Monday, August 10, 2015

overclaiming study results to apply to unstudied product can be false/misleading

In re Riddell Concussion Reduction Litig., No. 13–7585, 2015 WL 4640425 (D.N.J. Aug. 3, 2015)
The plaintiffs sued Riddell for marketing football helmets based on allegedly false or misleading claims that the helmets were equipped with unique concussion reduction technology, and that the helmets could reduce concussions by as much as 31%. Plaintiffs alleged that they paid a $50 price premium for Riddell’s helmets even though those helmets offer no greater protection against concussions than other helmets.
The court previously granted a motion to dismiss; here it sustained in part the amended complaint, based on statements that Riddell made about helments that weren’t included in the study on which it based its claims.  Starting in 2002, the University of Pittsburgh Medical Center (UPMC) compared concussion rates among high school athletes who wore the Riddell Revolution helmet with those who wore “traditional helmets.” The study, published in a peer-reviewed neurology journal, found that the Revolution helmet reduced concussions by 31% as compared to traditional helmets.  Plaintiffs offered numerous reasons why the UPMC was fundamentally flawed and unreliable, including conflicts of interest: Riddell provided a grant to pay the salaries of the two primary authors of the study, while a third author was a Riddell employee. Moreover, plaintiffs alleged that the traditional helmets were not new, but refurbished; that the participants were not randomly assigned helmets; that the authors disregarded 15% of the collected data without sufficient explanation and manipulated other data to reach a pre-determined conclusion; and that initial data failed to show a statistically significant difference between the helmets. Plaintiffs found corroboration in the criticisms of several peer reviewers. UPMC allegedly instructed Riddell “that this data should not be use[d] as a marketing ploy or marketing tactic from a scientific paper that was not for those purposes” and that Riddell shouldn’t use the study to say that the Revolution helmet provides better protection, but Riddell ignored this admonition. UPMC allegedly said that Riddell should refer to a 2.3% reduction in absolute risk, as opposed to a 31% reduction in relative risk.  Further, plaintiffs alleged that other studies showed, and the majority of independent experts agreed, that Riddell’s claims were false or misleading.
Plaintiffs also discussed an FTC investigation, which concluded that Riddell lacked substantiation for its claims, because the UPMC study didn’t prove a 31% reduction in concussion risk, and didn’t test youth helmets.  The FTC emphasized that the helmets weren’t randomly distributed, and that the average age of the kids who got concussions was different in the test and control groups.  The FTC ultimately declined to recommend enforcement action because Riddell had abandoned its 31% reduction claim and a Virginia Tech study appeared to show that “Revolution varsity helmets perform much better than Riddell’s ‘traditional’ VSR–4 helmet in reducing concussion risks attributable to linear acceleration, one of the primary forces to which helmets are subject.”
Some of Riddell’s adds explicitly referred to a 31% reduction in concussions, such as “Research shows a 31% reductions in concussions in players wearing Riddell Revolution Helmets.” Riddell allegedly made the same 31% reduction claims when advertising other helmets in the Revolution “family.”
The court noted that another opinion refusing to dismiss similar claims against Riddell is now vacated because of the terrible, terrible opinion in In re GNC.  Midwestern Midget Football Club Inc. v. Riddell, Inc., Civ. 15–00244, 2015 WL 3797107 (S.D.W. Va. June 18, 2015) (West Virginia Consumer Credit and Protection Act).  But, the court noted, In re GNC purports to be about the Lanham Act (even though it was evaluating state consumer protection law), and thus the court didn’t consider it binding in this state consumer protection case.
Although there was some variation in the marketing statements plaintiffs identified, they fell into three categories: (1) 31% reduction in concussions; (2) claims about “concussion reduction technology;” and 3) statements about youth helmets.  Plaintiffs sufficiently identified the statements at issue, and adequately pled causation, reliance, and injury.  Alleging the exact or approximate price they paid, plus the existence of a $50 price premium, sufficed; plaintiffs didn’t need to plead the exact price of every helmet they could have purchased but did not.
But were the claims plausibly false or misleading?  No, for the 31% reduction claims.  Plaintiffs didn’t allege that Riddell mischaracterized the UPMC study’s findings, but rather challenged the quality of the study itself.  “[I]dentifying flaws in a scientific study does not necessarily make marketing statements based on such a study false or misleading…. [P]ublication of the study’s results in a respected, peer-reviewed journal provides some evidence that the study is in fact reliable.”  Plaintiffs didn’t identify any scientific study that showed the 31% reduction claim to be false or misleading with respect to Riddell helmets specifically. The same was true of some of the “concussion reduction technology” claims: plaintiffs didn’t plead that different Riddell helmets contained different design features than those in the helmet tested in the UPMC study.
However, more general references to “concussion reduction technology” that protected young players better than other helmets were plausibly false and misleading, because of plainiffs’ allegations that there were no material differences between Riddell helmets and other football helmets available to consumers.  A University of Wisconsin study, which concluded that no brand of football helmet was comparatively better at reducing the incidence of concussions, lent plausibility to these allegations. “[T]he phrase ‘concussion reduction technology’ necessarily implies the ability to reduce concussions.”
Moreover, claims made for youth helmets that weren’t the UPMC-tested Revolution helmet were also plausibly misleading or deceptive, since the UPMC study didn’t include any youth helmets.
Finally, the court dismissed any omission-based claims.  Plaintiffs alleged that Riddell knew its helmets couldn’t reduce concussions.  But they didn’t identify a discrete omission that Riddell failed to disclose, and most of the ads included a reference to the article discussing the UPMC study, so “it is questionable whether the supposed flaws in the UPMC study were actually concealed.”
In the end, various New Jersey, Florida, Arizona, Illinois, and California claims survived.

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