Monday, March 12, 2012

Legal Glimpse: George Brett Being Sued Over Balance Bracelets

By Paul Anderson (@PaulD_Anderson)

KANSAS CITY--I almost bought into it. A few seasons ago I noticed baseball players rocking bracelets and necklaces that were different than anything I’d seen before. They had some bling, they were vibrant, and heck, a professional athlete was wearing it, so it must be worth a try, right? I looked online and saw they were selling from around $30 to $60. The description touted that they increased your balance, reduced stress and helped you recover from fatigue. So, I pulled the trigger and bought the “IONIC bracelet.”

To my chagrin, my balance still well, suspect. I remained pretty bad at softball, and I reverted to other things that relieved my stress. But unlike poor Seth Thompson and TryciaCarlberg, I didn’t run to a lawyer (or in the alternative, a lawyer didn’t run to me) requesting to sue the manufacturer because I was duped by an infomercial.

So the sad story goes of how the Hall of Famer George Brett is trying to keep his business, Brett Bros. Inc., from having to file bankruptcy. In February, Thompson and Carlberg filed separate class action lawsuits in Iowa and Washington District Court, respectively.

Both suits seek to certify a nationwide class of consumers that were allegedly “damaged” due to the “false and/or misleading marketing and advertising” used that lured them into buying the bracelets, according to the complaints. The lawsuits assert various counts for violating the Iowa, California and Washington Consumer Protection Acts and for unjust enrichment.

Essentially, the Acts forbid businesses from engaging in unfair and deceptive trade practices. The Acts seek to protect consumers—like you--from purchasing something you believed you were getting but in reality it was far from it, or useless. As a result of these deceptive practices, a businessprofits unjustlyat the consumer’s expense.

What allegedly unfair and deceptive practices could lead someone to buy jewelry?

According to the lawsuits, from 2008 through 2010, Brett Bro’s website, and various other websites selling the product, proclaimed that the IONIC necklaces and bracelets can relieve stress, maintain balance, improve concentration and focus, ease pain, and help recover from sports fatigue.

Could these claimants actually prevail on these claims?

Oh yes, yes indeed, just ask Power Balance how it’s feeling after being whacked with several similar lawsuits last year. After settling and conceding, “we may have gotten ahead of ourselves with claims about our first product,” Power Balancereportedly was forced to file Chapter 11 Bankruptcy in order to restructure its assets and liabilities.

The Power Balance settlement provided the opportunity for each consumer that purchased a bracelet with a refund, including the cost of shipping; the class representative (i.e. what Thompson and Carlberg are seeking to be) with no more than$500; and the plaintiffs’ lawyer with no more than $1 million dollars. Power Balance eventually ended up forking out over $57 million dollars. Power Balance was also sued in Europe and Australia, and was fined by a French Protection Consumer Agency for $350,000 Euros due to similar false advertising. 

However, unlike the Power Balance case, which preliminarily settled three months after the lawsuit was filed, Brett Bros. seems willing to fight to protect its purported rights. In the Power Balance cases, the defendants did not file an Answer denying the plaintiffs’ claims but instead, after mediation, determined that the plaintiffs’ cases may have merit and decided to enter into settlement agreements.

Brett Bros. decided to lawyer up and filed an Answer on March 6th denying all claims, and argued that it acted in good faith and in accordance with industry standards. The Answer also asserts 44 affirmative defenses and requests a jury trial. Whether Brett Bro’s will end up settling or risking multiple trials is unknown, but in either event, it will be a calculated risk the Company and lawyers will be mulling over in the coming weeks and months. For now, it looks like Brett Bros. is willing to fight it out, but in the high stakes realm of complex litigation, strategies can change quickly. The Power Balance lawsuits and settlement will surely be a somber reminder that the Company could be in serious trouble.

Paul D. Anderson is a third-year law student at the University of Missouri-Kansas City. He is the creator/editor of You can follow him on twitter @PaulD_Anderson to stay up-to-date on the concussion and Brett Bros. lawsuits. Paul has been doing very good work on the NFL concussion issue and if that is of interest, I urge you to check out his site.

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