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The class notification procedures proposed by plaintiffs and defendants in a class action suit against the manufacturers of Cold-Eeze brand zinc lozenges have been disapproved by a Philadelphia Common Pleas Court judge. Notably, Judge Albert W. Sheppard of the Commerce Case Management Program ruled in Tesauro v. The Quigley Corp. that the defendant manufacturer is not required to post notice of the suit to potential class members on its Web site. “The potential prejudice to defendant outweighs plaintiffs’ desire to minimize the expense of sending notice through defendant’s established methods of communication as provided in Pa.R.Civ.P. 1712(c),” Sheppard wrote. The plaintiffs in Tesauro claim that, despite the claims in Quigley’s ads for its Cold-Eeze product, the lozenges did not prevent or lessen the duration of the common cold. In 1999, the Federal Trade Commission filed a complaint against Doylestown, Pa.-based Quigley for false advertising and misleading ads. In its radio, television and Internet ads, the company claimed that Cold-Eeze was clinically proven to prevent or reduce the severity of colds and flu. Later that year, the FTC and Quigley signed a consent order in which Quigley admitted to no violation of the law but promised to stop making health claims about its product. In 2001, Jason Tesauro and Elizabeth Ely filed suit against Quigley, claiming that Cold-Eeze is not merchantable, that it malfunctioned in some manner or suffered from a defect, and that the defendants therefore received an unlawful premium paid by consumers of Cold-Eeze. The plaintiffs then sought and received class action certification for those claims. Earlier this year, Tesauro and Quigley both submitted proposed procedures for notification to the court. In his decision, Sheppard turned to Rule 1712 of the Pennsylvania Rules of Civil Procedure that sets forth the provisions for providing notice to members of a certified class. In part, Rule 1712 reads: “In determining the type and content of notice to be used and the members to be notified, the court shall consider the extent and nature of the class, the relief requested, the cost of notifying the members and the possible prejudice to be suffered by members of the class or by other parties if notice is not received. … The court shall require notice to be given through methods reasonably calculated to inform members of the class of the pendency of the action.” According to the opinion, the plaintiffs proposed two methods of providing notice to members of the class. One suggested posting an appropriately worded notice on Quigley’s Web site. The second suggested notifying the class through print publication in a magazine or journal with a national circulation. Quigley argued that its Web site was not the proper medium for notice because there is no evidence that any class members who purchased Cold-Eeze and found it to be defective ever used Quigley’s Web site. Instead, Quigley suggested, the list of about 100 people who returned Cold-Eeze because they were dissatisfied with the performance of the product could be used to give individual notice. But Sheppard said that the proposals by both parties were inadequate. “The cases relied upon by plaintiffs do not support publishing notice on defendant’s Web site,” Sheppard said. Tesauro cited Greer v. Shapiro & Kreisman, an Eastern District case that allowed for individual notification by first-class mail to members of the class who were easy to identify and additional notification by publication through print media outlets to target other members. Sheppard also noted that other cases Tesauro cited support publication of notice to potential class members on the Internet, but none of the cases required the defendant to post the notice on its Web site. “Moreover, plaintiffs’ proposed publication of notice on defendants’ Web site may be targeting shareholders to achieve a negative reaction or to otherwise prejudice defendant, rather than to provide notice to class members,” Sheppard wrote. Sheppard found that sending notice to the defendant’s list of dissatisfied consumers, a news service on the Internet and national publications could achieve notification. Quigley argued that notification in a national publication was unwarranted because the publications would reach individuals outside of Pennsylvania. But, Sheppard said, the class includes nonresidents of Pennsylvania because it encompasses all purchasers of Cold-Eeze. “Here, notice by publication through national print media or over the Internet would meet the requirements of due process provided the form of notice was properly worded.” Sheppard then ruled that the content of the proposed notifications of both parties was also insufficient and did not adequately address the class it was intended to inform. “Neither proposed form sufficiently sets forth the nature of the claim,” Sheppard wrote. “Also, the opt-out procedures have to explain more fully the consequences of failure to opt out of the class.” After denying approval of the proposed notices, Sheppard then ordered both parties to submit new forms of notice consistent with his opinion.

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