Class Actions -- 2017

Cottrell v. Alcon Laboratories, Inc.   (3rd Circuit)

Class action to recover for "wasted" medication

This is a class action suit against a manufacturer of glaucoma medication because the eye-droppers were alleged to dispense more liquid than was required for treatment. The trial court dismissed the claim without reaching the merits, saying the plaintiffs did not have standing because the alleged injury was too speculative.

The NAM, joined by other business groups, filed an amicus brief on appeal supporting this result. The plaintiffs claimed that they might have paid less for the medication if it were packaged more efficiently. However, we argued that federal law prohibits changing the packaging without approval from the Food & Drug Administration, and that the company could have priced its medication based on number of doses without changing the total price to the consumer. Thus, there was no injury in fact.

Allowing this kind of no-injury class action would encourage a variety of speculative and novel injury theories based on such things as inefficient packaging, suboptimal manufacturing techniques, or ineffective advertising. We emphasized the substantial costs of such class actions, particularly to small businesses and consumers as well.

In 2017, the court reversed the lower court’s dismissal, stating that the lower court failed to correctly analyze the specific facts claimed by the defendant. The court substituted its own “proper” analysis in place of the lower court’s and determined the decision to dismiss the case at this point was premature. It sent the case back to the lower court for further deliberation.

Related Documents:
NAM amicus brief  (September 28, 2016)


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