Jacobs v. Physicians Weight Loss Center of America, Inc., 2003 NCBC 8 (N.C. Super. Ct. Nov. 5, 2003)(Tennille), aff'd in part and rev'd in part, 173 N.C. App. 663, 620 S.E.2d 232 (2005), cert. denied, 360 N.C. 290, 628 S.E.2d 3

This was a class action for unfair trade practices against a weight loss clinic. Plaintiffs' claim rested partly on their argument that their contracts required them to buy prescriptions from the defendant at a price higher than they would have paid at an outside pharmacy. The Court granted summary judgment on this claim, holding that the Unfair Trade Practices Act "did not eliminate caveat emptor," and that the defendant had no obligation to inform the plaintiffs that there were less expensive means to meet their goals.

The Court held that plaintiffs had stated a claim with regard to defendant's refusal to write prescriptions to be filled at outside pharmacies because this violated medical ethics. The Court determined that it had the authority to modify the previous order of class certification to limit the class to those plaintiffs who had requested -- but been refused -- written prescriptions.

Those class members also had a claim for the tort of intentional interference with a fiduciary relationship, and also for constructive fraud because of a "special relationship" between them and the plaintiff because they had provided medical background and submitted to tests. The Court rejected arguments that the weight loss clinics were "health benefit plans" subject to North Carolina insurance law. Nor were plaintiffs entitled to make a claim that defendant had improperly referred them to entities in which the defendants were investors because only the Attorney General can make such a claim.

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