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A unanimous panel of New York’s Appellate Division, 1st Department, has reversed a trial court order approving a class action in a consumer fraud case against the makers of the Brita water filtration system. In an unsigned opinion, the panel found that individual issues related to reliance and damages predominated, making a class action inappropriate. The ruling is a serious setback for the lawsuit alleging that Brita mislead its customers by claiming that its system could purify water at a cost of only 20 cents per gallon, when the real cost is much higher. Albert A. Natoli, the lead plaintiffs’ lawyer, said he might take the case to trial despite the fact that each of the remaining three individual plaintiffs can claim only nominal damages, probably in the range of $50. But, Natoli added, discovery in the case has been completed at a cost of thousands of dollars, and the potential for recovery of attorney fees and expenses remains under the state’s General Business Law if the individual plaintiffs prevail. Natoli added that he is weighing asking the New York Court of Appeals to review the class issue. The highly popular Brita system uses a cylindrical filter about 6 inches high to reduce toxic metals and other foreign substances in water. The company recommends that the filters be used for about two months before being replaced, because after 60 days the buildup of bacteria in the carbon grains within the filter can lead to an unpleasant appearance and taste in the water. The plaintiffs claim that Brita’s 20 cents per gallon figure is misleading because it is based upon an assumption that the average customer consumes 40 gallons of water every two months, when almost no one uses that much, Natoli asserted. As a consequence, he contended, the actual cost per gallon of using Brita’s filters is somewhere between 40 and 85 percent higher than 20 cents per gallon. “Brita offered the 20 cents per gallon figure without limitation,” Natoli charged, “and its customers ought to be able to rely upon it just the way motorists can count upon paying the price per gallon posted at gas stations.” But a spokesman for Brita countered that the “20 cents per gallon figure was clearly meant to convey the average cost of the typical household, which will obviously vary depending upon the average amount of water consumed and the retail price of the filter.” The information that Brita customers consume 40 gallons every two months is based upon market survey research, the spokesman added. The court’s ruling reversed an order issued by Justice Herman Cahn, certifying a statewide class action. The panel concluded in Hazelhurst v. Brita Products Co., 1167N, that individual issues, not common classwide issues, predominate on the question of whether consumers relied upon the company’s alleged misrepresentations. “A host of individual factors could have influenced a class member’s decision to purchase the product,” the panel wrote. The panel consisted of Justices David B. Saxe, John T. Buckley, Ernst Rosenberger and Alfred D. Lerner. Although the plaintiffs’ claim under General Business Law � 349 does not require a showing of reliance, that claim likewise fails, the panel concluded, because there must be an individualized showing as to damages. The amount of damages will depend, the panel wrote, on individual class members proving the extent to which they used less than the 40 gallons posited by the company over a two-month period. Steven A. Zalesin of Patterson, Belknap, Webb & Tyler represented Brita. Bradley Gross was co-counsel with Natoli for the plaintiffs. Both Natoli and Gross are solo practitioners.

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