6a0133f3a4072c970b015391efe34d970b-550wiFrom the Cincinnati Business Journal comes this article that details a plea agreement with four former senior executives of Berkely Premium Nutraceuticals, Inc. on mail fraud charges. Among them Greg Cossman, former President of Berkeley. Berkeley is known to television viewers across the nation as the marketer of the Enzyte male enhancement supplement, featuring “smiling Bob” who just can’t wipe that happy smile off his face.

Important note: while some of the allegations in this case concern false or misleading advertising, this is not an unfair, deceptive or false claims case in the FTC or FDCA context. Click on these pdf documents I have posted here to review the Statement of Facts, Information, and Plea Agreement filed against Cossman. As you will see, the Statement of Facts in particular refers to a scheme where consumers’ credit cards were billed without authorization, and promised refunds were not delivered.

The news report linked above includes the following quote:

“The ultimate goal of the conspiracy was to obtain money from consumers by false and fraudulent representations in connection with the sale of (Berkeley) products,” the government said in court papers.

But look closer. The vast majority of the false and fraudulent representations concern the company’s business practices, not its supplement claims. An important distinction IMHO.

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Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.

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