CENTRAL ISLIP, N.Y. (Legal Newsline) - It's possible, a federal magistrate judge says, that a class action lawyer told a longtime friend to purchase a teeth-whitening product so he could have a plaintiff for a lawsuit he had already drawn up months earlier.
It's one reason that Burton Kraus' case against Snow Teeth Whitening should be thrown out of court, Magistrate Judge Steven Tiscione wrote in a report and recommendations on Sept. 15. Kraus' lawsuit says though LED mouthpieces cost more than $100 than comparable options, they are ineffective in teeth whitening.
Kraus' testimony that he did not see or rely on the advertisements identified in his complaint should be fatal to his case, Tiscione says.
"Given the clear dispute regarding Plaintiff's true purpose in purchasing the teeth-whitening product, and the strong circumstantial evidence Defendants have presented suggesting that Plaintiff only purchased the product in order to generate this lawsuit, the complete lack of any connection between the Plaintiff's testimony and the allegations in the complaint is even more troubling," Tiscione wrote.
"This is particularly true since the complaint appears to have been drafted before Plaintiff purchased the product and seemingly without any attempt to conform the allegations in the complaint to Plaintiff's actual experience."
Snow Teeth Whitening brought the issue up in its motion to dismiss, noting Kraus and one of his lawyers from Mintz & Gold were friends and former neighbors. Steven Mintz had sent a notice letter to Snow that included a draft complaint seeking possibly millions of dollars, but the company rejected an offer to settle.
Months later, Kraus' name was inserted as plaintiff, but the complaint noted he had bought the product in July 2020 - three months after the rejected settlement.
Kraus testified he purchased the product to whiten his teeth and only filed suit when he became unhappy with it.
This "circumstantial evidence," by itself, wasn't enough to defeat Kraus' standing to bring suit, Tiscione wrote - "In the absence of any concrete evidence proving this testimony was false, the plaintiff has satisfied his burden at this stage of the proceeding, even if just barely."
But given that he didn't see the ads referred to in the complaint, including ones with athletes Floyd Mayweather and Rob Gronkowski (who were originally listed as defendants), Tiscione says Kraus' case must not be allowed to go on.
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