Cueto gives preliminary approval in Kmart class action

By Amelia Flood | Apr 7, 2010

Cueto One of several class actions suits filed in St. Clair County over "Airborne" knockoffs is on track to settle for less than $200,000.


One of several class actions suits filed in St. Clair County over "Airborne" knockoffs is on track to settle for less than $200,000.

A case against Kmart's immune supplement "Germ Defense" got an initial settlement approval in February by Circuit Judge Lloyd Cueto after settlement talks in the 2008 case concluded in November.

Attorneys for lead plaintiff Larry Adams -- Kevin Hoerner and Brian Kreisler of Belleville, Paul Weiss of Chicago and Richard Burke of St. Louis -- filed a motion asking for simultaneous certification and preliminary of approval of the settlement in January.

Under the proposed settlement, Kmart and Sears Roebuck and Co. would pay out up to $130,000 in vouchers to class members. The vouchers, up to two per claimant, total $5 each and are good toward any $20 Kmart purchase.

The class counsel will receive $55,000 in fees and costs. Adams would get $1,500 to be paid out of the attorney fees.

Cueto authorized preliminary approval Feb. 9. He has not yet ordered final approval.

As part of the settlement, the plaintiff class was allowed to instantly file an amended complaint amending the class of the suit to a nationwide class. That complaint is subject to review by the defense, however.

Two other suits over Target and CVS pharmacy's versions of the immune system supplement have remained pending but with no recent activity.

All of the immune supplement class actions were filed at the end of 2008 by the same team of attorneys.

The claims in all of the class actions, although led by different lead plaintiffs, have been the same. The suits allege that the makers of the Airborne generics misled the public and sold a product that did not boost the immune system. The classes sued on the basis of violations of consumer fraud laws and unjust enrichment. The suits seek damages of no more than $75,000 per class member and other relief.

Two other class actions were filed by lead plaintiffs Brian Buehlhorn and Iean Finley against Target and CVS Pharmacies respectively.

There have been no filings in the Buehlhorn case since Target filed its answer to his claims in October 2009. Buehlhorn's suit encompasses Illinois, Minnesota, California and Florida to date.

Finley's suit against CVS was certified by Cueto Jan. 25. There have been no filings in the two months since it was certified.

St. Clair County Circuit Judge Patrick Young presides over the Buehlhorn suit against Target.

In the Kmart suit, the defendants are represented by William Knapp of Edwardsville and Mark Brandt of Chicago.

In the Target and CVS suits, Robert Bassett and others represent the defendants.

The cases are case numbers:

Kmart is St. Clair case number 08-L-599.

Finley's suit is case number 08-L-616.

Buehlhorn's suit is case number 08-L-667.

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