Avocado Mattress

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I asked my husband, William T. Webb who is a business litigation attorney, to review the filing.  He reports as follows.

“First, just because a lawsuit has been filed does not mean that it has a legal or factual basis.  There are often two sides to every story.  However, reputable, serious attorneys do not file lawsuits they do not believe they can win, especially when their fee is based on whether, and to what extent, they win the case.  It is extremely likely that the plaintiffs’ attorneys are not being paid by the hour, and that their fee will be based on the amount of money they are ultimately able to collect.  This is an ethical way of handling attorney’s fees in certain cases — including this one — and it is a very common method of ensuring that meritorious cases can be brought, even on behalf of persons who don’t have tens of thousands of dollars to pay for attorneys.

Although I am a San Francisco-based business litigation attorney, I am not familiar with this firm.  In reviewing the firm’s website, it is clear that the firm consists of attorneys who are experienced and extremely well-educated.  They also appear to have done their homework, in that they allege that they have had mattresses tested and that the test results show the presence of certain specific toxic chemicals.  In addition, the complaint is extremely well-written and this is consistent with attorneys who know what they are about.  My sense is that the case likely has merit, although, again, I have not seen anything from Avocado, and so I can’t say for sure.  They will certainly have their day in court, and are likely to hire really good attorneys to vigorously defend their interests.

The case has been filed as a class action, and the class consists of everyone who has purchased an Avocado mattress, so if you are someone who has done so, the law firm represents you, and at some point, you are very likely to receive notice of the case, either by e-mail or by U.S. Mail.  To be on the safe side, you can also e-mail the firm to make sure you are on their list.”

You can get the email addresses of the law firm that filed the lawsuit on the first page of the court filing posted by ClassAction.org.  For your convenience, I’m posting the screenshot below.

Careful readers with good memories may recall that Avocado Mattresses used to be on my website.  Because I am not a testing lab, I have to rely on information that is made available by manufacturers.  In this case, Avocado is certified by the Global Organic Textile Standard, which is the best safety certification a mattress company can get.  I also have to do my best to “read between the lines;” if a product looks too good to be true, it probably is, and so sometimes I don’t recommend products based simply on a feeling/intuition I may have that I have developed over a 10-year career as a product researcher.  With respect to Avocado Mattress, I did have them on my site but did not actively promote them because of two concerns:

1. Avocado has another brand called Brentwood, which was not initially organic (now it is). That signaled to me that Avocado was not committed to sustainability and safety.
2. I never had an opportunity to interview the top people of the company. I could only interface with customer service and marketing people.

And that’s why you haven’t seen me actively promoting Avocado products.

I will be following the lawsuit (subscribe to my emails).  My husband reports that the overwhelming number of cases settle, and he expects that at some point, Avocado will likely agree to pay some amount to settle the lawsuit, without admitting to liability.  In that case, purchasers may get some amount of money back (my husband once got a check on a class action settlement for one cent).  But this type of case may prompt Avocado to change its ways (assuming there is truth to the allegations in the lawsuit) and may deter other companies from doing what Avocado is accused of doing in this lawsuit, according to my husband.

Update as of August of 2023: I received word that the Avocado lawsuit was dismissed but that Avocado can’t discuss the dismissal.  My husband reports as follows:

I can’t say with 100% certainty exactly what happened, but it sounds like the case was settled.  This usually means that the defendant (here, Avocado) paid some money in exchange for a dismissal.  If Avocado had won the lawsuit somehow, they would be more than happy to brag about that fact.  But since they say the can’t discuss the dismissal, this probably means that there is a confidentiality clause in a settlement agreement that prohibits the parties from discussing how much money was paid, or any other terms in the settlement agreement.  There is always a possibility that a defendant will pay money to resolve a lawsuit even though the lawsuit is groundless and has no merit, just to save the time and money associated with defending it.  However, as I said before, a lawsuit is not likely to have been filed unless the attorneys involved had a strong belief that they could win it, and apparently they had testing done to determine whether there were grounds to file the suit.  Again, it is not possible to state with certainty that Avocado paid money in exchange for a dismissal.

At the very least, the lawsuit and its apparent resolution have shaken my confidence in Avocado, and so I am not in a position to recommend them anymore.