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The plaintiffs in Acosta-Aguayo v. Walgreen Co., 2023 U.S. Dist. LEXIS 34836  (N.D. Ill. March 2, 2023), visited their friendly neighborhood drug store and bought a lawsuit.  Well, first they bought pain relief patches.  Those patches were over the counter (OTC) products.  No prescriptions were required.  Maybe those pain patches worked and maybe they didn’t.  We do not know.  We cannot tell from the court’s opinion.  But we do know that the plaintiffs decided to deliver some pain themselves, in the form of a putative class action (actually four classes – nationwide, multi-state, California, and Illinois) alleging that the drug store falsely trumpeted some of its pain-relief products (in both patch and cream form) as being “maximum strength” when, in fact, there were other products with higher concentrations of the pain medicine.  The plaintiffs brought claims for breach of warranties, unjust enrichment, common law fraud, and violations of various state consumer protection statutes.  The defendant moved to dismiss the case.  The court’s opinion was like a bag of stuff you might bring back from a drug store – some goodies and some stuff that might make you embarrassed.  

Yes, for the millionth time you’ve seen the phrase in this blog, the AcostaAguayo decision was a veritable mixed bag.

The court began with the issue of standing, so we will do the same.  The lawsuit addressed three products – two patches and one cream.  The plaintiffs alleged that they bought one of the patches, did not buy the other patch, and did not buy the cream.  The court held that the plaintiffs had standing to assert claims for the products they actually purchased, plus other “substantially similar products.”  The two patch products looked the same, so both remained in the case, but the cream product was different and was dressed in labels with different colors, images, and product descriptions.  The cream product’s packaging was a different size and shape, and its text bullet points and bubbles were different from the patches.  You might think the court is making solid points here, or you might think it is dancing on the head of a pin, but the truth is that the plaintiffs never explained exactly how the cream label was substantially similar to the patch labels.  That failure led the court to dismiss the claims regarding the cream products.

The defendant made another argument that related to standing, though the Acosta-Aguayo court dealt with it in a different section of the opinion.  The plaintiffs alleged 12 statutory consumer protection claims on behalf of the multi-state class under the laws of 12 states. So far, so good.  But the plaintiffs were not personally injured in and did not reside in most of those states.  So claims under those state laws should be dismissed, right?  Wrong, said the Acosta-Aguayo court.  It read cases in the Seventh Circuit and Northern District of Illinois to reflect a “prevailing view” that efforts to strike class allegations should be reserved for the class certification stage.  They would survive the pleading stage.  No pain relief there.

The most interesting issue in Acosta-Aguayo was whether the product labels were misleading.  According to the defendant, the OTC patches did contain the “maximum strength” of pain reliever medication in OTC products.  There were prescription products that contained higher doses, but so what? The defendant asserted that the OTC patches contained the maximum concentration permitted by the FDA in nonprescription external analgesics.  The label was not misleading.  Rather, the label was fully accurate.  Consumers coming into pharmacies without a prescription would not be able to buy any product that is stronger.  This argument by the defendant thoroughly persuaded our biased, flinty, defense-hack noggins.  But it did not persuade the Acosta-Aguayo court.  Here is the court’s answer to a defense argument that we thought was unanswerable:  “Yet Defendant does not argue that a reasonable consumer would know this fact.”  Our eloquent answer to this answer follows thusly:  Huh?  We simply do not get the court’s point.  It gives us a headache.  And anything less than maximum strength will not suffice to send such headache away.  But we will not get too exasperated by the Acosta-Aguayo’s leaps of illogic, because the court also says that at this pleading stage the plaintiffs “have raised a reasonable inference that for the Patch products, similar 5% lidocaine OTC products are available.  Whether Plaintiffs can prove this is a matter for another day.”  We don’t see how the plaintiffs managed to raise such an inference, but we’ll happily seize upon this alleged point as a point of distinction.  In the meantime, look for more class action strike suits over “maximum strength” product descriptions.  And while we are in such a jolly, life-affirming, constructive mood (the pain reliever must be working), we suggest that manufacturers use language (which we think we have seen) specifying that the product contains the maximum strength a consumer can get without a prescription.  The idea behind this language is to head off idiocy, but we will not specify whose.

And now that we’ve pulled out the grimmer items from the drugstore bag (the stuff that stings, pokes, and smells bad), let’s grab the candy.  In Acosta-Aguayo court dismissed the claim alleging that the defendant acted “unfairly,” because the plaintiffs mentioned no violation of any statutory or administrative rule.  The warranty claims flunked because the plaintiffs furnished no pre-suit notice.  The common-law fraud claim failed for lack of intent, since plaintiffs plead only negligence, and also because there is no duty to disclose in an ordinary buyer/seller relationship.  In a desperate attempt to fend off dismissal, the plaintiffs suggested that the drug store was a fiduciary, which seems patently silly, but the court rejected the argument not only on silliness grounds (no special relationship) but also because it is an “axiomatic rule that a plaintiff may not amend his complaint in his response brief.”  Finally, the court dismissed the claim for injunctive relief because there was no likelihood of future injury.  The plaintiffs “do not claim that they will purchase the allegedly mislabeled Products in the future.  Plaintiffs’ awareness of the alleged deceptive practice undermines the notion that they will likely sustain imminent injury.”  There is a price to enlightenment.

As we told you, Acosta-Aguayo is a mixed bag.  While the best parts of it do not completely erase the pain of the worst, we are, at this point, comfortably numb.