BSN Responds to Class Action Lawsuit

Written by Team BSN
Friday, 28 December 2007

UPDATED PRESS RELEASE!

BIO-ENGINEERED SUPPLEMENTS & NUTRITION, INC. (BSN) VIGOROUSLY DEFENDING CLASS ACTION LAWSUIT:

Bio-Engineered Supplements & Nutrition, Inc. (BSN) is a leading developer, marketer, provider and distributor of nutritional supplements designed for health, training, physique, and performance support. Among other innovative products, BSN has assisted in developing many advancements within the sports nutrition industry, one of which is the ultra-premium breakthrough ingredient Creatine Ethyl Ester Malate (CEM3).

DON’T BE A VICTIM OF THE MESSAGE BOARDS

Unfortunately, in this day and age news of lawsuits spread so quickly that a court does not have a chance to evaluate the merits of a case nor the evidence surrounding it before it quickly spreads like wildfire through industries and consumer groups. Which in the case of the alleged lawsuit against BSN, no evidence has been brought forward at this time, yet many consumers and industry insiders have automatically become judge and jury on a situation in which they have limited knowledge nor all the facts surrounding the lawsuit. Do not be a victim of the message boards! Message boards were intended to provide for an easy exchange of information, not to spread speculation, assumptions and misinformation. No conclusions can be drawn by the mere filing of a lawsuit. At this point no evidence has been produced nor is it required to be produced to file a lawsuit. At this point there are only allegations (which we will discuss further in this press release). Allegations can come forward for many different reasons. In business often times they can be provoked by competitors who feel this is a tactic to slow down a company’s growth by hurting the company from a PR perspective, taking a stab at the company’s financial status or trying to destroy the company’s credibility with consumers. Sadly, these approaches seem to be the new American way of doing business! Ironically enough, they seem to quickly make their way to the message boards with the criticism of individuals or competitive corporations which more often than not have ulterior business motives in supporting the posted lawsuit or allegations. Often times these message board “gurus” supporting these “witch hunts” have little to no legal or scientific knowledge of the facts surrounding the situation, but only what they read in a lawsuit or what is perpetuated on the internet; which can more often than not be misleading or down right false. Don’t be a victim to such cheap tactics, and remember this same situation could one day happen to you, a friend, your business, or your favorite supplement company. If that were the case would you not support them knowing their previous history and integrity should speak enough volume to discredit something that anyone can file in court any day of the week?

When a supplement company cannot fairly beat out their competition in the marketplace by playing fair and by the rules (which in this case is making products that outperform BSN’s), then sometimes these corporations take the less innovative and much easier road and try to discredit a reputable company in any way possible in an effort to increase or better their own sales or credibility with the consumer – even if their products happen to be less than superior. Oddly enough news of lawsuits quickly make their way to the internet and message boards. On the message boards countless visitors, in addition to paid individuals by industry competitors and competitors themselves are strategically sent on a mission to perpetuate the allegations as if it was the golden word passed down from the supplement gods (even before the lawsuit is proven in front of a jury or a judge in a court of law to be frivolous or without merit). This approach can ultimately only end up misleading the consumer who may choose not to use quality products with proven track records, but now only because they read something on a message board or heard something as hearsay, the consumer makes uninformed assumptions which may have never been presented correctly to them in the first place or ever even proven in a court of law to be accurate. Ironically, this is completely opposite of how our judicial system is supposed to work, but unfortunately consumers fall victim to these tactics all too often. For those consumers smart and savvy enough to see through these competitor tactics and games – every company with integrity thanks you.

BSN WILL NOT BE A VICTIM TO FALSE ALLEGATIONS

Unfortunately BSN has been recently served by the law firm of Call, Jansen & Ferrell. Recently, this firm represented an industry competitor which has attacked BSN in the media. The lawsuit filed by this firm was filed against BSN on behalf of Michael Rivera and Dan Abell individually and on behalf of all others similarly situated (the “Lawsuit”). The Lawsuit alleges that:

1) CellMass®, N.O.-Xplode or Nitrix® do not contain CEM3;

BSN believes that these allegations are based upon unreliable testing methods, and it intends to provide the Court with independent test results which are based upon proper scientific methods.

2) BSN’s patent pending for CEM3 does not exist;

Contrary to claims in the complaint, a patent application seeking exclusive rights to Creatine ethyl ester malate (CEM3) in connection to nutritional supplements was filed with the United States Patent Office (‘USPTO”) on November 8, 2004 and remains pending before the USPTO (many patent application filings can take several years before the USPTO can make a final decision on the filed patent). The CEM3 application was assigned the identification number 10/904,389. With some exceptions, patent applicants can decide at the time of filing an application whether they wish the patent office to publish the application after 18 months. It is a common practice for applicants to decline publication in an effort to preserve trade secrets contained in the application pending the outcome of the examination process. The application for CEM3 was not published for trade secret preservation purposes, but the application is indeed pending and active at the USPTO. BSN has gone to great lengths and expense to develop a novel cutting edge process for CEM3, which will soon be validated when this patent is published to the public.

3) CEM3 does not exist;

BSN is unsure why an allegation is being made that CEM3 does not exist. As stated above, a patent has been filed with the USPTO which will soon be made available to the public. For a laboratory to correctly identify CEM3 they would need a standard reference sample, and the proper methods & protocols used to test for CEM3. It is also necessary to communicate with the inventor of the compound to obtain a standard reference sample in addition to the various other mechanisms in which to test for the compound. To merely attempt to identify CEM3 without the proper knowledge and testing procedures is sure to produce a negative result for almost any lab which would in their uniformed minds develop a conclusion that the compound does not exist; however, with concern to CEM3, no company or lab has ever contacted BSN for testing methods or standards in an effort to correctly validate CEM3’s existence.

BSN is of the belief that such allegations stem from a posting on Supplementpolice.com, where BSN’s product CellMass® was falsely reported as not containing CEM3. Supplementpolice.com, SupplementDirect.com, and Supplement Direct retail stores are owned by the same individual, David Lopez. Ironically Supplement Direct (and its affiliates) continues to sell and profit from the sale of CellMass® as well as other BSN products on their website(s).

BSN is currently pursuing claims in litigation against Supplement Police.com to refute such as Supplementpolice.com stated that CellMass® had been tested for the ingredient CEE, not CEM3. The testing methods and standards they used are questionable and appear unlikely to correctly identify CEM3. Furthermore, these methods and standards were noted in the documents provided in BSN’s lawsuit against SupplmentPolice.com that a reference standard used by San Rafeal Chemical Services (SRCS) (which again was testing for the CEE not CEM3), was provided a standard which was supplied by one of BSN’s competitors. Also, until just recently the Call, Jansen & Ferrell law firm was defending this lawsuit and also representing Mr. Lopez’s interests as well.

Furthermore, SRCS was recently involved in a very large government laboratory sting operation (conducted by the DEA), and as a result of the government’s investigation, SRCS no longer has a DEA license.

4) BSN is the alter ego of Chris Ferguson;

The Lawsuit alleges that BSN is merely an Alter Ego of Christopher Ferguson, the President and CEO of BSN. This is simply not true and is merely an unjust and an unsubstantiated allegation. BSN is a Delaware corporation operating under the laws of the State of Delaware. BSN observes appropriate corporate formalities.

CREATING NOVEL INGREDIENTS AND PROCESSES

The creation of a new ingredient is an extremely involved and difficult endeavor, which can include years of time and capital investment. Therefore, a new process and every aspect of this process is highly confidential and proprietary intellectual property. It requires several phases of research and development consisting of the conceptualization phase, synthesis phase, and analytical testing phase. Each phase requires scientific precision in order to successfully move to the next step. Once an ingredient has been synthesized it undergoes analytical testing method development, which is the process of developing an analytical method to ensure the existence of the ingredient. Analytical testing requires precise adherence to the developed methodology in addition to a sample of the ingredient in question and the use of a reference standard, which is a sample of the ingredient you are testing. In other words, you need a sample of the raw material you wish to analyze in order to compare it against the ingredient in question and thus make sure you are comparing apples to apples and not apples to oranges. Analytically testing for an apple but using an orange as your reference standard will not produce a positive result. BSN will stand strong and continue to show that BSN has honor and integrity and that not only do BSN supplements work but the technology that BSN develops and uses in our products have scientific validity.

BSN HAS A PROVEN TRACK RECORD – CAN MILLIONS OF CUSTOMERS AND NUMEROUS AWARDS BE WRONG?

BSN’s unprecedented growth would not be possible if BSN operated with a “smoke and mirrors” approach to researching, developing, and producing ultra-premium products. BSN has achieved this extraordinary level of success because BSN’s products are scientifically sound, and have been found for numerous years to meet the stringent needs and demands of consumers. Consumers have thousands of choices when it comes to choosing products to help them achieve their goals; yet for the last 3 years and beyond BSN’s products have received an unprecedented amount of awards and accolades not just by industry insiders but more importantly awards chosen by consumers.

2007 North American Awards & Accomplishments

(Listed Below Are Only Accomplishments Which Are Relevant To BSN’s Products Integrity And Brand)

* Brand of the Year: BSN – 1st Place (2nd Year in A Row) (Bodybuilding.com1)
* Muscle Builder of the Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008> - BSN – 1st Place (3rd Year in A Row) and CELLMASS <http://bsnonline.net/products/products_expanded.php?id=834266002153> ® – 2nd* Place (Also, 2nd Year In A Row) (Bodybuilding.com1)
* Nitric Oxide Product of the Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008>  – BSN – 1st Place (3rd year in a row) and NITRIX <http://bsnonline.net/products/products_expanded.php?id=834266005031> ® – 2nd Place (Also, 3rd Year in A Row) (Bodybuilding.com1)
* Creatine Product of the Year: CELLMASS <http://bsnonline.net/products/products_expanded.php?id=834266002153> ® – BSN – 1st Place (Also, 3rd Year in A Row) (Bodybuilding.com1)
* Weight Gainer of the Year: TRUE MASS <http://bsnonline.net/products/products_expanded.php?id=834266006557>  – 1st Place (Bodybuilding.com1)
* Supplement of the Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008>  – 2nd Place (2nd Year In a Row) (Bodybuilding.com1)
* Protein Powder of the Year: SYNTHA-6 <http://bsnonline.net/products/products_expanded.php?id=834266006205>  – 2nd Place (Bodybuilding.com1)
* GNC Shining Star
* Best Protein: SYNTHA-6 <http://bsnonline.net/products/products_expanded.php?id=834266006205>  (Averagejoesupplements com2)
* Best Muscle Builder N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008>  (Averagejoesupplements com2)

2007 European Awards & Accomplishments

* Power Sport Product Of The Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008> (MMA Dojos3)

2006 North American Awards & Accomplishments

* GNC Rising Star Award
* Brand Of The Year: BSN – 1st Place (Bodybuilding.com1)
* Muscle Builder Of The Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008>  and CELLMASS <http://bsnonline.net/products/products_expanded.php?id=834266002153> ® – 1st and 2nd Place (Bodybuilding.com1)
* Creatine Product Of The Year: CELLMASS <http://bsnonline.net/products/products_expanded.php?id=834266002153> ® – 1st Place(Bodybuilding.com1)
* Nitric Oxide Product Of The Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008>  – 1st and NITRIX <http://bsnonline.net/products/products_expanded.php?id=834266005031> ® – 2nd Place (Bodybuilding.com1)
* Overall Supplement Of The Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008>  – 2nd Place (Bodybuilding.com1)
* New Product Of The Year: TRUE MASS <http://bsnonline.net/products/products_expanded.php?id=834266006557>  – 2nd* Place (Bodybuilding.com1)
* Breakout Brand Of The Year: BSN – 3rd Place (Bodybuilding.com1)

2006 European Awards & Accomplishments

* Best Brand Of The Year: BSN – 1st Place (Gigasnutrition.com4)
* Creatine Product Of The Year: CELLMASS <http://bsnonline.net/products/products_expanded.php?id=834266002153> ® – 1st Place(Gigasnutrition.com4)
* Nitric Oxide Product Of The Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008> – 1st Place(Gigasnutrition.com4)

2005 North American Awards & Accomplishment

* Muscle Builder Of the Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008>  and CELLMASS <http://bsnonline.net/products/products_expanded.php?id=834266002153> ® – 1st and 2nd Place (Bodybuilding.com1)
* Creatine Product Of The Year: CELLMASS <http://bsnonline.net/products/products_expanded.php?id=834266002153> ® – 1st Place (Bodybuilding.com1)
* Nitric Oxide Product Of The Year: N.O.-XPLODE <http://bsnonline.net/products/products_expanded.php?id=834266009008>  – 1st and NITRIX <http://bsnonline.net/products/products_expanded.php?id=834266005031> ® – 2nd Place (Bodybuilding.com1)

1Nominated by an independent consumer poll – Source: Bodybuilding.com.
2 As determined by an independent consumer poll – Source: Averagejoesupplements.com.
3 As determined by an independent consumer poll – Source: MMA Dojos throuout the UK. As determined by the Seni Award for Europe.
4 As determined by an independent consumer poll – Source: Gigasnutrition.com

For over 3 consecutive years BSN products have been recognized by consumers as the best in their respective categories. As any consumer knows, if you buy something once and it does not deliver then you generally do not buy it again. BSN products are far from typical and BSN has proven this by developing cutting edge products which are purchased month in and month out by loyal repeat customers. Additionally, new customers who try BSN products everyday for the very first time quickly come to understand what sets BSN apart from the rest of the industry; and soon these new customers become one of the many faithful consumers which feel BSN produces ultra-premium products that continue to deliver unparalleled results month after month. Can millions of customers year after year be that wrong? BSN does not think so and believes neither do BSN customers or tens of thousands of retail supporters around the world.

BSN FINISHES FIRST!

BSN’s corporate mission from day one was to make products consumers could unequivocally consider to be the most superior products available.
For those customers and retailers that have relentlessly supported BSN’s vision, products, and brand we could never repay you for your loyalty and patronage; we can only hope that BSN’s products and reputation, as leader in sports supplements, has helped deliver and serve your needs in reaching your health, physique, and performance goals. BSN is confident we will prevail in this current lawsuit!

The court will not rule on the merits on this lawsuit until sometime next year, but if you have any questions or concerns about the accuracy of the labeling of BSN’s products or any questions related to the products themselves, BSN stands ready and willing to address any such questions or concerns.

Yours in Health, Transformation, and Performance

TEAM BSN

BSN has hired the firms of AminHallihan, LLC out of Illinois and ReedSmith, LLP out California to defend the Lawsuit. BSN takes pride in the products which it has produced over the years. Many of those who have used BSN’s products, including those products involved in the lawsuit, have attested to how well the products have worked for them. BSN disagrees with all claims being made and will vigorously defend all such claims and allegations.

Bio-Engineered Supplements & Nutrition, Inc. is a leading developer, marketer, provider and distributor of nutritional supplements designed for training, physique, and performance. BSN’s innovative and effective products include NITRIX®, NO-XPLODETM, CELLMASS®, LEAN DESSERT PROTEINTM, SYNTHA-6®, TRUE-MASS®, AXIS-HTTM, CHEATERSTM, THERMONEXTM, ATRO-PHEX® AND ENDORUSHTM. For more information please visit, www.bsnonline.net.


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