CHICAGO – A class-action lawsuit against Johnson & Johnson that resulted in a $5 million settlement, including $1.5 million dollars in attorney fees, has raised questions of fairness, but not enough to persuade one class action settlement watchdog organization to get involved.

The members of the class, or the victims in the case, could receive up to $15 each if they submit claims eligible under the settlement guidelines. 

The settlement was reviewed by the Competitive Enterprise Institute’s (CEI) Center for Class Action Fairness, said Senior CEI Attorney Ted Frank, and the Center considered the possibility of getting involved. Founded in 2009, the Center says it works to ensure "fairness" in class action lawsuit settlements between the amount of money received by attorneys and the benefits garnered by members of the class. 

“We were aware of the case, the fairness hearing was last week. We decided not to get involved,” Frank said.

The center often reviews attorney fees, and did find that in this case the settlement was unbalanced.

“The fees were a little bit excessive, but it wasn’t the worst case in the world,” Frank said. “They asked for $1.65 million in fees and the class is going to get about $3 million or less, and that ratio seemed a little bit high to us, but it wasn’t worth our time to come in and get the fees reduced by $200,000-300,000 for the class.”

There are a lot of cases where the disparity between attorney fees and the awards for class members are much greater, Frank said, noting the organization sees “a lot of settlements that are a lot worse than this.”

“We have to commit triage and decide where can we do the most good with our limited resources, so a case like this where we’re not complaining about the settlement as a whole, just the opportunity cost of going into if we did this case, then we wouldn’t be able to do a case where there is an opportunity to create a precedent affecting more than just one case,” Frank said.

Class members who believe they are victims of unfair settlements can contact the center directly and the staff attorneys will review the case and consider becoming involved on behalf of the class. Each case varies and the deadlines for the center to file with the courts concerning fairness depend on the notice of each settlement.

The Johnson & Johnson case class could contain as many as 12.9 million consumers who purchased the company’s Johnson & Johnson Bedtime Products. The products, Bedtime Bath and Bedtime Lotion, were sold at a what is referred to as a premium price compared to that of other Johnson & Johnson products. Customers allegedly were lured into purchases by advertising that claimed the products were “clinically proven” to help babies sleep when used as a part of a three-step routine nightly.

Plaintiffs in the case in Chicago federal court argued the products didn’t actually make babies sleepy. The claims deadline for those who purchased the products is in April 2017, so any possible class members will have to submit their claim prior to the deadline. Any settlement money that remains following the payment of all class members is designated to be donated to the Nurse-Family Partnership and Newborns in Need.

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