A federal judge in Chicago has signed off on a $4.5 million settlement in a class action regarding the effectiveness of dietary supplement Instaflex, with attorneys slated to receive nearly $1.5 million of the fund.
Charles R. Norgle Sr. entered his final order on Sept. 7 in the dispute between Vince Mullins and Direct Digital LLC. Mullins filed his complaint in 2013, alleging false advertising of Instaflex Joint Support, and on Sept. 30, 2014, Norgle granted Mullins’ motion for class certification.
On July 28, 2015, the Seventh Circuit Appeals Court affirmed Norgle’s class certification order, and in February 2016, the U.S. Supreme Court denied Direct Digital’s request for a review. Norgle granted preliminary approval of the settlement agreement on March 9, 2017.
Under those terms, Direct Digital would stop using some of the allegedly misleading language and provide cash refunds of $15 for each bottle of Instaflex purchased, up to a maximum of seven bottles, or $105. The $7 per bottle settlement fee is subject to proration up or down should the amount of claims warrant adjustment.
Direct Digital will no longer market Instaflex, or any other joint health product containing glucoasmine sulfate, by claiming it provides joint support; that it was created by a research group or a Cambridge research group; that it was specially formulated; that it is the result of a revolutionary formula; or indicate it contains an exclusive compound. It also will not say the product is capable of supporting, fixing, mending, reconditioning, rehabilitating, increasing, developing, building, maintaining, strengthening, repairing, rebuilding, renewing, regrowing, adding, regenerating or rejuvenating cartilage, nor will Direct Digital say Instaflex supports, maintains or improves joint health.
According to the Aug. 3 settlement motion, more than 79,000 putative class members submitted claims. No class member objected to the settlement and only three people sought exclusion. Class members do not have to provide proof of purchase; they only need to submit, online or through the mail, a claim form specifying the number of Instaflex bottles they purchased.
Direct Digital will establish a $4.5 million settlement fund. Of that, $400,000 is set aside for notice and administration costs, with the understanding the company will be obligated to cover any overages in those categories. Mullins will get a $5,000 incentive award for his role as lead plaintiff, and his attorneys will collect about $1.49 million. Mullins was represented by Bonnett, Fairbourn, Friedman & Balint P.C., of Phoenix; Siprut P.C., of Chicago; Levin Sedran Berman P.C., of Philadelphia; and Boodell & Domanskis LLC, of Chicago.
In his settlement motion, Mullins noted Direct Digital is “a closely held LLC that started up only about eight years ago.” The parties conducted lengthy negotiations, including a mediation hearing with retired Judge Wayne R. Andersen, who filed a document in support of the settlement.
Mullins brought his original claims under several state consumer protection acts. The 2014 certification created consumer classes in California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York and Washington. Mullins said combined number of affected customers is about 1.6 million.
Direct Digital was represented by the firms of Venable LLP, of Washington, D.C., and Kovitz Shifrin Nesbit, of Mundelein.