How Did Some Class Action Lawyers Become Humorless Prigs?
We all know about pheromones, right? They are chemicals that one animal secretes to attract members of the opposite sex. There's apparently a lot of research about the role of pheromones in the lives of insects. There's less research demonstrating any real role in the human species.
But pheromones are part of our popular culture. As a nod to my friends at Abnormal Use, I'll note that many comic-book heroes have powers based on pheromones. Stand-up comics joke about pheromones. Part of the joke is that we all know they don't have any huge impact on men or women. It's not like you can rub some magic elixir on your neck and instantly become an irresistable Cassanova. Or George Clooney. It's too bad, really. Some of us need the help. Which is part of what makes it fun to fantasize about such a possibility.
Dial has capitalized on this in a humorous advertising campaign for a Men's Body Wash called "Magnetic," which it describes as "Pheromone-Infused, Attraction Enhancing Body Wash.". Even the packaging is part of the joke. Its instructions for use include this tongue-in-cheek fourth step: "Stand back and watch the magic happen." Dial promotes this product with advertising, a website, and a Facebook page, all of which uses the same wink-and-a-nod type of humor.
Of course, some lawyer had to bring a class action lawsuit about this product, claiming that its marketing creates the false perception that it's going to help consumers attract women. But what's really surprising to me is that more than one humorless prig has filed such a suit, so now there can be a contest for control of the "litigation." Who knows? Perhaps someday there may even be a "Pheromone MDL"!
Ronald A. Marron of San Diego appears to be the first attorney to file suit, on February 3, 2012. His masterpiece of a complaint is available here. He even found a "representative" plaintiff, Mr. Robert A. Margolis, who actually was willing to plead under oath that he was "deceived by Defendants' representations about the quality and attributes of the Products, including but not limited to the purported ability of the Products to attract women because of pheromones in the Products, whereas ordinary soap does not contain pheromones." He even pleads that he would not have bought the products if he had known that the claims about attracting women were untrue. Mr. Margolis purports to represent a class of "[a]ll persons within the United States who purchased . . . [the Products] from the Products' release date in 2009 to the present . . ."
Apparently this suit seemed like such a brilliant idea that attorneys Craig Sean Mellon of San Diego -- along with Jeffrey M. Salas and John C. Wang of Chicago -- decided to copy it. (Imitation is the highest form of flattery.) They, too, filed suit in San Diego, on February 9. Incredibly, they, too, found a "representative" plaintiff, Mr. Frank Ortega, to plead under oath that he relied on the statements about pheromones and wouldn't have bought the soap if he had known it would not attract women. Mr. Ortega also purports to represent a nationwide class of frustrated men who bought the products from 2009 to the present.
This is the state of American class action practice, ladies and gentlemen. Really.
How did we ever sink this low? Well, I can tell you this much: it's no mistake that this suit was filed in California. California's Unfair Competition Law is often misinterpreted by its courts as removing fundamental elements of legal claims (such as reliance and causation) in the name of promoting the efficiency of class actions. This has led to the UCL being used for purposes far, far removed from righting actual wrongs. Instead, it's a hook that greedy attorneys use to play a game of "gotcha" with defendants. In these suits, clients don't search for lawyers; lawyers come up with the idea for a suit and then search for clients. They count on the fact that it will be costly enough and risky enough for a defendant to extricate itself -- even from ridiculous cases -- that the defendant will be willing to pay nuisance value to make the suit go away. And the result often is settlements that provide next to nothing to the class, but real dollars to plaintiffs' lawyers.
I, for one, hope Dial doesn't have to spend a single dollar on this incredibly stupid, wasteful litigation. But I know it will. So instead I hope every dollar will be spent fighting these suits, with not a dime in tribute.
Until the law is changed, or such suits otherwise become no longer economically viable for plaintiffs' lawyers, wasteful, "gotcha" class actions like these will continue to plague our courts, crowding out suits based on real grievances.
"This is the state of American class action practice, ladies and gentlemen." That's quite an extrapolation from one litigation. I wish I could use that type of statistical analysis in my cases.
I'd type more, but I recently switched to this new soap called "Magnetic," and the women are all over me.