CHANHASSEN, Minn. (Legal Newsline) - Targeted by class action lawyers in several states, MyPillow is defending itself against claims that its special offers violate the consumer protection laws of several states.
Plaintiffs filed at least six class actions from October to April against the company, which offers a pillow it says will stay fluffy and cool through the night. Customers haven’t sued because they’re unhappy with the product; instead, they say the company inflated the cost on two special pricing options to create the illusion of a sale.
Lawsuits have been filed in Oregon, Minnesota, Montana, Florida, Ohio and New York.
“We have filed motions to dismiss the (Buy One, Get One Free) lawsuits because we have done nothing wrong,” says a statement provided to Legal Newsline by Mike Lindell, the inventor and CEO of MyPillow who, according to a previous round of lawsuits, misled customers by calling himself a sleep expert.
Judges will soon weigh MyPillow’s arguments. The company has moved to dismiss each of the lawsuits and was successful in the Florida action. Pasco County Judge Anne Wansboro granted the company’s motion at a June 20 hearing.
“We hope that other courts will follow suit and dismiss the other lawsuits so that we can get back to making the world’s most comfortable pillows,” Lindell said.
It appears to be the company’s second trip into the world of class action litigation. Previously, it was accused of making misleading statements by customers who said they would not have purchased or paid as much for the pillow if not for these claims, which boasted the health effects of the pillow.
In April 2016, Armin Amiri filed his lawsuit in San Bernardino Superior Court in California. Under the proposed settlement, Amiri would have received $2,500 for participating as class representative and his attorneys asked for up to $100,000 while customers who purchased a pillow would be given a $5 refund.
A check of the docket shows that the judge has still not given final approval to any settlement. Judge Bryan Foster granted objectors an extension of time to file an objection over notice issues.
Ten California district attorneys made similar claims last year as Amiri’s class action does, resulting in a $1.1 million settlement.
In October, a new issue popped up when the California firm Foley Bezek Behle & Curtis sued the company on behalf of an Oregon and Washington plaintiff, alleging violations of consumer protection laws of each woman’s state.
The firm didn’t stop there, filing a lawsuit on behalf of a California, Oregon and Washington resident in federal court in Minnesota, MyPillow’s home state.
In Montana, it was the Billings firm Bishop, Heenan & Davies. In Ohio, Dworken & Bernstein of Painesville that took up the issue.
New York’s case was brought by Gainey McKenna & Egleston.
“This is the prototypical, lawyer-driven ‘no injury’ class action,” the company’s attorneys wrote in their June dismissal motion in the Minnesota case.
“(The) complaint does not contain a single allegation that Plaintiffs were in any way dissatisfied with the quality or performance of their pillows; or that upon learning of the alleged ‘pricing’ fraud, Plaintiffs attempted to obtain a refund from MyPillow as part of its money-back guarantee and were unsuccessful.
“In other words, despite apparently being satisfied with the quality and performance of their pillows, Plaintiffs, none of whom reside in this state, filed this class action alleging a purported nationwide ‘false reference pricing scheme’ by MyPillow…”
Earlier this year, the Better Business Bureau in two states, Minnesota and North Dakota, revoked MyPillow’s accreditation over the price promotion that formed the basis of the lawsuits.
Attorneys say the company’s infomercials ran up to 200 times per day on local and national TV and radio networks. They have targeted a “buy one get one free” promotion that allegedly did not produce a “free” pillow.
“Instead, it inflated the regular price of the pillow being purchased as part of the promotion, resulting in the buyer purchasing two pillows at or near the combined regular price for two pillows,” the Minnesota complaint says.
The pillow in question could be purchased for a “substantially lower price” without taking part in the BOGO promotion, it says.
Also, the plaintiffs say a 50% off promotion was deceptive because the price of the pillow was inflated to twice its normal price, then offered at a 50% discount from that price.
But MyPillow says the BOGO offer applied to its “Premium” pillow, not the “Classic pillow,” so the plaintiffs have their pricing information wrong. The Premium pillow has more filling, four different loft levels and a two-inch gusset.
Same for the 50% off offer, the company says.
“At best, Plaintiffs’ complaint boils down to their belief that they did not get as good of a bargain as they thought they should have,” the company’s attorneys wrote.
“Not only is this belief wrong, but even accepting their theory as true, Plaintiffs simply allege they purchased two pillows for $49 each that they could have purchased from Amazon.com for $49 each. Thus, by Plaintiffs’ admission, they have suffered no pecuniary loss.”
Legal arguments made in support of dismissal of the class actions include:
-Plaintiffs lack standing for injunctive relief because they do not plan to purchase the pillow in the future;
-Plaintiffs fail to allege fraud with requisite specificity; and
-Plaintiffs have not suffered an ascertainable loss or injury to business or property.
Its arguments succeeded in the Florida lawsuit filed by Gerald Collette, a consumer advocate doing business as truthinadvertisingenforcers.com. The company said he called MyPillow asking to purchase one for $25 but was told he could purchase two for $100 or one for $50.
Collette never bought a pillow, the motion to dismiss said.
A response to MyPillow in the Oregon lawsuit says the BOGO promotion has helped the company more than double its annual revenue to $280 million.
It also says MyPillow hasn’t discontinued the offer because it thinks it has found a loophole – that customers are unable to plead a loss.
“But, in believing that it found such a loophole, MyPillow fails to comprehend what it means to have an ‘ascertainable loss’ or ‘loss of business or property,’ failing to consider any authority that deals with the breadth of such terms, and fails to comprehend that the purpose of such statutes are for private citizens to have recourse for acts that expressly violate the respective state statutes,” plaintiffs attorneys wrote.
MyPillow has not yet filed a motion to dismiss the New York case and are instead fighting the plaintiff’s effort to remand it back to state court.
On Sept. 21, Judge Michael Davis is conducting a hearing on the motion to dismiss the Minnesota case.
From Legal Newsline: Reach editor John O’Brien at firstname.lastname@example.org.