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Early this week, in the class action lawsuit accusing NJOY Inc. of falsely advertising e-cigarettes as healthy, the e-cig maker argued that the California federal court should not certify the Class proposed by the class action lawsuit plaintiffs.
Lead plaintiffs, Ben Halberstam and Kathryn Thomas, allege in their class action lawsuits that false advertising from NJOY made them think e-cigarettes were healthier alternatives to regular tobacco cigarettes. In its motion to deny Class certification, NJOY argued that the plaintiffs had been coached by their attorneys and did not adequately represent their classes.
NJOY alleged that the plaintiff proposed to represent the Class of Florida purchasers had changed her account of how she used the product. “The Florida plaintiff is miffed because all of the ingredients were not listed on the NJOY warning label — although she did not know that until a year and a half later, and indeed, she continues to smoke those same ingredients (and many more) today,” NJOY said in its opposition.
Regarding the plaintiff proposed to represent the California Class, NJOY claimed that he had been convinced to join the class action lawsuit by his brother, an accountant who works closely with the attorneys. “The California plaintiff, a nonsmoker who first used NJOYs because he likes to ‘try new things,’ continued to purchase and use NJOYs for over a month after he signed on to be a class representative to sue NJOY for false advertising,” NJOY argued.
NJOY also argued in its opposition to certification of the proposed classes that the plaintiffs admitted they did not rely on the packaging to make their purchases. NJOY pointed out that the lead plaintiff from California had said he wasn’t thinking of the ad he had seen when he bought the e-cigarette, and that he only spent “a few seconds” glancing over the warning label in his deposition. NJOY claimed that the Florida plaintiff had admitted to not reading the entire warning label and said she had never seen any NJOY ads.
In its opposition to Class certification, NJOY also pointed out a number of factors that, it argues, make the plaintiffs inadequate Class representatives. NJOY claims that the California plaintiff admitted he saw an NJOY ad while living in New York, though he is now living in California. NJOY claims that the Florida plaintiff is not an appropriate Class representative because said she used NJOY to stop smoking, which differentiates her from proposed Class users who bought the product on other grounds.
In December, NJOY moved to dismiss the class action lawsuit.
The plaintiffs are represented by Stephanie Bartone and Shannon Hopkins of Levi and Korsinsky LLP, Demet Basar and Francis Gregorek of Wolf Haldenstein Adler Freeman and Herz LLP and Jerusalem F Beligan of Bisnar Chase, among others.
The NJOY E-cigarette Class Action Lawsuit is In Re: NJOY INC Consumer Class Action Litigation, Case No. 2:14-cv-00428, consolidated with 2:14-cv-00427, in the U.S. District Court for the Central District of California.
UPDATE: On Feb. 3, 2016, the plaintiffs in this NJOY e-cigarette class action lawsuit lost their second bid for certification of a Class.
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UPDATE: On Feb. 3, 2016, the plaintiffs in this NJOY e-cigarette class action lawsuit lost their second bid for certification of a Class.