9th Circuit Upholds Boiron Homeopathic Remedy Settlement

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On Tuesday, the 9th U.S. Circuit Court of Appeals upheld a Boiron homeopathic remedy class action settlement after disagreeing with an objector who had argued the 2012 deal was the result of collusion.

In his appeal to the 9th Circuit, objector Henry Gonzales argued that the Boiron class action settlement was not fair, reasonable and adequate. He also argued that the $5 million false advertising settlement amount represents less than 1 percent of Boiron’s retail sales and that Class Members would have had a better shot at a fair deal if the class action lawsuit had gone to trial.

The three-judge appellate panel disagreed with Gonzales and found that U.S. District Judge John A. Houston did not abuse his discretion by approving the Boiron homeopathic remedy class action settlement back in 2012.

“Because the class was certified for purposes of settlement only, the district court was required to closely scrutinize the settlement ‘for evidence of collusion or other conflicts of interest,” the panel wrote. “Both the district court’s final approval order and the transcript of the settlement approval hearing make clear that the court searched for signs of collusion … and correctly found none.”

The appeals court pointed out that the homeopathic remedy class action settlement was reached with the assistance of a retired judge and experienced mediator, who did not report any concerns of collusion during negotiations.

The panel also shot down Gonzales’s suggestion that the district court judge should have looked into the possibility that a “reverse auction” may have been at play, due to the fact that there were multiple Boiron class action lawsuits pending with similar allegations.

“The record contains no evidence suggesting that a bidding war between the various potential class counsel actually occurred, and as we have observed in a different context, if the mere existence of multiple potential classes were sufficient to prove collusion, ‘the reverse auction argument would lead to the conclusion that no settlement could ever occur in the circumstances of parallel or multiple class actions,’” the panel wrote.

As for Gonzales’s insistence that the Class Members would have been better served had the Boiron class action lawsuit gone to trial, the panel found that the $5 million Boiron class action settlement fund “was intended to be—and by all accounts, is in fact—more than adequate to compensate all class members who submitted refund claims.”

This appellate court decision means that Class Members who submitted valid claims for the Boiron homeopathic remedy class action settlement may soon be receiving checks in the mail. According to a post on the Boiron settlement website: “Valid claims will be paid soon after a decision from the Ninth Circuit affirming the settlement or otherwise dismissing the appeal.”

The homeopathic remedy class action settlement will resolve allegations that Boiron made false claims about the effectiveness of its homeopathic treatments with regard to treating the flu, arthritis, joint pain, coughs, insomnia and other conditions. Boiron denies the allegations but agreed to settle the class action lawsuit to avoid the cost and risk of further litigation. In addition to providing monetary benefits to Class Members, Boiron also agreed to make certain changes regarding the manner in which it advertises its products.

Class Members are represented by John Joseph Fitzgerald IV, Gregory Weston, and Melanie Persinger of The Weston Firm, and Ronald A. Marron and Beatrice Skye Resendes of the Law Offices of Ronald A. Marron.

The Boiron Homeopathic Remedy Class Action Lawsuit is Salvatore Gallucci, et al. v. Boiron Inc., et al., Case No. 3:11-cv-020390-JAH-NLS, in the U.S. District Court for the Southern District of California. The appeal is Case No. 12-57081, in the U.S. Court of Appeals for the Ninth Circuit.

UPDATE: Payments from the Boiron class action settlement were finally mailed in late September/early October 2015. Congrats to everyone who submitted a valid claim and got paid!