Lance Armstrong (Mario Tama/Getty)
Lance Armstrong’s doping confession made for great television, but it hasn’t provided much fodder for false advertising class actions. Just ask the lawyers at Del Sole Cavanaugh Stroyd and Nye, Peabody, Stirling, Hale & Miller, who struck out this week with claims that Armstrong deceived consumers by suggesting that he won the Tour de France thanks to energy supplements made by one his sponsors, Torrance, Calif.–based FRS Company.
In a 22-page order issued on Tuesday, U.S. District Judge Beverly Reid O’Connell in Los Angeles granted a motion to dismiss filed by Armstrong and FRS, which were named as codefendants in the case. Katten Muchin Rosenman represents Armstrong. Greenberg Traurig represents FRS.
FRS makes energy drinks, powders, and chews. Armstrong became a spokesman for the company in 2007, as well as a board member and investor. In print and TV ads, FRS touted its over-the-counter supplements as “Lance’s secret weapon”—in retrospect, a regrettable word choice. FRS’s annual sales increased 275 percent in 2009, according to the trade publication AdWeek.
Armstrong eventually resigned from the company in October 2012, about three months before he admitted to using banned performance-enhancing drugs during his illustrious cycling career. The plaintiffs sued in February 2013, alleging that FRS and Armstrong tricked consumers by making it seem like his extraordinary strength came from using FRS products, and not from what prosecutors have called one of the most sophisticated doping operations in the history of sports.
Judge O’Connell wasn’t buying it. Siding with Katten and Greenberg, she ruled this week that FRS’s secret weapon claim was “vague and subjective puffery.” A reasonable consumer wouldn’t look at the ads and think FRS products were the reason Armstrong won seven Tour de France titles, she wrote. “Such an inference requires the reasonable consumer to discount extensive training, natural ability or even illegal PED use,” she wrote. “To take the advertisements as literally as plaintiffs urge leads to other unreasonable inferences. Of course, after advertising a product, it is no longer a ‘secret,’ showing that a ‘secret weapon’ advertisement is a self-defeating concept.”
Purchasers of two Lance Armstrong autobiographies suffered a somewhat similar defeat in September, when a federal judge in Sacramento tossed false advertising claims against the books’ publishers. The plaintiffs claimed they were duped into buying books that perpetuated lies about Armstrong’s record, but the case foundered on California’s anti-SLAPP statute, which bars suits that would restrict defendants’ First Amendment rights.
Katten’s team for Armstrong included Zia Modabber, Gregory Korman and Andrew Demko. FRS’s lawyers at Greenberg included Jordan Grotzinger, Robert Herrington and Adrienne Lawrence.
“Was it legal opportunism? Was it kicking a guy while he’s down? Whatever it was, the lawsuit was baseless,” Katten’s Modabber said in an interview.
Plaintiffs counsel Benjamin Sweet of Del Sole Cavanaugh wasn’t immediately available for comment.