Knix seeks sanctions for lawyers behind class-action suit that alleges menstrual underwear contains 'forever chemicals'

Stock photo by Ekaterina Bolovtsova.

Canadian undergarment maker Knix Wear Inc. has filed a motion for sanctions against the lawyers representing the plaintiffs in a class-action complaint, saying they did not conduct an independent investigation before filing a lawsuit in April alleging the company's products contain harmful chemicals.

Knix has also filed a motion to have the class-action complaint dismissed.

A class action complaint against the undergarment brand was filed in April, alleging the company’s menstrual underwear are “unfit for their intended use” because they contain a harmful class of chemicals known as per- and polyfluoroalkyl substances (PFAS), sometimes nicknamed “forever chemicals”, despite being advertised as free of the substances, according to an amended court document filed on April 7, 2022.

In new court documents filed on June 11, 2022 and obtained by CTVNews.ca, Knix argued that the plaintiffs, Gemma Rivera and Marisa Franz, and their lawyers, “have no idea whether any Knix product actually contains fluorine or not, let alone the specific type of fluorine (organic fluorine) that can potentially indicate the presence of PFAS. Indeed, they conducted no independent investigation whatsoever to even attempt to confirm the truth of that assertion.”

Knix said the allegations against the company’s products are tenuous and are based on unsubstantiated claims made in a “mom blog”. It is asking for the complaint to be entirely dismissed with prejudice, or stricken and that the company be awarded the cost of defense.

The original lawsuit alleged that Knix products contain unsafe PFAS, a family of chemicals used since the 1950s across a wide variety of industries and found in numerous everyday products. That lawsuit was subsequently amended to say that Knix’s menstrual underwear contain “heightened levels of fluorine which is an indicator” of unsafe PFAS.

Knix said in a statement to CTVNews.ca on Friday that it takes product safety seriously, has always been transparent about its testing, and that it strongly disputed the allegations made in the California lawsuit.

“This is an unfair attack on our brand integrity. Any suggestion that our products are somehow unsafe is wrong which is why we have filed both a Motion to Dismiss the Amended Complaint and a Rule 11 Sanctions Motion against the lawyers who filed it,” the company stated.

“Rule 11 motions are rarely filed in US litigation. However, in this situation, because the court filing is so factually baseless, we are asking the Court to not only dismiss the case but to also sanction the law firm that filed it … [we] sincerely apologize to our customers for any fear or confusion that this is causing.”

The plaintiff’s lawyers, Sean Litteral and Rachel Miller, with the law firm Bursor & Fisher, did not respond to a request for comment regarding Knix’s motions.

“FRIVOLOUS” CLAIMS

Knix says it has conducted extensive testing by third-party laboratories, but the plaintiffs stated in its lawsuit that these claims are inaccurate or misleading.

In its sanctions motion, which also cited previous cases involving “frivolous suits”, the company said the lawsuit is based on claims made in a blog post published by “Mamavation” and that they conducted no independent investigation of their own.

“Rule 11 exists to prevent this very type of ‘file first and ask questions later’ pleading,” the company stated in its sanctions motion.

“The Rule requires that the filing attorney personally conduct a reasonable investigation; it does not allow him to simply regurgitate unsupported and defamatory accusations from internet bloggers who are not subject to Court rules.”

Knix says that Mamavation did not provide any details regarding its claim, including the name of the lab or the test results, and that no details were produced on how the testing was conducted, including testing conditions, procedures and how the samples were collected and prepared.

“Those factors are important, because fluorine is ubiquitous in the environment and Mamavation itself acknowledges that fluorine detection can result from contamination before or during the testing process,” the sanctions motion stated.

The motion also noted that the blog also did not specify whether the products tested positive for organic or inorganic fluorine. The latter is not a potential indicator for PFAS and can include compounds like fluoride salts and minerals.

Knix noted that the plaintiff’s lawyers had previously acknowledged these distinctions in other lawsuits filed against other companies. They also noted that the lawyers have filed “at least half a dozen PFAS lawsuits in the last two months, all of which appear to rely entirely on third-party testing reported in articles, blog posts or litigation documents filed by other lawyers.”

Knix stated in its filings that it continues to conduct routine PFAS and organic fluorine testing on its products and requires its suppliers to do the same, with the testing process and sample results posted on the company’s website.

In the motion, the company described Mamavation as “an affiliate ‘mom blogger’ with no scientific background who receives financial compensation from various apparel brands, including Knix competitors, for directing its readers to those competitors’ websites.”

The hearing is currently set for November 10, 2022 in California.

WHAT ARE “FOREVER CHEMICALS”?

There are thousands of PFAS according to the U.S. government’s National Institute of Environmental Health Sciences, and studies have suggested that the substances are found in the blood of 97 per cent of Americans. They were previously known as perfluorochemicals, or PFCs.

They can be found in a number of everyday products from make-up, non-stick cookware and stain-repelling fabric to pizza boxes and fast-food packaging, as well as in more specialized industries from aerospace to firefighting. Low levels of the PFAS have been be found in food including honey, eggs, and vegetables, and even beef.

Because the chemicals do not break down or dissolve easily, there have been ongoing concerns that these chemicals could reach levels that are harmful to both humans and the environment. Some research suggests that at very high levels, certain PFAS can cause health problems including higher chances of certain types of cancer, higher cholesterol level and changes within the immune system.

This week the U.S. Environmental Protection Agency issued a warning that two types of PFAS compounds found in drinking water posed a greater health risk than previously thought, even at undetectably low levels.