A federal judge won’t let Walgreens completely close out a class action alleging the pharmacy giant engaged in deceptive marketing regarding “maximum strength” lidocaine patches and creams.
Tam Dang Yasmine Acosta-Aguayo’s first amended complaint against Walgreens says the company sells over-the-counter local anesthetics intended to remediate pain associated with arthritis, back injuries, muscle strains and bruises marketed as “maximum strength,” although lidocaine constitutes just 4% of the ingredients. Competing patches and creams contain 5% lidocaine, according to the lawsuit, which seeks to create a nationwide class.
Attorneys with the Shub Law Firm, Milberg Coleman Bryson Phillips Grossman, and Levin Sedran & Berman first filed the class action suit on behalf of Acosta-Aguayo in Chicago federal court in January 2022.
Although Acosta-Aguayo’s complaint targeted patches and cream products, Walgreens said she only alleged to have purchased one of the patches, “thus undermining” her ability to sue regarding any of the other products. Rowland said Acosta-Aguayo successfully argued the patch products were packaged similarly enough to allow her to represent a class despite only purchasing one kind.
“However the images of the cream as compared to the patch products demonstrates that these products are not substantially similar,” Rowland wrote. “The front labels are different in a number of ways, including the colors, images displayed (or not), product descriptions, and the shape and size of the packaging. The text in the bullet points is different, as well as the comparison text bubble on each label.”
According to Walgreens, “a reasonable consumer would not believe the phrase ‘Maximum Strength’ means that that no other product — prescription or otherwise — contains more lidocaine,” Rowland wrote. But she added that the difference between over-the-counter and prescription drugs is different to reasonable consumers than distinctions between different non-prescription offerings.
Walgreens also argued the U.S. Food and Drug Administration doesn’t allow more than 4% lidocaine in over-the-counter products. But Rowland said the question of what reasonable consumers might know or be expected to understand is a factual dispute better suited for later proceedings in the case.
Rowland would not, however, agree to sustain an allegation Walgreens acted unfairly, permitting only the deceptive conduct allegations under the Illinois Consumer Fraud Act, California unfair competition law, California false advertising law, California Consumer Legal Remedies Act and consumer fraud acts.
She further agreed with Walgreens that Acosta-Aguayo couldn’t bring her breach of express and implies warranties claims because she didn’t properly notify the company of her belief it committed those breaches. Acosta-Aguayo said she sent letters to Walgreens in January and March 2022 and cited a similar lawsuit in New York federal court. But Rowland said the letters came after Acosta-Aguayo filed her original complaint and said the existence of lawsuits only speaks to a defendants’ generalized knowledge of allegations.
Rowland also agreed Acosta-Aguayo’s common fraud claims are inadequate due to a failure to establish intent. She further rejected the contention the fraud claim can rest on a fiduciary relationship, saying the complaint doesn’t allege Walgreens had a duty to disclose information and that the cases Acosta-Aguayo cited didn’t involve commercial transactions between retailers and customers.
But Acosta-Aguayo’s unjust enrichment claim — an allegation the products carried an unwarranted premium price — survived on the strength of the other remaining counts. Rowland also allowed the complaint’s “12 statutory consumer protection claims on behalf of a multi-state class under the laws of 12 states, including California and Illinois,” to advance beyond the pleading stage, although she said Walgreens could revive its argument concerning a failure to demonstrate personal injury.
Finally, Rowland agreed to dismiss a claim for injunctive relief as well as a claim under the Illinois Uniform Deceptive Trade Practices Act because of a failure to show how the alleged conduct might cause future harm. She gave Walgreens until March 23 to answer the complaint.
Plaintiffs are represented by attorney Kevin Laukaitis, Melissa K. Sims and others with the Shub firm, of New Jersey; the Milberg firm, with offices in Chicago, Knoxville, Tennessee, and Bloomfield Hills, Michigan; and Levin firm, of Philadelphia.
Walgreens is represented in the case by attorneys Timothy J. Storino, Leah R. Bruno and others with the firm of Dentons US LLP, of Chicago and New York,.