CENTRAL ISLIP, N.Y. (Legal Newsline) – A company that makes a tooth-whitening product is again arguing class action lawyers can’t come up with ideas for lawsuits before finding their plaintiffs.
Following the amendment of the complaint, Snow Teeth Whitening is again raising the issue of whether a plaintiff can be hand-picked by lawyers who have already drafted their lawsuit.
A Dec. 17 motion to dismiss says plaintiff Burton Kraus lacks standing because he didn’t rely on any alleged misrepresentations made by the company when he bought its toothpaste – he was simply following the orders of lawyers.
“Plaintiff and his lawyer are long-time friends and former neighbors. Plaintiff purchased the product in question only after his lawyers had drafted the complaint and only after his lawyers had demanded millions of dollars from Snow,” the motion says.
“When Snow rejected that baseless demand, Plaintiff purchased the product and agreed to be the face of the lawsuit, adopting his attorneys’ already-drafted allegations as his own.”
It’s an argument Snow Teeth Whitening already made in April, but plaintiffs lawyers amended their complaint, leading to this latest motion. At a deposition, Kraus admitted he never saw any of the advertising identified in his complaint, the motion says.
“This is not a case in which an aggrieved party who was actually harmed approached and retained lawyers to vindicate that injury,” Snow Teeth Whitening argues. “Rather it is a lawsuit engineered by the lawyers themselves in an effort to extract a payment from the company.
“Article III precludes misusing the federal courts in this manner. Plaintiff lacks standing, and this action should be dismissed.”
Mintz & Gold filed its lawsuit Dec. 14, 2020, 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.”
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.