AARP’s brief supports efforts to hold a dietary supplement manufacturer accountable for allegedly misleading claims and billing practices.
Supple, LLC, markets a dietary supplement beverage that it claims, via advertising and testimonials, will “completely reverse and halt the disease process” for any joint disease, including arthritis. All of Supple’s marketing is conducted via online ads and news-style television “infomercials” that make it appear there is sound scientific evidence supporting the marketing claims. Once a buyer agrees to purchase Supple, he or she is trapped in a subscription service that is difficult to cancel. The customer service representatives for the company follow carefully crafted scripts that encourage purchasers to use the product for a longer period of time before cancelling and subject those who cancel to telemarketing calls to get them to re-subscribe.
Consumers who purchased Supple filed a class action lawsuit against the company seeking recovery for misleading advertising and unfair and deceptive billing practices. They challenged Supple’s marketing claims, alleging that that research shows the ingredients in Supple are ineffective in treating joint diseases or arthritis.
Supple opposed certification of the class, arguing that individuals are each required to prove that they relied on the allegedly misleading advertising in order to prove their claims. The consumers countered that all the purchasers were exposed to identical advertising and billing practices, and therefore, regardless of their individual situations, this lawsuit should proceed as a class action.
Class actions provide an efficient mechanism to address illegal corporate-wide practices that harm large numbers of individuals. The damage or loss suffered by each person may be a small amount, but it can amass into millions or even billions of dollars of ill-gotten gain for a company. Aggregating the claims of all the people harmed by the same practice is the only realistic way to challenge illegal business practices and provide relief for violations of the law. Where a company bilks each customer out of only a few — or even a few hundred — dollars, the amount of damages at stake usually will not justify the time, expense, and stress of bringing a private lawsuit. Moreover, a legal challenge raised by an individual is unlikely to unearth sufficient information to prove violations of law that require expert analysis and involve complicated factual and legal claims: companies would claim that providing such information in discovery would unduly burden them compared to the value of the legal claim. In any event, attorneys competent to successfully litigate complicated claims are unlikely to agree to represent individuals to challenge such practices because the cost of representation would far exceed any possible award even if the lawsuit is successful.