In re Johnson & Johnson Sunscreen Marketing, Sales Practices and Products Liability Litigation

Docket number: 21-cv-3015-AHS (S.D. Fla.)

The Center for Class Action Fairness (CCAF), representing its director Theodore H. Frank, filed an objection to a class action settlement over certain Johnson & Johnson sunscreen products, which were alleged to contain excess concentrations of benzene, a carcinogen.

Litigation initiated the day after an independent lab filed a citizen’s petition with the FDA alerting the agency to potentially excessive concentrations of benzene. Before the suits were consolidated, the FDA and Johnson & Johnson announced a voluntary recall on July 14, 2021, which allowed consumers to request a full refund of relevant products.

The litigation settled months later on December 17, 2021. Under the settlement, past purchasers of sunscreen products could receive “vouchers” worth perhaps $5 on the purchase of another Johnson & Johnson product. Such “vouchers” are not large enough to cover the price of any sunscreen by themselves. Additionally, plaintiffs’ attorneys negotiated for themselves a $2.6 million fee award in cash—not vouchers—which defendant agreed not to oppose.

Frank objected that the segregated attorneys’ fee request prioritizes the welfare of attorneys over the consumers they represented. He argues that the “vouchers” are coupons within the meaning of the Class Action Fairness Act (CAFA), so at minimum attorneys’ fees would need to be reduced to account for the modest redemption rate. Even if every class member receiving coupons were to redeem them (which is impossible), plaintiffs’ attorneys receive much more value than the entire class from the settlement.

The Court held a fairness hearing on August 12, 2022, and Frank submitted his Proposed Findings of Fact and Conclusions of Law to the Court on August 26. On February 27, 2023, the Court granted the settling parties motion to finally approve the proposed settlement. The district court criticized the objector of “whining” for giving the “conclusory” and “flippant” answer of suggesting only “‘a better settlement’” as a way to make the settlement fair. Though the opinion puts “a better settlement” in quotation marks, Frank’s counsel never used that language and in fact singled out the ability of the parties to fix the disproportionate allocation. Tr. 38-39, 54-55. The court’s opinion never discusses the allocation problem, 28 U.S.C. §1712, or the appellate precedents Frank cited; and never makes Rule 23(e)(2)(C)(ii) or (iii) findings.

Frank appealed and filed his opening brief. Plaintiffs responded and filed their own cross-appeal. Frank filed his brief responding to the cross-appeal and providing his reply in his own appeal on October 19, 2023. While awaiting oral argument in the Eleventh Circuit, the Court issued a new opinion adopting a common sense, plain meaning of “coupon” under CAFA as Frank had argued. No June 20, 2024, the Johnson & Johnson panel then cancelled oral argument, vacated the settlement approval, and remanded the case back to the Southern District of Florida to reevaluate the settlement under this coupon definition adopted by the circuit and also instructed the district court to evaluate the plaintiffs’ standing to seek prospective injunctive relief, which Frank called into question in his appellate briefing.

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