The following is an excerpt from Steven Brill | November 5, 2015 | Time.com |
On May 22, at an afternoon hearing to go over a pretrial procedural issue, U.S. District Judge Gonzalo Curiel in San Diego mused over exactly what kind of consumer-fraud case he was dealing with. Was it analogous to another suit involving something called the Cobra Sexual Energy supplement, which had been alleged, the judge recalled, to be “worth zero”? Or was it was more like the case involving a fruit drink that consumers were deceived into thinking had more pomegranate juice than it actually did?
The distinction would determine whether the plaintiffs’ lawyers would be allowed to sue the marketer of the allegedly bogus product on behalf of thousands of customers at the same time, or whether the cases would have to be fought one by one, making them worthless for the lawyers to pursue, because the payoff for each individual client would not be worth the time and cost of going to trial.
So the stakes were high. Yet it was a dreary, highly technical argument–an unremarkable session on the eve of Memorial Day weekend. What was remarkable, however, was that in this hearing–as in multiple other hearings and court filings extending over five years–the lawyers defending the product, while maintaining that it had some value, seemed to concede that it had not been what its marketers claimed it was. Therefore, the question to be decided if and when the case came to trial would be whether and how much the customers were entitled to recover in damages, because what they got wasn’t what it was touted to be.
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