HARTFORD, Conn. (Legal Newsline) - Rather than continue to fight in court, Unilever will settle a class action lawsuit spawned by the testing lab Valisure, whose testing of consumer products has been criticized by the federal government in the past.
The 2022 lawsuit against Unilever cited Valisure's testing of the company's dry shampoo products under the brand names including Dove, Suave and TRESemme, among others. Valisure claimed to find elevated trace levels of benzene.
Litigation followed, as Steven Bloch and colleagues at Silver Golub & Teitel in Stamford found nine plaintiffs for a class action. Judge Michael Shea was weighing Unilever's motion to dismiss but the sides notified him Feb. 20 that a decision won't be necessary.
They have reached an "agreement in principle" and will later file for approval of a class action settlement. Terms aren't yet known.
In court records, Unilever had cited a September 2022 letter from Valisure’s lawyer, Marty Sipple, offering to test aerosol products for benzene for an up-front payment of $1.25 million and $250,000 a month, promising to keep results confidential.
In that court filing, Unilever suggested Valisure might have been offering to keep test results for its products out of a petition it later filed with the FDA.
Valisure's citizen petitions with the FDA bring lawsuits. The same day it announced a petition claiming acne medications contain benzene, Bloomberg and CNN ran stories about the “cancer-causing chemical” in benzoyl peroxide-containing acne medicine.
A couple of days later, law firms – some of them with a history of working closely with Valisure – began filing class action lawsuits against acne medicine manufacturers as well as retailers including Walmart and Target.
Based on past history, the law firms suing over Valisure’s claims can expect to make lots of money in fees, regardless of whether they are successful in court. Milberg Cohen and Bursor & Fisher shared $833,000 in fees on a $3.1 million settlement of Valisure-fueled claims over dry shampoo and $1 million in fees from a $3 million settlement with Walmart over hand sanitizer that Valisure said contained benzene.
Companies usually settle these cases despite Valisure’s checkered history, including the fact founder David Light served time in prison for possessing a cache of illegal weapons while he was still an undergraduate at Yale.
The FDA has criticized Valisure for inconsistent or improper testing techniques and a federal judge in Florida dismissed 50,000 claims based on Valisure’s assertion the heartburn medicine Zantac contained cancer-causing chemicals. The judge ruled Valisure’s methods, which included heating an artificial stomach to 266 degrees and exposing it to a level of salt that would kill a human, were unreliable.
The FDA, in a Dec. 5, 2022, letter following an inspection of Valisure’s lab, said the company “failed to establish and document the accuracy, sensitivity, specificity and reproducibility of its test methods.”
Among other things, the agency said Valisure didn’t calibrate instruments correctly, improperly switched methods when results were “out of specification” and entered test data into cloud computing accounts without retaining proper backup documentation.
Defendants have also fired back, accusing Valisure of coordinating efforts with lawyers – including the brother-in-law of Light, Valisure’s chief executive – by sharing reports with them before filing citizen petitions the with the FDA.
Unilever's motion to dismiss focused on standing. It argued none of the plaintiffs could show the products they purchased contained unsafe levels of benzene.
"Plaintiffs' allegations are primarily grounded in the Valisure test results," the March 2024 motion said.
"Valisure is not FDA-registered lab and its testing methods have come under fire and been invalidated."
Valisure announced a cooperative research agreement with the Defense Department in 2023, accompanied by praise from U.S. Representative Rosa DeLauro. The Pentagon has yet to provide Legal Newsline with any evidence such an agreement exists.