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Appeals Court Overturns Pampers Dry Max Class Action Settlement
By Anne Bucher
A federal appeals court on Friday overturned the Pampers “Dry Max” class action settlement, calling the relief offered to Class Members “illusory.”
Cincinnati-based company Procter & Gamble (P&G) manufactures the Pampers Dry Max diapers. When they were introduced in 2008, P&G claimed that they were thinner, more absorbent and more comfortable than other diapers available on the market. Complaints soon started rolling in, however, that the diapers caused children to experience severe diaper rash. A series of class action lawsuits were filed against P&G by parents who claimed their babies developed serious rashes, blisters, chemical burns, open sores and other painful skin conditions. The complaints were consolidated as In re: Dry Max Pampers Litigation.
P&G denied the allegations but agreed to a class action lawsuit settlement in 2011. The 59 named plaintiffs were awarded $1,000 per affected child and the lawyers involved in the class action lawsuit were awarded $2.73 million. Class Members were not awarded monetary relief, but were entitled to the benefit being able to learn more about diaper rash through a website and toll-free number established by P&G. The company also agreed to reinstate its money-back guarantee program for consumers who purchased Pampers Dry Max diapers and were dissatisfied, as long as they had their original receipt.
The Pampers Dry Max settlement received preliminary approval from U.S. District Judge Timothy S. Black. Daniel Greenberg on June 7, 2011, but a Class Member objected to the settlement agreement and filed an appeal.
In its decision to overturn the Pampers Dry Max class action settlement, the Cincinnati-based appeals court took issue with the fact that the settlement “provides the unnamed Class Members with nothing but nearly worthless injunctive relief.”
Under the terms of the class action settlement, P&G agreed to make temporary changes to its website and the product packaging to include information about diaper rash and treatment. P&G also agreed to produce and fund a pediatric training program to provide education about skin health and diaper rash treatment. The company agreed to spend about $400,000 to fund the education programs.
U.S. Circuit Judge Raymond Kethledge noted that P&G had already offered a one-box reimbursement program prior to the Pampers Dry Max class action settlement. Because the Class Members already had access to this program, “the relief this settlement provides to Class Members is illusory,” Judge Kethledge said in her opinion issued August 2.
As the sole dissenter, U.S. Circuit Judge R. Guy Cole said that the Class Members’ claims would be worth far less without the class action settlement. “In the absence of this settlement, Class Members would have almost certainly gotten nothing,” he said.
Eligible members of the class action settlement included U.S. consumers who used Pampers diapers with “Dry Max Technology” from August 2008 until the date of the final judgment.
The Pampers “Dry Max” Class Action Lawsuit is Daniel Greenberg v. Procter & Gamble Company, et al, Case No. 11-4156 in the U.S. Court of Appeals for the Sixth Circuit.
Updated August 5th, 2013
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