False advertising lawsuits challenging lidocaine products that are represented to be “maximum strength” have now survived motions to dismiss in several instances. Most recently, in Gonzalez Rodriguez v. Walmart, Inc., the plaintiffs brought a putative class action alleging that Walmart’s private label Equate-brand lidocaine patches and creams are falsely labeled as “maximum strength” or “max strength.” The three challenged products are labeled as 4% lidocaine, and allegedly contain 360 milligrams of lidocaine. The plaintiffs allege that certain prescription-strength patches deliver up to a 5% dose of lidocaine, and other over-the-counter patches deliver 560 milligrams of lidocaine—200 milligrams more than Walmart’s products. The Southern District of New York concluded that plaintiffs had adequately pled claims under New York’s consumer protection statutes (GBL §§ 349 and 350), reasoning that “it is plausible that a reasonable consumer would understand ‘maximum strength’ to mean that the patch product contains the maximum amount of lidocaine available on the market for that type of product.” Gonzalez Rodriguez v. Walmart, Inc., 2023 WL 2664134, at *4 (S.D.N.Y. Mar. 28, 2023). Though Walmart argued that (1) prescription-strength patches are not proper comparators and (2) the plaintiffs used erroneous calculations regarding the amount of lidocaine in comparator products, the court rejected these arguments as “fact-intensive disputes [] not appropriate for resolution at the motion-to-dismiss stage.”Continue Reading New York Court Permits “Maximum Strength” False Advertising Case to Proceed
Post-Litigation Refund Check Does Not Moot Class Representative’s Damages Claim, but It Does Defeat Class Certification
When a class action is filed, defendants often wonder whether tendering a payment to a class representative can defeat the claims. In a recent decision, the Third Circuit held that a mid-litigation payment to a class representative plaintiff does not moot her claim if the check is not cashed. Duncan v. Governor of the Virgin Islands, — F.4th —-, 2022 WL 3906213 (3d Cir. Aug. 31, 2022). But tendering the payment, even if the check is uncashed and even if the plaintiff claims the payment does not cover the full value of her claim, did make the plaintiff an atypical class representative and provided a basis to defeat certification of a damages class.Continue Reading Post-Litigation Refund Check Does Not Moot Class Representative’s Damages Claim, but It Does Defeat Class Certification
Seventh Circuit Explains That for Commonality Purposes Plaintiffs Need Not Establish the Content of a Uniform Policy, Only Its Existence
In a recent decision, the Seventh Circuit answered a key question in Rule 23 commonality analyses: whether at the certification stage plaintiffs need to establish the terms of an allegedly common policy, or only its mere existence. Ross v. Gossett, — F.4th —-, 2022 WL 1421315 (7th Cir. May 5, 2022).
The putative class consisted of all Illinois Department of Corrections inmates housed in April through July 2014 at four IDOC correctional centers. They sued various IDOC officials for alleged constitutional violations stemming from prison-wide “shakedowns” executed by the defendants for purposes of sanitation and to discover and remove contraband. They further alleged that the shakedowns were conducted pursuant to a single, unified policy across all four prisons.
Fourth Circuit Rules that Settling Parties, Not Objectors, Bear the Burden of Showing a Proposed Class Settlement Should Be Approved
The Fourth Circuit recently clarified two points of law on which it had not previously spoken: (1) who bears the burden when a class member objects to a proposed settlement as unfair, unreasonable, and inadequate; and (2) whether an objecting class member can be required to release a valueless claim without compensation. 1988 Tr. for Allen Child. Dated 8/8/88 v. Banner Life Ins. Co., 2022 WL 774731 (4th Cir. Mar. 15, 2022). In a long-running dispute between a life insurance company and a class of its policyholders, policyholder 1988 Trust for Allen Children Dated 8/8/88 (the “Trust”) opted out and objected to the proposed settlement.Continue Reading Fourth Circuit Rules that Settling Parties, Not Objectors, Bear the Burden of Showing a Proposed Class Settlement Should Be Approved
In Food Labeling Dispute, California Federal Court Refuses to Ignore Back Panel Disclosures Absent Explicit Alleged Misrepresentation on Front Panel
Last week, a California district court dismissed a putative class action brought by serial filer Spencer Sheehan against Icelandic Provisions, Inc., the maker of an eponymous Skyr (Icelandic-style yogurt) product. The plaintiff, bringing a case captioned Steinberg v. Icelandic Provisions, Inc., No. 21-cv-5568 (N.D. Cal.), alleged that Icelandic Provisions misleads consumers into believing that its product is made in Iceland when it is actually made in New York. She pointed to the front label featuring the “Icelandic Provisions” brand name, the words “Traditional Icelandic Skyr” at the top, and a cartoon countryside with a snow-covered backdrop.Continue Reading In Food Labeling Dispute, California Federal Court Refuses to Ignore Back Panel Disclosures Absent Explicit Alleged Misrepresentation on Front Panel