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Haj v. Pfizer Inc.

United States District Court, N.D. Illinois, Eastern Division

April 13, 2018

KARMEL AL HAJ and TIMOTHY A. WOODHAMS, individually and on behalf of all others similarly situated, Plaintiffs,
v.
PFIZER INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman Judge.

         On behalf of themselves and a putative nationwide class, Karmel Al Haj and Timothy Woodhams allege in this diversity suit that Pfizer Inc., which markets and distributes Robitussin cough syrup, deceives consumers by charging more for “Maximum Strength” Robitussin even though it contains a lower concentration of one of its two active ingredients than does “Regular Strength” Robitussin. Doc. 1. Pfizer moves to dismiss Woodhams's claims for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), to dismiss Al Haj's claims under Rule 12(b)(6), and to strike the complaint's class claims under Rule 12(f). Docs. 15, 17, 20. The motion to dismiss Woodhams's claims is granted, and the two other motions are denied.

         Background

         In resolving the Rule 12(b)(2) motion, the court considers the complaint's well-pleaded allegations and the evidentiary materials submitted by both sides. No. party has requested an evidentiary hearing, so the court must accept Woodhams's factual averments and resolve all factual disputes in his favor. See Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012) (“[W]here, as here, the issue of [personal jurisdiction] is raised on a motion to dismiss, the plaintiff need only make a prima facie showing of jurisdictional facts. We therefore accept as true all well-pleaded facts alleged in the complaint and resolve any factual disputes … in favor of the plaintiff.”) (citation omitted); Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782-83 (7th Cir. 2003).

         In resolving the Rule 12(b)(6) and Rule 12(f) motions, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016); United States v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, ” along with additional facts set forth in Al Haj's brief opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir. 2013). The facts are set forth as favorably to Al Haj as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).

         Al Haj is a citizen and resident of Illinois. Doc. 1 at ¶ 8. On April 16, 2017, he purchased an 8-fluid ounce bottle of Maximum Strength Robitussin at a Walmart in Illinois. Ibid. Woodhams is a citizen and resident of Michigan. Id. at ¶ 9. On December 23, 2016, he purchased an 8-fluid ounce bottle of Maximum Strength Robitussin at a Harding's Market in Michigan. Ibid. Relying on what they believed to be Pfizer's representation that the product- by virtue of its being called “Maximum Strength”-contained a higher concentration of its two active ingredients than did Regular Strength Robitussin, they paid more than they would have for the same-sized bottle of Regular Strength Robitussin. Id. at ¶¶ 8-9.

         Pfizer is a Delaware corporation with its principal place of business in New York. Id. at ¶ 10. Its Consumer Healthcare division, which markets and distributes Robitussin, maintains its principal place of business in New Jersey. Ibid.

         Both Maximum Strength Robitussin and Regular Strength Robitussin contain two active ingredients: dextromethorphan hydrobromide (“DXM Hbr”) and guaifenesin. Id. at ¶¶ 17-18. DXM Hbr combines DXM-the most widely used antitussive, or cough suppressant, in the United States-with an antihistamine, which is used to treat typical allergy and cold symptoms. Id. at ¶¶ 12-13. Guaifenesin is an expectorant, which thins bronchial secretions to make coughing more productive. Id. at ¶ 15.

         The recommended adult dose of Regular Strength Robitussin is 10 ml; each dose contains 20 mg of DXM Hbr and 200 mg of guaifenesin. Id. at ¶¶ 25-26. The same volume of Maximum Strength Robitussin contains the same amount of guaifenesin (200 mg), but only half as much DXM Hbr (10 mg). Id. at ¶¶ 27-29. Maximum Strength Robitussin thus has a lower concentration of DXM Hbr and the same concentration of guaifenesin than does Regular Strength Robitussin. Id. at ¶¶ 29-31.

         Table 1: Quantity of active ingredient per 10 ml

Product

DXM Hbr

Guaifenesin

Regular Strength

20 mg

200 mg

Maximum Strength

10 mg

200 mg

         Then how, one might ask, can Pfizer call Maximum Strength Robitussin “Maximum Strength” and Regular Strength Robitussin “Regular Strength”? The answer would be obvious to any reasonably competent carnival game operator: Pfizer fixes the recommended adult dose of Maximum Strength Robitussin at 20 ml, double the recommended adult dose of Regular Strength Robitussin. Id. at ¶¶ 27-28. This results in the recommended adult dose of Maximum Strength Robitussin having the same amount of DXM Hbr (20 mg) and twice as much guaifenesin (400 mg) as does the recommended adult dose of Regular Strength Robitussin. Ibid. The rub is that Maximum Strength Robitussin contains only 5.9 doses per four-ounce bottle, while Regular Strength Robitussin contains double that-11.8 doses per four-ounce bottle. Id. at ¶ 31. Yet a bottle of Maximum Strength Robitussin, with half as many doses as Regular Strength Robitussin, is more expensive at retail than a bottle of Regular Strength Robitussin. Id. at ¶¶ 33-35. Using the prices alleged in the complaint, id. at ¶ 34, a purchaser of Maximum Strength Robitussin is charged approximately twenty percent more per mg of guaifenesin, and more than twice as much per mg of DXM Hbr, than is a purchaser of Regular Strength Robitussin.

         To differentiate the two products, the Maximum Strength Robitussin package contains a large red bar within which the phrase “Maximum Strength” is printed in white letters, and it places the word “MAX” in red letters underneath the letters “DM.” Id. at ¶¶ 17-19.

         (Image Omitted.)

         The complaint contains three counts, each brought on behalf of Plaintiffs individually and a putative nationwide class of “[a]ll persons that paid for Maximum Strength Robitussin Coughਗ Congestion DM for personal, family or household uses.” Id. at ¶ 36. Count I alleges that Pfizer has violated the New Jersey Consumer Fraud Act (“NJCFA”), N.J. Stat. Ann. § 56:8-1 et seq. Id. at ¶¶ 47-54. Count II alleges, in the alternative, that Pfizer has violated all fifty States' consumer protection laws, including the Illinois Consumer Fraud and Deceptive Business Practices Act ...


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