Antitrust Law Daily Wrap Up, ADVERTISING—SDCal: Class Action Settlement Objectors Ordered to Produce Information Related to Standing, (May 1, 2013)

By William Zale, J.D.

In Hydroxycut food supplement marketing class action litigation, the federal district court San Diego ordered two class action settlement objectors to appear at a hearing and to produce all documents (1) evidencing purchase of a Hydroxycut product by the two objectors, (2) relating to any objection they had filed in any class action in the last five years, and (3) relating to monetary compensation they had received in any class action in the last five years (In re Hydroxycut Marketing and Sales Practices Litigation, April 29, 2013, Moskowitz, B.). The court granted a motion to quash a deposition subpoena directed to the objectors’ attorney.

Under Rule 26(b) of the Federal Rules of Civil Procedure, discovery of non-privileged material is permissible if is it "relevant to the claim or defense of any party" and "appears reasonably calculated to lead to the discovery of admissible evidence." Some of the information sought from the two objectors by class counsel was relevant to the settlement issues, according to the court.

The court found that class counsel’s concern regarding the objectors’ standing was justified because their attorney was what some courts call a "serial" or "professional" objector and had represented objectors in numerous cases, the objectors had filed objections in other cases, there was a question whether one of the objectors resided at the address used on the claim form, and the claim form provided no factual information regarding class membership.

At the hearing, class counsel would be permitted to ask the objectors questions regarding standing—for example, what Hydroxycut product was purchased, when it was purchased, where it was purchased, etc. Questions also would be permitted regarding objections made by the objectors in other cases within the past five years, rulings made regarding the objections, and any monetary compensation received by the objectors in connection with the objections.

At the same time as production of the documents, the objectors were ordered to provide a privilege log identifying all documents to which they claim any privilege or work product protection. The privilege log must describe the nature of the documents, communications, or tangible things and provide sufficient information to enable class counsel to assess their claims.

The case numbers are 09md2087 BTM (KSC) and 09cv1088 BTM(KSC).

Attorneys: Gayle M Blatt (Casey, Gerry, Schenk, Francavilla, Blatt & Penfield LLP) for Cody Coleman. Alexandria Armida Amezcua (Morrison & Foerster LLP) for Iovate Health Sciences U.S.A., Inc.

Companies: Iovate Health Sciences U.S.A., Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews