United States District Court, N.D. Illinois, Eastern Division
KARMEL AL HAJ and TIMOTHY A. WOODHAMS, individually and on behalf of all others similarly situated, Plaintiffs,
PFIZER INC., Defendant.
MEMORANDUM OPINION AND ORDER
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.
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.
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).
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.
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
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
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.
1: Quantity of active ingredient per 10 ml
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.
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.
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 ...