No Adequate Remedy in Aqua Dots Case

In In re Aqua Dots, a case recently heard in the Northern District of Illinois, the court faced a class certification request from plaintiffs who had purchased a popular children’s toy called Aqua Dots.  The toy beads could be formed into various shapes and would fuse together when sprayed with water.  The problem was that the Aqua Dots had been manufactured with a chemical that the human body converts, upon ingestion, to gamma-hydroxy butyrate (or GHB, the most common “date rape” drug).  According to the court’s opinion, at least two children fell comatose after swallowing Aqua Dots.  Approximately 4.2 million Aqua Dots products were recalled in the United States.

The court denied class certification, holding that the manufacturer’s offer of refunds for Aqua Dots was an adequate remedy.  The court emphasized the fact that the class did not include parents of children who actually ingested the GHB-laced toys.

The court’s opinion is well-reasoned in many respects, but I disagree with its interpretation of an “adequate remedy” in these circumstances.  Many civil litigation plaintiffs seek redress through the courts not because they want or expect a payday, but because they want to help deter the offender from doing the same thing to someone else.  Justice is not always embodied in a “full cash value refund,” sometimes justice means deterring the offender from hurting or threatening someone else.  This type of remedy is often difficult to legally quantify, and it is also simply unavailable under many types of claims.  Some cynics derisively assume that the pursuit of such remedies is for the sole benefit of class counsel:  It is, however, the job of plaintiffs’ counsel to try and find a path to the remedy that the plaintiff finds “adequate.”

The mere offer of a refund should not defeat class certification when it is clear that not all of the affected consumers can realistically avail themselves of the offer.  Not only does this “remedy” completely fail as a deterrent to future conduct, it also provides the manufacturer with a positive economic externality.  Because many of the refunds go unclaimed, the manufacturer actually profits from selling a defective product.

Sometimes, maybe when a global corporation sells your child a toy laced with a date-rape drug, a refund just isn’t enough.  At the very least, the manufacturer should disgorge profits reaped from the sale of a defective product.  This would eliminate some of the incentive imbalance arising from situations where the manufacturer knows there is no possibility that full refunds will actually be claimed.

The case is In re Aqua Dots Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 105788; 1218 Prod. Liab. 18509 (N.D. Ill. 2010).