New York, NY — April 1, 2019 —This week, Jeff Schreiber
& Eugene Meyers
, representing a contract manufacturer of vitamin supplements named as the defendant in an action in SDNY, successfully forced the plaintiff — a well-known New Age vitamin guru and radio/TV/internet personality — to dismiss with prejudice all claims asserted in the complaint for no consideration. Plaintiff had sued claiming breach of the parties’ contract manufacturing agreement, alleging that supposed delays in production, shortages of inventory and defective products purportedly caused it millions of dollars in lost profits and reputational harm. MSF’s efforts on behalf of our client were hampered because none of the employees who had personal knowledge of the relationship were still employed by the client when the lawsuit was commenced, and the client had changed its document management system between the time of the conduct at issue and the lawsuit, making it difficult, and in some cases impossible, for MSF to locate all the relevant documents that the client had in its files.
In discovery, the plaintiff produced thousands of pages of documents in response to our requests, among which we discovered a one-page agreement executed by the plaintiff months before the commencement of the litigation which had terminated the manufacturing contracts with our client and resolved all outstanding orders. Shortly after discovering the agreement, and after a phone call during which we advised plaintiff’s counsel that the claims asserted in the complaint were clearly barred by the doctrine of accord and satisfaction and, thus frivolous, we sent a letter to the plaintiff’s counsel pursuant to Rule 11 demanding that plaintiff withdraw the complaint and dismiss the action, or we would seek an award of sanctions against the plaintiff and counsel. Five days after receiving our Rule 11 letter, the plaintiff withdrew its complaint and dismissed the action with prejudice.