A class action lawsuit is a procedural device that permits one or more individuals to file and prosecute a lawsuit on behalf of a larger group, or “class”. Two factors are almost always present for every class action:
The procedure allows courts to manage lawsuits that would otherwise be unmanageable if each class member (individuals who have suffered the same wrong at the hands of the defendant) were required to be joined in the lawsuit as a named plaintiff. See Hansberry v. Lee , 311 U.S. 32, 41, 61 S.Ct. 115, 118 (1940). Class actions allow individuals, whose damages are too small to warrant an individual lawsuit, to try their cases together. As a result, class actions can oftentimes be the only practical way to stop illegal practices and recover money on behalf of victims. Class action suits have allowed individual people to stand up against the most powerful industries in the world and to hold them accountable for their actions.
On April 22, 2015, one such class action lawsuit was filed against an athletic apparel company known as Tommie Copper, a company that was founded in 2010. According to the Tommie Copper  website:
“The comfortable compression apparel that Tommie Copper pioneered has helped over one million people feel better, recover and get back to doing what they love. Tommie Copper’s compression sleeves and apparel are designed to be comfortably worn all day long. The 4 directional compression aids muscle recovery and offers relief from everyday aches and pains. 100% of our compression garments are made with our CopperZnergy™ proprietary fabric infused with copper and zinc. CopperZnergy eliminates odors caused by microbes on the fabric and offers UPF 50+ protection from the sun’s harmful UV rays for skin health benefits.”
Tommie Copper advertised that its line of athletic wear speeds up muscle and joint recovery times, and relieves aches and pains. The company says its “PRO+IONIC copper fabric releases ions, which may help reduce the oxidant in the body and is a natural, permanent anti-bacterial agent with skin benefits.” Tommie Copper claimed that the “patented 56 percent copper-infused nylon yarn” and “exclusive multi-directional compression technology” in its compression garments could effectively treat chronic or severe pain, including pain caused by arthritis and multiple sclerosis. In some cases, the company also claimed that the garments were more effective than drugs or surgery.
The class action lawsuit that was filed against Tommie Copper alleges, in part, that the “copper-infused” athletic apparel do not provide the physical health benefits that are advertised by the manufacturer. The case alleges violations of New York’s Deceptive Trade Practices Law and Iowa’s Private Right of Action for Consumer Frauds Act, as well as breach of express warranty, negligent misrepresentation, and unjust enrichment and is known as Lucero, et al. v. Tommie Copper Inc., et al. and Potzner v. Tommie Copper Inc., Case Nos. 1:15-cv-06055 and 7:15-cv-03183, in the U.S. District Court for the Southern District of New York. The complaint alleges that Tommie Copper has made the following claims for its copper-infused apparel:
The complaint also claims that Tommie Copper’s advertising campaign focused on these representations about its copper fabric and features the recoveries of injured athletes although there is no scientific evidence to support Tommie Copper’s claims. To the contrary, the lawsuit suggests, copper cannot permeate the skin unless combined with a peptide, a small protein. The complaint also sets forth that Tommie Copper deceived millions of customers with its false advertising and that their misleading statements, “injured Plaintiff and the Class (defined herein) by inducing them to purchase a worthless and/or overpriced product. Tommie Copper does so with one goal in mind- to reap enormous profits at the expense of unsuspecting consumers. Tommie Copper, however, should be held accountable and liable for its deceptive conduct in the marketing and sale of Tommie Copper Products.”
In November of 2015, a second type of lawsuit, not a class action, was also filed against Tommie Copper by the Federal Trade Commission (FTC). Federal Trade Commission v. Tommie Copper Inc., et al., Case No.7:15-cv-09304, in the U.S. District Court for the Southern District of New York. The FTC lawsuit includes several transcripts  setting forth the terms of various infomercials as well as other written materials where Tommie Copper made claims regarding the health benefits of their various products. The lawsuit alleges , in part, that claims in advertising made by Tommie Copper constituted deceptive acts or practices and the making of false advertisements, in or affecting commerce, in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52 . Although there appears to be some science to support the premise that copper surfaces can kill bacteria and compression helps to aid with circulation, there are no scientific studies to support Tommie Copper’s claim that copper-infused clothing treats pain, inflammation or other symptoms of arthritis.
On December 1, 2015, less than one week after the filing of the Federal Trade Commission  lawsuit, the FTC made an announcement regarding an agreement with Tommie Copper as follows:
“Athletic apparel company Tommie Copper, Inc. and its founder have agreed to pay $1.35 million to settle Federal Trade Commission charges that they deceptively advertised the company’s copper-infused compression clothing would relieve severe and chronic pain and inflammation caused by arthritis and other diseases.
Tommie Copper’s proposed settlement with the FTC also requires the company and its founder and chairman Thomas Kallish to have competent and reliable scientific evidence before making future claims about pain relief, disease treatment, or health benefits.
According to the FTC’s complaint, since April 2011, Tommie Copper, based in Mt. Kisco, New York, and Kallish have advertised Tommie Copper copper-infused compression garments in infomercials, brochures, social media, and print media such as Arthritis Today magazine. The garments, including sleeves, braces, shirts and socks, range in price from $29.95 to $69.50.
The company’s infomercials featured talk show host Montel Williams declaring, “Tommie Copper truly is pain relief without a pill.” Company ads featured celebrity and consumer testimonials claiming that Tommie Copper garments alleviated pain caused by multiple sclerosis, arthritis, and fibromyalgia; and could provide pain relief comparable to, or better than, drugs or surgery. The FTC alleges that the defendants’ claims were false or unsubstantiated.
The proposed stipulated federal court order imposes an $86.8 million judgment against the defendants, which will be partially suspended upon payment of $1.35 million by the defendants. If the defendants are found to have misrepresented their financial condition, the total amount will immediately come due.”
The judgment amount, of $1.35 million, appears to be approximately 1.5% of the company’s revenue of $87 million, generated between 2011 and 2014. The full extent of the negotiated agreement between the FTC and Tommie Copper has been entered in the FTC in the form of a document entitled Stipulated Final Judgment  and Order for Permanent Injunction and Equitable Relief. That agreement provides, in part, that the defendant, Tommie Copper, is:
“permanently restrained and enjoined from making, or assisting others in making, expressly or by implication, including through the use of a product or program name, endorsement, depiction, or illustration, any representation that:
(1) The copper in any Covered Product provides a pain relief benefit to consumers;
(2) Any Covered Product treats or relieves chronic or severe pain, or pain and inflammation caused by diseases including multiple sclerosis, arthritis, and fibromyalgia; or
(3) Any Covered Product provides pain relief comparable or superior to drugs or surgery, unless the representation is non-misleading and, at the time of making such representation, Defendants possess and rely upon competent and reliable scientific evidence to substantiate that the representation is true. For purposes of this Section, competent and reliable scientific evidence shall consist of human clinical testing of the Covered Product that is sufficient in quality and quantity, based on standards generally accepted by relevant medical experts, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true. Such testing shall: (1) be randomized, double-blind, and placebo-controlled; and (2) be conducted by researchers qualified by training and experience to conduct such testing. In addition, all underlying or supporting data and documents generally accepted by relevant medical experts as relevant to an assessment of such testing as described in the Section entitled Preservation of Records Relating to Competent and Reliable Human Clinical Tests or Studies must be available for inspection and production to the Commission.”
This case, and the resulting Stipulated Judgment, illustrates the importance of having adequate substantiation in the form of scientific testing and results for these types of claims, as well as the significant consequences of not doing so.
Although the company did not admit to any wrongdoing in accordance with the terms of this Stipulation, Tommie Copper is prevented from suggesting, in advertising or otherwise, that the copper in its products provides pain relief to consumers or otherwise treats or relieves chronic or severe pain or inflammation. This stipulated agreement may prove helpful in the pending class action lawsuit as it appears to support the position of the victims in that case where consumers expended money based upon false advertisements and claims.
People have different reasons for taking part in class actions. Many class members are interested in forcing a giant corporation, that is breaking the law, to change its ways and to help to recover what can be millions of dollars for the other victims. Others individuals bring class action lawsuits to recover money that was illegally taken from them.
The purpose of class action litigation is to give an average person the ability to take on the largest corporations and private entities, providing them with the chance to correct the wrong that was done by these entities. Bringing together hundreds, or even hundreds of thousands, of individuals into one lawsuit gives the case more merit and forces the defendant to take notice. For many victims, class action litigation has provided the only meaningful way to address widespread discrimination, fraud, and other violations of the law.
Most class actions are filed for compensatory or money damages. Class actions may also be filed to resolve disputes over a “limited fund,” where the money available is inadequate to fully compensate all class members. Occasionally, class actions are filed to seek a declaratory judgment. Finally, a class action may seek injunctive relief. For example, a class action may be filed to request the court order the police or authorities to discontinue an unconstitutional practice.
If you or someone you love purchased a Tommie Copper infused sleeve or other copper infused garment, it is important to speak to an experienced Tommie Copper class action attorney. At the Levin Firm, we understand how upsetting it can be if you purchased an item based upon false or misleading health claims made in advertisements only to lose your hard earned money without receiving those promised health benefits. We know how to evaluate your situation based upon the facts of your case and to investigate what type of claim can be made on your behalf. Please call 215-825-5183 to schedule a free consultation today or call our toll free number at 877-825-8542.
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