A court in the Southern District of New York recently denied plaintiffs’ motion for class certification on adequacy grounds in a suit challenging the labeling of “Maximum Strength” Robitussin cough syrup.  See Woodhams v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC (S.D.N.Y. Mar. 21, 2024).

 Plaintiffs alleged that during a two-year period following a reformulation of Maximum Strength Robitussin, that product contained half as many doses per bottle as Regular Strength Robitussin yet cost more.  Woodhams, ECF No. 135 at 2-3.  Plaintiffs contended that “at the time of their purchases, they believed that a bottle of Maximum Strength Robitussin had a higher concentration of active ingredients than a bottle Regular Strength Robitussin,” id. at 7, and that because this was not so, the “Maximum Strength” claim was false or misleading.  The defendant argued that the claim was accurate because the “Maximum Strength” product contained the maximum amount of each active ingredient allowed by the FDA.

The court ruled that the plaintiffs had not established that they were adequate representatives under Rule 23(a)(4) because they were subject to unique defenses that threatened to become a focus of the litigation.  Id. at 25-28.  First, plaintiffs lacked documentary evidence that they purchased Maximum Strength Robitussin during the period at issue, relying instead on contradictory testimony.  Second, many of the plaintiffs also testified that they understood “Maximum Strength” to refer to the amount of active ingredients in a dose, yet their theory of deception relied on the amount of ingredients in a bottle.  The court explained: “If Plaintiffs did not purchase Maximum Strength Robitussin believing that the bottle had a higher concentration of active ingredients than Regular Strength Robitussin, a jury could find that there was no causal connection between Defendant’s alleged misrepresentation and Plaintiffs’ purchase of Maximum Strength Robitussin.”  Id. at 27.

The decision, which follows a similar ruling in a parallel case in the Northern District of Illinois, underscores that Rule 23(a) arguments focusing on plaintiffs’ purchases of challenged products and understanding of challenged claims can provide an effective defense to class certification in false advertising cases.  See Al Haj v. Pfizer Inc., 2020 WL 1330367 (N.D. Ill. Mar. 23, 2020) (denying class certification on adequacy grounds).