• Mattress Makers Under Attack
  • July 28, 2017 | Authors: Daniel J. Gerber; Samantha Crawford Duke
  • Law Firm: Rumberger, Kirk & Caldwell Professional Association - Orlando Office
  • Mattress manufacturers and retailers must guard against aggressive lawsuits based on their advertising, marketing and manufacturing activities. Class-action litigation lawyers have increased attacks on all sorts of product makers and sellers—sleep products manufacturers and retailers are no exception. Advanced planning, as well as vetting your advertising, marketing and content claims with qualified, experienced experts both inside and outside your company, can help you avoid or minimize expensive, time-consuming litigation. Size matters What constitutes a king, queen, twin or other dimensionally advertised or marketed mattress size? Marketers should double check any dimensional claims made by the company. Opportunistic lawyers have taken to measuring all sorts of items to start class-action claims on the grounds that hundreds, thousands, even millions of consumers haven't gotten what they were promised by product sellers. These claims include approximate dimensions in condominium plans in which a condominium advertised as "1,800 square feet" was more precisely measured by the consumer as 1,790 square feet. While some may bristle at the idea that 10 square feet is the subject of a class action, the value of the claim is multiplied if the condominium complex contains 300 units and the per-square-foot valuation of a condominium is based on $150 per square foot. Suddenly, that advertisement of 1,800 square feet results in a damage claim of $450,000, plus attorney's fees, for the suing party. Similar lawsuits have been brought for all sorts of dimensional promises. These include claims that a"foot-long" sub was not actually 12 inches and that a "45-quart" cooler was only 37.6 quarts. In the sleep products context, thread-count class actions—claiming that a "600-thread-count" product contained fewer than that—are abundant. As a mattress manufacturer, are your qualitycontrol standards sufficient if your claims are ever challenged? Think about the evidence you could provide to defend a claim that your mattresses or other products fall below your dimensional claims. In advertising, all dimensional claims should be as precise as possible, with a disclaimer such as "all dimensions are approximate," "each mattress is individually made and dimensions can vary from mattress to mattress" or a similar explanation. No rational court will uphold a lawsuit in which the plaintiff makes unreasonable or meaningless allegations that such a product's dimensional claims were false. `Red flag' marketing claims Some advertising and marketing claims simply encourage scrutiny, investigation and legal action. Even if your consumers are fully satisfied, plaintiffs' attorneys will try to exploit minor flaws in your advertising to initiate claims that are expensive to defend. For example, in 2013 the U.S. Federal Trade Commission pursued three mattress manufacturers regarding claims that their mattresses were "chemical free" or were made from "100% natural materials." The three producers ultimately settled with the FTC and agreed not to make similar claims in the future.