Scent-LokIn a class action lawsuit filed in the state of Minnesota by Mike Buetow of Shakopee, Theodore Carlson of Edina, Gary Richardson Jr. of St. Paul and Joe Rohrbach of Shakopee, Plaintiffs claim that there was no way for anyone who was interested in the odor eliminating clothing to investigate to find facts. They also claim that ALS Enterprises, Inc. of Muskegon, Michigan as well as Gander Mountain Co., Cabela’s Inc., Bass Pro Shops Inc. and Browning Arms Co., conspired to keep the truth from consumers.

2. Since 1992, Defendants have uniformly misrepresented to consumers that their odor eliminating clothing “innovation” would not only eliminate 100% of human odors, but could also be reactivated or regenerated in a household dryer after the clothing has become saturated with odors. Defendant’ representations regarding the ability of their so-called innovative odor eliminating clothing are false. Defendants’ odor eliminating clothing has very little, if any, odor eliminating capabilities and cannot be reactivated or regenerated in a household dryer.

3. By making false, fraudulent and misleading statements to consumers, Defendants have deceived thousands of consumers into purchasing odor eliminating clothing. Hunters buy Defendants’ odor eliminating clothing only for its purported ability to eliminate all human odors and to be regenerated for repeated use. Consumers have been duped into spending significant amounts of money on a product that does not work as represented and as a result, Plaintiffs have been harmed by Defendants’ fraudulent misrepresentations.

This clearly lays out the strategy I believe of the Plaintiffs in regards to proving the public was duped. Their claim that the clothing eliminated human odors 100% and that it could be “reactivated” or “regenerated” in a dryer was deliberately false and that the manufacturers of the clothing knew it.

This is still not going to be an easy case to prove. This kind of false advertising saturates the consumer markets today and has for years. I think the Plaintiffs are going to have to show how this case is really any different.

The other part of their case involves the conspiracy theory. Plaintiffs are claiming that ALS Enterprise, Inc. along with Gander Mountain, Bass Pro Shops, Cabela’s and Browning Arms, knew the products did not work and they worked together to keep this information from the public.

In the filed lawsuit, the Plaintiffs make their initial accusations for a conspiracy theory this way.

Defendants conspired to uniformly deceive consumers. Defendants’ fraud could not have been as pervasive or remained undetected for as long as it did in the absence of Defendants’ conspiracy to misrepresent the efficacy and attributes of their odor eliminating clothing. Each Defendant manufactured and sold the exact same odor eliminating clothing as a licensee of Defendant ALS. The misrepresentations of each Defendant are dependent on the uniform misrepresentations of the other Defendants- if one Defendant had exposed the lie of its competitor’s clothing, it would have revealed its own lies. Defendants agreed to uniformly, and as a group, misrepresent to consumers that their odor eliminating clothing eliminates human odors and can be reactivated or regenerated in a household dryer. Defendants also conspired to suppress and conceal the truth about the odor eliminating clothing sold by the other Defendants – the same clothing they were also selling. Defendants failed to disclose material facts to consumers about their own and their competitor’s odor eliminating clothing. As a result of Defendants’ agreement to suppress the truth and maintain a uniform lie, the conspiracy is able to achieve the deception that any one Defendant could not have achieved individually.

Proving conspiracies is a very difficult thing to do. Making a claim about the prospects of conspiracy among these retail giants and proving it is some different. I would have to assume that the Plaintiffs have substantial evidence to prove their accusations.

Further along in the filed lawsuit, the Plaintiffs get into more specifics about the conspiracy. Plaintiffs say that any Defendants could not have discovered that the scent blocking clothing did not work “despite reasonable and diligent investigation”. They further claim that this effort would have been hampered “because of Defendants’ failure to disclose and active concealment of their fraud”.

Once again the suit is claiming that all the Defendant’s named in the suit were not only aware that the clothing didn’t work but that they all actively participated in covering it up making it impossible for consumers to find out the truth.

The suit then gets into more specifics about the actions taken by different Defendants to cover up.

52. Defendant ALS has published in national publications articles responding to criticism of Defendants’ odor eliminating clothing. Defendant ALS defends the purported science behind Defendants’ odor eliminating clothing and provides other Defendants with the same information to respond to doubters and critics. Defendant ALS employed numerous outdoor writers and hunters to promote its odor eliminating clothing and to provide misinformation about its efficacy. Defendant ALS relies heavily on
testimonials from hunters purporting to have had success while employing Defendants’ odor eliminating clothing and raving about its odor eliminating capabilities.

53. Defendant ALS also instructed its employees to respond to messages posted in internet chat rooms that questioned Defendants’ representations regarding the ability of their odor eliminating clothing to eliminate all human odors. To certain individuals who have complained about or questioned the ability of Defendants’ odor eliminating clothing, Defendant ALS has consistently responded by citing to scientific testing, by stating that many factors can contribute to an unsuccessful hunt, and by suggesting that the clothing may not have been properly cared for or handled – not by disclosing the truth that the claims regarding the ability of its odor eliminating clothing were false. Defendant ALS’s founder himself, Greg Sesselman, has responded in writing to doubters by citing to scientific studies and testimonials as evidence of the efficacy of Defendant ALS’s clothing in eliminating human odors and being regenerated or reactivated.

The Plaintiffs make claims of active conspiracy against Cabela’s.

54. On its website chat rooms, Defendant Cabela’s also removed postings by some users who questioned Defendants’ odor eliminating clothing and challenged the ability of Defendants’ odor eliminating clothing to eliminate odor and be regenerated or reactivated in household dryers.

While I understand that I am only looking at the full lawsuit filed in the state of Minnesota, I would still have to say that the Plaintiffs are going to have their hands full proving their claims in a court of law unless they have substantial proof. Proving conspiracy is difficult to do and I might even suggest they would need witnesses at a level other than those whose duty it is to manage a message board, to prove malicious intent to defraud the public as a group.

None of us can blame a company for promoting and standing up for their product, however there are limits, many of which we as consumers are subject to all day and everyday. In my opinion, from the information that I have looked at in this lawsuit, perhaps the strongest evidence the Plaintiffs have is in the Defendants’ marketing that their clothing blocks human odor 100%. Any product making a claim to 100% certainly opens the door to challenges of accuracy.

The other issue is the reactivation of the charcoal within the clothing. Their case may be enhanced if they can bring solid reports from the military that their use of such clothing for handling chemicals is limited in use and disposed of after saturation because it is rendered useless or ineffective.

While these things may not be accurate advertising and marketing, one has to question whether it is in line with a class action lawsuit and certainly whether all these companies conspired to dupe the consumers.

It will be an interesting case that will have a broad and sweeping effect on all of us.

For those interested in viewing the entire lawsuit, may do so at this link (pdf) provided by the staff of Skinny Moose Media.

Tom Remington

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