The plaintiffs in a class action against weight-loss program Noom that alleged that the program’s trial period and autorenewal policies “constitute a uniform and deceptive web” that forces customers to pay for a multi-month subscription filed an opposition Thursday to the defendants’ motion to dismiss, calling the reasoning behind the motion “silly.”
Individuals Mojo Nichols, Susan Brewster, Duane Dea, Maryanne Deracleo, Karen Kelly, Rebecca Richards, Jennifer Sellers, and Stacy Spencer originally brought suit against Noom Inc., Noom President Artem Petakov, and other unknown defendants May 12, 2020, in the Southern District of New York, most recently filing their third amended complaint (TAC) Jan. 29, reiterating its claim that Noom “has perpetrated one of the country’s largest automatic renewal scams.”
“Noom lures consumers to sign up to ‘try’ its supposedly revolutionary diet app ‘built on psychology and science,’ telling consumers that if Noom is not the right fit they can move on, no strings attached,” according to the opposition. “Yet not only does it turn out that Noom’s ‘risk free’ trial must be cancelled lest it automatically renew, but also that the trial is extremely difficult to cancel resulting in consumers being charged for the full, multi-month diet program once the trial ends.”
The defendants moved to dismiss the TAC on Feb. 12, taking aim at the filing’s lengthiness, arguing for full dismissal based on Rule 12(f) of the Federal Rules of Civil Procedure.
“Plaintiffs now resort to a blunderbuss approach by alleging no fewer than 279 separate counts across 915 paragraphs,” the defendants argued. “This is not a serious statement of viable claims, but a strategy designed to overwhelm the pleading process with so many counts and allegations that the Court will be more inclined to allow a future bellwether motion or defer ruling on the viability of the claims.”
Notwithstanding the alleged blunderbuss, the defendants contended that the court should dismiss the TAC for purportedly failing to plead with particularity the plaintiffs’ stated experiences with Noom’s automatic renewal feature.
The plaintiffs challenged the defendants’ analyses, arguing that Noom did not detail any adequate grounds for dismissal. With respect to 12(f), the plaintiffs said the defendants’ aversion to the TAC’s length was “silly,” as it was for Noom’s sake that the filing stood at 187 pages, according to the opposition.
“The TAC’s length stems from Noom’s December 2020 feigned ignorance that Plaintiffs had only brought seven claims that did not cover Noom’s conduct in all US jurisdictions,” the opposition claimed. “Judge Parker granted Plaintiffs’ amendment request to remedy Noom’s supposed confusion … and we spelled out each count arising from Noom’s nationwide scheme. … That Noom’s nationwide scheme prompts a complex case is not grounds for dismissal.”
The opposition noted that Rule 12(f) generally is invoked for excision of redundant or irrelevant material, and that Noom did not indicate which parts of the TAC qualified, instead relying on the fact that courts infrequently use the rule to emphasize concision and simplicity in pleadings, according to the plaintiffs.
On the defendants’ challenge of the plaintiffs’ particularity of claims, the opposition supported the plaintiffs’ rebuttal by citing the fact that District Judge Jorna G. Schofield herself “shot down” the argument at a Dec. 17, 2020, hearing, saying that “there are allegations in the complaint as to misstatements particularly on (Noom’s) website” and that little would be gained “(i)f we proceed with a motion to dismiss and whittle away at this or that.” The plaintiffs said that the defendants “blithely” ignored this, however.
Wittels McInturff Palikovic is representing the plaintiffs. Cooley LLP is representing the defendants.
