A federal judge has denied class certification in a lawsuit against the maker of a homeopathic flu remedy, but is permitting the man who filed the suit to proceed with his claim for individual relief.
Plaintiff Chad Conrad sued Boiron Inc. and Boiron USA Inc., manufacturer of a homeopathic remedy called Oscillococcinum, sold under the name Oscillo. According to the lawsuit, Boiron claimed the remedy would relieve flu-like symptoms.
“The principal allegation … has been that Oscillo is nothing more than a sugar pill because its active ingredient, Anas Barbariae (a combination of duck hearts and livers) is diluted so extensively in the homeopathic manufacturing process that there is no statistical possibility that even a single molecule of it remains in the final product,” wrote U.S. District Judge William T. Hart in his opinion issued Nov. 12.
Because Oscillo is a homeopathic remedy, it is not regulated by the FDA, which does not regulate vitamins, herbs and homeopathic supplements.
In his suit, Conrad, who purchased Oscillo in late July 2012, sought to represent all people who purchased the drug on or after the same date, as permitted by the Illinois Consumer Fraud and Deceptive Business Practices Act.
The judge noted similar allegations have already been made against Oscillo, including a case in the Southern District of California that resulted in a class settlement and was affirmed on appeal. That settlement, reached in October 2012 and affirmed in 2015, provided reimbursement to past purchasers of Oscillo, required changes to the product’s labeling and set up a refund program under which customers could obtain refunds within 14 days of purchase by providing their contact information, the product UPC and the original cash register receipt.
The judge noted Conrad could have benefited from the refund period, but purchased the drug outside of the class period of the settlement. He also noted that class certification has been denied in two other lawsuits regarding Oscillo.
Conrad’s case was stayed pending resolution of the appeal in the Southern California case. Once that case was settled, Boiron moved to dismiss the case or at least to strike the class allegations. Among the company’s arguments was that Conrad’s claim was rendered moot by the existing refund program and the fact that the company offered to settle with him before he filed his lawsuit.
The judge found the circumstances did not moot the case, but the offer Boiron made to Conrad before he filed the suit – reimbursing him the cost of the drug plus an additional 25 percent and reasonable attorney fees and costs – mean that he cannot be an adequate class representative, because the amount of the offer “exceeds any refund he could have obtained, as well as any actual damages that he suffered.” The class certification was denied, and the claims of the putative class were dismissed.
The judge dismissed Conrad’s claim for injunctive relief, finding Conrad cannot suffer future harm because he has no intention of buying Oscillo again. While the offer fully compensates the individual damages claim, it also asks for complete judgment in return, preventing Conrad from ever appealing. That finding resulted in the court’s opinion that the offer is not one of full compensation. Hart ruled that Conrad may proceed with his individual damages claim, and ordered the parties to discuss settlement before the next status hearing, scheduled for Nov. 19.
Conrad is represented in the action by the firms of Siprut PC and Boodell & Domanskis, of Chicago, and Bonnett Fairbourn Friedman & Balint, of Phoenix.
Boiron is represented by the firms of Arnstein & Lehr, of Chicago, and Orrick, Herrington & Sutcliffe, of Washington, D.C.