Discovery shows class rep in Bowflex case never owned equipment

By Michelle Massey, East Texas Bureau | Jan 16, 2008

TEXARKANA -- After almost three years of litigation in an Arkansas circuit court, defendants have learned that the class representative in a suit against Bowflex did not even own a piece of the equipment.

During the discovery process, Thomas Whitehead admitted he did not own a Bowflex which defendant Nautilus claims means he did not have standing to bring his original class action complaint in Miller County, Ark., Circuit Court regarding a voluntary recall of Bowflex.

Whitehead filed his Fourth Amended Class Complaint on Dec. 18, dropping his own individual claims and asserting claims on behalf of three new plaintiffs, Jim C. Chancellor, Sheri I. Parish and Todd I. Parish.

Whitehead's original class action complaint against Bowflex manufacturer and distributor Nautilus Inc. was filed in February 2005. As class representative, Whitehead accused Nautilus of fraud and unjust enrichment originating from two voluntary recalls of two Bowflex fitness machines.

The original complaint sought damages for loss of use by arguing that Nautilus was late in delivering repair kits after it announced the kits would be provided within two weeks.

Whitehead argues that while waiting "week after week for the repair kit" the "newly formed muscles softened and cardiac health diminished" causing consumers to go from being "ripped to ripped-off."

The complaint states "customers on the journey from average everyman to fitness superstar had to put their journey on hold while they waited for Defendants to provide a repair kit so that their Bowflex equipment would not collapse and abruptly end their fitness quest."

The litigation includes more than 782,000 Bowflex machines with an average price of $1,466 and more than 662,000 repair or upgrade kits. The original complaint argues the retail value of the fitness machine diminished and plaintiffs are seeking the difference between the fair market value before the recall and the fair market value of the fitness machine immediately after the recall.

Class counsel includes Texarkana attorneys John Goodson and Matt Keil of the law firm Keil and Goodson, attorneys Michael Angelovich and Brad Paddock of the law firm Nix, Patterson and Roach and Houston attorney Richard Norman of the law firm Crowley, Douglas and Norman, L.L.P.

Whitehead amended his original complaint in October 2005, adding allegations that Nautilus acted improperly by asking customers to respond to the recall to obtain repair kit, instead of proactively sending the kits to known customers.

The amended complaint states, "Not only did Defendants sell a defective product to their customers and not only did they put the burden on their customers to request the repair kit, but Defendants then misrepresented how much time it would take."

Attempting to apply the Class Action Fairness Act, Nautilus removed the case to federal court arguing the amended complaint did not relate back to the filing of the original complaint and the federal court had supplemental jurisdiction over any new part of the amended complaint. However, U.S. District Judge Harry F. Barnes remanded the case back to the Miller County Circuit Court stating the "proposed class definition and parties remain the same."

In September 2007, Whitehead filed the Second Amended Complaint adding allegations of strict liability, product defect and breach of sales contract. In October 2007, Whitehead filed the Third Amended Complaint changing breach of contract to breach of implied and express warranty.

Shortly thereafter, Whitehead filed his Fourth Amended Class Complaint, which removed all factual allegations relating to him. Nautilus argues this action follows plaintiff's discover responses in which Whitehead admits he has never owned a product recalled by Nautilus.

"Whitehead attempts this procedural maneuver because discovery exposed that he never owned a Bowflex fitness machine that was subject to a recall, that he never had standing to assert the claims he made, and that he was never a member of the class he sought to represent," the defendant states.

Responding to the new and changing information, defendant Nautilus again filed a motion to remove the litigation to the Texarkana Division of the Western District of Arkansas. Within the notice of removal, Nautilus argues Whitehead never had legal standing and thus his complaints are "deemed a legal nullity and cannot be amended."

Nautilus seeks a motion to strike the Plaintiffs' Fourth Amended Complaint, arguing that under Arkansas law, substituting new parties in place of others constitutes a new lawsuit and makes it removable under the Class Action Fairness Act.

Nautilus demonstrates the basis for removal and appropriate federal court jurisdiction stating the requirements of the Class Action Fairness Act are met because the parties are from different states (Arkansas, Texas and Washington), there are more than 100 potential class members, and the amount in controversy exceeds $5 million.

The plaintiffs' fourth amended complaint states that Arkansas resident Jim Chancellor purchased a Bowflex in 2000 and received a written recall notice. Chancellor states that he attempted to participate in the recall by contacting Bowflex on two different occasions but never received the repair kit.

The document also states that Texas residents Sheri and Todd Parish purchased a Bowflex at issue in the voluntary recall. The Parishes state they received a written recall notice regarding a defect in their machine. The plaintiffs attempted to participate in the recall process and "after a significant delay, Mr. Parish received the retrofit kit from Nautilus and installed it on the unit."

Common questions of law and fact asserted by the fourth amended complaint include:

  • whether the Bowflex machines were defective and not reasonably suited for their intended purpose prior to the voluntary recall;
  • whether the defendants proactively sent the recall kits to consumers;
  • whether the machines were rendered useless until the repair kit was provided;
  • whether Nautilus told consumers to stop using the fitness machines until the defect was fixed;
    whether the defendant told consumers the repair kit would be provided within two weeks;
  • whether Nautilus took unfair advantage of consumers by keeping the full purchase price while not proactively sending out repair kits;
  • whether the defendant keeping the full purchase price was a detriment to consumers;
  • whether the defective condition resulted diminishment of the fair market value;
  • whether defendants entered into sales contracts with consumers,
  • and whether the Bowflex machines were of inferior quality.

    Within Nautilus' answer to the fourth amended complaint, it admits to conducting recalls on certain Bowflex machines in cooperation and under the guidance of the Consumer Product Safety Commission but states that its products are not defective or unreasonably dangerous.

    Nautilus further argues the plaintiffs allegations are barred by the Consumer Product Safety Act because Nautilus complied with all applicable statutes and regulations.

    Nautilus is requesting a trial by jury.

    Federal Judge Harry F. Barnes is assigned to the litigation.

    Federal Case No. 08-4002

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