Photo of Stephen McConnell

We’ve seen it before.  The Southern District of Illinois will certify class actions with no real cause of action and no real damages.  While not as bad as the drive-through-class-certification state courts in southern Illinois, the nearby federal court will also perform doctrinal somersaults to benefit the local plaintiffs’ bar.  With both the lower state and federal courts in that otherwise lovely corner of the Midwest, an out of state corporate defendant must tough out absurd hijinks, then cross its corporate fingers and seek relief from the (usually) more rational appellate courts.  The Seventh Circuit, in particular, makes a full-time job out of spotting and reversing errors.

That not only happened in Eike  v. Allergan, Inc., 2017 WL 881834 (7th Cir. March 6, 2017), it happened courtesy of the pen of Judge Richard Posner.  In nine short paragraphs, with his typical absence of footnotes, Judge Posner exposes the purported class actions for the exercises in silliness they were.  So devastating is the reversal, so sharp is his prose, that Judge Posner’s miniature masterpiece must be viewed as a judicial thumb in the eye of the lower court.  The Seventh Circuit not only reversed the district court’s certification of the classes, it also ordered the case dismissed with prejudice for lack of standing.

Illinois calls itself the Land of Lincoln.  Lincoln said a lot of famous things.  One was, “Never stir up litigation.  A worse man can scarcely be found than one who does this.”  Imagine what Lincoln would have said if he had a look at a claim as batty as the one in Eike.  The plaintiffs sued pharmaceutical manufacturers of eye drops used for the treatment of glaucoma because the drops were bigger than they needed to be.  The theory is that the plaintiffs were paying more than they would have if the drops were smaller.  The plaintiffs alleged no conspiracy among the defendants.  This was not an antitrust case.   (Woe unto the plaintiffs if it were, and then they drew Judge Posner on the panel!) Nor did the plaintiffs allege any misrepresentations.  Rather, the plaintiffs simply sought, because they thought it would be less expensive, a smaller dose product that nobody made.

Judge Posner undermines any allegation (really an assumption) that there is anything nefarious about bigger eye drops.  Only a small bit of each eye drop contains the active ingredients, only an even smaller bit makes it into the cornea for therapeutic effect, and many eyes can hold more than the amount of the bigger eye drops.  Older patients might have trouble getting all of the drops into their eyes.  Consequently, smaller eye drops might result in not enough of the good stuff getting in where it’s needed.  Moreover, it is not self-evident that bigger eye drops is a method to gouge consumers. Smaller eye drops might force consumers to buy more.  In any event, who gets to decide how big the eye drops should be?

And that’s when we get to another important point Judge Posner makes in this very short opinion.  Those big eye drops were approved by the FDA as being safe and effective for the treatment of glaucoma.  If the class members really think smaller eye drops would be just as effective yet cheaper, they should go to the FDA.  “A court can review a determination by the FDA, but it cannot bypass the agency and make its own evaluation of the safety and efficacy of an unconventionally sized eye drop for treatment of glaucoma.”  True.  But isn’t that the sort of thing that too many product liability actions ask, though even worse, as the second-guessing of the FDA is by juries, not judges?  Anyway … “Not that the class members are likely to get far with the FDA.  They don’t want the agency to rescind its approval of the large eye drops – they don’t argue that the large eye drops are unsafe or ineffective.  They just want the defendant companies to start manufacturing smaller drops.  But the agency can’t force a private company to manufacture a product the company doesn’t want to make – all it can do is approve or disapprove drugs that a company does make.”

Finally, Judge Posner sees through the suit for what it is – no real complaint of injury, but a plea that the defendants could somehow do better by the plaintiffs.  So what?  “The fact that a seller does not sell the product that you want, or at the price you’d like to pay, is not an actionable injury; it is just a regret or disappointment – which is all we have here, the class having failed to allege ‘an invasion of a legally protected interest.'”

The real regret or disappointment here will be felt by the plaintiff lawyers, who were deprived of the opportunity to extract large legal fees from bogus class actions.

This blogpost is now at eight paragraphs, only one fewer than in Judge Posner’s opinion.  The longest paragraph in the opinion draws an extended analogy to cat breeders who recommend expensive cat food and drinking fountains.  It is weirdly worth reading.