Recent Complaints Allege that "Your Baby Can Read" Products Do Not, in Fact, Teach Your Baby to Read

A class-action lawsuit has been filed in California against the makers of “Your Baby Can Read” products. The complaint was filed on behalf of a class of consumers who purchased the infant and toddler educational programs based on the company’s claims regarding the effectiveness of its products. Television and radio advertisements for the products in question allegedly made false and misleading claims, including claims that the early language development system could teach a three-month-old baby to read by nine months of age, could enable a five-year old to read at a junior high school level, and could teach infants with Down syndrome how to read.

According to the complaint, such claims made by the company simply are not supported by scientific evidence. Criticism of the company’s products and allegedly misleading advertisements, it seems, has grown in recent weeks. reports that the Campaign for a Commercial-Free Childhood, a national watchdog group that previously successfully campaigned to change the way that the “Baby Einstein” program marketed its products, has filed a separate complaint with the Federal Trade Commission alleging that makers of “Your Baby Can Read” have engaged in deceptive marketing practices to convince parents to buy its products. It has requested that the FTC stop the company from continuing its allegedly deceptive marketing practices, and that it offer full refunds to “all those parents who have been duped.”

The problem with the educational products seems to be two-fold. First, doctors and scientists who have tested the products have reportedly found that infants using the products are not reading, but rather are memorizing the shapes of the letters presented. There is no evidence, the class-action plaintiffs allege, that this memorization process increases a child’s ability to read or comprehend. Second, a representative for the Campaign for a Commercial-Free Childhood points out that the program is actually harmful to children, as it encourages them to sit in front of television screens and computer monitors, getting them “hooked on screens” too early in life. In fact, the group notes that if parents follow the “Your Baby Can Read” instructions, after nine months, babies would have spent more than a full week of 24 hour days in front of a screen.

It remains to be seen what effect these two recent complaints will have on the maker of the infant educational products and on its approach to advertising. It seems that the old-fashioned approach to teaching your children to read – by reading aloud to them – triumphs.

Abnormal Interviews: Ted Frank of the Center for Class Action Fairness

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to the founder of the Center for Class Action Fairness and an Adjunct Fellow at the Manhattan Institute, Ted Frank. We have cited Mr. Frank often in connection with our work on the Stella Liebeck McDonald’s hot coffee case. He was kind enough to give us his thoughts on that famous case as well as his other projects. The interview is as follows:

1) What do you think is the most significant recent development in torts and product liability litigation?

It goes beyond tort and product-liability litigation to some extent, but the erosion of the preemption doctrine is of some concern. It’s ironic that, even as we see the federal government assert its authority over local affairs in legislation such as PPACA and cases like United States v. Arizona, we’re simultaneously seeing this administration insist that state court juries should exercise dominion over interstate commerce already fully regulated by the federal government. This seems precisely backwards.

2) The Wall Street Journal has a characterized you as a “leading tort reform advocate.” In your view, why is tort reform needed in our system, generally, and in product liability litigation, specifically?

I view tort reform as a means to an end, rather than an end in and of itself. I consider myself a consumer advocate, and it just so happens that the pendulum of the legal system has swung so far in favor of lawyers that consumers are being hurt, and tort reform is needed to restore balance. If ever the pendulum swings too far the other way, you’ll see me switch sides on these debates. As it is, if anyone asks me, I tell them I oppose collateral source reform, which just punishes individuals with the foresight to purchase insurance.

There are so many places where reform is needed. The judiciary and the bar aren’t doing enough to punish or deter fraudulent cases. We have very sensible rules that courts don’t second guess the good faith decisions of lawyers or prosecutors, or the exercise of business judgment by executives, but those rules are thrown out the window when it comes to second guessing the design decisions of engineers or the judgment calls of physicians, though there is every reason to believe that courts are even less likely to get those questions right, especially in hindsight. And uncapped noneconomic or punitive damages introduces an element of complete randomness into the system. Even when the system is considered to be “working,” the majority of the expense of the system goes to paying the administrative costs of the attorneys rather than to the putative victims: we wouldn’t tolerate that level of overhead in any other sector of the public or private economy. All of these features distort incentives, deter innovation, result in unjust punishment of the innocent, and hurt the economy and consumers in the long run.

3) Recently, we here at Abnormal Use have written several pieces regarding the Stella Liebeck hot coffee case in which we have cited some of the articles you have written on the subject. Why have you taken an interest in that litigation, and why is it important to dispel some of the “urban legends” that have arisen?

For twenty years I’ve had an interest in urban legends (I was friends with the Snopeses before there was a, and several of them stem from the legal arena. One of my favorites involves the Baby Ruth bar: it’s a famous trivia answer that the candy bar was named after Grover Cleveland’s daughter, rather than the baseball player Babe Ruth. Snopes and I did some research in the 1990s, and concluded that the “Grover Cleveland’s daughter” story was almost certainly invented for purposes of trademark litigation against Babe Ruth, who had a competing candy bar.

The Stella Liebeck case was exactly the sort of thing that turns into an urban legend, and there are certainly a lot of inaccuracies that crept into the story as it went viral. The Liebeck case got politicized, however: it was an outrageous result and picked up as a poster child for tort reform, and, fascinatingly, the trial lawyer lobby, instead of reasonably saying “Look: the justice system is never going to be 100 percent correct, there have been a dozen hot coffee cases before this one where the courts got it right and threw it out, and you can’t make public policy based on a single anecdote just because the judge made a mistake here” decided to engage in a misinformation campaign to argue that the Liebeck case was both correct and an aspirational result for our tort system – and a disturbing number of law professors joined that cause. If you Google for the case, the vast majority of results are trial-lawyer sites filled with misstatements of the facts and laws. It’s gotten to the point that, in the majority of tort reform debates I participate in, it’s the trial lawyer who is the first to introduce the subject. I’ve been following the case and rebutting the misinformation on both sides since it first made the news, and it just so happens that the majority of misinformation is coming from the plaintiffs’ lawyer side these days. One of these days, I’ll lock myself in a room for a couple of weeks and write a law review article on the subject so there can be a one stop place for truthful information and arguments about the case.

I have a popular talk I give to law schools where I talk about the hot coffee case and a couple of other lawsuits against McDonald’s called “The Law of McDonald’s” and use that as the framework to talk about the two visions of tort law: personal responsibility versus deep pocket compensation of victims, and why I prefer the personal responsibility route.

4) As the founder of the Center for Class Action Fairness, you have sought to protect the interest of consumers in class action settlements. In your opinion, what needs to be done in order to balance the interest of consumers in class action settlements with the need for tort reform?

Assuming that the Supreme Court doesn’t do anything crazy in the Wal-Mart case, the law is, for the most part, in the right place, and it’s just a question of judges exercising their responsibility to apply it correctly – which is hard to do when the settling parties are making an ex parte presentation to the court, and good-faith objectors don’t have the financial incentive to hire a lawyer to make sure the court gets it right. That’s why I do the pro bono representation that I do: someone’s got to do it.

There are certainly some legislative tweaks possible to resolve some ambiguities in the law that class action lawyers have used to benefit themselves at the expense of consumers. I don’t think it’s a tort reform thing; it should be a bipartisan good government thing. Plaintiffs’ lawyers, as a group, should be supporting what I do, because class action lawyers like Milberg and like Kabateck Brown Kellner make them all look bad when they negotiate settlements that don’t do anything for the class but pay the lawyers millions.

BONUS QUESTION: What do you think is the most interesting depiction of products liability and/or class actions in popular culture, and why?

I have a toy figurine of Lionel Hutz on my bookshelf, but his only class action was the consumer fraud case against the makers of the film The Neverending Story. Larry Ribstein’s scholarship on why Hollywood so consistently gets these issues wrong explains why I find this question tough, but I enjoyed the first half of John Grisham’s The King of Torts for its depiction of a corrupt class action settlement that never would have survived Amchem scrutiny. I’m told I should read Gregg Easterbrook’s The Here and Now, which might well supplant Grisham if I ever get around to it. There’s also Michael Clayton, which takes me back to my days as a law-firm associate setting car bombs for adverse witnesses; it amuses me no end in the scene where the lawyer complains that the case had 85,000 documents and 100 motions. The problem with Grisham is that his books repeatedly have a critical plot point where somebody bribes a state court judge to decide a federal removal motion some way, and it just ruins the book for me when the author gets a federal jurisdiction question so wrong. They really should teach 28 USC § 1446 at the Iowa MFA program.

BIOGRAPHY: Ted Frank is an attorney licensed in Illinois, the District of Columbia, and California and a graduate of the the University of Chicago Law School. He served as the first director of the American Enterprise Institute Legal Center for the Public Interest and was an attorney for the McCain-Palin 2008 campaign. He is currently an Adjunct Fellow at the Manhattan Institute and runs the Center for Class Action Fairness, which he founded in 2009. He is a contributor to fellow legal blogs PointOfLaw and Overlawyered. You can follow him on Twitter here.

Potential Class Action Suit Involving Keyless Locks Allegedly Easily Breached with Magnet

Eleven lawsuits against lock industry leader Kaba Corporation, a Swiss company with operations in North Carolina, have been consolidated into one potential class-action lawsuit in federal court in Cleveland, Ohio. reports that the allegations involve the company’s push-button door locks, which the plaintiffs allege can be easily breached with the use of a magnet that fits right in the palm of a would-be intruder’s hand.

The plaintiffs allege that the locks, which can be purchased for less than $200 or more than $1,000 each, depending on the particular model, are defective in design. They also include causes of action for deceptive trade practices, common-law fraud, and negligence. The plaintiffs are demanding that the company replace the locks, pay compensatory damages, and even turn over all of its profits made from the locks. This demand is made in spite of the fact that Kaba has reportedly already developed an upgrade to solve the problem, which it now utilizes and reports could be effectively applied to existing installations. In any event, the plaintiffs are represented by three heavy hitters in the legal community, including Louisiana based attorneys Richard J. Arsenault and Daniel E. Becnel Jr., and Los Angeles-based Mark Geragos (the “celebrity lawyer” who has represented Winona Ryder, Scott Peterson, and musician Chris Brown, among others).

The Kaba locks at issue are widely used within hospitals, airports, casinos, banks, retail stores, jails, and even within the Department of Defense. But interestingly, the lead plaintiffs are not government officials or business owners, but are Orthodox Jews who use the push-button locks on their homes so they can secure their homes without use of a key. During observance of the traditional Sabbath from sundown Friday to nighttime Saturday, adherents do not leave their homes with anything in their pockets. This has made the keyless locks a popular solution.

To date, the plaintiffs have not identified any criminal acts such as robberies that have occurred as a result of any breach of a lock. There still has been some harsh criticism against Kaba, though, by those who claim that the company has essentially taken the position that all locks are capable of being breached; they also point out that the company has not proactively offered to replace or fix the previously sold locks. Another writer at Forbes notes [link includes video of magnetic breach] that Kaba has taken the issue seriously and moved to fix it in its current models, but question why it has not published a warning in the media.

While it sounds like a good idea to alert consumers of the potential breach, though, this similarly would alert the public-at-large that the locks are capable of an “easy” breach. It certainly is a difficult situation to navigate for the company, which likely will be faced with significant costs no matter which path it chooses.

"Greenwashing" Litigation in California

In November 2011, a California federal court is scheduled to preside over a significant “greenwashing” class action lawsuit which was filed against S.C. Johnson & Son, Inc. by a California resident on behalf of purchasers of various household products manufactured by the company. Koh v. S.C. Johnson & Son, Inc., No. C-09-00927 RMW (N.D. Cal.). “Greenwashing” is a term used to describe the deceptive use of “green” marketing to promote a misleading perception among buyers that a company’s products are environmentally friendly.

In January 2008, S.C. Johnson, the maker of household cleaning products including Windex and Shout stain remover, began marketing and selling Windex with its prominently displayed, trademarked “Greenlist” labeling. It later incorporated the Greenlist label on other products, including Shout. The company devloped this system internally to rate its products in terms of their impacts on the environment. The plaintiffs alleged that the Greenlist label was deceptively designed to look like a third party’s seal of approval, which it is not. They further alleged that “among today’s environmentally-conscious consumers, products seen as ‘green,’ or environmentally friendly, often command a premium price and take market share away from similar, non-‘green’ products.” The plaintiffs claimed that had they known the Greenlist label was the result of the company’s own review process, they would not have purchased them.

Before the class-certification stage, S.C. Johnson moved to dismiss the complaint on two grounds: (1) that the plaintiff had not sufficiently alleged an injury; and (2) no reasonable consumer could have found the Greenlist label misleading. That motion to dismiss was denied by the California federal court in a five-page, unpublished order in January of 2010. Koh v. S.C. Johnson & Son, Inc., 2010 WL 94265 (N.D. Cal. Jan. 6, 2010).

This will be an important case to watch, as it could have significant implications on acceptable “green” marketing practices. In fact, the class-action suit should serve as a warning to product makers to be cautious in advertising their products as “green” or environmentally friendly, especially where that representation is not supported by a credible third party.

Hall v. Sunjoy Industries and Kmart: How NOT to litigate a products liability case

Growing up, we here at Abnormal Use were told more than once that one can learn more from failures than successes. If that’s the case, the perpetrators of one recent Florida lawsuit may have learned a great deal recently. See Hall v. Sunjoy Indus. Group Inc., No. 8:09-cv-2032-T-30MAP, 2011 WL 589830 (M.D. Fla. Feb. 18, 2011).

The facts are simple. Plaintiff Dorothy Hall sat on a patio chair displayed in the garden center at her local Kmart. The chair collapsed, causing her to allegedly suffer “various injuries, including a painful back condition.” Hall and her husband sued Kmart as the retailer, and Sunjoy as the alleged manufacturer on theories of strict liability for a manufacturing defect, negligence for failing to inspect and test the chair, and negligent failure to warn. They also sued Kmart on a fourth count, res ipsa loquitur for displaying the chair. Both defendants filed summary judgment motions on all counts, as well as a motion to dismiss based on the plaintiffs’ dishonesty during their depositions. The plaintiffs also filed a motion to establish a rebuttable presumption of negligence based on the fact that the chair was not preserved.

Here are the lessons that we can take from this case:

Lesson #1: Make Sure You Sue the Correct Manufacturer. This may be obvious advice, but these plaintiffs could have used it before facing the court on this issue. Apparently, Sunjoy was not the chair manufacturer. In fact, the record was undisputed as to that fact. In order to avoid Sunjoy’s motion for summary judgment, the plaintiffs filed a motion to voluntarily dismiss Sunjoy without prejudice. The court wasn’t buying their trick and remarked:

When the parties have expended considerable resources to fully develop a case, a court may infer that a plaintiff seeks a voluntary dismissal solely to avoid a pending motion for summary judgment.

In those cases, it is appropriate to do as this court did: deny the motion for voluntary dismissal without prejudice and grant the summary judgment motion.

Lesson #2: Hire the Necessary Experts. The plaintiffs’ first count against both defendants was a strict liability claim for a manufacturing defect. Step one in building such a case is to establish that there is, in fact, a defect. Expert testimony is necessary on this issue if the defect is latent, i.e., not obvious, as in this case. In fact, the plaintiffs needed to establish, through expert testimony, that the chair malfunctioned when it collapsed. While this may appear to be an easy question because the chair in fact collapsed, the court explained that “While the chair may have broken after Plaintiff sat on it, this does not automatically mean the chair ‘malfunctioned.'” The plaintiffs also sacrificed their design defect claim by failing to hire an expert who could provide expert testimony about whether or not testing or an inspection could have revealed a design defect. Finally, the plaintiffs’ negligent failure to warn claim failed because of a lack of expert testimony. “A claim that a warning is necessary and that the failure to warn rendered a product unreasonably dangerous and defective requires a warnings expert,” the court noted.

Lesson #3: Vet Your Clients Properly. The plaintiffs also filed a claim of res ipsa against Kmart. The court granted summary judgment on this claim for two reasons: First, the plaintiffs could not prove that the chair was in the store’s exclusive control because it was in the garden department where people, like Ms. Hall, could sit in it. Second, the court held that the plaintiffs had not presented “any evidence that the reason for the chair’s collapse was some act of the Defendants as opposed to Ms. Hall’s excessive weight” of over 350 lbs.

Even more on this point. The court’s opinion in this case included several footnotes alluding to the fact that both Mr. and Mrs. Hall appear to have perjured themselves, in either their depositions or in affidavits, or both. Not only is that a problem for them, but it could be a problem for their lawyers. It appears that the court did not find the legal theories any more admirable than the Plaintiffs, as evidenced by the reference to the Rule 11 motion which was filed by Sunjoy, based on the fact that Sunjoy was not the manufacturer of the chair.

Lesson #4: Keep the Evidence. The plaintiffs also filed a motion asking the court to grant them a rebuttable presumption of negligence based on the fact that Kmart didn’t preserve the chair at issue in the case even after a preservation letter was sent. Apparently, Kmart kept it initially, but discarded it after seven months, thinking the case was “old.” Because the court found no evidence of bad faith by Kmart, it denied the plaintiffs’ motion. Still, this is one of the cardinal rules of defending a products case: keep track of the evidence, or it may lead to a presumption of negligence later.

King of Torts Dethroned

Stanley Chesley, a class-action plaintiffs’ lawyer who became rich and famous for collecting billions of dollars for his clients in various lawsuits throughout his career, is now facing disbarment, the possibility of paying back $7.5 million in fees, and, arguably worse, a “professional death sentence.” The so-called “Master of Disaster” reportedly built his career around a simple strategy: swoop in after a disaster, round up as many clients as possible, and launch a “legal assault” against as many of the deep-pocketed bad guys as possible. How might one who follows such a business model go astray? He allegedly got greedy, with conduct his hearing officer called “shocking and reprehensible” behavior related his keeping far more than his share of a $200 million product liability settlement in Kentucky.

The case at issue was a 1998 class-action lawsuit involving the now withdrawn anti-obesity drug fen-phen, which consisted of more than 400 plaintiffs and was pending in Kentucky’s Boone County. The Wall Street Journal Law Blog reports that Chesley was not initially involved in the litigation, but at some point “muscled” his way into the case and strong-armed the attorneys into sharing fees with him in exchange for his “expertise” in handling class actions. Apparently, though, those attorneys did not notify the plaintiffs of the new arrangement.

The suit eventually resulted in a $200 million settlement with the maker of fen-phen, of which the plaintiffs’ lawyers reportedly kept tens of millions of dollars more than permitted. Of the total settlement, Chesley reportedly received a $20 million fee for his helping settle the case, including a reported additional $4 million for convincing the sitting judge to increase the attorneys’ take on the settlement to 49 percent. That judge later resigned from the bench when it was discovered he allegedly took financial benefit from the settlement in a secret deal.

Of the four plaintiffs’ attorneys involved in that case, three faced criminal charges of fraud and conspiracy. Two were sentenced to 25 and to 20 years in federal prison. As reported at Overlawyered, at the time of those guilty verdicts, it was a mystery as to why Chesley was not similarly charged. Despite that omission, Kentucky’s trial commissioner recently issued his opinion that Chesley should lose his Kentucky law license permanently and return more than $7.5 million in fees collected in the settlement.

Florida Court: Members of Decertified Tobacco Class Action May Use Factual Findings in Individual Cases

Cigarettes and asbestos are two products that refuse to phase out of products liability cases. And, in the case of cigarette smoking, that long litigation history recently came back to haunt R.J. Reynolds Tobacco Company in an appeals court in Florida in the case of R.J. Reynolds Tobacco Co. v. Martin, 2010 WL 5074839 (Fla. Ct. App. Dec. 14, 2010).

A little background. In 1994, a class action was filed against cigarette companies, including R.J. Reynolds, seeking damages for smoking-related illnesses and deaths. The class was eventually decertified by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). The case didn’t die there, though; as the Court in Martin stated, the Florida Supreme Court “allowed certain jury findings from the class action to have res judicata effect in any subsequent lawsuits by individual class members seeking damages from the defendants.”

The Engle trial was divided into three phases. During Phase I, the jury was asked to consider “common issues relating exclusively to the defendants’ conduct and the general health effects of smoking” and entitlement to punitive damages. Phase II dealt with whether the three class representatives received compensatory damages and the amount of class punitive damages they would receive, if the jury found entitlement to punitive damages during Phase I. Phase III would deal with liability to and compensatory damages for the remaining class members.

During Phase I, the jury found evidence to prove several claims against the tobacco defendants, and it also concluded that there was sufficient evidence for an award of punitive damages. Following Phase II, the jury awarded $12.7 million to the class representatives, and $145 billion in punitive damages to the class. (Note: yes, we said billion, with a “b.”) The defendants appealed before Phase III began.

The Martin case was the first to consider the appeal of the preclusive effect of the Phase I findings as to individual class members. At the trial phase of Martin, the jury awarded Plaintiff $5 million in compensatory damages (later reduced to $3.3 million based on apportionment of fault) and $25 million in punitive damages. On appeal, the Court framed the issues as follows:

RJR primarily contends that the trial court gave the findings approved in Engle overly broad preclusive effect and thus relieved the plaintiff .
. . of her burden to prove legal causation on her negligence and strict
liability claims. RJR also asserts [Plaintiff] failed to prove the reliance
element of her fraudulent concealment claim, and that the punitive damage award
is excessive and unconstitutional.

The Court of Appeals affirmed the trial court’s use of the Phase I findings from Engle, stating that during Phase I of Engle, “the jury considered and determined specific matters related to the defendants’ conduct” and that, in trying to minimize the preclusive effect of the Engle decision, “[R.J. Reynolds] urges an application of the supreme court’s decision that would essentially nullify it.” The Martin court also declined to follow an Eleventh Circuit decision in Brown v. R.J. Reynolds Tobacco Co., 576 F. Supp. 2d 1328 (M.D. Fla. 2008), stating that “we find it unnecessary to distinguish between [issue preclusion and claim preclusion] or to define what the supreme court meant by ‘res judicata.'”

The decision goes on to discuss several related issues, but the damage was done primarily by this holding, which is just dangerous. As mentioned earlier, tobacco and asbestos are two products with long histories in the courts. True, Engle specifically discussed, considered, and ruled that class members who were purported members of the decertified class action could use the findings later as they brought individual suits and it is possible that the issue will stay relatively contained and limited to those cases. However, the Engle and Martin decisions also crack the door just enough to give plaintiffs the idea that they can reach back years, if not decades, to discover findings against defendants that may benefit them if their own court allows them to use the findings for their own advantages.

Unfortunately, there is also a huge potential incentive to trial courts to use these prior findings as well. Here in South Carolina, and probably across the nation, court systems are struggling to keep pace with long dockets and reduced budgets, and it would be very easy for a court to cut corners, save time, and rely on prior findings against a defendant who routinely comes before it. Strangely, this approach could backfire–in jurisdictions where past holdings rule, plaintiffs will race to file their claims there, creating just the problem the courts sought to avoid.

Shoes Offering Easy "Workout" are New Class Action Targets

Mall walkers beware: Those “toning shoes” may not deliver on their promises of getting more exercise and burning more calories for each step walked. As least, that is the accusation raised by a series of proposed class-action lawsuits against makers of the fitness shoes, who have long touted the rounded-bottom shoes as a way of toning legs and getting in shape without ever stepping foot in a gym. The ramifications could be huge, as MSNBC reports that sales of toning shoes were expected to hit $1.5 billion in 2010, which is a 400 percent increase from sales in 2009. reports that the most recent shoemaker to face such claims is New Balance, which recently was sued by a Los Angeles consumer alleging that the shoe company’s advertisements were “false, misleading, and reasonably likely to deceive the public.” She, like the plaintiffs who came before her, seeks court approval for class action status. Before this most recent claim, Boston-based Reebok was hit with a similar suit in late 2010 involving its EasyTone brand. That lawsuit reportedly demands that Reebok conduct a “corrective advertising campaign” and reimburse consumers who bought the allegedly defective product. Many of the brands sell for prices in excess of $100. Finally, Skechers is dealing with a similar lawsuit for its alleged “false and misleading advertising campaign” with regard to its Shape-ups brand.

MSNBC further reports that plaintiffs in these suits may rely on a study commissioned at the University of Wisconsin at La Crosse by the American Council on Exercise (yes, there really is such a thing). Researchers compared people walking on treadmills wearing regular running shoes and various brands of toning shoes. They reportedly found from this study that “[t]here was not even a hint of something going on.” Shoemakers, however, have questioned the validity of this study and instead point to numerous other studies previously conducted which they point to as showing “overwhelming” evidence that these products work.

All shoe companies stand behind their products and have said they will vigorously defend their toning-shoe brands. It is yet to be seen whether any skepticism raised by these lawsuits will curb consumers’ appetites for the easy workout shoe.

Class Action Alleging BMW BO/Crayon Odor Tossed

A recently dismissed class action lawsuit was seemingly pulled from the pages of the “Smelly Car” episode of Seinfeld. Suit was filed in federal court in New Jersey in October 2009 on behalf of owners of BMW Model E46 owners, who alleged that a noxious odor permeated the cabins of their ultimate driving machines. Alban v. BMW of North America, LLC, Civ. No. 09-5398 (D.N.J. 2010). The 20-page complaint actually includes quotes purportedly pulled from various websites dedicated to the issue. Some favorites from the complaint: “It kind of smells like a mix of BO and crayons.” “[The smell] burns your nostrils!” And finally, as if quoted from Elaine herself, “I shampoo’d, etc. Nothing helps.”

Although in “Seinfeld” the culprit was a malodorous valet who was only briefly seated in Jerry’s BMW, here, it seems, the cause of the odor was BMW’s alleged use of excessive amounts of solvent on paneling in and around the trunk. The complaint alleged that BMW knew of and has even acknowledged in a Technical Service Bulletin the existence of an “unpleasant . . . solvent or wax crayon” odor, but that it refused to repair or replace the defective insulation after the four year or 50,000 mile warranty period passed. The odor, according to the complaint, often would take several years to manifest. The complaint set forth causes of action including breach of express and implied warranties.

The complaint in this case did not include cites to its supposed users’ commentary, but a quick Internet search does, in fact, reveal that there are sites dedicated to the BMW odor issue (see here and here).

In any event, the complaint, filed by Pennsylvania firm Chimicles & Tikellis and New Jersey’s Law Office of Lane M. Ferdinand, was recently tossed by U.S. District Court Judge Dickinson of New Jersey, who granted BMW’s motion to dismiss. The court held that the breach of express warranty claim failed due to the undisputed fact that the Plaintiff’s warranty had expired at the time the defect arose. Similarly, the claim for breach of implied warranty failed as the result of limits placed on any such claim within BMW’s warranty agreement. The court based this finding on the fact that the agreement provided, in conspicuous language, that the duration of any implied warranties was to be limited to the duration of the express warranties–“48 months or 50,000 miles, whichever occurs first.”

Class Action Settlement Approved in Lawnmower Fraud Case

I’ll never forget that first–and last–time I purchased a store-brand jar of salsa, thinking there was no way it was any different that the $0.30-higher-priced name-brand jar. Then with my first dip, I bit into a twig. From that point forward, I was ready to pay that extra $0.30 because I then understood that was simply the cost of the name-brand company’s employing a twig picker. I became one of those perhaps gullible consumers who believes that when you pay more for a product, you’re getting a better product. Well, such is apparently not always the case.

Last week, a federal judge in Wisconsin gave final approval to a $65 million settlement in multidistrict litigation brought by consumers who accused 10 companies of conspiring to overstate the horsepower of lawn mower engines. According to an article in The Washington Post, the case began in 2003 when an employee of one of the manufacturers walked in to a Minnesota law firm, claiming that he was privy to some interesting information. Specifically, the manufacturers were selling lawnmowers with advertised horsepower of 4.5, 5, 5.5, and 6.75, but all had the exact same engine. Suit was thereafter filed in May 2009.

According to the complaint, these companies took mowers with identical engines, put different labels on them, and sold them at significantly different prices. Perhaps even more alarming, the suit alleges that several of the companies had created a “Power Labeling Task Force,” which was used to plan and organize the conspiracy. This group allegedly met at various locations and even kept minutes that were distributed when the task force adjourned.

To date, about 340,000 claims have been made. Under the terms of the settlement, class members will receive $35 for every eligible walk-behind mower they own, and $75 for every ride-on mower. The lawnmower companies have also agreed to extend warranties by one year and to change the way they test and report horsepower.

And so it seems that my cost-more, get-more theory may be misguided.