Case 1:22-cv-04766-JPO Document 29 Filed 10/06/22 Page 1 of 3
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`MICHAEL TOPOREK,
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`-v-
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`WALGREEN CO.,
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`Plaintiff,
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`Defendant.
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`22-CV-4766 (JPO)
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`ORDER
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`J. PAUL OETKEN, District Judge:
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`Plaintiff Michael Toporek brings suit against Defendant Walgreen Co. under New York
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`General Business Law § § 349 and 350 for false advertising in relation to its sale of pain-
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`relieving lidocaine patches. Pending before the Court are Defendant’s motion to dismiss and the
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`parties’ joint motion to consolidate this case and a related matter, Stevens v. Walgreen, Co., 21-
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`CV-10603.
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`This action and the earlier-filed Stevens concern identical claims against the same
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`defendant. On August 24, 2022, this Court issued an opinion and order in Stevens which granted
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`in part and denied in part the motion to dismiss in that case. (21-CV-10603, Dkt. No. 20.) For
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`the reasons explained in that opinion, the motion to dismiss in this case is likewise granted in
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`part and denied in part.
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`There is one substantive difference between the arguments for dismissal in the two
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`actions: Defendant argues in this case that the “stay-put flexible patch” language printed on each
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`product was non-actionable puffery. (Dkt. No. 24 at 16.) Defendant did not make a puffery
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`argument in Stevens. The Second Circuit has identified two types of puffery: (1) “subjective
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`statements of opinion which cannot be proven false” and (2) “statements that are provable but
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`are so exaggerated that no reasonable buyer would be justified in relying on them.” Int’l Code
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`1
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`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`MICHAEL TOPOREK,
`
`-v-
`
`
`WALGREEN CO.,
`
`
`
`Plaintiff,
`
`
`Defendant.
`
`
`
`
`
`
`
`22-CV-4766 (JPO)
`
`ORDER
`
`J. PAUL OETKEN, District Judge:
`
`
`
`Plaintiff Michael Toporek brings suit against Defendant Walgreen Co. under New York
`
`General Business Law § § 349 and 350 for false advertising in relation to its sale of pain-
`
`relieving lidocaine patches. Pending before the Court are Defendant’s motion to dismiss and the
`
`parties’ joint motion to consolidate this case and a related matter, Stevens v. Walgreen, Co., 21-
`
`CV-10603.
`
`
`
`This action and the earlier-filed Stevens concern identical claims against the same
`
`defendant. On August 24, 2022, this Court issued an opinion and order in Stevens which granted
`
`in part and denied in part the motion to dismiss in that case. (21-CV-10603, Dkt. No. 20.) For
`
`the reasons explained in that opinion, the motion to dismiss in this case is likewise granted in
`
`part and denied in part.
`
`There is one substantive difference between the arguments for dismissal in the two
`
`actions: Defendant argues in this case that the “stay-put flexible patch” language printed on each
`
`product was non-actionable puffery. (Dkt. No. 24 at 16.) Defendant did not make a puffery
`
`argument in Stevens. The Second Circuit has identified two types of puffery: (1) “subjective
`
`statements of opinion which cannot be proven false” and (2) “statements that are provable but
`
`are so exaggerated that no reasonable buyer would be justified in relying on them.” Int’l Code
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`1
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`Case 1:22-cv-04766-JPO Document 29 Filed 10/06/22 Page 2 of 3
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`Council, Inc. v. UpCodes Inc., 43 F.4th 46, 60 (2d Cir. 2022). The “stay-put flexible patch”
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`representation appears to fall into the second category. Because the “reasonable buyer” analysis
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`“often requires extrinsic evidence of consumer impact,” “such a fact-intensive inquiry typically
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`should not be resolved on a motion to dismiss.” Id. Moreover, even if the “stay-put flexible
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`patch” language were puffery as a matter of law, the context of the language on the challenged
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`products here — where it is used together with the “up to 12 hours” language — precludes
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`dismissal at the pleadings stage. For these reasons, in addition to the reasons stated in this
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`Court’s August 24, 2022 opinion Stevens v. Walgreen, Co., Defendant’s motion to dismiss is
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`denied.
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`As to the parties’ motion to consolidate, Federal Rule of Civil Procedure 42(a)(2) permits
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`consolidation where “actions before the court involve a common question of law or fact.” Fed.
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`R. Civ. P. 42(a)(2). In determining whether to exercise its “broad discretion” to consolidate
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`actions that satisfy that baseline criterion, a court must ask “[w]hether the specific risks of
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`prejudice and possible confusion” that could arise from consolidation “[are] overborne by the
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`risk of inconsistent adjudications of common factual and legal issues, the burden on parties,
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`witnesses, and available judicial resources posed by multiple lawsuits, the length of time
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`required to conclude multiple suits as against a single one, and the relative expense to all
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`concerned.” Barkley v. Olympia Mortg. Co., 557 F. App’x 22, 25 (2d Cir. 2014) (summary
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`order) (alterations in original) (quoting Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.
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`1990)).
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`The Court concludes that consolidation is warranted here. No party has opposed
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`consolidation. The Stevens and Toporek actions assert essentially identical claims against
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`2
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`Case 1:22-cv-04766-JPO Document 29 Filed 10/06/22 Page 3 of 3
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`Walgreen Co., on behalf of an identical plaintiff class on the basis of identical factual allegations.
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`Litigating these cases separately would be inefficient and raise the risk of inconsistent outcomes.
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`* * *
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`For the foregoing reasons, Defendant’s motion to dismiss is DENIED. The parties’ joint
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`motion to consolidate this case with 21-CV-10603 is GRANTED.
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`Pursuant to Federal Rule of Civil Procedure 42(a), this action is hereby consolidated with
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`Case Number 21-CV-10603 for all purposes, including discovery, pretrial proceedings, and trial.
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`Despite such consolidation, the consolidated cases “retain their separate identities.” Hall v. Hall,
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`138 S. Ct. 1118, 1128-31 (2018). This order does not affect the rights of the parties in either of
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`the consolidated cases.
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`All future filings shall be in the lead case, 21-CV-10603. The scheduling order in 21-
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`CV-10603 (Dkt. No. 26) applies to this action as well.
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`Counsel in Toporek v. Walgreen Co. are directed to file appearances in Stevens v.
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`Walgreen, Co., 21-CV-10603, within 10 days if they have not already done so.
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`The Clerk of Court is directed to terminate the following motions in this case: Docket
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`Numbers 19, 21, and 23. The Clerk is also directed to mark this case as closed.
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`SO ORDERED.
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`Dated: October 6, 2022
`New York, New York
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`____________________________________
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` J. PAUL OETKEN
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` United States District Judge
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`3
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