GOLO, LLC v. Goli Nutrition, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE GOLO, LLC, : Plaintiff, v. Civil Action No. 20-667-RGA GOLI NUTRITION, INC., et al., Defendants. 2 MEMORANDUM ORDER Defendant Goli filed an answer to an amended complaint that included a First Counterclaim for false advertising in violation of the Lanham Act (15 U.S.C. § 1125(a)), a Second Counterclaim for deceptive trade practices in violation of Delaware law (6 Del. C. § 2531), and a Third Counterclaim for common law unfair competition under Delaware law. (D.I.

161 at 134-136). The three claims incorporate by reference the 250 or more preceding paragraphs. Of particular interest to Plaintiff GOLO are paragraphs 126-211, which are under the caption of “GOLO’s False and Misleading Advertising.” GOLO has moved to “partially dismiss” them. (D.I. 165). Or, as GOLO’s proposed order puts it, “[The] First, Second, and Third Counterclaims, to the extent they relate to the advertising claims in paragraphs 126 through 211 of [the] Counterclaims, are dismissed with prejudice.” (D.I. 165-1). Goli says those paragraphs contain “over thirty-five distinct advertising claims [that] are false or misleading.” (D.I. 168 at 1).! ' GOLO agrees that there are a lot, although it describes them as “more than twenty.” (D.L. 166 at 11).

Page | of 2 The main thrust of GOLO’s motion to dismiss’ is that Goli has not “plead facts that could plausibly support its conclusory allegations” that “GOLO’s marketing statements are false and/or misleading.” I read GOLO’s opening brief, and, then, in order to determine what I thought about the motion, started reading the offending paragraphs. I had not gotten too far when I read paragraphs 145-168. My reaction after reading them was, there are facts pleaded that support the allegations that the marketing statements are false or misleading. I then went back to GOLO’s opening brief to see what it said about those paragraphs. I then noticed what I had missed on the first read-through, which was that GOLO itemized various paragraphs that it said did not plausibly allege false or misleading statements, but that GOLO skipped over those paragraphs.’ I checked the reply brief—nothing there either.

For me, that is enough.’ "The [counterclaim] should not be ‘parsed piece by piece to determine whether each allegation, in isolation, is plausible." Sweda v. Univ. of Pennsylvania, 923 F.3d 320, 331 (3d Cir. 2019), cert. denied, 140 S. Ct. 2565 (2020). "[My] obligation is not to read each allegation in isolation nor to nitpick a complaint line by line, paragraph by paragraph." Inre Auto. Parts Antitrust Litig., 2014 WL 4272784, at *6 (E.D. Mich. Aug. 29, 2014). Rather, I consider the "well-pleaded factual allegations" using a "holistic approach." Sweda, 923 F.3d at 331. Using that approach, Goli has plausibly stated a claim for each of the three challenged counterclaims. That is enough to resolve the motion.

Thus, I DENY the partial motion to dismiss. (D.I. 165).

IT IS SO ORDERED this 10 SGey of March 2023.

United States [District Judge GOLO’s brief is really over-the-top: “GOLI is . .. a modern-day snake oil sales company.” (D.I. 166 at 6).

3 T subsequently noticed that Goli pointed this out. (D.I. 168 at 8).

4 It seemed to me that some of the other descriptions of false or misleading marketing were also sufficiently pled.

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