Akavar 20/50 Class Action Settlement Sent Back to Trial Court

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A federal appellate court in Utah has dismissed an appeal of a class action settlement over the diet pill Akavar 20/50, ruling May 6 that it doesn’t have the jurisdiction to consider the case until the trial court makes a final decision on whether to approve the Akavar class action settlement.

The decision marks the latest in a long string of legal battles over the Akavar 20/50 class action settlement, which was originally reached through mediation in September 2012.

Lead plaintiffs Pamela Miller, Randy Howard, and Donna Patterson alleged in the Akavar class action lawsuit that manufacturer Basic Research, LLC. misrepresented the diet product with claims that consumers could “Eat all you want and still lose weight.”

The parties agreed to enter into mediation after the Akavar class action lawsuit was filed in 2007. Attorneys for the parties drafted and signed a document outlining the terms of a class action settlement agreement and informed the district court that the mediation had been successful and, over the following months, exchanged several drafts further documenting the Akavar settlement. However, at some point the parties stopped working on the settlement agreement and the attorneys for defendants informed the district court that they no longer intended to settle. The attorneys for the plaintiffs filed a motion to enforce the Akavar class action settlement that was drafted during the mediation process with the district court.

In April 2013, the district court determined that the parties had entered into an enforceable agreement during mediation and ordered the parties to abide by that agreement. However, the defendants appealed that decision and the appellate court determined that the trial court had not made a final decision that the appellate court could rule on and sent the case back.

“As a general matter, the courts of appeal have jurisdiction only to review the ‘final decisions’ of district courts,” pointed out appellate Judge Tymkovich, and “‘[t]o be final, a decision ordinarily ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'”

The judge noted that “[t]he parties here agree that the district court has not yet reached its final decision since it has not approved the proposed settlement as is required in class actions under Rule 23 of the Federal Rules of Civil Procedure,” and “[t]hus, without an exception to the final judgment rule, we lack appellate jurisdiction.”

Judge Tymkovich outlined the possible exceptions in his ruling, including when the court issues or denies an injunction or under the “so-called collateral order doctrine.”

“The defendants contend the district court’s order imposes serious or irreparable consequences on them and the litigation and is practicably unreviewable in a later appeal,” summarizes the ruling. However, “[w]e find none of these reasons sufficient to confer appellate jurisdiction,” stated Judge Tymkovich’s ruling.

“Even assuming that the order has the practical effect of an injunction,” said the judge “we are not persuaded that delaying appellate jurisdiction imposes serious consequences or that the district court’s decision finding a binding settlement will effectively evade appellate review.”

“In sum,” concluded the ruling, “because the district court’s order does not qualify for interlocutory review or review under the collateral order doctrine, we lack jurisdiction until the district court issues a final decision and therefore dismiss this appeal.”

The plaintiffs are represented by Scott R. Shepherd of Shepherd, Finkelman, Miller & Shah, LLP, Media, Pennsylvania.

The Akavar 20/50 Class Action Lawsuit is Miller v. Basic Research LLC, et al., Case No. 7-cv-871, U.S. District Court, District of Utah.