HARTFORD, Conn. (Legal Newsline) - Lawyers who ran with a study produced by a controversial laboratory are asking for $1.2 million from a settlement that gives buyers of a dry shampoo some money back.
The firms Silver Golub & Teitell, Sauder Schelkopf and Squitieri & Fearon on May 5 filed their proposed settlement of a class action lawsuit against Unilever. Like other firms in cases over other products, they cited the findings of the lab Valisure in their 2022 complaint. Steven Bloch of the Silver firm signed the document.
Valisure tested dry shampoo products under the brand names like Dove, Suave and TRESemme and claimed to find elevated trace levels of benzene. The attorneys fees request mirrors what Unilever would have paid had it taken Valisure up on an earlier offer.
In court records, Unilever 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, which has rejected Valisure's findings in two other petitions.
"(N)otwithstanding the substantial risks and uncertainty present in this case, the settlement provides settlement class members as good a result on an individual basis as they could have achieved at trial," the motion for approval of the settlement says.
The case does not allege any physical harm from use of the products, only that Unilever should have disclosed the benzene risks. Had it done so, consumers would have paid less for them than they did, or not bought them at all, the suit claims.
Lawyers say about 10 million units were possibly subject to benzene contamination. The entire settlement is worth $3,625,000. Using a method to determine damages that includes a "price point" at which consumers would have preferred the products be sold, the lawyers said the settlement represents a 24% recovery compared to the best outcome possible at trial.
Those with proofs of purchase can get a full refund. Those without can get $3 per product, with a cap at $12 per household.
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. 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.
Around 30 lawsuits followed Valisure's testing on acne medication. But they are in jeopardy now, after the FDA tested 95 acne drugs and found only six lots with with small problems, all nearing their expiration dates.
"Even with daily use of these products for decades, the risk of a person developing cancer because of exposure to benzene found in these products is very low," the FDA wrote.
The FDA went on to warn labs like Valisure to use validated testing methods, saying Valisure's processes may result in much higher reported levels of contaminants like benzene.
"FDA has continued to raise concern that use of unvalidated testing methods by third-party laboratories can produce inaccurate results leading to consumer confusion," the FDA said.
Valisure heated acne medicines to 170 degrees Fahrenheit and found "concerningly high levels of benzene in only 18 days." Valisure said the temperature was a reasonable estimation of what might occur in a shipping container or a hot car.
It was a similar process that produced NDMA in the heartburn medicine Zantac. Valisure created an artificial stomach, heated it to 266 degrees and exposed it to a level of salt that would kill a human.
And though the FDA similarly rejected those findings, lawsuits pressed on. A federal judge in Florida dismissed about 50,000 lawsuits after finding Valisure's methods didn't fit expert witness standards, but judges in Delaware and California reached the opposite conclusion and allowed lawsuits there to proceed.
That green light caused a massive spike in advertising for lawyers trying to find Zantac clients. The research firm X Ante found trial lawyers went from $3,000 on Zantac ads in May, then after the Delaware ruling that figure went up to $1.8 million in June and July.
In Philadelphia, plaintiffs asked a judge with a reputation for keeping "junk science" out of his courtroom to recuse himself from handling pretrial matters for more than 400 cases, but he refused, leading to an appeal.
Valisure's big payday is coming from a lawsuit in which it purported to represent the interests of the federal government over payments for Zantac. It will get a significant chunk of a $67.5 million settlement with GlaxoSmithKline.
The lab put Zantac in an artificial stomach and heated it to a level about 70 degrees lower than the average temperature of the planet Mercury, then introduced an amount of salt that would kill a human being. The result was Zantac producing a known carcinogen called NDMA.