Dental hygiene related class action settlements made news recently, when a federal judge in New Jersey granted final approval in one case and a second settlement faced a hiccup after a watchdog group filed an objection.
In New Jersey, U.S. District Court Judge Jose L. Linares approved a deal between Procter & Gamble and five consolidated class actions alleging that the company falsely advertised the relief provided by its Crest Sensitivity Treatment & Protection toothpaste. He found that the class members raised common contentions capable of classwide resolution – and that they were all exposed to the same challenged representations located on the front and back of the product packaging.
Crest promised “Relief Within Minutes” and touted the toothpaste as a new product, neither of which was accurate, the plaintiffs charged. Sensitivity Treatment & Protection was really the same as Crest’s Pro-Health product, just with new packaging and color – and $3 more expensive.
Under the terms of the agreement, each class member (estimated to be in the hundreds of thousands) will receive $4. Class counsel will receive up to $700,000 and named plaintiffs will get $1,500 each. A second dental-related settlement may not fair as well.
According to a class action suit filed in California federal court, Philips Oral Health Care, Inc. deceptively advertised its Sonicare AirFloss plaque removal product by claiming that the AirFloss was better at removing plaque from teeth than traditional floss.
A federal court judge gave preliminary approval to a settlement in July, pursuant to which class members would be eligible for vouchers of $33, $23, and $7, depending on the amount of their purchases.
But last week watchdog group Truth in Advertising Inc. (TINA) requested leave to file an amicus brief in the case to object to the terms of the deal. TINA argued that the proposed terms fail to provide meaningful or adequate compensation for the class. Because the vouchers must be used toward the purchase of future Philips products, “the only party to the settlement receiving any meaningful benefit is Philips,” according to the brief.
“Class members, who are the victims of deceptive marketing, will not receive any compensation whatsoever from the settlement unless they purchase another product from Philips,” TINA wrote. “To make matters worse, the de minimis value of the already small vouchers is significantly decreased by the fact that they will come with a time restriction – class members must use their vouchers within one year.”
A hearing addressing final approval of the settlement is set for November.
To read the court’s order granting final approval in Rossi v. Procter & Gamble, click here.
To read Truth in Advertising’s amicus brief in Perkins v. Philips Oral Health Care, Inc., click here.
Why it matters: Rossi and Perkins present different perspectives on false advertising consumer class action settlements in the context of oral hygiene products. Already having faced a decision from the National Advertising Division over claims for its Sensitivity Treatment & Protection toothpaste, P&G managed to reach a deal in the consumer class actions for $4 per class member and $700,000 in counsel fees. Philips faces a challenge to its settlement, however, by electing to avoid cash payment and award class members vouchers instead. As courts continue to become more involved in the class action settlement process, both plaintiffs and defendants will need to consider whether their proposed settlement terms will pass judicial muster.