CENTRAL ISLIP, N.Y. (Legal Newsline) – The last step for class action lawyers hoping to take millions from a teeth-whitening company was to actually find a plaintiff.
Lawyers at Mintz & Gold had sent demand letters to the company and drafted their complaint before ever securing a client to serve as the lead plaintiff in their proposed class action, defendant Snow Teeth Whitening says in an Aug. 13 motion to dismiss.
In stepped Burton Kraus, an old pal of one of the lawyers bringing suit. However, Mintz & Gold might be regretting its decision after Kraus’ Aug. 4 deposition.
“Plaintiff admitted that he made his purchase only after his lawyers—one of whom he has been friends with for decades—had drafted the complaint and only after they had sent a demand letter to Snow seeking a multimillion-dollar settlement payment,” the motion says.
“Following the company’s rejection of that demand, Plaintiff purchased the product from Snow’s website, adopted the allegations in his lawyers’ draft complaint as his own, and joined the lawsuit as the named class representative.
“Plaintiff further admitted that he could not recall actually seeing, much less relying on, any of the supposedly misleading advertisements identified in his own pleading—no doubt because the complaint was drafted before he had even purchased the product.”
Mintz & Gold filed its lawsuit Dec. 14 lawsuit against Snow Teeth Whitening, doing business as Snow Foresold and Foresold. Though the lights cost more than $100 more than comparable products, they are actually ineffective when it comes to dramatically improving on the whitening and antiseptic qualities of much cheaper options.
“Defendants have engaged in a wide-spread fraudulent scheme to deceive consumers into buying their teeth whitening products,” the lawsuit says.
“While Defendants unequivocally claim that their teeth whitening light delivers amazing results, independent lab testing proves that, in fact, their light does nothing to enhance their product’s purported ability to whiten teeth.”
A “red light” option can help protect against COVID-19 is a false claim made by the defendants, the suit says.
The initial complaint listed celebrity spokesmen Rob Gronkowski and Floyd Mayweather as defendants. That was done solely to drum up public interest in the case, the company says.
“Neither had anything to do with the purported misrepresentations cited in the pleading, and they had no involvement in managing the company or making strategic business decisions regarding the marketing of Snow’s products—and the complaint did not allege otherwise,” the motion to dismiss says.
“It was only after Defendants moved to dismiss those individuals from the suit—and Judge Feuerstein informed Plaintiff’s attorneys that they would be sanctioned if they pursued baseless claims that wasted judicial resources—that Plaintiff dropped those individuals from the case.”
The motion argues the case must be thrown out because plaintiff Kraus was asked several times if he relied on the alleged misrepresentations in the company’s advertising when purchasing the product.
Fourteen times during his deposition, Kraus refused to answer in the affirmative to any of those questions. For example, after saying he didn’t remember seeing the company’s Instagram ad, he was asked: “Mr. Kraus, do you know if – do you have a recollection of having relied on this ad as part of the reason that you purchased your product?”
He responded: “I thought I just explained that I’m not sure if I have ever seen this particular ad, so I don’t know how I could have relied on the ad that I’m not sure if I ever saw. I don’t know, this is head-spinning, man.”
He also did not recall seeing the company’s claims regarding customer satisfaction, or its ads on the Home Shopping Network or Oprah Magazine.
“These admissions are dispositive. The lawsuit seeks to recover millions of dollars for the purported false advertising regarding Snow’s products, but this testimony shows that the complaint’s allegations are not based on any actual consumer experience—whether Plaintiff’s or otherwise—and that Plaintiff was not misled, did not rely on any of the statements alleged in his complaint, and has not suffered any injury,” the motion says.
“Instead, the allegations were devised by lawyers seeking to force a small start-up company to pay an oversize settlement.”
Douglas Curran of BraunHagey & Borden is representing Snow Teeth Whitening.