only claim asserted by Plaintiffs is a violation of General Business Law § 349(a), which declares unlawful deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state. To state a GBL § 349(a) claim, some part of the underlying transaction must occur in New York State and the New York action of a defendant cannot merely be hatching a scheme or originating a marketing campaign in New York. The Liu testimony cited by Plaintiffs makes no reference to where the alleged 10,000 customers purchased TA-65. For the sake of this motion, in the absence of any evidence, the Court cannot assume, as Plaintiffs urge, that the purchases were made in New York or that any portion of the transaction occurred in the state. Plaintiffs state in their brief, without citation, that the TA-65 sales transaction takes place in New York and that some, if not all, parts of the purported class members purchase of TA-65 from TASI, were completed in New York. For the purpose of class certification, such conclusory statements are not enough.

(Internal quotations and citations omitted).

This decision shows the importance of developing admissible proof for all elements of a claim or defense. It is not enough that something be true. You have to show the court that it is true.

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