THAT’S A LAWSUIT WAITIN’ TO HAPPEN!
By: Lamar Armstrong, III
We sometimes see our fellow humans doing some – shall we say – head-scratching things. Sometimes worthy of a “Darwin Award”. Other times simply worthy of the observation “that’s a lawsuit waitin’ to happen!”. Enter this column. The idea is simple: capture and share with others “lawsuits waiting to happen”. With the end goal of laughing at them – not with them. If you think that’s harsh, no worries – you can skip to the serious parts of this newsletter. For the remaining folks with senses of humor…. If you happen across a “lawsuit waiting to happen”, please please share it with us at Lamar3@armstronglawyers.com. With video or picture if you have either. If we think its funny enough (no, this is not a democracy), we’ll include it in a future edition of this column. You’ll get the credit and become famous. Without further ado, introducing the newest lawsuit waiting to happen:
Unfairness, Deception, and…..Lip Balm?
A potential class action lawsuit is brewing in Illinois against Blistex, alleging that Blistex unfairly and deceptively claimed each stick contained .15 ounces of lip balm, when they actually contained .133 ounces (a difference of .017 ounces, or about 11% less). Apparently the .15 ounces included the weight of the packaging of about .017 ounces.
I have long suspected that Blistex designed the balm to make lips more dry/cracked over time, creating dependency on the product. OR that Blistex implants a substance in the balm or packaging that, once released into a woman’s system, awakens her inner desire to torture her man or child(ren) with incessant, unnecessary smear campaigns. (anyone else see lip balm in their nightmares, or is it just me???).
But never did I suspect that Blistex was up to something much more sinister. Much more repulsive. Much more….deceptive?
The lead plaintiff in this lawsuit insists she (and others) would not have purchased the $2.30 stick if she had known, or she would have paid less. Clearly Blistex has not gotten into her subconscious…yet. Stay strong lead plaintiff. Resist the grease.
Conspiracy theories aside, it will be interesting to see where this goes. Because on the one hand, you should get what you’re told you’re getting and what you paid for, right?
On the other hand, is it unfair and deceptive? I’m no Illinois lawyer, but it sounds like Illinois has a similar “unfair or deceptive acts and practices” (a/k/a “UDAP”) statute that North Carolina does.
In North Carolina, a “UDAP” violation occurs if the unfair or deceptive act or practice is “in or affecting commerce”. Such an act/practice is unfair or deceptive if it has a tendency or capacity to deceive. It doesn’t matter if a defendant intended to deceive.
So regardless of Blistex’s intent (I’ve made my feelings clear there), the important questions are whether their “.15 ounces” statement on packaging is false, and unfair or deceptive. Even if technically false, does it have a tendency to deceive people? Are folks buying up this stuff at the going rate because of the amount stated? Would people not buy this stuff at the going rate if they knew the truth?
I don’t know if a judge will toss this case or if it will be decided by a jury. But if it makes it to a jury, the trial strategist in me wonders how the average joe/jane jurors would react to this. Ripoff, and Blistex should pay? Or, nothing to see here?
The real kicker in the short term is class action status. The big companies like Blistex start feeling the heat more if the judge “certifies the class” – meaning the judge finds that the requirements for a class action are met. Because if there is a “class”, then those “deceptive” 20-30 cent per-stick upcharges add up, once you factor the vast number of sticks bought up (half by my dear mother…ok I’ll stop, for real this time). Yet if there is no “class”, then effectively there is no lawsuit. Nobody is going to sue over 20-30 cents if his/her claim cannot be joined in a large class of other similarly-situated lip balm ripoff-ees.
If there is a class action, chances are Blistex will settle the case with their spare change, and perhaps jump into the hand sanitizer market (I hear that one is booming, and ripe for deceptive duping).
Lastly, if the judge certifies the class, there is no settlement, and it makes it to a jury, then Blistex may really be sweating it. A UDAP verdict in a plaintiff’s favor (at least in NC) opens the door to triple damages and potential reimbursement of plaintiffs’ attorney’s fees. On second thought, Blistex better not wait to jump into the hand sanitizer business.
By: Eason A. Keeney