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April 2012

Intellectual Property Team Secures Dismissal of Class Action Lawsuit for the "Shake Weight"

On April 13, 2012, the Gordon & Rees Intellectual Property litigation team, led by partner Richard Sybert and associate Hazel Pangan, successfully secured a voluntary dismissal of a class action lawsuit for alleged false advertising brought in Arkansas state court against our client, Fitness IQ  ("FIQ"), the makers of the famous "Shake Weight" exercise device. The "Shake Weight" has been featured  (and parodied)  on numerous TV programs, including Saturday Night Live, The Jimmy Kimmel Show, Ellen, and others.

The named Plaintiff, Patti Tomlinson, who is also the named plaintiff in other purported class action lawsuits, alleged breach of warranties, unjust enrichment, and violation of the Arkansas Deceptive Trade Practices Act, after she allegedly failed to obtain any results from her "proper" Shake Weight use. She and her lawyers dismissed the suit before the class could be certified, after being faced with Fitness IQ's Motion for Summary Judgment following two days of the Plaintiff's deposition where it became clear Plaintiff could not show she had used the Shake Weight properly, failed to notify Fitness IQ of the alleged breach prior to filing the complaint (a condition precedent for recovery under Arkansas law), could not show she had suffered any actual damages, and could not even prove she had purchased the product. In addition, Plaintiff refused during her deposition to demonstrate the proper use of the device. 

A dramatic moment, captured on video, occurred during the deposition when Fitness IQ's President pried off the end cap of the Shake Weight allegedly purchased by the Plaintiff to reveal a serial number which, when traced, proved to be from a completely different distribution channel.

Gordon & Rees IP and commercial litigation attorneys have extensive experience and expertise in successfully defending class actions and false advertising claims.

 

Hazel Mae B. Pangan
Richard P. Sybert



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