Charlene Eike, et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees,
Allergan, Inc., et al., Defendants-Appellants.
February 7, 2017
from the United States District Court for the Southern
District of Illinois. No. 3:12-cv-01141-SMY-DGW - Staci M.
Bauer, Posner, and Sykes, Circuit Judges.
Posner, Circuit Judge.
defendants appeal from an order certifying eight classes
(which for simplicity we'll pretend are just one class),
consisting of persons in Illinois and Missouri who take eye
drops manufactured by six pharmaceutical companies-the
defendants in the case-for treatment of glaucoma. The claim
is that the defendants' eye drops are unnecessarily
large, in violation of the Illinois Consumer Fraud Act, 815
ILCS 505/1 et seq., and the Missouri Merchandising
Practices Act, Mo. Rev. Stat. §§ 407.010 et
seq., because each eye drop exceeds 16 microliters
(equal to a tenth of one percent of a tablespoon), and the
class contends that the optimal size of an eye drop for
treatment of glaucoma is 16 microliters, no more. In places
it says that drops as small as 5 microliters would be safe,
but its claim is merely that anything larger than 16
microliters is wasteful because, it contends, the additional
microliters add no therapeutic value.
difference between the price per drop of the eye drops at
their present size, and the presumably lower price if the
drops were smaller, multiplied by the number of drops that
have been bought by the members of the class, are the damages
the class is seeking.
does not argue that the price of the current eye drops is a
result of collusion, whether tacit or express, among the
defendants; this is not an antitrust case. Nor is there any
allegation of misrepresentation. The argument is only that
the price of the eye drops is excessive because a smaller
drop, costing less to produce and (especially) to package,
could be sold at a lower price yet still cover the
producers' costs, and therefore the only benefit of the
larger drop is to the producers' profits, which is why,
the class argues, the producers are not motivated to make the
change. This assumes that profits would decline if the
defendants switched to selling the smaller,
cheaper-to-produce eye drops. But that's far from
certain; lower prices might result in greater sales and as a
result higher rather than lower profits.
class further alleges that the large eye drops have a higher
risk of side effects-but does not explain what the side
effects are-and are more likely to be used up faster. Yet
there is no claim that members of the class have experienced
side effects from the large drops, or have been harmed
because they ran out of them early (on the theory that the
larger the drops the fewer there are in each bottle).
Unsurprisingly, therefore, the only damages sought are for
the "pock-etbook" injury of paying what the class
contends to be an unnecessarily high price for the
defendants' eye drops because of the size of those drops.
the lack of any suggestion of collusion by the defendants
either with each other or with other producers (if there are
other producers) of eye drops for treatment of glaucoma, or
of any claim that the defendants misrepresent the quality of
their product, we are asked to decide a case based simply on
dissatisfaction with a product made by multiple firms, or
with its price. Suppose the class members all happened to own
pedigreed cats, and the breeders who had sold the cats to the
class members had told them that as responsible cat owners
they would have to feed the cats kibbles during the day and
Fancy Feast at night and buy a fountain for each cat because
cats prefer to drink out of a fountain (where gravity works
for them) rather than out of a bowl (where gravity works
against them) and they don't like to share a fountain
with another cat. And suppose the buyers do as told, buying
what they are told to buy from pet stores, but it turns out
that the cats have large appetites, the cat food is quite
expensive, and the fountains are expensive and not wholly
reliable. The breeders had made no misrepresentations,
concealed no information, answered all questions of
prospective buyers truthfully. Nevertheless many of the
buyers are dissatisfied. They think-maybe correctly- that the
cat food is needlessly expensive and the fountain a fragile
luxury. Yet would anyone think they could successfully sue
the breeders? For what? The breeders had made no
misrepresentations. Had a prospective buyer asked one of the
breeders what the annual cost of maintaining the cat would
be, the breeder would, let's assume, have given him a
realistic estimate. There would be disappointment in the
example given, but no cause of action.
the same here. The only eye drops sold by the defendants for
the treatment of glaucoma are larger than 16 microliters.
There are reasons for this, or so the defendants argue. Each
eye drop consists mostly of inactive ingredients; the active
pharmaceutical ingredient that is what treats the glaucoma is
only about 1 percent of the drop, and only 1 to 7 percent of
that ingredient crosses the cornea into the eye
itself, where it can exert its therapeutic effect. The amount
of fluid the eye can hold without overflowing varies from
person to person and, the defendants assert, often exceeds 16
microliters. The smaller the drop, therefore, the weaker its
likely therapeutic effect for patients whose eyes could have
absorbed a larger drop. In addition, elderly patients,
patients with unsteady hands, and patients who already have
serious eye problems, often have trouble getting eye drops
into their eyes, and the smaller the drop the likelier they
are to miss.
defendants' large eye drops have been approved by the
Food and Drug Administration (FDA)-in other words have been
determined to be safe and effective for treatment of
glaucoma. That doesn't exclude the possibility that a
smaller drop would be as or even more effective, and also
cheaper. But those are matters for the class members to take
up with the FDA. See 21 C.F.R. § 10.30. A court can
review a determination by the FDA, but it cannot bypass the
agency and make its own evaluation of the safety and efficacy
of an unconventionally sized eye drop for treatment of
glaucoma. Not that the class members are likely to get far
with the FDA. They don't want the agency to rescind its
approval of the large drops-they don't argue that the
large drops are unsafe or ineffective. They just want the
defendant companies to start manufacturing smaller drops. But
the agency can't force a private company to manufacture a
product the company doesn't want to make-all it can do is
approve or disapprove drugs that a company does make.
supposing it were demonstrable that a smaller eye drop would
be more effective and cheaper than the ones manufactured by
the defendants, the class members would have no cause of
action. You cannot sue a company and argue only-"it
could do better by us"-which is all they are arguing. In
fact, such a suit fails at the threshold, because there is no
standing to sue. One cannot bring a suit in federal court
without pleading that one has been injured in some way
(physically, financially-whatever) by the defendant.
That's what's required for standing. The fact that a
seller does not sell the product that you want, or at the
price you'd like to pay, is not an actionable injury; it
is just a regret or disappointment-which is all we have here,
the class having failed to allege "an invasion of a
legally protected interest." Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1548 (2016); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
the grant of class certification is vacated and the case
remanded with directions ...