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Victor Thome and Thomas Feerick v. U.S. Food and Drug Administration

March 9, 2011

VICTOR THOME AND THOMAS FEERICK,
PLAINTIFFS,
v.
U.S. FOOD AND DRUG ADMINISTRATION, U.S. DEPT. OF HEATH AND HUMAN SERVICES,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER DENYING EX PARTE MOTION FOR TRO

Plaintiffs Victor Thome and Thomas Feerick apply for a Temporary Restraining Order ("TRO") to prevent Defendant U.S. Food and Drug Administration ("FDA") from returning 19 evidence collected in connection with a criminal investigation. Defendant FDA opposes Plaintiffs' 20 request. Having considered the submissions of the parties and the relevant law, the Court hereby 21 denies Plaintiff's application for a TRO. 22

I.Background 23

On February 14, 2011, Plaintiff Victor Thome filed a complaint seeking expedited processing and release of records requested from Defendant FDA under the Freedom of Information Act ("FOIA"). Thome is a putative Class Representative in a class action lawsuit 26 currently pending in the Orange County Superior Court. Compl. ¶ 2. The state-court class action 27 involves claims for injuries suffered by consumers of dietary supplements designed, manufactured, 28 marketed, and sold by VMG, Global, Inc., doing business as American Cellular Labs ("VMG").

Id. The FDA was previously involved in a criminal investigation of VMG. Compl. ¶ 1. That 2 investigation led to a criminal action in the Northern District of California, in which VMG pled 3 guilty to criminal charges. Compl. ¶ 1. In the course of the class action litigation, Thomas Feerick, 4 counsel for Thome, asked VMG to produce documents regarding the design, manufacture, 5 marketing, distribution, and sale of the dietary supplements. Compl. ¶ 2. VMG responded by 6 stating that it had no records to produce because the FDA had raided its offices and taken all of the 7 evidence related to the supplements. Compl. ¶ 2; Decl. of Att'y Thomas F. Feerick in Supp. of Ex Parter Appl. for TRO ("Feerick Decl.") ¶ 5, ECF No. 4. Seeking to obtain this evidence, Feerick 9 submitted several FOIA requests to the FDA, requesting information in the FDA's possession 10 related to VMG and the dietary supplements at issue in the class action litigation. According to the Compl. ¶ 8; Ex Parte Appl. for TRO ("TRO Appl.") at 2, ECF No. 4. Thome believes that if the 14 evidence is returned to VMG, it may be lost, destroyed, or otherwise made unavailable to injured 15 class members. Id. Accordingly, the original Complaint seeks an order precluding the FDA from 16 turning over evidence to VMG and requiring the FDA to expedite processing and disclosure of the 17 information Thome seeks.

the FDA from handing over the evidence in its possession to VMG. The FDA was given notice of 20 the request and filed an opposition on the same day. In its opposition brief, the FDA argued, 21 among other things, that Plaintiff Thome lacked standing to pursue the FOIA claims asserted in this 22 action because the FOIA request was submitted by his counsel, Thomas Feerick, and thus Feerick, 23 rather than Thome, is the real party in interest. Apparently in response to this argument, Thome 24 filed an amended complaint naming Feerick as a co-Plaintiff on March 4, 2011.*fn1 The Court will 25 now consider whether Plaintiffs Thome and Feerick are entitled to the preliminary relief they seek.

On March 3, 2011, Thome filed an application for a temporary restraining order to enjoin

II.Legal Standard

pending the determination of an action on the merits. See Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009). Such relief, however, is "an extraordinary remedy that may only be 5 awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376 (2008). The standard for issuing a TRO is 7 identical to the standard for issuing a preliminary injunction. Brown Jordan Int'l, Inc. v. Mind's Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002); Lockheed Missile & Space Co., A district court may provide preliminary injunctive relief in order to preserve the status quo Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). A plaintiff seeking a 10 preliminary injunction must make a four-fold showing: (1) that he is likely to succeed on the 11 merits; (2) that he is likely to suffer irreparable ha rm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008); Amer. Trucking Assocs., Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

required for issuance of a temporary restraining order. First, and most importantly, Plaintiffs have 18 not made a sufficient showing of the likelihood of irreparable harm. Under the standard articulated 19 by the Supreme Court in Winter, a plaintiff seeking preliminary injunctive relief must establish that

"irreparable injury is likely in the absence of an injunction." Winter, 129 S.Ct. at 375 (emphasis in 21 original). A mere possibility that irreparable injury will occur is not sufficient. Id.; see also Enyart

Here, Plaintiffs' TRO application rests upon unsupported assertions that VMG is likely to lose or destroy any evidence that the FDA returns to it. In his declaration in support of the TRO 25 application, Feerick claims that "[t]here is a real threat of evidence being lost, destroyed or 26 otherwise unavailable to the Class Members if the FDA is allowed to hand over the evidence to subsequently ...

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