Al Haj v. Pfizer Inc.

• Decision Date: 13 April 2018
• Docket Number: 17 C 6730
• Citation: 338 F.Supp.3d 741
• Parties: Karmel AL HAJ and Timothy A. Woodhams, individually and on behalf of all others similarly situated, Plaintiffs, v. PFIZER INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

338 F.Supp.3d 741

Karmel AL HAJ and Timothy A. Woodhams, individually and on behalf of all others similarly situated, Plaintiffs,

v.PFIZER INC., Defendant.

17 C 6730

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

Signed April 13, 2018

Daniel J. Kurowski, Elizabeth A. Fegan, Emily Rees Brown, Hagens Berman Sobol Shapiro LLP, Chicago, IL, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, WA, for Plaintiffs.

Gregory S. Bailey, Katherine Fletcher Morgan, Kathryn Marie Delong, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, Jessica Davidson Miller, Pro Hac Vice, John H. Beisner, Pro Hac Vice, Skadden, Aprs, Slate, Meagher & Flom LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District 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.

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 RobitussinCough +Chest 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 ("ICFA"), 815 ILCS 505/1 et seq. Id. at ¶¶ 55-59. Count III alleges that Pfizer has violated the unjust enrichment laws of all fifty States. Id. at ¶¶ 60-66.

Discussion

I. Personal Jurisdiction over Woodhams's Claims

"District courts exercising diversity jurisdiction apply the personal jurisdiction rules of the state in which they are located." Philos Techs., Inc. v. Philos & D, Inc. , 802 F.3d 905, 912 (7th Cir. 2015). The Illinois long-arm statute allows for the exercise of "jurisdiction to the limit set by the Due Process Clauses of the Constitution." Noboa v. Barcelo Corporacion Empresarial, SA , 812 F.3d 571, 572 (7th Cir. 2016) ; see 735 ILCS 5/2-209(c) ("A court may ... exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States."). Thus, a federal court sitting in Illinois asks "whether the exercise of personal jurisdiction would violate federal due process." Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Hous. Metroplex, P.A. , 623 F.3d 440, 443 (7th Cir. 2010) ; see also N. Grain Mktg., LLC v. Greving , 743 F.3d 487, 492 (7th Cir. 2014) ("[T]he statutory question merges with the constitutional one—if Illinois constitutionally may exercise personal jurisdiction over a defendant, its long-arm statute will enable it to do so."). "The plaintiff bears the burden of establishing personal jurisdiction."

Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc. , 751 F.3d 796, 799 (7th Cir. 2014).

"Personal jurisdiction can be general or specific, depending on the extent of the defendant's contacts" with the forum State. Mobile Anesthesiologists , 623 F.3d at 444 ; see also Daimler AG v. Bauman , 571 U.S. 117, 134 S.Ct. 746, 754-55, 187 L.Ed.2d 624 (2014). Woodhams relies on both types of personal jurisdiction, which are addressed in turn.

A. General Jurisdiction

"General jurisdiction is ‘all-purpose’; it exists only ‘when the [party's] affiliations with the State in which suit is brought are so constant and pervasive as to render it essentially at home in the forum State.’ " Kipp v. Ski Enter. Corp. of Wis., Inc. 783 F.3d 695, 697-98 (7th Cir. 2015) (quoting Daimler , 134 S.Ct. at 751 ). "In recent years, the Supreme Court has ... raised the bar for this type of jurisdiction. Because general jurisdiction exists even with respect to conduct entirely unrelated to the forum state, the Court has emphasized that it should not lightly be...