Judge: Difference between 'mass action,' 'class action' means Pfizer can't flush Robitussin suit

By Scott Holland | Aug 10, 2018

A federal judge has rejected Pfizer’s attempt to scuttle a class action accusing the drugmaker of misleading consumers over the actual strength of its maximum strength Robitussin cough syrup, saying a U.S. Supreme Court decision doesn’t necessarily mean the company shouldn’t have to face a nationwide class action in Chicago federal court.

A federal judge has rejected Pfizer’s attempt to scuttle a class action accusing the drugmaker of misleading consumers over the actual strength of its maximum strength Robitussin cough syrup, saying a U.S. Supreme Court decision doesn’t necessarily mean the company shouldn’t have to face a nationwide class action in Chicago federal court.

U.S. District Judge Gary Feinerman issued an opinion Aug. 3 in Chicago in favor of Karmel Al Haj, who accused Pfizer Inc. of deceptively charging more for maximum strength Robitussin cough syrup than the regular product, alleging the maximum strength product actually has a lower concentration of active ingredients. Feinerman said Pfizer couldn’t avoid having the issue tried in Chicago just because some potential class members don’t have a connection to Illinois.

The ruling comes after Feinerman already granted Pfizer’s motion to dismiss the complaints of Al Haj’s co-plaintiff, Timothy Woodhams, for lack of personal jurisdiction. In both motions Pfizer relied on the 2017 U.S. Supreme Court decision on jurisdiction in Bristol-Myers-Squibb Co. v. Superior Court of California.

Pfizer attempted to argue that case’s precedent established it should not have to face nationwide class allegations for people “whose claims lack the requisite nexus to Illinois,” according to Feinerman. He detailed two contrasting theories on Bristol-Meyers, one that doesn’t require assessing personal jurisdiction with regard to potential class members who don’t live in a given state, and one that holds jurisdiction should be assessed for each absent class member. Feinerman agreed with the former.


Elizabeth Fegan  

Before the Bristol-Meyers opinion, he explained, “due process neither precluded nationwide or multistate class actions nor required the absent-class-member-by-absent-class-member jurisdictional inquiry urged by Pfizer. Bristol-Myers does not alter that landscape,” noting it was a mass action, not a class action.

Accepting Pfizer’s position in this instance, Feinerman added, would prompt an “extraordinary sea change in class action practice.” His opinion examined the ways in which the law determines who could belong to a class are and are not parties to a given action. He said Pfizer’s position boils down to an argument that “absent class members are not parties for purposes of diversity of citizenship, amount in controversy, Article III standing and venue, they are parties for purposes of personal jurisdiction over the defendant.

“That cannot be right,” Feinerman continued. “Personal jurisdiction shares a key feature with those other doctrines: each governs a court’s ability, constitutional or statutory, to adjudicate a particular person’s or entity’s claim against a particular defendant.”

Pfizer further argued a personal jurisdiction threshold is unique in that it safeguards a defendant’s right to due process, whereas standing or diversity of citizenship clauses do not. Feinerman disagreed, saying both subject matter and personal jurisdiction establish the conditions for what federal court district can take up a case, adding, “if anything, subject matter jurisdiction is the more demanding and important of the two, for unlike personal jurisdiction, it may not be forfeited or waived.”

He likewise rejected Pfizer’s attempt to invoke the Rules Enabling Act, saying his opinion in the issue doesn’t deprive Pfizer of any substantive right as a defendant.

“A defendant has no right to exclude an absent class member from the class on the ground that the defendant is not subject to personal jurisdiction as to that class member’s claim,” he wrote. “It is for the same reason that the cases holding that absent class members need not establish their own standing, and are not considered for venue, diversity of citizenship, or amount-in-controversy purposes, do not violate the REA.”

He also noted accepting Pfizer’s position would undermine the efficiency of aggregating claims under class action guidelines.

Al Haj and the putative class are represented in the case by attorneys Elizabeth A. Fegan, Steve W. Berman, Daniel J. Kurowski and Emily Rees Brown, of the firm of Hagens Berman Sobol Shapiro LLP, of Chicago.

Pfizer is represented by attorneys Gregory S. Bailey, John H. Beisner, Jessica D. Miller and Katherine F. Morgan, of the firm of Skadden Arps Slate Meagher & Flom LLP, of Chicago and Washington, D.C.

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Hagens Berman Sobol Shapiro LLP Pfizer Skadden, Arps, Slate Meagher & Flom

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