Calif. Can’t Seek Restitution in IntelliGender Class Action Lawsuit

On Nov. 7, a Ninth Circuit panel dismissed a restitution claim brought forth in the state of California’s false ad class action lawsuit against IntelliGender LLC, a suit that alleges the company overstated and misrepresented the accuracy of their gender prediction tests marketed toward pregnant women. The panel ruled that the state would not be allowed to seek restitution for consumers who are already considered Class Members for the IntelliGender class action settlement.

However, while this California state restitution claim was denied, the state’s IntelliGender class action lawsuit will still continue in litigation. The Ninth Circuit Panel ruled that even though the state’s IntelliGender class action lawsuit made similar claims as the consumer-led false ad class action lawsuit, the state could still seek injunctive relief and civil penalties from the company.

The city of San Diego in Southern California filed its own false advertising class action lawsuit against IntelliGender on behalf of all California consumers with a claim concerning public interest of California citizens, a claim that was not brought up in the consumer based IntelliGender false ad class action lawsuit.

Circuit Judge Kim McLane Wardlaw stated, “Because the state’s action is designed to vindicate broader governmental interests than the class action, the settlement agreement in the [Class Action Fairness Act] class action does not create privity sufficient to warrant enjoining the entire action.” This decision from the Ninth Circuit panel on the state of California’s IntelliGender false ad class action lawsuit was unanimous.

The consumer-based IntelliGender false ad class action lawsuit was filed in June 2010 by plaintiff Julie Gram who alleges the company’s gender test incorrectly predicted her unborn child was female. Gram claims IntelliGender knowingly overstated the accuracy of their product and misrepresented that a urine test could be used to accurately predict an unborn child’s gender just 10 weeks into a pregnancy.

The plaintiff further alleges Intelligender falsely marketed its product by stating the IntelliGender test had a 90 percent accuracy rate in laboratory trials and 82 percent gender prediction accuracy in non-laboratory (or real-world) conditions.

The company agreed to a false ad class action settlement that would grant Class Members who bought an IntelliGender test from November 2006 through January 2011 and received an incorrect result a $10 payment. The IntelliGender class action settlement required the company to donate $40,000 worth of its natural health remedy products to nonprofit organizations and cover the cost of the plaintiff’s attorney’s fees.

Finally, the IntelliGender false ad class action settlement required the company to refrain from referring to their product as a “test” in the same sentences that also mention sonogram, ultrasounds, and other medical tests. A disclaimer explaining the IntelliGender product is not U.S. Food and Drug Administration (FDA) approved was also required per the settlement agreement.

The State of California is represented by San Diego City Attorney Jan I. Goldsmith and Deputy City Attorney Kristine A. Lorenz.

The IntelliGender False Ad Class Action Lawsuit is The People of the State of California v. IntelliGender LLC, Case No.  13-56806, in the U.S. Court of Appeals for the Ninth Circuit.