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Case 1:21-cv-06850 Document 1 Filed 12/11/21 Page 1 of 25 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`
`Monique Bell, individually and on behalf of
`all others similarly situated,
`
`Plaintiff,
`
`v.
`
`CVS Pharmacy, Inc.,
`
`Defendant.
`
` CASE NO. 21-cv-06850
`
` CLASS ACTION COMPLAINT
`
` JURY TRIAL DEMANDED
`
`Plaintiff Monique Bell (“Plaintiff”) brings this action on behalf of herself and all
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`others similarly situated against Defendant CVS Pharmacy, Inc. (“Defendant”). Plaintiff makes
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`the following allegations pursuant to the investigation of her counsel and based upon information
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`and belief, except as to the allegations specifically pertaining to herself, which are based on
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`personal knowledge.
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`INTRODUCTION
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`1.
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`This is a putative class action lawsuit on behalf of purchasers of Defendant’s
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`lidocaine patches (the “Lidocaine Patches”).1 Defendant markets, sells and distributes the
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`Lidocaine Patches through numerous brick-and-mortar CVS retail locations and online through
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`www.cvs.com.
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`1 The Lidocaine Patches include Defendant’s “MAXIMUM STRENGTH Lidocaine Pain Relief
`Patch”; “MAXIMUM STRENGTH LIDOCAINE Cold & Hot Patch”; and “MAXIMUM
`STRENGTH Lidocaine Pain-Relieving Patch.” Plaintiff has standing to sue Defendant for all of
`the Lidocaine Patches because “1) the products are substantially similar to the products that she
`did purchase; and 2) the alleged misrepresentation is the same.” See e.g., Rivera v. S.C. Johnson
`& Son, Inc., No. 20-CV-3588 (RA), 2021 U.S. Dist. LEXIS 183759, at *26 (S.D.N.Y. Sep. 24,
`2021)
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`2.
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`Lidocaine is a topical anesthetic that is used to treat pain by blocking the
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`transmission of pain signals from nerve endings in the skin to the spinal cord and brain.
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`Specifically, lidocaine functions by blocking sodium channels located on nerve endings which
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`prevents action potential from propagating in the nerve cell and thereby interrupting the
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`transmission of the pain signal.
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`3.
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`Although lidocaine patches are often prescribed by doctors, Defendant offers its
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`Lidocaine Patches over-the-counter to unsuspecting consumers under false pretenses. Defendant
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`takes advantage of these consumers by prominently displaying on the packaging of the Lidocaine
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`Patches that the patches deliver a “Maximum Strength” dose of lidocaine for up to 12 or 8 hours.
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`Plaintiff and the proposed class members relied on those representations when making their
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`purchases. To their dismay, however, Defendant’s Lidocaine Patches regularly peel off their
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`bodies within a few hours, and oftentimes minutes, after being properly applied, and do not
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`deliver a maximum amount of lidocaine available in patch form.
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`4.
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`As a result of its deceptive conduct, Defendant is, and continues to be, unjustly
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`enriched at the expense of its customers.
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`JURISDICTION AND VENUE
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`5.
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`This Court has original jurisdiction over the claims asserted herein individually
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`and on behalf of the class pursuant to 28 U.S.C. § 1332, as amended by the Class Action Fairness
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`Act of 2005. Subject matter jurisdiction is proper because: (1) the amount in controversy in this
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`class action exceeds five million dollars, exclusive of interest and costs; (2) there are more than
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`100 Class members; (3) at least one member of the Class is diverse from the Defendant; and (4)
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`the Defendant is not a governmental entity.
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`6.
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`This Court has personal jurisdiction over Defendant because it conducts
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`substantial business within New York, including the sale, marketing, and advertising of the
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`Lidocaine Patches. Furthermore, a substantial portion of the events giving rise to Plaintiff’s
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`claims occurred in this State, including Plaintiff’s purchases.
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`7.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant
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`does substantial business in this District and a substantial part of the events giving rise to
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`Plaintiff’s claims took place within this District.
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`THE PARTIES
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`8.
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`Plaintiff Monique Bell is a citizen of New York, residing in Brooklyn, New York.
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`Plaintiff purchased Defendant’s Lidocaine Pain Relief Patch for her personal use for
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`approximately $9.79 on various occasions within the applicable statute of limitations, with her
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`most recent purchase taking place in September of 2021. Plaintiff made these purchases at a CVS
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`store located in Brooklyn, New York. Prior to her purchases, Plaintiff saw that the Lidocaine
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`Patches were labeled and marketed as “Maximum Strength” patches capable of delivering a 4%
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`lidocaine dose for “UP TO 12 HOURS” and read the directions on the back label, which
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`indicated that she could use “1 patch for up to 12 hours.” Plaintiff relied on Defendant’s
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`representations when she decided to purchase the Lidocaine Patches over comparable and less
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`expensive pain-relieving patches or gels. Plaintiff saw those representations prior to and at the
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`time of her purchases and understood them as a representation and warranty that the Lidocaine
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`Patches would reliably adhere to her body and deliver a 4% lidocaine dose for 12 hours. Initially,
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`Plaintiff became frustrated when her Lidocaine Patches peeled off her body while engaging in
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`regular activities—such as walking, sitting, stretching, and sleeping—well before the represented
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`12 hours, through no fault of her own. Plaintiff, nonetheless, continued to purchase other
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`Lidocaine Patches, believing that such failures were the result of one-off manufacturing flukes.
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`After giving the Lidocaine Patches the benefit of the doubt, however, Plaintiff stopped
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`purchasing them altogether after realizing that the Lidocaine Patches consistently failed to
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`provide pain relief by delivering a 4% lidocaine dose for “UP TO 12 HOURS.” For example, on
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`a couple of occasions, the Lidocaine Patches that Plaintiff bought peeled off her body within an
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`hour or two after she properly applied them pursuant to the directions contained on the
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`products—delivering little to no analgesic effect to her sore muscles. Plaintiff relied on
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`Defendant’s representations and warranties in deciding to purchase her Lidocaine Patches.
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`Accordingly, those representations and warranties were part of the basis of her bargains, in that
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`she would not have purchased her Lidocaine Patches on the same terms had she known those
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`representations and warranties were false. However, Plaintiff remains interested in purchasing
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`Defendant’s Lidocaine Patches and would consider the Lidocaine Patches in the future if
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`Defendant ensured the products actually provide pain relief by delivering a 4% lidocaine dose to
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`her body for “UP TO 12 HOURS.” Additionally, in making her purchases, Plaintiff paid a
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`substantial price premium due to Defendant’s false and misleading claims regarding the qualities
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`of its Lidocaine Patches. However, Plaintiff did not receive the benefit of her bargains because
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`her Lidocaine Patches did not, in fact, provide pain relief by delivering a 4% “Maximum
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`Strength” dose of lidocaine to her body for “UP TO 12 HOURS.”
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`9.
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`Defendant CVS Pharmacy, Inc. (“Defendant”) is a Rhode Island corporation with
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`its principal place of business in Woonsocket, Rhode Island. Defendant markets, sells, and
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`distributes the Lidocaine Patches and is responsible for the advertising, marketing, trade dress,
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`and packaging of the Lidocaine Patches. Defendant marketed, distributed, and sold the Lidocaine
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`Patches during the class period.
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`FACTUAL ALLEGATIONS
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`Defendant’s False Advertising
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`10.
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`Defendant markets, sells, and distributes the Lidocaine Patches through numerous
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`brick-and-mortar CVS retail locations and online through www.cvs.com. On the Lidocaine
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`Patches packaging, Defendant represents that its Lidocaine Patches last up to 12 or 8 hours,
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`depending on the product. The Lidocaine Patches are all substantially similar in that they all
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`share similar adhesiveness misrepresentations:
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`11.
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`By representing that Lidocaine Patches can be applied “UP TO 12 HOURS” or
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`“UP TO 8 HOURS”—a very specific number2—Defendant induced Plaintiff and the proposed
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`class members into believing that the Lidocaine Patches: (1) would continuously adhere to their
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`bodies up to 12 or 8 hours; (2) were sufficiently flexible to withstand regular activities (such as
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`walking, stretching, and sleeping) for someone who is suffering from sore muscles; and (3)
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`would continuously relieve pain by providing a 4% lidocaine dose throughout the specified
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`2Although under 2nd Circuit precedent in Mantikas v. Kellogg Co., 910 F.3d 633, 637 (2d Cir.
`2018) reasonable consumers are not “expected to look beyond misleading representations on the
`front of the box” to cure a defendant’s misrepresentation contained therein, the back labels of the
`Lidocaine Patches reinforce the misrepresentations made on their front labels—i.e., they all
`misleadingly instruct either to “use 1 patch for up to 12 hours” or to “remove the patch from the
`skin after, at most, 8-hour application.” Exhibit A.
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`5
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`Case 1:21-cv-06850 Document 1 Filed 12/11/21 Page 6 of 25 PageID #: 6
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`amount of time represented therein. Furthermore, by representing that the Lidocaine Patches
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`provide “Maximum Strength,” Defendant induced Plaintiff and the proposed class members into
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`believing that the Lidocaine Patches: (1) contain and deliver the maximum amount of lidocaine
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`available in patch form; and (2) that they are superior, or at least equivalent, in efficacy and
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`results to other over-the-counter and/or prescription-strength lidocaine patches.
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`12.
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`Despite these representations, however, Defendant’s Lidocaine Patches: (1)
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`systematically fail to adhere to its consumers’ bodies up to 12 or 8 hours; (2) are insufficiently
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`flexible to withstand regular activities (such as walking, stretching, and sleeping); (3) fail to
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`continuously relieve pain by providing a 4% lidocaine dose throughout the specified amount of
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`time represented therein due to their partial or complete detachment; (4) do not provide the
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`maximum amount of lidocaine available in patch form; and (5) are not superior, or at least
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`equivalent, in efficacy and results to other over-the-counter and/or prescription-strength
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`lidocaine patches.
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`Defendant’s Knowledge of the Defective Lidocaine Patches
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`13.
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`Defendant knew that its Lidocaine Patches did not live up to the adhesiveness
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`representations contained therein based on dozens of complaints posted on its own website,
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`www.cvs.com, which Defendant actively monitors.
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`14.
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`For example, in May of 2021, a buyer explained their issue trying to get a
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`Lidocaine Patch to adhere to their body:
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`“Absolutely awful. Active ingredient doesn’t matter because the delivery method
`doesn’t stick at all. Post-it notes have better adhesion. Spend a couple extra bucks
`and get something that will stay on.”3
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`
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`3 https://www.cvs.com/shop/cvs-health-lidocaine-patch-max-strength-5-ct-prodid-1910091 (last
`accessed December 10, 2021).
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`15.
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`In June of 2020, yet another consumer expressed their frustration using
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`Defendant’s Lidocaine Patch:
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`“If I could give negative stars I would. These simply do not stay on. Obviously
`this is a real problem with this product since so many reviews reflect the same
`opinion. If you’re going to claim that your product is comparable to another, you
`should at least assure that it is able to be compared to said product. I am unable
`to compare it when it won’t even stay put! Complete waste of money.”4
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`16.
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`Furthermore, Defendant knew, or should have known, that its Lidocaine Patches
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`were defectively designed based on FDA reports and scientific studies regarding the efficacy of
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`the products.
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`17.
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`Specifically, Defendant’s Lidocaine Patches work by delivering lidocaine through
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`a transdermal mechanism—i.e., by delivering the analgesic chemical “through the dermis, or
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`skin…in ointment or patch form.”5 According to FDA reports, transdermal drug delivery
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`systems, such as the one used by Defendant, systematically fail to adhere to the body.6 To that
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`end, the FDA is in the process of finalizing an industry guidance on “Transdermal and Topical
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`Delivery Systems” to address, inter alia, “considerations for areas where quality is closely tied to
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`product performance and potential safety issues, such as adhesion failure…”7
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`4 https://www.cvs.com/shop/cvs-health-maximum-strength-pain-relief-patch-3-5-16-x-5-1-2-10-
`cm-x-14-cm-5-ct-prodid-1730040 (last accessed December 10, 2021).
`5 https://medical-dictionary.thefreedictionary.com/transdermal (last accessed December10,
`2021).
`6 See Yellela S.R. Krishnaiah, FDA Perspectives on Product Quality of Transdermal Drug
`Delivery Systems, PhD Division of Product Quality Research OTR/OPQ/CDER US Food and
`Drug Administration Silver Spring, MD, USA AAPSKrishnaiah, October 2015_Sunrise Session
`(2015). https://healthdocbox.com/Deafness/74997073-Fda-perspectives-on-product-quality-of-
`transdermal-drug-delivery-systems.html (last accessed December 10, 2021). at pg. 8.
`7 See 84 FR 64319 - Transdermal and Topical Delivery Systems-Product Development and
`Quality Considerations; Draft Guidance for Industry; Availability (2019)
`https://www.regulations.gov/document/FDA-2019-D-4447-0001 (last accessed December 10,
`2021).
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`18.
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`Even more alarming, the FDA Adverse Events Reporting System reports that
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`approximately 70% of concerns stemming from lidocaine patches involve their poor adhesion.8
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`19.
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`Furthermore, a peer-reviewed study published in January of 2021 by the Journal
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`of Pain Research found that 0% of generic prescription lidocaine patches had a >90% adhesion
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`rate to the study’s subjects after 12 hours (i.e., essentially no part of the product lifting off the
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`skin).9 The study also found that after 12 hours, “37.5% of subjects experienced substantial
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`detachment (to <10% adhesion) while using the generic lidocaine patch 5%, including 7 (29.1%)
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`complete detachments.” The study also found that the mean adhesiveness score of the generic
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`lidocaine patches after 12 hours was 37.67% (where 0% reflects complete detachment and 50%
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`reflects half the product lifting off the skin but not detached). In contrast, the study found that a
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`newly developed 1.8% lidocaine patch technology, which is bioequivalent to 5% lidocaine
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`patches,10 maintained a mean adhesion >90% across all time points (0, 3, 6, 9, and 12 h).
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`8 See Gudin J, Nalamachu S. Utility of lidocaine as a topical analgesic and improvements in
`patch delivery systems. Postgrad Med. 2020;132(1):28–36. doi:10.1080/00325481.2019.1702296
`https://www.tandfonline.com/doi/full/10.1080/00325481.2019.1702296 (last accessed December
`10, 2021).
`9 See Gudin J, Webster LR, Greuber E, Vought K, Patel K, Kuritzky L. Open-Label Adhesion
`Performance Studies of a New Lidocaine Topical System 1.8% versus Lidocaine Patches 5% and
`Lidocaine Medicated Plaster 5% in Healthy Subjects. J Pain Res. 2021;14:513-526. Published
`2021 Feb 23. doi:10.2147/JPR.S287153.
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7914064/ (last accessed December 10, 2021).
`The study measured adhesion of the patches “immediately after application (0 hours) and at 3, 6,
`9, and 12 hours (±15 minutes; before product removal) after application. Assessments in Study 1
`were performed by a trained scorer using the FDA-recommended 5-point adhesion scale. The
`FDA scale ranges from 0 to 4, where 0 represents (cid:149)90% of the product adhered (essentially no
`part of the product lifting off the skin), 1 represents 75% to <90% adhered (only some edges of
`the product lifting off the skin), 2 represents 50% to <75% adhered (less than half the product
`lifting off the skin), 3 represents >0% to <50% adhered (more than half the product lifting off the
`skin but not detached), and 4 represents 0% adhered (complete product detachment). The mean
`cumulative adhesion score was calculated by summing the scores at 3, 6, 9, and 12 hours and
`dividing the total by the total number of observations per subject.” Id.
`10 Gudin J, Argoff C, Fudin J, Greuber E, Vought K, Patel K, Nalamachu S. A Randomized,
`Open-Label, Bioequivalence Study of Lidocaine Topical System 1.8% and Lidocaine Patch 5%
`in Healthy Subjects. J Pain Res. 2020 Jun 22;13:1485-1496. doi: 10.2147/JPR.S237934. PMID:
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`Case 1:21-cv-06850 Document 1 Filed 12/11/21 Page 9 of 25 PageID #: 9
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`20.
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`Although the study published by the Journal of Pain Research only tested generic
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`prescription lidocaine patches, upon information and belief, Defendant’s over-the-counter
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`Lidocaine Patches—which have not undergone the rigorous approval process required by the
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`FDA and use the same outdated and defective adhesion technology as the generic lidocaine
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`patches11 —fair no better.
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`21.
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`Furthermore, while certain companies have innovated their technology based on
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`clinical studies to ensure that their lidocaine patches reliably adhere to a consumer’s body,12 even
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`while exercising,13 upon information and belief, Defendant has not.
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`22.
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`In complete disregard of the wealth of information to the contrary, however,
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`Defendant continues to misrepresent that its Lidocaine Patches reliably adhere to its consumers’
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`bodies up to 12 or 8 hours when, in fact, they do not. Defendant also failed to inform its
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`consumers that the Lidocaine Patches are prone to even greater detachment when they engage in
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`certain activities (such as walking, stretching, and sleeping). Nor is Defendant’s representation
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`that its Lidocaine Patches are capable of continuously relieving pain by providing a 4% lidocaine
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`32606914; PMCID: PMC7319520. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7319520/
`(last accessed December 10, 2021).
`11 Defendant, whose Lidocaine Patches are manufactured in China, has not been approved by the
`FDA to market or sell its Lidocaine Patches despite being required to do so. The FDA is
`currently reviewing a Citizen Petition filed by Scilex Pharmaceuticals Inc. (a manufacturer of
`FDA-approved lidocaine patches) to remove from the market any over-the-counter lidocaine
`patches that lack FDA approval. See https://www.regulations.gov/docket/FDA-2019-P-
`0417/document (last accessed December 10, 2021).
`12 https://www.scilexpharma.com/scilex-presents-ztlido-data-on-superior-adhesion-over-
`lidocaine-patch-formulation/ (last accessed December 10, 2021).
`13A separate study demonstrated that Scilex’s lidocaine patches were able to reliably adhere
`when subjects engaged in moderate physical exercise (exercise bike) and heat (heating pad). See
`Fudin J, Wegrzyn EL, Greuber E, Vought K, Patel K, Nalamachu S. A Randomized, Crossover,
`Pharmacokinetic and Adhesion Performance Study of a Lidocaine Topical System 1.8% During
`Physical Activity and Heat Treatment in Healthy Subjects. J Pain Res. 2020;13:1359-1367.
`Published 2020 Jun 10. doi:10.2147/JPR.S238268.
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7293912/#CIT0007 (last accessed December
`10, 2021).
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`dose throughout the specified time periods true: given that they systematically fail to fully adhere
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`to its consumers’ bodies. This is crucial because “[a]dequate adhesion is a critical quality
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`attribute for topical delivery systems; if the product lifts or detaches during wear, dosing may be
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`compromised and there is an increased risk of inadvertent exposure to others.”14
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`23.
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`To make matters worse, Defendant misrepresents, without providing adequate
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`disclaimers, that its Lidocaine Patches provide a “Maximum Strength” dose of lidocaine, when,
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`in fact, there are superior lidocaine patches in the market that deliver a higher amount of
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`lidocaine: including the previously mentioned 5% and 1.8% prescription-strength lidocaine
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`patches.15 Defendant compounds this problem by indicating that its “MAXIMUM STRENGTH
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`LIDOCAINE Cold & Hot Patch” is “Medicated”—thereby reinforcing the misrepresentation that
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`the Lidocaine Patches are comparable to prescription-strength lidocaine patches.
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`24.
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`Furthermore, nothing in Defendant’s Lidocaine Patches indicates that they
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`provide a greater dose of lidocaine in comparison to other over-the-counter lidocaine patches,
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`including its own. Specifically, Defendant’s representation that its Lidocaine Patches contain 4%
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`lidocaine is misleading because the actual strength of a lidocaine patch is measured by the “mass
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`of drug relative to the mass of the adhesive per patch.”16 In other words, Defendant’s
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`representation that its Lidocaine Patches contain 4% lidocaine does not indicate the actual
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`amount of lidocaine milligrams that its Lidocaine Patches deliver to a consumer’s body.17
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`
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`14 See supra footnote 10.
`15 Id.
`16 See Scilex Pharmaceuticals Inc.’s Citizen Petition. Exhibit B at pg. 19.
`17 “It is emphasized that most of these patch products are labeled as a percentage strength,
`without providing the total drug content per patch. For other topical dosage forms like creams,
`ointments, and lotions, the amount of drug administered can easily be determined by weighing
`the mass of product and applying the strength factor as illustrated in the table below. In contrast,
`the amount of drug applied for patch products cannot easily be determined because the exact
`mass of adhesive applied cannot be estimated due to the contributing mass of the backing
`materials. inasmuch as patches are manufactured in a variety of sizes and thicknesses, the drug
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`25.
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`Shockingly, and by way of illustration, Defendant labels its “MAXIMUM
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`STRENGTH LIDOCAINE Cold & Hot Patch” as possessing “MAXIMUM STRENGTH
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`LIDOCAINE” although it has a lesser amount of lidocaine per patch (240 milligrams)18 than its
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`“MAXIMUM STRENGTH Lidocaine Pain Relief Patch” and “MAXIMUM STRENGTH
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`Lidocaine Pain-Relieving Patch,” both of which contain 567 milligrams of lidocaine per
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`patch.1920 Further, all of Defendant’s Lidocaine Patches contain less lidocaine than other over-
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`the-counter lidocaine patches: which range from 600 to 4,500 milligrams.21 Defendant’s arbitrary
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`and patently false claim regarding the strength of its Lidocaine Patches goes beyond the pale.
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`26.
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`Had Defendant not made the false, misleading, and deceptive misrepresentations
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`and omissions alleged herein, Plaintiff and the proposed class members would not have
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`purchased the Lidocaine Patches or would not have paid as much as they did for those purchases.
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`Thus, Plaintiff and the proposed class members suffered an injury in fact and lost money or
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`property as a result of Defendant’s wrongful conduct.
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`CLASS ACTION ALLEGATIONS
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`27.
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`Plaintiff brings this action on behalf of herself and all other similarly situated
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`persons pursuant to Federal Rules of Civil Procedure 23(a), (b)(1), (b)(2), and (b)(3).
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`28.
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`The class periods shall be defined from the date of the filing of this Complaint,
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`back to any such time the Court deems appropriate.
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`exposure from patches is unknown and cannot be estimated by reviewing the product label,
`unless the manufacturer discloses the drug mass. Many of the patch products exclude this from
`their labels, and the absence of this information on unapproved OTC product labels creates a
`safety risk.” Ex. B at pg. 20.
`18 https://ndclist.com/ndc/66902-220 (last acesed December 10, 2021).
`19 https://ndclist.com/ndc/66902-215 (last acesed December 10, 2021).
`20 https://ndclist.com/ndc/66902-276 (last acesed December 10, 2021).
`21 See Attachment 1 to Scilex Pharmaceuticals Inc.’s Citizen Petition. Exhibit C.
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`29.
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`Plaintiff seeks to represent all persons in the United States who purchased
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`Defendant’s Lidocaine Patches (the “Class”).
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`30.
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`Plaintiff also seeks to represent a subclass of all Class members who purchased
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`Defendant’s Lidocaine Patches in New York (the “New York Subclass”) (collectively with the
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`Class, the “Classes”).
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`31.
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`The Classes do not include (1) Defendant, its officers, and/or its directors; or (2)
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`the Judge to whom this case is assigned and the Judge’s staff.
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`32.
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`Plaintiff reserves the right to amend the above class definitions and add additional
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`classes and subclasses as appropriate based on investigation, discovery, and the specific theories
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`of liability.
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`33.
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`Community of Interest: There is a well-defined community of interest among
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`members of the Classes, and the disposition of the claims of these members of the Classes in a
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`single action will provide substantial benefits to all parties and to the Court.
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`34.
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`Numerosity: While the exact number of members of the Classes is unknown to
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`Plaintiff at this time and can only be determined by appropriate discovery, upon information and
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`belief, members of the Classes number in the millions. The precise number of the members of
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`the Classes and their identities are unknown to Plaintiff at this time but may be determined
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`through discovery. Members of the Classes may be notified of the pendency of this action by
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`mail and/or publication through the distribution records of Defendant and third-party retailers
`
`and vendors.
`
`35.
`
`Existence and predominance of common questions of law and fact: Common
`
`questions of law and fact exist as to all members of the Classes and predominate over any
`
`
`
`12
`
`

`

`
`
`Case 1:21-cv-06850 Document 1 Filed 12/11/21 Page 13 of 25 PageID #: 13
`
`questions affecting only individuals of the Classes. These common legal and factual questions
`
`include, but are not limited to:
`
`(a) Whether the Lidocaine Patches are defective;
`
`(b) Whether Defendant knew of the Lidocaine Patches’ defective nature;
`
`(c) Whether Defendant breached the express warranties on the Lidocaine Patches’
`
`packaging;
`
`(d) Whether Defendant breached the Lidocaine Patches’ implied warranty of
`
`merchantability;
`
`(e) Whether Defendant breached the Lidocaine Patches’ implied warranty of fitness for
`
`use;
`
`(f) Whether Defendant’s representations that the Lidocaine Patches adhere “UP TO 12
`
`HOURS” or “UP TO 8 HOURS” or otherwise provides “Maximum Strength”
`
`lidocaine dosing is false and misleading in violation of New York’s consumer-
`
`protection statutes;
`
`(g) Whether Plaintiff and the members of the Classes have suffered damages as a result
`
`of Defendant’s actions and the amount thereof;
`
`(h) Whether Plaintiff and the members of the Classes are entitled to statutory damages;
`
`(i) Whether Plaintiff and the members of the Classes are entitled to restitution;
`
`(j) Whether Plaintiff and the members of the Classes are entitled to injunctive relief to
`
`enjoin Defendant from further engaging in these wrongful practices; and
`
`(k) Whether Plaintiff and the members of the Classes are entitled to attorney’s fees and
`
`costs.
`
`
`
`13
`
`

`

`
`
`Case 1:21-cv-06850 Document 1 Filed 12/11/21 Page 14 of 25 PageID #: 14
`
`36.
`
`Typicality: The claims of the named Plaintiff are typical of the claims of other
`
`members of the Classes in that the named Plaintiff was exposed to Defendant’s false and
`
`misleading marketing, purchased Defendant’s defective Lidocaine Patches, and suffered a loss as
`
`a result of those purchases.
`
`37.
`
`Adequacy: Plaintiff will fairly and adequately represent and protect the interests
`
`of the Classes as required by Federal Rule of Civil Procedure Rule 23(a)(4). Plaintiff is an
`
`adequate representative of the Classes because she has no interests which are adverse to the
`
`interests of the members of the Classes. Plaintiff is committed to the vigorous prosecution of this
`
`action and, to that end, Plaintiff has retained skilled and experienced counsel, and by providing a
`
`cure-notice to Defendant regarding the Lidocaine Patches’ defects on behalf of the members of
`
`the Classes to protect their interests.
`
`38.
`
`Superiority: A class action is superior to all other available methods of the fair
`
`and efficient adjudication of the claims asserted in this action under Federal Rule of Civil
`
`Procedure 23(b)(3) because:
`
`(a) The expense and burden of individual litigation makes it economically unfeasible for
`
`members of the Classes to seek to redress their claims other than through the
`
`procedure of a class action;
`
`(b) If separate actions were brought by individual members of the Classes, the resulting
`
`duplicity of lawsuits would cause members of the Classes to seek to redress their
`
`claims other than through the procedure of a class action; and
`
`(c) Absent a class action, Defendant likely will retain the benefits of its wrongdoing, and
`
`there would be a failure of justice.
`
`
`
`
`
`14
`
`

`

`
`
`Case 1:21-cv-06850 Document 1 Filed 12/11/21 Page 15 of 25 PageID #: 15
`
`CAUSES OF ACTION
`
`COUNT I
`Violation of New York’s Warranty Act, N.Y. U.C.C. § 2-313
`(On Behalf of Plaintiff and the New York Subclass)
`
`Plaintiff incorporates by reference each of the allegations contained in the
`
`39.
`
`foregoing paragraphs of this Complaint as though fully set forth herein.
`
`40.
`
`41.
`
`Defendant’s Lidocaine Patches are goods as defined in N.Y. U.C.C. § 2-105(1).
`
`Plaintiff and the New York Subclass members are buyers as defined in N.Y.
`
`U.C.C. § 2-103(1)(a).
`
`42.
`
`43.
`
`Defendant is a seller as defined in 15 N.Y. U.C.C. § 2-103(1)(d).
`
`15 N.Y. U.C.C. § 2-607 is satisfied because Plaintiff provided Defendant a
`
`reasonable opportunity to cure the defects contained in the Lidocaine Patches by sending
`
`Defendant a cure notice outlining those defects in full via certified mail on October 20, 2021.
`
`44.
`
`N.Y. U.C.C. § 2-313 provides a cause of action to buyers when sellers breach
`
`express warranties.
`
`45.
`
`On the Lidocaine Patches’ packaging, Defendant expressly warranted that its
`
`Lidocaine Patches were capable of providing pain relief by delivering a 4% lidocaine dose for
`
`“UP TO 12 HOURS” or “UP TO 8 HOURS,” depending on the product.
`
`46.
`
`Furthermore, on the Lidocaine Patches packaging, Defendant expressly warranted
`
`that its Lidocaine Patches provide a “Maximum Strength” dose of lidocaine in comparison to
`
`other over-the-counter and/or prescription-strength lidocaine patches.
`
`47.
`
`Those statements became the basis of the bargains for Plaintiff and the New York
`
`Subclass members because they are factual statements that a reasonable consumer would
`
`consider material when purchasing a lidocaine patch.
`
`
`
`15
`
`

`

`
`
`Case 1:21-cv-06850 Document 1 Filed 12/11/21 Page 16 of 25 PageID #: 16
`
`48.
`
`Defendant breached these express warranties by delivering Lidocaine Patches
`
`that: (1) systemically fail to adhere to its consumers’ bodies up to 12 or 8 hours; (2) are
`
`insufficiently flexible to withstand regular activities (such as walking, stretching, and sleeping);
`
`(3) fail to continuously relieve pain by delivering a 4% lidocaine dose throughout the specified
`
`amount of time represented therein due to their partial or complete detachment; (4) do not
`
`provide the maximum amount of lidocaine available in patch form; and (5) are not superior, or at
`
`least equivalent, in efficacy and results to other over-the-counter and/or prescription-strength
`
`lidocaine patches.
`
`49.
`
`50.
`
`In so doing, Defendant breached N.Y. U.C.C. § 2-313.
`
`As a direct and proximate result of Defendant’s breach of its express written
`
`warranties, Plaintiff and the New York Subclass members have been damaged in an amount to
`
`be proven at trial.
`
`COUNT II
`Violation of New York’s Warranty Act, N.Y. U.C.C. § 2-314
`(On Behalf of Plaintiff and the New York Subclass)
`
`Plaintiff incorporates by reference each of the allegations contained in the
`
`51.
`
`foregoing paragraphs of this Complaint as though fully set forth herein.
`
`52.
`
`53.
`
`Defendant’s Lidocaine Patches are goods as defined in N.Y. U.C.C. § 2-105(1).
`
`Plaintiff and the New York Subclass members are buyers as defined in N.Y.
`
`

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