An $8 million false ad class settlement between Neuriva memory supplement consumers and Reckitt Benckiser LLC offers nearly nothing for the class while disproportionately benefiting their lawyers, an objecting class member and a consumer advocacy group told a Florida federal court.
David Williams and others alleged Reckitt Benckiser and RB Health (US) LLC deceptively touted the brain booster as “backed by science” and “clinically proven” to improve brain performance when there is no scientific or clinical proof that Neuriva provides any benefit to the brain.
In April, Magistrate Judge Jonathan Goodman of the U.S. District Court for the Southern District of Florida tentatively approved a deal that provides up to $65 for class members with proof of purchase, and up to $20 for those without.
The companies also agreed to change all references from “clinically proven” and “science proved” on labeling and marketing to “clinically tested” and “science tested” or other similar language.
But the deal gives plaintiffs’ counsel an outsized fee of nearly $3 million while paying a nominal sum to a few class members, and lets the companies keep on deceiving consumers into thinking Neuriva provides cognitive benefit, objector Theodore H. Frank and consumer advocacy group Truth in Advertising, Inc. say in separate filings.
The injunctive relief is “illusory and only benefits the company,” TINA says in a Thursday filing.
“Tested” and “proven” convey “the exact same message"—that there is scientific evidence establishing the truth of the deceptive claims, TINA says.
“To make matters worse, RB’s meaningless labeling restrictions are binding for, at most, two years, while class members are required to give up their litigation rights forever,” TINA says.
‘Fictional $8 Million Fund’
The settlement’s $2.9 million attorneys’ fee component “is premised on a fictional $8 million fund,” Frank says in a July 26 filing. Its claims-made arrangement “means that the defendant will only pay a fraction of this amount,” he says.
Compounding the problems, class counsel has negotiated the fee as a separate piece, and the defendants have agreed not to oppose the request, Frank says. Any unawarded fees would revert to the defendant rather than going to benefit the class, he says.
The settling parties don’t report how many claims have been filed, Frank says.
Any fee award should be based on true class benefits and cross-checked with class counsel’s lodestar—their time spent on the case multiplied by hourly rates—which they don’t provide, he says.
A final approval hearing is set for Aug. 17.
Becker & Poliakoff and TINA’s legal director represent the organization. Dhillon Law Group, Inc. and the Hamilton Lincoln Law Institute Center of Class Action Fairness represent Frank.
Whitfield Bryson LLP; Greg Coleman Law PC; Levin Papantonio Rafferty; Barbat Mansour Suciu & Tomina PLLC; Bursor & Fisher PA; and Shub Law Firm LLC were appointed class counsel. Perkins Coie LLP and Bilzin Sumberg represented Reckitt Benckiser and RB Health.
The case is Williams v. Reckitt Benckiser LLC, S.D. Fla., No. 1:20-cv-23564, brief 7/29/21.