Scotts Miracle-Gro Requests Judgment in False Ad Class Action

Scotts Miracle-Gro has asked a federal judge to grant summary judgment in a class action lawsuit accusing the company of false and misleading advertising.

Scotts requested the summary judgment via a letter sent to U.S. District Judge Vincent Briccetti which states that the consumers could not provide any evidence that they were unable to grow plants from its EZ Seed product.

The company also argues that “Numerous consumers responded to the class certification notice by opting-out and stating that EZ Seed worked.” Scotts claims that testimony from the plaintiffs’ expert showed that the seed mixture did indeed grow grass.

“[The class] cannot show, as the court ruled they must, that EZ seed was defective for every single customer,” the request for summary judgment says.

According to the letter, at least three consumers who responded to the class certifications notice by opting-out “voluntarily swore declarations that EZ Seed worked,” but the plaintiffs chose not to depose those consumers.

Scotts argues that the Class claims that the label wording of “50% Thicker With Half The Water” was false and misleading, but the company had previously undergone testing and subsequently submitted data to the California Department of Food and Agriculture to prove that it worked before indicating that on the labeling, in compliance with California law.

“CDFA scientists specifically reviewed data substantiating the contested 50% thicker claim, concluding the data was comprehensive,” the letter to Judge Briccetti says.

In addition, Scotts also alleges in the letter that growth testing conducted by the plaintiffs’ expert witness was “fundamentally defective” because it did not include a proper control.

Scotts argues that the testing was conducted in Arkansas using EZ seed that was not sold in the state, was ill-suited for the climate and was inappropriately matched to test “ordinary seed” that was adapted to Arkansas climate plus included fertilizer and mulch.

Judge Beccetti certified a Class of consumers in both California and New York who purchased EZ Seed with a label that promised “50% Thicker With Half The Water.”

The New York Class alleges violations of the state’s General Business Law. The California Class alleges violations of the Consumer Legal Remedies Act, violations of false advertising and unfair competition laws as well as claims for unjust enrichment and breach of warranty.

While Judge Briccetti rejected Scotts’ arguments saying there wasn’t any common evidence and that a refund program was the better way to resolve claims, he did not allow the Class to use a full disgorgement damages model, saying that it did not match either theory of liability presented by the plaintiffs.

The Class was also denied certification for the injunctive relief claim, since the “50% Thicker” language has already been removed from the EZ Seed product labeling.

The plaintiffs are represented by Scott A. Bursor and Joseph Marchese of Bursor & Fisher PA and Antonio Vozzolo of Faruqi & Faruqi LLP.

The Scotts Miracle-Gro EZ Seed Class Action Lawsuit is Arcuri, et al. v. The Scotts Miracle-Gro Company Inc., et al., Case No. 7:12-cv-04727, in the U.S. District Court for the Southern District of New York.

UPDATE: August 2018, the Scotts Turf Builder EZ Seed class action settlement is now open. Click here to file a claim.

UPDATE 2: On Feb. 23, 2019, Top Class Actions viewers started receiving checks worth as much as $45 from the Scotts Turf Builder EZ Seed class action settlement. Congratulations to everyone who filed a claim and got PAID!