Plaintiffs Seek Cert. in NJOY E-Cig Class Action Lawsuit

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E-cigarette manufacturer NJOY Inc. is facing a proposed class action lawsuit over allegations that the company deceptively marketed their electronic cigarettes as a healthy alternative to tobacco cigarettes.

Plaintiffs Ben Z. Halberstam and Kathryn Thomas are seeking two statewide Class certifications to cover Class Members in both California and Florida who purchased NJOY e-cigarettes based on the defendant’s alleged false advertising campaign. This is the second time they are asking for certification, as the NJOY class action lawsuit was denied Class certification in August.

According to the NJOY electronic cigarette class action lawsuit, NJOY e-cigs are packaged in a way that misleads customers with omissions and partial disclosures about the health risks of consuming the product. Halberstam and Thomas claim that by not fully disclosing that e-cigarettes still dispense nicotine, NJOY has violated California’s Unfair Competition Law and Florida’s Deceptive and Unfair Trade Practices Act.

This is a second attempt by the plaintiffs to get Class certification for their e-cig class action lawsuit. In their previous attempt, NJOY argued that the two lead plaintiffs were not suitable Class representatives. NJOY claimed that Halberstam will not be a typical Class Member because he saw an NJOY advertisement while he was a New York resident but now is living in California.

NJOY also claimed that Thomas should not represent the Florida Class because she started using e-cigarettes as a way to quit smoking. The electronic cigarette company claims that this is not typical of the proposed Class she seeks to represent.

However, attorneys for the plaintiffs stated in the NJOY class action lawsuit that the company participated in a nationwide advertising campaign that Halberstam and Thomas both relied on when making the decision to buy NJOY e-cigarettes.

In this second attempt for Class certification, the plaintiffs offered the court three calculation models to show a “reasonable estimate” of Class damages. Halberstam and Thomas state that not only have they sustained monetary loss, they also have shown a proper way to measure that loss.

Halberstam originally filed his NJOY lawsuit in January 2014 but that case was later consolidated with the one led by Thomas. A hearing is set for Dec. 14.

If approved, the NJOY e-cigarette class action lawsuit would be open to all Class Members who purchased NJOYs in either California or Florida after January 2010.

The plaintiffs are represented by Nancy A. Kulesa, Eduard Korinsky, Shannon L. Hopkins and Stephanie A. Bartone of Levi & Korsinsky LLP, Janine L. Pollack, Demet Basar, Kate M. McGuire, Francis M. Gregorek, Rachel R. Rickert and Marisa C. Livesay of Wolf Haldenstein Adler Freeman & Herz LLP, Jeff S. Westerman and Anna Faircloth of Westerman Law Corp., Richard J. Lantinberg of the Wilner Law Firm PA, and Brian D. Chase, Jerusalem F. Beligan and Travis K. Siegel of Bisnar Chase LLP.

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, Western Division.

UPDATE: On Feb. 3, 2016, the plaintiffs in this NJOY e-cigarette class action lawsuit lost their second bid for certification of a Class.