An $8 million false ad class settlement between Neuriva memory supplement consumers and Reckitt Benckiser LLC got a Florida federal judge’s final approval recommendation despite an objecting class member and a consumer advocacy group’s concern that the deal gives the class little besides a meaningless label change.
The settlement offers significant relief, Magistrate Judge Jonathan Goodman of the U.S. District Court for the Southern District of Florida said in a Wednesday report recommending final approval.
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 it provides any such benefit.
In April, Goodman tentatively approved the deal, which establishes an $8 million fund to pay claims as they’re made.
The settlement provides up to $65 each for class members with proof of purchase, and up to $20 for those without. Wednesday’s report also recommended approval of nearly $3 million in fees to the plaintiffs’ attorneys.
The injunctive relief has changed from what was first proposed, the court noted.
The companies initially also agreed to stop using the word “proven.”
But that wouldn’t eliminate the deception, Truth in Advertising Inc. and objector Theodore H. Frank said in separate filings opposing the initial settlement.
The plaintiffs and Reckitt later amended their settlement. In the amended version, the defendants agreed to also stop saying Neuriva has been “shown,” or “clinically shown” to confer cognitive benefits.
Instead, the labels would say the products have been “clinically tested.”
TINA and Frank said that phrase is still misleading; TINA said it implies the product has been proven to show the result.
But the court said by limiting themselves to “clinically tested,” instead of “proven,” the defendants have adopted labeling “that does not suggest some definitive scientific outcome or consensus.”
Rather, the phrase “connotes only the accurate point that Neuriva’s active ingredients have been subjected to evaluation and testing,” it said.
In addition, by agreeing to not use terms like “shown,” the defendants are avoiding language that Frank and TINA argue is suggestive of “proven,” the court said.
The changes prompted by the lawsuit “are not merely cosmetic, nor are they inconsequential,” the court said. “To the contrary, they relate directly to the allegations of deception, the heart of Plaintiffs’ lawsuit.”
Becker & Poliakoff PA 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, 12/15/21.
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