LOS ANGELES (Legal Newsline) – Rather than try again, class action lawyers suing Graco over the recall of its children’s sleepers have given up on their case.
No one was hurt in the company’s “Little Lounger” sleepers but the company recalled the products and offered refunds anyway after it was deemed there was a threat of asphyxiation. On July 20, Los Angeles federal judge Stephen Wilson dismissed the complaint but allowed lawyers 21 days to fix its deficiencies.
Bursor & Fisher filed its notice of voluntary dismissal, without prejudice, on Aug. 10 instead of filing a new complaint.
Graco noted in its motion to dismiss that there were no reported incidents of asphyxiation actually happening and that it offered refunds to customers, which left the company wondering why plaintiffs attorneys filed suit instead.
“Plaintiffs have not alleged that the use of the contested products caused any injury, or even that Plaintiffs have ever used the products at all,” Judge Wilson’s decision says.
“Plaintiffs claim they were deprived the benefit of the product they purchased, but Plaintiffs have failed to provide a factual allegation that the product did not or cannot perform the function for which it was sold.”
Wilson cited a previous Los Angeles case in declaring that the presence of a recall does not establish harm.
“A product recall does not imply an admission of false or misleading advertising, and Plaintiffs have yet to provide any factual allegation that the products did not or could not perform as advertised,” Wilson wrote.
“More importantly for fraud pleading, Plaintiffs have not shown how any of Defendants’ statements or advertising were false or misleading.”