The grass may be greener, but is it thicker?
Plaintiffs in a class action against grass seed and lawn care company Scotts Co. may get to put that question to the test after U.S. District Judge Vincent Briccetti of the Southern District of New York denied enough of the defendant’s dismissals to allow the case to proceed.
In his 38-page decision in In re: Scotts EZ Seed Litigation, 12-cv-04727, Briccetti tackled several outstanding motions in the suit, which began in 2012. Plaintiffs have brought false advertising, breach of warranty and unjust enrichment claims under both New York and California law. The plaintiffs allege a claim that Scotts Turf Builder EZ Seed yields lawns that are 50 percent thicker with half the water was untrue. Class certification in the case created two groups, segmented by state.
The court’s partial denial of a defense motion to dismiss gave a green light to plaintiffs’ state-law express warranty and unjust enrichment claims.
Briccetti also preserved significant claims under New York’s General Business Law Sections 349 and 350, after defendants argued changes to state and federal law had eliminated the availability for statutory damages in class actions. Bursor & Fisher name attorney Scott Bursor called the decision “a significant victory” for his clients in the New York class seeking $545.8 million in statutory damages.
“That claim will now be presented at a trial,” he said in an email.
But Briccetti agreed with the defense that some claims, such as one based on the California Food and Agricultural Code, didn’t hold up.
Hunton & Williams partner Shawn Regan, representing the Scotts defendants, did not respond to requests for comment.
Briccetti also dealt with nine separate expert witness objections from both sides. Only one objection—to the testimony of a plaintiffs class-damages expert—was granted in part, while all the others were denied. Defendants argued that proposed expert witness Colin Weir’s methodologies for analysis of class damages warranted his exclusion. Briccetti agreed with objections to two of the methods. But Briccetti denied the remaining objection and said he would allow the third method, based on court-approved work done by a separate witness, to be submitted to the jury.
All other motions, including defendants’ motion to decertify the class and a number of declaration and statement objections, were denied by Briccetti. A status conference has been set for Sept. 22 to set a trial date and schedule submissions.