CHICAGO — A federal judge has refused to put to bed a class action lawsuit accusing the makers of Nuk pacifiers of falsely labeling them as “orthodontic.”
U.S. District Judge Ronald Guzmán issued an opinion Nov. 16 granting a certification motion from named plaintiffs Shelly Benson and Lisa Caparelli, who sued Newell Brands and subsidiary NUK USA with allegations of false and misleading advertising.
According to Guzmán’s opinion, the plaintiffs bought pacifiers at Walmart stores in Illinois in the three marketed age ranges: 0-6 months, 6-18 months and 18-36 months. Labels for each, they said, refer to the products as “orthodontic,” which they say falsely implies the pacifiers benefit oral development and tooth alignment. They further allege the age groupings indicate pacifiers benefit dental health of 2- and 3-year-olds while omitting “the material fact that prolonged pacifier use by children over the age of 24 months significantly increases the risk of developing dental malocclusions (misalignments),” according to Guzmán.
Newell argued the term “orthodontic” refers only to the shape of a Nuk nipple, differentiating it from round pacifiers. They said their market research says consumers “broadly understood those things as well.”
The plaintiffs also alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and unjust enrichment. The class would include hundreds of thousands pacifier buyers in Illinois and nine other states — California, Florida, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York and Washington — as well as a subclass for those who used a contested pacifier for a child at least 24 months old.
Guzmán established the plaintiffs’ lawyers, Melissa Weiner of Pearson, Simon & Warshaw, and Edwin Kilpela Jr. of Carlson Lynch, are suitable class counsel and rejected Newell’s contention the plaintiffs missed their chance to declare an expert witness, clarifying his earlier remarks about discovery timetables.
In order to establish the financial damages common to class members, the plaintiffs tapped University of Chicago economics and marketing professor Jean-Pierre Dubé. He provided a report explaining how he’d calculate the extra costs consumers incurred if they believed the Nuk products were superior to competing brands because of the challenged language. Guzmán accepted that methodology, as well as the argument that a class action is the best way to litigate this dispute.
“Proving plaintiffs’ allegations of consumer fraud will be complex and costly; it will require expert testimony on the effect of pacifier use on children’s oral development,” Guzmán wrote. “That proof, of which no rational individual plaintiff would be willing to bear the cost, can be offered on a class-wide basis.”
The plaintiffs used another University of Chicago expert, Michal Dennis, the senior vice president of the school’s National Opinion Research Center. Dennis conducted a survey through which he concluded more than 90% of consumers had a perception of the word “orthodontic” that aligns with the class allegations and influenced purchasing choices.
Guzmán further took a bite out of Newell’s objections to Dennis’ survey, saying those objections amounted to “undeveloped criticism” that didn’t change his mind about the plaintiffs’ ability to prove the prudence of allowing the case to proceed as a class action. He further rejected Newell’s attempts to undercut the class based on questions of how many people who bought the pacifiers did so because of the word “orthodontic” or whether they even saw the word while shopping, restating that the primary question is whether a reasonable consumer would be deceived and noting the plaintiffs’ adequately alleged the word appeared on every pacifier package.
Finally, Guzmán said the inclusion of consumers from nine other states passes muster because the identified states have consumer laws sufficiently similar to Illinois. He set a status hearing for Dec. 8.
Newell Brands is represented in the action by attorneys Joseph K. Krasovec III, David C. Scott, Mir Y. Ali and Jeffery M. Heckendorn, of Schiff Hardin, of Chicago.