In re Dry Max Pampers Litigation

Case # 10-cv-00301
Case Name In re Dry Max Pampers Litigation
Jurisdiction US District Court for S.D. OH

Plaintiffs allege that disposable diapers sold by the Defendants which contained "Dry Max" technology caused severe skin reactions in babies who wore the products.  The skin of children under the age of two is especially vulnerable to irritation and infection from chemical and microbial agents, such as those in the Dry Max products.  Consumers reasonably purchased these products expecting that they would protect their babies, not cause skin conditions.

Final Approval Date 09/28/2011
  1. Final Approval granted.
  2. Objector Greenberg (through Attorney Frank and his CCAF attorneys) appealed the Final Approval.
  3. The Sixth Circuit reversed the decision of the District Court, finding that the injunctive relief did not provide a benefit to the class, as well as that the class representative awards were excessive.
  4. Class counsel chose to further pursue the claims as a consolidated individual action, instead of as a class action.
Dismissal of Last Appeal 08/05/2013
Attachments Docket Report.pdf
Consolidated Class Action Complaint.pdf
Preliminary Approval Order.pdf
Motion for Attorneys' Fees.pdf
Plaintiffs' Response to Objections.pdf
Joint Motion for Final Approval.pdf
Final Approval Order.pdf
Order Granting Plaintiffs' Motion for Attorneys' Fees.pdf
Appellate Ruling on Greenberg Appeal.pdf
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Objection of Daniel Greenberg

Objectors Daniel Greenberg
Signers Theodore J. Froncek
Adam E. Schulman
Attorneys Theodore J. Froncek
Adam E. Schulman
Theodore H. Frank
  1. Class cannot be certified, due to insufficient protections for absent class members.
    • In particular, absent class members are not able to opt out.
  2. Release is over broad.
  3. Class definition is overly broad.
  4. Attorneys' fees are excessive when compared to injunctive relief.
    • Fee agreement contains signs of self-dealing.
  5. Notice is inadequate.
    • Fee agreement was not made adequately available for class members to review.
    • Notice does not indicate the total value of the injunctive relief.
    • Cy pres recipient is not named.
    • Published notice reached an insufficient number of prospective class members.
  6. Only beneficiaries are class members who have suffered no injury.

The Appellate Court reversed and remanded the decision of the District Court, based on the appeal of Objector Greenberg.  In particular, the Sixth Circuit found that the injunctive relief was meaningless, since it merely directed class members to contact their child's doctor, something that any parent would do anyway when a severe skin reaction was observed.  Class members were also able to exchange one box of diapers, as long as they retained the original receipt and the UPC code from the package (a recall provision that the Court noted the Defendant had taken on their own previously.)  Finally, the Court found that incentive awards paid to class representatives compromised their duty to act as guardians for the class.   The Sixth Circuit found Objector Greenberg's arguments to be "numerous, detailed, and substantive" (see Appellate Ruling, page 4).

Attachments Objection of Daniel Greenberg.pdf
Froncek Appearance for Objector Greenberg.pdf
Schulman Appearance for Objector Greenberg.pdf
Appeal of Objector Greenberg.pdf
Frank Appearance for Objector-Appellant Greenberg.pdf
Appellate Ruling on Greenberg Appeal.pdf
Greenberg Appeal Docket.pdf
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Objection of Bonner Walsh

Objectors Bonner Walsh
Signers Bonner Walsh
  1. The settlement cannot be certified under Rule 23(b)(2).
  2. Compensation for class members is inadequate.
  3. Injunctive relief is inconsequential, at best.
  4. Attorneys' fees are excessive.
    • Class members did not have adequate time to review the fee application.
    • Relief for the class does not justify the size of the fee request.

NOTE:  Objector Walsh works for Weinstein Law, the law office of serially objecting attorney Jeffrey Weinstein.

Attachments Objection of Bonner Walsh.pdf
Objection of Bonner Walsh (Attorneys' Fees).pdf
Surreply of Objector Walsh.pdf
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Objection of Donald K. Nace

Objectors Donald K. Nace
Signers Donald K. Nace
  1. Attorneys' fees are excessive, when compared to relief available to the class.
  2. Class representative awards are excessive.
    • Settlement does not disclose how much money is going to class representatives, merely noting that their award is for "$1,000 per affected child."
  3. Injunctive relief is illusory, in that warnings on the Defendant's websites and packaging is only for a limited time and is not posted in a timely manner.
  4. Cy pres award is inappropriate, given that the recipient is not named.
  5. Money-back guarantee provisions only benefit future purchasers, not class members who have been previously harmed.
Attachments Objection of Donald K. Nace.pdf
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