Antitrust Law Daily Wrap Up, ADVERTISING—W.D. Ky.: Skechers denied dismissal of consumer protection law claims, (Feb 12, 2014)

By Jody Coultas, J.D.

The federal district court in Louisville, Kentucky, has denied Skechers U.S.A., Inc.’s motion to dismiss individual consumer protection law claims based on the advertising and marketing of the company’s toning shoes that were related to a previous multidistrict litigation settlement agreement (In re Skechers Toning Shoe Product Liability Litigation, February 6, 2014, Russell, T.).

Statute of limitations. The court declined to dismiss claims based on the statute of limitations. Skechers moved to dismiss several individual claims that were part of a multidistrict litigation (MDL) based on the statute of limitations of the applicable states’ law in each case. Although deciding case specific issues is not the role of a MDL court, it would clearly be within the court’s discretion to consider and rule on Skechers’ motions. However, ruling on the motions would require analysis of the specific facts of each individual case and the laws of each of the plaintiffs’ states of residence. Doing so would result in a significant burden on the court and would not promote efficiency, in the court’s view.

Release and res judicata. Skechers also moved to dismiss two individual consumer protection claims based on principles of release and res judicata, arguing that the issue was previously settled as part of the nationwide class action in Grabowski v. Skechers U.S.A., Inc. Skechers argued that the individuals were members of the Grabowski class who settled and released all consumer protection law claims, and that because the individuals did not opt out of that class action, the claims were barred. The court found that the individuals were part of the class which the Final Approval Order in Grabowski settled and had not opted out of the settlement. The settlement agreement did expressly reserve claims relating to personal injury to the plaintiffs. Therefore, to the extent the consumer protection claims were premised on personal injury and were viable, the court held that the claims were permitted to proceed.

The cases are Nos. 3-13-CV-790, 3:13-CV-851, and 3:13-CV-1011.

Attorneys: Joshua Cash (Wilson Elser Moskowitz Edelman & Dicken LLP) for Skechers Toning Shoe Products Liability Litigation. Paul J. Schachter (Schachter Hendy & Johnson, PSC) for Melissa Kearnely. Michael C. Crowley, Office of the Attorney General of Texas, for Texas Dept. of Ins./Division of Workers’ Compensation. Dennis M. O’Hara (Wicker Smith Tutan O’Hara McCoy Graham & Ford) for Skechers, USA, Inc.

Companies: Skechers U.S.A., Inc.

Cases: Advertising KentuckyNews