Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Cal.: Plaintiffs’ request to add more class representatives in false advertising case denied, (Jan 14, 2016)

By Michael Menzhuber, J.D., LL.M.

The federal district court in San Diego denied a fourth request to add class representatives in an action against a cold therapy device manufacturer for false advertising and misrepresentation. The court determined that the manufacturer would suffer undue prejudice if the request was granted (Lucas v. Breg, Inc., January 11, 2016, Bashant, C.).

Stacey Lucas brought a putative class action against Berg, Inc., a California corporation that manufactures and sells Polar Care 500, a cold therapy device, alleging claims of false advertising and misrepresentation in violation of California consumer protection laws. The complaint was amended three times while in state court. Subsequently, the case was removed to federal court and the plaintiffs moved for leave to file a fourth amended complaint to add three named plaintiffs.

Undue prejudice. The plaintiffs downplayed the prejudicial impact of adding class representatives on the grounds that the amendment would not change the defendants’ position or require the assertion of new defenses. However, the court noted that whether prejudice is undue is considered in light of the factual circumstances presented, including case management benchmarks such as discovery deadlines, trial dates, and whether the defendant has filed a dispositive motion.

The court determined that granting the plaintiffs’ motion would result in undue prejudice because it was unlikely that the defendants could obtain written discovery responses for the additional class representatives with only a month left before the close of discovery. The court also determined that this prejudice could not be mitigated by the plaintiffs’ assertion that the new class representatives would file written responses to the defendants’ discovery requests that were “virtually identical” to what they had filed.

The court also noted that, if the plaintiffs’ motion were granted, the defendants would, within two weeks, have to retrieve the new class representatives’ medical and other records, analyze those records, and adjust their deposition strategy accordingly. Also, since it typically takes at least forty days to subpoena medical and billing records, it was almost certain that the defendants would not receive these records until after the conclusion of class discovery and depositions of the current plaintiffs. Consequently, the court determined that granting the plaintiffs’ motion would require the defendants to shortchange discovery crucial to their defense.

Undue delay. The plaintiffs argued that there was no undue delay because they filed their motion prior to the deadline for doing so and because they did not know the additional plaintiffs wanted to be joined as class representatives until after the filing of the operative complaint. However, the court determined that, although the plaintiffs’ delay might not be unreasonable on its own terms, it was unreasonable when assessed against the backdrop of a looming class discovery deadline and the impending start of depositions.

Previous amendments. The plaintiffs contended that their two prior amendments to add class representatives should be discounted because they were made before the action was removed to federal court. The court disagreed because: (1) the amendment sought by the plaintiffs was not one that suddenly became available once the case was removed; and (2) the plaintiffs did not suggest that their motion took on a unique vitality by virtue of being made in federal court.

The case is No. 15-cv-258-BAS-NLS.

Attorneys: Chase Stern (Morris, Sullivan & Lemkul LLP) for Stacy Lucas. David Jeffrey Duke (Bowman and Brooke LLP) for Breg, Inc.

Companies: Breg, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews