Mealey's (December 1, 2021, 7:23 PM EST) -- NEW YORK — A federal judge in New York on Nov. 22 granted final approval of a $6.5 million settlement, including attorney fees, costs and service awards, ending two putative class complaints accusing GSK Consumer Health Inc. of misleading consumers by making false claims on the labels of certain Benefiber products that they are “100% Natural” and “clinically proven to curb cravings.”
(Susan Swetz, et al. v. GSK Consumer Health, Inc., No. 20-4731, S.D. N.Y., 2021 U.S. Dist. LEXIS 227209)
(Order granting final approval available. Document #43-211203-052R. Order granting attorney fees, costs and service awards available. Document #43-211203-058R.)
U.S. Judge Nelson S. Román of the Southern District of New York opined that the settlement was fair and reasonable and benefited the class members. The judge awarded $2,166,666 for attorney fees, $22,903.98 for costs and $3,000 to each of the two settlement class representatives.
Susan Swetz sued GSK in the U.S. District Court for the Southern District of New York on June 19, 2020. In the operative first amended complaint brought on behalf of Swetz and a proposed class, she alleged that GSK markets its Benefiber products as 100% natural even though they contain a propriety wheat dextrin ingredient called NUTRIOSE that is not found in nature. Further, Swetz alleges, GSK’s Benefiber Healthy Shape products are advertised as “clinically proven to curb cravings,” but the claim is not supported.
Swetz alleges in her complaint that her conclusions are supported by the National Advertising Division’s May 14, 2020, investigation that found both claims to be unsupported and asked GSK to remove them from its labels. She further claims that Benefiber Healthy Shape is just Benefiber Original repackaged with a different serving size and higher price point.
Swetz brought claims for violation of New York General Business Law Section 349, N.Y. GBL § 349; New York General Business Law Section 350, N.Y. GBL § 350; breach of express warranty; violation of Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.; fraudulent misrepresentation; fraudulent concealment; and common-law unjust enrichment.
Swetz and Phillip White, the plaintiff in a similar case, White v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, Case No. 5:20-cv-04048-SVK (N.D. Calif.), moved for preliminary approval of a class settlement resolving both their lawsuits on May 10. White alleged in his lawsuit violation of California’s unfair competition law, Cal. Bus. & Prof. Code § 17200 et seq., deceptive advertising practices in violation of California’s false advertising law, Cal. Bus. & Prof. Code § 17500 et seq., violation of the Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq., breach of express warranty and unjust enrichment.
Granting preliminary approval, Judge Román opined that the settlement fell “within the range of reasonableness.”
A class of those who purchased the products for household use in the United States during the class period was certified for settlement purposes only. Excluded from the class are GSK, its officers, directors, affiliates, legal representatives, employees, successors and assigns and entities in which GSK has a controlling interest; judges presiding over the case; and local, municipal, state and federal governmental entities.
Swetz and White moved for final settlement approval and attorney fees, costs and awards on Aug. 3.
Swetz, et al. are represented by Jason P. Sultzer and Joseph Lipari of The Sultzer Law Group P.C. in Poughkeepsie, N.Y.; Melissa S. Weiner of Pearson, Simon & Warshaw LLP in Minneapolis; Douglas J. McNamara of Cohen Milstein Sellers & Toll PLLC in Washington, D.C.; Gary E. Mason of Mason Lietz & Klinger LLP in Washington; Charles E. Schaffer of Levin Sedran & Berman in Philadelphia; Ryan J. Clarkson and Katherine Bruce of Clarkson Law Firm P.C. in Los Angeles; and Christopher D. Moon of Moon Law APC in San Diego.
GSK is represented by Daniel B. Tehrani, Franco A. Corrado and J. Gordon Cooney Jr. of Morgan, Lewis & Bockius LLP in Philadelphia.
(Additional documents available: Swetz, et al.’s first amended class complaint. Document #43- 210617-042C. White, et al.’s second amended complaint. Document #43-211203-059C. Settlement agreement. Document #43-210617-039P. Swetz, et al.’s motion for final approval. Document #43-211203-053M. Swetz, et al.’s memorandum in support of motion for final approval. Document #43-211203-054B. Swetz, et al.’s motion for attorney fees, costs and service awards. Document #43-211203-055M. Swetz, et al.’s memorandum in support of motion for attorney fees. Document #43-211203-056B. Swetz, et al.’s supplemental memorandum in support of motion for final approval. Document #43-211203-057B.)