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Court Expectorates Mouthwash Class Action

Two Massachusetts plaintiffs were left with bad tastes in their mouths after the state Appeals Court refused to give class action status to their lawsuits against the manufacturer of Listerine mouthwash. Today's decision in Kwaak v. Pfizer concluded that claims of the potential class plaintiffs were too different to join together in a single action.

Two separate lawsuits, both filed in Superior Court in Boston, each alleged that Listerine's maker, Pfizer Inc., engaged in deceptive advertising through a campaign that claimed the mouthwash was "as effective as floss." The two plaintiffs, Sherry Kwaak and Jerry Natale, had used the product for at least a decade. "Kwaak bought Listerine and other mouth rinses to freshen her breath and clean her mouth, and Natale bought Listerine to fight plaque and gingivitis and to freshen his breath," the court informs us. Claiming damages of the difference between what they paid for the mouthwash and its actual, lower value attributable to the deception, they sought to certify a class of all Massachusetts Listerine purchasers.

But after swishing the request around, the Appeals Court ejected it as not meeting the class certification standards of the state's consumer protection law, M.G.L. c. 93A. The court distinguished this case from an earlier "true market value" Mass. case involving advertising of Marlboro Lights cigarettes, Aspinall v. Philip Morris Cos., in that Aspinall involved labeling common to every package of Marlboro Lights while Listerine used an array of advertisements and labeling.

In this case, there is insufficient information in the record to identify any such similarity of exposure, deception, and causation. The class certified is everyone who purchased Listerine products during the advertising campaign, regardless whether a purchaser was exposed to the campaign. Unlike in Aspinall, not every product was mislabeled. Some Listerine products, for example, contained no label or tag connected to the advertising campaign.

In a concurring opinion, Appeals Court Justice Frederick L. Brown said that the interests of the potential plaintiffs were so dissimilar that he was puzzled by why plaintiffs' counsel bothered to divert their attention from the clients they already represent. Noting that an attorney's paramount interest should be his or her client, Judge Brown offered the lawyers this advice: "Dance with the one who brought you."

Posted by Robert J. Ambrogi on February 29, 2008 at 12:32 PM | Permalink | Comments (1)


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