By: Kathianne Boniello
Mad because there’s too much empty space in that bottle of Advil? Sue them!
Is there more than just vitamins in your Vitamin Water? Drag ‘em to the courthouse!
Actually — someone probably has sued that big company that committed a petty wrong against you, without you knowing it. New York lawyers rake in millions by suing on behalf of people who have no idea their interests are represented in court.
New Yorkers pay the price for class action lawsuit frivolity — through “higher auto insurance rates, higher health care costs and higher taxes,” says a report by the Empire Center for Public Policy.
About 177,000 lawyers actively practice in the state — one lawyer for every 112 residents. That’s more lawyers per capita than any other state, the Empire Center says.
All those lawyers need to make a living — and New York’s distorted tort system gives them plenty of opportunity by letting them file lots of lawsuits, the December report says.
One lawyer thriving in the system is Manhattan attorney C.K. Lee, whose law firm, Lee Litigation Group, has brought more than 1,000 class-action cases in Manhattan and Brooklyn federal courts since 2009.
Lee’s cases include claims such as generic CVS brand candy boxes with too much air inside or air fresheners that only “mask” bad smells.
In 2015, Lee represented a Queens woman who sued a Canadian company over “highly sexually charged” advertising for their women’s tights.
Kushyfoot used phrases like, “That’s the spot!” and “Oooh, yes!” to show consumers their tights would feel like a massage, but the product is “just socks,” Lee lamented to The Post at the time. He dropped the case six months later.
The same year, Lee claimed consumers were duped by oversized Advil bottles, even though pill counts are prominently listed on the packages. The Brooklyn federal judge who tossed the case said Lee’s claim “does not pass the laugh test.”
But Lee and other consumer lawyers keep at it. Like cooks who throw spaghetti at the wall, Lee files the same kinds of lawsuits over and over until he finds the ones that stick.
In July, he sued Pret a Manger sandwich shops — because some of its sandwiches are wrapped in a “cardboard shroud prevent[ing] consumers from seeing that the wraps’ packaging contains air in the middle.”
Pret asked a judge to toss the case in November, saying Lee’s plaintiffs bought just three wraps that don’t represent Pret’s entire menu.
The sandwiches are handmade in each store, and any extra air in the packages would be caused by human error, not deceptive marketing, the company said.
Lee’s clients’ “overreaching” allegations against Pret are “claims for products they have not purchased, alleging damages they did not suffer, seeking injunctive relief to which they are not entitled, and purportedly on behalf of a class of consumers who could not have had the exact same experience they had due to the nature of Pret’s handmade wraps,” the company said.
Like most such suits, this case likely won’t go to trial.
“Lawyers know that if they file 10 cut-and-paste complaints, five may settle because many businesses are eager to avoid litigation expenses and liability risk,” the Empire Center says. “In many instances, the lawyers get paid by the defendant to ‘go away’ while consumers get little or nothing.”
When lawyers do get a case that sticks, they can make big money.
Lawyers representing the Center for Science in the Public Interest sued Coca Cola in Brooklyn federal court because bottles of its Vitamin Water touted its allegedly healthy benefits but didn’t state clearly the sugar content — 32 grams in a typical 20-ounce, 120-calorie bottle.
Coke changed the labels. Consumers got no money when the case settled in October 2015 — but the lawyers got $2.73 million in fees and expenses.
New York is “a favorite jurisdiction” for food marketing suits with copycat themes, the Empire Center notes. Lawsuits have griped that there’s too much air in packaging, or that “all natural” claims on packs of corn chips or oatmeal are deceptive even though the products’ ingredients are clearly listed.
Between 2015 and 2016, federal class-action suits in New York about food marketing accounted for nearly a fifth of such cases nationwide, said Cary Silverman, a Washington, D.C. attorney who co-wrote the Empire Center report.
“Consumers need to know that these are not raising serious health issues,” Silverman said. “They’re suggesting that consumers are going to be misled by things that any normal New Yorker who goes into the grocery store who picks something up and looks at the label knows very well what they’re getting.”
Cases that do not quickly settle with a private payout can drag on for years. When they finally end, the result can sometimes be “designed to benefit the class action lawyers instead of the consumers,” said Fordham Law school Professor Howard Erichson.
Class action lawsuits can do much good, Erichson believes. “What class actions do is create a whole bunch of Davids fighting against the Goliaths together,” he said.
One class action that brought real results was against German automaker Volkswagen. In 2014, US scientists discovered software in Volkswagen diesel cars that cheated US emissions tests.
Last year, the company agreed in a California federal court to a $10 billion settlement. As part of the deal, Volkswagen agreed to buy back or fix cars with the bad software, and to end leases on defective cars with no penalty to consumers. But the lawyers made out too — they raked in $175 million in costs and fees.
Washington, DC, lawyer Ted Frank has set up a consumer group aimed at watchdogging the lawyers who say they look out for consumers.
Last month, Frank’s group — the Center for Class Action Fairness — objected to a $115 million settlement involving health insurer Anthem Inc.
In 2015, hackers stole the personal information of about 79 million people from Anthem. The settlement will pay for two years of credit monitoring for everyone whose data was stolen.
But consumers will get little else. The $115 million deal includes $23 million in administrative costs and $41 million in lawyer fees — leaving consumers with the equivalent of $1 apiece, Frank’s group says.
It was Frank’s objection to a proposed settlement in Wisconsin federal court that helped scuttle a proposed $525,000 payout for lawyers suing Subway.
The suit was spawned after an Australian kid snapped a shot of his Subway footlong sub next to a ruler, and found it came up an inch short. The 2013 viral pic prompted attorneys across America to claim consumers were being cheated.
A shortened Subway “footlong” is simply the result of bread baking up thicker in the oven, not less food, courts found.
“In their haste to file suit … the lawyers neglected to consider whether the claims had any merit. They did not,” Judge Lynn Adelman wrote in an August ruling tossing the planned settlement, which would have paid consumers nothing.
The case is an example of lawsuits “being constructed by lawyers, often making up an injury that no one actually thought existed,” Frank said.
And in Los Angeles Superior Court, a case accusing Ticketmaster of inflated, deceptive fees dragged on for 13 years, netted lawyers nearly $15 million — and compensated suffering consumers with vouchers for shows like Yacht Rock Revival — “the smoothest hits of the 70s and 80s with the original artists” — or Appetite for Destruction, a Guns ‘N’ Roses tribute band.
“The list of the free concerts is like a parody,” Frank quipped of the settlement.
“The idea of a class action is to somehow protect the consumer and to make injured parties whole,” said Adam Morey of the Lawsuit Reform Alliance of New York. “That’s not happening if the majority of the money goes to the lawyers.”