Vanessa Van Voorhis Apr. 14, 2016, 2:40pm


MANHATTAN, N.Y. (Legal Newsline) - Most often, a plaintiff will hire an attorney for representation in a lawsuit. However, sometimes an attorney will recruit a plaintiff to be the designated injured party for a lawsuit the attorney wishes bring, typically involving a large company perceived as more inclined to settle rather than fight.

The latter was the likely scenario with a consumer class action lawsuit seeking in excess of $5 million from skin care company Neutrogena Corp., said Alexander Kaplan, an attorney specializing in copyright, false advertising and trademark at Proskauer Rose LLP in Manhattan.

The 29-page lawsuit, filed by attorney Kopelowitz Ostrow of KO Lawyers in Miami on behalf of plaintiff Nathan Dapeer and “others,” sought damages and restitution from Neutrogena for “deceptive and misleading labeling and marketing” of its sunscreens.

The plaintiffs' damages, however, were more skin-related than monetary. The lawsuit states Dapeer and other customers were deceived into purchasing Neutrogena’s higher-price products based on its high SPF and water-resistant labeling.

But Judge Edwin Torres for the U.S. District Court for the Southern District of Florida refused to allow the lawsuit to proceed after the plaintiff said he could not recollect some basic information about the product. Specifically, from where he purchased it, the price he paid for it and whether there was a price difference between the Neutrogena product he purchased and others available for sale.

“It would seem the plaintiff’s counsel did not vet their client very carefully or prepare him well for his deposition,” Kaplan recently told Legal Newsline. “You would think that in selecting a lead plaintiff, the firm would be more careful.”

He said it is the first time he has ever heard of a case in which “the plaintiff could not recall simple details about his or her purchase and use of the product.”

As a result of the plaintiff’s lack of recollection, the judge found the plaintiff could not establish that he had been harmed and that the lawsuit lacked the requirement of "typicality," meaning the lead plaintiff’s injury could not be typical of other members of the proposed class, Kaplan explained.

In March, the case settled out of court: the parties agreed to forego the lawsuit and pay their own legal fees.

The judge’s decision not to certify the class action lawsuit likely will discourage others firms from bringing similar claims against the company in the future, Kaplan noted.

“From our experience, typically where class cert is denied, you don’t see another firm trying to bring another class action with that first decision on the books,” he said. “It acts as a real deterrent to new claims.”

As Kaplan noted in a blog post, “The case serves as a reminder that defense counsel should always assess the credibility and specific experience of the lead plaintiff in consumer class actions.”

Neutrogena continues to sell water-resistant sunscreens with a high SPF rating.

Under sunscreen regulations issued by the FDA in May 2011, companies cannot use the term “waterproof” in their labeling because there is no such thing. “Water resistant” is the correct term and simply means it is less likely wash off in the water during a short duration of time.

The FDA also had proposed a regulation that would require sunscreen products that have a SPF value higher than 50 to be labeled at “SPF 50+” because the agency does not have adequate data demonstrating that SPFs above this level provide additional protection.

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