Calfornian Files Class Action Lawsuit Against NJoy/Sottera

[AgentAnia]

Is it online or did you get a hard copy? Would be very interested in reading it.

It's a pdf file. Since you have to purchase it from the court, I've been advised that I probably shouldn't post the entire document here but that I can post portions.

I've just skimmed it so far but can tell you it definitely sounds like ANTZ provided the language (that's my opinion). Main "study" quoted as providing "proof" that ecigs are dangerous (and that njoy knew it) is FDA 2009. :sigh: yep, once again FDA 2009 raises its ugly head.

 

[Jake6731]

If the FDA study is all they have, they'll probably be laughed out of court!

 

[DC2]

I've just skimmed it so far but can tell you it definitely sounds like ANTZ provided the language (that's my opinion). Main "study" quoted as providing "proof" that ecigs are dangerous (and that njoy knew it) is FDA 2009. :sigh: yep, once again FDA 2009 raises its ugly head.

That is incredibly absurd, given that njoy sponsored the study that showed the FDA study was full of crap...
http://www.casaa.org/uploads/Exponent_Response-to-the-FDA-Summary.pdf

 

[NorthOfAtlanta]

That just adds to the smell on this case, that study was shot down by a federal judge and also on appeal. My only thought on this is the lawyers are hoping that the juries eyes will glass over and they can use it's bad tobacco and nicotine to get it by them for a nice award.

 

[AgentAnia]

I've been reading the complaint more carefully, and as far as I can tell (have not followed the links yet), ALL the evidence they present is from the FDA in documents and press releases from 2009, PRIOR to the Sottera vs. FDA lawsuit! No mention of anything after that, except for uncorrected statements still on FDA's website. Will go over it even more carefully and check the links they provide, but now my eyes are crossed and I need a break...

 

[sonicdsl]

I'd be interested in Bill's & Greg's take on this as well.

 

[2coils]

That is incredibly absurd, given that NJoy sponsored the study that showed the FDA study was full of crap...
http://www.casaa.org/uploads/Exponent_Response-to-the-FDA-Summary.pdf

Is there a resource that you are NOT familiar with??lol. Though, that analysis was an easy one to find, I am embarrassed to say, I never read it! And it is definitely worth a look!!!

 

[AgentAnia]

Disclaimer: I am not an attorney (tho I grew up in a family of attorneys). I had to retype the passages quoted; any typos are mine.

The complaint has two main parts: that Plaintiff was injured by using Njoys; and that Njoy engaged in fraudulent and deceptive advertising and marketing to lure people into buying its products, knowing they were harmful.

Here is what seems to be the main argument for injury:

45. In or around December 2013, Plaintiff purchased Defendants' e-cigarettes in the County of Orange, State of California.

46. Plaintiff has read the representations on Defendants' website as well as the packaging of the device he purchased, including, among other things, the representation that because e-cigarettes are smoke free, they do not contain the harmful chemicals found in tobacco smoke. Plaintiff reasonably relied on Defendants' representations because Defendants represented that the e-cigarettes had been scientifically tested and determined to be free from harmful chemicals.

47. Plaintiff used Defendants' e-cigarettes as directed by Defendants.

48. In January 2014, Plaintiff discontinued use of the e-cigarettes beause he was experiencing various symptoms, including nausea, dizziness, and presistent pain in his chest resulting from his use of the e-cigarettes.

49. Plaintiff and members of the Consumer Class [See below. AA] have suffered injury as a result of Defendants' alleged misconduct. They have been injured in the amount they paid for the e-cigarettes.

His "ecigs are dangerous" allegation seems to be based solely on the FDA 2009 study. The 5 references given are: transcript of the FDA press conference announcing the release of the FDA 2009 study; a CNN news article covering the study release (ref'd twice); and the CNN consumer info page on ecigs (referenced twice), which has not been updated for content since 2009. Note that several links were not followable as given in the court document; I had to reroute to arrive at them.

The only other footnote not referencing Njoy's website or packaging refers to an article listing the nicotine content of various vegetables.

The "Consumer Class" McGovern purports to represent is described thus:

20. The potential members of the Consumer Class are so numerous that joined of all the members of the class before the Court is impracticable. While the precise number of the Consumer Class has not been determined at this time, Plaintiff is informed and believes that tens of thousands of consumers purchased Defendants' e-cigarettes during the Proposed Class Period throughout California. Upon information and belief, Plaintiff alleges Defendants' accounting and/or business records or client lists would provide sufficient information relative to ascertaining the number and location of all members of the Consumer Class.

The part alleging Njoy's fraud and deception is heavy on legalese, references to various state and federal statutes covering advertising and marketing, and quotes from Njoy's website and packaging. I haven't researched those yet, but gut reaction is that Njoy (having been through this once before in court as we well know) has had their attorneys carefully vet all language used and claims made before releasing them, so I doubt there's much of a case to be made in that regard.

And that's my homework submission for today... Time for recess.

 

[Kent C]

Disclaimer: I am not an attorney (tho I grew up in a family of attorneys). I had to retype the passages quoted; any typos are mine.

The complaint has two main parts: that Plaintiff was injured by using Njoys; and that Njoy engaged in fraudulent and deceptive advertising and marketing to lure people into buying its products, knowing they were harmful.

Here is what seems to be the main argument for injury:



His "ecigs are dangerous" allegation seems to be based solely on the FDA 2009 study. The 5 references given are: transcript of the FDA press conference announcing the release of the FDA 2009 study; a CNN news article covering the study release (ref'd twice); and the CNN consumer info page on ecigs (referenced twice), which has not been updated for content since 2009. Note that several links were not followable as given in the court document; I had to reroute to arrive at them.

The only other footnote not referencing Njoy's website or packaging refers to an article listing the nicotine content of various vegetables.

The "Consumer Class" McGovern purports to represent is described thus:



The part alleging Njoy's fraud and deception is heavy on legalese, references to various state and federal statutes covering advertising and marketing, and quotes from Njoy's website and packaging. I haven't researched those yet, but gut reaction is that Njoy (having been through this once before in court as we well know) has had their attorneys carefully vet all language used and claims made before releasing them, so I doubt there's much of a case to be made in that regard.

And that's my homework submission for today... Time for recess.

Nice job! The 'injuries' remind me of a recent "Ask the Vets" question.... see my reply:

http://www.e-cigarette-forum.com/forum/ask-veterans/532308-chest-pain-cough-like-analogs.html

It would be hard to put all of that on the 'packaging' and yet, for people who actually care about and do the least bit of research on a new product such as ecigarettes, you'd think they'd search out and find ECF or a similar forum and ask about these things first.

It's why I have a 'kinship' with everyone who posts here or have posted here, (even Roger They were smart enough to 'look' and to ask.

 

[AgentAnia]

Nice job! The 'injuries' remind me of a recent "Ask the Vets" question.... see my reply:

http://www.e-cigarette-forum.com/forum/ask-veterans/532308-chest-pain-cough-like-analogs.html

It would be hard to put all of that on the 'packaging' and yet, for people who actually care about and do the least bit of research on a new product such as ecigarettes, you'd think they'd search out and find ECF or a similar forum and ask about these things first.

It's why I have a 'kinship' with everyone who posts here or have posted here, (even Roger They were smart enough to 'look' and to ask.

Evidently between July 2009 and December 2013, McGovern was living on another planet that did not have communications with Earth...

 

[Kent C]

Evidently between July 2009 and December 2013, McGovern was living on another planet that did not have communications with Earth...

Lol... That's more believable that the actual claims.

 

[AgentAnia]

I've just finished checking the statements attributed to Njoy in the complain vs. what's actually on the Njoy website.

The complaint states:

Defendants represent that the primary ingredients, glycerin and propylene glycol, have been determined by the FDA to be "generally recognized as safe for use in food..." (3)

Footnote (3) refers to Njoy's FAQ page, which states:

Propylene Glycol - The Food and Drug Administration (FDA) has determined propylene glycol to be "generally recognized as safe" for use in food, and propylene glycol is used in cosmetics and medicines. It is used in food coloring and flavoring, as an additive to keep food, medicines and cosmetics moist, and in machines that simulate smoke, although usage in simulating smoking devices is not currently included in the list of uses recognized by the FDA. In NJOY, propylene glycol functions to provide the vapor mist that looks like smoke and to suspend flavor.

Glycerin - The FDA has determined glycerin to be "generally recognized as safe" for use in food, and glycerin is commonly used in foods, beverages, medical and pharmaceutical applications, such as cough drops, although usage in simulating smoking devices is not currently included in the list of uses recognized by the FDA.

Plaintiff states:

Importantly, Defendants' website claims that all of the ingredients in its product are "determined to be safe for use in food prouducts. (4 [which refers to (3), AA]) Thus, Defendants represent to consumers, including Plaintiff and the Consumer Class, that their product is a safer and healthier alternative to smoking and that it contains no harmful ingredients.

I'll leave you to draw your own conclusion...

 

[AegisPrime]

Wow. Do you think the plaintiff is gonna get contempt of court just for turning up?

Here's the full section:

3. How do the ingredients compare to those in tobacco smoking products?
The primary ingredients are glycerin and propylene glycol, and the secondary ingredients are nicotine and flavours to replicate the taste of traditional smoking.
Propylene Glycol – In the USA, the Food and Drug Administration (FDA) has determined propylene glycol to be "generally recognised as safe" for use in food, and propylene glycol is used in cosmetics and medicines. It is used in food colouring and flavouring, as an additive to keep food, medicines and cosmetics moist, and in machines that simulate smoke, although usage in simulating smoking devices is not currently included in the list of uses recognised by the FDA. In NJOY, propylene glycol functions to provide the vapour mist that looks like smoke and to suspend flavour.
Glycerin - In the US, The FDA has determined glycerin to be "generally recognised as safe" for use in food, and glycerin is commonly used in foods, beverages, medical and pharmaceutical applications, such as cough drops, although usage in simulating smoking devices is not currently included in the list of uses recognised by the FDA.
Nicotine - is an alkaloid found in certain plants, predominately tobacco, and in lower quantities in some teas.

Natural and Artificial Flavours - Determined by an EU Board Certified PhD Toxicologist to be safe for use in food products.

Seems to me all they're doing is stating what's in their product - there's no safety claims there with regard to a 'simulated smoking device'.

 

[AgentAnia]

Wow. Do you think the plaintiff is gonna get contempt of court just for turning up?

Here's the full section:



Seems to me all they're doing is stating what's in their product - there's no safety claims there with regard to a 'simulated smoking device'.

I'm not sure of the steps involved before this would go to trial, but I would hope Njoy will move for dismissal if it isn't first dismissed by the court as without merit. If neither of those things happen, I'm pretty sure there'll be a discovery process. Plaintiff will ask Njoy for its sales records (to find out names of purchasers, for example), and I would think Njoy will ask for evidence of Plaintiff's alleged injury (records of medical treatment sought, for instance?). As for the fraudulent marketing, I would think maybe Njoy could simply print out its website content and say "No we didn't."

I'm finding it hard to believe that Plaintiff's attorneys let that complaint be filed, with its outdated references and misinterpreted claims. They may very well have a judge or two in their pocket, but no way they can overcome a decent defense attorney and a jury whose cumulative IQ exceeds that of an eggplant!

 

[sonicdsl]

I've just finished checking the statements attributed to Njoy in the complain vs. what's actually on the Njoy website.

Defendants represent that the primary ingredients, glycerin and propylene glycol, have been determined by the FDA to be "generally recognized as safe for use in food..." (3)

Footnote (3) refers to Njoy's FAQ page, which states:

Propylene Glycol - The Food and Drug Administration (FDA) has determined propylene glycol to be "generally recognized as safe" for use in food, and propylene glycol is used in cosmetics and medicines. It is used in food coloring and flavoring, as an additive to keep food, medicines and cosmetics moist, and in machines that simulate smoke, although usage in simulating smoking devices is not currently included in the list of uses recognized by the FDA. In NJOY, propylene glycol functions to provide the vapor mist that looks like smoke and to suspend flavor.

Glycerin - The FDA has determined glycerin to be "generally recognized as safe" for use in food, and glycerin is commonly used in foods, beverages, medical and pharmaceutical applications, such as cough drops, although usage in simulating smoking devices is not currently included in the list of uses recognized by the FDA.

Plaintiff states:

Importantly, Defendants' website claims that all of the ingredients in its product are "determined to be safe for use in food prouducts. (4 [which refers to (3), AA]) Thus, Defendants represent to consumers, including Plaintiff and the Consumer Class, that their product is a safer and healthier alternative to smoking and that it contains no harmful ingredients.

I'll leave you to draw your own conclusion...

<...>

I'm finding it hard to believe that Plaintiff's attorneys let that complaint be filed, with its outdated references and misinterpreted claims. They may very well have a judge or two in their pocket, but no way they can overcome a decent defense attorney and a jury whose cumulative IQ exceeds that of an eggplant!

I see what you did there...

 

[Kent C]

I see what you did there...

Re: eggplant - a good source of nicotine!! I happen to have some of that extract I said somewhere "I'm prepared"

 

[DC2]

I'm finding it hard to believe that Plaintiff's attorneys let that complaint be filed, with its outdated references and misinterpreted claims. They may very well have a judge or two in their pocket, but no way they can overcome a decent defense attorney and a jury whose cumulative IQ exceeds that of an eggplant!

I would imagine they are hoping NJoy will just settle.
But this case is so without merit that I think NJoy will just go ahead and crush them.

 

[Uma]

Lol... That's more believable that the actual claims.

This has probably already been mentioned, but, I bet that the MSA wannabes lawyer told the wannabes they first to have to have "harmful cause case in a court of law". The timing just seems too suspicious to me. No harm case, no MSA.

 

[pamdis]

This has probably already been mentioned, but, I bet that the MSA wannabes lawyer told the wannabes they first to have to have "harmful cause case in a court of law". The timing just seems too suspicious to me. No harm case, no MSA.

Forgot about that! You may be right, this may be the driving factor behind the case.

 

[AgentAnia]

I would imagine they are hoping NJoy will just settle.
But this case is so without merit that I think NJoy will just go ahead and crush them.

Since they appear to be mainly personal injury lawyers, they may very well have a nice lucrative settlement as their goal, but if so, it further proves my point that they were negligent in researching the company, and the industry, before filing. Which goes to my next point...

This has probably already been mentioned, but, I bet that the MSA wannabes lawyer told the wannabes they first to have to have "harmful cause case in a court of law". The timing just seems too suspicious to me. No harm case, no MSA.

Forgot about that! You may be right, this may be the driving factor behind the case.

...that, assuming one of our conjectures is true, the ANTZ(s) behind this talked a good game to the lawyers (face to face, or thru McGovern), came in loaded with FDA2009 material and assorted other cherry-picked anti-vaping literature, and convinced the lawyers they had the truth, all the truth, and nothing but the truth. Given that there's been minimal media coverage of this (that I've seen), unless they're (the lawyers) checking the vaping forums and blogs, they may very well *still* believe this. (Don't we all want to be flies on the wall when they realize their mistake?!)