Judge: Failure to accurately cite website could doom class action vs Bumbo over baby seats

By Scott Holland | Sep 6, 2017

A federal judge has, for now, denied an attempt to bring a class action lawsuit by people claiming Bumbo deceptively marketed its baby seats.

A federal judge has, for now, denied an attempt to bring a class action lawsuit by people claiming Bumbo deceptively marketed its baby seats.

In an opinion issued Aug. 28 in Chicago, Judge Jorge L. Alonso rejected the consumer fraud and unjust enrichment complaints Elizabeth Clark, of Illinois, brought against Bumbo International Trust, maker of the eponymous floor seats for babies too young to support their own weight.

Clark cited part of Bumbo’s website that said the seat “stabilizes the child into slight hip flexion, placing the pelvis in a slight anterior pelvic tilt which facilitates lumbar extension. This action, combined with the gentle curve of the seat back that matches the natural curve of the rib cage, facilitates the baby around the lower ribs and trunk for stabilization. The seat allows for active practice of the head and postural trunk control. It also allows a child the pelvic stability needed to get the hands into the mid line for play. Upright positioning facilitates an improved visual field of the environment, improved respirations and breath control, assists a baby who needs to be upright after feeding due to reflux and many other benefits.”

She said the quote is false and misleading because the Bumbo keeps babies from engaging in natural movements, doesn’t allow “active control” or room to build trunk control or pelvic stability because of its “locked-in nature,” hinders muscle activation or joint movement, wedges babies with legs positioned at a higher angle than the pelvis and inhibits natural weight-bearing and important and natural development.

The class would have included anyone who bought a Bumbo from March 30, 2012, through March 30, 2015, after which point Bumbo removed the quote from its website. But Alonso agreed with the company’s arguments that Clark’s class definitions were too broad because they would have covered any shopper who visited the website, not only those who read the quote.

Alonso said Clark’s complaint didn’t argue the quote appeared on the homepage of Bumbo.com, and neither did it stipulate where on the website the quote was posted, and therefore does not effectively argue that every person who visited the site before buying a seat was misled by the quote. He further said the company produced website visitor data, including specifically for the products’ page, which included the quote.

“The court is unable to quantify with precision what percentage of website visitors from the United States navigated to the products page (let alone navigated to the portion of the page that contained the quote),” Alonso wrote. “But the court can determine that there were hundreds of thousands fewer visits to the products page than to the website generally, and a common-sense presumption is that only a subset of that subset of visitors actually viewed the quote. Plaintiff offers no evidence to the contrary.”

Clark asked for the chance to amend class definitions to stave off dismissal, but Alonso said the overbreadth problem is not “minor,” nor did Clark meet the burden of establishing the Rule 23 complaints underlying her complaint. Though she asked the court to force Bumbo to stop using the quote, it already removed the language from its website and submitted evidence to suggest it has no plans to resume using such language.

Further, Alonso said Clark sought the type of certification proper when the predominant remedy requested is injunctive or declaratory relief, but her complaint also sought compensatory, treble and punitive damages of at least $5 million.

Alonso denied class certification, granted Bumbo’s motion for leave to file a reply and set a status hearing for Sept. 14.

Plaintiffs are represented in the action by attorneys with the Agruss Law Firm LLC, of Chicago, and the Duncan Law Group LLC, of Chicago.

Bumbo is defended by the firms of Brown Sims, of Houston, and Burke, Warren, MacKay & Serritella P.C., of Chicago.

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Organizations in this Story

Agruss Law Firm LLC Brown Sims Burke, Warren, MacKay & Serritella, P.C. U.S. District Court for the Northern District of Illinois

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