ST. LOUIS - Class action lawyers are appealing a federal judge's ruling that they waited too long to file their ambitious lawsuit against Nike.
St. Louis lawyers Daniel Orlowsky and Adam Goffstein on July 9 filed their notice of appeal to the U.S. Court of Appeals for the Eighth Circuit, about a month after Judge Matthew Schelp officially tossed their lawsuit.
He had entered judgment against them on March 28, then on June 9 refused to allow them to file a new complaint after they had filed a reconsideration motion.
The suit, which alleges Nike's "Sustainability" products are not as environmentally friendly as the company would have shoppers believe, should be closed, Schelp wrote. Plaintiff Maria Guadalupe Ellis said the dismissal order was the first time she was put on notice that she needed to change her complaint.
"However, this misses the mark," Schelp wrote. "Plaintiff had two instances of notice prior to the Court's dismissal."
These came in the form of motions to dismiss by Nike, Schelp said.
"Therefore, Plaintiff was aware that her amended pleadings may have been deficient, yet she chose to proceed forward with her previously amended complaint anyway," he added.
"In fact, Plaintiff had seven months... to seek additional leave to amend, but she chose to 'stand or fall' on her amended complaint. Ultimately, Plaintiff's failure to request leave to amend until after a final order had been issued - a delay lasting over seven months - amounts to unexcused delay."
Schelp originally threw out the case on March 28, finding Ellis and her lawyers failed to allege a "reasonable consumer" would have been tricked by Nike's marketing claims.
"Plaintiff seeks to skirt that requirement by being especially vague on the circumstances present here," Schelp found.
"Plaintiff saw unspecified labeling, marketing, and advertising. Did she read them? Which ones did she see? And, perhaps most importantly, what else did they say? She does not say.
"She supplies only fragmented excerpts from unidentified labels, marketing, and advertisements. Since she did not plead what information was available to her at the time, nor what she reviewed or did not review, the Court does not have near enough of the circumstances.
"She, therefore, has not plausibly pleaded that she acted as a reasonable consumer would in light of all the circumstances."
Schelp joined colleague Rodney Sippel in tossing this kind of class action. He ruled for H&M in a lawsuit over its "conscious choice" collection in May 2023.
At issue were Nike's claims the "Sustainability" line is "made with recycled fibers" which "reduces waste and our carbon footprint" and is part of a "Move To Zero carbon and zero waste."
The suit claimed violation of the Missouri Merchandising Practices Act.
"Despite claiming that the Nike 'Sustainability' Collection Products are 'made with recycled fibers,' they are predominantly made with virgin synthetic materials," the lawsuit says. "In fact, of the 2,452 Nike 'Sustainability' Collection Products identified in Exhibit A attached hereto, only 239 Products are actually made with any recycled materials.
Nike's motion to dismiss, filed last year, said the plaintiff relied only on "substantively and contextually gerrymandered excerpts of Nike’s environmental representations."
The company added: "And even if Plaintiff reviewed only excerpts of Nike’s representations in isolation, which is implausible, Missouri law would not excuse her failure to read the complete representations 'where [she] ha[d] the opportunity to read something but cho[]se not to do so.'"
"Thus, more than 90% of the Nike 'Sustainability' Collection Products are not 'made with recycled fibers' which 'reduces waste and our carbon footprint.'"