Williams v. Reckitt Benckiser LLC
| Docket Number | 20-23564-CIV-COOKE/GOODMAN |
| Decision Date | 17 March 2022 |
| Parties | DAVID WILLIAMS, et al., Plaintiffs, v. RECKITT BENCKISER LLC, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATIONS REGARDING CLASS ACTION SETTLEMENT
Words matter.
The choice of words also matters.
Saying a person “meanders, ” for example, sends a different message than describing that person as “walking slowly.”
In many settings, the selection of words can have a huge impact.
At times, the mere addition or modification of only one or two words can cause a dramatically different result.
In international diplomacy, the precise interpretation of an ambassador's comments to assess her country's position on a critical and dicey topic can boil down to the use of two or three specific words, rather than two or three other words.
In romantic relationships, a partner may focus on hearing three special words.
With poetry, a few well-chosen words can trigger an emotional response.
One mean and hurtful word from a bully is sometimes all it takes for a child to cry.
And in litigation, the specific words used in a lawsuit's allegations (e.g., “false and deceptive, ” as opposed to “vague and incomplete”) frame the issues, determine whether a proper claim has been asserted guide the scope of discovery, and set the stage for summary judgment motion practice.
This Report and Recommendations will, in part, need to assess the words in the current version of the class action Complaint. It also will need to analyze the exact words Defendants will be required to eliminate should the settlement be approved.
In their current version of the class action Complaint filed in this District against the manufacturers/distributors of Neuriva brain-health-promotion products, Plaintiffs contend that the products do not provide any actual tangible benefits. They say consumers are being defrauded because the products do not improve memory, focus, concentration, and other components.
Having made those allegations with those strong words, Plaintiffs now want this Court to approve a class action settlement which will provide some monetary relief for those who submit compliant claims but will permit Defendants to continue selling the same supposedly useless and expensive products (but without certain marketing and sales representations about the products' efficacy). Defendants have agreed to the settlement, but they vigorously challenge the critical allegations. They argue that the products do in fact work and that their ingredients have been successfully demonstrated to provide benefits for promoting brain health.
The parties tout the injunctive relief (which restricts what Defendants can say about the products) as a critical part of the settlement. Instead of marketing and labeling Neuriva products as providing results which are scientifically and clinically “proven” or which “show” benefits after being “tested, ” Defendants would under the settlement agreement (i.e., the First Amended Settlement Agreement and Release), be required for two years to (1) revise all label and marketing references for Neuriva Original, Neuriva Plus, and Neuriva De-Stress (collectively “Neuriva”) from “clinically proven” to “clinically tested, ” as contemplated by the original Settlement Agreement and Release preliminarily approved on April 23, 2021; (2) refrain from making any reference to “clinically shown” or similar language, such as “clinical studies have shown” or “clinically tested and shown, ” as required by the First Amended Settlement Agreement and Release, entered into on September 7, 2021 [ECF No. 116-1]; and (3) limit the use of authorized language about the studies or testing to refer to only Neuriva's ingredients, not to Neuriva as a whole.
The parties have convinced me that these language limits and changes are significant. As noted, words matter; important words associated with the sale and marketing of the Neuriva products will be prohibited under the First Amended Settlement Agreement. .
In addition, Plaintiffs have highlighted other provisions of the injunctive relief which restrict what Neuriva's manufacturers and distributors, Defendants Reckitt Benckiser, LLC and RB Health (US) LLC, may say or do about and with the products. Plaintiffs also stress the importance of settlements in class action lawsuits. As Plaintiffs noted at the Final Fairness Hearing (and in their memorandum), they could lose the litigation on the merits. They emphasized that a similar lawsuit against another company selling a competitive brain health product (Prevagen) hit a significant roadblock when the district judge decertified the class after a hung jury.
The injunctive relief has value, and it should therefore be factored into the overall analysis of the settlement.
For these reasons (and others explained in greater detail in this Report and Recommendations), the Undersigned respectfully recommends that the Court approve the proposed national class settlement and grant Plaintiffs' motion [ECF No. 69] for final approval of the Settlement.
This recommendation approves the injunctive relief and the requested amount of attorney's fees, costs, and expenses (of $2.9 million). It neither approves nor rejects an incentive award to Class Representatives and Additional Plaintiffs, as that request has not yet been made here and will await a possible further decision by the Eleventh Circuit Court of Appeals concerning the propriety of such awards. See Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1260 (11th Cir. 2020) ().[1] The Undersigned recommends that the Court retain jurisdiction to entertain a motion for class representative service awards should Eleventh Circuit law change.[2] Finally, the Undersigned also recommends that the objections (including criticisms leveled by an amicus curiae), which were extensively briefed, be overruled.
In their Consolidated Amended Class Action Complaint, Plaintiffs (David Williams and four other individuals) allege that Defendants are involved in “false and misleading” marketing promotions for their Neuriva products. [ECF No. 51 p. 2]. They allege that Defendants are engaged in “deceptive conduct” and contend that “scientific evidence shows that it is biochemically impossible for the [active] ingredients to improve brain performance.” Id. at p. 4.
According to Plaintiffs' lawsuit, Defendants' misrepresentations fall into two categories: (1) actively representing that the “purported beneficial effects are scientifically proven and clinically proven to provide the promised and advertised improvements in brain function, ” and (2) making “health claims, ” such as enhanced brain performance “across all adult age groups and cognitive statuses.” Id. at p. 10. But, according to Plaintiffs, “both categories of representations are false and/or misleading.” Id.
The Consolidated Amended Class Action Complaint alleges that “none of the Neuriva Products has [sic] ever been clinically studied[.]” [ECF No. 51, p. 4].
In addition, the lawsuit alleges that “no publicly available study of Neuriva exists, and Plaintiffs have found no indication that Neuriva's efficacy has ever been studied or tested.” Id. at p. 23.
But Defendants say that their “marketing claims are backed by reliable and competent scientific evidence.” [ECF No. 62, p. 1]. They note that the injunctive relief was “crafted after Plaintiffs received and reviewed discovery providing extensive scientific support for the labeling claims that the injunctive relief permits.” Id.
More specifically, Defendants contend that “several well-designed scientific studies show that Neuriva's active ingredients support key indicators of brain health, such as focus, accuracy, memory, learning, and concentration.” [ECF No. 62, p. 2]. Therefore, Defendants say, they have “overwhelming scientific evidence relating to these ingredients.” Id. Similarly, Defendants contend that “abundant scientific substantiation” support the claims Plaintiffs challenge. Id. at p. 3.
Three of Neuriva's ingredients are NeuroFactor (a trade name used to refer to whole coffee cherry extract), soy-PS, and melon concentrate containing SuperOxide Dismutase (“SOD”). Id. at p. 3. According to Defendants, three human clinical studies on NeuroFactor (the Robinson study, the Auburn study, and the Reed study) show a statistically significant and clinically relevant improvement compared to placebo in performance on common cognitive assessments related to focus, accuracy, memory, learning and concentration. Id. at pp. 6-9. Moreover, they say that two other published studies on NeuroFactor (the two Reyez-Izquierdo studies) show an increased level of a neuroprotein known to strengthen connections between neurons (brain-derived neutrophic factor (“BDNF”)) in the brains of subjects taking NeuroFactor compared to placebo. Id. at p. 4. Defendants contend that clinical studies demonstrate supplementation with melon concentrate containing high levels of “SOD” reduces stress and mental and physical fatigue. Id. at p. 13. Defendants further note that clinical studies likewise show that PS (phosphatidylserine) supplementation can support memory and other brain functions. Id. at p. 4. They say a long body of research supports the conclusion that supplementation with PS (including soy-PS) supports brain...
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