A putative class action over the size of eye medicine drops dismissed by a federal judge for lack of standing has been revived by the U.S. Court of Appeals for the Third Circuit.
The class action was filed in U.S. District Court for the Eastern District of Pennsylvania and alleged that the defendant pharmaceutical companies manufactured dispensers that emitted drops that were too large and wasted medicine, causing the plaintiffs economic harm. The case was filed under numerous states’ unfair trade practice laws.
The defendants are Alcon Laboratories, Alcon Research Ltd., Falcon Pharmaceuticals Ltd., Sandoz Inc. Allergan Inc., RP, Allergan USA Inc., Allergan Sales, Pfizer Inc., Valeant Pharmaceuticals International, Bausch & Lomb Inc., Aton Pharma Inc., Merck & Co. Inc., Merck Sharp & Dohme Corp., Prasco and Akron Inc.
The litigation was dismissed after a district judge held that plaintiffs didn’t plead facts to illustrate standing.
Third Circuit Judge Luis Felipe Restrepo said in the court’s opinion that the district judge erroneously concluded that because the plaintiffs failed to prove fraud collusion between the pharmaceutical companies, the plaintiffs had no claims.
“This reasoning fails to recognize a category of business practices entirely separate from practices that are fraudulent, deceptive, or misleading–’unfair’ business practices–prohibited under the state consumer protection statutes invoked,” Restrepo said.
Additionally, Restrepo said a valid claim for relief is not a requirement for standing.
Restrepo said the district judge “cast the plaintiffs’ allegations as mere grumblings that defendants’ products were priced too high or packaged inefficiently, because the allegations lacked notes of fraud, deception, or misrepresentation.”
He continued, ” … Therefore, the district court’s characterization of plaintiffs’ claims as ‘sound[ing] in fraud’ was inaccurate, and the conclusion that plaintiffs were without standing due, in part, to the absence of theories of injury ‘normally attendant to consumer fraud claims,’ misses the mark.”
Kirkland & Ellis attorney Robyn Bladow argued the case on behalf of the defendants and did not respond to a request for comment.
The plaintiffs’ attorney, Kevin Carnie of Simon Law Firm, also did not respond to a request for comment.
While Third Circuit Judge Michael Chagares sided with Restrepo, Judge Jane Richards Roth dissented.
“I am sympathetic to the difficulties in demonstrating marketwide injuries in class action litigation,” Roth wrote in her dissenting opinion. “The difficulty of such a showing, however, is not an excuse to treat jurisdiction lightly; ‘jurisdiction is a strict master.’ Today’s ruling flouts this principle, allowing class action plaintiffs to ignore ‘the exacting federal standing requirements’ by offering nothing more than speculation about complex and industry-specific pricing models.
P.J. D’Annunzio can be contacted at 215-557-2315 or firstname.lastname@example.org. Follow him on Twitter @PJDannunzioTLI.