Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 1 of 29 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`Michael Toporek, individually and on behalf of all
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`others similarly situated,
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`Plaintiff,
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`Walgreen Co.,
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` Defendant.
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`Case No.
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`CLASS ACTION
`COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff Michael Toporek (hereinafter “Plaintiff”), individually and on behalf of
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`all others similarly situated, by his attorneys, alleges the following upon information and belief,
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`except for those allegations pertaining to Plaintiff, which are based on personal knowledge:
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`NATURE OF THE ACTION
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`1.
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`This action seeks to remedy the deceptive and misleading business practices of
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`Walgreen Co., (hereinafter “Defendant”) with respect to the marketing and sale of Defendant’s
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`various pain relief lidocaine patch products throughout the state of New York and throughout the
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`country, including, but not limited to, the following products (hereinafter collectively the
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`“Products”):
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`• Walgreens Assorted Sizes Pain Relieving Lidocaine Patches, Maximum Strength;
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`• Walgreens Lidocaine + Menthol Cool n’ Heat Patch;
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`• Walgreens Pain Relieving Lidocaine Patch; and
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`• Walgreens Pain Relieving Lidocaine Patch, Maximum Strength.
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`1
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 2 of 29 PageID #: 2
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`2.
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`Lidocaine belongs to the family of medicines called local anesthetics. It prevents
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`pain by blocking the signals at the nerve endings in the skin.1 Lidocaine patches are often
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`prescribed by doctors, but Defendant offers the Products over-the-counter to consumers.
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`3.
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`Defendant manufactures, sells, and distributes the Products using a marketing and
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`advertising campaign that represents that its lidocaine patches provide “pain relief,” that is
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`“maximum strength,” through a “stay-put flexible patch,” that will work for “up to 12 hours.”
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`4.
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` As depicted below, Defendant claims that the topical patches provide “pain relief,”
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`that is “maximum strength,” through a “stay-put flexible patch,” that will work for “up to 12
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`hours.”
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`1 https://www.mayoclinic.org/drugs-supplements/lidocaine-topical-application-route/description/drg-20072776
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`2
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 3 of 29 PageID #: 3
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`LIDOCAINE + MENTHOL
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`LIDOCAINE 4% / TOPICAL ANESTHETIC
`WYaeVeVALay6
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`« Desensitizes aggravated nerves
`& relieves pain
`° Targeted pain relief in a stay-put
`flexible patch
`o Single-use application is easy
`to apply & remove
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`5 PATCHES
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`Cool n’ Heat
`meta
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`hil ee Med MILE L aaah) Le
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`Compare to Salonpas® Maximum Strength
`Lidocaine Patch active ingredient"
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`MAXIMUM STRENGTH
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`ODOR FREE
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`MEDICATED
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`a Temporarily eon allatel
`ain & desensitizes
`ErteMaRS
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 5 of 29 PageID #: 5
`Case 2:22-cv-02084 Documenti Filed 04/11/22 Page 5 of 29 PagelD #: 5
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`5.
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`However, Defendant’s claims, representations, and warranties are false and
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`misleading. As explained in further detail below, despite proper application, within a short time
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`the Products commonly fall off of consumers’ bodies, thus depriving consumers of the advertised
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`benefits (i.e.- they don’t provide “pain relief,” that is “maximum strength,” through a “stay-put
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`flexible patch,” that will work for “up to 12 hours” as promised).
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`6.
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`Moreover, Defendant labels some of the Products as providing “maximum
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`strength” despite these Products only containing 4% lidocaine.
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`6
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 7 of 29 PageID #: 7
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`7.
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`However, Defendant’s “maximum strength” claims are false and deceptive because
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`there are other products available that offer lidocaine patches containing 5% lidocaine.2
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`8.
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`Plaintiff and those similarly situated (“Class Members”) relied on Defendant's
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`misrepresentations that the Products provide “pain relief,” that is “maximum strength,” through a
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`“stay-put flexible patch,” that will work for “up to 12 hours” when purchasing and administering
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`the Products. Plaintiff and Class Members paid a premium for the Products based upon these
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`representations. Given that Plaintiff and Class Members paid a premium for Products based on
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`Defendant's misrepresentations that the Products provide “pain relief,” that is “maximum
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`strength,” through a “stay-put flexible patch,” that will work for “up to 12 hours,” Plaintiff and
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`Class Members suffered an injury in the amount of the premium paid.
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`9.
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`Defendant's conduct violated and continues to violate, inter alia, New York
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`General Business Law §§ 349 and 350, and the Magnuson-Moss Warranty Act. Defendant
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`breached and continues to breach its warranties regarding the Products. Defendant has been and
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`continues to be unjustly enriched. Accordingly, Plaintiff brings this action against Defendant on
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`behalf of himself and Class Members who purchased the Products during the applicable statute of
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`limitations period (the “Class Period”).
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`FACTUAL BACKGROUND
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`10.
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`Lidocaine patches, akin to the Products, utilize lidocaine, an anesthetic, to cause
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`loss of feeling in the skin and surrounding tissues to help alleviate pain in the applied bodily area.3
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`11.
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`Typically, lidocaine patches are prescribed by physicians.4 However, many
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`companies have noticed the popularity of lidocaine patches amongst consumers and as a result
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`2 https://www.mountainside-medical.com/products/lidocaine-patch-5-by-watson; see also
`https://medic.hrt.org/drug/lidocaine-5-patch-adhesive-patch-medicated-3.
`3 https://my.clevelandclinic.org/health/drugs/19854-lidocaine-skin-cream-or-ointment.
`4 https://www.webmd.com/drugs/2/drug-8532-1252/lidocaine-topical/lidocaine-patch-topical/details.
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 8 of 29 PageID #: 8
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`now offer over-the-counter lidocaine patches, like the Products, to capitalize on consumers’ desire
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`for lidocaine pain relief patches. Indeed, consumers are willing to pay, and have paid, a premium
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`price for these products. This is reflected in the global pain relief patches market size that is
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`projected to reach 940.1 million USD by 2026.5
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`12.
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`Defendant falsely markets its Products as providing a “maximum strength” dose of
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`lidocaine through a “Stay-put flexible” patch for “up to 12 hours.” Despite these representations,
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`Defendant’s Products do not stay put on consumers for up to 12 hours, and consequently do not
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`provide the promised four percent maximum strength dose of lidocaine contained in the Products
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`for up to 12 hours.
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`13.
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`Reasonable customers, including Plaintiff and Class Members, believe that
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`Products that are marketed as being able to provide a “4%” and/or “maximum strength” dose
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`through a “Stay-put flexible” patches that can be used for “up to 12 hours,” will continuously
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`adhere to their bodies for up to 12 hours, be sufficiently flexible to withstand regular daily
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`activities, and will provide the pain relief for the 12 hours at maximum strength; however, the
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`Products do not because they do not stay adhered to consumers’ bodies for 12 hours.
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`14.
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`The Defendant was on notice of the Products’ defect from complaints in its own
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`website. Here are a few examples of the complaints concerning the Products available for public
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`viewing on Defendant’s website (www.walgreens.com):
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`5 https://www.thecowboychannel.com/story/45321517/pain-relief-patches-
`marketnbspsizenbspgrowthnbspratenbspanalysis-2021-2026-by-global-industry-trends-development-history-
`regional-overview-sharehttps://www.thecowboychannel.com/story/45321517/pain-relief-patches-
`marketnbspsizenbspgrowthnbspratenbspanalysis-2021-2026-by-global-industry-trends-development-history-
`regional-overview-share.
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`15. Moreover, the Federal Drug Administration (hereinafter “FDA”) issued a report
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`that transdermal drug patches (such as the Products) systemically fail to adhere to the body and
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`thus do not provide the claimed pain relief.6
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`16.
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`Further, the FDA Adverse Events Reporting System reports that approximately
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`70% of concerns stemming from lidocaine patches involve their poor adhesion.7 This is in line
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`with the above customer complaints regarding the Products’ lack of adhesion abilities.
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`17.
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`A 2021, peer-reviewed published study in the Journal of Pain Research found that
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`0% of generic prescription lidocaine patches had a >90% adhesion rate after 12 hours.8 Moreover,
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`the authors found that the mean adhesiveness score of the generic lidocaine patches after 12 hours
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`6 See Yellela S.R. Krishnaiah, PhD, FDA Perspectives on Product Quality of Transdermal Drug Delivery Systems,
`Oct. 28, 2015, AAPS 2015_Sunrise Session; link: https://healthdocbox.com/Deafness/74997073-Fda-perspectives-
`on-product-quality-of-transdermal-drug-delivery-systems.html
`7 See Jeff Gudin & Sri Nalamachu, Utility of lidocaine as a topical analgesic and improvements in patch delivery
`systems, Postgrad Med. 2020; 132(1):28-36; link:
`https://www.tandfonline.com/doi/full/10.1080/00325481.2019.1702296
`8 Id.
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`was 37.67%.9 This figure is based on a scale where zero percent reflects complete detachment and
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`50% reflects half the product lifting off the skin but not detached.10
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`18. When consumers purchase pain-relief products the strength of the dose is an
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`important consideration. Thus, consumers are willing to pay a price premium for pain-relief
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`products that have higher doses. For example, Defendant charges approximately $0.86 per patch
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`for its patches that aren’t labeled “maximum strength” but charges approximately $1.17 for its
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`“maximum strength” patches.11
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`19.
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`Additionally, reasonable customers also believe that when a Product is represented
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`as “maximum strength” that there are no comparable products on the market that contain a greater
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`dose; however, there are competitor prescription lidocaine patches that consist of 5% lidocaine as
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`opposed to Defendant’s 4% Products.12 This 1% difference is significant with respect to claiming
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`that the Products are “maximum strength,” as compared to the 5% patches that are available. Thus,
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`Defendant deceives reasonable consumers, like Plaintiff, into believing that they are purchasing
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`the patch with the most lidocaine when there are other competitor prescription products available
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`in the market that contain a higher dose of lidocaine.
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`20.
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`Despite all of this, Defendant continues to make the representations that the
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`Products provide a “maximum strength” dose of lidocaine through a “Stay-put flexible” patch for
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`“up to 12 hours,” even though they do not.
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`9 Id.
`10 See Gudin J, et al., 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;
`link: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7914064/
`11 See https://www.walgreens.com/search/results.jsp?Ntt=lidocaine%20patches&N=118 (last visited 2/16/22)
`12 https://www.mountainside-medical.com/products/lidocaine-patch-5-by-watson; see also
`https://medic.hrt.org/drug/lidocaine-5-patch-adhesive-patch-medicated-3.
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`PLAINTIFF’S CLAIMS
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`21.
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`Plaintiff and those similarly situated (“Class Members”) relied on Defendant’s
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`misrepresentations that the Products do provide “pain relief,” that is “maximum strength,” through
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`a “stay-put flexible patch,” that will work for “up to 12 hours” when purchasing the Products.
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`Plaintiff and other Class Members also believed that these claims were supported. Absent these
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`misrepresentations, Plaintiff and Class Members would not have purchased the Products. Given
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`that Plaintiff and Class Members paid for Products they would not otherwise have purchased
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`and/or paid a premium for the Products based on Defendant’s misrepresentations, Plaintiff and
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`Class Members suffered an injury in the amount of the purchase price of the Products and/or
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`premium paid.
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`22.
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`Defendant’s conduct violated and continues to violate, inter alia, New York
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`General Business Law §§ 349 and 350, and the consumer protection statutes of all 50 states.
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`Defendant breached and continues to breach its express and implied warranties regarding the
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`Products. Defendant has been and continues to be unjustly enriched. Accordingly, Plaintiff brings
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`this action against Defendant on behalf of himself and Class Members who purchased the Products
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`during the applicable statute of limitations period (the “Class Period”).
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`23.
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`Through its deceptive advertising and representations, Defendant has violated, inter
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`alia, NY General Business Law § 392-b by: a) putting upon an article of merchandise, bottle,
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`wrapper, package, label or other thing, containing or covering such an article, or with which such
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`an article is intended to be sold, or is sold, a false description or other indication of or respecting
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`the kind of such article or any part thereof; and b) selling or offering for sale an article, which to
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`their knowledge is falsely described or indicated upon any such package, or vessel containing the
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`same, or label thereupon, in any of the particulars specified.
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`24.
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`25.
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`Consumers rely on marketing and information in making purchasing decisions.
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`By marketing the Products as having the ability to provide “pain relief,” that is
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`“maximum strength,” through a “stay-put flexible patch,” that will work for “up to 12 hours,”
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`Defendant knows that those claims are material to consumers.
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`26.
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`Defendant’s deceptive representations and omissions are material in that a
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`reasonable person would attach importance to such information and would be induced to act upon
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`such information in making purchase decisions, since the Products do not stay put for 12 hours to
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`provide the represented maximum strength pain relief. Further, Defendant’s misrepresentations
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`are deceiving as there are competitor lidocaine patch products that provide greater lidocaine than
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`Defendant’s “maximum strength” Products.
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`27.
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`Plaintiff and the Class Members reasonably relied to their detriment on Defendant’s
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`misleading representations and omissions because they purchased something of no value.
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`28.
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`Defendant’s false, misleading, and deceptive misrepresentations and omissions are
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`likely to continue to deceive and mislead reasonable consumers and the general public, as they
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`have already deceived and misled Plaintiff and the Class Members.
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`29.
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`In making the false, misleading, and deceptive representations and omissions
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`described herein, Defendant knew and intended that consumers would pay a premium for products
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`marketed as having the ability to provide “pain relief,” that is “maximum strength,” through a
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`“stay-put flexible patch,” that will work for “up to 12 hours” over comparable products not so
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`marketed.
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`30.
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`As an immediate, direct, and proximate result of Defendant’s false, misleading, and
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`deceptive representations and omissions, Defendant injured Plaintiff and the Class Members in
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`that they:
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`a.
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`b.
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`c.
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`d.
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`31.
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`Paid a sum of money for Products that were not what Defendant
`represented;
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`Paid a premium price for Products that were not what Defendant
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`Were deprived of the benefit of the bargain because the Products they
`purchased was different from what Defendant warranted; and
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`Were deprived of the benefit of the bargain because the Products they
`purchased had less value than what Defendant represented.
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`Had Defendant not made the false, misleading, and deceptive representations and
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`omissions, Plaintiff and the Class Members would not have been willing to pay the same amount
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`for the Products they purchased and, consequently, Plaintiff and the Class Members would not
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`have been willing to purchase the Products.
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`32.
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`Plaintiff and the Class Members paid for Products that provide “pain relief,” that is
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`“maximum strength,” through a “stay-put flexible patch,” that will work for “up to 12 hours” and
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`that they believed actually did so. The Products Plaintiff and the Class Members received were
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`worth less than the Products for which they paid.
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`33.
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`Plaintiff and the Class Members all paid money for the Products; however, Plaintiff
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`and the Class Members did not obtain the full value of the advertised Products due to Defendant’s
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`misrepresentations and omissions. Plaintiff and the Class Members purchased, purchased more
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`of, and/or paid more for, the Products than they would have had they known the truth about the
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`Products. Consequently, Plaintiff and the Class Members have suffered injury in fact and lost
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`money as a result of Defendant’s wrongful conduct.
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`34.
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`Plaintiff and Class Members read and relied on Defendant’s representations about
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`the benefits of using the Products, and purchased Defendant’s Products based thereon. Had
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`Plaintiff and Class Members known the truth about the Products, i.e., that they do not have the
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`benefits they say they do (i.e. stay put and provide pain relief for up to 12 hours and provide
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`maximum amount possible of lidocaine) they would not have been willing to purchase it at any
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`price, or, at minimum would have paid less for it.
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`JURISDICTION AND VENUE
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`35.
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`This Court has subject matter jurisdiction under the Class Action Fairness Act, 28
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`U.S.C. section §1332(d) in that (1) this is a class action involving more than 100 class members;
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`(2) Plaintiff is a citizen of New York, and Defendant Walgreen Co., is a citizen of Illinois; and (3)
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`the amount in controversy is in excess of $5,000,000, exclusive of interests and costs.
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`36.
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`This Court has personal jurisdiction over Defendant because Defendant conducts
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`and transacts business in the state of New York, contract to supply goods within the state of New
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`York, and supplies goods within the state of New York.
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`37.
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`Venue is proper because Plaintiff and many Class Members reside in the Eastern
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`District of New York, and throughout the state of New York. A substantial part of the events or
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`omissions giving rise to the Classes’ claims occurred in this district.
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`Plaintiff
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`PARTIES
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`38.
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`Plaintiff, Michael Toporek, is an individual consumer who, at all times material
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`hereto, was a citizen of New York State. Plaintiff purchased the Products during the Class Period
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`in 2021 and 2022 at Walgreens brick-and-mortar locations in Long Island, NY. Prior to purchasing
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`the Products, Plaintiff read the Products’ marketing. The claims of the Products Plaintiff
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`purchased contained the representations that they provide “pain relief,” that is “maximum
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`strength,” through a “stay-put flexible patch,” that will work for “up to 12 hours.” Plaintiff
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`purchased the Products in reliance on Defendant’s representations that the Products provide “pain
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`14
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`relief,” that is “maximum strength,” through a “stay-put flexible patch,” that will work for “up to
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`12 hours.” Plaintiff also relied on the “maximum strength” representation by believing the proper
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`dosages were present in the Products to be deemed as “maximum strength.” Plaintiff believes that
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`products that claim to provide “pain relief,” that is “maximum strength,” through a “stay-put
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`flexible patch,” that will work for “up to 12 hours” will actually provide “pain relief,” that is
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`“maximum strength,” through a “stay-put flexible patch,” that will work for “up to 12 hours.” If
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`the Products actually did provide “pain relief,” that is “maximum strength,” through a “stay-put
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`flexible patch,” that will work for “up to 12 hours” as represented, Plaintiff would purchase the
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`Products in the immediate future.
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`39.
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`Had Defendant not made the false, misleading, and deceptive representation that
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`the Products provide “pain relief,” that is “maximum strength,” through a “stay-put flexible patch,”
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`that will work for “up to 12 hours” Plaintiff would not have been willing to pay the same amount
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`for the Products, and, consequently, would not have been willing to purchase the Products.
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`Plaintiff purchased, purchased more of, and paid more for the Products than he would have had he
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`known the truth about the Products. The Products Plaintiff received were worth less than the
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`Products for which he paid. Plaintiff was injured in fact and lost money as a result of Defendant’s
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`improper conduct.
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`Defendant
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`40.
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`Defendant, Walgreen Co., is a corporation with its principal place of business in
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`Deerfield, Illinois. Walgreen Co. is authorized to do business in New York. Walgreen Co.
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`distributes its products, including the Products, throughout the United States. Walgreen Co.’s line
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`of lidocaine patches, including the Products purchased by Plaintiff and Class Members, are
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`available at retail stores throughout New York and the United States.
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`41.
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`Defendant manufactures, markets, advertises, and distributes the Products
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`throughout the United States. Defendant created and/or authorized the false, misleading, omitting,
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`and deceptive advertisements, packaging, and labeling of their Products.
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`CLASS ALLEGATIONS
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`Plaintiff brings this matter on behalf of himself and those similarly situated. As
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`42.
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`detailed at length in this Complaint, Defendant orchestrated deceptive marketing and
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`representation practices. Defendant’s customers were uniformly impacted by and exposed to this
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`misconduct. Accordingly, this Complaint is uniquely situated for class-wide resolution, including
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`injunctive relief.
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`43.
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`The Class is defined as all consumers who purchased the Products anywhere in the
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`United States during the Class Period (the “Class”).
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`44.
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`Plaintiff also seeks certification, to the extent necessary or appropriate, of a subclass
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`of individuals who purchased the Products in the state of New York at any time during the Class
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`Period (the “New York Subclass”).
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`45.
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`The Class and New York Subclass shall be referred to collectively throughout the
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`Complaint as the Class.
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`46.
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`The Class is properly brought and should be maintained as a class action under Rule
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`23(a), satisfying the class action prerequisites of numerosity, commonality, typicality, and
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`adequacy because:
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`47.
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`Numerosity: Class Members are so numerous that joinder of all members is
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`impracticable. Plaintiff believes that there are thousands of consumers in the Class and the New
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`York Class who are Class Members as described above who have been damaged by Defendant’s
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`deceptive and misleading practices.
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 17 of 29 PageID #: 17
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`48.
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`Commonality: The questions of law and fact common to the Class Members which
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`predominate over any questions which may affect individual Class Members include, but are not
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`limited to:
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`Whether Defendant is responsible for the conduct alleged herein which was
`uniformly directed at all consumers who purchased the Products;
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`Whether Defendant’s misconduct set forth in this Complaint demonstrates that
`Defendant has engaged in unfair, fraudulent, or unlawful business practices with
`respect to the advertising, marketing, and sale of its Products;
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`Whether Defendant made false and/or misleading statements to the Class and the
`public concerning the contents of its Products;
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`Whether Defendant’s false and misleading statements concerning its Products were
`likely to deceive the public;
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`Whether Plaintiff and the Class are entitled to injunctive relief; and
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`Whether Plaintiff and the Class are entitled to money damages under the same
`causes of action as the other Class Members?
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`
`
`49.
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`Typicality: Plaintiff is a member of the Class. Plaintiff’s claims are typical of the
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`claims of each Class Member in that every member of the Class was susceptible to the same
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`deceptive, misleading conduct and purchased Defendant’s Products. Plaintiff is entitled to relief
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`under the same causes of action as the other Class Members.
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`50.
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`Adequacy: Plaintiff is an adequate Class representative because his interests do not
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`conflict with the interests of the Class Members he seeks to represent, his consumer fraud claims
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`are common to all members of the Class and he has a strong interest in vindicating his rights, he
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`has retained counsel competent and experienced in complex class action litigation, and counsel
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`intends to vigorously prosecute this action.
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`51.
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`Predominance: Pursuant to Rule 23(b)(3), the common issues of law and fact
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`identified above predominate over any other questions affecting only individual members of the
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 18 of 29 PageID #: 18
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`Class. The Class issues fully predominate over any individual issue because no inquiry into
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`individual conduct is necessary; all that is required is a narrow focus on Defendant’s deceptive and
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`misleading marketing and representation practices.
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`52.
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`Superiority: A class action is superior to the other available methods for the fair
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`and efficient adjudication of this controversy because:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`53.
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`The joinder of thousands of individual Class Members is impracticable,
`cumbersome, unduly burdensome, and a waste of judicial and/or litigation
`resources;
`
`The individual claims of the Class Members may be relatively modest compared
`with the expense of litigating the claims, thereby making it impracticable, unduly
`burdensome, and expensive—if not totally impossible—to justify individual
`actions;
`
`When Defendant’s liability has been adjudicated, all Class Members’ claims can
`be determined by the Court and administered efficiently in a manner far less
`burdensome and expensive than if it were attempted through filing, discovery, and
`trial of all individual cases;
`
`This class action will promote orderly, efficient, expeditious, and appropriate
`adjudication and administration of Class claims;
`
`Plaintiff knows of no difficulty to be encountered in the management of this action
`that would preclude its maintenance as a class action;
`
`This class action will assure uniformity of decisions among Class Members;
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`The Class is readily definable and prosecution of this action as a class action will
`eliminate the possibility of repetitious litigation;
`
`Class Members’ interests in individually controlling the prosecution of separate
`actions is outweighed by their interest in efficient resolution by single class action;
`and
`It would be desirable to concentrate in this single venue the litigation of all class
`members who were induced by Defendant’s uniform false advertising to purchase
`its Products provide “pain relief,” that is “maximum strength,” through a “stay-put
`flexible patch,” that will work for “up to 12 hours.”
`
`Accordingly, this Class is properly brought and should be maintained as a class
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`action under Rule 23(b)(3) because questions of law or fact common to Class Members
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`
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`18
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 19 of 29 PageID #: 19
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`predominate over any questions affecting only individual members, and because a class action is
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`superior to other available methods for fairly and efficiently adjudicating this controversy.
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`INJUNCTIVE CLASS RELIEF
`
`54.
`
`Rules 23(b)(1) and (2) contemplate a class action for purposes of seeking class-
`
`wide injunctive relief. Here, Defendant has engaged in conduct resulting in misleading consumers
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`about ingredients in its Products. Since Defendant’s conduct has been uniformly directed at all
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`consumers in the United States, and the conduct continues presently, injunctive relief on a class-
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`wide basis is a viable and suitable solution to remedy Defendant’s continuing misconduct. Plaintiff
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`would purchase the Products again if it actually did provide “pain relief,” that is “maximum
`
`strength,” through a “stay-put flexible patch,” that will work for “up to 12 hours.”
`
`55.
`
`The injunctive Class is properly brought and should be maintained as a class action
`
`under Rule 23(a), satisfying the class action prerequisites of numerosity, commonality, typicality,
`
`and adequacy because:
`
`a.
`
`b.
`
`Numerosity: Individual joinder of the injunctive Class Members would be wholly
`impracticable. Defendant’s Products have been purchased by thousands of people
`throughout the United States;
`
`Commonality: Questions of law and fact are common to members of the Class.
`Defendant’s misconduct was uniformly directed at all consumers. Thus, all
`members of the Class have a common cause against Defendant to stop its
`misleading conduct through an injunction. Since the issues presented by this
`injunctive Class deal exclusively with Defendant’s misconduct, resolution of these
`questions would necessarily be common to the entire Class. Moreover, there are
`common questions of law and fact inherent in the resolution of the proposed
`injunctive class, including, inter alia:
`
`i.
`
`ii.
`
`iii.
`
`Resolution of the issues presented in the 23(b)(3) class;
`
`Whether members of the Class will continue to suffer harm by virtue of
`Defendant’s deceptive Products marketing and representations; and
`
`Whether, on equitable grounds, Defendant should be prevented from
`continuing to deceptively mislabel its Products as providing “pain relief,”
`
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`Case 2:22-cv-02084 Document 1 Filed 04/11/22 Page 20 of 29 PageID #: 20
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`
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`that is “maximum strength,” through a “stay-put flexible patch,” that will
`work for “up to 12 hours.”
`
`c.
`
`d.
`
`56.
`
`Typicality: Plaintiff’s claims are typical of the claims of the injunctive Class
`because his claims arise from the same course of conduct (i.e. Defendant’s
`deceptive and misleading marketing, labeling, and advertising practices). Plaintiff
`is a typical representative of the Class because, like all members of the injunctive
`Class, he purchased Defendant’s Products which was sold unfairly and deceptively
`to consumers throughout the United States.
`
`Adequacy: Plaintiff will fairly and adequately represent and protect the interests of
`the injunctive Class. His consumer protection claims are common to all members
`of the injunctive Class and he has a strong interest in vindicating his rights. In
`addition, Plaintiff and the Class are represented by counsel who is competent and
`experienced in both consumer protection and class action litigation.
`
`The injunctive Class is properly brought and should be maintained as a class action
`
`under Rule 23(b)(2) because Plaintiff seeks injunctive relief on behalf of the Class Members on
`
`grounds generally applicable to the entire injunctive Class. Certification under Rule 23(b)(2) is
`
`appropriate because Defendant has acted or refused to act in a manner that applies generally to the
`
`injunctive Class (i.e. Defendant has marketed its Products using the same misleading and deceptive
`
`representations to all of the Class Members). Any final injunctive relief or declaratory relief would
`
`benefit the entire injunctive Class as Defendant would be prevented from con