Proskin, et al. v. Tzumi Innovations, LLC

A Court has authorized the Notice because you have a right to know about the proposed settlement of this class-action lawsuit, and your options, before the Court decides whether to give “final approval” to the Settlement. The Notice explains the lawsuit, the proposed Settlement, and your legal rights.

The Notice explains the lawsuit, the Proposed Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Judge is the Honorable Jed S. Rakoff of the Southern District of New York, and the case is known as Proskin, et al. v. Tzumi Innovations, LLC, Case No. 22-cv-05919-JSR. The consumers who sued are called the Plaintiffs, and the company they sued, Tzumi Innovations, LLC, is called the Defendant.

This lawsuit is about whether Defendant, through false and misleading marketing, led consumers to incorrectly believe the Products were safe and legal to use as surface disinfectants in violation of state and federal law. You can read Plaintiff’s First Amended Complaint in the Important Documents section of this website. 

Defendant denies any wrongdoing and denies the Plaintiff’s allegations. You can read Defendant’s motion to dismiss brief in the Important Documents section of this website. The Court has not made any ruling on Defendant’s liability, if any.

In a class action lawsuit, one or more people called “Class Representatives” (in this case, Plaintiffs Iris Boling, John Gordon, and Kari Proskin) have sued on behalf of other people who have similar claims. All people who purchased Wipe Out! Products together are a “Class” or “Class Members.” The named plaintiffs who sued are called the Plaintiffs. The companies they sued (in this case, Defendant Tzumi Innovations, LLC) are called the Defendants.  One court resolves the issues for everyone in the Class – except for those people who choose to exclude themselves from the Class.

The Court has not decided in favor of either side in the case.  Defendant denies all allegations of wrongdoing or liability against it and contends that its conduct was lawful.  Defendant is settling to avoid the expense, inconvenience, and inherent risk of litigation, as well as the related disruption of its business operations.  Plaintiffs and their attorneys assert that the Proposed Settlement is in the best interests of the Class, because it provides an appropriate recovery now while avoiding the risk, expense, and delay of pursuing the case through trial and any appeals.  
 

You are a Class Member if you purchased any of the following Wipe Out! Products in the United States on or before April 19, 2023: Wipe Out! Wipes, Wipe Out! Multi-Surface Wipes, or Wipe Out! Multi-Surface Decontaminant Spray.

The following are excluded from the Settlement Class even if they made such a purchase: any Judge or Magistrate presiding over this class action and members of their families; (2) the Defendant, Defendant’s subsidiaries, parent companies, successors, predecessors, and any entity in which the Defendant or its parents have a controlling interest and their current or former officers, directors, agents, attorneys, and employees; (3) persons who properly execute and file a timely request for exclusion from the class (as described in FAQ 8, FAQ 9, and FAQ 10); and (4) the legal representatives, successors, or assigns of any such excluded persons.

More information about why the Court is allowing this lawsuit to be a class action is in the Court’s Order Certifying the Class, which is available in the Important Documents section of this website.
 

Subject to Court approval, the parties have agreed to a Settlement under which Defendant will pay $2 million in cash (the “Settlement Fund”). In addition to paying Class Member claims, the $2 million Settlement Fund will be used to (i) pay notice and claims administration costs, (ii) attorneys’ fees, (iii) litigation costs and expenses, and (iv) an incentive award to the Class Representatives.

Each class member may submit a claim, either electronically through a settlement website or by mail, for each of the Products purchased during the class period. If you are entitled to relief and have valid proof of purchase, you will be entitled to submit a claim for $3 per purchased Product up to $15.00 in cash, subject to pro rata adjustment. If you are entitled to relief and do not have proof of purchase, you will be entitled to submit a claim for $2.00 per purchased Product up to $6.00 in cash, subject to pro rata adjustment.

If the total dollar amount of all valid claims is more than the available portion of the Settlement Fund, then your recovery, and the recovery of every other claimant, will be proportionally decreased to account for the available portion of the Settlement Fund.

If the total amount of claims submitted by Class Members, plus attorneys’ fees, costs and expenses, plus the costs of notice and administration, and service awards is lower than the settlement fund, payments to the Class Members shall be increased pro rata according to the following schedule: (1) class members who submit a claim with proof of purchase will have a pro rata increase capped at $50; (2) class members who submit a claim without proof of purchase will have a pro rata increase capped at $25; (3) any residual funds remaining after the distribution will be provided on a cy pres basis to a mutually agreed charity or charities that meet(s) any governing requirements for cy pres distributions. If and when a  cy pres distribution becomes necessary, the parties will jointly select one or more charities and request approval from the Court to make the distribution.

All payments to Settlement Class Members who submit valid Claims will be made within thirty (30) days after the later of (1) the Claims Deadline or (2) the Settlement Approval Order and Final Judgment becoming final (“Effective Date”). If there is an appeal of the Settlement, then this may take some time. All Settlement Class Members who do not opt out of the Proposed Settlement and who submit a valid claim shall receive a cash award as set forth above.

Class Members who wish to receive a cash payment must submit claims.

To submit a claim, you must complete a Claim Form.

You can submit an electronic Claim Form quickly and easily on this website. Read the instructions carefully, and submit it online on or before July 18, 2023.

Alternatively, you may also submit a hard copy Claim Form by mailing it to the following address: Wipe Out Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103.  It must be postmarked no later than July 18, 2023.

TO BE VALID, ALL CLAIMS MUST BE POSTMARKED OR SUBMITTED ONLINE NO LATER THAN JULY 18, 2023.

To exclude yourself from the Proposed Settlement, which is sometimes call “opting-out” of the Class, you must send a letter by mail saying that you want to be excluded from this lawsuit.

To exclude yourself from the Class, you must postmark a written Request for Exclusion to Wipe Out Settlement Administrator, Attn: Opt Out, P.O. Box 58220, Philadelphia, PA  19102. The written Request for Exclusion must be postmarked no later than July 3, 2023.

Your written Request for Exclusion must contain: (1) the name of this lawsuit, Proskin, et al. v. Tzumi Innovations, LLC, Case No. 22-cv-05919-JSR; (2) your full name and current address; (3) a clear statement of intention to exclude yourself such as “I wish to be excluded from the Class”; and (4) your signature.

You cannot exclude yourself on the phone or by e-mail. If you ask to be excluded, you will not get any Settlement Benefit, and you cannot object to the Proposed Settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Defendant in the future.

No. If you do not properly and timely submit a written Request for Exclusion, you waive your right to opt out and will be deemed to be a member of the Class. Unless you exclude yourself, you give up the right to sue Defendant for the claims that this Proposed Settlement resolves, and you will be bound by the terms of this Proposed Settlement. If you have a pending lawsuit against Defendant, other than this class action, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this Class to continue your own lawsuit. Remember, any exclusion request must be signed, mailed, and postmarked by July 3, 2023.

No. If you exclude yourself, do not send in a claim form to ask for any money. But, you may sue, continue to sue, in a different lawsuit.

If you are a Class Member, you can object to the Proposed Settlement if you do not like any part of it, including the proposed plan to reimburse Class Members, Class Counsel’s fee award, or the Class Representative incentive award. You can give reasons why you think the Court should not approve it. The Court will consider your views.

To object, you must send a letter that contains the following:

• Your name, current address and telephone number, or your lawyer’s name, address and telephone number if you are objecting through counsel;
• The name of the lawsuit, Proskin, et al. v. Tzumi Innovations, LLC, Case No. 22-cv-05919-JSR;
• A statement of your objections and the reasons for each objection you make, including the facts supporting your objection and the legal grounds on which your objection is based;
• A list of any documents you may give the Court to support your objection, if any;
• A list of legal authorities you want the Court to consider;
• The names and addresses of any witness you want to call to testify, and a summary of the witnesses’ expected testimony;
• If you (or your lawyer) want to appear and speak at the Fairness Hearing, a statement that you wish to appear and speak;
• Documents sufficient to establish your membership in the Settlement Class, such as verification under oath as to price paid and the date and location of your purchase of a Settlement Class Product, or a Proof of Purchase; and
• Your signature (or your lawyer’s signature).

To object, you must file a written objection with the Clerk of the Court for the Southern District of New York no later than July 3, 2023.  The Clerk of the Court is located at:

Clerk of Court
U.S. District Court
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, NY 10007

You must also send copies of your objection along with any supporting documents that is received no later than July 3, 2023 to the following three addresses:

If you object through a lawyer, you will have to pay for the lawyer yourself. Importantly, only Class Members who submit timely, written objections may voice their objections at the hearing.

Objecting is simply telling the Court you do not like something about the Proposed Settlement. You can object only if you stay in the Class.  Excluding yourself is telling the Court you do not want to be part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you.

As long as you do not exclude yourself, you can (but do not have to) participate and speak for yourself in this lawsuit and Proposed Settlement. This is called making an appearance. You can also have your own lawyer appear in court and speak for you, but you will have to pay for the lawyer yourself.

If you want yourself or your own lawyer (instead of Class Counsel) to participate or speak for you in this lawsuit, you must include in your written objection that you plan to attend and/or speak at the Fairness Hearing.

If you do nothing, you will get no Settlement Benefit from this Proposed Settlement. But, unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendant about the subject matter of this lawsuit, ever again.

The Court has appointed Milberg Coleman Bryson Phillips Grossman, PLLC and Bursor & Fisher, P.A. as legal counsel for the Class.  Counsel for the Class are frequently referred to as “Class Counsel.”  You will not be charged for these lawyers.

From the inception of the litigation in July 2022 to the date of the Proposed Settlement, Class Counsel has not received any payment for their services in prosecuting the case or obtaining settlement, nor have they been reimbursed for any out-of-pocket expenses they have incurred. When they ask the Court to approve the Proposed Settlement, Class Counsel will also make a motion to the Court for an award of attorneys’ fees and costs in a total amount not to exceed one-third of the Settlement Fund, or $666,666.00. No matter what the Court decides with regard to the requested attorneys’ fees, costs and expenses, Class Members will never have to pay anything toward the fees, costs or expenses of Class Counsel. Class Counsel will seek final approval of the Proposed Settlement on behalf of all Class Members. You may hire your own lawyer to represent you in this case if you wish, but it will be at your own expense.

No. Class Counsel is working on your behalf and will answer any questions the Court may have, but, you are welcome to attend the hearing at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.

If the Court grants final approval of the Proposed Settlement, all members of the Class will release and forever discharge any and all claims or causes of action that have been, might have been, are now, or could have been brought relating to the transactions, actions, conduct and events that are the subject of this action or settlement, arising from or related to the allegations in the complaint filed in the Action or Defendant’s marketing, advertising, promoting or distributing of the Products.

If the Proposed Settlement is not approved, the case will proceed as if no settlement had been attempted.  If the Proposed Settlement is not approved and litigation resumes, then there can be no assurance that the Class will recover anything.

The Notice is only intended to provide a summary of the Proposed Settlement. You may obtain the complete text of the Settlement Agreement and other court documents in the Important Documents section of this website, by writing to the Settlement Administrator (at Wipe Out Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103), or from the court file, which is available for your inspection during regular business hours at the Office of the Clerk of the United States District Court for the Southern District of New York, Daniel Patrick Moynihan Federal Courthouse located at 500 Pearl Street, New York, NY 10007.

Visit the Important Documents section of this website where you will find the Plaintiffs’ Complaint, the Settlement Agreement and other documents related to the settlement, and a Claim Form. You may also contact Class Counsel by email at info@bursor.com, or by writing to Wipe Out Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103.

PLEASE DO NOT CALL OR WRITE TO THE COURT FOR INFORMATION OR ADVICE.