Plaintiffs Squeeze Out Settlement In Crest Toothpaste Class Action
Consumers who accused Crest of puffery in promoting its Sensitivity Treatment & Protection toothpaste will recover the costs of their purchases — about $4 a tube — while their lawyers make a mint.
U.S. District Judge Jose Linares in Newark signed off Thursday on a class-action settlement that includes $700,000 in legal fees.
Claimants will be reimbursed what they paid for the paste, which sells for an average of $8, if they can produce receipts. Otherwise, they'll get $4.
Plaintiff lawyers say the class includes hundreds of thousands of consumers nationwide.
The suit, in Rossi v. Proctor & Gamble Co., filed Dec. 13, 2011, alleged Crest falsely said the toothpaste provided "relief within minutes."
The plaintiffs cited an Oct. 28, 2011, report by the National Advertising Division (NAD) of the Council of Better Business Bureaus, which concluded that the Crest product provided relief within days or weeks, not minutes. NAD looked into the issue after rival Colgate complained about the claim.
The suit alleged breaches of the Magnuson-Moss Warranty Act, express warranty and the implied warranty of merchantability, and the New Jersey Consumer Fraud Act.
Linares found the settlement of $4 per member reasonable in light of risks the class might not prevail at trial.
He said he would not disturb the counsel fees because they were negotiated between the parties and would not reduce class members' recovery.
Linares said the court's fiduciary role in overseeing such fee awards is reduced where there is no potential for conflict of interest between attorneys and the class.
The $700,000 fee award amounted to 1.34 times the lodestar figure of $511,890 for 952 hours of work, making it reasonable in light of Third Circuit precedent allowing a multiplier of 2.99 percent, Linares said.
One class member, Tim Blanchard of Corpus Christi, Texas, objected, claiming class counsel failed to sustain their burden of proof on commonality, predominance, superiority and adequacy. But Blanchard did not explain how class counsel failed to sustain its burden, and Linares rejected his objection on its merits, calling it "boilerplate."
Blanchard also claimed class members weren't given enough time or information to evaluate the fee application. Linares noted that settlement terms were posted online in January 2013 and the class's petition for final approval was filed in August.
In addition, class counsel claimed they contacted Blanchard directly after receiving his rejection notice, asking whether he needed more time, but received no response, Linares said.
Class counsel argued that Blanchard's objections should be viewed with caution, calling him a "serial objector" whose purpose is to extract payment to make him go away.
The class was represented by James Cecchi and Donald Ecklund of Carella, Byrne, Cecchi, Olstein, Brody & Agnello in Roseland, along with Joseph Marchese of Bursar & Fisher and Antonio Vozzolo of Faruqi & Faruqi, both in New York.
Ecklund declines to comment on the settlement except to say the class was in the hundreds of thousands.
Neither did Proctor & Gamble's lawyers, Jennifer DelMedico and Hugh Whiting of Jones Day in Cleveland. •