Phyllis Kupferstein

Martin Perron

California voters rewrote their consumer protection law last year to stop lawsuits that benefit attorneys only.

Proposition 64, backed by Californians to Stop Shakedown Lawsuits, was intended to change the legal environment which turned lawyers into bounty hunters, "stalking innocent small businesses that create jobs and opportunity," according to California Gov. Arnold Schwarzenegger.

In the process, the initiative that passed in November ended up draining the life from a Barbie doll dispute that took shape five-and-a-half years ago in Madison County.

Two months ago, Circuit Judge Philip Kardis decertified a class action complaint filed in 1999 by Madison County resident Pamela Cunningham and Cook County resident Reet Caldwell against Mattel. They claimed the dollmaker deceptively advertised certain Barbie dolls as limited editions, collector editions, and special editions.

Alleging consumer fraud and breach of contract, the plaintiffs claimed they were damaged by purchasing a product with no value or far less value than the amounts they paid.

Cunningham was miffed because she bought a $40 doll from a Traveling Sisters set through an "exclusive" offer in a retail catalog, only to find another retailer selling the doll without the Traveling Sisters label.

On another occasion she tried to buy Winter, the first doll in a Four Seasons series. Informed that Winter was no longer available, she ordered Spring for about $75. According to her complaint, Mattel then contacted her and offered Winter to her.

When she tried to buy Summer through a catalog, the retailer told her it was not available. Later, the retailer sent her an offer to buy Summer with a return postcard. Still later, she saw Summer at a reduced price through another vendor.

Decertification of Cunningham and Cook's case is not the end of the Barbie doll story. It merely opens a new chapter.

For the moment, Cunningham and Caldwell pursue their claims as individuals. Kardis has set a hearing May 29 on a motion they have filed for summary judgment.

But apparently, the plaintiffs have not given up the notion of a class action. Defense attorney Troy Bozarth of Edwardsville wrote in a Feb. 16 letter that plaintiffs maintained that they could proceed with a class action.

Class certification

When Judge Kardis certified a national class action on Sept. 2, 2003, he refused to apply the Illinois Consumer Fraud Act, relying instead entirely on California's Unfair Competition Law.

In a nutshell, Kardis understood that California law required nothing. Many voters in the golden state understood that too.

He wrote that Mattel’s headquarters were there, and the company sometimes sold directly to consumers from there--whether or not they lived in the land of the sun.

Kardis also wrote that California law subjected consumers to a much lower burden of proof than other states, requiring minimal proof of causation and injury.

Even a true statement might violate California law, Kardis explained, and that factual questions concerning the reliance of individual purchasers on Mattel’s description were less significant, if they were relevant at all, under California law.

"Subjective feelings" of buyers were not determinative under California law, according to Kardis. He wrote that no defense under statute of limitations would apply.

Bickering attorneys

Attorneys in the case have bickered like children over a child's product, generating a case file four feet thick.

Discovery disputes dragged for two years after the suit was initially filed.

Plaintiff attorney Martin Perron of St. Louis blamed Mattel for delays and moved Kardis to impose sanctions.

Mattel replied that it had produced thousands of pages in compliance with court orders.

“We need to get it done and obviously without a hammer it is not going to get done," Kardis said at a hearing on the motion. "And I would be more than happy to supply the hammer."

Ten months later Perron asked for another hearing on sanctions. He wrote that Mattel had used every mechanism available to delay or avoid a ruling on the motion.

Mattel attorney Phyllis Kupferstein of Los Angeles responded that, “Plaintiffs’ motion is filled with lies and should be denied.” Kardis did not set another hearing.

When Perron presented St. Louis University associate marketing professor James Fisher as an expert, Mattel attorney Diane Hutnyan of Los Angeles asked Fisher in a deposition if all customers understood limited edition the same way. Fisher said customers generally understood that it meant a product was produced in relatively small numbers.

Hutnyan asked if 100,000 dolls was a relatively small number.

Fisher said, "No."

Hutnyan asked if 50,000 was.

Again, Fisher replied, "No."

Hutnyan asked if 30,000 was.

“I think you are - you are trying - well…” Fisher stammered. “I am not going to offer a precise number.”

At a hearing in 2002, Perron insisted that limited edition meant a relatively small number.

“Relative to what?” Kardis asked and then dismissed the complaint but granted leave for Perron to amend it.

Perron filed an amended complaint based on California’s Unfair Competition Law. Kardis struck all references in the complaint to collector editions and special editions, ruling that only limited edition dolls remained at issue.

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