Boiron Oscillo Class Action Lawsuit Denied Certification

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Last week, a California federal judge refused to certify a class action lawsuit that alleged Boiron Inc. misled consumers by claiming that its homeopathic remedies could relieve flu-like symptoms, finding that the plaintiff is not an adequate representative because he lacks credibility on issues material to the action.

Plaintiff Leonidas Jovel asserts in the Boiron class action lawsuit that the labels on Oscillococcinum (“Oscillo”) and Children’s Oscillo are misleading because the product’s active ingredient is ineffective at treating flu-like symptoms. Further, he argues that even if the ingredient was effective, it is diluted to such an extent that it could not possibly be able to relieve flu symptoms.

Jovel filed the Boiron Oscillo class action lawsuit after he opted out of a 2012 class action settlement related to false advertising claims of several Boiron products. Under the terms of the Boiron class action settlement, Boiron was required to pay $5 million in refunds to consumers and make significant labeling changes to its products.

In his new Oscillo class action lawsuit, Jovel argued that Boiron’s labeling changes implemented after the settlement did not cure the company’s misrepresentations. He sought to certify a class of California consumers who relied on the products’ allegedly misleading labels when purchasing Oscillo and Children’s Oscillo after the settlement class period expired.

Boiron asked the court to deny class certification because Jovel failed to establish himself as an adequate representative for the proposed class. Boiron argued that Jovel provided conflicting testimony during depositions and that his inconsistency could harm putative Class Members. According to Boiron, Jovel’s class action lawsuit indicated that he relied on Oscillo’s label when he chose to purchase the product. However, in his deposition, Jovel said that he did not read Oscillo’s label until after he purchased the product.

U.S. District Judge Stephen V. Wilson agreed with Boiron that Jovel’s inconsistent testimony could harm the interests of Class Members. He noted that under California’s Unfair Competition Law and the Consumers Legal Remedies Act, Jovel had to establish that he relied on the misleading label, and that the label caused his injury.

“Jovel’s inconsistent deposition testimony places his credibility in issue on whether he actually relied on Oscillo’s label in purchasing the product,” Judge Wilson wrote. “If a jury concludes that because of Jovel’s prior inconsistent testimony he cannot be believed when he states that he relied on Oscillo’s label before purchasing the product, Jovel will jeopardize the interests of all of the other Class Members.”

However, Judge Wilson denied Boiron’s request for sanctions, finding that there was no evidence that Jovel’s attorney acted in bad faith by pursuing the class action lawsuit in spite of its weaknesses. The judge also found that other lawsuits against Boiron filed by Jovel’s attorney did not support a finding of vexatious litigation because they did not appear to be filed in bad faith. “These cases fall short of demonstrating that Jovel’s counsel has unreasonably and vexatiously multiplied the proceedings against Boiron,” he wrote.

Jovel is represented by Elaine A. Ryan, Patricia N. Syverson, Lindsey M. Gomez-Gray and Manfred P. Muecke of Bonnett Fairbourn Friedman & Balint PC.

The Boiron Oscillo Mislabeling Class Action Lawsuit is Leonidas Jovel, et al. v. Boiron Inc., et al., Case No. 2:11-cv-10803, in the U.S. District Court for the Central District of California.