Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 1 of 38
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`
`
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`Civil Action No.:
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`CLASS ACTION COMPLAINT
`AND DEMAND FOR JURY
`TRIAL
`
`
`
`CHRISTINE BISCHOFF, on behalf of herself
`and all others similarly situated,
`Plaintiff,
`
`v.
`
`
`
`ALBERTSONS COMPANIES, INC., ACME
`MARKETS, INC., SAFEWAY, INC.,
`BETTER LIVING BRANDS, LLC, and LNK
`INTERNATIONAL, INC.,
`
` Defendants.
`
`
`
`
`
`Plaintiff Christine Bischoff (“Plaintiff”) brings this action on behalf of herself and all
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`others similarly situated against Defendants Albertsons Companies, Inc., ACME Markets, Inc.,
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`Safeway, Inc., Better Living Brands, LLC, and LNK International, Inc. (collectively,
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`“Defendants” or “Albertsons”). Plaintiff makes the following allegations pursuant to the
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`investigation of her counsel and based upon information and belief, except as to allegations
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`specifically pertaining to herself and her counsel, which are based on personal knowledge.
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`NATURE OF THE ACTION
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`1.
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`This is a putative class action lawsuit against Defendants for cheating customers
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`by uniformly advertising, marketing, and selling generic versions of certain over-the-counter
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`drugs, including analgesic or pain-relieving medicines using acetaminophen under the brand
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`name “Signature Care” (the “Class Rapid Release Gelcaps” or the “Products”), prominently
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`bearing the misrepresentation “Rapid Release” (the “Rapid Release Claims” or
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`“Misrepresentation”). However, contrary to Defendants’ claims, the purported “Rapid Release”
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`Products actually dissolve slower than Signature Care-branded non-rapid release acetaminophen
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 2 of 38
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`products made and sold in tablet and caplet form.
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`2.
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`Albertsons is the second largest supermarket chain in the United States.1 As of
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`February 2022, Albertsons “operated 2,276 retail stores … across 34 states and the District of
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`Columbia with 24 banners including Albertsons, Safeway, Vons, Jewel-Osco, Shaw’s, Acme,
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`Tom Thumb, Randalls, United Supermarkets, Pavilions, Star Market, Haggen, Carrs, Kings Food
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`Markets and Balducci’s Food Lovers Market.”2 At each of these stores and banners, Defendants
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`sell a variety of health and wellness products, including over-the-counter pharmaceuticals.
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`Relevant here, in addition to selling brand name over-the-counter drugs, Defendants also
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`produce, manufacture, market, distribute, and sell the Class Rapid Release Gelcaps.
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`
`
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`1 See, e.g., Statista Research Department, Revenues of Albertsons Companies U.S. 2020, by segment (Jan. 27, 2022),
`https://www.statista.com/statistics/1167551/albertsons-revenue-by-segment-us/ (“As the second-largest supermarket
`chain in the North America, Albertsons generated retail sales and other revenues exceeding 69 billion U.S. dollars in
`2020.”); Statista Research Department, Net sales of Albertsons Companies U.S. 2015-2020 (Jan. 27, 2022),
`https://www.statista.com/statistics/1167526/albertsons-net-sales-us/; see also Statista Research Department,
`Albertsons Companies Statistics & Facts (Jan. 24, 2022), https://www.statista.com/topics/6931/albertsons-
`companies/#dossierKeyfigures (“Today, Albertsons Companies operates over 2,270 stores throughout the United
`States and employs around 300,000 people, making it one of the largest supermarket chains in North America.”).
`2 Albertsons Companies, Inc. Reports Fourth Quarter and Full Year Results (Apr. 12, 2022), available at
`https://www.albertsonscompanies.com/newsroom/press-releases/news-details/2022/Albertsons-Companies-Inc.-
`Reports-Fourth-Quarter-and-Full-Year-Results/default.aspx. See also Albertsons Companies, Q4 2021 Latest
`Quarterly Results: Earnings Release Infographic (Apr. 2022), available at
`https://s29.q4cdn.com/239956855/files/doc_financials/2021/q4/ALBCIV184062_CORP_ACI_InvestorRelations_A
`pril2022-FINAL.pdf; Albertsons Companies, Company Fact Sheet (Apr. 2022), available at
`https://s29.q4cdn.com/239956855/files/doc_downloads/2022/04/ALBCIV181099_CORP_ACI_FactSheet_FY2021_
`April2022-_-FINAL.pdf; Albertsons Companies, “Investors,” available at
`https://www.albertsonscompanies.com/investors/overview/default.aspx.
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`2
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 3 of 38
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`3.
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`In 2005, Johnson & Johnson Consumer Inc. introduced the name brand Tylenol®
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`Extra Strength Rapid Release Gels to the American public, purporting that its “Gelcaps [] are
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`specially designed with holes to allow [for] the release of powerful medicine even faster than
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`before.”3 Three years later, in 2008, Tylenol® PM Rapid Release Gels were launched with the
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`same promises.4
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`4.
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`Relevant to these allegations, Tylenol® is the branded name for acetaminophen.
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`In other words, acetaminophen is “generic Tylenol®.”
`
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`3 https://www.tylenol.com/news/about-us (last accessed May 5, 2022) (emphasis added).
`4 Id.
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`3
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`5.
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`Defendants then introduced their own version of the Tylenol® Extra Strength
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`Rapid Release Gels called “Signature Care Rapid Release Gelcaps:”5
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`
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`
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`5 See, e.g., https://www.acmemarkets.com/shop/product-details.960326318.html;
`https://www.albertsons.com/shop/product-details.960189576.177.html; https://www.safeway.com/shop/product-
`details.157050117.html.
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`4
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 5 of 38
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`6.
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`Defendants also introduced their own version of the Tylenol® Extra Strength PM
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`Rapid Release Gels called “Signature Care PM Rapid Release Gelcaps” (together with Signature
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`Care Rapid Release Gelcaps, the “Class Rapid Release Gelcaps”):6
`
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`Since the release of the Class Rapid Release Gelcaps, Defendants have misled,
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`7.
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`and continue to mislead, consumers about the nature, quality, and effectiveness of the Products
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`through their advertising and labeling. Specifically, Defendants market the Class Rapid Release
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`Gelcaps as “comparable to Tylenol® Extra Strength Rapid Release Gels,” even though they
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`actually dissolve slower than Defendants’ acetaminophen in traditional tablet and caplet form.
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`8.
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`More importantly, following Tylenol’s lead, Defendants prominently label every
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`Product sold in the United States as “Rapid Release” Gelcaps.
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`9.
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`But Defendants’ Rapid Release Claims concerning the Products are false,
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`misleading, and deceptive to consumers, who reasonably understand such claims to mean that
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`the Products work faster for consumers than non-rapid release products with the same active
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`ingredients and of the same dosage. However, despite what Defendants’ marketing and labeling
`
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`6 See, e.g., https://www.acmemarkets.com/shop/product-details.960019790.html;
`https://www.albertsons.com/shop/product-details.960019790.html; https://www.safeway.com/shop/product-
`details.960171151.html.
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`5
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 6 of 38
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`would have consumers believe, the Class Rapid Release Gelcaps do not provide faster pain relief
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`than their non-rapid release counterparts.
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`10.
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`In fact, independent testing conducted by Valisure, LLC (“Valisure”)7
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`demonstrates that the Class Rapid Release Gelcaps dissolve slower than the Signature Care-
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`branded non-rapid release acetaminophen products made and sold in caplet form. A true and
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`correct copy of these test results is attached hereto as Exhibit A.
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`11.
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`These test results are consistent with the findings of a 2018 study – also
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`conducted by Valisure – which demonstrates that generic acetaminophen rapid release gelcaps
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`sold by Walgreens, Walmart, and Rite Aid dissolve slower than these companies’ non-rapid
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`release versions of acetaminophen sold in tablet or caplet form.8 “Results [of the study] indicate
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`that acetaminophen gelcaps marketed as rapid or fast-release are slower acting under in vitro
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`dissolution conditions compared to the company-matched tablet dose.”9 A true and correct copy
`
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`7 Valisure is an “independent laboratory and partner for quality that is committed to increasing transparency and
`quality assurance throughout the healthcare industry.” https://www.valisure.com/#Independent-Analysis. In service
`of that mission, Valisure “offers independent certification, analytical studies and advocacy, vendor validation,
`consulting and other specialty projects that focus on science-based product quality.” Id.; see also “About Us,”
`https://www.valisure.com/about (“In response to rising concerns and quality issues in the global supply chain,
`Valisure’s team of Harvard- and Yale-trained scientists developed proprietary analytical technologies to
`independently test products, identify critical issues, and offer services to help distinguish quality stakeholders and
`products.”).
`8 See Jessop Kucera, et al., Rapid and Fast-Release Acetaminophen Gelcaps Dissolve Slower Than Acetaminophen
`Tablets, ADV. INV. PHA. THE. MEDIC., 1:63-71 (Nov. 12, 2018) [hereinafter “2018 Valisure Acetaminophen Study”],
`available at http://www.kenkyugroup.org/article/8/173/Rapid-and-Fast-Release-Acetaminophen-Gelcaps-Dissolve-
`Slower-Than-Acetaminophen-Tablets; see also Washington Post, ‘Rapid release’ Tylenol gelcaps are slower to
`dissolve than cheaper tablets, study finds (Nov. 14, 2018),
`https://www.washingtonpost.com/health/2018/11/14/rapid-release-tylenol-gelcaps-are-slower-dissolve-than-
`cheaper-tablets-study-finds/.
`9 2018 Valisure Acetaminophen Study; see also id. (“To better understand the influence of gelatin coatings on
`gelcap dissolution, four gelcaps from each of the twenty-five lots tested during the primary study (n = 100) were
`examined with their red and blue encapsulation removed. … Results suggest that the removal of a gelcap’s red and
`blue coating speeds up, on average, the time required for fully dissolving by 26%. This faster dissolution time
`suggests that gelcaps are a barrier for dissolution.”) (emphasis added) (internal citations omitted); id. (“The results
`of the study suggest that acetaminophen gelcaps packaged with marketed claims of rapid or fast-release tend to
`dissolve slower than tablets of identical dosage sold by the same company.”); id. (“Our results suggest that the
`gelatin coating added to rapid or fast-release gelcaps delays in vitro release of medication.”).
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`6
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`of the 2018 Valisure Acetaminophen Study is attached hereto as Exhibit B.
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`12.
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`Defendants have long known or should have known that traditional, non-rapid
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`release acetaminophen products can be equally effective in the same, if not faster, in the same
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`time period than the Class Rapid Release Gelcaps.
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`13.
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`Nevertheless, Defendants sell the Class Rapid Release Gelcaps as an alternative to
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`their traditional Signature Care-branded acetaminophen caplets, which are sold at a lower price
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`and do not contain the “rapid release” language on the label. In other words, Defendants charge
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`a premium for the Class Rapid Release Gelcaps.10
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`14.
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`By prominently featuring the Rapid Release Claims on the labeling and/or
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`packaging of the Class Rapid Release Gelcaps, Defendants intended to induce consumers to pay
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`more than they would pay for other comparable products that are not falsely labeled with Rapid
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`Release Claims, and consumers are so induced as a result of these claims.
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`15.
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`Defendants knew or should have known about the mislabeling. According to
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`Shane Sampson, Defendants’ Chief Marketing and Merchandising Officer, “[a]t Albertsons
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`Companies, we won’t put our Signature label on just anything; a product has to meet rigorous
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`quality standards and be an exceptional value to carry the Signature brand.”11
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`16.
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`Plaintiff and members of the putative Class and Subclass would not have
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`purchased the Class Rapid Release Gelcaps had Defendants disclosed accurate information about
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`the products and not misled them into believing that the Class Rapid Release Gelcaps would
`
`
`10 See infra. See also 2018 Valisure Acetaminophen Study, supra note 8 (“These rapid or fast-release labeled
`medications are sold at an average of a 23% higher price[.]”); Washington Post, ‘Rapid release’ Tylenol gelcaps are
`slower to dissolve than cheaper tablets, study finds (Nov. 14, 2018) (“Overall, the rapid-release gels carried a 23
`percent higher price than the tablets[.]”).
`11 Business Wire, Signature Offers a Wide Range of Quality Products Helping Customers Create Their Own
`Signature Moments with Pride (Apr. 4, 2016), available at
`https://www.businesswire.com/news/home/20160404005193/en/Albertsons-Companies-Introduces-the-New-
`Signature-Family-of-Brands (internal quotation marks omitted).
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`7
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 8 of 38
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`provide faster relief than other, cheaper acetaminophen products, such as the traditional
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`Signature Care non-rapid release acetaminophen sold in caplet and tablet form.
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`17.
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`Plaintiff brings this suit to now end Defendants’ deceptive practices as described
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`above and to recover the ill-gotten gains obtained by Defendants through this deception.
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`18.
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`For the foregoing reasons, Plaintiff brings this action individually and on behalf
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`of similarly situated individuals against Defendants for: (i) violation of New York’s General
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`Business Law § 349; (ii) violation of New York’s General Business Law § 350; (iii) breach of
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`express warranty; (iv) breach of the implied warranty of merchantability; (v) unjust enrichment /
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`restitution; (vi) negligent misrepresentation; and (vii) fraud.
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`THE PARTIES
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`19.
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`Plaintiff Christine Bischoff is a natural person and a citizen of New York who
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`resides in Peekskill, New York. Plaintiff Bischoff purchased Defendants’ Signature Care Rapid
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`Release Acetaminophen Gelcaps on several occasions during the Class Period, her most recent
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`purchase occurring in or around June 2021, from an ACME Markets brick-and-mortar retail store
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`located in Mohegan Lake, New York. Prior to her purchase, Plaintiff Bischoff reviewed the
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`labeling, packaging, and marketing materials for the Product and saw the Misrepresentations that
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`the Product contains acetaminophen in the form of purportedly “Rapid Release” gelcaps.
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`Plaintiff Bischoff relied on that labeling and packaging to choose the Product over their less
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`expensive, non-rapid release counterparts of the same dosage. Plaintiff Bischoff saw these Rapid
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`Release Claims prior to and at the time of purchase, and she understood them as representations
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`and warranties by Defendants that the Products release acetaminophen into the body faster and
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`thus provide quicker pain relief than non-rapid release products with the same active ingredients
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`and of the same dosage. Based on that understanding, Plaintiff Bischoff purchased the Products
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`8
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`because she specifically sought acetaminophen for help with her migraines and, specifically, the
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`“Rapid Release” Gelcaps form because she wanted the fastest pain relief available. Plaintiff
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`Bischoff therefore reasonably relied on Defendants’ Rapid Release Claims when she purchased
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`the Product. Accordingly, these representations and warranties were part of the basis of the
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`bargain, in that Plaintiff Bischoff would not have purchased the Products on the same terms had
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`she known these representations were not true. In making her purchase, Plaintiff Bischoff paid a
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`substantial price premium due to the false and misleading Rapid Release Claims. However,
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`Plaintiff Bischoff did not receive the benefit of her bargain, because Defendants’ purportedly
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`“Rapid Release” Products do not, in fact, work faster than their less expensive, non-rapid release
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`counterparts in caplet or table form containing acetaminophen in the same dosage.
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`20.
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`Defendant Albertsons Companies, Inc. (“ACI”) is a Delaware corporation with its
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`principal place of business and headquarters at 250 Parkcenter Blvd, Boise, Idaho 83706. As
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`“one of the largest food and drug retailers in the United States,”12 ACI owns and operates more
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`than 2,200 retail stores across the country under 24 different banners, including Albertsons and
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`Safeway.13 In addition, in 2016, ACI launched “its new store brand, Signature, the largest
`
`
`12 See Albertsons Companies, “Investors,” available at
`https://www.albertsonscompanies.com/investors/overview/default.aspx. See also Albertsons Companies, Inc., Form
`S-1/A (Jun. 10, 2020), https://sec.report/Document/0001193125-20-165122/ (“We hold a #1 or #2 position by
`market share in 68% of the 121 metropolitan statistical areas (“MSAs”) in which we operate. … We believe this
`local market presence, coupled with brand recognition, drives repeat traffic and helps create marketing, distribution
`and omni-channel efficiencies that enhance our profitability.”).
`13 On information and belief, Defendant ACI controls the marketing and pricing practices of the more than 2,200
`ACI-owned retail stores located throughout the United States, and all banners under which those stores operate. See,
`e.g., Albertsons Companies, Inc., 2021 Annual Report (Form 10-K), at 8-9, available at
`https://annualreport.stocklight.com/NYSE/ACI/21864714.pdf (“Our retail operating divisions are geographically
`based, have similar economic characteristics and similar expected long-term financial performance. … Across all
`operating segments, the Company operates primarily one store format. Each division offers, through its stores and
`digital channels, the same general mix of products with similar pricing to similar categories of customers, have
`similar distribution methods, operate in similar regulatory environments and purchase merchandise from similar or
`the same vendors. … Our marketing efforts involve collaboration between our national marketing and
`merchandising team and local divisions and stores. We augment the local division teams with corporate resources
`and are focused on providing expertise, sharing best practices and leveraging scale in partnership with leading
`consumer packaged goods vendors. … We have recently deployed and are continuing to refine cloud-based
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`9
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 10 of 38
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`private label across [its more than 2,200] stores.”14 The Signature line “is exclusive to
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`Albertsons Companies and is carried by all [of its] banners.”15 Relevant here, ACI owns and
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`operates the “Signature Care” brand, the health products segment of ACI’s Signature label, and it
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`manufactures, labels, sells, and distributes all Signature Care-branded products to consumers in
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`New York and throughout the United States, including the Class Rapid Release Gelcaps, which
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`are generic versions of pain-relieving medicines sold under the Signature Care brand name. ACI
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`is also responsible for in-store signage, promotion, advertisement, and marketing of the Class
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`Rapid Release Gelcaps, and it owns and operates the websites for Acme, Albertsons, Safeway,
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`and all other ACI banner stores. At all relevant times, acting alone or in concert with others,
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`ACI has done business in New York and throughout the United States. At all relevant times,
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`acting alone or in concert with others, ACI advertised, marketed, sold, and distributed the Class
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`Rapid Release Gelcaps to consumers in New York and throughout the United States. Further,
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`acting alone or in concert with others, ACI has, at all relevant times, formulated, directed,
`
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`enterprise solutions to quickly process proprietary customer, product and transaction data and efficiently provide our
`local managers with targeted marketing strategies for customers in their communities. By leveraging customer and
`transaction information with data driven analytics, our ‘personalized deal engine’ is able to select, out of the
`thousands of different promotions offered by our suppliers, the offers that we expect will be most compelling to each
`of our more than 30 million weekly customers. In addition, we use data analytics to optimize shelf assortment and
`space in our stores[.]”); see also Albertsons Companies, Inc., Form S-1/A (Jun. 10, 2020),
`https://sec.report/Document/0001193125-20-165122/ (“We have integrated systems and converted stores and
`distribution centers to create a common platform. We believe our common platform gives us greater transparency
`and compatibility across our network, allowing us to better serve our customers and employees while enhancing our
`supply chain. We continue to sharpen our in-store execution, increase our Own Brands penetration and expand our
`omni-channel and digital capabilities.”).
`14 Business Wire, Signature Offers a Wide Range of Quality Products Helping Customers Create Their Own
`Signature Moments with Pride (Apr. 4, 2016), available at
`https://www.businesswire.com/news/home/20160404005193/en/Albertsons-Companies-Introduces-the-New-
`Signature-Family-of-Brands (“Signature is a multi-category brand developed to address consumers’ growing
`appetite for quality private label products from stores they trust. … Albertsons Companies has created quality items
`for the Signature brand across six product sectors – Signature SELECT™, Signature Kitchens™, Signature
`Farms™, Signature Cafe®, Signature Home™, and Signature Care™. The line includes a wide assortment of
`pantry staples, prepared foods, fresh produce and ingredients that bring delight to any dish, as well as a broad range
`of paper goods, laundry products, personal care, and other items.”) (bolding in original; underlining added for
`emphasis).
`15 Id.
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`10
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`controlled, had the authority to control, and/or participated in the acts and practices set forth in
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`this Complaint.
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`21.
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`Defendant ACME Markets, Inc. (“Acme”), is a Delaware corporation with its
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`principal place of business and headquarters located in Boise, Idaho. Acme is a subsidiary of,
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`and operates as a banner of, ACI, which is “one of the largest food and drug retailers in the
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`United States.”16 Acme is a supermarket chain that sells grocery items, food, and general
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`merchandise to consumers regionally, including the Class Rapid Release Gelcaps. Acme
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`operates 161 brick-and-mortar retail locations primarily located in and throughout the
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`Northeastern United States, including 16 such locations in New York (including the Mohegan
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`Lake, NY location where Plaintiff purchased her Product). Acme sells Signature Care-branded
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`products to consumers in New York and throughout the United States, including the Class Rapid
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`Release Gelcaps. Acme is also responsible for the in-store signage, promotion, advertisement,
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`and marketing of the Class Rapid Release Gelcaps. Additionally, at all relevant times, acting
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`alone or in concert with others, Acme advertised, marketed, sold, and distributed the Class Rapid
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`Release Gelcaps to consumers in New York and throughout the United States. Acting alone or
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`in concert with others, Acme formulated, directed, controlled, had the authority to control, and/or
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`participated in the acts and practices set forth herein.
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`22.
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`Defendant Safeway, Inc. (“Safeway”) is a Delaware corporation with its principal
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`place of business and headquarters located in Pleasanton, California. Safeway is a wholly owned
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`subsidiary of, and “operates as a banner of[, ACI], one of the largest food and drug retailers in
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`the United States.”17 Safeway sells grocery items, food, and general merchandise to consumers
`
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`16 https://www.acmemarkets.com/about-us.html.
`17 https://www.safeway.com/about-us.html.
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`11
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 12 of 38
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`regionally, and it provides a variety of specialty departments, such as bakery, delicatessen, floral
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`and pharmacy. Together with Defendant ACI, Safeway owns and operates the “Signature Care”
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`trademark. Acting alone or in concert with others, Safeway formulated, directed, controlled, had
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`the authority to control, and/or participated in the acts and practices set forth herein.
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`23.
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`Defendant Better Living Brands, LLC (“BLB”) is a limited liability company
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`organized under Delaware law with its principal place of business and headquarters located in
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`Pleasanton, California. BLB is a wholly owned subsidiary of Defendant Safeway. At all relevant
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`times, BLB, acting alone or in concert with others, has manufactured, marketed, and distributed
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`Signature Care-branded products, including the Class Rapid Release Gelcaps, to consumers in
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`New York and throughout the United States. Indeed, BLB is listed as the labeler of some or all
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`of the Class Rapid Release Gelcaps directly on the Products’ labeling.
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`24.
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`Defendant LNK International, Inc. (“LNK”) is a New York for-profit corporation
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`with its principal place of business and headquarters located at 22 Arkay Drive, Hauppauge, New
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`York 11788. LNK is “one of the nation’s largest manufacturers of solid and liquid dose, over-
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`the-counter (OTC) pharmaceuticals.”18 LNK’s operation includes providing, among other
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`things, laboratory services, manufacturing services, packaging services, and marketing services
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`for store brands like Signature Care.19 Relevant here, LNK, acting alone or in concert with
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`others, manufactures, designs, labels, markets, and/or supplies the Class Rapid Release Gelcaps
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`to consumers in New York and throughout the United States.
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`25.
`
`Together, Defendants ACI, Acme, Safeway, BLB, and LNK (collectively,
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`“Defendants”) manufacture and distribute all Signature Care-branded products, including the
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`18 https://www.lnkintl.com/.
`19 See https://www.lnkintl.com/our-operation; https://www.lnkintl.com/about-lnk.
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`12
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 13 of 38
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`Class Rapid Release Gelcaps, which are generic versions of pain-relieving medication sold under
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`the Signature Care brand name exclusively at ACI banner stores. Defendants are also
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`responsible for the promotion, advertisement, marketing, and distribution of the Products in New
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`York and throughout the United States. Further, Defendants sell, and at all relevant times have
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`sold, the Class Rapid Release Gelcaps to consumers in New York and throughout the United
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`States. Defendants have thus transacted in New York and throughout the United States at all
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`times during the Class Period.
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`26.
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`Plaintiff reserves the right to amend this Complaint to add different or additional
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`defendants, including without limitation any officer, director, employee, supplier, or distributor
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`of Defendants who has knowingly and willfully aided, abetted, and/or conspired with them in the
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`false and deceptive conduct alleged herein.
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`JURISDICTION AND VENUE
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`27.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A),
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`as amended by the Class Action Fairness Act of 2005 (“CAFA”), because this case is a class
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`action where the aggregate claims of all members of the proposed class are in excess of
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`$5,000,000.00, exclusive of interest and costs, there are over 100 members of the putative class,
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`and there is at least minimal diversity in that Plaintiff, as well as most members of the proposed
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`class, is a citizen of a state different from most Defendants.
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`28.
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`This Court has personal jurisdiction over Defendants have, at all times relevant
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`hereto, sufficient minimum contacts with this state and District in that they have systematically
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`and continually conducted business in New York, including within this District, and/or have
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`intentionally availed themselves of the benefits and privileges of the New York consumer market
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`through the promotion, marketing, and sale of their products and/or services to residents within
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 14 of 38
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`this District and throughout New York. Additionally, Defendant LNK is incorporated under the
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`laws of, and maintains its principal place of business and headquarters in, New York, rendering it
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`essentially at home in this state. Plaintiff Bischoff is also citizen of New York, purchased the
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`Class Rapid Release Gelcaps from Defendants while in New York, and submits to the
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`jurisdiction of the Court.
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`29.
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`Pursuant to 28 U.S.C. § 1391, this Court is the proper venue for this action
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`because a substantial part of the events, omissions, and acts giving rise to the Plaintiff’s claims
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`occurred in this District. Also, Plaintiff resides in this District and purchased the Class Rapid
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`Release Gelcaps from Defendants from a brick-and-mortar Acme retail location in this District.
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`Moreover, Defendants systematically conduct business in this District and throughout the State
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`of New York, and they distributed, advertised, and sold the Class Rapid Release Gelcaps to
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`Plaintiff and other members of the proposed Nationwide Class and New York Subclass in this
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`State and District.
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`FACTUAL ALLEGATIONS
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`Acetaminophen, Generally
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`Acetaminophen, also called paracetamol or N-acetyl-para-aminophenol (APAP),
`
`A.
`
`30.
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`is an over-the-counter pain reliever and fever reducer that comes in a variety of forms: liquid
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`suspension, capsules, tablets (including “caplets,” i.e., capsule-shaped tablets), and gelcaps.20
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`31.
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`In any form, acetaminophen is used to treat a variety of common conditions
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`including headaches, muscle aches, arthritis, backaches, toothaches, colds, fevers, acute pain,
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`chronic pain, etc.21 Typically, it is the first treatment recommended for any mild to moderate
`
`
`20 See 2018 Valisure Acetaminophen Study, supra.
`21 See, e.g., https://www.drugs.com/acetaminophen.html; https://www.mayoclinic.org/chronic-pain-medication-
`decisions/art-20360371.
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`Case 7:22-cv-04961 Document 1 Filed 06/13/22 Page 15 of 38
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`pain. Therefore, acetaminophen is one of the most commonly used drugs in the world when it
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`comes to pain mitigation, representing an estimated global market value of over $350 million
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`annually.22 It is even included on the World Health Organization List of Essential Medicines.23
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`32.
`
`Given the wide-spread use of acetaminophen, both the quality and value of
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`acetaminophen products present important public health, consumer safety, and economic
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`concerns.24
`
`B.
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`33.
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`Defendants Seek To Capitalize Off Of Johnson & Johnson’s Successful
`“Tylenol”-Brand Acetaminophen Products By Creating Generics
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`Tylenol® is the well-recognized brand name of acetaminophen that is produced,
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`manufactured, and distributed by Johnson & Johnson.
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`34.
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`Johnson & Johnson currently lists 34 Tylenol® products on its Tylenol® website,
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`including: 1 non-medicative device, 13 liquid products, 1 chewable product, 1 tablet product, 1
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`coated tablet product, 13 caplet products, and 2 gelcap products.25 All but two of the 34 products
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`contain acetaminophen.26 Johnson & Johnson has profited and continues to profit greatly from
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`this Tylenol® product line.
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`35.
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`Generic brands, like Signature Care, thus seek to mimic the product offerings of
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`Johnson & Johnson, selling generic versions of the Tylenol® products. Indeed, Defendants have
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`done this with respect to several Tylenol® products, mimicking the Tylenol® Extra Strength
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`Rapid Release gels.
`
`
`22 See 2018 Valisure Acetaminophen Study, supra.
`23 World Health Organization (“WHO”), Model List of Essential Medicines (Aug. 2017 ed.),
`http://www.who.int/medicines/publications/essentialmedicines/en/2017.
`24 See 2018 Valisure Acetaminophen Study, supra.
`25 https://www.tylenol.com/products (last accessed May 5, 2022).
`26 Id. SmartCheck™ Digital Ear Scope From Children’s Tylenol® (an at-home digital ear scope containing no
`medication) and Tylenol® PM Simply Sleep Nighttime Sleep Aid do not contain acetaminophen.
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`C.
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`36.
`
`The Marketing Of Rapid Release Aceta