The people behind a false advertising class action lawsuit that said Johnson & Johnson's Bedtime Bath baby products did not make babies as sleepy as the company claimed are asking a judge to
formally approve a $5 million settlement, according to a motion filed Jan. 4.
settlement would include nearly $1.5 million for attorneys, while the
individual plaintiffs would collect service awards of $5,000 each. Members of
the class could receive up to $15 each, if they submit eligible claims.
Leiner, of downstate Chillicothe, filed a class action lawsuit July 2, 2015, in
federal court in Chicago against New Jersey-based Johnson & Johnson
Consumer Companies alleging violations of the Illinois Consumer Fraud and
Deceptive Business Practice Act and unjust enrichment, among other counts,
saying the company misled her and others into buying products the company
claimed were clinically proven to help babies sleep better.
Representing plaintiffs in the action are attorneys from the
firms of Stephan Zouras LLP, of Chicago, and Shepherd, Finkelman, Miller &
Shah LLP, of Media, Pa., and Ft. Lauderdale, Fla.
Leiner said she and others bought Johnson & Johnson
Bedtime Products — specifically, Bedtime Bath and Bedtime Lotion — at a premium
price after seeing advertisements claiming such products are “clinically
proven” to help babies sleep better. But after using the products in 2014 as
part of the company’s recommended three-step nightly routine, she found the products
did not help her baby sleep better.
On. Aug. 31, 2016, U.S. District Judge Elaine E. Bucklo granted
preliminary approval of the class action settlement. In addition to Leiner, other
named plaintiffs acknowledged in the action included Jacqueline Real, Jinette
Hidalgo and Jillian Gallagher. The Jan. 4 motion characterized the settlement
deal as “a hard-fought compromise that was the culmination of adversarial,
arms’-length negotiations following extensive litigation.”
Settlement terms include cash reimbursement related to
purchases of disputed products and creation of a $5 million fund to pay class
claims, administration costs and legal fees. Class lawyers requested expenses
and fees of $1,498,456.
Class members who submit claims supported by documentation
could claim $3 for each purchase of a covered product, with a cap of five
units, or $15 per customer. Those who can show proof of purchase could file
claims for a total of 10 units.
But those figures would be subject to pro rata adjustment
based on the number of valid claims filed and the amount in the settlement fund
at the time of payment. The motion noted Johnson & Johnson sold roughly 30
million of the products at the heart of the lawsuit, and court documents
estimate the class could include as many as 12.9 million consumers.
If approved, the settlement pool would be $3,042,321. As of
Dec. 29, 261 people had called a phone line regarding claims, a related website
logged 410,268 views and nearly 250,000 claims were submitted, carrying an
average value of $14.19. The claim deadline extends to April 28.
In arguing for the settlement, the plaintiffs note an
expected difficulty in class certification and the fact Johnson & Johnson
asserted the people who bought the products “lacked a future injury and
therefore had no claim for injunctive relief.” They further acknowledged they
would have had to prove the classes were identifiable based on objective
criteria and admitted the challenge of proving “commonality on the issue of
whether consumers were deceived.”
Since the products that gave rise to the lawsuit cost $1
more than Johnson & Johnson’s other products — though the company
contends the premium was, at most, 50 cents — the fact each claimant right
now stands to get up to $12.17 “amounts to an excellent recovery,” per the
Any leftover settlement money would be split among two
charitable organizations, the Nurse-Family Partnership and Newborns in Need.
Johnson & Johnson is defended by the firms of Sidley
Austin LLP, of Chicago, and Carlton Fields Jorden Burt LLP, of Los Angeles and