Class Action Suit against SE:

[ladyraj]

Direct from the bragging site of Banzhaf...ASH:

E-Cigarettes Hit With Class Action Law Suit // Company Says Its Very Existence is Threatened

E-Cigarettes Hit With Class Action Law Suit // Company Says Its Very Existence is Threatened

Excerpts:

*The new class action law suit noted that the defendant claims its product has been "toxicologically tested and it contains no known ingredients that are considered cancer-causing agents." However, the class action claims, the e-cigarettes have tested positive for human carcinogens, and that at least one was found to contain diethylene glycol, "a poison found in antifreeze that has been linked to hundreds of deaths worldwide from tainted toothpaste and cough syrup."

*The new class action law suit seeks monetary damages for unfair competition and unjust enrichment, and also a court order requiring the company to correct its advertising. Law professor Banzhaf suggests that more civil law suits are likely to be filed in the near future, and that sellers of drug-delivery devices which are not approved by the FDA could also face potential criminal sanctions, even if they make no claims for their product.

***Another link to the allegations:

Courthouse News Service

Excerpts:
But plaintiff Bryn Garrett says the e-cigarettes have tested positive for human carcinogens, and that at least one cartridge was found to contain diethylene glycol, "a poison found in antifreeze that has been linked hundreds of deaths worldwide from tainted toothpaste and cough syrup."
When confronted with an FDA finding that e-cigarettes are unsafe, Elicko Taieb, CEO of Smoking Everywhere, said he is "pretty sure" the product is safe, though "we are not 100 percent sure of the side effects yet," according to the complaint.
Smoking Everywhere's e-cigarette devices cost $40 to $70, apiece, Garrett says. He seeks damages for unfair competition and unjust enrichment, and an injunction demanding that the company correct its advertising. He is represented by Tonna Farrar with Bonnett, Fairbourn, Friedman & Balint of San Diego.


***The case and filings:

http://www.courthousenews.com/2009/09/30/EButts.pdf

The plot thickens....

EDIT: I just noticed the same post in the smoking everwhere sticky. Mod remove if appropriate please.

 

[LaceyUnderall]

"In announcements triggered by ASH, the Food and Drug Administration [FDA] has warned that the product is "illegal.""

Really? I wonder if Banzhaf is aware that the FDA just changed their position today according to one spokeswoman:

Battery-powered cigarettes catch on with consumers | Detroit Free Press | Freep.com
"For now, 'there is no import alert on e-cigarettes at the border,' FDA spokeswoman Siobhan DeLancey told the Free Press."



What's interesting about this lawsuit: I am still having a time wrapping my head around the idea that he purchased an SE kit 8-12 months ago for between $60 and $75. If anyone from SE reads this forum, I would strongly suggest looking at his hardware to ensure that it is in fact yours because frankly, your pricing was in the $150 range at that time. If it's not your stuff... then he's hunting you down for a quick buck. I do hope you are asking for a receipt, proof of packaging and hardware from the purchase.

 

[BigJimW]

I sent Banzhaf this from that press release

Dear Professor Banzhaf,

Wow, truly amazing. Just what the hell is your problem?

I can tell you. You're in bed with big pharma, that's where the problem is.

So many doctors are disputing this so called FDA report, it isn't even funny, and your ASH website promoting outright lies is just pathetic.

ASH is already losing confidence in the public because of many of your baseless claims. This blowhard lawsuit is just another attempt to get the attention you so crave.

Why not ask the FDA why they did not use a conventional cigarette as a benchmark to the test they ran on the electronic cigarette? I'll tell you why they chose not to. It would have proven that electronic cigarettes are 1000 times safer than a real one. And yes, they would have found this "antifreeze" in much higher concentrations than what was found in ONE of SEVERAL cartridges tested. That is IF they found this at all.

Seems to me that it was nothing more than a smear campaign by the FDA to attempt to sway Judge Leon in the litigation that is currently in Federal court. And as no circus can be complete without it's clown, I see you filed a brief to try to get a "piece of the action".

Banzhaf, you are a real piece of work. You have NO BUSINESS being involved with this. NONE whatsoever! I can see why though, because the use of electronic cigarettes may actually DO something and your little cut you get from Pfizer may be in jeopardy because peopel may actually styop taking Chantix, a drug known to inspire suicides. Yes Banzhaf, quite the alterior motive you have there. And quite easily proven. I think the people have a right to know. And I will see to it that they do.

Thanks for your attention. I will be sure to give you copious amounts of mine.

- Jim

I am so sick of that blowhard.

 

[a2dcovert]

So the FDA confirms what I thought was going on:

For now, "there is no import alert on e-cigarettes at the border," FDA spokeswoman Siobhan DeLancey told the Free Press.

So that means that once the trial is over the ban will resume, if we lose.

Kevin

 

[ladyraj]

Thanks for the link Lacey it's refreshing to get good news! Someone bringing a class action suit was a concern I thought we all had bypassed. After the SE claims and the FDA "report" it really was a matter of time before someone jumped on that chance. Now let's see how many people jump on the freebie train to recoup monies spent on equipment. Sad but true that some will not be able to resist..particularly if the PV was put in a drawer somewhere.

Big Jim, the missive you sent Banzhaf pretty much sums up what we all are feeling and thinking.

 

[Kamanjah]

Does anyone know if this has actually been filed? There's no case number on it yet.

Being a class action, members of the "class" can exclude themselves from the action. I'm sure yvilla or another attorney will come along and tell us how to exclude ourselves once this is actually filed.

 

[LaceyUnderall]

Being a class action, members of the "class" can exclude themselves from the action.

This is an interesting statement... that I would like to know further about.

 

[BigJimW]

That is correct. You do need to exclude yourself from the lawsuit. Banzhaf can't do **** if he gets nobody to file with him.

If you are included, you get a letter in the mail with instructions on opting out.

But I'm sure he will get enough suckers though. Sellouts who think they get the chance of earning a quick buck. And that will all it will be too, a BUCK. Banzhaf gets the rest.

Fat porky ........ He's such a slimbag.

 

[ladyraj]

In most class action suits everyone who purchased/used the product is a plantiff unless they opt out. Thus the client base or "class" can be drawn from the books of every seller that sold SE products under subpoena. A general call to the public via media is generally used as well.

 

[yvilla]

You mean plaintiff, Ladyraj.

But remember, the first hurdle this unsavory plaintiff has to get past is to get the class "certified", ie approved, by the judge.

If successful in that, then yes all purchasers of the product and thus potential class members should be notified via a mass mailing, after which they can either join in or ask to be excluded. There is often a web site set up for such purposes in class actions as well.

 

[ladyraj]

Thanks Yvilla...what are your predictions on this matter...does it have merit?

 

[techtravis]

In most class action suits everyone who purchased/used the product is a defendent unless they opt out. Thus the client base or "class" can be drawn from the books of every seller that sold SE products under subpoena. A general call to the public via media is generally used as well.

Every Class action law suit Letter I've ever received gave instructions for Opting IN not out.. Are michigan laws different?

 

[BigJimW]

If successful in that, then yes all purchasers of the product and thus potential class members should be notified via a mass mailing, after which they can either join in or ask to be excluded. There is often a web site set up for such purposes in class actions as well.

If one does nothing, are they automatically included? I'm sure there are thousands of people buying the SE and not visit this forum, much less read this thread. Example someone gets that letter and tosses it in the trash.

 

[Sun Vaporer]

Due process requires that notice describing the class action be sent, published, or broadcast to class members. As part of this notice procedure, there may have to be several notices:

A notice giving class members the opportunity to opt out of the class, i.e. if individuals wish to proceed with their own litigation they are entitled to do so, only to the extent that they give timely notice to the class counsel or the court that they are opting out.


So you must, in most cases, opt out, or you are in.

Sun

 

[Kamanjah]

All of the letters I've gotten in the past about class actions included me automatically unless I opted out, and they gave instructions on how to do so. Been awhile though.

 

[~Gazoo~]

If you receive a letter you will NOT be included in a class action lawsuit unless you opt in. That's been the way it has been in every state I have lived in and with every notice I have received. Don't believe this would be any different.

 

[~Gazoo~]

Due process requires that notice describing the class action be sent, published, or broadcast to class members. As part of this notice procedure, there may have to be several notices:

A notice giving class members the opportunity to opt out of the class, i.e. if individuals wish to proceed with their own litigation they are entitled to do so, only to the extent that they give timely notice to the class counsel or the court that they are opting out.


So you must, in most cases, opt out, or you are in.

Sun

Interesting...its always been the other way around with every notice I have received.

 

[LaceyUnderall]

so question: Are the sales records obtained by submission of SE? Is this limited to the Kiosk? Every single SE purchaser? Does SE have to submit their customer records? (I definitely think this guy needs to prove he actually has SE hardware/carts before this goes any further... but still). It seems like it would be impossible to get everyone who should be included.

 

[yvilla]

Thanks Yvilla...what are your predictions on this matter...does it have merit?

Goodness, although I've never been a fan of SE, on principle I hope not!

More seriously, on the face of it it does look like it might withstand a motion to dismiss - it seems to present a cause of action. But I have certainly never looked at the particular California statute the first cause of action is premised on, nor the caselaw interpreting it, so really couldn't arrive at an intelligent assessment of merit. The second cause of action is based on a common law theory of "unjust enrichment", and other than my belief that in general the federal courts aren't too happy with common law causes of action, again I'm not steeped in any caselaw that would help to make an assessment of viability.

 

[BigJimW]

I swear to god if that fat ..... Banzhaf gets my personal information to use in this suit, I will file a counter suit against ASH and banzhaf for obtaining my personal information under false pretenses.

Yes, I did buy the SE. Send me that letter, Banzassfat. I ****ing dare you. You money whoring piece of **** .