EAST ST. LOUIS – Alabama lawyers making little progress in Illinois on a national class action claim that mattresses released fiberglass started an action in California for the other 49 states.
They sued South Korean mattress maker Zinus in Sacramento in July, after District Judge David Dugan expressed doubts about a national action.
No one reported the California action to Dugan until Zinus reacted to a document that attorney James Radcliffe of Belleville filed for plaintiffs on Nov. 30.
Radcliffe, local counsel for the Alabama lawyers, filed it as a stipulation that plaintiffs would no longer seek a nationwide class action.
Zinus counsel Zachary Merkle of St. Louis denied that Zinus agreed to a stipulation on Dec. 2 and claimed there was a story behind it that plaintiffs didn’t reflect.
Merkle claimed that after Dugan expressed doubts about a national action, counsel for plaintiffs filed a copycat action in California.
He claimed Zinus moved to dismiss the complaint as a duplicate and Radcliffe filed his stipulation in Illinois on the day a response was due in California.
He claimed plaintiffs gave counsel a purported basis to inform the California court that the duplication disappeared. He called it irregular, improper and abusive.
Radcliffe and colleague Christopher Cueto filed the Illinois suit for Amanda Chandler and Robert Durham in 2020.
Gary Anderson, Gregory Cade, Kevin McKie and Daniel Snyder of Environmental Litigation Group in Birmingham also represented Chandler and Durham.
At a hearing last year, Zinus counsel Robert Katerberg of Washington moved to strike class allegations.
“Anyone who’s bought anything on Amazon knows that before you buy the product, when you’re browsing, you get to see what all the other customers have posted about the product," Zaterberg said.
“It doesn’t get any more open and notorious than that and it’s inconceivable that a fraud claim for failure to disclose could be based on this.
“They took the cover off the mattress which goes against the instructions on the product and then let their kids jump on the exposed fiberglass sleeve to a point where you can infer it must have ripped. That’s not a situation that implied warranty is designed to deal with.”
Dugan allowed amendment and plaintiffs produced a complaint with 20 Illinois plaintiffs and 180 from other states.
Zinus challenged jurisdiction over plaintiffs from other states and plaintiffs claimed Zinus waived the argument.
At a hearing this May, Katerberg said Zinus raised it at the first opportunity.
Cueto said, “This is one of those things that just didn’t read as persuasively, very candidly, when we filed this. Once it was fully briefed it just didn’t read as strong as what I thought it was going to.”
Dugan asked how to adjudicate a claim for breach of warranty to replace a mattress or money back versus spending 10 to 15 thousand dollars in remediation.
Radcliffe said he could handle secondary issues by individual hearings.
Dugan asked if that didn’t run counter to the notion of class actions.
Radcliffe said they could organize it by square footage. He said they represented more than 4,000 individuals and Zinus sold 10 million fiberglass mattresses in the last six years.
Dugan said he saw a lot of warts and he could be replete with plaintiffs taking up his docket until retirement on hearings and individual damages.
He issued an order on June 10 dismissing claims of plaintiffs from other states and most claims of Illinois plaintiffs. He allowed claims of implied warranty, strict liability, negligence, and suppression or concealment of material facts.
He allowed amendments. and Cueto filed them for Chandler, Durham, and seven other plaintiffs on July 1.
They sought to represent all individuals in the U.S. who purchased or used a Zinus mattress that contained fiberglass.
"Alternatively, this is a consumer class action on behalf of all individuals in Illinois who purchased or used a mattress containing fiberglass manufactured or distributed by Zinus," Cueto wrote.
On July 7, Environmental Litigation Group sued Zinus at district court in Sacramento on behalf of five plaintiffs Dugan dismissed.
Zinus counsel Sharon Mayo of San Francisco moved to dismiss on Nov. 2 and attached the Illinois pleadings.
She claimed a rule of first to file empowers courts to prevent duplicate litigation.
She argued that at a minimum the court should stay proceedings until Dugan decides class certification.
She also argued that if he denies it his reasons would likely bear on the California case.
Snyder of Alabama opposed the motion on Nov. 30, stating he filed a stipulation in Illinois making clear plaintiffs there no longer sought national certification.
He claimed California plaintiffs stipulated that their national classes would exude members of any Illinois classes.
He claimed no similarities existed between Illinois and California classes. He claimed the Illinois case involved Illinois law and the California case didn’t.
On the same date, Radcliffe filed his stipulation withdrawing national allegations from the Illinois case.
Merkle objected and defined stipulation as voluntary agreement between opposing parties concerning some relevant point.
“Plaintiffs did not even give Zinus’s counsel any advance notice that they were going to be filing the ‘stipulation,’ much less ask Zinus’s counsel to cosign it,” Merkle wrote.
“Plaintiffs have always purported to represent nationwide classes and the parties have exchanged in extensive research, briefing, and discovery on that basis at considerable effort and expense.”
He claimed plaintiffs could have withdrawn national classes in July.
He claimed they couldn’t withdraw a huge portion of the complaint and evade confrontation through a unilateral filing for a tactical edge in another case.
Dugan has set a May 23 deadline for plaintiffs to move for class certification
In Sacramento, Chief District Judge Kimberly Mueller has set a Feb. 17 hearing on Zinus’s motion to dismiss.