On Wednesday, September 21, 2016, the United States District Court for the Southern District of California issued a ruling Granting CrossFit’s Motion for Summary Judgment and Granting in Part and Denying in Part the National Strength and Conditioning Association’s Motion for Summary Judgment. So what does that actually mean for the case?
As a refresher, CrossFit, Inc., filed a lawsuit against the NSCA on May 12, 2014, alleging false advertising and unfair competition following the November 2013 publication of NSCA’s article “CrossFit-based high-intensity power training improves maximal aerobic fitness and body composition” was published in the Journal of Stength and Conditioning Research. The study (known as the Devor study) stated that “[i]n spite of a deliberate periodization and supervision of our Crossfit[sic]-based training program by certified fitness professionals, a notable percentage of our subjects (16%) did not complete the training program and return for follow-up testing.” The context of that sentence implied that the CrossFit training program had caused injuries to that 16% (9 study subjects), which is why they dropped out of the study. The nine subjects each submitted sworn statements to the Court, some providing non-study-related reasons for dropping out, and others stating that they had actually completed the study and had suffered no injuries. On September 11, 2015, the Journal printed an erratum stating that “injury rate should not be considered a factor in this study.” However, the erratum also concluded that “[t]his change does not affect the overall conclusion of the article.”
The dueling Summary Judgments motions were as follows: CrossFit sought summary judgment that the injury data in the study were false; NSCA sought summary judgment that (1) the JSCR articles are not commercial speech and are shielded from liability, (2) that CrossFit’s trade libel claim must fail because CrossFit cannot prove special damages, and (3) that CrossFit’s declaratory judgment claim is superfluous. The Court denied NSCA’s first motion, ruling that the articles may be considered commercial speech, as a finder of fact could reasonably conclude that the false information was knowingly published to protect NSCA’s position in the market. The Court also denied NSCA’s motion as to the trade libel claim, because there remain a genuine issue of material fact as to the study’s impact on potential CrossFit consumers. The Court did grant NSCA’s motion on the declaratory judgment claim, since it is subsumed by CrossFit’s motion for summary judgment. In ruling on that motion, the Court concluded that “CrossFit has presented evidence showing the injury data were in fact false – regardless of whether the authors knew it at the time – and the NSCA has identified no evidence to the contrary,” and granted summary judgment on the element of falsity. So, while the granting of summary judgment usually signals the end of a case, here, it is only a single element of the causes of action that has been decided.
CrossFit has never been shy about making a media splash, and as a result of public statements about their claims, NSCA sued in California Superior Court on May 2, 2016 against CrossFit and several individual staff members alleging trade libel, defamation, and unfair business practices. CrossFit’s defense was that everything said publicly was true, and therefore could not meet the legal standard for the claims. That case is ongoing.
As an additional factor, CrossFit has recently launched a campaign to keep soda companies from sponsoring, and therefore influencing, medical research. CrossFit’s founder and CEO Greg Glassman spoke in Washington on Tuesday, his argument supported in part by recent reports that the sugar industry had influenced health and nutrition policies beginning in the 1960s. He made news last year by lashing out against Coca-Cola and promoting the hashtag #sugarkills. It’s probably no coincidence, either, that the NSCA is sponsored in part by Gatorade, which is owned by PepsiCo.
Additional coverage found at:
http://library.crossfit.com/free/pdf/CFJ_Devor_CrossFit_Publication_1.pdf (the original Journal article)
https://www.nsca.com/articles/nsca-update-to-crossfit-lawsuit/
https://www.scribd.com/document/259826883/Sworn-Statements-Disproving-NSCA-Devor-Study-s-Injury-Claim?ad_group=Online+Tracking+Link&campaign=Skimbit%2C+Ltd.&content=10079&irgwc=1&keyword=ft500noi&medium=affiliate&source=impactradius
https://therussells.crossfit.com/2015/09/21/nsca-admits-publishing-false-claims-about-crossfit-injuries/
https://therussells.crossfit.com/2016/05/05/the-nsca-is-suing-crossfit/
https://therussellsblogdotcom.files.wordpress.com/2016/09/nsca-msj.pdf
http://www.usnews.com/news/articles/2016-09-21/crossfit-brings-soda-battle-to-capitol-hill