A federal judge has flushed a class action alleging Procter & Gamble misled consumers into believing they’d won a year’s supply of Charmin toilet paper.
Jacquelin Pettitt accused P&G of violating the Illinois Prizes and Gifts Act, the Illinois Consumer Fraud Act and committing breach of contract. In an opinion filed June 4, U.S. District Judge Robert Gettleman dismissed the class aspect of the complaint, finding it didn’t square with rights waived by people who entered the contest.
“No matter the outcome of this case, plaintiff’s prize is bound to be flushed down the drain,” Gettleman wrote, detailing the monthly sweepstakes through which customers provided email addresses and answered questions about household shopping habits and the Charmin bear cartoon characters.
Pettitt said she got an email Dec. 16 indicating she’d won the top prize: 12 monthly deliveries of an 18-pack of Chamin Super Mega toilet paper. But about eight hours later, P&G emailed to say the original message was a mistake and that she’d be told how to claim a $2 Charmin coupon. The next day, another email offered two $25 coupons.
Gettleman opened his analysis by noting P&G technically moved to strike Pettitt’s class allegations, but noted he would instead construe the filing as a request for dismissal of that aspect of the claim. He said the class allegations were neither a defense nor “redundant, immaterial, impertinent or scandalous,” terms usually applied when considering motions to strike in cases where class allegations are seen as legal clutter.
P&G noted its sweepstakes rules specifically instructed participants that any disputes would be resolved individually. Pettitt said that waiver was unconscionable based on it being allegedly buried in the middle of the “Governing Law” provision, as well as because enforcing the terms “would deprive customers of a cost- effective mechanism to obtain a remedy for injuries involving relatively small damages,” Gettleman wrote.
Although he acknowledged the sweepstakes terms and conditions were “not a beacon of clarity,” Gettleman said the Charmin legalese wasn’t as misleading as the examples Pettitt cited. He further pointed to a 2006 Illinois Supreme Court opinion, Kinkel v. Cingular Wireless, in which the “court observed when upholding the procedural conscionability of an arbitration clause and class action waiver that it described as ‘nonnegotiable and presented in fine print in language that the average consumer might not fully understand,’ such contracts, ‘are a fact of modern life.’ ”
In the same case, the court also held the legality of such waivers are evaluated individually based on several relevant circumstances. With respect to the Charmin sweepstakes, Gettleman wrote, the Prizes and Gift Act gives consumers suitable remedies outside of class action, such as recovering either $500 or twice whatever money is lost, along with compensation for reasonable legal fees and court costs.
Given that the provision isn’t unconscionable on grounds of procedure or substance, Gettleman wrote, he dismissed the class allegations. He then remanded the complaint to Cook County Circuit Court since the remaining claims constitute an individual action involving an amount below the $75,000 minimum threshold for removal to federal court.
Pettitt has been represented in the action by attorney Daniel A. Edelman, Tara L. Goodwin and Alexandra Huzyk, of the firm of Edelman Combs Latturner & Goodwin, of Chicago.
P&G has been represented by attorneys P. Russell Perdew and Alyssa Gregory, of Troutman Pepper Locke, of Chicago.
