BROOKLYN, N.Y. (Legal Newsline) - A small asterisk had big implications in a class action lawsuit against Costco over its Kirkland-brand laundry detergent.
Plaintiff lawyers tried to show that claims on containers that the detergent treats up to 146 loads of laundry were false. But New York federal judge Diane Gujarati on July 25 dismissed those claims, finding a reasonable consumer would not have been tricked.
Lawyers said most consumers wash large loads, while the 146-loads claim pertained to regular loads. Their plaintiff, Eukarys Medina, said she relied on the 146 claim when buying a 5.73 liter container.
She also said she didn't notice the asterisk on that claim. On the back of the container, the asterisk explains the container will treat 146 loads when the cup is filled almost to line 4 with detergent - enough for a regular load.
Judge Gujarati referenced a 2018 decision from the Second Circuit in a case against Kellogg's that said "when a statement is ambiguous, every reasonable shopper knows the devil is in the details and thus would seek clarification on the package."
The term "load" is ambiguous, Gujarati said.
"The back label clarifies for the consumer that the container "CONTAINS 146 LOADS WHEN FILLED TO SLIGHTLY BELOW LINE 4 ON THE CUP,'" she wroe.
"Such clarification defeats Plaintiff's claims. No reasonable consumer considering the container's labeling as a whole would interpret '146 loads*' to mean that the container contains enough detergent for 146 loads 'that take advantage of the whole usable capacity of the clothes washer.'"
Gujarati tossed claims under New York's General Business Law as a result, plus claims under "state consumer fraud acts" as too vague to continue.
She also denied a request by lawyers to try again. Their one-sentence plea came at the end of their opposition to the motion to dismiss and "gives no indication of what allegations, if any, Plaintiff would add if granted leave to amend..."
Notorious class action lawyer Spencer Sheehan teamed with James Chung to bring the case. Sheehan is in hot water over similar claims first made in New York then again in Florida that Big Lots-brand coffee doesn't make as many cups as promised.
His first case failed but that didn't stop he and William Wright from bringing the same suit in Florida, where a judge has found he perpetrated a fraud on the court and ordered him to pay $180,000 in legal fees incurred by Big Lots.
Sheehan has filed hundreds of class actions centered on novel theories of consumer deception, leading to an Illinois judge calling him "a wrecking ball."